Agreement and Addendum
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SERVICE PROPOSAL
CITY OF GLENDALE SERVICE PACKAGE
5 year Service Plan
Attn.
Mr. Bryan Cook & Mr. Mark Roye
Customer
City of Glendale WWTP
Quotation / CRM no.
2025.01.29SLA-BL
Revision
Rev 0
Plant Location
7070 W. Northern Ave, Glendale, AZ 85303
Date
01.29.2025
2
Index
1.
Equipment ........................................................................................................................................ 4
2.
Frequency of Scheduled Services ................................................................................................... 4
3.
Charges and Rates .......................................................................................................................... 5
4.
Term of the Agreement .................................................................................................................... 9
5.
Annexes ......................................................................................................................................... 10
ANNEX 1 – Detailed Definition of Scheduled Services ..................................................................... 11
ANNEX 2 – List of Parts per Equipment ............................................................................................ 13
ANNEX 3 – Obligations of Parties ..................................................................................................... 14
ANNEX 4 – Documents, Reports and Contacts ................................................................................ 17
ANNEX 5 – Contractual Terms and Conditions of Service ................................................................ 18
3
GEA Mechanical Equipment US, Inc.
100 Fairway Court
Northvale, NJ 07647
Tel. (201) 767-3900
Fax (201) 767-3901
www.gea.com
State of Incorporation: Delaware
President: Evan Walker
Dear Bryan & Mark,
We are pleased to submit our proposal for on-site services for your GEA equipment CC458-
00-32 S/N 8002-495 & 8002-496 to support your production in achieving its overall goals. We
are committed to improve your ownership experience through reliability, flexibility, and solution-
oriented service products.
This service proposal comprises all original parts, labor, traveling hours, mileage, daily
allowances, and accommodation (if necessary) to execute the preventive services necessary
to keep your equipment in excellent and reliable operation.
The GEA 5 year plan afford you with discounted pricing on parts and services for the duration
of your contract.
A.
5-year Service Plan
Benefits of a Service Agreement
•
Regularly scheduled service by factory trained personnel
•
Highest quality OEM parts designed specifically for your equipment.
•
24/7 emergency technical support and parts shipment
•
GEA Advance access to online documentation and parts lists
•
Emergency Breakdown support
•
Root Cause of any non-scheduled service intervention
•
Inventory review & recommendations.
Validity: Quoted prices are valid for 30 days from date of this Quotation.
4
1. Equipment
Model
Serial Number
Location
CC458-00-32
8002-495
Glendale, AZ
CC458-00-32
8002-496
Glendale, AZ
2. Frequency of Scheduled Services
The daily, weekly and monthly maintenance as foreseen in the manuals are to be performed
by Customer. Customer shall carry out visual checks at regular intervals of the Equipment and
shall immediately inform GEA in writing of any impending or actual damage on its occurrence,
with specification of the symptoms.
Frequency of Scheduled Maintenance and Performance Activities
ACTIVITY
SCHEDULED INTERVAL
PERFORMER
Check running characteristics.
Verify greaser is operating properly
and grease 6 g per day at both main
bearings.
Bowl bearings solids and liquid
side: Re-lubricate roller bearings.
Lubricant: WS-0132
Lubricant quantity 6 g per bowl
bearing.
Surge reservoir / gear lubrication:
Check the oil level in the surge
vessel.
Lubricant: WS-0013
Daily – report issued to GEA if problems
identified
Customer
Automatic grease lubrication of
the bowl bearings: Top up the
storage tank of the automatic grease
lubrication. Check grease lines.
Lubricant: WS-0132
Lubricant quantity: 400 g
Monthly – report issued to GEA if problems
identified
Customer
Drive belt: Check condition and belt
tension. Refer to the decanter manual
(chapter "Tensioning drive belts).
Every 2000 operating hours, after 6 months
at the latest – report issued to GEA if
problems identified
Customer
Minor Service as detailed on Annex I
Every 4000 hrs. or latest every 12 months
GEA
Major Service as detailed on Annex I
Every 8000 hrs. or latest every 36 months
GEA
5
Gearbox inspection by GEA Westfalia
Separator Trained Specialist.
Replace vibration isolators (drive and
frame). Replace the rubber elements
(Coupling / drive)
Every 16000 hrs. or latest every 36 months
GEA
Oil Analysis and Report to GEA
Report issued to GEA if problems identified
or on specific request by GEA
Customer
Motor Lubrication
In accordance to manufactures
specifications
Customer
3. Charges and Rates
The below mentioned package Prices include the defined parts, labor, traveling hours,
mileage, daily allowances, labor hours on site and accommodation (if necessary) to
accomplish the predefined activity as listed in Annex 1 and in accordance with the attached
parts lists in Annex 2.
Minor Service
To be understood per respective service
Major Service
To be understood per respective service
Total Service Package Price
USD $ 113,043.00
As per Scheduled Maintenance and Service Plan detailed herein.
This is a preliminary proposal; the actual dates will be defined in detail 2 weeks after signature.
GEA requires approx. 3 – 4 weeks’ prior notice for re-scheduling service visits.
Pricing includes labor for one (1) service technician, all expenses and travel costs. Parts will
be delivered on site prior to the execution of the services, standard freight included in this
proposal.
Work shall be scheduled during the normal work week, travel inclusive, Monday through Friday
8:00am – 5:00pm
Model
SN
2024
2025
2026
2027
2028
CC458-00-32
8002-495
Not included
$5,756.20
$5,756.20
Not included
$5,756.20
CC458-00-32
8002-496
Not included
$5,756.20
$5,756.20
Not included
$5,756.20
Model
SN
2024
2025
2026
2027
2028
CC458-00-32
8002-495
$19,626.45
Not included
Not included
$19,626.45
Not included
CC458-00-32
8002-496
$19,626.45
Not included
Not included
$19,626.45
Not included
6
One (1) Service per site visit is planned. If additional visits are required to complete service for
reasons to attributable to GEA additional charges may apply.
B. Panel Upgrade
New control panels for both decanters
In summary, the scope encompasses the following aspects:
•
Two (2) complete control panels NEMA 4X 304SS– Each decanter has a single
panel.
•
Modicon M580 PLC with IO modules
•
Megelis OIT color touchscreen
•
Components similar to existing .
•
Modbus serial TCP gateway with latest versions
•
Necessary breakers, relays, and components, E stop, Temperature converter and
Grace port.
•
Air Conditioning units
•
New drawings with a bill of materials
•
New program and a copy for the customers.
Qty. (2), Decanter control panels with new PLC and HMI.
-inhouse programming for Modicon M580 PLC and Megelis HMI.
-Note that both programs are being written from scratch.
-drawing updates for drawing sets.
-customer supplied copy of AB file memory.
Notes – Freight to site is included but no installation or startup is included.
PRICE:
$162,800 .00 each.
$325,600.00 DDP, Cholla WWTP, Glendale AZ. (Incoterms, 2020)
C. Scroll rebuild
•
Existing scroll rebuild as required.
•
Final cost for rebuild cannot be completed until a GEA full inspection is made.
•
A full inspection report will be assembled with any parts required.
•
The assumption is for each scroll to be rebuilt within the 5 year plan
Estimated Budget Price cost for scroll rebuild (2 ea.)
$ 112,000.00
7
D. Gear unit refurbishment
•
Rebuild existing gear unit with new parts.
•
Balance gear components
•
Assemble gear for return to customer.
•
Customer to return old gear unit as the core.
•
Plan is for each gear unit to be rebuilt once within the 5 year service plan.
Gear unit cost w/ exchange core (2 ea.)
$ 89,026.00
C. Spare sensors for both CC 458 decanters
Sensor
Gea Part #
Qnty
Cost each
Cost NET
Vibration
PCH
0005-1848-020
2
2372.21
$4,032.76
Temperature
0005-1226-000
2
934.25
$1,588.23
Speed
0005-0868-000
3
407.81
$1,039.92
Price
$ 6,600.00
D. Service visits (non-major services)
•
5 year service plan is offering 2 unscheduled visits per year. Each visit will be for one
tech for the 5 days (travel included). Visits are for Monday thru Friday. A report will be
submitted with cause, evaluation and correction needed.
