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HomeMy WebLinkAboutRES NO 122-19RESOLUTION NO. 12 2- 19 RESOLUTION DETERMINING THAT PARTS AND SERVICES REQUIRED FOR THE TURBLEX BLOWERS LOCATED AT WASTEWATER TREATMENT PLANT NO. 3 CANNOT BE REASONABLY OBTAINED THROUGH THE USUAL BIDDING PROCEDURES AND AUTHORIZING THE FINANCE DIRECTOR TO DISPENSE WITH BIDDING THEREFOR, NOT TO EXCEED $120,000. WHEREAS, Wastewater Treatment Plant No. 3 (W WTP 3) has five Turblex blowers for the treatment of wastewater influent; and WHEREAS, the Turblex blowers require regular repair and maintenance services; and WHEREAS, Howden Roots, LLC is the only factory -authorized provider of services and parts for Turblex blowers in North America (letter attached hereto as Exhibff A and incorporated by reference herein); and WHEREAS, Howden Roots has submitted a three-year service agreement proposal, attached hereto as Exhibff B and incorporated by reference herein; and WHEREAS, the Public Works Director recommends the Council find the purchase of replacement parts and services required to repair and maintain the Turblex blowers located at W WTP 3 can only be reasonably obtained from Howden Roots, because Howden Roots is the sole provider of required parts and services for the City's geographical area, and recommend the Council dispense with bidding requirements, in accordance with subsection D.2 of Section 3.20.060 of the Bakersfield Municipal Code. NOW, THEREFORE, BE IT RESOLVED by the Council of the City of Bakersfield as follows: The above -recitals are true and correct and incorporated herein by reference. 2. Based on the facts included in the above recitals, the services and parts can only be reasonably obtained from Howden Roots, because Howden Roots is the sole provider of the required parts and services for the City's geographical area. 3. The expenditure of funds for required parts and services shall not exceed One Hundred Twenty Thousand Dollars ($120,000). --Page 1 of 2 Pages— o�gAKF9 r S:\PIant3\Cnnvads\Howden Rools\Rcsolmiov- Howdcn Rools.docx � m J J ORI^u FAL The Finance Director is authorized to dispense with bidding in accordance with Section 3.20.060 of the Bakersfield Municipal Code I HEREBY CERTIFY that the foregoing Resolution was passed and adopted, by the Council of the City of Bakersfield at a regular meeting thereof held on AUG 14 1019 by the following vote: NA U1, �l'I�VYl id JULIE DRIMAKIS, CMC CITY CLERK and Ex Officio Clerk of the Council of the City of Bakersfield APPROVED: AUG 14 1019 By KAREN GOH 4001* Mayor APPROVED AS TO FORM: VIRGINIA GENNARO City Attorney J SHUA RUDNICeputy City Attorney II --Page 2 of 2 Pages— a�gAKF s S:APInm3VConhaasVIlmcdcn Rools\ResoluGnn- Howden Rooa.docx I m JORIGAAL ✓ ✓ ✓ ✓ ✓ ✓ AYES: COUNCILMEMBER RIVERA, GONZALES,WEIR, SMITH, FREEMAN, SULLIVAN, PARLIER COUNCILMEMBER NVVg- ABSTAIN: COUNCILMEMBER ABSENT'. COUNCILMEMBER Il N�t�4.. NA U1, �l'I�VYl id JULIE DRIMAKIS, CMC CITY CLERK and Ex Officio Clerk of the Council of the City of Bakersfield APPROVED: AUG 14 1019 By KAREN GOH 4001* Mayor APPROVED AS TO FORM: VIRGINIA GENNARO City Attorney J SHUA RUDNICeputy City Attorney II --Page 2 of 2 Pages— a�gAKF s S:APInm3VConhaasVIlmcdcn Rools\ResoluGnn- Howden Rooa.docx I m JORIGAAL April 9, 2019 Subject: Factory Authorized Service Dear Howden / Turblex Equipment Owners, EXHIBIT A Howden Hmden Roots, LLC 4654 W. Junction Street Springlistd, MO 65802, USA Tel x1 417 864 5599 Fax'. v1 417 866 D235 Wat, www.howdan.com The Howden Roots site located in Springfield, Missouri is a production and service facility that has been providing customized turbomachinery solutions for over 30 years. This location manufactures parts, performs repairs, and provides field services for Single Stage Blowers, Steam Turbines, and Compressors. Services are available for new and legacy OEM equipment brands including: Steam turbines — Howden, Siemens Blowers and compressors— Turblex, HV Turbo, Cord -Turbo, Siemens Energy, Inc., Roots, Kuhnle, Kopp & Kausch Fans — Schiele Howden is the only factory -authorized service center and distributor of OEM components in North America for these machines. Our commitment to exemplary operating installations is demonstrated by the Company's