HomeMy WebLinkAbout2013-138 Ito ( ,Zia
Remedy Agreement A0
Between Indian River County Utilities (IRCU)
and Elster AMCO Water, LLC (Elster)
Elster agrees to provide IRCU with 189 evoQ4 meters consisting of 186 two inch meters, 2 three
inch meters and 1 four inch meter in accordance with the following schedule .
72 new meters by August 1 , 2013
72 new meters by August 15 , 2013
45 new meters by August 31 , 2013
Elster will supply the new meters using the change to the manufacturing process that will address
the carbon heat tinting in the weld zones of the 304 stainless steel body components. IRCU will
detach the sacrificial anodes from the existing meters, remove the existing meters, attach the
sacrificial anodes to the new meters per the Elster supplied instructions, and install the new
meters . Barring unforeseen events, weather issues, etc . , IRCU anticipates that it will be able to
install the new meters over a period of approximately 30 days . During the sacrificial anodes
installation process, Elster will periodically inspect IRCU ' s installation of the sacrificial anodes.
Unless Elster notifies IRCU of sacrificial anodes installation defects in writing within ten
business days of an inspection, it shall not be a defense to any warranty claims thereafter that the
sacrificial anodes were initially installed incorrectly. If Elster notifies IRCU of any installation
defects, IRCU shall have the option of correcting the alleged installation defect, and Elster shall
have the option of inspecting the corrective work. If IRCU performs the corrective work, it shall
notify Elster of such fact in writing . Unless Elster notifies IRCU of defects in the corrective
work in writing within ten business days after receipt of such notice, the initial installation of the
sacrificial anode shall be deemed to be correct. Both parties shall exercise good faith in the
implementation of this process .
IRCU agrees to install the new meters with insulating bolts furnished by Elster.
Elster agrees to equip the 189 new meters with the evoQ4 encoder modules .
IRCU agrees to purchase the 189 encoder modules at Elster' s cost of $202 . 00/ module and the
following will apply .
• IRCU will pay half of the total cost for the modules 60 days after the first new meter is
installed. This equates to a $ 19,089 initial payment . 11
• IRCU will pay the remaining $ 19,089 on the twelve month anniversary date of the last
meter installation provided that no more than three meters do not conform to applicable
warranties prior to the twelve month anniversary date of the last meter installation, due to
a breach of the standard meter warranty terms set forth in and attached hereto as Exhibit
A ("Meter Warranty") . If four or more meters do not conform to applicable warranties
during such time period due to a breach of the Meter Warranty, IRCU will have no
obligation to pay the remaining $ 19,089 .
• Elster' s General Terms and Conditions attached hereto as Exhibit B shall apply to all
products furnished by Elster hereunder and such terms shall be supplemented by the
Elster Meter Warranty with respect the meters (including the batteries in the meters) .
Elster shall not be responsible for any additional warranties given by third parties;
provided, however, that nothing herein shall waive, modify or otherwise adversely affect
IRCU ' s rights or remedies under such third party warranties.
• IRCU hereby releases Elster from any liabilities, claims or actions it had, has, or may
have relating to the Elster products provided prior to the date hereof; provided, however,
that this release shall become effective only upon Elster' s provision of the meters as
contemplated above. Nothing herein shall prevent or prohibit IRCU from seeking to
enforce the terms of this agreement.
• Elster will supply IRCU with three "spare" meters free of charge to be used for parts or to
temporarily replace meters sent back to Elster for warranty repairs or replacement.
• If any terms hereof are stricken by any court of competent jurisdiction, the remaining
terms shall remain and govern.
IN WITNESS WHEREOF, the parties hereto have executed this Remedy Agreement as
of July 15 , 2013 .