•
The time must be scheduled thru Richard Bischoff and have as much notice as
possible. The techs are scheduled at least 2 weeks prior to scheduled services.
•
There will be a monthly. 0ne day scheduled visits for general machine operational
checks. A report will be filled out and submitted. For the 5 years.
Extra services
Qnty
Cost NET
Unscheduled service work – one tech / one week (40 hrs.)
2/year x 5
years
$68,635.00
Scheduled machine check services (one day per month) (8 hrs. per
visit)
1
day/month
x 5 years
$187,410.00
Price
$ 256,045.00
8
Non-essential parts
TOTAL FOR 5 YEAR SERVICE PACKAGE
description
qnty
cost each
Total Cost
Scheduled Major
Services
1 each
$165,730.79
$165,730.79
New LCP Panels
2 each
$162,800.00
$325,600.00
Scroll Repair
2 each
$56,000.00
$56,000.00
Reconditioned Gear
Unit
2 each
$63,469.00
$126,938.00
(1) major parts kit -
stock
1 each
$15,885.00
$15,885.00
Non-essential Parts
1 each
$29,774.83
$29,774.83
Monthly Monitoring
1 day/month x 5
years
$3,123.50
$187,410.00
Sensor Replacement
2 sets
$7,007.54
$14,015.08
Service visits - non
Major
2/year x 5 years
$6,863.50
$68,635.00
TOTAL 5 YEAR COST
$989,988.70
Note: All parts have a 15% discount included already
Payment options, Total Package Price
$989,988.70.00
☐ Option 1, payment in full at time of signature (5% discount applied) USD $940,489.27
☐ Option 2, yearly payment in full USD $197,997.74
1Seller reserves the right to make changes to the pricing schedule with 30 days’ notice for any
escalation in the cost of materials (including without limitation the cost of stainless steel, nickel,
and other metals) that occurs during the validity period of this agreement. In case the Parties
cannot find an agreement on charges and rates, each Party is entitled to terminate this
Agreement with a one month notice to the end of the following calendar month.
This pricing excludes:
Unscheduled Waiting Time for Scheduled and Non-Scheduled Service Interventions:
part #
qnty
desc.
cost each
cost net
15% discount
8175-3136-020
1
LE Bearing Housing
$8,122.78
8,122.78
$
6,904.36
$
8175-3136-030
1
GE Bearing Housing
$9,836.27
9,836.27
$
8,360.83
$
8176-2705-100
1
Feed Pipe complete
$15,384.88
15,384.88
$
13,077.15
$
0021-3150-770
4
Frame isolators
$250.49
1,001.96
$
851.67
$
0021-3151-750
4
Motor isolators
$170.83
683.32
$
580.82
$
29,774.83
$
9
Waiting times, irrespective of during a scheduled or non-scheduled Service intervention which
are not caused by GEA will be charged on the basis of the valid local service rates in
accordance with the Rates of attendance for non scheduled services detailed below.
Upgrade and Critical Parts:
Any part that Customer wishes to order at its own request for stock or any other reason is
subject to prior approval from Customer upon prices been supplied by GEA. In such cases an
authorized separate purchase order must be supplied by Customer.
Additional Work:
Any additional work, training, other than those specified in Annex 3 are subject to separate
quotation and prior approval by Customer.
Other General Terms
Terms of Payment:
All invoices excluding down payment are due net 30 days on presentation of invoice.
Down Payment due net 10 days on presentation of invoice.
Quoted prices do not include applicable taxes
Rates of attendance for non scheduled services
Service Level Agreement Rates
Effective January 1, 2025
Regular Service
Monday – Friday
$231.00 / hr.
Monday – Friday Overtime
$304.00 / hr.
Saturday
$304.00 / hr.
Sunday & Holiday
$365.00 / hr.
Daily rates Test and Training
Fees/includes labor and expenses
$4,843 per / day
Travel Expenses
Airfare, car rental, meals, lodging, etc. are
charged at actual cost. Use of the company
service fleet, leased or private vehicles is
charged at 62.5 cents/ mile. Travel time will be
charged at current rates, listed above.
All travel plans will incur an $131.00 booking
Fee.
4. Term of the Agreement
The Agreement comes into effect upon signature of both Parties.
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The Term of the agreement shall be for 5 years, after which this Agreement expires
automatically if not extended in writing by the Parties.
Either party may terminate this Agreement with immediate effect at any time prior to the end of
the term by simple written notice to the other party in the event of the following:
The Equipment is destroyed or so damaged as to be incapable of economic repair.
The Equipment is removed from the site.
The Equipment is taken out of operative action for an indefinite period of time.
The property of the Equipment is transferred to a third party.
The other party commits a material breach of the agreement and fails to remedy such breach
within thirty (30) days after written notice by the non-breaching party.
5. Annexes
This Agreement consists of the following Annexes, which shall be an integral part of it:
- Annex 1: Detailed Definition of Scheduled Services
- Annex 2: List of Parts per Equipment
- Annex 3: Obligations of Parties
- Annex 4: Documents, Reports and Contacts
- Annex 5: Contractual Terms and Conditions of Service
ACCEPTANCE
For and on behalf of:
For and on behalf of:
GEA Mechanical Equipment US, Inc.
City of Glendale Wastewater Treatment Facility
Signed: ........................................................ Signed: ............................................................
Name: ........................................................ Name:...............................................................
Date: ....................................................... Date:..................................................................
For and on behalf of:
For and on behalf of:
GEA Mechanical Equipment US, Inc.
City of Glendale Wastewater Treatment Facility
Signed: ........................................................ Signed: ............................................................
Name: ........................................................ Name:...............................................................
Date: ....................................................... Date:..................................................................
11
ANNEX 1 – Detailed Definition of Scheduled Services
Scheduled Maintenance Activities Definition
Preventive – Scheduled Maintenance
Minor Service Decanters
Definition:
Parts in accordance with Annex 2
12
Major Service Decanters
Definition:
Parts in accordance with Annex 2
Root Cause Analysis Procedure (Applicable for unscheduled Maintenance)
Both Parties agree that the Root Cause of any non-scheduled service intervention should be
identified if possible and the following 2 phase approach is to be adopted
Phase 1 – Local Site Clarification
Evaluation conducted by Customer and GEA Representatives.
Phase 2 – Workshop analysis
In the unlikely case that Customer and GEA are unable to find a mutual consent during Phase
1 or disagree to the Root Cause of Failure, a formal Cause Analysis will be executed in a GEA
Certified Repair Workshop concluding with a detailed technical report.
13
ANNEX 2 – List of Parts per Equipment
List of Parts per Equipment per Maintenance Task
CC458-00-32 S/N 8002-495 & 8002-496 – Minor Service
CC458-00-32 S/N 8002-495 & 8002-496 - Major Service. Must include minor service part list.
A complete Major parts kit must include the Minor parts.
Total parts price w/ discount $ 13,500.00
Part Number
Qnty
Description
0004-2232-780
1
Gasket
0007-1739-750
1
Gasket
0015-0124-000
14
Grease
Part Number
Qnty
Description
0007-2992-700
2
Gasket
0011-1026-500
1
Bearing
0011-6026-400
1
Bearing
0007-2153-750
2
Gasket
0004-3018-850
2
Seal
0007-2433-380
1
Gasket
0011-3222-470
1
Bearing
0004-2123-300
2
Nilos Gasket
0004-2124-750
1
Seal
0007-2766-750
2
Gasket
0004-2126-750
1
Seal
0021-2891-890
1
Flat Belt
0021-2889-810
1
Set of Belts
0004-5558-750
1
Seal
0004-2045-750
1
Seal
0007-3169-750
2
Gasket
0004-2092-550
2
Gasket
0007-3164-750
1
Gasket
0007-1997-750
1
Gasket
0004-3169-750
1
Seal
0004-2889-850
1
Seal
0004-3131-850
1
Seal
0015-0124-000
10
Grease
14
ANNEX 3 – Obligations of Parties
The following obligations of Parties are deemed to ensure that the mutually agreed Services regulated
in this Agreement can be organized and executed in a smooth, safe, and efficient manner.