investment in the Customer Service/Parts Department. This highly trained group of professionals includes in-house technical and parts departments, as well as mechanical and instrumentation field services personnel. The Howden field service group is supported by a staff of mechanical, electrical and instrumentation engineers from our engineering centers. For technical support and/or spare parts for your Howden equipment, contact us at+1 417 864.5599. Purchase orders should be addressed to: Howden Roots, LLC 4654 West Junction Street (formerly West Farm Road 130) Springfield, MO 65802 USA 1<0AK4 o s ORIGINAL I(/ I re 4,_ Remit to: Remit via Bank Wire/ACH to: Howden Roots, LLC Howden Roots, LLC 901 Main Street, 7° Floor Account number. 4451243234 Dallas, TX 75202 SWIFT Code: BOFAUS3N Routing number domestic 023009593 Routing number ACH/EFT: 111000012 Should you have any problems or additional needs, please do not hesitate to contact us. With kindest regards, Jong? Operations Manager Phone. (417) 864-5599 Email: Jorge. Parada@Howden.com o�OAKF T s ORIGIFAL EXHIBIT B Proposal to: Bakersfield Ourreterence: HROLSV.AFM.000875 For: David Weatherly Project: Bakersfield 3 Year LTA Date: July 8'°, 2019 Howden. 4654 W Junction Street. Spnn0eld Missoun 65002. USA Tel 417 425 9064 E,,,I matt ,eeer@howtlen corn Vvee. www howtlen con X Revolving Around You 64�aAKe r aP r m r JORINAL G crc,tcre,r, Project SAis Ye, _Tc Site S r R,1s5elc 1.Introduction oij, rer. rax 1. r.+ooce;a o ce. ami_ F This proposal is for a three year service agreement for the Howden (Turblex) compressors installed at Bakersfield WVVrP. We look forward to our continued relationship and are pleased to offer this proposal for your consideration. Your Howden contacts: Commercial inquiries: III Nosier Tel: +1417425-9064 Fax: +1417 686-0235 Email: Matt.Mosieralhowden.com Technical inquiries: Louis Volpe Tel: +1417 380.5882 Fax: +1417.866-0235 Email: Lmlis.Voloefthowden.com 2. Technical specification 2.1. Scope of supply/equipment description • Three year service agreement for the five (5) compressors (Model KA22SV-GL255, S/N: 7722-26) installed at Bakersfield WVVTP. • The factory service program will consist of three visits (performed annually) to the jobsite by a factory representative who will provide annual inspections and Class I services. • A total of one (1) Class I service will be performed on each of the five (5) compressors in conjunction with one or more of the three plant visits. • One eight (8) hour day for maintenance and operations training • Typical replacement parts for the Class I services are included. Any other replacement parts and labor are not included in this program. Description of Annual Inspections and Class I services are attached. • Proposal assumes the site will provide at least one qualified helper to assist the Howden technician. This pricing also assumes that proper certified lifting will be available and the inlet filter/transition piece, and sound enclosures will be removed (if applicable) for access to perform above listed services. Does not include craft labor and special tools to support the work. • This proposal includes typical replacement parts for above listed services. Any significant wear or abnormalities identified requiring extra labor and / or parts shall be billed per Howden's standard Service Rate Schedule or Price lists. Howden will provide an estimate of additional time and/or materials required. Typical replacement parts are non -returnable. Custom, r. 6 k P'.,t 6 k ra LTA siteE P ,,, Our ref VF rA[MOOPEPS Ote. Jur 20'5 • Howden LTSA members will receive 24 hour technician mobilization if emergency services are required; in case emergency service is required it will be billed at the current published rates in attached rate schedule. • Howden LTSA members will have access to remote troubleshooting services available upon request; these services if required will be billed at the current published rates in attached rate schedule. 