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SERVICE AND MAINTENANCE AGREEMENT - D5LLC30CHP CENTRIFUGE AND BELT FILTER PRESS£*N'JRiTL ENVIRONMENT AND PROCESS TECHNOLOGIES D5LLC3OCHP Centrifuge and Belt Filter Press Service & Maintenance Agreement This Service and Maintenance Agreement, dated as of July 1, 2018, between ANDRITZ Separation Inc. (Supplier) having it's principle office at 1010 Commercial Btvd. South, Arlington, Texas 76001 and Citv of Clearwater (Owner) having it's Locations at Marshall Street Facility, and Northeast WRF, in Clearwater. FL. In consideration of the mutual covenants herein contained, Supplier and Owner hereby agree to enter into an extended Preventive Maintenance Agreement for a. This Agreement incorporates the attached Exhibits 1, 2, and 3. Article 1. Scope of Work Centrifuges - Supplier agrees to provide a Factory Technician to conduct preventative maintenance on the Owner's Centrifuge based on the attached Scope of Work (Exhibit 1) and Preventative Maintenance Schedule (Exhibit 2). Belt Presses - Supplier agrees to provide a Factory Technician to conduct inspections on the Owner's Belt Presses based on the attached Scope of Work (Exhibit 1) and Preventative Maintenance Schedule (Exhibit 2). Article 2. Labor, Tools and Supplies Owner is responsible to provide additional labor, as required, and any specialized tools and lubrication fixtures. Owner will make available the use of an overhead crane where required or provide suitable lifting assembly when necessary for lifting components. Article 3. Manufacturer Service Contact Supplier maintains standard business hours of 8:00 AM to 5:00 PM CST. After business hour service is provided 24 hrsiday by dialing 1-817-465-5611. After hours calls are distributed to on-call individuals that will respond via phone to help assess service requirements and ship parts. ANDRITZ will respond, and be onsite within 48-72 hours for emergency services based on the rate of $195.00 per hour. This includes labor, travel, and expenses. Article 4. Service Reports At the completion of each visit, the technician will submit a report covering in detail the recommended repairs, If any additional parts are required and any recommendations or observations that require future service by the Owner. Owner will be responsible to sign and date report acknowledging that he/she understands the service provided and is aware of potential service issues. A formal service report will be supplied to Owner within 10 working days of service. ANDRITZ SEPARATION INO. 1010 Commercial Blvd. South Arlington,Texaa 76001 Page 1 of 11 AWJPNL ENVIRONMENT AND PROCESS TECHNOLOGIES Article 6. Safety Requirements Supplier provides all technicians with basic safety equipment such as steel toe boots, safety glasses, hardhat and gloves. Owner is responsible to provide a safe working area and notify Supplier of any additional safety requirements prior to servicing equipment. If the environment is determined to be unsafe, it is the Owners responsibility to correct prior to any equipment servicing or to provide specialized safety equipment and applicable training. Article 6. Contract Renewal At the expiration of the Agreement, the Owner and Supplier can mutually agree to renew said Agreement. Article 7. Terms and Conditions of Sale The attached (Exhibit 3), Andritz Separation Inc. Terms and Conditions of Sale, shall apply to this Agreement. Article 8. Sales and Use Tax All applicable sales and use taxes are to be paid by the Owner direct to the applicable state tax authority, unless a Tax Exemption Certificate is provided to the Supplier. Article 9. Agreement Offering Belt Presses Belt Press - Supplier offers this Agreement for a lump sum price of $26,860.00 to be paid in two (2) installments of $12,930.00. Payment is due prior to first visit and will initiate contract start date; monthly payment is due 30 calendar days from invoice date. Marshall Street Facility Centrifuge: D5LL - Supplier offers this Agreement for a lump sum price of $63,560.00 to be paid in two (2) installments of $26,775.00. Payment is due prior to first visit and will initiate contract start date; monthly payment is due 30 calendar days from invoice date. Northeast WRF Centrifuge: D5i_L - Supplier offers this Agreement for a lump sum price of $15,762.00 to be paid in two (2) installments of $7,881.00. Payment is due prior to first visit and will initiate contract start date; monthly payment is due 30 calendar days from invoice date. ANDRITZ SEPARATION INC. 1010 Commercial Blvd. South Ariington,Texas 76001 Page 2 of 11 ENVIRONMENT AND PROCESS TECHNOLOGIES Article 10. Entire Agreement ATL This Agreement contains the entire and only agreement between the parties with respect to the subject matter hereof and supersedes all prior oral and written understandings between Owner and Supplier concerning the parts and/or services specified herein, and any prior course of dealings or usage of the trade not expressly incorporated herein. Article 11. Representations Each, the Supplier and Owner, represent and warrant that it has duly authorized the execution and delivery of this agreement; that this agreement as has been executed and delivered by it and that this agreement constitutes its legal, valid and binding obligation enforceable against it in accordance with its terms, IN WITNESS WHEREOF, the parties hereto have duly executed this Service Agreement on the date first above