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1
BOARD OF COUNTY COMMISSIONERS
Elster AMCO Water, LLC , OF INDIAN RIVER COUNTY
By: By
Jamie Allan Joseph E . Flescher, Chairman
President, s er CO Water LLC BCC Approved - July 161P 2013
tlptlpppp4pppg°4° Attest : Jeffrey R. Smith, Clerk of Court and _
•,J�j(� COMMS� Sj�A°-4tl Comptroller
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�• ,p ' • o,.•° Deputy Clerk
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Approved :
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J h A. Baird, County Administrator
Approved as to form and legal sufficiency :
Dylan T. Reingold, County Attorney
EXHIBIT ` A
Standard Utility Guarantee for evoQ4 Electromagnetic Water Meters
( Potable Water Applications )
Scope of Guarantee
This guarantee applies to. Elster AMCO Water, Inc. evoQ4 Electromagnetic Water Meters, shipped after April 1, 2008, when
used in potable water under 120°F (500C), in ambient temperatures not to exceed an average of 86° F (300C), and in
accordance with Elster AMCO's published Technical Specifications. This guarantee applies exclusively to the original utility
purchaser when product is purchased from either Elster AMCO or an Elster AMCO-authorized distributor ("Business Partner I.
Materials and Workmanship
If used and installed as described above, Elster AMCO guarantees product covered by this guarantee to be free from defects
in materials and workmanship for a period of 5 years after shipment by Elster AMCO or its authorized Business Partner,
Claims
Any meter or register covered by this guarantee that fails to meet the terms of the stated guarantee will be repaired or
replaced, at the option of Elster AMCO, without additional charge to the customer. The customer is responsible for removing
the meter or register from service, returning it to the factory service center designated by Elster AMCO, providing a written or
electronic (facsimile or e-mail) claim notice, and for freight costs to and from the service center. Customer is also responsible
for reinstalling repaired or replaced product.
Limits of Liability
This guarantee does not apply to meters or registers damaged by aggressive water conditions, foreign matter in water,
vandalism, negligence, installation not in accordance with Elster AMCO's installation instructions, mis-application or other use
not as described above, acts of God or other conditions beyond the control of Elster AMCO. If a meter is claimed to breach the
accuracy guarantees as stated herein, the customer shall submit a certified copy of the test results at the time the meter is
returned to Elster AMCO. The guarantees as to accuracy shall be void if an examination of the customer's water supply
shows an unusually adverse effect on metering equipment.
Any description of product, whether in writing or made orally by Elster AMCO or its agents, specifications, samples, literature,
models, bulletins, drawings, diagrams, engineering sheets or similar materials used in connection with any customer's order
are for the sole purpose of identifying product and shall not be construed as an express or implied guarantee. Any
suggestions by Elster AMCO or its agents regarding use, application or suitability of product shall not be construed as an
express or implied guarantee unless confirmed to be such in writing by Elster AMCO.
The laws of the State of Florida, excluding its conflicts of law rules shall exclusively govern this guarantee. If any provision
hereof, partly or completely, shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other
provision or portion hereof and these terms shall be construed as if such invalid or unenforceable provision or portion thereof
had never existed .
THE FOREGOING EXPRESS GUARANTEE IS IN LIEU OF ALL OTHER GUARANTEES OR WARRANTIES WHATSOEVER, WHETHER
EXPRESS, IMPLIED OR STATUTORY (EXCEPT FOR WARRANTY OF TITLE), INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,
CUSTOMER'S EXCLUSIVE REMEDY AND ELSTER AMCO'S AND ITS BUSINESS PARTNERS' SOLE LIABILITY ON ANY CLAIM, WHETHER
IN TORT (INCLUDING STRICT LIABILITY), NEGLIGENCE, CONTRACT, WARRANTY OR OTHERWISE, FOR ANY METER OR REGISTER
WHICH FAILS TO MEET THE TERMS OF THE GUARANTEE STATED ABOVE, SHALL BE LIMITED TO REPAIR OR REPLACEMENT AS
DESCRIBED ABOVE, IN NO EVENT SHALL ELSTER AMCO AND/OR ITS BUSINESS PARTNERS BE LIABLE FOR INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR REVENUE, LOSS OF USE, COST
OF CAPITAL, COST OF SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME COSTS, DELAYS AND CLAIMS OF
CUSTOMERS OF THE CUSTOMER OR OTHER THIRD PARTIES.
Elster AMCO Water, Inc. 0��•
PO Box 1852 • • ®� •
Ocala, Florida 34478-1852 ��Q•ra .
