Contractor's sales terms and conditions for the equipment and services listed in the Buyer's purchase order, will be of no legal effect and will not constitute part of Order (even if any representative of Contractor signs those terms and conditions or annexes the terms and conditions to Buyer's Order).
Buyer's order and all listed in it documents constitute the entire agreement of the parties, that supersedes all prior agreements, negotiations, communications, both oral and written.
Contractor shall return its acknowledgement of Buyer's order receipt within ten (10) days as from the date of the order receipt. Contractor failing to do so, this order shall be deemed to be accepted as a whole by Contractor.
Contractor shall fully comply with Buyer's Requirements for the desalination plant and with Inspection & Test Plan (ITP) approved by Buyer. In case of partial compliance (including no delivery, partial delivery, late delivery, inferior quality, incomplete plant hand-over), Buyer may terminate Order immediately and the Contractor shall indemnify the Buyer against any losses, damages, and reasonable costs and expenses attributable to the Contractor's failure to deliver.
Contractor shall promptly handle all the nonconformity issues. This shall not affect Contractor obligations under Order, nor shall be considered a premise for Order amendment.
Due payments shall be done as per Order schedule and milestones describing performance progress or contractual event. Any payment is subject to Buyer's prior quantitative and qualitative acceptance and notification of Contractor in writing. Any delay affecting the achievement of a contractual event exclusively attributable to Contractor shall automatically result in the postponement of payment of the scheduled price instalment related to the said contractual event.
Buyer shall pay all properly invoiced amounts due to Contractor within sixty (60) days after receipt of such invoice, except for any amounts disputed by Buyer. The parties shall seek to resolve all such disputes expeditiously and in good faith. In case of Buyer's payment of an invoice as a gesture of good will, it shall not be construed as dispute resolution. Contractor shall continue performing its obligations under Order notwithstanding any such dispute.
Buyer may initiate Order Change by issuing to Contractor written notice altering Order scope. Before commencing any changes, Contractor shall promptly notify Buyer in writing on cost and delivery schedule implications. Contractor may proceed only after getting Buyer's approval in writing.
Buyer may terminate Order with immediate effect if Contractor has breached present Terms & Conditions, or becomes insolvent, commences or has commenced bankruptcy proceedings, receivership, reorganization or assignment for the benefit of creditors. Buyer may terminate Order for any other reason upon thirty (30) days' prior written notice to Contractor. In that case Buyer shall reimburse Contractor's incurred expenses within sixty (60) days as per Cancellation Charges Curve agreed upon by both parties before signing Order.
If Contractor breaches its obligation to deliver the plant in accordance with the schedule provided for in Order, Contractor shall pay Buyer 0.3% per week for each week of delay as liquidated damages. The parties agree that quantifying losses arising from Contractor’s delay is inherently difficult insofar as delay may impact the Buyer’s reputation or require Buyer to provide non-monetary concessions to its own customer, and further stipulate that the agreed upon sum is not a penalty, but rather a reasonable measure of damages, based upon the parties’ experience in the water industry and given the nature of the losses that may result from delay. This provision shall not apply in the event of concurrent delay or delay caused by a third-party. The parties further agree that this liquidated damages provision shall not apply in the event Contractor’s delay causes Buyer to lose a sale on an existing contract.
To lower Contractor's risks associated with the market stock prices variation Buyer agrees to accept Contingency Clause provided that it is based on easily verifiable information sources and internationally accepted practices.
Contractor shall indemnify Buyer against any loss, injury, death, damage, liability, claim, action, judgment, penalty, cost or expense, including attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder arising out of or occurring in connection with Contractor’s performance of its obligations or Contractor’s negligence, wilful misconduct, breach of Terms & Conditions, the patent, copyright, trade secret or other intellectual property right of any third party.
All Buyer's data disclosed to Contractor, whether or not marked, designated or otherwise identified as "confidential," in connection with Order is confidential, solely for the use of performing Order and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer's request, Contractor shall promptly delete and destroy all Buyer's document copies. Buyer shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) rightfully and legally known to Contractor at the time of disclosure; or (c) rightfully and legally obtained by Contractor on a non-confidential basis from a third party.
Contractor shall, at its own expense, maintain, and carry insurance in full force and effect with financially sound and reputable insurers as specified in Order. Upon Buyer's request, Contractor shall provide Buyer with a certificate of insurance evidencing the requested coverage.
During Order execution Contractor shall ensure that its employees, agents, contractors and subcontractors comply with all applicable laws, regulations and ordinances including without limitation, Occupational Safety and Health Act, Toxic Substances Control Act, and Foreign Corrupt Practices Act. Contractor shall maintain in effect all the tools and instruments certificates, licenses, permissions, authorizations, consents and permits required by law to carry out its obligations under Order. Contractor shall comply with all export and import laws of all countries involved in Order execution. To the extent that Contractor’s Personnel are required to enter onto Buyer’s site, Contractor shall ensure that Personnel comply with Buyer’s health, safety and environmental policies and standards.
Contractor shall be solely responsible for and pay, all federal, state, and local taxes, including, but not limited to, value added tax, goods and services tax, sales, use or consumption tax, and customs duties costs.
Risk of the plant loss and title remains with Contractor until the final acceptance test pass followed by due payment by Buyer.
Neither party shall be liable to the other for any delay or failure in performing its obligations under Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party's fault or negligence, and which by its nature could not have been foreseen by such party. These Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, terrorist acts, riots, strike, or embargoes. Contractor's economic hardship or changes in market conditions are not considered Force Majeure Events. Contractor shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under Order. If a Force Majeure Event prevents Contractor from performance for a continuous period of more than fifteen (15) business days, Buyer may terminate Order immediately by giving written notice to Contractor.
All matters arising out of or relating to Order shall be governed by and construed in accordance with the laws of the state, province or territory identified in Buyer's address. Each party shall irrevocably and unconditionally submit to the exclusive jurisdiction of the courts in the territory named in Buyer's address.
If any term or provision of Order is found invalid, illegal or unenforceable in some jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term of Order or invalidate or render unenforceable such term in any other jurisdiction.
Contractor may subcontract to third parties any part of the works or equipment after Buyer’s prior written authorization and approval of the proposed subcontractors. Contractor shall make available to Buyer pre-qualification information on subcontractors as well as any contract scope Contractor enters with its subcontractors.
Contractor warrants that it owns all existing intellectual property rights required to execute Order and, if not, that it has been entitled to use them though a license including the right of sublicensing. If the desalination plant or its part being provided by Contractor is covered by patents pending or issued, Contractor shall notify Buyer in writing and grant Buyer a license and the right to use, repair, and modify these parts without further charge. The said license is exclusive of any patent infringement claims by Buyer which may address other uses of the patent.