1. Obligations for GEA
(a) The Services will be executed in a way that the Equipment will be ready for operation
after finishing them and complies with the applicable security standards.
(b) GEA will render the Services exclusively with its well-trained specialists.
(c) GEA will obey the security instructions of Customer valid for the site.
(d) In case GEA detects defects or damages which seriously impair the safe operation of
the Equipment it will inform the Customer immediately.
(e) If it is determined in the context of any Services which is being carried out that there is
a need for repairs or replacements on the Equipment or parts of it beyond the instructed
or described scope of works, GEA shall inform the Customer accordingly. This shall also
apply if components are detected which have a certain likelihood of failure in the near
future. The Customer then shall decide, if he wishes GEA to perform these additional
works/replacements on basis of the GEA standard prices and in accordance with the
provisions of this Agreement.
(f) The time needed for maintenance indicated by GEA is based on information provided
by Customer and/or GEA’s visual inspection of the Equipment and premises, and
assumes that GEA will have continuous access to the Equipment (within reasonable
production operation cycles) during maintenance. Additional time may be required in
case of unforeseen defects or obstacles. Therefore GEA does not give any warranty in
respect of time for completion of the maintenance.
(g) GEA will keep in operation a Customer telephone hotline. The respective number is
specified in Annex 4. Within less than 4 hours after defects notification, GEA will inform
the Customer by phone, if and how the defect can be remedied by the Customer himself.
GEA will on basis of the Customer information use the “exclusion principle”. The
instructions by GEA via phone have to be followed carefully and precisely by
Customer´s trained staff. These works will not impair any warranty obligations of GEA,
if done in carefully and in accordance with GEA instructions and good engineering
practice.
15
2. Obligations for the Customer
(a) Customer is required to give free and safe access to the Equipment, during regular
working hours and make available the set of tools supplied with the Equipment as well
as other auxiliaries (e.g., Lighting, water, electric power, air, lifting gear etc.) free of
charge necessary to conduct proper and safe maintenance work. The Customer shall
be responsible for ensuring that the Services can be carried out without obstacles,
without waiting times or interruptions and without exposing the service staff deployed
by GEA to risk. Any special safety equipment which may be necessary shall be kept
available and, if necessary, operated by the Customer. The Customer shall inform the
staff of the GEA of any special risks or hazards associated with the Services before
any works are commenced. Any lifting operations using lifting equipment which need
to be carried out for removal and reinstallation and all transportation within a facility
(including all safety activities associated with this) shall be undertaken by the Customer
at its sole responsibility and without having been explicitly requested to do so. If,
contrary to these provisions, no operating personnel for lifting equipment is made
available by the Customer, GEA shall have the right, but no obligation, to operate the
lifting equipment of the Customer at the risk of the latter. The Customer shall keep all
necessary lifting equipment and means of transportation (cranes, winches, forklifts,
etc.) with operating personnel available during the performance of the Services. The
Customer shall ensure that the Services can be carried out in ambient conditions which
are not dangerous, hazardous, or deleterious to persons or property, in particular that
lifting equipment and means of transportation have been tested and are in safe
operating condition. Moreover, the Customer shall provide all services which are
required for test, trial and acceptance runs of the Equipment, including, without
limitation, provide for this purpose all raw materials which are to be processed by the
Equipment in accordance with its intended purpose, and all utilities and operating
personnel at its own risk and expense.
(b) Customer has to inform GEA about safety-relevant points and regulations which must
be observed at his premises. Customer has to supply any permits or site inductions
necessary for the execution and completion of the maintenance activities.
(c) The Equipment on the pre-agreed service date and time has to be clean and evacuated
of all products taken out of operation and suitably isolated. Customer shall expressly
instruct GEA’s personnel of any hazards and dangers that may emanate from the
Equipment in advance of any scheduled/agreed service. Customer shall pass on
works-specific safety instructions. The customary personal protection Equipment such
as safety shoes and safety goggles will be made available by GEA. Special preventive
measures such as respiratory protection Equipment shall be provided by Customer or,
against extra charge, by GEA. In case the safety situation changes during the term of
this Agreement Customer is obliged to immediately inform GEA in detail in writing
16
thereof. If due to such changes GEA has to undertake additional precautions, which
result in additional cost, such cost shall be borne by Customer.
(d) Any waste accruing in connection with the performance of the contractual services,
such as dismantled materials and spent utilities, auxiliaries, and consumables, shall be
duly removed and disposed of by Customer at his own expense.
(e) Customer shall make available to GEA free of charge sufficient storage and floor space
and shall allow GEA the use of sanitary installations and change rooms.
(f) Customer shall have the obligation to notify GEA of any technical modifications or
repairs to the Equipment during the term of such Agreement, if any. In such a case, the
agreed remuneration and the individual scope of work will be redefined by mutual
agreement to the extent that the aforementioned modifications or repairs should entail
additional expense and work. Should the Parties fail to reach an agreement, either
party shall have the right to give extraordinary notice of termination.
(g) Customer shall inform GEA in all detail of all malfunctions and other problems
experienced with the Equipment prior to commencement of maintenance.
(h) Customer shall free of charge give all reasonable support to GEA to enable to perform
his Services hereunder and make personnel available for cleaning individual
components when necessary.
(i) Customer shall maintain documentation, including drawings, technical manuals, etc. of
the Equipment and shall make such documents available to GEA in connection with
the provision of maintenance.
(j) Immediately following each Service intervention visit, a signed acceptance report shall
be issued by Customer. If Customer does not issue such report within 5 days without
substantial reasons from end of a Service intervention, the respective Service
intervention is deemed accepted. After each maintenance GEA will send to Customer
the documents listed in Annex 4 applicable to the respective Service intervention
actually performed giving an overview on the status of the Equipment.
(k) Customer shall procure all necessary permits and licenses required by his state and
local authorities for the performance of GEA‘s obligations hereunder.
17
ANNEX 4 – Documents, Reports and Contacts
GEA shall provide Customer with full written details on the Services carried out at the
conclusion of each service.
Documents + Reports
After each service activity GEA will submit the following documents within 1 weeks of the visit.
Note any points requiring immediate action will be notified by email within 1 days.
•
Preventive Services
o Service Report
Contacts:
Below you find some information about our Original Manufacturer Service department and how
to reach us.
SPOC Manager
Mr. Aldo Del Carpio
OMS Technical Advisor
Ph: +1 209-895-6313
Fax: +1 209 895 6301
E-Mail: Aldo.DelCarpio@gea.com
24/7 Emergency Line: +1-800-509-9299
Service Sales Engineer
Brian Lent
brian.lent@gea.com
209-895-9267
24/7 Emergency Line: +1-800-509-9299
18
ANNEX 5 – Contractual Terms and Conditions of Service
TERMS AND CONDITIONS – SERVICES
Definitions
Term
Meaning
Buyer
the party who contracts to buy the Scope of Work.
Buyer Scope
all works relevant to the Scope of Work which are not expressly included in Seller’s Scope of Work,
including any works specified in these Terms or Seller’s Offer as being the responsibility of Buyer.
Contract
the contract formed between Buyer and Seller for purchase and sale of the Scope of Work.
Contract Price
the price set out in Seller’s Offer or, in case of binding contract, in the Contract.
Costs
all costs and expenses incurred or to be incurred by Seller, including overhead, insurance, financing
costs and similar charges and a reasonable profit; when calculating Costs, the costs of Seller’s
personnel shall be based on Seller’s periodic rates as set forth in Seller’s Offer or, if not contained
therein, according to its rates prevailing when the work is performed.
day
a calendar day.