® 2008 Elster AMCO Water, Inc. All rights reserved. ��•
evoO AUG/08-08 elste
EXHIBIT B Elster AMCO Water LLC
General Terms and Conditions of Sale
Page 1 of 6
1 . General . The terms and conditions contained herein , together with any additional or different
terms
contained in Elster AMCO Water LLC 's " Proposal", if any, submitted to Purchaser (which Proposal shall control
over any conflicting terms) , constitute the entire agreement (the "Agreement" ) between the parties
with
respect to the order and supersede all prior communications and agreements regarding the order. Acceptance
by Elster AMCO Water LLC of the order, or Purchaser' s acceptance of Elster AMCO Water LLC 's Proposal , is
expressly limited to and conditioned upon Purchaser' s acceptance of these terms and conditions, payment
for or acceptance of any performance by Elster AMCO Water LLC being acceptance . These terms and conditions
may not be changed or superseded by any different or additional terms and conditions proposed by
Purchaser to which terms Elster AMCO Water LLC hereby objects . Unless the context otherwise requires, the
term " Equipment" as used herein means all of the equipment, parts, accessories sold , and all software and
software documentation , if any , licensed to Purchaser by Elster AMCO Water LLC ( " Software " ) under the
order . Unless the context otherwise requires, the term " Services " as used herein means all labor,
supervisory, technical and engineering, Installation , repair, consulting or other services provided by Elster
AMCO Water LLC under the order . As used herein , the term " Purchaser" shall include the initial end use
of
the Equipment and/or services ; provided, however, that Paragraph 13 (a ) shall apply exclusively to the initial
end user.
2 . Prices .
(a) Unless otherwise specified in writing , all Proposals expire thirty ( 30 ) days from the date thereof.
(b) Unless otherwise stated herein , Services prices are based on normal business hours ( 8 a . m .
to 5 p . m .
Monday through Friday) . Overtime and Saturday hours will be billed at one and one - half ( 1 1 /2 ) times
the
hourly rate ; and Sunday hours will be billed at two ( 2) times the hourly rate ; holiday hours will
be billed at
three ( 3) times the hourly rate . If a Services rate sheet is attached hereto , the applicable Services rates shall
be those set forth in the rate sheet . Rates are subject to change without notice .
(c) The price does not include any federal, state or local property, license, privilege, sales, use, excise, gross
receipts, or other like taxes which may now or hereafter be applicable . Purchaser agrees to pay or reimburse
any such taxes which Elster AMCO Water LLC or its suppliers are required to pay or collect . If Purchaser
is
exempt from the payment of any tax or holds a direct payment permit, Purchaser shall , upon order
placement, provide Elster AMCO Water LLC a copy, acceptable to the relevant governmental authorities of any
such certificate or permit .
(d) The price includes customs duties and other importation or exportation fees, if any, at the rates in effect
on the date of Elster AMCO Water LLC 's Proposal . Any change after that date in such duties, fees, or rates
,
shall increase the price by Elster AMCO Water LLC 's additional cost.
(e) If following the end of each year of the Agreement term, Elster AMCO Water LLC, in
its reasonable
judgment and supported by reasonable documentation determines that increases in the costs of materials,
including commodity price increases, used in the production of goods provided hereunder make the pricing
then provided Purchaser economically unfeasible , the then current pricing shall be reopened for negotiation
between the parties and if the parties cannot agree, within thirty ( 30 ) days of the end of the then
current
term year, upon new pricing to reflect the material cost Increases, Elster AMCO Water LLC , may ,
upon at
least ninety ( 90) days prior written notice, terminate the Agreement .
(f) Notwithstanding anything herein , ( I ) if Purchaser intends to issue an order or similar request for
Equipment or Services pursuant to or in connection with a solicitation , a request for proposal , a
bidding
procedure or other similar process (the " Bidding Process") in which Elster AMCO Water LLC , participated or
responded to , and if Purchaser does not Issue an order or similar request for Equipment or Services,
in
connection with the Bidding Process within six months from the date Elster AMCO Water LLC, submits
a
response or proposal to Purchaser in connection with the Bidding Process, then Elster AMCO Water LLC, shall
not be bound by the pricing submitted with its response or proposal and the Purchaser and Elster AMCO Water
LLC, shall then attempt to negotiate new pricing , provided , however, if the parties cannot agree upon pricing
within . eight months from the from the date Elster AMCO Water LLC , submits a response or proposal
to
Purchaser in connection with the Bidding Process, then either party may terminate this Agreement upon
thirty ( 30 ) days prior written notice and any other agreement entered into between the parties in
connection herewith , and ( ii ) during the last ninety (90 ) days of a Proposal or order term or within
the last
ninety ( 90 ) days a Proposal or order is in effect, Purchaser shall not issue an order for or request shipment
or delivery of a quantity of Equipment or the provision of Services that exceeds thirty percent ( 30 % ) of the
aggregate of Equipment or Services, as the case may be, ordered or requested at the commencement of the
term hereof or the initial issuance of the order without the prior written consent of Elster AMCO Water LLC .