2.3. Parts list 2.4. Pricing service Agreement Total Price (USD) $114,000.00 2.5. Terms This service agreement can be procured by a onetime lump sum payment at the above price and will lock in cost for the contracts entirety. If yearly payments are requested, annual purchase orders will be accepted with prior approval. Howden reserves the right to adjust cost due to market fluctuations with a paid yearly contract. This proposal is based on our Howden Roots, LLC Standard Terms of Sale of Goods. All provisions of this offer are subject to negotiation and final approval by Howden. �gAKF9 r �0FI) L 5 SEALING RING 9332260869 H503 5 O-RING 9332253500 D119 5 O-RING 89027262 H110 10 O-RING 89027296 H111 5 O-RING 89412415 T231 5 O-RING N17V3185 T246 1 Cleaning Kit 300031 1 Cleaning Kit B 300032 2.4. Pricing service Agreement Total Price (USD) $114,000.00 2.5. Terms This service agreement can be procured by a onetime lump sum payment at the above price and will lock in cost for the contracts entirety. If yearly payments are requested, annual purchase orders will be accepted with prior approval. Howden reserves the right to adjust cost due to market fluctuations with a paid yearly contract. This proposal is based on our Howden Roots, LLC Standard Terms of Sale of Goods. All provisions of this offer are subject to negotiation and final approval by Howden. �gAKF9 r �0FI) L i/. VWV Howden Schedule of Field Service Rates A. The following rates apply for service in Conti nentat United States and Mexico: Note'. All rates are in U.S. Dollars Howden Roots 4654 W. Junction Street Springfield. MO 65802 USA T (41 7) 864-5599 After Hours Emergency #: (41 7) 929-2929 III . revenue must Das Field Service Technician Edgmernme, Personnel Monday ihru SaWNay (excepiholitlays) First 40 Hours $175lhour - First 40 Hours $27O1 Monday thru Saturday (except holidays) Over 40 Hours $2fi5lhour Over 40 Hours $401 Sunday, and locally recognized holidays Over 40 Hours $320lhour Over 40 Hours $4251hour Sunday, and locally rewarded holitlays. All Hours $35Nbour All Hous $540lhour B. The following rates apply for service outside Continental North America'. Das Field Service Technician Engineering Personnel First 40 Hours $21 D/hour First 40 Hours $280rTour Monday thru Saturday (except holidays) Over 40 Hours $320lhour Over 40 Hours $4251hour Sunday, and locally rewarded holitlays. All Hours $425lhour All Hours $560lhour C. The following standards shall apply: 1. The minimum time off for a person during any 24-hour round must be eight (8) consecutive hours. 2. Travel time, whether during first 40 hours or over 40 boors. will be invoiced at the Monday through Saturday Field Service Technician rates in Tables "A" & "B". Travel in Continental North America is Invoiced actual travel time with a maximum of ten (10) hours each day. Travel outace Continental North America is invoiced actual travel time. Actual travel time on holidays or to the jobsite on Sundays will be at the Field Service Technician Sunday and Holiday rate in Tables "A" & "B" 3. Standby time at job site, or locally on call, shall be regarded as time worked For full days of Work and/or Stantlby, an 8 hour daily charge will apply. Standby time, Monday through Saturday, will be invoiced at the Monday through Saturday Work rate in Tables "A" & "B Standby time Sundays and holidays will be invoiced at the Sunday and holiday rate in Tables "A" & "B". Weekend waiting rate will be invoiced at the Field Service Technician first 40 hour rate In Tables "A" & "B". 4. Rates apply from time and date of departure home base to time and date of return home base. 5. When a project is expected to exceed 5 continuous weeks, then after 3 weeks the Buyer will allow an extended weekend leave or rotation of personnel. Travel fees shall be by Buyer. 6. Air travel on flight segments exceeding 12 hours will be business class and shall be paid by Buyer. Air travel on flight segments exceeding 4 boors will be premium economy and shall be paid by Buyer. T. Payments shall be in U.S. funds unless otherwise agreed in writing. 6. Rates quoted are subject to adjustment without notice to conform to Sellers published rates In effect at the time service is performed. 