SUEZ Water Technologies & Solutions is now part of Veolia. This change will not impact your contract or the team supporting your business. We will be changing our legal entity name, but this will not change in any way the tax identification number, or our banking information. The detail of changes to the legal entity name will be communicated separately.

General Terms and Conditions of Sale (“GTCs”)

1.Exclusive Terms and Conditions. Together with the latest Seller proposal and any other terms the parties (Buyer and Seller each a “Party” and together the “Parties”) agree to in writing, these GTCs form the exclusive terms (“Agreement”) whereby Buyer agrees to purchase, and Seller agrees to sell products and equipment (“Goods”) and to provide instruction and other services either, in connection with, or independently to the sale of the Goods (“Services”). If Buyer sends to Seller other terms, including as contained in Buyer’s request for proposal or purchase order, such terms shall not apply regardless of whether they are different from or in addition to this Agreement. All terms not defined herein shall be defined in Seller´s proposal.

2.Goods and Services. The Goods and Services to be provided shall be as set out in this Agreement. Unloading, handling, storage, installation, and operation of Buyer’s equipment, systems or the Goods are the responsibility of Buyer. Seller’s personnel are not required or permitted to operate or control Buyer’s systems or the Goods at Buyer’s site. Any Goods and Services provided by Seller hereunder shall be in accordance with Seller submittals approved by either Buyer or a third party whose approval was required and to the extent consistent with the description and scope of supply in Seller’s proposal, if applicable, which is incorporated herein by this reference and, if applicable.

3.Prices and Payment. Buyer shall pay Seller for the Goods and Services in accordance with the payment schedule set forth in Seller´s proposal or, if applicable, in any special conditions agreed in writing by the Parties. Unless otherwise specified in writing, payment is due net thirty (30) days from the date of Seller’s invoice. Buyer agrees to reimburse Seller for collection costs, including two percent (2%) interest per month (not to exceed the maximum amount permitted by applicable law), should Buyer fail to timely pay. Buyer shall have no rights to make any deduction, retention, withholding or setoff relating to any payments due under this Agreement.

4.Taxes and Duties. Seller shall be responsible for all corporate taxes measured by net income due to performance of or payment for work under this Agreement and for all employment-related taxes for its employees (“Seller Taxes”). Buyer shall be responsible for all taxes, duties, fees, or other charges of any nature (including, but not limited to, consumption, gross receipts, import, property, sales, stamp, turnover, use, or value-added taxes, and all items of withholding, deficiency, penalty, addition to tax, interest, or assessment related thereto, imposed by any governmental authority or quasi-governmental authority on Buyer or Seller or its subcontractors) in relation to this Agreement or the performance of or payment for work hereunder other than Seller Taxes ("Buyer Taxes"). The Agreement prices do not include the amount of any Buyer Taxes. If Buyer deducts or withholds Buyer Taxes, Buyer shall pay additional amounts so that Seller receives the full Agreement price without reduction for Buyer Taxes. Buyer shall provide to Seller, within one month of payment, official receipts from the applicable governmental authority for deducted or withheld taxes. Buyer shall furnish Seller with evidence of tax exemption acceptable to taxing authorities if applicable, prior to execution of the Agreement by both Parties or issuance by the Seller of the order acceptance. Buyer’s failure to provide evidence of exemption at time of order will relieve Seller of any obligation to refund taxes paid by Seller.