written. Supplier: Andritz Separation Inc. 6/PAK VScc Peef(jDpv% Sigvs c1 S�t,B5 Title: Owner: By Name: Title: ***SEE ATTACHED SIGNATURE PAGE FOR CITY OF CLEARWATER SIGNATURES ANDRJTZ SEPARATION INC. 1010 Commercial Blvd. South Arlington,Texas 76001 Pap 3o(11 Andritz Service & Maintenance Agreement Countersigned: r C,QOItt 4CtAtO$ George N. Cretekos Mayor Approved as to form: C2dt- tc'IC Owen Kohler Assistant City Attorney CITY OF CLEARWATER, FLORIDA By: Attest: ___6:, • iS___Ai William B. Horne II City Manager Rosemarie CaII City Clerk AN)RITL ENVIRONMENT AND PROCESS TECHNOLOGIES EXHIBIT 1 SCOPE OF WORK BY SUPPLIER AND OWNER SUPPLIER - Centrifuges Supplier agrees to provide a Factory Technician to conduct service and preventative maintenance on the supplied Centrifuges. Preventative maintenance is based upon an established level of operating hours and includes scheduled inspections as well as replacement of wear components. This Agreement includes wear parts, lubricants and service for the period specified in the Maintenance Schedule (Exhibit 2). Replacement parts other than the specific wear components listed in the Maintenance Schedule in Exhibit 2 of this Agreement are not included. In addition to the service specified, the Factory Technician will inspect the operation, train operators at a minimum of 2 days, adjust programming and provide system quality control. EQUIPMENT (1) D5LLC3OCHP Centrifuge — Marshall Street Facility • Current run hours on machine is 12,488. Operating hours of this agreement are based on the maintenance schedule (Exhibit 3) for 12,000, 15,000, and 18,000 run hours. (1) D5LLC3OCHP Centrifuge — Northeast WRF • Current run hours on machine is 7,612, after complete rebuild in early 2017. Operating hours of this agreement are based on the maintenance schedule (Exhibit 3) for 15,000, 18,000, and 21,000 run hours. OWNER Owner to provide basic/routine preventive maintenance. Owner to conduct and document at a minimum: • Daily Performance Optimization • Hours of operation • Inspections and checking for Teaks • Daily Operator Checks o Centrifuge operation, vibration, abnormal noise. o Greasing of main bearings every 200 hours. o Beating temperature and noise. o Current consumption of drive motor, o Check torque readings. o Check for grease leaks at cyclo unit o Check product leakage at pillow block. ANDRITZ SEPARATION INC. 1010 Commercial Blvd. South Arffngton,Texas 76001 Pape 4of11 ATL ENVIRONMENT AND PROCESS TECHNOLOGIES EXHIBIT 1 SCOPE OF WORK BY SUPPLIER AND OWNER Owner is responsible for providing the following during services: • Overhead lifting device for removal of the rotating assembly, and or centrate casing, for service when required. • Specialty tools provided with the machine. o Hub extractor o Lifting beam o All thread o Gear box removal tool o Pulley removal tool o Grease Nipple Extender SUPPLIER — Belt Press Supplier agrees to provide a Factory Technician to conduct service and preventative maintenance on the supplied Belt Presses. Preventative maintenance is based upon an established level of operating hours and includes two (2) yearly scheduled inspections. In addition to the service specified, the Factory Technician will inspect the operation, train operators, adjust programming and provide system quality control. EQUIPMENT (3) Belt Presses — Reconditioned Units • This agreement is based on two (2) yearly inspections to include: o Change main drive reducer oil (1yr) o Wear part replacement if needed o Belt changed if damaged o Verify that daily operator inspections have been performed consistently. ANDRITZ SEPARATION INC. 1010 Commercial Blvd. South Arlington,Texas 76001 Page 5 of 11 AWJPJFL ENVIRONMENT AND PROCESS TECHNOLOGIES EXHIBIT 1 SCOPE OF WORK BY SUPPLIER AND OWNER OWNER Owner to provide basic/routine preventive maintenance. Owner to conduct and document at a minimum: • Daily performance optimization • Hours of operation • Daily Operator Inspections o Belts for holes or tears o Doctor blades for wear o Roll coatings for tears o Wedge and wedge setting o Bearings o Belt tracking device o Pneumatic system oiler o Spray wash system, especially nozzles Owner to have the following parts on hand during inspections. Replacement parts Parts Required Belts Top 1 Belt 84 x 455 Bottom 1 Belt 84 x 803 Seals Top & Bottom shower 4 60112583 Gravity Zone (side) 2 60112325 Gravity Zone (end) 1 60112553 Wedge Zone (end) 1 60112554 Grid strips 68 Doctor blades (drive) 2 60114382-A Doctor blades (breast) 1 60114381-A ANDRITZ SEPARATION INC. 1010 Commercial Blvd. South Arlington,Texas 76001 Page 6 of 11 AWJPJ1L ENVIRONMENT AND PROCESS TECHNOLOGIES EXHIBIT 2 MAINTENANCE SCHEDULE The Supplier's certified factory trained technician will conduct maintenance per the below listed intervals. D5LL Centrifuges Frequency Description of Service Parts Provided 12,000 hours (Marshall) Only 15,000 hours (Both sites) 18,000 hrs. (Both sites) 21,000 hours (Northeast) Only Replace Drive and Feed High Speed Bearing Replace Scroll Thrust Bearing Grease for Bearing Replacement Seals Set for 12,000 hour service Replace Eccentric Bearing -Cyclo Reducer Replace Bowl Nozzles Replace Scroll Nozzles Gearbox and Redex lubrication change Copper Seals Belt Replacement Grease Scroll Thrust Bearings Gearbox and Redex lubrication change Copper Seals General inspection Replacement of Drive Belts Grease Scroll Thrust Bearings Gearbox and Redex lubrication change Copper Seals