Power Products Terms and Conditions

1) TERMS AND CONDITIONS OF ACCEPTANCE: This Quotation is offered by Seller for acceptance within sixty (60) calendar days from the date printed on the face of this Quotation, unless a longer time period is specified on the face of this Quotation. This Quotation is withdrawn if not formally accepted by return of a signed and executed copy of this quotation, signifying Buyer consent to these Terms and Conditions, or a signed Buyer's Purchase Order incorporating by reference this Quotation, within the designated period. No other forms of acceptance of this Quotation are valid or will be recognized or accepted. (Objection is hereby made to any other purported alternative acceptances of this Quotation.) Seller shall commence work only after receipt of one of the above identified acceptance instruments. Additional or differing terms or conditions proposed by Buyer or included in Buyer's Purchase Order, attachments thereto, or Contract or acceptance are objected to by Seller and shall have no effect unless expressly accepted in writing by Seller. Seller's acceptance of any purchase order is contingent upon Seller's approval of Buyer's credit. Seller is under no obligation to enter an order acknowledgement and may rescind this Quotation at any time prior to Buyers unqualified acceptance. Buyer agrees that Seller's acknowledgement of receipt of Buyer's Purchase Order or a signed Seller's Quotation is conditioned upon and subject to Seller's Terms and Conditions contained herein, and no other terms or conditions shall apply.
2) BUYER FURNISHED EQUIPMENT AND LABOR: Seller shall furnish equipment used under this contract, unless the quotation expressly specifies Buyer-furnished equipment. When Buyer-furnished equipment is specified, prices in this Quotation are based upon the timely receipt of all Buyer-furnished test articles, technical data, and support equipment, in good and operating condition, prior to the date such items are required to support the testing schedule. Any Buyer supplied technical support labor must be available on the same date. Buyer shall supply all mating connectors, hardware, adapters and vibration fixtures compatible with Seller's equipment, unless specific exemptions to this requirement are identified in the Quotation. Buyer is responsible for test item operation unless specific exemptions to this requirement are identified in the Quotation. If the Buyer-furnished items and labor are not so provided, the prices and schedule quoted shall be subject to change.
3) PRICES: When a quotation involves multiple items, the quotation is non-severable. If the quotation is made prior to receipt and review by Seller of all applicable specifications and proposed contract documents, prices quoted are subject to revision once missing documents are received. Prices quoted are valid only for the purpose of this Quotation and may not be utilized as a basis for pricing similar, repeat, or subsequent testing. The prices for procedures and reports include one (1) revision; additional revisions will be separately priced. Any detail of the prices proposed is budgetary and may not be used as a basis for pricing increments or for pricing subsequent or repeat tests. All prices are F.O.B. Seller's facility, unless otherwise specified. All prices quoted herein are exclusive of taxes. Buyer agrees that all taxes, interest and penalties thereon, if any, relating to the services performed or the products produced or sold hereunder, are to be paid when due by the Buyer.

SELLERS OBLIGATIONS: The Seller agrees to perform the services or provide the equipment quoted in compliance with procedures and specifications, including any deviations or waivers thereof, identified in the Quotation. These may be furnished by Buyer or Seller as specified in the Quotation. In any event or instance not covered by Buyer's specifications, the Seller reserves the right to perform services in accordance with its standard practices. Seller shall not be responsible for errors or omissions due to the Buyer's supplied or approved procedures, specifications, or other supplied information. Seller shall not be responsible for incompatibility of the Buyer's supplied or approved materials, specifications or test specimens.

Buyer agrees that Seller's sole obligation is to perform services and/or deliver equipment, reports or certifications in accordance with specifications and the Quotation. Seller's standard report delivery is through Seller's Web Portal, unless an alternative delivery method is specified in the Quotation. Seller shall exercise reasonable care in the performance of services in accordance with applicable specifications and instructions received from the Buyer's representatives.

Items are tendered on an as is basis between merchants.

Seller's liability for loss, damage, or delay incurred in the performance of, or as a result of, testing, handling, or reporting shall be limited to retest when retest is performed by Seller.