5.Delivery, Title, Risk of Loss. Unless otherwise specified in this Agreement, Seller shall deliver all Goods to Buyer FCA (Incoterms 2020) Seller’s facility. The time for delivery of the Goods to Buyer shall be specified in this Agreement, or in a purchase order or similar document, agreed in writing by both Parties. Title and risk of loss to the Goods as well as non-returnable containers and tanks in which Goods are contained shall be transferred from Seller to Buyer at the point of delivery as provided under this Agreement. Title and risk of loss to Services shall pass as they are performed. If any part of the Goods cannot be delivered when ready due to any cause not attributable to Seller, Buyer shall designate a climate-controlled storage location as specified by the manufacturer’s storage criteria, and Seller shall ship such Goods to designated storage. Title and risk of loss shall thereupon pass to Buyer and amounts payable to Seller upon delivery or shipment shall be paid by Buyer along with expenses incurred by Seller. Services provided herein shall be charged at the rate prevailing at the time of actual use. Buyer shall pay any increase and shall pay directly all costs for storage and subsequent transportation. Failure by Buyer to take delivery of the Goods shall be a material breach of this Agreement. In the event a purchase order issued under this Agreement includes liquidated damages or similar damages for delay, missed milestone(s), or similar deficiency, such damages and Seller’s total liability for the aforementioned liquidated or similar damages shall be Seller’s sole liability for the delay, missed milestone(s), or deficiency for which the liquidated or similar damages are assessed. This limitation shall also include costs and expenses incurred by Buyer to mitigate and/or avoid the liquidated or similar damages. In no event shall Seller be liable for delay or late delivery except to the extent such liability is expressly accepted by Seller in this Agreement or purchase order.

6.Warranties and Remedies. Seller warrants that Goods shall be delivered free from defects in material, workmanship and title and that any Services shall be performed in a competent, diligent manner in accordance with any mutually agreed specifications. In no event shall Seller’s warranty cover: (a) damage or defects due to improper handling, storage, installation, commissioning, operation or maintenance of the Goods, (b) repairs or alterations made by Buyer or third parties without Seller"s written consent and/or (c) influent water which does not comply with agreed parameters, erosion, corrosion, or (d) normal wear and tear. Unless otherwise expressly provided in this Agreement, the foregoing warranties are valid for:

(a) chemicals and Services, for six (6) months from their date of delivery or provision of Services;
(b) consumables, including filters and spiral wound membranes (other than spiral wound membranes for process treatment), the earlier of twelve (12) months from date of first use of fifteen (15) months from their date of delivery;
(c) spiral wound membranes for process fluid treatment, the earlier of ninety (90) days from their date of first use or one hundred twenty (120) days from the date of delivery;
(d) hollow fibre ultrafiltration membranes, the earlier of twenty four (24) months from their date of first use or twenty seven (27) months from their date of delivery;
(e) Goods other than chemicals and consumables, the earlier of, fifteen (15) months from delivery or shipment to storage, or twelve (12) months from start-up/first use;
(f) software, ninety (90) days from the date of receipt;
(g) Goods not manufactured by Seller, warranty shall be the manufacturer’s transferable warranty only. Upon any claim for breach of these warranties, Buyer must promptly notify Seller in writing and make the defective item available to Seller, or the claim will be void. Seller’s sole responsibility and Buyer’s exclusive remedy arising out of or relating to the Goods or Services or any breach of these warranties is limited to, at Seller’s option, repair or replacement, at Seller"s facility, of the defective Goods and re-performance of any defective Services. Seller’s warranty does not cover any cost other than the direct cost of repairing or replacing the defective Goods. Costs not covered by this warranty include but are not limited to labor for gaining access, removal, or installation, temporary power, and/or other such expenses that may be incurred with repair or replacement. Warranty repair, replacement or re-performance by Seller shall not extend or renew the applicable warranty period. For avoidance of doubt, Seller’s warranty obligations hereunder shall be limited to the original Goods or Services supplied, and Seller’s performance of its warranty obligations shall not give rise to new warranty obligations. These warranties are conditioned upon:

(a) proper unloading, handling, storage, installation, use, operation and maintenance of the Goods and Buyer’s facility and all related systems in strict accordance with Seller’s instructions and in accordance with generally accepted industry practice,

(b) Buyer keeping accurate and complete operation and maintenance records during the warranty period and providing Seller access to those records, and

(c) modification or repair of Goods or Services only as authorized by Seller in writing. Failure to meet any such condition renders the warranty null and void. Except as provided herein, Buyer is not entitled to extend or transfer this warranty to any other party. The warranties and remedies set forth in this Section 6 are in lieu of and exclude all other warranties and remedies, statutory, express or implied, including any warranty of merchantability or fitness for a particular purpose. Unless otherwise expressly stipulated in this Agreement, Seller gives no warranty or guarantee as to process results or performance of the Goods, including but not limited to product quality, flow, production, capacity, membrane life, chemical consumption, regulatory compliance or energy consumption.