9. Howden may offer a priority service when the relevant Howden personnel are available, for emergency or breakdown callouts. An additional 30% of the applicable labor rate will be charged where Howden personnel are requested and able to be mobilized within 24 boors of the request being received D. Expenses: 1. Meals will be $651day per diem to be charged from the day of travel start to the day of travel end. 2. Lodging, incidental expenses, transportation to and from the city nearest the jobsite, plus local transportation will be invoiced at cost plus 20% administrative fee. Receipts) to be provided when any expense exceeds $60 00. 3. Transportation to and from the city nearest the jobsite, plus local transportation will be charged at cost plus 20% administrative fee. The mileage allowance for personal car use will be current U.S. government rate per mile. 4. Tool usage, when required will be charged at a rate of $350 per trip. S. Expenses for Airline travel shall be charged at cost Plus a 20% administrative fee (Administrative fee shall not exceed $500). E. Terms and Conditions. The sale of services by Howden Roots LLC ("Seller') is subject to Seller's Terms for Sale of Goods and if such terms differ in any way from Buyers ortler, or if such terms are construed as an acceptance or confirmation acting as an acceptance, then Seller's acceptance Is expressly made conditional on Buyer's assent to any terms or conditions contained in Seller's terms that are different from or additional to those contained In Buyers writing. Further, this quote shall be deemed notice of objection to such terms and conditions of Buyer. If this quote is construed as the offer, acceptance of same is expressly limited to the terms and conditions contained herein. In any event Buyers order mind services shall constitute and manifest Buyer's assent to Sellers Terms for Sale of Gootls. TS 5000-1 FRO -S January 1, 2019 PROPRIETARY & CONFID4r, FyN Important This ¢ conduction bc0o IIsubjectlc revocation nolic¢NII orders rs amoresubject to acceptance by Seller and me terms ndu0eb T i J ORIGivAL HowtlenRoots LLC �O---Jn Standard Terms anal Conditions of Sale YV[J 1. DEFINITIONS: SCOPE - "Buyer" means the issuer of the purchase order and its attachments. "Seller" means Howden Roots LLC., "Oder means Buyers purchase oder/contract, these terms and conditions of sale, Sellers acceptance and other attachments mutually agreed upon by the parties. Goods' means the specified drawings, goods and parts as described in Sellers quotationlbid, this Order, and its attachments, "Services" means the specified supervision, testing, repair, or other services of Seller as described in Sellers quotaborraid, this Order, and its attachments. Delivery and scope of supply shall be based upon Sellers quotation/bid and any expressly agreed upon changes. 2. ACCEPTANCE - Buyers acceptance of any Goads or Services from Seller shall constitute full acceptance of Seller's quote and these terms and conditions. These terms and conditions take precedence over Buyers terms and conditions to which notice of objection is bereby given. No terms or conditions in Buyers order shall be binding upon Seller unless specifically agreed to in writing by Seller. Neither Sellers commencement of Performance or delivery shall be deemed as acceptance of Buyers terns and conditions. 3. TESTING AND INSPECTION — If elected! in the Oder, Seller will conduct testing and/or Inspection or revievgs) by Buyer of the Goods or Services at Buyers nsks and costs. Buyer will receive written notice at least three (3) business days prior to such testing/nspectionOreview{s). If Buyer waives attendance or fails to attend, any testinglinspselionstreviewswill be deemed to have been made In Buyers presence. 4. TITLE 8. RISK OF LOSS - Unless specified In the Oder, Goods are being purchased EXW (Origin/Factory), Ineoterns 2010. Title and nsk of loss shall transfer to Buyer upon delivery to the agreed upon Incoterms point (or when delivery should have taken place but for fault of Buyer). Buyer agrees to document (w@ photos) and promptly advise Seller of any damage or freight claims. Goods that are not promptly and properly rejected by Buyer upon deliveryshall be deemed irevocablyaccepled, accepted Goods shall be subject to Sellers warranty herein. 