Defect
a flaw in the workmanship or materials of Seller’s equipment at the time of delivery or a failure to prepare
documentation or provide Site Services according to commercially reasonable skill and care.
Export Control
Event
a situation where the Export Control Regulations may require an Export License or may cause additional
costs, delay, prohibit Seller´s performance and/or render the Contract not reasonable to perform.
Export Control
Regulations
all applicable national and international laws, regulations, orders, embargoes, administrative practices
or resolutions that may prohibit or restrict the trade of the Goods.
Export License
license or an equivalent formal approval by the competent authorities for the supply of the Goods under
this Contract which is required to be obtained by Seller under the Export Control Regulations.
Force Majeure
acts of war or terrorism, riots, civil commotion, embargoes, export/import permit delays or refusals,
epidemics, strikes, fires, delays in transport or customs clearance, earthquakes, floods, hurricanes,
typhoons, storms, other acts of God or government or any other circumstances beyond the reasonable
control of a party.
including
including without limitation.
Incoterm
the series of pre-defined commercial terms published under the name Incoterm® by the International
Chamber of Commerce (Paris) as in force at the date of Seller’s Offer.
Schedule
the time schedule for the Scope of Work as set out in Seller Offer or, in case of binding contract, in the
Contract, as such schedule may be modified according to Clause 5 of these Terms.
Scope of Work
the goods, documentation and services (including Site Services, if any) expressly listed as Seller’s
responsibility in Seller’s Offer or, in case of binding contract, the Contract.
Seller
The GEA entity identified on the quotation, proposal or offer for the Scope of Supply or Buyer’s
purchase order.
Seller’s Offer
Seller’s quotation, proposal or offer for the Scope of Work.
Site
the place at which the Scope of Work is to be performed.
Site Services
the services (if any) provided by Seller at the Site expressly listed as Seller’s responsibility in Seller’s
Offer or, in case of binding contract, the Contract.
Terms
these Terms and Conditions – Services.
Warranty
Conditions
has the meaning set out in Clause 7.1.4.
Warranty Period
ninety (90) days from performance of the Scope of Work.
General Provisions
These Terms shall apply to and form an integral part of any Seller’s Offer and any Contract.
Any provision of Buyer’s purchase order, offer, acceptance or other document or requirement of Buyer which forms a part of the
Contract and is in conflict or inconsistent with these Terms or which imposes on Seller liabilities that are additional to or different
from those set forth in the Terms shall not apply to the Contract and is of no force or effect. Buyer’s terms of purchase and/or
service, if any, shall not apply to the Contract and are of no force or effect.
19
These Terms shall prevail over any inconsistent or conflicting provision of the Contract (including Seller’s Offer), except only where
(i) Seller has by way of its Seller’s Offer or a duly signed document expressly amended a provision of these Terms and has
referenced the specific provision of these Terms being amended or (ii) these Terms expressly provide for an option to deviate
from the respective provision in Seller’s Offer or, as the case may be, in the Contract.
Annex A shall apply where the Scope of Work includes the testing of Buyer’s materials at Seller’s (or its affiliate’s) facility.
1.
Scope of Work:
1.1
Seller’s works shall be limited to the Scope of Work. Buyer shall be responsible for the Buyer Scope.
2.
Site Services:
2.1
If Site Services are included in the Scope of Work, Buyer shall ensure that Seller has safe and appropriate access to
the Site at all times required by Seller. Any failure by Buyer to perform this obligation and any failure as regards readiness
of the civil works or equipment outside the Scope of Work at the Site will entitle Seller to suspend its Site Services.
2.2
For the purpose of Seller carrying out the Site Services, Buyer shall be responsible for providing all of the following: (i)
civil works; (ii) feed and other raw materials for making product; consumables and utilities, each in strict conformity
with all requirements of the Contract; (iii) communications connections;(iv) trained and qualified laborers, operators
and other personnel required by Seller; (v) safe and reliable equipment to assist in the transport of the Goods at the
Site, including cranes and other lifting and transport equipment (to be operated and maintained by Buyer’s personnel);
(vi) a secure lock-up dry room for keeping tools and small machine parts; (vii) security; (viii) sufficient lighting; (ix)
heating or cooling of the buildings at the Site to ensure reasonable climate and required ambient conditions for
performing Site Services; (x) office space and facilities and welfare, messing, changing and washing facilities; (xi) any
drawings or information which Seller may require for the purposes of carrying out the Site Services; (xii) special tools
required for commissioning of the Goods; and (xiii) analyses of feed, utilities and product according to Seller’s
requirements.
2.3
Under no circumstances will Seller be responsible for the acts and/or omissions of any other contractor or person
provided or made available by Buyer or for any works or equipment supplied by them, either by way of a deemed
employer or otherwise, or for their payment, welfare, provision of safety equipment or safe means of working, or for their
work, productivity or workmanship. Buyer shall be solely responsible for any failure of such persons or contractors to
strictly comply with the instructions and requirements of Seller. Buyer shall indemnify, defend and hold Seller harmless
from any resulting claims and liability for loss or damage to any property or for bodily injury or death in any way arising
out of the acts or omissions of any such persons and contractors, save in each case to the extent directly caused by the
negligence of Seller.
3.
Payment:
3.1
Buyer shall pay Seller the Contract Price pursuant to the milestone schedule set forth in Seller’s Offer or the Contract.
3.2
All payments are to be made by electronic transfer, net cash without any deduction, in United States Dollars unless a
different currency is stated in Seller’s Offer and within 30 days of the date of Seller’s applicable invoice.
3.3
Payment shall not be deemed effected until irrevocably available funds have been received in full by Seller in its
nominated bank account.
3.4
Buyer shall notify Seller in writing of any objection to the validity of any invoice within 5 days of receipt, absent which
the invoice shall be deemed valid and payable.
3.5
Buyer shall have no right of set-off or right to make any form of withholding or retention against any payment of the
Contract Price.
3.3
If any payment is not received by the applicable date for payment, Seller shall be entitled to interest thereon at 2.5% per
month and pro rata for any part thereof, without formal demand being made. In addition and upon 7 days’ written notice
to that effect, Seller may suspend all or part of its performance under the Contract until the payment and any due interest
is received in full.
4.
Taxes:
4.1
The Contract Price and any other amounts to be paid to Seller are exclusive of, and Buyer shall be responsible for, all
federal, local, or municipal duties, taxes (including value added, sales, use, business, excise, gross receipts,
contractor’s, withholding, or similar taxes), assessments or charges of any kind, except to the extent any taxes or other
charges that are assessed on the profits of Seller or which under the applicable Incoterm relating to delivery of the
Scope of Work are payable by Seller. The payment of all such duties, taxes, assessments, or charges are the
responsibility of Buyer. Seller must receive appropriate tax exemption certificates from Buyer; otherwise, applicable
taxes will be charged by Seller on each invoice.
4.2
If any duties, taxes, assessments or charges are imposed on Seller by authorities in the country where the Scope of
Work will be installed in connection with any Site Services and/or in connection with the Contract itself, Buyer shall
reimburse Seller all such amounts.
4.3
Where Buyer is obliged by applicable law to make a deduction from any payment due to Seller in relation to any such
duties, taxes, assessments or charges, Buyer shall increase the payment to be made such that the net payment received
by Seller is without any such deduction.
5.
Delivery / Risk of Loss / Delays:
5.1
Seller shall deliver the Scope of Work according to the applicable Incoterms by the date specified in the Schedule. If no
Incoterm is stipulated, delivery shall be Ex Works manufacturer plant as specified by Seller. In case the respective
stipulated Incoterm obliges Seller to perform any import formalities for the import into the country of delivery, Buyer at
its cost is obliged to support Seller in any way reasonably required by Seller. Any delay (other than a delay by Seller) in
completion of import formalities shall be an event entitling Seller to an extension of time and compensation of Costs.
