THIS AGREEMENT, CONSISTING OF THESE TERMS AND CONDITIONS AND THE ATTACHED PROPOSAL IS BINDING UPON TIC INTERNATIONAL (TIC), HEREINAFTER “SELLER”, AND THE CUSTOMER, HEREINAFTER “BUYER”, AND IS THE ENTIRE AGREEMENT.
1. Definitions: “Goods” are materials and documentation (including design engineering) supplied to fulfill the order requirements. “Services” shall include, without limitation, field commissioning, start- up, installation supervision, site survey, training, or consultation services furnished by the Seller.
2. Acceptance: The sale of goods and services is expressly conditional on Buyer’s written acceptance in their order of Seller’s terms and conditions as stated herein and of the attached proposal. In the absence of written acceptance of these terms and conditions by Buyer, acceptance of payment for any equipment sold hereunder shall constitute acceptance of these terms and conditions.
Upon receipt of an order, the Seller will provide an order acknowledgement that outlines acceptance of the order.
Unless otherwise specified in writing, all quoted prices are firm for ninety (90) days from the date of offer. Provided that Seller’s terms and conditions have not been previously accepted by Buyer, Buyer’s receipt of goods or services shipped under this Agreement constitutes acceptance of these terms and conditions.
3. Documentation: Seller shall provide Buyer with the documentation which is specifically titled in the quotation. Additional documentation not titled in the quotation will be made available to Buyer at additional cost.
Documentation includes, but is not restricted to, drawings, specifications, instruction manuals, training materials, and other such data furnished to the Buyer or the Buyer’s subcontractors. The definitions and restrictions set forth in the following subparagraphs apply regardless of the type of media on which the documents are provided.
A. Copyrights: Ownership of copyrights for all documents is retained by the Seller and the Seller’s suppliers.
B. Trademarks: The Buyer is granted a license to use the Seller’s or the Seller’s suppliers’ trademarks in documentation produced by the Buyer for the purpose of facilitating the fair use of the goods and services provided under this contract so long as the trademarks are treated in a manner that is consistent with applicable United States trademark laws and clearly identified as trademarks of the Seller or its suppliers.
Documents provided to the Buyer may be used by the Buyer or the Buyer’s subcontractors only for the purpose of facilitating the fair use of the goods and services provided under this contract. Said documents contain information considered to be the Seller’s or its suppliers’ confidential and proprietary property and may not be disclosed to any other third party without written permission of the Seller.
4. Changes: Buyer’s changes requested after formation of this Agreement that affect the schedule or requirements or otherwise the scope of this Agreement shall be submitted in writing by Buyer and shall become binding only if approved in writing by Seller’s cognizant representative. All charges and delays resulting from such changes shall be solely determined by Seller and shall be binding upon Buyer.
Delays in receipt of approvals and/or system definition information from the Buyer may also impact the schedule and cause additional expense to Seller. Accordingly, Seller shall be entitled to an extension of time and reimbursement of costs. Seller reserves the right to change design details and methods of accomplishing applicable functions providing that such change will not materially affect the form, fit, and function of the equipment to be delivered hereunder.
5. Termination or suspension: Prior to shipment and provided that Seller receives adequate written notice from Buyer, Buyer may terminate or suspend performance at Buyer’s convenience subject to all reasonable charges, which charges shall be solely determined by Seller.
Contract cancellation charges are based on the time the cancellation is made with respect to work in progress and shall be no less than 10% of the value of the order.
These include but are not limited to:
A. Actual hours plus costs of Seller’s personnel in travel to and from Buyer’s offices or job sites.
B. Actual cancellation charges imposed by Seller’s suppliers.
C. Actual production cost of Seller’s or its suppliers’ manufactured parts and assemblies.
D. Non-standard equipment may incur a penalty up to 100% of the value of the order depending on the time of cancellation.
6. Inspection: Buyer may make reasonable inspections of goods at Seller’s or its suppliers’ factory. Seller reserves the right to determine the reasonableness of the request and to select an appropriate time and location for such inspection. All costs of inspection shall be solely determined by Seller and shall be to Buyer’s account. Additional tests, including Factory Acceptance Tests or other demonstrations requested by Buyer, are not part of any Agreement unless separately identified and priced in the quotation. Unless Buyer objects in writing at the conclusion of such tests or demonstrations, specifying the nature of its objections, Buyer shall be deemed to have accepted the System.
7. Payments: All invoices are in US dollars. All payments are due within the due date and a monthly charge of 1.5% may be charged on amounts owed by Buyer to Seller that have not been paid within the due date, subject to the maximum amount permitted by law.