7. General Indemnity. Seller shall indemnify and hold harmless Buyer from claims for physical damage to third party property or injury to persons, including death, to the extent caused by the negligence of Seller and/or its officers, agents, employees, and/or assigns while engaged in activities under this Agreement. Buyer shall likewise indemnify and hold harmless Seller from claims for physical damage to third party property or injury to persons, including death, to the extent caused by the negligence of Buyer, its officers, agents, employees, and/or assigns. In the event such damage or injury is caused by the joint or concurrent negligence of Seller and Buyer, the loss shall be borne by each Party in proportion to its negligence. For the purposes of this Section 7 (i) “third party” shall not include Buyer or any subsequent owner of the Goods, their subsidiaries, parents, affiliates, agents, successors or assigns including any operation or maintenance contractor, or their insurer; and (ii) no portion of the Goods is “third party property”.

8. Compliance with Laws and Permits. All permits, authorizations and licenses required to construct, install and/or operate Buyer’s facility or Goods, to use the Goods or to manage and dispose of any wastes, discharges and residues resulting from Buyer’s use of the Goods, shall be obtained and maintained by Buyer at Buyer’s sole expense. Buyer is responsible for (a) compliance with all laws and regulations applicable to the storage, use, handling, installation, maintenance, removal, registration, and labelling of all Goods after delivery of the Goods, and (b) the proper management and disposal of all wastes, discharges, non-returnable containers and residues.

9. Buyer’s Site Conditions. Buyer warrants that any data furnished to Seller concerning Buyer’s site conditions (including but not limited to any existing Buyer facility or processes, influent water or other substances to be treated or measured with the Goods) is accurate and complete, and Seller reserves the right to utilize the most appropriate design compatible with generally accepted engineering practices, and to make changes in details of design, manufacture and arrangement of Goods unless precluded by any limitations specified in this Agreement. Seller shall be entitled to rely on information, instructions, services or materials, including without limitation, description of site conditions, specifications and designs provided by Buyer (“Buyer Information). Buyer shall promptly notify Seller as to any defect or deficiency in any Buyer Information, however, responsibility for Buyer Information shall remain with Buyer, and Seller shall not assume any liability with regard to errors or omissions of Buyer Information or consequences thereof. In the event Buyer Information contains errors, omissions or shortcomings that require re-design or reperformance of any Seller Goods or Services, such additional re-design or reperformance shall be at Buyer’s expense and Seller shall receive equitable adjustment to price and/or an extension in time for performance. Seller shall notify Buyer of (1) any conditions at Buyer’s site which materially differ from those indicated in the data furnished by Buyer, (2) any previously unknown physical conditions at Buyer’s site of an unusual nature, not revealed by previous investigations and differing from those ordinarily encountered in the type of work under this Agreement, and (3) the presence of any Hazardous Materials (defined below), the existence of contaminated soil, unexploded ordinance, or archaeological remains. If such conditions cause an increase in Seller"s cost or in the time required to perform Seller’s obligations, Seller shall be entitled to an equitable adjustment to price and/or an extension in the time for performance. For avoidance of doubt, Seller shall not incur any liability to Buyer for Seller’s failure to inform Buyer of Hazardous Materials on Buyer’s site.