5) TOOLING AND SETUPS: Where applicable, tooling and setups quoted by Seller reflect costs and special designs required to adapt Buyer's equipment to Seller's proprietary test fixtures, and neither the tooling nor the setups will be released from the Seller's facility. Except as otherwise agreed in writing, all right, title and interest to Seller's fixtures, special tooling drawings, design and related data is and shall remain the property of the Seller. Seller may dispose of any Buyer-supplied articles, supplies, specifications, fixtures, special tooling, drawings or related items provided by the Buyer, and which are unclaimed within sixty (60) calendar days after Seller gives notice to Buyer to remove such items from Seller's facility. Buyer-supplied equipment at Seller's facilities shall be subject to additional charges for disposal, storage, transportation, and other charges, to the extent applicable, where Buyer does not remove the property from Seller's facility or provide timely disposition instructions following notice to remove such items. Buyer assumes risk of loss of any of Buyer supplied items of property in Seller's possession or care whether resulting from acts of God, fire, theft, destruction, or other casualty.
6) SCHEDULES: The estimated schedule and pricing are based upon on the Seller's current commitments and Seller's standard business hours (8:00 AM to 4:30 PM, local time, Monday through Friday). Firm schedules will be acknowledged by the Seller from time to time. ALL WORK SCHEDULE DATES ARE APPROXIMATE. All orders are subject to reschedule due to the possibility of Government priority orders superseding a normal schedule. Performance of services is subject to delays caused by acts of God, labor difficulties, shutdowns, the availability of utilities or materials, equipment breakdown, unforeseen engineering problems, government regulations, priorities, preemption, or other causes beyond Seller's control.
7) CHANGE ORDERS, INTERRUPTIONS, and TERMINATION: Seller is not obligated to perform any additional services not specifically referenced in this Quotation, including, but not limited to, repeat testing. If Seller agrees to perform additional services requested by Buyer's Change Order, the Seller's price and schedule shall be adjusted for the additional work commensurate with the changed requirements, the status of Seller's work in process at the time of the Seller's receipt of the Buyer's change notice, and the Seller's written acceptance of the changed work. If for any reason beyond Seller's control, the original test program is interrupted at Buyer's direction, or a failure of Buyer-furnished items under test, or a failure of Buyer's support equipment occurs, standby charges will accrue until resumption or termination of testing is directed by Buyer in writing. Re-setup charges may apply at resumption of testing. Rescheduling shall be at the discretion of Seller. Termination or cancellation, whether partial or complete, may be made by Buyer, subject to payment of cancellation charges based upon status of work in process, commitments made and facilities allocated. Additional services (e.g., repeat tests) necessitated by Buyer-furnished specimen failure or Buyer provided equipment malfunctions will be construed as Change Orders and the appropriate charges will be added accordingly. If Buyer should disagree, for any reason, with the results or conclusions of the testing and require additional work for verification, Seller shall be entitled to the cost of the additional work required to verify results.

Buyer agrees that regardless of the claim or the form in which any legal or equitable action may be brought against Seller by any party, Seller shall not be liable for any damages or expenses, direct or indirect, special, consequential, exemplary, or compensatory, including but not limited to loss of profits, except to the extent otherwise herein provided.

The Seller shall not be liable for any damages arising from delay in the performance of services. Any event beyond the Seller's reasonable control shall not constitute cause for cancellation of the Purchase Order, but shall extend the Seller's time to perform on a business-day for business-day basis for a period equal to the duration of the delay.

All services furnished by Seller, and all tests performed utilizing Seller's equipment and facilities, whether conducted by Seller's or Buyer's personnel, shall be at the risk of Buyer, and Seller shall not be liable for loss of, or damage to, property furnished by Buyer while such property is on Seller's premises whether under test or otherwise under Seller's care, custody or control.

Each party hereby agrees to indemnify and hold harmless the other party from any form of action, lawsuit, claims, losses, costs (including attorney's fees), expenses or damages arising from the injury, illness or death of the indemnifying party's customers, employees, agents or invitees directly or indirectly related to the services or equipment supplied by Seller under this Order, except to the extend such injury, illness or death is proven to have been caused by, resulted from, or in any way contributed to the negligence of the party seeking to be indemnified.

Buyer acknowledges that there are hazards associated with the services and equipment provided under this Order, that it understands such hazards, and that it is the responsibility of Buyer to warn and protect its employees and others exposed to such hazards. Buyer shall hold harmless, indemnify and defend Seller from and against any liability incurred by Seller because such warnings were not made. Buyer assumes all risk and liability for loss, damages or injury to persons or to property of Buyer or others arising out of the services or equipment provided by Seller, except for the gross negligence or malfeasance of the Seller.