Replace Oil in Lube Unit General Inspection Grease Scroll Thrust Bearings Gearbox and Redex lubrication change Copper Seals General inspection 1 Set of Bearings 1 Set of Bearings 8 Grease Cartridges 1 set of seals 1 Eccentric bearing & seals 8 Nozzles 4 Nozzles 5KG — Energrease & 1 Quart oil 4 Copper Seals Set of 5 Belts 2 Grease Cartridges 5KG — Energrease & 1 Quart oil 4 Copper Washers 1 set of drive belts 5 Grease Cartridges 5KG — Energrease & 1 Quart oil 6 Copper Washers 20 Gallons Oil 2 Grease Cartridges 5KG — Energrease & 1 Quart oil 4 Copper Washers Exclusions: Replacement parts other than the specific wear components listed in the Maintenance Schedule in (Exhibit 2) of this Agreement are not included. Electrical components replacement cost is not Included as part of the service agreement. ANDRITZ technicians will assist in establishing required replacement components, installation and programming as required. ANDRITZ SEPARATION INC. 1010 Commercial Blvd. South Artington,Texas 76001 Page 7 of 11 ENVIRONMENT AND PROCESS TECHNOLOGIES EXHIBIT 3 ANDRITZ SEPARATION INC. STANDARD TERMS & CONDITIONS OF SALE 1. TERMS APPLICABLE This quotation or acknowledgement and Sellers sate of Products and /or provision of Services described in Buyer's purchase order Issued in whole or in part in response t0 this quotation or in response to Which this acknowledgement Is issued are expressly limited t0 and expressly made conditional on. Buyer's acceptance of the Terms and Conditions of Sate andlor Service listed below, which are the exclusive terms and conditions upon which Andn7z Separation Inc. or the applicable Andritz entity supplying the same ("Seller") will accept a purchase order for the sale of new, used and refurbished products, equipment. parts andlor the provision of services ("Products° and "Services"). These Terms and Conditions of Sale andlor Service control, supersede and replace any and all other additional and/or different terms and conditions of Buyer, and Seller hereby objects to and rejects all such terms and conditions of Buyer without further notification, except to the extent Seiler expressly agrees to such conclitions in writing. Salter's commencement of work under the Purchase Order or Buyer's acceptance of delivery of or payment for any Products or Seri ices covered by this Agreement, in whole or In part, shall be deemed Buyers agreernent to the foregoing. The teen "this Agreement" as used herein means this quotation or adrno 4edgmem or Buyer's purchase order, together with any attachment thereto, any documents expressly Incorporated by reference (but excluding any Buyer terms and conditions attached thereto or incorporated therein by reference), and these Terms and Conditions of Sale and/or Service. 2. DELIVERY OR PERFORMANCE Delivery or performance dates are good faith estimates and do not mean that "time is of the essence" Buyer's failure to promptly make advance or interim payments, supply technical information, drawings and approvals will result In a commensurate delay In delivery or performance. Installation of any Product stag not be Seller's responsibility unless specifically provided for in this Agreement. Upon and after delivery, risk of loss or damage to the Products shall be Buyers. Delivery of the Products hereunder will be made on the terms agreed to by the parties as set forth In this Agreement, according to INCOTERMS 2010. 3. WARRANTY (a) Products Warranty. () New Equipment Warranty. in the case of the purchase of new equipment the Seger warrants to Duyer that the new equipment manufactured by it will be delivered free from defects In metertai and workmanship. This warranty shall commence upon delivery of the new equipment to Buyer and shall expire on the earlier to occur of 12 months from initial operation of the new equipment and 18 months from delivery thereof (the 'Warranty Period"), al) Paris and Used or Reconditioned Machinery or Equipment Warranty. In the case of parts or used or reconditioned machinery or equipment, and unless otherwise indicated, Seller warrants to Buyer that the parts or the used or reconditioned machinery or equipment manufactured by It will be delivered free from defects k1 material and workmanetrip. This warenty shall commence upon delivery of the parts or the used or reconditioned machinery or equipment to the buyer and shall expire 8 months from delivery thereof (the Warranty Period"). (ii) If during the Warranty Period Buyer discovers a defect in material or workmanship of a Product and gives Seiler written notice thereof withh 10 days of such discovery, Seller will, 8t its option, either deliver to Buyer, on the same terms es the original delivery was made, according 10 INCOTERMS 2010, a replacement part or repair the defect In place. Any repair or replacement part ?ijnIshed pursuant to this warranty is warranted against defects In malarial and workmanship for one period of 12 monffts from completion of such repair or replacement, with no further extension. Seller will have no warranty obligations for the Products under this Paragraph 3(a): (1) If the Products have not been stored, installed, operated and maintained in accordance vwth generally approved Industry practice and with Sellers specific widen instructions; (ii) if the Products are used in connection with any mhdure or substance or operating condition other than that tor which they were designed; (aii) if Buyer fails to gNe Seller such written 