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General Terms and Conditions of Sale
Page 2 of 6
3 . Payment .
(a) Unless specified to the contrary in writing by Elster AMCO Water LLC , payment terms are
net cash ,
payable without offset, in United States Dollars, 30 days from date of invoice by wire transfer to the account
designated by Elster AMCO Water LLC in the Proposal . {
(b) If in the judgment of Elster AMCO Water LLC the financial condition of Purchaser at any time
prior to i
delivery does not justify the terms of payment specified , Elster AMCO Water LLC may require payment in
advance , payment security satisfactory to Elster AMCO Water LLC , or may terminate the order, whereupon
Elster AMCO Water LLC shall be entitled to receive reasonable cancellation charges . If delivery is delayed by
Purchaser, payment shall be due on the date Elster AMCO Water LLC is prepared to make delivery . Delays in
delivery or nonconformities in any installments delivered shall not relieve Purchaser of its obligation
to
accept and pay for remaining installments .
(c) Purchaser shall pay, in addition to the overdue payment, a late charge equal to the lesser of 1 1/2%
per
month or any part thereof or the highest applicable rate allowed by law on all such overdue amounts
plus
Elster AMCO Water LLC 's attorneys' fees and court costs incurred in connection with collection .
4 . Changes .
(a) Any changes requested by Purchaser affecting the ordered scope of work must be accepted by Elster
AMCO Water LLC and resulting adjustments to affected provisions, Including price , schedule, and
guarantees mutually agreed in writing prior to implementation of the change .
(b) Elster AMCO Water LLC may, at its expense, make such changes in the Equipment or Services
as it
deems necessary, in its sole discretion , to conform the Equipment or Services to the applicable specifications .
If Purchaser objects to any such changes , Elster AMCO Water LLC shall be relieved of its
obligation to
conform to the applicable specifications to the extent that conformance may be affected by such objection .
5 . Delivery .
(a) All Equipment manufactured, assembled or warehoused in the continental United States is delivered F . O . B .
point of shipment. Equipment shipped from outside the continental United States is delivered F. O . B . United
States port of entry . Purchaser shall be responsible for any and all demurrage or detention charges .
(b) If the scheduled delivery of Equipment is delayed by Purchaser or by Force Majeure, Elster AMCO Water
LLC may move the Equipment to storage for the account of and at the risk of Purchaser whereupon it shall be
deemed to be delivered .
(c) Shipping and delivery dates are contingent upon Purchaser's timely approvals and delivery by Purchaser of
any documentation required for Elster AMCO Water LLC's performance hereunder.
(d) Claims for shortages or other errors in delivery must be made in writing to Elster AMCO Water LLC within
ten days of delivery . Equipment may not be returned except with the prior written consent of and subject to
terms specified by Elster AMCO Water LLC . Claims for damage after delivery shall be made directly
by
Purchaser with the common carrier
6 . Title & Risk of Loss . Notwithstanding any agreement with respect to delivery terms or payment of
transportation charges, risk of loss or damage shall pass to Purchaser upon delivery .
7, . Inspection , Testing and Acceptance .
(a) Any Inspection by Purchaser of Equipment on Elster AMCO Water LLC 's premises shall be scheduled in
advance to be performed during normal working hours .
(b) If the order providesJor factory acceptance testing , Elster AMCO Water LLC shall notify Purchaser when
Elster AMCO Water LLC will conduct such testing prior to shipment . Unless Purchaser states specific
objections in writing within ten ( 10 ) days after completion of factory acceptance testing , completion of the
acceptance test constitutes Purchaser's factory acceptance of the Equipment and its authorization for
shipment .
