|
Supply Agreement — Terms and Condtions
<br />operation of the Products and for taking all appropriate action to warn and protect such individuals after Products are delivered and installed
<br />at Buyer's location.
<br />F. THIS WARRANTY IS MADE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE
<br />IMPLIED WARRANTY OF MERCHANTABILITY, THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ANY
<br />IMPLIED WARRANTY ARISING OUT OF A COURSE OF DEALING OR OF PERFORMANCE, CUSTOM OR USAGE OF TRADE, EXCEPT
<br />OF TITLE AND AGAINST PATENT INFRINGEMENT. BGE SHALL NOT BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, OR
<br />PUNITIVE DAMAGES. BGE'S SOLE LIABILITY AND BUYER'S SOLE REMEDY FOR ANY DAMAGES, INCLUDING DAMAGE TO OR
<br />FAILURE OF THE PRODUCT, SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF THE PRODUCTS OR ANY DEFECTIVE
<br />COMPONENT PART OR INSTRUMENT. IN NO EVENT SHALL BGE'S TOTAL CUMULATIVE LIABILITY FOR ALL CLAIMS FOR
<br />BREACH OF ANY WARRANTY SET FORTH HEREIN EXCEED THE TOTAL PURCHASE PRICE SET FORTH IN EXHIBIT A. THE
<br />LIMITATIONS CONTAINED IN THIS SECTION SHALL APPLY REGARDLESS OF WHETEHR THE CLAIM FOR DAMAGES IS BASED
<br />ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT OR OTHERWISE, AND SHALL APPLY EVEN WHERE SUCH DAMAGE
<br />IS CAUSED IN WHOLE OR IN PART BY THE NGEGLIGENCE, GROSS NEGLIGENCE, ACT OR OMISSIONS OF THE PARTY CLAIMING
<br />DAMAGES OR THE PARTY FROM WHOM DAMAGES ARE SOUGHT.
<br />VII. Excuse of Performance. BGE shall not be liable for any nonperformance, default, or delay caused directly or indirectly by acts of God; acts,
<br />omissions or errors of Buyer; war; fire; flood; virus; plague; pandemic; epidemic; weather; sabotage; war, riot; civil commotion or unrest; strikes; lock-
<br />outs; slowdowns; picketing; labor shortage; supply chain interruption; inability to obtain materials, equipment, parts, supplies or other materials from
<br />regular sources; other labor controversies; accidents, shortages, or delays by carriers; action, request, regulation or order of any government or
<br />governmental authority; or any other similar happening, contingency, or event beyond the reasonable control of BGE or fabricator and/or through no
<br />fault of BGE or fabricator. Delivery or other performance may be cancelled or suspended by BGE or fabricator upon reasonable written notice provided
<br />to Buyer in the event of any of the foregoing. To the extent that BGE or fabricator determine that the ability to obtain materials, parts, components or
<br />equipment essential to completion of the Products described in Exhibit A is limited, hindered or rendered impracticable as a result of the causes set
<br />forth herein, commercially reasonable efforts shall be utilized to find suitable substitute or replacement or otherwise equitably allocate supply on hand
<br />among purchasers of similar products utilizing the same materials, parts, components or instruments to the extent such allocation is practicable without
<br />exposing BGE or fabricator to any liability to any such third party. However, the inability of BGE or fabricator to obtain such suitable substitute or
<br />replacement material, part, component or instrument or otherwise equitably allocate supply on hand of the same, shall not be considered a breach of
<br />this Agreement by fabricator or BGE and any such failure of performance resulting therefrom shall be considered excused by the express terms set
<br />forth herein. Buyer expressly understands and agrees that the pricing and rates of some commodities and materials, such as, without limitation, steel
<br />pipe, may increase due to supply chain disruptions and shortages resulting in daily fluctuations of market price. Buyer hereby agrees to pay actual
<br />market price paid by BGE for any such commodities and materials utilized in the fabrication of the products described in Exhibit A.
<br />VIII. Cancellation, Termination, and Amendment of Purchase Order. The Buyer may, in whole or in part, request changes, additions or
<br />amendment of any Purchase Order submitted to BGE by providing seven (7) days' notice to BGE of such requested change, addition or amendment
<br />provided that the same is consistent with the drawings attached as Exhibit B. If the requested changes, additions, or amendments are acceptable, BGE
<br />may revise quoted pricing or estimated lead time commensurate with such changes, additions or amendments.