10 day notice; (iv) if the Products are repaired by ANDRITZ SEPARATION INC. 1010 Commercial Blvd. South Arhington,Texaa 76001 someone other thea Seller or have been Intentionally or accidentally damaged; (v) for corrosion, erosion, ordinary wear and tear or in respect of any parts which by their nature are exposed to severe wear and tear or are considered expendable; or (vi) for expenses incurred for work In connection with the removal of the defective articles and reinstallation following repair or replacement. (b) Services Warranty. Seller wan -ants to Buyer that the Services performed will be free from defects In workmanship and will conform to any mutually agreed upon spedfcations_ if any failure to meet this warranty appears within 12 months from the dale of completion of the Services, on the condition that Seller he promptly notified in writing thereof, Seller as Its sole obligation for breach of this warranty vat correct the failure by re-perfomiing any defective portion of the Services furnished. Seller does not warrant the accuracy of, or performance results of, any conclusions or recommendetlons provided, nor that any desired objective will result from the Service provided and Seller shall not be table for any loss of use or any production losses whatsoever. (c) Seller further warrants to Buyer that at delivery, the Products manufactured by It wit be free of any I1ens or encumbrances. If there are any such liens or encumbrances, Seller will cause them to be discharged promptly after notification from Buyer of their existence, (d) THE EXPRESS WARRANTIES SELLER MAKES IN THIS PARAGRAPH 3 ARE THE ONLY WARRANTIES IT WILL MAKE. THERE ARE NO OTHER WARRANTIES, WHETHER STATUTORY, ORAL, EXPRESS OR IMPLIED. iN PARTICULAR, THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. (e) The remedies provided in Paragraphs 3(a). 3(b) and 3(c) are Buyer's exclusive remedy for breech of warranty. (f) With respect to any Product orpart thereof not manufactured by Seller. Seller shalt pass on to Buyer only those warranties made to Seller by the manufacturer of such Product or part which are capable of being so passed on. 4. LIMITATION OF UABIL1TY Notwithstanding any other provision in this Agreement, the following limitations of liability shall appy: (a) In no event, weather based on contract, tort (including negligence), strict liability or otherwise, shalt Seger, its officers, directors, employees, subcontractors. suppliers or aflgiated companies be liable for toss of profits, revenue or business opportunity, Toss by reason of shutdown of facilities or inability to operate any facility at full capacity, or cost of obtaining other means for performing the functions performed by the Products. loss of future contracts. claims of customers, cost of money or loss of use of capital, in each case whether or not foreseeable. or for any indireect, special, incidental or cone quentfat damages of any nature resulting from, arising meet or connected with the Products. Services, or this Agreement or from the performance or breach hereof. (b) The aggregate liability of Seller, its officers, directors, employees, subcontractors, suppliers or affiliated companies, for all claims of any kind for any loss, damage, or expense resulting from, arising oul of or connected with the Products, Services or this Agreement or from the performance or breach hereof, together with the cost of performing make good obligations to pass performance tests,11 applicable, shall in no event exceed the contract price. (c) The limitations and exclusions of liability set forth In this Paragraph 4 shag take precedence over any other provision of this Agreement and shall apply wnether lite clam of llabgity is based on contract warranty. tort (including negligence), strict liability, indemnity, or otherwise. The remedies provided in this Agreement are Buyer's exduaive remedies. (d) Alt liability of Seiler, its officers, directors. emplfyees, subcontractors, suppliers or affiliated companies, resulting from. arising out of or contracted with the Products. Services or this Agreement or from the performance or breach hereof shoal temtinate on the third anniversary of the date of this Agreement. (e) In no event shall Seger be liable for for any loss or damage whatsoever arising from its failure to discover or repair latent defects or defects Inherent in the design of goods serviced Page 80111 (unless such discovery or repair is normally discoverable by tests expressly specified in the scope of work under this Agreement) or caused by the use of goods by the Buyer against the advice of Seller. If Setter fumtshes Buyer with advice or assistance concerning any products or systems that is not required pursuant to this Agreement, the !urnisting of such advice or assistance will not subject Setter to any liability whether in contract. Indemnity. warranty, tort (Including negligence), strict liability or otherwise. 5. CHANGES, DELETIONS AND EXTRA WORK. Seller will not make changes in the Products unless Buyer and Seller have executed a written Change Order for such change. Buyer, without invalideUng this Agreement, may make changes by altering, adding to or deducting from the general scope of the Services by written Change Order. Any such Change Order vIt Include an appropriate adjustment to the contract price end calvary schedule. If the change Impairs Seller's ability to satisfy any of its obligations 10 Buyer, the Change Order will include appropriate modifications to this Agreement, Setter shall be entitled 10 a Change Order adjusting the contract price, delivery schedule and/or any affected obligations of Seller if after the date of this Agreement a change in apprcable.law should require a change M the Products or Services or in the event and to the extent that an ad or omission of Buyer, or any error or change In Buyer -provided IMannation, affects the Selers performance hereunder. 