10. Excusable Delays. Seller shall not be liable or in breach of its obligations under this Agreement to the extent performance of such obligations is delayed or prevented, directly or indirectly, due to causes beyond the reasonable control of Seller, including but not limited to: acts of God, natural disasters, unusually severe weather, fire, terrorism, war (declared or undeclared) epidemics, pandemics as declared by the World Health Organization or nation in which performance, export or delivery of Goods occurs, material shortages, insurrection, act (or omissions) of Buyer or Buyer’s contractors/suppliers or agents, any act (or omission) by any governmental authority, strikes, labor disputes, transportation shortages, or vendor non-performance. The delivery or performance date shall be extended for a period equal to the time lost by reason of delay or non-performance, plus such additional time as may be necessary to overcome the effect of the delay or non-performance. If delivery or performance is delayed for a period exceeding one hundred and eighty (180) days in the aggregate, either Party may terminate this Agreement without further liability provided that Seller shall be paid for all work performed and Goods delivered prior to the occurrence of the delay. If Seller is delayed by any acts or omissions of Buyer, or by the prerequisite work of Buyer’s contractors or suppliers, Seller shall be entitled to an equitable adjustment to price and/or an extension in time for performance as applicable.

11. Emergencies. If the safety of Seller’s personnel is threatened or likely to be threatened by circumstances outside the reasonable control of Seller, including but not limited to war, armed conflict, civil unrests, riots, terrorism, kidnapping, presence of or exposure to Hazardous Materials, unsafe working conditions or by the threat of such circumstances or a lack of adequate protection against such circumstances, Seller shall be entitled to take all necessary steps to ensure the security and safety of its personnel including the evacuation of personnel until such circumstances no longer apply. Any such occurrence shall be considered an excusable delay event. Buyer shall reasonably assist in the event of any such evacuation.

12. Confidentiality, Intellectual Property. Both Parties agree to keep confidential the other Party’s proprietary non-public information (“Confidential Information”), which may be acquired in connection with this Agreement. Both Parties agree, except as required by statute, or any legal process, not to disclose Confidential Information to any third party except to such Party’s (or its affiliate’s) employees, officers, directors, agents, advisors, or representatives who have a need to know such information and for whom such Party assumes responsibility for any breach of this Section 12. Neither Buyer, nor any other person or entity other than Seller, shall use Seller’s Confidential Information for future additions or alterations to the Goods or for other projects, or for any other purpose (except as expressly permitted herein ) without Seller’s prior written consent. Seller’s Confidential Information is proprietary to Seller and shall not be copied, transmitted, disclosed, or used in any other manner without Seller"s written consent and such obligations shall survive any termination of this Agreement. Seller retains all intellectual property (“IP”) rights including copyright which it has in all drawings, data or other deliverables (including the Goods) supplied or developed under this Agreement. Buyer shall not subject Goods to testing, analysis, or any type of reverse engineering, nor file patent applications on the Goods or any development or enhancement of the Goods, or of processes and methods of using the Goods, without Seller’s express prior written consent. In any event, any such patents will not be asserted against Seller or its other buyers. Seller grants Buyer a non-exclusive, non-terminable, royalty-free license to use the IP embedded in Goods, as well as any drawings, design or data, delivered to and paid for by the Buyer, for the purposes of owning, financing, using, operating and maintaining the Goods at Buyer’s site. Such license may only be assigned to a subsequent owner of the Goods or to an operations and maintenance subcontractor. Such license does not extend to the re-creation of Goods or the manufacture of spares or consumables by Buyer or third parties. Any software Seller owns and provides under this Agreement shall remain Seller’s property. Seller grants Buyer a limited, non-exclusive and terminable royalty-free project-specific license to such software for the use, operation or maintenance at Buyer’s site of any Goods purchased hereunder to which the software is a necessary component. Buyer agrees not to copy, sub-license, translate, transfer, reverse engineer, or decode the software. Seller shall indemnify and hold harmless Buyer from any rightful claim of a third party that any Goods or Service infringe a patent in effect in the USA, an EU member state or country of delivery (provided there is a corresponding patent issued by the USA or an EU member state), or USA copyright or copyright registered in the country of delivery. If Buyer notifies Seller promptly of the receipt of any such claim, does not take any position adverse to Seller regarding such claim and gives Seller information, assistance and exclusive authority to settle and defend the claim, Seller shall, at its own expense and choice, either (i) settle or defend the claim and pay all damages and costs awarded in it against Buyer, or (ii) procure for Buyer the right to continue using the Goods or Service, or (iii) modify or replace the Goods or Service so that it becomes non-infringing, or (iv) remove the infringing Goods and refund the price. The foregoing shall not apply to any misuse of Goods, Goods which are manufactured to Buyer’s design, or to alleged infringement arising from the combination, operation, or use of any Goods or Services with other goods or services when such combination is part of any allegedly infringing subject matter. The foregoing list (i) to (iv) and related terms state the entire liability of Seller for IP infringement.