A milestone payment model shall be implemented for goods as follows:
- 30% upon order acknowledgement
- 70% before shipment
If partial shipments are made, each partial shipment shall be separately invoiced and paid for when due without regard to other shipments.
A milestone payment model shall be implemented for lump sum projects as follows:
- 40% upon contract signing
- 50% before shipment to site
- 10% upon successful commissioning
Services are only performed on a reimbursable basis according to daily rates. Travel expenses are reimbursed at cost with a 10% administrative fee. Site work with a duration greater than two weeks will be billed after the completion of the first two weeks’ period and at two weeks’ intervals thereafter. Failure of the Buyer’s representative to sign time sheets of the Seller’s representative shall not preclude payment for services rendered.
8. Shipment and Risk of Loss: Both FCA and DDP arrangements are allowed, as required by the Buyer, and DDP costs will be included in the quotation. Title and risk of loss will pass to Buyer on delivery of goods according to the chosen shipment terms.
If Buyer decides to collect the goods on FCA Seller’s factory under its own carrier, then all claims for loss or damage after risk of loss has passed to Buyer shall be filed by Buyer with its carrier. Buyer shall be liable to Seller for the full price of the goods, irrespective of loss or damage in transit.
In case of DDP delivery, all claims for loss or damage shall be filed by Seller with its carrier. In no case shall Seller be liable for any special, incidental, or consequential damages due to loss of use, profits, or revenue.
Equipment held or stored for Buyer after agreed upon delivery date shall be held or stored at sole expense and risk of Buyer. After receiving the goods, Buyer shall be responsible for storing, installing, commissioning, and maintaining them.
9. Escalation: All prices quoted are based on scheduled shipments within twelve (12) months from date of order acceptance. Delays caused solely by Seller beyond the quoted delivery date shall not be subject to escalation. If shipments requested are to be made after twelve (12) months from the date this Agreement is formed, the invoiced balance of the contract price shall be subject to price escalation at a rate of one and one-half percent (1.5%) per month for each month in excess of twelve (12) months up to a maximum of 6% per year.
10. Tax: All prices are exclusive of all taxes. All US or foreign government charges and taxes upon the goods and services rendered by this Agreement, including, but not limited to, use, excise, sales, VAT, income, export and import taxes, shall be paid by Buyer and will appear as separate additional items on the invoice.
11. Limited Warranty and Limitation of Liability: Seller warrants to Buyer that goods manufactured and/or sold by Seller are free from defects in material and workmanship. Seller also warrants to Buyer that services provided by Seller are free from defects in workmanship. If failure to conform to specifications or a defect in materials or workmanship is discovered within this period, Seller must promptly be notified in writing. Within a reasonable time after such notification, Seller will correct any failure to conform to specifications or any defect in materials or workmanship, or in lieu of such repair, and at its sole option, shall replace the equipment. Such repair, including both parts and labor, is at Seller’s expense. All warranty service will be performed at service centers designated by Seller. The term of this warranty is specified in the proposal. Freight, insurance, and other charges incurred in returning the goods to Seller will be paid by the Buyer, including travel expenses and subsistence of any Seller’s personnel required on Buyer’s site. Seller does not warrant: (a) defects caused by failure to provide a suitable installation environment for the product, (b) damage caused by use of the product for purposes other than those for which it was purchased, (c) damage caused by disasters such as fire, flood, wind, and lightning, (d) damage caused by unauthorized attachments or modification, (e) any other abuse or misuse by the Buyer, including improper installation. THE ABOVE ARE THE BUYER’S EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY.
THE FOREGOING LIMITED WARRANTIES AND REMEDIES ARE IN LIEU OF ALL OTHER WARRANTIES AND REMEDIES, EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN NO CASE SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES BASED UPON ANY LEGAL THEORY. SUCH DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOSS OF PROFITS, LOSS OF SAVINGS OR REVENUE, LOSS OF USE OF THE PRODUCT OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL,COST OF ANY SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME, THE CLAIMS OF THIRD PARTIES INCLUDING CUSTOMERS, INJURY TO PROPERTY AND, UNLESS PRECLUDED UNDER APPLICABLE STATE LAW, BODILY AND PERSONAL INJURY.
Seller’s total liability for any and all losses and damages arising out of defects in the goods and services supplied under this Agreement, shall in no event exceed the purchase price of the applicable item(s).