6. TAXES Sellers prices do not include any sales, use, excise or other taxes. In addition to the price specified herein, the amount of any present ar future sales, use, excise of other tax applicable to the sale or use of the Products or Services shag be billed to and paid by Buyer unless Buyer provides to Seiler a lax -exemption certificate acceptable to the relevant taxing authorities. 7. SECURITY INTEREST Seller shall retain a purchase money security interest and Buyer hereby grants Seller a len upon and security interest In the Products until all payments hereunder have been made in full. Buyer acknowledges that Seger may file a financing statement or comparable document as required by applicable taw and may lake all other action 0 deems reasonably necessary to perfect and malmaln such security interest in Seller and to protect Seller's interest in the Products. 8, SET OFF Neither Buyer nor any of lis afflllates shall have any light to set off claims against Seller or any of its affiliates for amounts owed under this Agreement or otherwise. 9. PATENTS Unless the Products or any part thereof are designed to Buyers specifications and provided the Product or any part thereof is not used in any manner other than as specified or approved by Seller In writing, () Seller shat defend against claims made in'a suit or proceeding brought against Buyer by an unaffiliated third party that any Product Infringes a device claim of a United States or Canadian patent issued as of the effective date of this Agreement and limited to the field of the specific Products provided under this Agreement; provided Seller is notified promptly in wrflhg and given the necessary authority, lrtfonmation and assistance for the defense of such claims: (le) Seller shall satsty any judgment (after all appeals) for damages entered against Buyer on such claims so long se such damages are not attributable to wilful conduct or sanctioned litigation conduct; and Oily If such judgment enjoins Buyer from using any Product or a pail thereof, then Seller wit. al its option: (e) obtain for Buyer the tight to continue using such Product or part; (b) eliminate the Infringement by replacing or modifying al or part of the Products; or (c) take beck such Product or part and refund to Buyer at payrnents on the purchase price that Seller has received for such Product or part. The foregoing slates Seller's entire lability for patent infringement by any Product or part thereof. 10. SOFTWARE LICENSE, WARRANTY, FEES The following Software Terms and Conditions apply to any embedded or separately Packaged software Produced by Seller and furnished by Seller hereunder: (a) Seller hereby grants to Buyer a non-exclusive, non -transferable, non sub -licensable license to the Software, and any modifications made by Seller thereto only in connection with conitguration of the Products and operating system for which the Software is ordered hereunder, and for the end-use purpose stated in the related Serer operating documentation. Buyer agrees that neither it nor any third party shall melon, reverse engineer. decomple or reproduce the Software, except Buyer may create a single copy for backup or archival purposes in accordance with the misted Seller operating documentation (the "Copy'). Buyer's license to use AlkDRITL Separation the Software and the Copy of such Soltvware shall terminate upon any breach of this Agreement by Buyer. At copies of the Software, Including the Copy. are the properly of Seller, and at copies for which the acensa is terminated shall be returned to Seiler with written confirmation after termination. (b) Seller warrants that, on the date of shipment of the Software or the Products containing the Software to Buyer: (1) the Software media contain a true and correct copy of the Software and are free from material defects; (2) Seger has the right to grant the license hereunder; and (3) the Software MI function substantially in accordance with the related Seiler operating documentation. (c) If wgNn 12 months from the date of delivery of the Software or Products containing the Software. Buyer discovers that the Software Is not as warranted above and notifies Seller in writing prtor to the end of such 12 month period, and If Seller determines that it cannot or will not correct the nonconfomhlty, Buyer's and Buyer's Seller -authorized transferee's exclusive remedies, at Seller's option, are: (1) replacement of the nonconforming Software; or (2) termination 01 this license and a refund of a pro rata share of the contract price or license fee paid. (d) If any infringement claims are made against Buyers out of Buyers use of the Software Ina manner specified by Seller, shall: (1) defend against any claim Ina suit or proceeding brought by an unaffiliated third party against Buyer that the Software violates a registered copyright or a confidentiality agreement to which Seller was a party, provided that Seller is notified promptly in %wiling and given the