13. LIMITATIONS ON LIABILITY. Seller shall have no liability for incompatibility of Goods with Buyer’s actual space or design limitations or omissions. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND REGARDLESS OF WHETHER A CLAIM IS BASED IN CONTRACT (INCLUDING WARRANTY OR INDEMNITY), EXTRA-CONTRACTUAL LIABILITY, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), STATUTE, EQUITY OR ANY OTHER LEGAL THEORY: (I) NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS OR REVENUES OR LOSS OF USE, UNDER, ARISING FROM OR RELATING TO THIS AGREEMENT; (II) IN NO EVENT SHALL SELLER BE LIABLE FOR LOSS OF PRODUCTION, LOSS OF USE OF GOODS OR SERVICES OR ANY ASSOCIATED GOODS, INTERRUPTION OF BUSINESS, COST OF CAPITAL, INCREASED OPERATING COSTS, OR CLAIMS OF BUYER’S CUSTOMERS FOR ANY DAMAGES LISTED IN SUBPARTS (I) AND (II) OF THIS SECTION 13; (III) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY, INCLUSIVE OF ANY LIABILITY INCURRED BY ANY INSURER OF SELLER, EXCEED THE AMOUNT PAID BY BUYER FOR THE GOODS AND SERVICES ON WHICH SUCH LIABILITY IS BASED (OR FOR AGREEMENTS FOR SERVICES WITH A TERM OF MORE THAN ONE YEAR, THE PRICE PAID BY THE BUYER FOR THE SUBSEQUENT ONE YEAR PERIOD BEFORE NOTICE OF THE CLAIM OR LIABILITY WAS GIVEN TO BUYER), REGARDLESS OF WHEN OR HOW MANY CLAIMS ARE MADE. SELLER’S LIABILITY SHALL END UPON EXPIRATION OF THE APPLICABLE WARRANTY PERIOD, PROVIDED THAT BUYER MAY CONTINUE TO ENFORCE A CLAIM FOR WHICH BUYER HAS GIVEN NOTICE PRIOR TO THAT DATE BY COMMENCING AN ACTION OR ARBITRATION, AS APPLICABLE UNDER THIS AGREEMENT, BEFORE EXPIRATION OF ANY STATUTE OF LIMITATIONS OR OTHER LEGAL TIME LIMITATION BUT IN NO EVENT, TO THE EXTENT PERMITTED BY APPLICABLE LAW, LATER THAN FIVE (5) MONTHS AFTER EXPIRATION OF SUCH WARRANTY PERIOD. FOR PURPOSES OF THIS SECTION 13, "SELLER" SHALL MEAN SELLER, ITS AFFILIATES, SUBCONTRACTORS AND SUPPLIERS OF ANY TIER, AND THEIR RESPECTIVE AGENTS AND EMPLOYEES, INDIVIDUALLY OR COLLECTIVELY. IF BUYER IS SUPPLYING SELLER’S GOODS OR SERVICES OR UTILISING THEM IN PROVIDING RELATED GOODS OR SERVICES TO A THIRD PARTY, BUYER SHALL REQUIRE THE THIRD PARTY TO AGREE TO BE BOUND BY THIS SECTION 13. IF BUYER DOES NOT OBTAIN THIS AGREEMENT FOR SELLER’S BENEFIT FOR ANY REASON, BUYER SHALL INDEMNIFY AND HOLD SELLER HARMLESS FROM ALL LIABILITY ARISING OUT OF CLAIMS MADE BY THE THIRD PARTY IN EXCESS OF THE LIMITATIONS AND EXCLUSION UNDER THIS SECTION 13.

