Terms and Conditions

General Provisions

These terms and conditions (“Terms”) shall apply to the sale of any Products or Services (as defined herein) by RG Industries, Inc., d/b/a RG Group (hereafter referred to as “Seller”) and are deemed to be an integral part of any  proposal, quote or offer by the Seller, any purchase order submitted by a buyer  of Seller’s Products or Services (“Buyer”), any purchase order accepted by Seller, and/or any contract entered into by the Seller and a Buyer (the “Parties”).   For purposes of these Terms: (i) any products sold or otherwise transferred by Seller to Buyer shall be referred to herein collectively as “Products”, and each individually as a “Product”; and (ii) any services sold or provided by Seller shall be referred to as “Services”.

Any provision of a proposal, quote, purchase order, offer, acceptance, agreement,  other document or contractual requirement which forms a part of a contract between Seller and a Buyer (“Contract”) and is in conflict with or inconsistent with these Terms, or which imposes on Seller liabilities that are additional to or different from those set forth in the Terms, shall not apply to the Contract and shall be of no force or effect  unless (i) Seller has, in a written document executed by Seller specifically indicated that the conflicting or inconsistent provision of these Terms  is superseded by the corresponding provision in the Contract; or (ii) these Terms expressly provide for an option to deviate from the respective provision in the Contract.

Appendix A shall apply where the Contract provides for Acceptance Tests.  For purposes of these Terms, the term “Acceptance Tests” shall mean testing performed by Seller or its designee at Seller’s facility or at Buyer’s project site, with the assistance of such trained and qualified personnel of Buyer as may be required by Seller, in order to demonstrate that Products perform to the specifications set forth in the Contract.

1. Scope of Supply:

1.1 Seller’s work shall be limited to the provision of the Products and/or Services as set forth in the Contract (hereafter referred to as “Scope of Supply”). Buyer shall be responsible for all other work, products and services except as set forth in the Scope of Supply (“Buyer Scope”).

1.2 Where the Scope of Supply is required to interface with other equipment of Buyer or Buyer’s other contractors, Buyer shall be solely responsible for such interface, including its dimensions and compatibility.

2. Change Orders / Contract Execution / Documents:

2.1 Buyer may propose change requests to a Contract (“Change Request”). In case of a Change Request, Seller will, to the extent the proposed change is possible, notify Buyer of how the proposed Change Request can be carried out and which modifications to the Contract (including contract price, schedules, etc.) are required. If, based upon Seller’s response, Buyer wishes to proceed with a proposed Change Request, the Parties will agree to and execute an amendment to the Contract (a “Change Order”). Seller shall have no obligation to carry out any Change Request until a written Change Order has been executed by both parties.  Failure of the Seller to accept the Buyer’s Change Request shall not be cause for the Buyer’s cancellation of the Contract except upon payment of a cancellation charge to be determined by Seller.  Seller may also make change requests to the Buyer (“Seller Change Request”), which will be documented in the form of a written change order (“Seller Change Order”) executed by both Parties.

2.2 Pre-delivery inspections and tests, if any, shall be stipulated in and limited to those set out in the Contract. Any pre-delivery inspections and/or tests not provided for in the Contract shall be subject to the Change Request procedure specified in Section 2.1. If not stated otherwise in the Contract, pre-delivery inspections and tests shall be performed in accordance with Seller´s standard inspection procedures.

2.3 If in conjunction with a Contract Seller issues documents to Buyer that require Buyer approval, Buyer shall review, provide written comments on and approve such documents in writing and return them to Seller without undue delay but in no event later than 7 days after receipt by the Buyer; documents not returned within 7 days shall be deemed approved. Buyer may withhold its approval only to the extent it can show that the document in question is contrary to the requirements of the Contract.

2.4 Seller reserves the right to substitute components and other items in the Scope of Supply provided that any substitution shall be with an item of equal or better standard. Seller may execute the work associated with the Contract pursuant to its own plans, procedures, and working methods, except to the extent they conflict with any express provision of the Contract.

2.5 Buyer shall ensure that each delivery and other activity of the Buyer Scope is commenced, performed, and completed in a timely and sufficient manner so Seller is able to commence, perform and complete its Scope of Supply (including any services to be performed by Seller at the project site/work environment (“Site Services”)) in accordance with the schedule specified in the Contract (“Contract Schedule”).

2.6 Seller reserves the right to unilaterally adjust the price specified in the Contract (“Contract Price”) for any increase in the cost of materials or for any surcharge (a) due to tax, tariff, or other price change in material supply that occurs subsequent to the date of any Seller quote or proposal and prior to the formation of the Contract, or (b) due solely to tariff changes that occur after formation of the Contract, but prior to completion of the Scope of Supply (clauses (a) and (b) each a “Contract Price Adjustment”). Any Contract Price Adjustment shall be based solely on the increase of Seller‘s direct cost for (x) material purchased to produce the Scope of Supply, or (y) equipment supplied by a sub supplier, whichever is applicable.

3. Site Services:

3.1 If Site Services are included in the Scope of Supply, Buyer shall ensure that Seller has safe and appropriate access to the Buyer’s project site/work environment (“Site”) at all times required by Seller. Any failure by Buyer to perform this obligation or any other failure that relates to the readiness of the work environment or equipment outside the Scope of Supply at the Site will entitle Seller to suspend its Site Services without penalty.