5.2
Transfer of risk of loss and damage to the Scope of Work shall be in accordance with the stipulated Incoterm. The
inclusion of any Site Services within Seller’s Scope of Work shall not alter this transfer of risk of loss and damage and
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shall not create any assumption by Seller of any form of care, custody and control over any Buyer Scope and/or the
Site.
5.3
In case of any delay, disruption, impediment or prevention of Seller or any breach of contract by Buyer (including third
parties for whom it is responsible), Seller shall be entitled to payment by Buyer of its additional Costs and to an extension
of time for any delay incurred.
5.4
Each party shall be released from the performance of its obligations under the Contract to the extent such performance
is delayed, disrupted, hindered or obstructed by Force Majeure. The time for performance shall be extended by at least
the amount of time lost due to the Force Majeure event.
6.
Ownership:
6.1
Title in the Scope of Work will transfer to Buyer when Seller has received payment of the Contract Price in full.
7.
Warranties:
7.1
Warranties regarding Scope of Work:
7.1.1
Subject to the provisions of this Clause 7.1 and Clause 7.2, Seller warrants that the Scope of Work shall be free of
Defects. This warranty shall expire on the last day of the Warranty Period.
7.1.2
Seller shall be responsible for remedying any Defect under Clause 7.1.1 provided that Buyer promptly gives detailed
written notice to Seller of the Defect and in any event before the end of the Warranty Period. To the maximum extent
permitted by applicable law, Seller shall have no liability for any form of Defect under Clause 7.1.1, latent or otherwise,
for which it received written notification after the Warranty Period.
7.1.3
Where Seller is responsible for a Defect under Clause 7.1.1, Seller shall investigate and rectify the same as soon as
reasonably practicable (taking into consideration the nature of the Defect, lead-time for replacement parts, etc.).
Rectification of a Defect under Clause 7.1.1 relating to goods included in the Scope of Work shall be by way of repair
or replacement, at Seller’s option, of the relevant part of the goods that is defective. Rectification of a Defect under
Clause 7.1.1 relating to Site Services and documentation included in the Scope of Work shall be by way of re-
performance by Seller of the relevant part of the Site Service or documentation that is defective. Buyer shall in each
case give Seller all necessary and safe access to and possession of the Site. Any replacement parts shall be delivered
according to the same delivery (Incoterms) terms as specified in the Contract. Buyer shall be responsible for all labor,
equipment, costs used or incurred in the disassembly, removal, transport, installation and commissioning of repaired or
replaced defective parts. Seller shall not be deemed to have breached any of its warranty obligations where it has
rectified a Defect according to this Clause.
7.1.4
Seller´s responsibility for any Defect under Clause 7.1.1 is subject to the condition that it is not caused by one or more
of the following: (i) normal wear and tear of parts; (ii) use of non-original spare parts; (iii) use of feed, consumables or
utilities not in strict conformity with the specifications stated in the Contract or in Seller´s written manuals; (iv) any failure
of upstream and/or downstream equipment; (v) modifications without Seller’s express prior written consent; (vi) use of
corrosive or abrasive substances; (vii) the storage, handling, use, operation or maintenance of any goods which is not
in strict conformity with good engineering practice, the Contract or any written requirements of Seller, including any
failure to comply with Seller’s written manuals or instructions and Buyer’s own quality assurance requirements; (viii)
information, services, personnel, equipment or other items supplied by Buyer; (ix) failure to permit Seller to perform
supervision of installation and/or installation; and/or (x) other conditions or circumstances not due to the fault of Seller
(collectively, “Warranty Conditions”).
7.2
Disclaimer and Limitations:
SELLER HEREBY EXCLUDES AND DISCLAIMS ALL CONDITIONS, WARRANTIES, GUARANTEES AND
REPRESENTATIONS THAT ARE NOT EXPRESSLY SET OUT IN CLAUSE 7.1 OR WHICH ARE IMPLIED,
STATUTORY, CUSTOMARY OR OTHERWISE AND WHICH, BUT FOR THIS EXCLUSION AND DISCLAIMER,
WOULD OR MIGHT SUBSIST IN FAVOR OF BUYER, INCLUDING ANY WARRANTIES AS TO FITNESS FOR
SPECIFIC PURPOSE OR MERCHANTABILITY. Buyer’s remedies as set forth in Clause 7.1.3 above shall be Buyer’s
sole and exclusive remedies in respect of any Defect. If it is ultimately determined that this remedy fails of its essential
purpose, then Seller’s maximum liability is limited to the Contract Price attributable to the portion of the Scope of Work
for which the exclusive remedy has failed. Seller’s warranty does not include the replacement of lost refrigerant. Seller
assumes no responsibility and shall have no liability for any repairs or replacements by Buyer without Seller‘s prior written
authorization. Seller shall have no liability for the costs of removing or segregating any defective equipment so that the repairs
or replacements can be made.
8.
Confidentiality and IP:
8.1
Buyer shall treat all information, drawings and data of any kind made available or provided by Seller in Seller’s Offer or
under the Contract whether orally, electronically, in writing, visually (such as through site visits, tests or audits) or
otherwise and regardless of whether marked “confidential” (‘’Confidential Information’’) as private and confidential.
Buyer shall not publish or disclose Confidential Information or any particulars thereof (except as may be necessary for
the purposes of the Contract, including disclosure to its and its affiliates’ officers, directors and employees, and/or as
required by a recognized stock exchange or by applicable law), without the previous written consent of Seller. Buyer
may use Confidential Information only for the work covered by the Contract and not for any other project. Nothing in
this Clause 8 shall prevent the publication or disclosure of any Confidential Information which either has come within
the public domain otherwise than by breach of this provision or was already in the possession of Buyer with a right to
disclose and use such information.
8.2
Intellectual property or patent rights which may be obtained on the basis of the information given or made available to
Buyer in Seller’s Offer or under the Contract or with respect to Seller’s Scope of Work, including, without limitation, any
discovery, invention, improvement or enhancement to Seller’s Scope of Work or the process, operating parameters, or
controls associated with such Scope of Work will remain the exclusive property of Seller or its subcontractors and/or
sub-suppliers, respectively. Buyer shall not, nor shall Buyer permit any third party to, reverse engineer or otherwise
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technically examine, measure or test Seller‘s Scope of Work (except for the purposes of maintaining and operating the
Scope of Work) without Seller‘s prior written consent.
8.3
To the extent the Scope of Work includes the furnishing of engineering deliverables such as, but not limited to,
engineering studies, process studies, detailed price proposals, preliminary drawings, preliminary bills of materials,
process and instrumentation diagrams, or specifications not concurrent with a contract for the sale of tangible goods
(“Engineering Deliverables”), such Engineering Deliverables are licensed to Buyer by Seller on a fully-paid up basis only
for the purpose of Buyer utilizing such Engineering Deliverables to procure equipment from Seller and no other supplier.
Buyer is not authorized to use or disclose the Engineering Deliverables in connection with the purchase of equipment
from any other supplier and Buyer will indemnify and hold Seller harmless from any claims, damages, losses and costs
(including reasonable attorney’s fees) that result from the use of any Engineering Deliverables in conflict with this
provision.
9.
Remedies and Limitations of Liability:
9.1
Exclusive Remedies:
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BUYER’S RIGHTS AND REMEDIES AS
EXPRESSLY STATED IN THE CONTRACT (WHETHER BY WAY OF DAMAGES, PAYMENT OR REIMBURSEMENT
OF COSTS, LIQUIDATED DAMAGES, PRICE REDUCTION, MAKE GOOD OR REMEDIATION, TERMINATION OR
OTHERWISE) SHALL BE ITS SOLE AND EXCLUSIVE RIGHTS AND REMEDIES REGARDLESS OF THE EVENTS,
CIRCUMSTANCES OR THEORY ON WHICH A CLAIM MAY BE BASED (INCLUDING TERMINATION, BREACH OF
CONTRACT OR STATUTORY DUTY, NEGLIGENCE OR OTHER TORT, STRICT LIABILITY, INDEMNITY,
RESCISSION / WITHDRAWAL OR OTHERWISE).