5. WARRANTY - Seller warrants that (i) the Goods will be of good material and workmanship, fin) the Services shall be performed by competent and qualified personnel in a professional and workmanlike manner In accordance with generally established industry standards, and (iii) the Goods and Services will wnforn to the technical specifications and/or drawings expressly agreed upon between the parties in writing. Sellers warranties on the Goods will be in effect until the earlier of (i) twelve (12) months from first operation/use of any such Goods or (it) eighteen (18) months after date of delivery (at the applicable FOB/Incoterns point quoted by Seller). Sellers sole liability and Buyer's sole and exclusive remedy for bread/ thereof shall be the repair or replacement of such Goods by Seller, at Sellers option and cost (but not including transportation, removal, reinstallation, and decontamination), Sellers warranties on the Services will be in effect until ninety (90) days from the date of the performance of suds Services. Sellers sole liability and Buyers sole and exclusive remetly for breach thereof shall be the re-performance of such Services by Seller. Any wamanty repairlreplacementl e-performance pursuant to the above warranties shall be warrented by Seller for a period equal to the remainder of the anginal warranty period set forth above. No "evergreen" or "in-place" warranty Is being provided. Seller shall have the sole right to specify the manner and timeframe for such repair/mplacemenV re-performance. Defective/non-conforming bars(s)/Goods must he returned to Seller free of all contaminants and in the event of replacement, will become the property of Seller unless Seller instructs otherwise. The warranty, aloes not incude the costs of fitting new parts or other Equipment. If Seller opts to perform any warranty obligations in-place, Buyer shall, without cost to Seller, during a spectral time penod agreed upon by the parties, provide access by disassembling, removing, replacing, and reinstalling any equipment, structures, or other obstmdions to the extent necessary to permit Scheme perform its weranty obligations. THERE ME NO WARRANTIES, CONDITIONS, GUARANTEES, REPRESENTATIONS, OR REMEDIES THAT EXTEND BEYOND THE FACE OF THESE TERMS AND CONDITIONS. ALL OTHER WARRANTIES, CONDITIONS, GUMMTEES, REPRESENTATIONS, OR REMEDIES EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE (INCLUDING MY CONDITION OR WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR A PARTICULAR PURPOSE) NOT EXPRESSLY SET FORTH HEREIN, ME FULLY DISCLAIMED AND EXCLUDED TO THE FULLEST EXTENT PERMITTED BY LAW. SELLER'S WARRANTIES DO NOT COVER ANY GOODS OR SERVICES THAT HAVE BEEN ALTERED OR SUBJECTED TO ACCIDENT OR IMPROPER STORAGE, INSTALLATION, ASSEMBLY, COMMISSIONING, MAINTENANCE, USE OR APPLICATION. SELLER DOES NOT WARRANT THAT THE GOODS WILL RESIST THE ACTION OF EROSIVE OR CORROSIVE GASES, LIQUIDS, OR SOLIDS, OR PRODUCE RESULTS IN COMPLIANCE W ITH MY LAWS, DECREES, OR OTHER STANDARDS. - 6. INSTALLATIONS AND ASSEMBLY— Unleas specified in the Oder, Seller is only the supplier of the Goods and shall have no responsibility for the assembly and installation of the Goods T. INTELLECTUAL PROPERTY - Sellers intellectual property rights and proprietary information (in hard copy or in electronic format) remain the property of Seller. Notwithstanding any other provisions or requirements of this Order, no intellectual property or proprietary information is being sold granted transferred, licensed, or assigned,, there are no works-made-for-hire or unrestricted use (any government ngnts shall be "limited rights"). Seller shall not be required to provide, or provide access to, any confidential or proprietary area or information. Buyer shall not reverse engineer or otherwise attempt to re-create the Goods/Sereces. 8. PATENT INDEMNITY � Except (i) to the extent of designs or other intellectual property provided by Buyer and/or (ii) to the extent that Goods are altered or combined by Buyer in a manner causing the infringement Seller will indemnify Buyer from dame by third parties against Buyer if the Gootls infringe any Canadian or United States patent If an injunction is issued against the further use of the Goods, Seller aril, at Its option and expense. (i) procure for Buyer the right to continue using said Item of Goods, or pi) modify or replace the same wth non-infringing Goods or (iii) remove the infringing Goods and refund the purchase price. 