If the services to be performed are pursuant to a prime or sub-tier contract issued by any Department or Agency of the United States Government, Seller's liability for damage, loss or injury to test specimens or other property furnished by Buyer shall be governed by the provisions of FAR 52.245-2 Alternate 1. For purposes thereof, the term "Contractor" shall be construed to mean Seller and "Government" shall be construed to mean Buyer.

Seller's liability for loss, damage or delay in the performance of Seller's obligations under any contract resulting from acceptance of Seller's Quotation shall be limited to the greater of Fifty-thousand United States dollars (US$50,000) or the value of the Buyer's Purchase Order.

(b) Nuclear Liability
(i) Required Nuclear Liability Protection. If Buyer is a nuclear licensee of the Nuclear Regulatory Commission ("Nuclear Licensee"), or if Buyer is not a Nuclear Licensee but intends to resell or retransfer any goods purchased from Seller to a Nuclear Licensee, then Buyer warrants and covenants that Buyer or Nuclear Licensee has obtained and will maintain in effect: (1) an agreement of indemnification as required under Section 170c of the Atomic Energy Act of 1954, as amended ("Price-Anderson Act"); (2) third party liability insurance from American Nuclear Insurers ("ANI"), and/or other comparable nuclear insurance carrier, in such form and in such amounts as will meet the financial requirements of the Nuclear Regulatory Commission ("NRC") pursuant to the Price-Anderson Act and 10 CFR Part 140; and (3) if Buyer or Nuclear Licensee owns and/or operates a production or utilization facility licensed pursuant to 10 CFR Part 50, nuclear property insurance from Nuclear Electric Insurance Limited ("NEIL"), and/or other comparable nuclear insurance carrier, in such form and in such amounts as will meet the requirements of the NRC pursuant to 10 CFR § 50.54(w), and such additional amounts of nuclear property insurance coverage, including business interruption or replacement power insurance, as are customarily carried by owners of comparably-sized nuclear facilities in the United States, for so long as the products and services provided by Seller continue to be used at, located at, or associated with such nuclear facilities in any manner. If there is no agreement of indemnification under the Price-Anderson Act applicable to the Buyer's or Nuclear Licensee's facility, Buyer shall (1) ensure that a Nuclear Energy Liability Policy (Facility Form), or its equivalent, is obtained and maintained that provides for at least $300 million per occurrence for bodily injury and property damage; and (2) to the extent permitted by commercially available policies, include Seller and its Suppliers, with respect to their legal responsibility for damages because of bodily injury or property damage caused by a nuclear incident, within the scope of the insured parties under such Facility Form.
(ii) Insurance. With respect to the Nuclear Liability insurance or indemnities maintained by Buyer or Nuclear Licensee, Buyer shall cause Seller and its Suppliers to be included, with respect to their legal responsibility for Nuclear Liability, within the scope of the insured parties to the maximum extent permitted under such insurance or indemnities.
(A) Substitute Financial Protection. In the event the Nuclear Liability protection system provided by the Price-Anderson Act is repealed, modified, or expired, Buyer shall, at no cost to Seller, obtain, or cause each affected Nuclear Licensee to obtain, and maintain in effect, substitute financial protection in the form of governmental or private contractual indemnities, limitations of liability, liability insurance, or any combination thereof, in order to avoid a material impairment of the protection afforded to Seller by the Nuclear Liability protection system provided under the Price-Anderson Act as of the date of this Quotation. In addition to any other remedies that may be available to Seller in the event of such a development, Seller may rescind this Quotation, or terminate any contract resulting from acceptance of this Quotation, in whole or in part, without any additional liability to Buyer, if Seller determines, in its sole discretion, that notwithstanding the actions taken by Buyer, or any affected Nuclear Licensee, pursuant to this provision, there has been a material impairment of the protection afforded to Seller.
(B) Waiver and Indemnification. Seller, Suppliers, Seller Affiliates, and Seller Related Parties shall not have any liability to Buyer, any Nuclear Licensee, or any other third party for any personal injury, property damage, loss of use of property, or any other form of loss or damage arising out of, or resulting from, any Nuclear Incident occurring at any nuclear facility in the United States at which the products and services provided to Buyer by Seller pursuant to any contract resulting from acceptance of this Quotation are delivered or used in any manner. To the full extent permitted by law, Buyer, on behalf of itself, its directors and officers, its subsidiaries and parent corporations, and the directors and officers of its subsidiaries and parent corporations, hereby waives, and shall cause each such affected Nuclear Licensee to waive, any and all claims, defenses, or causes of action that it may have against Seller, Suppliers, Seller Affiliates, and Seller Related Parties, on account of any such loss arising out of or related to a Nuclear Incident, whether such claims or causes of action may be asserted in contract, tort, or otherwise (including strict liability), and whether asserted at law or in equity. The foregoing specifically includes claims or causes of action for consequential or indirect damages. Buyer further agrees to defend, indemnify, hold harmless, and cause each such affected Nuclear Licensee to defend, indemnify, and hold harmless, Seller, Suppliers, Seller Affiliates, and Seller Related Parties, to the maximum extent allowed by law and regardless of the degree of fault or negligence, from and against any and all claims or causes of action for personal injury, damage, losses, expenses (including attorneys fees and other related costs), or any other liability to any third party as the result of a Nuclear Incident.
(C) Required Assurances for Transfer. Prior to a transfer of any interest in Seller's products or any carriage of such products into the territory of countries other than the countries that are Contracting Parties to the Paris Convention, Buyer shall provide Seller with written assurances acceptable to Seller demonstrating that the limitation of, and protection against, Nuclear Liability following the proposed transfer or carriage will at least be equivalent to that afforded Seller and its Suppliers under this Quotation, the Price-Anderson Act, and the NRC's regulations implementing the Price-Anderson Act. This paragraph (C) shall not apply to transfers solely incident to liens or security interests created by mortgages or other documents in effect as of the Execution Date of any contract resulting from acceptance of this Quotation (including liens or security interests arising after the Execution Date under such mortgages or other documents).