9.2
Exclusion of Certain Damages:
NOTWITHSTANDING ANY OTHER PROVISION TO THE CONTRARY OR THE FAILURE OF THE ESSENTIAL
PURPOSE OF ANY EXCLUSIVE OR LIMITED REMEDY, EXCEPT ONLY (i) TO THE EXTENT OF ANY LIQUIDATED
DAMAGES PROVIDED FOR IN THE CONTRACT AND (ii) TO THE EXTENT THE EXCLUSION OF SELLER'S
LIABILITY IS PROHIBITED BY APPLICABLE LAW (IN WHICH CIRCUMSTANCES SELLER'S LIABILITY SHALL BE
LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW):
SELLER SHALL IN NO CASE WHATSOEVER BE LIABLE FOR ANY (A) LOSS OF REVENUES OR PROFITS; LOSS
OF OPPORTUNITY, PRODUCTION OR CONTRACTS; LOSS OF USE; STANDBY COSTS; LOSS OF OR DAMAGE
TO FEED, RAW MATERIALS, UTILITIES OR PRODUCT; PLANT DOWNTIME OR DELAYS; LOSS OF GOODWILL;
LIQUIDATED DAMAGES OR PENALTIES IMPOSED ON BUYER BY ITS CUSTOMERS OR THIRD PARTIES;
BUYER’S CONTRACTUAL LIABILITY TOWARDS ANY THIRD PARTY; COSTS TO RECALL BUYER’S PRODUCT;
ANY DAMAGES FINES OR PENALTIES PAYABLE BY BUYER; OR OTHERWISE FOR ANY FINANCIAL OR
ECONOMIC LOSSES OR DAMAGES, AND IN EACH CASE IRRESPECTIVE WHETHER THE LOSSES OR
DAMAGES IN QUESTION ARE DEEMED OR CLAIMED TO BE DIRECT, CONSEQUENTIAL, INDIRECT OR
OTHERWISE, OR (B) FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR
EXEMPLARY, LOSSES OR DAMAGES HOWSOEVER CAUSED OR ARISING; OR (C) FOR ANY LOSS OR DAMAGE
TO THE EXTENT ARISING OUT OF THE SOLE OR CONTRIBUTORY NEGLIGENCE OF BUYER, ITS EMPLOYEES
OR AGENTS OR ANY THIRD PARTY.
9.3
Maximum Aggregate Liability:
NOTWITHSTANDING ANY OTHER PROVISION TO THE CONTRARY OR THE FAILURE OF THE ESSENTIAL
PURPOSE OF ANY EXCLUSIVE OR LIMITED REMEDY, EXCEPT ONLY TO THE EXTENT THE EXCLUSION OR
LIMITATION OF SELLER’S LIABILITY IS PROHIBITED BY APPLICABLE LAW (IN WHICH CIRCUMSTANCES
SELLER’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW), SELLER’S
MAXIMUM AGGREGATE LIABILITY TO BUYER UNDER OR IN CONNECTION WITH THE CONTRACT SHALL IN NO
CASE EXCEED THE CONTRACT PRICE AS RECEIVED BY SELLER, IRRESPECTIVE WHETHER SUCH LIABILITY
ARISES BY WAY OF BREACH OF CONTRACT (INCLUDING TERMINATION) OR OF STATUTORY DUTY,
NEGLIGENCE OR OTHER TORT, STRICT LIABILITY, INDEMNITY, CONTRACT PRICE REDUCTION OR
REPAYMENT, TERMINATION, RESCISSION/WITHDRAWAL, MAKE GOOD OR REMEDIATION OR OTHERWISE.
9.4
The expiry of the Warranty Period shall, to the maximum extent permitted by applicable law, constitute conclusive
evidence for all purposes and in all proceedings whatsoever between the parties that Seller has completed its obligations
under or arising out of the Contract and performed the Scope of Work and made good all Defects therein in accordance
with its obligations under the Contract. After the expiry of the Warranty Period, all claims of any nature whatsoever
Buyer may have against Seller, whether known or not, under or arising out of the Contract and the use of the Scope of
Work, and any right, cause of action and or remedy shall be deemed to be barred and extinguished. Provided always
that this provision shall not apply in case of fraud or to the extent any proceedings were commenced and served in
writing on Seller within the Warranty Period.
9.5
TO THE EXTENT THAT BUYER MAKES ANY CLAIM UNDER ANY FRAUD OR TORT THEORY FOR THE PURPOSE
OF CIRCUMVENTING THE LIMITATIONS AND DISCLAIMERS SET FORTH ABOVE AND IS UNSUCCESSFUL IN
PREVAILING ON THOSE CLAIMS, BUYER HEREBY AGREES TO REIMBURSE AND INDEMNIFY SELLER FOR ALL
ATTORNEYS’ FEES AND EXPENSES AND COSTS INCURRED BY SELLER IN DEFENDING THOSE CLAIMS.
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10.
Permits / Safety:
10.1
Buyer shall be responsible for (i) all permissions, consents and permits in connection with the Site; (ii) maintaining the
Site in a safe working condition and as a safe place of work for all personnel at the Site at any time, providing safe
means of access to the Scope of Work at all times, conducting all activities on the Site in a safe manner and as
prescribed by applicable directives, laws, rules, regulations, codes and standards and as set forth in the operating and
maintenance manuals and instruction sheets furnished by Seller; (iii) not removing or modifying any safety device, guard
or warning sign provided as part of the Scope of Work. If Buyer fails to strictly observe any of the obligations in this
Clause, Buyer shall indemnify, defend and hold Seller harmless from any resulting claims and liability arising out of loss
or damage to any property or out of personal injury or death, save to the extent directly caused by the negligence of
Seller.
11.
Export Control:
11.1
Buyer acknowledges that the Scope of Work may be controlled by Export Control Regulations which may result in an
Export Control Event. In case of an Export Control Event, Seller shall be entitled to all additional costs and expenses
which may be needed for Seller to fulfil its obligations under Seller’s Offer or, in case of binding contract, the Contract,
including costs and expenses needed to obtain an Export License. Buyer agrees to promptly provide to Seller all
necessary information that may be requested to obtain an Export License, such as end-user certificates. Seller will
promptly inform Buyer about material delay to obtain an Export License, a revoked license or any prohibition to execute
the contract.
11.2
If an Export License is denied or revoked or if an embargo prohibits the execution of the contract or if any other Export
Control Event will hinder Seller to fulfill one or more of its contractual obligations Seller shall be excused from the
performance of its obligations under Seller’s Offer or, in case of binding contract, the Contract, with immediate effect.
This shall, without limitation, also apply in case that Seller may be hindered to fulfill its contractual obligations due to the
fact that any of Seller´s suppliers or subcontractors are hindered by an Export Control Event to supply the Scope of
Work all or in part. In any case, Seller shall not be liable or accountable to Buyer for any claims for delay, loss or damage
in connection with an Export Control Event.
11.3
Subject to 11.2, if Seller gives notice to Buyer that its performance of Seller’s Offer or, in case of binding contract, the
Contract will be hindered by Export Control Regulations and/or Export License or embargos, each party shall be entitled
to terminate Seller’s Offer or, in case of binding contract, the Contract, by giving one week prior written notice.
11.4
Buyer shall implement and follow all necessary procedures to comply with Export Control Regulations related to the
Scope of Work to be provided by Seller, and guarantees not to engage in any activity which it or Seller reasonably
believes could be subject to civil, criminal or administrative liability, including but not limited to the sale, lease, transfer,
or sublicensing of the Scope of Work without appropriate authorization. Buyer shall indemnify and hold harmless Seller
from and against any claim, proceeding action, fine, cost, loss and damage arising from or related to the breach of this
warranty.
12.