9. BUYER MATERIALS - Buyer-fumished material must be received by Seller In accords nice with the delivery schedule agreed upon by both Panics. If shipment of such medical is delayed or Inst, Seller reserves the right to (I) Invoice and hold shipment awaiting such material or (it) invoice and ship less suchmatenal. Buyer shall reimburse Seller for all liablliyincured by Seller as a result of any such Buyer delay. 10. ONSITE SERVICES— The following section shall apply only if Seller provides on-site Services to Buyer under this Oder: 10.1 Indemnity of Buyer. Seller will indemnify Buyer from non-nuclear claims brought by third parties against Buyer for (i) bodily loory (including death) and (ii) property damage, each only to the extent directly caused by the negligence of Seller. Seller shall not be responsible for the acts/omissions of Buyer m others. Seller's indemnity obligations shall not apply to Buyer property or any nuclear achetylincident. 10.2 Insurance. Seller shall maintain the followng insurance coverage (1) Commercial General Liability with limits of $1,000,000 combined single limit occurrence for Bodily Injury, Physical Property Damage of third party property, and Contractual Liability coverage, subject to an annual aggregate of $2,000,000, (2) Automobile Liability— Bodily Injury/Physical Property Damage In the amount of $1,000 000 combined single limit each occurrence, and (3) Workers Compensation Insurance — statutory, as to Sellers employees. If requested, Seller wil provide an ACORD form of certificate confirming such coverage. Sellers provision of a certificate of insurance In accordance with Buyer's site requirements does not constitute Sellers acceptance of Buyers terms of purchase. Seller shall have no other or further obligations related to Insurance or coverage. 10.3 Other On-sdiService Provisions. Seller shall comply with applicable Canadian, U.S. and/or provinealltemdonallstate statutes, ads, ordinances, regulations, codes, and laws that apply to Seller's performance of the Work. Seller shall comply with jobisite requirements as mutually agreed upon by the parties. Seller Is an independent contractor and is not responsible for oversight or supervision of work, property or employees of others, Indutling health, safety, or security. Buyer shall advise Sellers personnel in advance of all known anal/or suspected hazardous/unsafe conditions and risks that Lrmgy�be encountered while on-site, incuding proper Matenal Safety Data Sheets (MSDS). Seller's personnel shall not be required to take any action, or tQp@Af�� yl S Page 1 of 2 R� 09110/18 m JORIGUL remain in any area where he/she reasonably determines that it would be unsafe. Sellers employees, subcontractors, and representatives shall be given unobstructed access to the site and the work. Settees time and expense for any delays not mused by Seller shall be charged to Buyer. Buyer shall be responsprefor any damage to or loss of property of Seller or its subcontractors property If such damagelloss Is not mused by Seller or its subcontractors. 11. FORCE MAIEURE: SHIPMENT AND DELAYS - Seller shall not be liable for damages or delay in performance arising from causes beyond its control or without its fault or negligence, including, but not limited to, acts of God or the public enemy, acts of a government in its sovereign capacity, fires, floods, epidemics, quarantine restnci ons, strikes, freight embargoes, and/or severe weather. If Buyer requests that Seller store Goods or If delivery Instructions are not promptly received from Buyer upon Seller's ready-to-ship notification, Seller may provide for storage of the Goods at Buyers risk and expense or Buyer must provide for storage at Buyers cost and risk. Shipments held beyond the scheduled date at the request or fault of Buyer may be billed immediately to Buyer incuding reasonable expenses incident to such delay, and Buyer shall assume title and risk of loss thereof. Liquid itedldelay damages shall not apply to this order. 