<br />In the event of a material breach of this Agreement by BGE, Buyer may terminate or cancel this agreement only if BGE fails to cure said material breach
<br />within a reasonable time of receiving written notice from Buyer describing the material breach in question. In the event that Buyer fails to pay the quoted
<br />price set forth in Exhibit C as agreed in accordance with the terms of this Agreement, BGE may elect to terminate or cancel this Agreement unless
<br />Buyer cures the breach of its obligations to pay within five (5) days of its receipt of written notice from BGE concerning the same. Buyer agrees to pay
<br />all costs including the pro rata purchase price set forth below along with the non-refundable actual cost of any component, instrument or equipment
<br />ordered by BGE or fabricator for inclusion on the Product as of the date of termination.
<br />In the event of termination or cancellation by Buyer after acceptance but before placement of any orders for components, instruments or equipment by
<br />fabricator or BGE with any third -party vendors or suppliers, Buyer shall pay all costs incurred by BGE plusl0% of the total purchase price.
<br />In the event of termination by Buyer after BGE or fabricator has placed orders for any components, instruments, or equipment with any third -party
<br />vendor or supplier but before commencement of assembly or fabrication, Buyer shall pay up to 50% of the total purchase price at the election of BGE.
<br />In the event of termination after commencement of fabrication or assembly, Buyer shall pay up to 90% of the total purchase price. Buyer shall arrange
<br />to take possession of the Products without the benefit of any warranty set forth in this agreement, and shall have the products delivered and shipped
<br />from fabricator's location to Buyer's location at Buyer's expense as -is and with all then existing defects.
<br />In the event of termination after completion of assembly and fabrication, Buyer shall pay 100% of the total purchase price. Buyer shall arrange to take
<br />possession of the Products without the benefit of any warranty set forth in this agreement and shall have the products delivered and shipped from
<br />fabricator's location to Buyer's location at Buyer's expense as -is and with all then existing defects.
<br />IX. Delivery of Products/Shipping/Risk of Loss. BGE shall deliver the completed Products and tender possession to Buyer at fabricator's
<br />location (the Delivery Point) within five (5) days' of BGE's receipt of notice of completion of assembly and fabrication from fabricator. BGE assumes no
<br />responsibility for the Products, and all risk of damage, loss, or delay of the Products, until such time as the Products are tendered at the Delivery Point
<br />shall pass to the Buyer as fabrication and assembly progresses in accordance with section X above. Buyer shall arrange for inspection, shipping and
<br />delivery of the Products to Buyer's location and all cost of shipment and delivery shall be borne by Buyer unless otherwise agreed in writing by BGE.
<br />Buyer shall also notify BGE and fabricator of the identity of shipping carrier and anticipated date of pick up or transfer to carrier within five (5) days of
<br />acceptance of Products for delivery following inspection or waiver of inspection as set forth above.
<br />X. Pricing. BGE shall supply the Products to the Buyer at the prices specified, quoted and accepted in Exhibit C, attached hereto and made a
<br />part hereof (hereinafter "Purchase Price") subject to the limitations set forth in section VIII above. With the exception of taxes (state or Federal), the
<br />Purchase Price of each Product includes acquisition, assembly, and fabrication of all component parts and instruments, all applicable taxes, customs
<br />duties, export duties, or similar tariffs or fees that BGE may be required to pay or collect in connection with the performance of its obligations under, or
<br />in furtherance of, this Agreement, and all packaging required for transfer of Products to shipping carrier selected by Buyer. The Buyer will not be charged
<br />for insurance or storage of the Products unless otherwise agreed or absent failure of Buyer to arrange for inspection, shipment and delivery as set forth
<br />in section X above.
<br />XI. Payment Terms. Buyer shall remit, per the Florida Local Government Prompt Payment Act, payment of the quoted and accepted Purchase
<br />Price set forth in Exhibit C to BGE, at the addresses listed in Section XVI hereto in accordance with the following schedule:
<br />15% upon acceptance of the price quote attached in Exhibit C — Net 30;
<br />30% upon approval of drawings attached in Exhibit B — Net 30;
<br />35% upon receipt of the major equipment — Net 30;
<br />10% upon notice of commencement of fabrication and assembly — Net 30;
<br />5% upon inspection and acceptance for shipment and delivery — Net 30.
<br />2
<br />
|