necessary authority. Information and assistance for the defense and settlement of such chasms (including the sole authority to select counsel and remove the Software or stop accused infringing usage); (ii) Seller shall satisfy a final judgment (after all appeals) for damages entered against Buyer for soca Claims, so long as such damages are not attributable to willful conduct orsandloned litigation Conduce and (Pi) it such judgment enjoins Buyer from using the Software, Seiler may at its option: (a) obtain for Buyer the right to continue using such Software; (b) eliminate the infringement by replacing or modifying the Software, or (c) take back such Software and refund to Buyer alt payments on the purchase price that Seller has received. However, Selers obligations under this Paragraph 10 shall not apply to the extent that the claim or adverse final judgment relates to: (1) Buyer's running of the Software after being noticed 10 discontinue; (2) non -Seller software. products. data or processes: (3) Buyer's alteration of the Software; (4) Buyers distribution of the Software to, or its Use for the benefit of, any third party; or (5) Buyers acquisition of confidential information (e) through improper means; (b) under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (c) from a third party who owed to the party asserting the claim a duty to maintain the secrecy or limit tate use oI the confidential Information. Buyer will reimburse Sete for any costs or damages that result from actions 1 to 5. In Sellers discretion and at Sellers own expense, with regard to any actual or perceived infringement claim related to the Software, Seller may: (i) procure the right to use the Software, (I) replace the Software with a functional equivalent. anror (111) modify the Software_ Under (ii) and (iii) above, Buyer shell immediately stop use of the allegedly infringing Software. (e) This warranty set forth In subparagraph (c) above shall only appy when: (1) the Software Is not modified by anyone other than Seller or its agents authorized in writing; (2) there is no modllicatlon to the Products in which the Software is installed by anyone other than Seller or its agents authorized in writing; (3) the Products are in good operating order and instated in a suitable operating environment; (4) the nonconformity is not caused by Buyer or a third party; (5) Buyer promptly notifies Seller In writing, within the period of time set forth In subparagraph (c) above, of the nonconformity; and (6) all fees for the Software due to Seiler have been timely paid. SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE SOFTWARE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, Fti'NESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING AND USAGE OF TRADE. (f) Buyer and tis successors are limited to the remedies specified in this Paragraph 10. (g) Any subsequent modifications or enhancements to the Software made by Seller are. at Sellers option, subject to a fee. 11. SITE RISKS (a) Concealed Conditions. The parties acknowledge and agree that increased costs or schedule extensions due to any concealed conditions at the job site shall be to Buyer's account. Buyer shall hold Seiler harmless tor lncxeased costs and grant any necessary schedule extensions If any concealed or hazardous conditions are found • (b) Environmental Remediation. Buyer acknowledges that Seller is not an expert in environmental remediation and shall not be directed by change order or otherwise to perfom any environmental remediation as part of the Services, including but not limited to asbestos and lead paint removal. If any environmental remediation becomes necessary. Buyer will contract directly with a quahliied third party to perform such work_ 12. TERMINATION (a) Buyer may terminate this Agreement upon breach by Seller of a material obligation hereunder and Seller's failure to cure, or to commence a cure of, such breach within a reasonable period of time (but not less than 30 days) folio sing written receipt of notice of the same from Buyer. (b) Buyer may only terminate this Agreement far Buyer's convenience upon written notice to Seller and upon payment to Seller of Seller's termination charges, which shall be specified to Buyer and shall take into account among other things expenses (direct and indirect) incurred and commitments already made by Seller and an appropriate prole; provided, that in no event shall Seller's tenninelkm charges betels than 25% of the contract price. (c) Seller shall have the right to suspend endfor terminate its obligations under this Agreement if payment is not received within 30 days of due date. In the event of the bankruptcy or insolvency of Buyer or in the event of any bankruptcy or insolvency proceeding brought by or against Buyer. Seger shag be entitled to terminate any order outstanceres at any time during the period allowed for filing claims against tie estate end shall receive reimbursement for Its cancellation charges. 