(c) If the order provides for site acceptance testing , testing will be performed by Elster AMCO
Water LLC
personnel to verify that the Equipment has arrived at site complete, without physical damage , and in
good
operating condition . Completion of site acceptance testing constitutes full and final acceptance of the
Equipment. If, through no fault of Elster AMCO Water LLC, acceptance testing is not completed within thirty
( 30 ) days after arrival of the Equipment at the site, the site acceptance test shall be deemed completed and
the Equipment shall be deemed accepted .
8 . Warranties and Remedies ( unless otherwise stated ) .
(a) Equipment and Services Warranty , Elster AMCO Water LLC warrants that Equipment ( excluding Software,
which Is warranted as specified in paragraph ( d ) below) shall be delivered free of defects in
material and
workmanship and that Services shall be free of defects In workmanship . The Warranty Remedy Period for
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General Terms and Conditions of Sale
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Equipment ( excluding Software, Spare Parts and Refurbished or Repaired Parts) shall end twelve ( 12
)
months after installation or eighteen ( 18 ) months after .date of shipment, whichever first occurs . The
Warranty Remedy Period for new spare parts shall end twelve ( 12 ) months after date of shipment .
The
Warranty Remedy Period for refurbished or repaired parts shall end ninety ( 90 ) days after date of shipment .
The Warranty Remedy Period for Services shall end ninety (90 ) days after the date of completion of Services .
(b) Equipment and Services Remedy . If a nonconformity to the foregoing warranty is discovered
in the
Equipment or Services during the applicable Warranty Remedy Period , as specified above, under normal and
proper use and provided the Equipment has been properly stored , installed , operated and maintained and
written notice of such nonconformity is provided to Elster AMCO Water LLC promptly after such discovery and
within the applicable Warranty Remedy Period , Elster AMCO Water LLC shall, at its option , either ( I ) repair or
replace the nonconforming portion of the Equipment or re - perform the nonconforming Services or ( ii ) refund
the portion of the price applicable to the nonconforming portion of Equipment or Services . If any portion of
the Equipment or Services so repaired , replaced or re- performed fails to conform to the foregoing warranty,
and written notice of such nonconformity is provided to Elster AMCO Water LLC promptly after discovery and
within the original Warranty Remedy Period applicable to such Equipment or Services or 30 days
from
completion of such repair, replacement or re- performance, whichever is later, Elster AMCO Water LLC will
repair or replace such nonconforming Equipment or re - perform the nonconforming Services . The original
Warranty Remedy Period shall not otherwise be extended .
(c) Exceptions . Elster AMCO Water LLC shall not be responsible for providing working access to the
nonconforming Equipment, Including disassembly and re-assembly of non - Elster AMCO Water LLC supplied
equipment, or for providing transportation to or from any repair facility, all of which shall be at Purchaser's
risk and expense . Elster AMCO Water LLC shall have no obligation hereunder with respect to any Equipment
which ( i ) has been improperly repaired or altered ; ( ii ) has been subjected to misuse, negligence or
accident ; ( iii ) has been used in a manner contrary to Elster AMCO Water LLC ' s instructions , ( iv) is
comprised of materials provided by or a design specified by Purchaser, or (v) has failed as
a result of
ordinary wear and tear . Equipment supplied by Elster AMCO Water LLC but manufactured by others is
warranted only to the extent of the manufacturer's warranty, and only the remedies, if any, provided by the
manufacturer will be allowed .
(d) Software Warranty and Remedies . Elster AMCO Water LLC warrants that, except as specified below, the
Software will , when properly installed , execute in accordance with Elster AMCO Water LLC's published
specification . If a nonconformity to the foregoing warranty is discovered during the period ending one ( 1 ) year
after the date of shipment and written notice of such nonconformity Is provided to Elster AMCO Water LLC
promptly after such discovery and within that period , including a description of the nonconformity and
complete information about the manner of its discovery, Elster AMCO Water LLC shall correct the
nonconformity by, at Its option , either ( i ) modifying or making available to the Purchaser instructions
for
modifying the Software ; , or ( ii ) making available at Elster AMCO Water LLC' s facility necessary corrected or
replacement programs . Elster AMCO Water LLC shall have no obligation with respect to any nonconformities
resulting from ( i ) unauthorized modification of the Software or ( il ) Purchaser = supplied software or
interfacing . Elster AMCO Water LLC does not warrant that the functions contained in the software will operate
in combinations which may be selected for use by the Purchaser, or that the software products are free from
errors In the nature of what is commonly categorized by the computer Industry as " bugs" .