Definitions. For purposes of this Article 8, unless otherwise defined in this Quotation, all capitalized terms shall have the meaning ascribed to those terms in the Atomic Energy Act and the Nuclear Regulatory Commission's implementing regulations.

"Nuclear Liability" means "public liability" as that term is defined in Section 11 of the Atomic Energy Act (42 U.S.C. § 2014(w)).

"Suppliers" means any vendors, contractors, or other entities, and their employees, regardless of tier, that supply equipment, materials, information, financing, or services to Seller in connection with Seller's products.

"Seller Affiliates" means the affiliates, subsidiaries, parent corporations, manufacturers, and subcontractors of Seller.

"Seller Related Parties" means the officers, directors, employees, consultants, and agents of the Seller Affiliates.

"Paris Convention" means the Convention on Third Party Liability in the Field of Nuclear Energy of 29th July 1960, as amended by the Additional Protocol of 28th January 1964 and by the Protocol of 16th November 1982.

9) WARRANTY: Seller warrants that the services and products provided hereunder shall conform to the specifications and express warranties set forth in these Terms and Conditions and that at the time of delivery, Seller shall have the right to perform such services or sell/resell such equipment and that the services or equipment and any resulting report shall be delivered upon due payment free of encumbrances. Services performed by Seller will be performed in a workmanlike manner. Seller will modify or correct any such Services which have not been so performed if written notice of any such failure is given to Seller within sixty (60) calendar days of the date such service was performed. Seller warrants that the Services provided hereunder shall meet the Specifications and Requirements of this Quotation unless exception is taken to the applicable specification in writing by Seller. No claim of any kind with respect to the conformance of the Services to the foregoing Specifications, whether or not based on negligence, warranty, strict liability or any other theory of law, will be greater than the price of the nonconforming Services or equipment in respect to which such claim is made. The foregoing constitutes the Buyer's exclusive remedy and Seller's sole obligation with respect to any such claim. THERE ARE NO EXPRESS WARRANTIES BY SELLER OTHER THAN THOSE SPECIFIED IN THIS PARAGRAPH, OR ANY SPECIFIC WARRANTIES TRANSFERRABLE TO BUYER FROM AN ORIGINAL EQUIPMENT MANUFACTURER OF SELLER-FURNISHED EQUIPMENT. NO WARRANTIES BY SELLER (OTHER THAN WARRANTY OF TITLE AS PROVIDED IN THE UNIFORM COMMERCIAL CODE) WILL BE IMPLIED OR OTHERWISE CREATED UNDER THE UNIFORM COMMERCIAL CODE OR ANY OTHER THEORY OF LAW, INCLUDING WITHOUT LIMITATION WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