14. Insurance. Buyer shall maintain all risk property (including but not limited to boilers, cooling towers, heat exchangers, etc) and machinery breakdown insurance covering the full replacement value of Buyer’s site, systems and related Goods, together with business interruption coverage, which includes a waiver of subrogation in favour of Seller and its affiliates. Prior to commencement of any work, and not less than annually thereafter during the term of this Agreement, Buyer shall deliver to Seller a certificate(s) of insurance evidencing that the foregoing insurance is in full force and effect. Seller shall maintain types and amounts of insurance against loss or damage and such other risks as customarily insured against by businesses whose operations are comparable to those of the Seller. Seller shall not be obliged to add Buyer or any other third party as an additional insured under Seller’s insurance policies.

15. Termination. This Agreement and any performance pursuant to it may be terminated by either Party, and the consequences of such termination shall be as set out in the next paragraph, if the other Party:
(a) becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for the benefit of its creditors, or files for protection from creditors under any bankruptcy or insolvency laws; or
(b) fails to make any payment when due or to establish any required payment security , or commits a material breach of this Agreement, and such breach is not cured within thirty (30) days of written notice from the other Party; or
(c) if in the reasonable judgment of Seller, Buyer acts in bad faith (including, without limitation, any attempt by Buyer to reverse engineer or infringe upon the IP rights of Seller); or
(d) If Seller has any doubt at any time as to Buyer"s ability to pay, Seller, without any liability and without being subject to any penalties that may be applicable as negotiated with Buyer, may decline to make deliveries of Goods or provide Services except on receipt of satisfactory security. Upon termination of this Agreement by Buyer for cause under this Section 15, Seller shall reimburse Buyer the difference between that portion of the Agreement price allocable to the terminated scope and the actual amounts reasonably incurred by Buyer to complete that scope, and Buyer shall pay to Seller (a) the portion of the Agreement price allocable to Goods completed, and (b) amounts for Services performed up to the effective date of termination. Upon the termination of this Agreement by Seller for cause as specified in this Section 15, Buyer shall pay to Seller within thirty (30) days of receipt of invoice the price of all Goods or Services delivered at the date of termination, plus an amount equal to all costs and expenses incurred in the engineering, sourcing, financing, procurement, manufacture, storage and transportation of the Goods including materials, work in progress and any cancellation charges assessed against Seller by Seller’s suppliers including reasonable overhead and profit on all such costs and expenses. Alternatively, if any schedule of termination payments has been agreed between the Parties, Buyer shall pay to Seller within thirty (30) days of receipt of invoice the amounts set out in that schedule. Seller shall have the right to suspend performance upon written notice to Buyer in any case applicable hereunder, without prejudice to Seller’s right to terminate this Agreement for cause. Any cost incurred by Seller in accordance with such suspension (including storage) shall be payable by Buyer upon submission of Seller’s invoice(s). Performance of Seller’s obligations shall be extended for such time reasonably necessary to overcome the effects of such suspension. Seller shall have the right to terminate this Agreement without cause upon 30 (thirty) days’ written notice to Buyer without any liabilities therefor.

16. Change In Control. Buyer shall notify Seller immediately upon any change in ownership of more than 50% of Buyer"s voting rights or of any controlling interest in Buyer. If Buyer fails to do so or Seller objects to the change, Seller may (a) terminate the Agreement, (b) require Buyer to provide adequate assurance of performance (including but not limited to payment), and/or (c) put in place special controls regarding Seller’s Confidential Information.