12, TAXES 8 DUTIES - Buyer shall W responsible for all sales, use, value added and similar taxes ("Sales Taxes) required on the Goods and Services, which shall be in addition to the confederation payable for such Goods and Services. If Seller invoices Buyer for such Sales Taxes, then Buyer shall pay such amounts to Seller Proponent with the payment of the consideration upon which sorb Sales Taxes are calculated. If Seller does not invoice Seller for such Sales Taxes, Buyer shall report and remit such Sales Taxes directly to the appropriate taxing authority whin the time period required by law and shall provide evidence of such rental to Seller upon request. Buyer shall be responsible for all import, export, customs duties, fees and similar charges ("Duties') in respect of the Goods and Services, and if Seller is required to pay any amount of Duties in respect of the Goods and Services, then Buyer shall reimburse Seller for such amount upon request. 13. PAYMENT OF PURCHASE PRICE - Buyer shall pay all Invoices within thirty (30) days from the date of Sellers invoice ('Payment Due Date') by electronic funds transfer (EFT) or automated clearing house (ACH) transaction. If Buyer disputes all or pan of an invoice, Buyer must fib submit the dispute to Seller in writing within five (5) business days of the date of invoice or the entire amount of the invoice shall be due on the Payment Due Date; and (a) pay all undisputed amounts on the Payment Due Dale. If Buyer fails to pay an undisputed invoice on or before the Payment Due Date, Seller reserves the right to (i) charge late fees at the lesser of (i) the rate of 1.5% per month (18% per annum) or (ii) the maximum amount permitted by law; fish require Buyer to pay all of Seller's collection costs, and (iii) cease all work In relation to this Order (without obligation for liquidated damages, if applicable, incurred due to such cessation). For milestone payments required under this Order, Seller may invoice on the original milestone completion date if the milestone Is not met due to Buyers fault, untimely response or unreasonable delay. In the event that Buyer seeks to modify the Purchase Order, Buyer agrees to make payments In accordance with the original contract terms until such time as modification is mutually agreed upon. Seller only waves claims for payment to the extent that such payments have been received by Seller. If, in Sellers reasonable opinion. Buyer's firandal cendition may jeopardize full or timely payment, Seller may (i) require full or partial payment as a condition to commencing or continuing its performance (including in advance of any shipment) or of recover Goods tram the carver, if shipment has been made. 14. CANCELLATION - Buyer may cancel this Order, in whole or In part, upon at least seven (T) calendar days advanced whiten notice to Seller in such case the Seller shall be entitled to be reimbursed for the reasonable Direct Cost incurred by the Seller in performing the work. Direct Costs mean 'such direct costs borne and incurred by the Seller associated with the Order up to and including the date of suspension antllor cancellation, including but not limited to manufacturing costs, salaries, third party supplier costs and reasonable overhead and profit margin." Buyers cancellation costs shall not exceed the total Order price. Any Goods or Somme sold by Seller that are incomplete shall be deemed to be sold 'AS IS,' 'and 'WITHOUT WARRANTY OR GUARANTEE OF ANY KIND." Seller may cancel this Order, In whole or in part, at any time if. 1) Buyer suspends work or delays delivery beyond 45 days without it being mutually agreed upon in advance; (2) Buyer breaches any material term of this Order, and/or (3) Buyer files bankruptcy or otherwise falls to either make full and timely payments, meet its obligations, or provide further assurances. 