(e) THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF QUALITY
AND PERFORMANCE , WHETHER WRITTEN , ORAL OR IMPLIED, AND ALL OTHER WARRANTIES INCLUDING
ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USAGE OF
TRADE ARE HEREBY DISCLAIMED . THE REMEDIES STATED HEREIN CONSTITUTE PURCHASER'S EXCLUSIVE
REMEDIES AND Elster AMCO Water LLC 'S ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY.
9 . Certificate of Conformity
Elster AMCO Water LLC hereby certifies that the order described heron has been processed to conform with
all the applicable specifications called for on the purchase order.
10 . Patent Indemnity .
(a) Elster AMCO Water LLC shall defend at Its own expense any action brought against Purchaser alleging
that the Equipment or the use of the Equipment to practice any process for which such Equipment is specified
by Elster AMCO Water LLC (a " Process") directly infringes any claim of a patent of the United States of America
and to pay all damages and costs finally .awarded in any such action , provided that Purchaser has given Elster
AMCO Water LLC prompt written notice of such action , all necessary assistance in the defense thereof and the
right to control all aspects of the defense thereof Including the right to settle or otherwise terminate such action
In behalf of Purchaser.
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General Terms and Conditions of Sale
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(b) Elster AMCO Water LLC shall have no obligation hereunder and this provision shall not apply to : (1 )
any
other equipment or processes, including Equipment or Processes which have been modified or combined with
other equipment or process not supplied by Elster AMCO Water LLC ; ( ii ) any Equipment or Process supplied
according to a design , other than an Elster AMCO Water LLC design , required by Purchaser , ( iii ) any products
manufactured by the Equipment or Process ; ( iv) any patent issued after the date hereof; or (v ) any
action
settled or otherwise terminated without the prior written consent of Elster AMCO Water LLC .
(c) If, in any such action , the Equipment Is held to constitute an Infringement, or the practice of any Process
using the Equipment is finally enjoined , Elster AMCO Water LLC shall , at Its option and its own
expense,
procure for Purchaser the right to continue using said Equipment, or modify or replace it with non - infringing
equipment or, with Purchaser' s assistance, modify the Process so that it becomes non- infringing ; or remove it
and refund the portion of the price allocable to the infringing Equipment . THE FOREGOING PARAGRAPHS STATE
THE ENTIRE LIABILITY OF Elster AMCO Water LLC AND EQUIPMENT MANUFACTURER FOR ANY PATENT
INFRINGEMENT.
(d) To the extent that said Equipment or any part thereof is modified by Purchaser, or combined by Purchaser
with equipment or processes not furnished hereunder ( except to the extent that Elster AMCO Water LLC is a
contributory infringer) or said Equipment or any part thereof is used by Purchaser to perform a process
not
furnished hereunder by Elster AMCO Water LLC or to produce an article, and by reason of said modification ,
combination , performance or production , an action is brought against Elster AMCO Water LLC , Purchaser
shall defend and Indemnify Elster AMCO Water LLC In the same manner and to the same extent that Elster
AMCO Water LLC would be obligated to indemnify Purchaser under this " Patent Indemnity" provision .
11 . Limitation of Liability .
(a ) In no event shall Elster AMCO Water LLC , its suppliers or subcontractors be liable for special
,
indirect, Incidental or consequential damages , whether in contract, warranty , tort, negligence, strict liability
or otherwise, including , but not limited to , loss of profits or revenue, loss of use of the Equipment
or any
associated equipment, cost of capital , cost of substitute equipment, facilities or services, downtime costs,
delays, and claims of customers of the Purchaser or other third parties for any damages . Elster AMCO Water
LLC's liability for any claim whether in contract, warranty, tort, negligence, strict liability, or otherwise for any
loss or damage arising out of, connected with,
( b) or resulting from this Agreement or the performance or breach thereof, or from the design, manufacture,
sale, delivery, resale, repair, replacement, installation , technical direction of installation , inspection , operation
or use of any equipment covered by or furnished under this Agreement, or from any services rendered
in
connection therewith , shall in no case (except as provided In the section entitled " Patent Indemnity" ) exceed
one- half ( 1/2 ) of the purchase price allocable to the Equipment or part thereof or Services which gives rise to
the claim .