13. CONFIDENTIAUTY Buyer acknowledges that the informatidn that Seller submits to Buyer in connection with its Agreement and the performance hereof includes Sellers confidential and proprietary information, both of a technical and commercial nature. Buyer agrees not to disclose such irtfomhation to third parties without Sellers prior written consent. Seller grants to Buyer a non- exclusive, royalty -free, perpetual. non-transferrable license to use Setters confidential and proprietary information for the purpose of the installation, operation, maintenance end repair of the Produces that ere the subject hereof only. Buyer further agrees not to. and not to permit arty third party to. analyze, measure the properties of. or otherwise reverse engineer the Products, fabricate the Products or any parts thereof iron Setters drawings or to use eta drawings otter than in connection with this Agreement Buyer will defend and indemnify Seem from any claim, suit or liability based on personal injury (including death) or property damage related to any Product or part thereof which is fabricated by a third party without Seller's prior written consent and from end against related costs, charges and expenses (including attorneys' fees). AN copies of Seller's confidential and proprietary information shall remain Sellers property and may be reclaimed by Seller al any tine in the event Buyer Is in breach of Its obligations under this Paragraph 13. le. END USER trBuyer is not the end user of the Products sold hereunder (the "End User"). then Buyer will use Its best efforts to obtain the End User's written consent to be bound to Seiler by the provisions hereof. If Buyer does nal obtain such End Users consent. Buyer shell defend and indemnify Seller and Sellers agents, employees, subcontractors and suppliers from any action. liability. cost, loss. or expense for Which Sailer would not have been liable or from which Seiler would have been indemnified if Buyer had obtained such End User's consent. 15. FORCE MAJEURE (a) Force Majeure Defined. For the purpose of this Agreement -Force Majeure" 011 mean all events, whether or not foreseeable, beyond the reasonable control of either party which affect the performance of this Agreement, including, without IknitaUon, acts of God, acts or advisories of governmental or quasi-govemmental authorities. laws or regulations, strikes, lockouts or other induablal disturbances. acts of public enemy, wars, insurrections, dots, epidemics, pandemics, outbreaks of infectious disease or other threats to pubic health, lightning, earthquakes, fires, storms, severe weather, goods. sabotage, delays In transporatixh, rejection of main forgings and castings, lack of available shipping by land, sea or air, lack of dock lighter age or loading or unloading Wales. Inability to obtain labor or materiels from usual sources. serious accidents involving the work of suppliers or sub -suppliers. thefts and explosions. (b) Suspension of Obligations. If either Buyer or Seller is unable to carry out hs obligations under this Agreement due to Force Majeure, other than the obligation to make payments due hereunder, and the party affected promptly rouges the other of such delay, then all obligations that are affected by Force Majeure well be Suspended or reduced for the period of Force Majeure and for such additional time as is required to resume the t1 TL Separation performance of its obligations. and the delivery schedule will be adjusted to account for the detay. (c) Option to Terminate. If the period of suspension or reduction of operations will extend for more than four (4) consecutive months or periods of suspension or reduction total more than 6 months In any 12 month period, then either Buyer or Setter may terminate this Agreement. (d) Strikes On -Site. Notwithstanding anything herein to the contrary, in the event a strike, lockout, labor, union or other Industrial disturbance at Buyer's site affects. delays, disrupts or prevents Setters performance of this Agreement, Seller shall be entitled to a Change Order containing an appropriate adjustment In the contract price and delivery schedule. 16. INDEMNIFICATIOi4 AND INSURANCE (a) Indemnification. Seller agrees to defend and indemnify Buyer from and against any third -party claim far bodily Injury or damage to tangible properly ('Loss"? arising in connection with the Products or the Services provided by Seller hereunder, but only to the extent such Loss has been caused by the negligence, wilful misconduct or other legal fault (`Fault"} of Seller. Buyer shall promptly lender the defense of any such third -ply chain to Setter. Seller shall be entitled to control the defense and resolution of such claim, provided that Buyer shall be entitled to be represented in the matter by counsel of Its choosing at Buyers sole expense. Where such Loss results from the Fault of both Seger and Buyer or a third party, then Settees defense and Indemnity obllgatlon shall be )tnneed to the proportion of the Loss that Sellers Fault bears to the total Fault. (b) Insurance. Seger shag maintain commercial general Nobility insurance with limits of $2.000.000 per occurrence and in the aggregate covering Balms for bodily injury (including death) and physical property damage arising out of the Products or Services. Seiler chap also provide workers' compensation insurance or tie like as required by the taws of the Jurisdiction where the Services will be performed. and owned and inn- ovated auto liability Insurance with limits of S1,000,000 combined single gmg. Slifer wig provide a Certificate of Insurance certifying the existence of such coverages upon request. 