17. Governing Law & Dispute Resolution. This Agreement shall be governed by the substantive laws of the State of New York. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded. In the event of a dispute concerning this Agreement, the complaining Party shall notify the other Party in writing. Management level representatives of both Parties shall meet at an agreed location to attempt to resolve the dispute in good faith. Should the dispute not be resolved within thirty (30) days after such notice, the complaining Party shall seek remedies exclusively through arbitration. The seat of arbitration shall be the federal district court in New York, and the rules of arbitration will be the Commercial Arbitration Rules of the American Arbitration Association, which are incorporated by reference into this Section 17. Any judgment upon the award rendered by the arbitrator(s) may be entered by any court having jurisdiction thereof. If the Parties mutually agree to waive the aforementioned arbitration requirement, then either Party may pursue its rights and remedies under this Agreement by filing litigation in federal district court in New York. All offers, promises, communications, statements and actions during the course of any informal dispute resolution process, and any mediation or arbitration, by the parties are (1) confidential, privileged and may not be disclosed (including by any mediator), (2) are inadmissible, are not discoverable and may not be used (or referred to) for any purpose, including impeachment of any other testimony in an arbitration, judicial, administrative or regulatory proceeding and (3) stay all statutory or contractual limitations that limit a Party’s right to litigate. The Parties irrevocably waive the right to request trial by jury. Notwithstanding the foregoing, each Party shall have the right to commence an action or proceeding in a court of competent jurisdiction, subject to the terms of this Agreement, in order to seek and obtain a restraining order or injunction to enforce the confidentiality and IP provisions set forth in the first two paragraphs of Section 12; nuclear use restrictions under Section 19, or to seek interim or conservatory measures not involving monetary damages.

18. Nonwaiver, Severability, Headings. Failure of Buyer to enforce any provision of this Agreement or any rights with respect thereto shall in no way be considered to be a waiver of such provision or right or any other rights, or in any way affect the validity of this Agreement. If any provision of this Agreement is or becomes invalid or illegal, then such provision shall be reformed to be made legal or valid, or deleted, but the remaining provisions shall remain in full force and effect, and this Agreement shall be interpreted and implemented in a manner which best fulfils the Parties’ intended agreement. Headings are for convenience and are not a substantive part of this Agreement.

19. No Nuclear Use. Buyer shall not use, nor permit others to use, the Goods or Services for any nuclear use, purpose or in any nuclear-related systems, without the advance written consent of Seller. If, in breach of this, any such use occurs, Seller (and its parent, affiliates, suppliers and subcontractors) disclaims all liability for any nuclear or other damage, injury or contamination, and, in addition to any other rights of Seller, Buyer shall indemnify and hold Seller (and its parent, affiliates, suppliers and subcontractors) harmless against all such liability.

20. Export Control. Seller’s obligations are conditioned upon Buyer’s compliance with all applicable trade control laws and regulations (“ITC Laws”) including those of the United States United Nations and the European Union. Additionally, Buyer shall not sell, distribute, disclose, release or otherwise transfer any item or technical data provided under this Agreement to: (i) any country designated as a "State Sponsor of Terrorism" by the U.S. Department of State including, for this Agreement, North Korea (ii) any entity located in, or owned by an entity located in, a "State Sponsor of Terrorism" country, North Korea, (iii) the region of Crimea or (iv) any person or entity listed on the “Entity List” or "Denied Persons List", or "Specifically Designated Nationals and Blocked Persons" maintained by any other applicable prohibited party list. Buyer hereby certifies that the work, technical data, software or other information or assistance furnished by Seller or its affiliates under this Agreement will not be used in the design, development, production, stockpiling or use of chemical, biological or nuclear weapons either by Buyer or by any entity acting on Buyer’s behalf. The Parties’ obligation to comply with all applicable ITC laws shall survive any termination or discharge of any other contract obligations. If any person or entity involved in business activity between Buyer and Seller is designated under ITC Laws, the Parties will work towards achieving compliance or will terminate the agreement and work to effect a mutually agreeable and orderly process for such termination and/or winding down of the business activity.