12. Force Majeure: Seller or its suppliers shall not be liable for failure to perform due to causes beyond the control of Seller, including but not limited to, acts of God, acts of the public enemy, acts of the United States of America, any State, Territory of the United States of America, or any political subdivision of the foregoing, or the District of Columbia, acts of the Buyer, its agents, employees, or subcontractors, fire, floods, epidemics, quarantine, restrictions, strikes, riots, civil disorders, insurrection, freight embargoes, and unusually severe weather conditions. Seller may terminate or suspend the order without any further liability to Buyer in the event Seller is unable wholly or partially to perform because of any cause beyond its control.
13. Software Provisions: If software is provided under this Agreement, Buyer is granted a non-exclusive, royalty free license for Buyer’s use of Seller’s software provided with the Seller’s system. Under this license Buyer may: (a) Use Seller’s software with the Seller’s system provided; (b) Copy the Seller’s software for back-up in support of Buyer’s use of the Seller’s software on the Seller’s system provided.
14. Patents: Seller shall defend and indemnify the Buyer against any actions of third parties based on claims that the goods manufactured by Seller or its suppliers constitute an infringement of a valid patent of the United States for the benefit of such third parties, provided that Buyer notifies Seller in writing of any such claim within five days thereof and thereafter gives necessary authority, information, and assistance to Seller for the defense of such action. In the event that the goods manufactured by Seller or its suppliers are held to be infringing in such action and their use is enjoined, Seller shall, at Seller’s expense, modify goods so they become non-infringing, or, if modification is not possible, refund the Buyer purchase price for the hardware and software items that are infringing and remove them at Seller’s sole expense.
In no case shall Seller be liable for any special, incidental, or consequential damages due to loss of use, profits, or revenue.
Buyer agrees that Seller shall not be liable and that Buyer shall fully indemnify Seller if infringement is based upon the use of the goods in connection with goods not manufactured by Seller or in a manner for which the goods were not designed by the Seller or if the goods were designed by the Buyer or were modified by or for the Buyer in a manner to cause them to become infringing.
15. General Provisions: (a) Neither party shall have the right to assign its rights or obligations under this Agreement except with the written consent of the other party, provided, however, that a successor in interest by merger, by operation of law, assignment, purchase, or otherwise of the entire business of either party, shall acquire all interest of such party hereunder. Any prohibited assignment shall be null and void. (b) There are no understandings, agreements, or representations, expressed or implied, not specified in this Agreement.
This Agreement supersedes all prior agreements. (c) These terms and conditions can be modified only via a written agreement signed by a duly authorized officer of both parties. (d) Any provisions or conditions of Buyer’s order which are in any way inconsistent with or in addition to these terms and conditions (except for those provisions specifying the quantity and/or shipping instructions) shall not be binding on Seller and shall not be applicable until accepted by Seller in writing.
(e) No action, regardless of form, arising out of transactions under this Agreement, may be brought by either party more than two (2) years after the cause of action has occurred. (f) In the event a dispute arises between Seller and Buyer with respect to this Agreement, such dispute shall be finally settled by litigation in the Court of Texas. The decision of the Court shall be final and binding on the parties and the losing party shall bear all legal costs and attorney fees of the prevailing party. (g) This Agreement is formed and shall be construed under the laws of the State of Texas. (h) If goods supplied hereunder are used in a nuclear power generation facility, Buyer fully indemnifies Seller.
16. Nonwaiver: Any failure by any party to strictly enforce the terms and conditions as stated in this Agreement or to exercise any rights acquired hereunder shall not constitute a waiver of such terms or rights and shall not affect the right of the party to enforce or exercise such terms or rights in the future.
17. Severability: If any one or more of the provisions or subjects contained in the Agreement shall for any reason be held invalid, illegal, or unenforceable, it shall not affect the validity and enforceability of any other provisions or subjects.
18. Safety: Buyer shall ensure that Seller’s personnel is not exposed to hazards on or in the vicinity of the worksite. Buyer shall be responsible for initiating, maintaining, and supervising all safety precautions and programs in connection with the worksite.
Seller shall ensure that Seller’s personnel will comply with the Buyer’s documented safety regulations provided to the Seller while on the worksite.
Seller shall ensure that Seller’s personnel are provided with basic safety training for the normal work environment. Site specific training shall be provided at the Buyer’s expense.
Seller reserves the right to recall personnel if the worksite does not meet reasonable health and safety standards.
19. Living Conditions: If meals and living accommodations are provided by the Buyer, Seller reserves the right to recall the Seller’s personnel if the accommodations and meals are not suitable (as determined by the Seller’s management). Seller reserves the right to make alternate arrangements at the cost of the Buyer if other accommodations are available.
20. Maximum Time on Worksite: Seller reserves the right to replace personnel after two weeks at the Buyer’s expense.