(c) All causes of action against Elster AMCO Water LLC arising out of or relating to this Agreement or the
performance or breach hereof shall expire unless brought within one year of the time of accrual thereof.
(d ) In no event, regardless of cause, shall Elster AMCO Water LLC be liable for penalties or penalty clauses of any
description or for Indemnification of Purchaser or others for costs, damages, or expenses arising out of or
related to the Equipment and/Services .
12 . Laws and Regulations. Elster AMCO Water LLC does not assume any responsibility for compliance with
federal , state or local laws and regulations, except as expressly set forth herein , and compliance with any laws
and regulations relating to the operation or use of the Equipment or Software is the sole responsibility of the
Purchaser . All laws and regulations referenced herein shall be those in effect as of the Proposal date . In the
event of any subsequent revisions or changes thereto, Elster AMCO Water LLC assumes no responsibility for
compliance therewith . If Purchaser desires a modification as a result of any such change or revision , it shall be
treated as a change per Article 4 . Nothing contained herein shall be construed as Imposing responsibility or
liability upon Elster AMCO Water LLC for obtaining any permits, licenses or approvals from any
agency
required in connection with the supply, erection or operation of the Equipment . This Agreement shall
be
governed by the laws of the State of New York, but excluding the provisions of the United Nations Convention
on Contracts for the International Sale of Goods and excluding New York law with respect to conflicts of law .
Purchaser agrees that all causes of action against Elster AMCO Water LLC under this Agreement shall be
brought in the State Courts of the State of New York, or the U . S . District Court for the Southern District
of
New York . If any provision hereof, partly or completely , shall be held invalid or unenforceable , such invalidity
or unenforceability shall not affect any other provision or portion hereof and these terms shall be construed
as if such invalid or unenforceable provision or portion thereof had never existed .
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13 . OSHA . Elster AMCO Water LLC warrants that the Equipment will comply with the relevant standards of the
Occupational Safety and Health Act of 1970 ( "OSHA" ) and the regulations promulgated thereunder as of the
date of the Proposal . Upon prompt written notice from the Purchaser of a breach of this warranty, Elster AMCO
Water LLC will replace the affected part or modify It so that it conforms to such standard or regulation . Elster
AMCO Water LLC 's obligation shall be limited to such replacement or modification . In no event shall
Elster
AMCO Water LLC be responsible for liability arising out of the violation of any OSHA standards relating to
or
caused by Purchaser's design , location , operation , or maintenance of the Equipment, its use in association with
other equipment of Purchaser, or the alteration of the Equipment by any party other than Elster AMCO Water
LLC .
14 . Software License .
(a) Elster AMCO Water LLC owns all rights in or has the right to sublicense all of the Software, if any ,
to be
delivered to Purchaser under this Agreement . As part of the sale made hereunder Purchaser hereby obtains a
limited license to use the Software, subject to the following : ( i ) The Software may be used only in
conjunction with equipment specified by Elster AMCO Water LLC ; ( ii ) The Software shall be kept strictly
confidential ; ( iii ) The Software shall not be copied , reverse engineered , or modified , ( iv ) The Purchaser's
right to use the Software shall terminate Immediately when the specified equipment is no longer used by the
Purchaser or when otherwise terminated , e . g . for breach , hereunder; and (v) the rights to use the Software
are non -exclusive and nontransferable, except with Elster AMCO Water LLC 's prior written consent .
(b) Nothing in this Agreement shall be deemed to convey to Purchaser any title to or ownership
in the
Software or the Intellectual property contained therein in whole or in part, nor to designate the Software
a
"work made for hire" under the Copyright Act, nor to confer upon any person who is not a named party to this
Agreement any right or remedy under or by reason of this Agreement. In the event of termination of
this
License, Purchaser shall immediately cease using the Software and , without retaining any copies, notes or
excerpts thereof, return to Elster AMCO Water LLC the Software and all copies thereof and shall remove all
machine readable Software from all of Purchaser's storage media .
15 . Inventions and Information . Unless otherwise agreed in writing by Elster AMCO Water LLC and Purchaser,
all right, title and interest in any inventions, developments, improvements or modifications of or for
Equipment and Services shall remain with Elster AMCO Water LLC . Any design , manufacturing drawings or
other information submitted to the Purchaser remains the exclusive property of Elster AMCO Water LLC .