21. Conflicts, Survival, Assignment & Subcontracting, Entire Agreement. If there is any conflict between this Agreement and Seller’s written proposal or quotation, then the terms in this Agreement shall prevail. Those provisions which by their nature remain applicable after termination shall survive termination of this Agreement for any reason. Seller may assign or novate its rights and obligations hereunder, in whole or in part, to any of its affiliates, or assign any of its accounts receivable hereunder to any party without Buyer’s consent. Buyer agrees to such assignment and to execute any document necessary to complete Seller’s assignment or novation. This Agreement shall not otherwise be assigned by either Party without the other Party’s prior written consent, and any assignment without such consent shall be void. This Agreement constitutes the entire agreement between the Parties and supersedes any prior documents, correspondence or agreements between them. No amendment, revision, waiver, or other change shall be binding unless agreed in writing by both Parties’ authorized representatives. Any oral or written warranty, course of dealing, or trade usage not specified herein shall not be binding on either Party and each Party agrees that it has not relied on, or been induced by, any representations of the other Party not contained in this Agreement. Seller may (i) manufacture and source the Goods and any part thereof globally in the country or countries of its choosing; and (ii) subcontract portions of the Services, so long as Seller remains responsible for such.

22. No Third Party Beneficiary. Except as specifically set forth in Sections 13 (Limitations on Liability) and 19 (No Nuclear Use), this Agreement is not intended to, and does not, give to any person who is not a party to this Agreement any rights to enforce any provisions contained in this Agreement.

23. Changes. Each Party may at any time propose changes in the schedule or scope of Goods or Services. All such changes shall be subject to agreement via a written change order or variation and shall only become effective once signed by both Parties. The scope, price, schedule and other provisions will be equitably adjusted to reflect additional costs or obligations incurred by Seller resulting from a change, after Seller’s proposal date, in Buyer’s site-specific requirements or procedures, or in industry specifications, codes, standards, applicable laws or regulations. It shall be acceptable and not considered a change if Seller delivers Goods (including replacement under warranty) that bears a different, superseding or new part or version number compared to the part or version number listed in the Agreement, provided that in no circumstance shall this affect any other Seller obligations.

Additional ES Terms

25. Delivery. The place of delivery specified herein shall be firm and fixed, provided that Buyer may notify Seller no later than forty-five (45) days prior to the scheduled shipment date of the Goods of an alternate point of delivery, and Buyer shall compensate Seller for any additional cost in implementing the change.

26. Inspection and Factory Tests. Seller will apply its customary quality control procedures in manufacturing the Goods. Seller shall attempt to accommodate requests by Buyer to witness Seller’s factory tests of Goods, subject to appropriate access restrictions, if such witnessing can be arranged without delaying the work. In addition to other appropriate access restrictions to be implemented at the sole discretion of Seller, Buyer shall indemnify Seller for any damages Seller incurs arising out of the presence of Buyer’s employees, contractors, agents, or designees on any property used by Seller in connection with this Agreement

27. Hazardous Materials and Wastes. In the event that Seller encounters any toxic substances, hazardous substances, pollutants, contaminants, regulated wastes, or hazardous wastes as such terms may be defined or classified in any law, statute, directive, ordinance or regulations promulgated by any applicable governmental entity (“Hazardous Materials”) at Buyer’s site, other than Hazardous Materials introduced by Seller or that are otherwise the express responsibility of Seller under this Agreement, Buyer shall immediately take whatever precautions are required to legally eliminate such Hazardous Materials so that the Seller’s work under this Agreement may safely proceed. At no time shall Seller be deemed to have taken title to or the responsibility for the management or disposal of any wastes, Hazardous Materials, influent water, any resultant product streams, wastewater streams, discharges, cleaning materials, or any other materials or substances processed by the Goods or otherwise located at Buyer’s site. Seller does not take responsibility for and hereby expressly disclaims responsibility for the characterization or disposal of wastes, Hazardous Materials, or for the identification, selection, or management of disposal facilities for any wastes.

28. Warranty Assignment. The Buyer will be entitled to assign to a subsequent owner of the Goods the warranties of the Seller under this Agreement, provided that prior written notification is sent to the Seller and the assignment agreement contains terms and conditions which provide the Seller with the conditions of the warranties and limitations on liability contained in the Agreement. Subject to Buyer’s compliance with the foregoing requirement, such warranty rights are expressly assignable by the Buyer to a subsequent owner of the Goods.