17, GENERAL (e) Seller represents that any Products or pacts thereof manufactured by Seller will be produced in compliance with all appecable federal, state said local laws applicable to their manufacture and in accordance with Sellers engineering standards. Seiler shall not be liable for failure of the Products to comply with any other speclfiratlons, standards, laws re regulations. (b) This Agreement shag inure only to the benefit of Buyer and Seger and their respective successors and assigns. Any assignment of this Agreement or any of the rights or obligations hereunder, by either patty without the written consent of the other party shag be void. (c) This Agreement contains the entire and only agreement between the Parties ugh respect to the subject matter hereof and supersedes all prior oral and written understandings between Buyer and Seller concerning the Products, Services end any prior course of dealings or usage of the trade not expressly incorporated herein. (d) This Agreement may be modified, supplemented or amended only by a writing signed by an authorizac representath►e of Seller. Setters waiver of any breach by Buyer of any terms of Ibis Agreement must also be In writing and any waiver by Seller or failure by Saler 10 enforce any of the terms and conditions of this Agreement at any Urns, shall not affect, limn or waive Sellers right thereafter to enforce and compel strict compliance with every term and condition hereof. (e) Alt terms of This Agreement which by their nature should apply after the cancellation. completion or termination of this Agreement shall survive and remain fully enforceable after any cancellation, completion or termination hereof, (f)(l) If Seller's office is located In the United States, this Agreement and the performance hereof wig be governed by and construed according to the laws of Ute Stets of Georgia (11) If Sellers office is located in Canada, this Agreement and the performance hereof wgi be governed by and construed according to the laws of the Province of New Brunswick. (g) (I) in the circumstances of 1(1) above, any controversy or claim arising out of or relating to this Agreement. or the breach hereof, or to the Products or the Services provided pursuant hereto, shag be definitively settled by arbttratlon. to the exclusion of courts of law, adminlstered by the American Arbitration Association rAAA•) in accordance with 11s Construction Industry Arbitration Rules in force at the time thls Agreement is signed and Io which the parties declare they wig adhere (the "AAA Rulese, end judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction over the party against whom entorcemenl Is sought or having jurisdiction over any of such party's assets. The arbitration shag be conducted in Atlanta. Georgia by a panel AMR Sepa ration of three members. ane of whom will be appointed by each of Buyer and Seiler and the third of whom vel be the chairman of the panel and will be appointed by mutual agreement of the two party appointed arbitrators. All arbitrators must be persons who are not employees, agents, or former employees or agents of either party. In the event of failure of the two party appointed arbitrators to agree within 45 days after submission of the dispute to arbkration upon the appointment of the third arbitrator, the thind arbitrator will be appointed by the AAA In accordance with the AAA Rules. In the event that either of Buyer or Seller fails to appoint an arbitrator within 30 days atter submission of the dispute to arbitration, such arbitrator, as well as the third arbitrator, will be appointed by the MA In accordance with the AAA Rules. (11) In the circumstances of 1(1) above. any controversy or -claim arising out of or relating to this Agreement, or the breach hereof, or to the Products or the Services provided pursuant hereto. shall be de(indlvely settled under the auspices of the Canadian Commercial Arbitration Centre ("CCAC'). by means of arbitration and to the exclusion of courts of law, in accordance with its General Commercial Arbitration Rules In force at the time the Agreement is signed and to which the parties declare they wilt adhere (the "CCAC Rules"). and Judgment on the award rendered by the arbttrator(a) may be entered In any court having jurisdiction over the party against whom enforcement Is sought or having Jurisdiction over any of such party's assets. The arbitration shall be conoucted in Saint John. New Brunswick by a panel' of three arbitrators, one of whom will be appointed by each of Buyer and Seller and the third of whom will be the chairman of the arbitral tribunal and will be appointed by mutual agreement of the two party - appointed arbitrators. MI arbitrators must be persons who are not employees, agents, or former employees or agents of either party. In the event of failure of the two party -appointed arbitrators to agree within 45 days after submission of the dispute to.arbitration upon the appointment of the third arbitrator, the third arbitrator w41 be appointed by the CCAC In accordance with the CCAC Rules. In the event ihel either of Buyer Of Seller fails to appoint an arbitrator within 30 days after submission of the dispute to arbitration, such arbitrator, as well as the third arbftralor, will be appointed by the CCAC in accordance with the CCAC Rules. (h) In the event this Agreement pertains to the sale of any goods outside the United States or Canada, the pasties agree that the United flagons Convention for the International Sale of Goods shall not apply to this Agreement. (1)The parties hereto have required that this Agreement be drawn up in English. Les parties aux presentee ort exige que le presente convention soit redigae en angtals