Purchaser shall not, without Elster AMCO Water LLC's prior written consent, copy or disclose such information
to a third party . Such information shall be used solely for the operation or maintenance of the Equipment and
not for any other purpose, including the duplication thereof In whole or in part.
16 . Force Majeure , Elster AMCO Water LLC shall neither be liable for loss, damage, detention or delay nor be
deemed to be in default for failure to perform when prevented from doing so by causes beyond Its reasonable
control including but not limited to acts of war (declared or undeclared ) , Acts of God , fire,
strike, labor
difficulties, acts or omissions of any governmental authority or of Purchaser, compliance with government
regulations, insurrection or riot, embargo, delays or shortages in transportation or inability to obtain necessary
labor, materials, or manufacturing facilities from usual sources or from defects or delays In the performance of
its suppliers or subcontractors due to any of the foregoing enumerated causes . In the event of delay due to any
such cause, the date of delivery will be extended by period equal to the delay plus a reasonable time to resume
production , and the price will be adjusted to compensate Elster AMCO Water LLC for such delay .
17 . Cancellation . Any order may be cancelled by Purchaser only upon prior written notice and payment
of
termination charges, including but not limited to, all costs identified to the order incurred
prior to the
effective date of notice of termination and all expenses incurred by Elster AMCO Water LLC attributable to
the termination , plus a fixed sum of ten ( 10 ) . percent of the final total price to compensate for disruption
in
scheduling, planned production and other Indirect costs .
18 . Termination . No termination by Purchaser for default shall be effective unless, within fifteen ( 15 )
days
after receipt by Elster AMCO Water LLC of Purchaser' s written notice specifying such default, Elster AMCO
Water LLC shall have failed to initiate and pursue with due diligence correction of such specified default.
19 . Export Control .
(a) Purchaser represents and warrants that the Equipment and Services provided hereunder and the "direct
product thereof are intended for civil use only and will not be used , directly or indirectly, for the production
of chemical or biological weapons or of precursor chemicals for such weapons, or for any direct or indirect
nuclear end use . Purchaser agrees not to disclose, use, export or re- export, directly or indirectly, any
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Elster AMCO Water LLC
General Terms and Conditions of Sale
Page 6 of 6
Information provided by Elster AMCO Water LLC or the "direct product" thereof as defined in the Export Control
Regulations of the United States Department of Commerce, except in compliance with such Regulations .
(b) If applicable, Elster AMCO Water LLC shall file for a U . S . export license, but only after appropriate
documentation for the license application has been provided by Purchaser. Purchaser shall furnish such
documentation within a reasonable time after order acceptance . Any delay in obtaining such license shall
suspend performance of this Agreement by Elster AMCO Water LLC . If an export license is not granted or, if
once granted , Is thereafter revoked or modified by the appropriate authorities, this Agreement
may be
canceled by Elster AMCO Water LLC without liability for damages of any kind resulting from such cancellation .
At Elster AMCO Water LLC's request, Purchaser shall provide to Elster AMCO Water LLC a Letter of Assurance
and End -User Statement in a form reasonably satisfactory to Elster AMCO Water LLC .
20, Assignment. Any assignment of this Agreement or of any rights or obligations under the Agreement without
prior written consent of Elster AMCO Water, LLC shall be void .
21 . Nuclear Insurance - Indemnity. For applications in nuclear projects , the Purchaser and/or its end
user
customer shall have complete insurance protection against liability and property damage resulting from a
nuclear incident to and shall Indemnify Elster AMCO Water, LLC, its subcontractors, suppliers and vendors
against all claims resulting from a nuclear Incident .
22, Resale , If Purchaser resells any of the Equipment, the sale terms shall limit Elster AMCO Water, LLC's
liability to the buyer to the same extent that Elster AMCO Water, LLC' s liability to Purchaser is limited
hereunder.
23. Entire Agreement , This Agreement constitutes the entire agreement between Elster AMCO Water, LLC and
Purchaser. There are no agreements, understandings, restrictions, warranties, or representations between
Elster AMCO Water, LLC and Purchaser other than those set forth herein or herein provided .
FR7224 Issue : 01 10/23/ 12 DCR12 -040
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elster