Data Processing:
12.1
Buyer agrees that Seller will collect, process and use personal data and other data disclosed by Buyer in the course of
the business relation with Seller for the purpose of (1) managing and performing the Contract with Buyer (which includes
the creation and processing of invoices), (2) advertising and/or offering further goods and services to Buyer and/or (3)
managing the business relationship with Buyer through e.g. a customer relationship management system. Such data
may include the following data categories of persons being employed or retained by Buyer inter alia name, title,
company, function within the company, business contact details (phone- and fax-number, email-address, mail address),
history of orders, history of issues (e.g. warranty claims or disputes). Within the limitation of the above described
purpose, Seller can collect, process and use the above described data (i) by itself and/or through the use of affiliates or
other external sub Sellers and (ii) from countries within and/or outside the European Union or European Economic Area.
Buyer will ensure (e.g., if necessary, through consent declaration of the data subjects or other appropriate means
available under the law) that Seller can use the above described data for the above described purposes.
13.
Cancellation:
In case Buyer cancels or postpones a Confirmed Service Order, Buyer shall reimburse all direct costs such as, but not
limited to, cancellation fees for air tickets, air freight charges and visa fees incurred by Seller in connection with such
cancellation or postponement. If Buyer cancels or postpones a Confirmed Service Order less than seven calendar days
before the scheduled departure date of Seller’s technician, Seller reserves the right to charge a fee of up to three times
the daily fee for each technician allocated for the assignment. "Confirmed Service Order" means Buyer‘s oral or written
acceptance of the services offered.
14.
Personal Security:
If, in Seller’s reasonable opinion, the working environment, accommodation and transport arrangements create a
personal security risk for Seller’s technician, Seller has the right to discontinue the Site Services without liability to Buyer.
15.
Replacement:
Seller shall have the right to replace a Seller technician with another technician equally suited for the Site Services.
16.
Sub Contracting:
Seller may offer the Site Services using subcontracted staff, ensuring in any event the ability of such staff to carry out
their activities.
17.
Miscellaneous:
17.1
If any provision of the Contract is determined to be invalid or unenforceable, this shall not affect the validity or
enforceability of the remaining provisions and the parties will substitute the invalid or unenforceable provision by a valid
provision that achieves as closely as possible the same economic effect.
17.2
Any clause or paragraph headings or other headings appearing in the Terms are for reference only and shall not affect
the construction of those Clauses or paragraphs. Words importing the singular shall include the plural and vice versa
where the context requires.
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17.3
The Contract shall not be construed or interpreted against or to the disadvantage of either Buyer or Seller whether on
the grounds that the Contract represents Buyer’s or Seller’s standard or customary terms and conditions of business
and /or that the Contract and or any particular recital, article, clause and or annex or appendix thereof may have
originated from Buyer or Seller or other similar grounds.
17.4
The Contract sets forth the entire agreement between Seller and Buyer with respect to the subject matter thereof and
supersedes any previous agreement or arrangement between the parties. Except to the extent expressly and
specifically set forth in the Contract, all oral representations, warranties, undertakings and other statements of any
kind and all documents given or exchanged on or prior to the date of Contract (including any brochures or sales
material of Seller) are expressly excluded and disclaimed by Seller. Buyer acknowledges that it has not relied on and
is not relying on any such representations, warranties, undertakings, statements or documents when entering into the
Contract.
17.5
The Contract may not be assigned by either party without the other party’s prior written consent, except that no consent
is required for a party to assign the Contract to an affiliate as part of a corporate reorganization. This Clause 17.5 shall
not require Seller to obtain any consent to subcontract any part of its obligations under the Contract. The Contract shall
be binding upon and inure to the benefit of each of the parties and to their respective legal successors and assigns.
Seller may assign receivables under the Contract to a financial entity financing Seller’s performance and Seller may
provide to such financial entity copies of the invoices to which those receivables relate.
17.6
No change in, addition to, or waiver of the provisions of the Contract shall be binding upon Seller or Buyer, unless
contained within an identified written formal amendment to the Contract and signed by both parties.
17.7
Seller is an independent contractor and nothing in this Contract shall be construed to create a partnership, joint venture
or agency relationship between the parties. Each party will be solely responsible for payment of all compensation owed
to its employees as well as employment related taxes. Each party will maintain appropriate workers’ compensation
insurance for its employees as well as general liability insurance.
17.8
Except when services are provided by its authorized agents or subcontractors, Seller shall be the sole employer of all
individuals performing services hereunder. Seller shall assume sole and exclusive responsibility for the payment of
wages to its personnel for services performed for Buyer. Seller shall, with respect to its personnel, be responsible for
withholding federal, state and local income taxes, paying Social Security taxes, unemployment insurance and
maintaining workers’ compensation insurance coverage in an amount and under such terms as required by state law.
Only Seller shall have the right to hire and fire its personnel, provide specific instructions as to the manner in which an
employee performs his or her job and to set the hours of work of its personnel. In addition, Seller shall manage all
employment aspects of any assigned personnel including, without limitation, employment based counseling,
terminations, salary reviews, performance evaluations, work schedules, orientation, placement and rotation of
assignments. The parties further acknowledge and agree that any personnel of Seller assigned to Buyer’s account shall
have no rights or entitlements to any of Buyer’s employee benefit plans.
18.
Disputes/Applicable law:
18.1
Any dispute arising out of or in connection with this Contract, including any question regarding its existence, validity or
termination, shall first be submitted to a senior executive dispute resolution process and mediation prior to the institution
of litigation; provided that the settlement negotiation process can be completed within the statute of limitations. Either
party may notify the other party in writing of the nature of the claim or dispute with as much detail as possible about the
alleged deficient performance of the other party (the “Dispute Notice”). Within 14 days after delivery of a Dispute Notice,
a senior executive (a President or Executive Vice President level) of each party shall meet in person or by telephone at
a mutually acceptable time and place in an attempt to resolve the dispute. They shall negotiate in good faith attempting
to reach a resolution satisfactory to both parties. If the senior executives have not resolved the matter, or agree upon
a written plan of corrective action, within 45 days of delivery of a Dispute Notice, or if they fail to meet within 30 days
after delivery of a Dispute Notice, either party may initiate mediation with a mediator and mediation location acceptable
to both parties. All settlement negotiations shall be confidential and will be treated as compromise and settlement
negotiations for purposes of applicable rules of evidence.
18.2
Any dispute arising out of or in connection with this Contract, including any question regarding its existence, validity or
termination, shall exclusively be referred to and finally resolved by the competent courts in Maryland. The governing law
of the Contract shall be the substantive laws of Maryland. The United Nations Convention on Contracts for the
International Sale of Goods shall not apply.
18.3
EACH PARTY IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION BROUGHT TO
ENFORCE THE TERMS OF THE CONTRACT.
18.4
EACH PARTY IRREVOCABLY WAIVES ANY RIGHT TO THE RECOVERY OF ATTORNEY’S FEES EXCEPT AS
PROVIDED IN THE TERMS.
19.
Insurance:
19.1
Seller shall, upon execution of the Contract and throughout the performance of its obligations hereunder, maintain in
effect and shall furnish certificates of insurance upon Buyer’s request evidencing the insurance coverage based on the
amounts and limits as follows: (i) Comprehensive General Liability Insurance including contractual liability coverage
with specific reference to liability assumed herein and including coverage for products liability and completed
operations which includes coverage for bodily injury and property damage with limits of $2,000,000 for each
occurrence, and $4,000,000 in the aggregate; (ii) Comprehensive Automobile Liability Insurance including coverage
for owned, non-owned and hired vehicles with limits of $2,000,000 for each occurrence for bodily injury and death, and
property damage; and (iii) Workmen's Compensation Insurance as required by statute in the specific jurisdiction where
the work is to be performed.
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19.2
Buyer shall ensure that Seller and its subcontractors carrying out the Site Services (if applicable) are covered under
an all-risk insurance policy applicable to the Scope of Work and the Site. Such cover shall be primary and name Seller
as an additional insured. Seller shall be entitled upon request to a copy of the policy in question. The deductible, if
any, shall be at Buyer’s cost.