15. EXPORT CONTROL- Goods supplied may be subject to export control, trade sanctions, or other export laws, regulations, miss and licenses of Canada, the United States or other countries ("Export Control Regulationi Buyer agrees to comply with Export Control Regulations as well as any other applicable combines Import control laws. Buyer further agrees that If Export Control Regulations are applicable, it will not disclose or re-export any technical data receivetl under this order to any countries for which the United States government requires an export license or other supporting documentation at the time of wool or transfer, unless Buyer has obtained loner written authorization from the United States Office of Export Control or other authority responsible for such matters. Unless otherwise, mutually agreed upon by the parties, Buyer shall be responsible for obtaining even licenses or other approvals. The Order vall not be accepted unless Seller is satisfied that the Goads can be supplied in compliance w,th the Export Control Regulations. In the event that any applicable Egon Control Regulations prohibit or make impracticable Sellers performance hereunder, Seller will be released from all performance heated to the Order. Seller will not be liable to Buyer for any losses, tlamages, or degas arising from such cancellation of the Order. Seller will not accept payment through a trade sanctioned countryfinancial institution. 16. NUCLEAR SALES IIF APPLICABLEI - If Buyer or any ultimate end usar intends to use Ne Goods or Services in any atomidnuclear installation or activity, Buyer must notify Seller accordingly in advance and Sellers "Nuclear Indemnity" shall also apply and control (and such farms are hereby Incorporated by reference for such purposes, as if fully set forth herein). 17. LIMITATION OF LIABILITP INDEMINITY CONDITIONSEXCLUSIVE REMEDIES: OBLIGATIONS: & VALIDITY - The following shall apply, govem, control, and surave at all times and to Me fullest extent permitted by law. 17.1 Seller shall not be liable for any loss of profit or revenue, loss of business, loss of contracts, or for any special, indirect economic, incidental, consequential, or punitive damages or losses, whether based on contract warranty, indemnity, ststuts, tort (including negligence/, or otherwise pursuant anther related to this Order. 17.2 Settees total liability pursuant and/or related to this Order whether for breach of contract or by reason of any tort (including negligence), statute, warranty, indemnity, or otherwise, shall in no event exceed Ne total price of the Order. 1].3 Any duty to indemnify under these terms and conditionstthe Order is conditioned upon Buyer. (I) providing prompt and detailed notice to Seller of any such war, fir) tendering the defenselsettlement to Seller and (iii) providing full cooperation, authority, and assistance to Seller. 17 4 Buyers rights and remedies shall be deemed sole and exclusive, and in place of those at law and equity. The exclusions and limitations set forth in these terns and conditions shall control at all times and survive any breach, or lenminafion of the Purchase Order. If any prevision of these terns and conditions of this Order or pan thereof shall be held by judicial determination to be Invalid or unenforceable they shall be severed firm this Order and the valid or enforceable parts of these terms and conditions shall continue In full force and effect. 18. ENTRE CONTRACT GOVERNING LAWS FORUM OFFICIAL LANGUAGE NO THIRD PARTY BENEFICIARIES: ASSIGNMENT- These terms and conditions of sale cannot be amended, superseded or modified except by a written document signed by Sellers duly outhodzed officer and Buyer's duly authorized representative. Governing law and forum of the terms of this Order shall be the laws (and exclusive forum) of the State of New York (USA), despite any confide of laws. The official language of this Agreement is English. It is the express wsh of the parties that this Agreement and any misted documents m drafted and executed In English The homes agree to exclusive venue In Ens County, New York. Buyer and Seller agree that this Order is between them alone, and there are no third party rights or beneficianes. Seller may subcontradwilh third parties for the manufacture and/or purchase of all or part of the Goods antllor Services. Other than Seller's ability to use its vendors/subcontractors, neither party may transfer or assign this Order, In whole or in part, without the other pangs express advance Permission(which shall not be unreasonably delayed or withheltl), and any gAK,,q assignmem@mnsfer whom proper consent s hall be null. void, and of no force or effect The parties expressly exclude the application of the Unile4lads dh Convention on Contracts for the International Sale of Goods. T Page 2 of 2 Ru. 04110/18 uORIGNAL