TERMS OF PAYMENT: All invoices are due and payable upon presentation unless other terms are otherwise agreed upon in writing prior to the commencement of services. Failure to make such payments when due shall entitle Seller to discontinue services without further notice and such failure may result in additional requirements or deposit requirements being imposed before work is resumed. Whenever credit terms are extended, it is with the express agreement that the terms are "net thirty (30) days". A service charge of One and one-half percent (1 ½%) per month (or the maximum permitted by law, whichever is less) will apply to all accounts past due. Any test program or order requiring more than ten (10) calendar days to complete will be billed incrementally on a pro rata basis not less frequently than monthly with final payment due upon submittal of the final report (or equivalent completion document).

Payment of Seller's invoices by Buyer shall not be delayed by, or contingent upon, approval or payment by Buyer's customer or any other third party.

Unless otherwise required by law, if a petition is brought by or against Buyer under any present or future bankruptcy or insolvency laws seeking any reorganization, arrangement, readjustment, liquidation, dissolution or similar relief with respect to Buyer, or if Buyer shall make any assignment for the benefit of creditors, or if a receiver is appointed for Buyer, or if Buyer shall fail to make payments in accordance with the terms of this Agreement, or if in Seller's opinion Buyer's credit has been impaired, Seller may, at its option, terminate this Agreement by written notice to Buyer or impose such new payment terms, including cash on delivery, auto pay or a security agreement as it deems adequate to protect its interest. Buyer agrees to pay costs associated with collection of any overdue amount including reasonable attorney's fees

The election of any option under this Paragraph shall not preclude the exercise of any and all rights and remedies available to Seller at law or in equity.

Buyer acknowledges and agrees that until final payment, the Seller shall have a lien as a result of services rendered on any and all reports or data generated or equipment purchased and upon Buyer-supplied equipment in Seller's possession.

11) NOTICE: Notice shall be deemed effective when received or refused, if sent prepaid to the other party at the address provided on the face of Seller's Quotation.
12) ENTIRE AGREEMENT: These Terms and Conditions contain all the terms and conditions of the sale and purchase of the services or materials described in the Seller's Quotation, and supersedes any and all previous instruments or agreements which are hereby made null and void. No terms and conditions in any form of purchase order, order acknowledgment or other acceptance forms of Seller or Buyer issued with respect to this transaction shall alter the terms hereof and objection is hereby made to all such additional or different terms. Acceptance is expressly limited to the terms offered herein. No modification or waiver of these Terms and Conditions shall bind Seller or Buyer unless written, signed, and accepted by Authorized Representatives of both Seller and Buyer. These Terms and Conditions, the associated Quotation and any attachments, exhibits or addenda thereto are valid only if in writing and bilaterally executed by Authorized Representatives of Seller and Buyer. An Authorized Representative shall be any employee, consultant or representative of the party to this Agreement having the apparent authority to legally bind that party.
13) APPLICABLE LAW: This Agreement created by Seller's Quotation, Buyer's Purchase Order, and Seller's Order Acknowledgement shall be governed under the laws of the State of California without regard to conflict of laws provisions.
14) DISPUTES: Any dispute between the parties relating to these Terms and Conditions or the Seller's Quotation that cannot be resolved with reasonable promptness shall be referred to each party's senior manager in an effort to obtain prompt resolution. Neither party shall commence any action against the other until the expiration of fifteen (15) business days from the date of referral to such senior managers, provided, however, this shall not preclude a party from instituting an action seeking injunctive relief to prevent irreparable damage to such party.
15) SEVERABILITY: If any provision of these Terms and Conditions are held invalid by any law and/or regulation, all other provisions hereof shall continue in full force and effect.
16) HEADINGS: The headings contained herein are for the convenience of the reader and they are not intended to be all inclusive nor shall they be considered for any other purpose in construing these Terms and Conditions.
17) ELECTRONIC SIGNATURE VALID: The parties agree that if this Quotation or any acceptance thereof is transmitted electronically, neither party shall contest the validity of the Terms and Conditions, or any acknowledgement or acceptance thereof, on the basis that the document contains an electronic signature.