19.3
Neither Seller nor Buyer will be liable to any insurance company (by way of subrogation or otherwise) for, and Seller
and Buyer each waive and shall each cause their respective insurers to waive, any rights of subrogation or
contribution with respect to, any and all claims covered by insurance. To the extent required by each party’s applicable
insurance policies, each party shall promptly give its insurance company written notice of the waivers contained in this
paragraph and shall cause its insurance policies to be properly endorsed to effectuate the same, if necessary, to
prevent the invalidation of any insurance coverage by reason of the waivers of subrogation. Each party represents
that its current insurance policies allow such waiver.
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ANNEX A
TESTING SERVICES
This Annex A applies where the Scope of Supply includes the testing of Buyer’s materials (the “Materials”) at Seller’s
(or its affiliate’s) facility (the “Testing Services”). The terms and conditions of this Annex B shall supersede any conflicting
provisions in the Terms.
1.
Price Validity. Prices are firm for thirty (30) days from the date of Seller’s offer unless extended in writing by Seller.
2.
Testing Conducted by Seller Affiliates and Export/Import Matters. To the extent that any of Seller’s affiliated
companies are engaged to assist in conducting the Testing Services as a necessary party to complete the testing required by the
Buyer, such Seller affiliated party and its respective employees will be covered by and subject to the terms of the Contract. To the
extent that any Materials are required for any reason to be shipped outside the United States or the Materials are required to be
imported (or re-imported) into the United States, Buyer will be solely responsible for (i) managing all shipping and logistics,
including all making all applicable import and/or export filings in its name, and (ii) complying with all applicable U.S. and applicable
foreign import and export laws related to the shipment, import, export and re-import of the Materials.
3.
Right to Use the Materials. Buyer grants Seller the right to use the Materials solely for the purpose of conducting the
Testing Services.
4.
Indemnification. Seller will defend and indemnify Buyer for any third party claims of bodily injury or death to the extent
they may arise from its and its permitted employees’ (i) negligence or willful misconduct, or (ii) use, storage or disposal of the
Materials in conflict with the terms of the Test Confirmation Letter or with the MSDS information provided by the Buyer to Seller
for the Materials. Buyer will defend and indemnify Seller for any third party claims of bodily injury or death to the extent they may
arise from the Buyer’s and its employees or agents (i) negligence or willful misconduct, (ii) use, storage or disposal of the Materials
by Seller or its permitted employees strictly in accordance with the terms of the Contract and the MSDS information on the
Materials provided by Buyer to Seller, or (iii) failure by Buyer employees to comply with Seller’s health and safety rules while on
Seller’s premises.
Seller will defend and indemnify Buyer for any third party claims that the design, manufacture, or functioning of the test
equipment infringe such third party’s intellectual property rights. Buyer will defend and indemnify Seller for any third party claims
that the Materials or processing of the Materials infringe such third party’s intellectual property rights.
In all cases of either party’s indemnity provided in this paragraph, the party seeking indemnity must promptly notify the
other party in writing of such claim of infringement; the defense of any legal action relating to such claim will be under the direction
and control of the indemnifying party; the indemnified party shall cooperate with the indemnifying party in making such defense;
and the indemnifying party will have complete control of the litigation or proceeding, including the amount of any settlement
(provided the indemnified party has no monetary contribution obligation with regard to such settlement) and the choice in retention
of counsel, and shall bear all expenses of such defense; provided, however, that the indemnified party may be represented in
such action by its own counsel at its own expense
5.
Health and Safety. All employees of Buyer that participate in observing the Testing Services, to the extent permitted
by Seller, must comply with all test specific instructions established by Seller as well as Seller’s health and safety rules. Depending
on the type of testing and the level of participation by the employees of Buyer, each employee may be required to participate in a
health and safety training and may be required to acknowledge their participation in such training in writing prior to such person
being granted access to any Seller testing area.
6.
Disposal of Materials. If the Materials are regulated as hazardous or otherwise regulated or restricted materials by
any governmental agency, Buyer must advise Seller of any such regulations and required actions that must be taken by Seller.
Regardless of the hazardous nature of the Materials, to the extent that any destruction or disposal by Seller is deemed in Seller’s
sole discretion to be unduly burdensome to Seller, Seller may require the Buyer to take all required actions for the proper
destruction or disposal in accordance with all applicable laws and regulations.
7.
Damage to Material. Seller is in no way responsible or liable to the Buyer if in connection with the Testing Services the
Material is damaged, destroyed, transformed, modified, etc. and the Buyer assumes the full risk of this possibility.
8.
Seller Technology. All rights and title in and to Seller’s process equipment and equipment processes, including without
limitation, process and operating parameters applied to Seller’s equipment in connection with the Testing Services, including all
intellectual property rights thereto and therein (collectively, “Seller Technology”), are owned by Seller and at all times remain
Seller’s and nothing in the Contract shall grant Buyer any ownership rights in or to the Seller Technology. Any and all
enhancements, clones, improvements, discoveries, derivatives and modifications, whether or not patentable, related to, arising
out of or dominated by, the Seller Technology that are made, directly or indirectly, by Seller, exclusively or with any other person
or entity, shall be solely, fully and completely owned by Seller.
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01/28/2025
ADDENDUM TO GEA MECHANICAL EQUIPMENT US, INC. SERVICE PROPOSAL
(“Agreement”)
The City of Glendale, Arizona (“City”) and GEA Mechanical Equipment US, Inc. (“Contractor”)
further agree as follows:
I.
Conflicts. Contractor acknowledges this Agreement is subject to A.R.S. § 38-511, which
allows for cancellation of this Agreement in the event any person who is significantly involved in
initiating, negotiating, securing, drafting, or creating the Agreement on City's behalf is also an
employee, agent, or consultant of any other party to this Agreement.
II.
Lack of Appropriations. Nothing in this Agreement guarantees that some or all of the funds
necessary to comply with all of the City’s obligations under this Agreement will be appropriated or
otherwise be available. The City agrees to seek such appropriations in good faith from the City Council
and agrees not to use the lack of appropriation as a substitute for termination for convenience. If
sufficient funds are not appropriated or otherwise available, the City may unilaterally terminate this
Agreement after providing thirty (30) days written notice. In the event the City provides such notice,
the City will not be entitled to a refund or offset of any amounts previously paid but will not pay any
amounts that become due after providing such notice.
III.
E-verify, Records and Audits. To the extent applicable under A.R.S. § 41-4401, the
Contractor warrant their compliance and that of its subcontractor with all federal immigration laws
and regulations that relate to their employees and compliance with the E-verify requirements under
A.R.S. § 23-214(A). The Contractor or subcontractor’s breach of this warranty shall be deemed a
material breach of the Agreement and may result in the termination of the Agreement by the City
under the terms of this Agreement. The City retains the legal right to randomly inspect the papers and
records of the other party to ensure that the other party is complying with the above-mentioned
warranty. The Contractor and subcontractor warrant to keep their respective papers and records open
for random inspection during normal business hours by the other party. The parties shall cooperate
with the City’s random inspections, including granting the inspecting party entry rights onto their
respective properties to perform the random inspections and waiving their respective rights to keep
such papers and records confidential.
IV.
Attestation of PCI Compliance. The Contractor will provide the City annually with a
Payment Card Industry Data Security Standard (PCI DSS) attestation of compliance certificate signed
by an officer of Contractor with oversight responsibility.
V.
No Boycott of Israel. To the extent A.R.S § 35-393 through § 35-393.03 are applicable, the
parties hereby certify that they are not currently engaged in, and agree for the duration of the
Agreement to not engage in, a boycott of goods or services from Israel, as that term is defined in
A.R.S § 35-393.
VI.
Uyghur Forced Labor Prevention Act (UFLPA). Contractor certifies that it does not
currently, and during the term of this Agreement, will not use:
(a)
the forced labor of ethnic Uyghurs in the People’s Republic of China;
(b)
any goods or services produced by the forced labor of ethnic Uyghurs in the People’s
Republic of China; and