3.2 If the Scope of Supply is to be installed by Seller or under its supervision within any building or other work environment not provided by Seller, Buyer shall ensure that the work environment (including the ceilings, walls, floors, and related penetrations) shall be ready by such time and in such condition as may be required by the Contract and/or Seller in writing. Any failure by Buyer to perform this obligation will entitle Seller to suspend its Site Services without penalty. Buyer will be responsible for any additional costs incurred by Seller as a result of such delay.

3.3 For the purpose of Seller carrying out the Site Services, Buyer shall be responsible for providing the following: (i) work environment; (ii) raw materials for making product, consumables and utilities required by or for Seller’s performance of the Contract; (iii) communications connections; (iv) trained and qualified laborers, operators and other personnel required by Seller as specified in the Contract; (v) safe and reliable equipment to assist in the transport of the Products and components thereof at the Site, including cranes and other lifting and transport equipment (to be operated and maintained by Buyer’s personnel); (vi) a secure lock-up dry room for keeping tools and small machine parts; (vii) security; (viii) sufficient lighting; (ix) heating or cooling of the buildings at the Site to ensure reasonable climate and required ambient conditions for performing Site Services; (x) office space and related facilities; (xi) any drawings or information which Seller may require for the purposes of carrying out the Site Services; (xii) special tools required for commissioning of the Produces; and (xiii) analyses of utilities and Product according to Seller’s requirements.

3.4 Seller is not, under any circumstances, responsible for the acts and/or omissions of any other contractor or person provided or made available to Seller by Buyer, or for works or any equipment supplied by the Buyer and/or any other contractor or person other,  or for their payment, welfare, provision of safety equipment or safe means of working, or for their work, productivity, or workmanship. Buyer shall be solely responsible for any failure of such persons or contractors to strictly comply with the instructions and requirements of Seller. Buyer shall indemnify, defend and hold Seller harmless from any resulting claims and liability for loss or damage to any property or for bodily injury or death in any way arising out of the acts or omissions of any such persons and contractors, except in each case to the extent directly caused by the negligence of Seller.

4. Payment:

4.1 Buyer shall pay Seller the Contract Price pursuant to the payment terms and schedule set forth in the Contract.

4.2 All payments are to be made by check or electronic transfer of readily available funds, net cash without any deduction, in United States Dollars, within 30 days of the date of Seller’s applicable invoice unless other payment terms are specified in the Contract.

4.3 Buyer shall notify Seller in writing of any objection to the accuracy or validity of any invoice within 5 days of receipt, absent which the invoice shall be deemed valid, accurate and payable.

4.4 Buyer shall have no right of set-off or right to make any form of withholding or retention against any payment of the Contract Price.

4.5 Seller shall have no obligation to commence any Scope of Supply until the first installment of the Contract Price has been received by Seller, if applicable.

4.6 If any payment is not received by the applicable due date for payment, Seller shall be entitled to interest on the delinquent balance at the rate of 1.5% per month (18% annual rate), without a formal demand being made for such interest by Seller.   In addition, and upon 7 days’ written notice to that effect, Seller may suspend all or part of its performance under the Contract until the delinquent payment and any interest due is received in full from the Buyer.  In the event of Buyer’s default in the payment of amounts due under the Contract and Seller substantially prevails in any legal action to recover the delinquent amounts due, Buyer shall be liable to Seller for all costs and expenses, including reasonably attorney’s fees, incurred by Seller in such legal proceedings.

4.7 In the event of any delay in the commencement of the Scope of Supply for reasons attributable in whole or in part to Buyer or its contractors and/or any suspension by Seller pursuant to the above Section 4.6 or any other provision of these Terms, Section 6.6 of the Terms shall apply. If payment has still not been received in full by Seller within 21 days after the applicable due date, then, irrespective of whether Seller has commenced any portion of the Scope of Supply and/or suspended its work, Seller shall be entitled to terminate the Contract with immediate effect by written notice to the Buyer pursuant to Section 10.3 of the Terms.

4.8 Where the achievement by Seller of a certain milestone or activity that is necessary for Seller to become entitled to all or a portion of the Contract Price is delayed by Buyer or third parties for whom Buyer is responsible, then without prejudice to any other right or remedy the Seller may have, Seller shall, for payment entitlement purposes, be deemed to have achieved the milestone or activity by no later than 14 days after the date on which it would have been achieved had there been no delay.

5.Taxes:

5.1 The Contract Price and any other amounts to be paid to Seller under the Contract are exclusive of federal, state, local, or municipal taxes (including value added, sales, use, business, excise, gross receipts, contractor’s, withholding, or similar taxes), duties, assessments or charges of any kind, except to the extent any taxes or other charges that are assessed on the profits of Seller or which under the applicable Incoterm relating to delivery of the Scope of Supply are payable by Seller.  The payment of all such taxes, duties, assessments, or charges are the sole responsibility of Buyer. If Buyer seeks tax exemption, Seller must receive appropriate tax exemption certificates from Buyer prior to commencement of invoicing; otherwise, applicable taxes will be charged by Seller on each invoice.  In the event that Seller does not withhold tax under the reasonable belief that it is not required to do so and it is later determined that taxes should have been withheld, Buyer shall promptly reimburse Seller for all such amounts paid by Seller to the applicable taxing authorities.

5.2 If any taxes, duties, assessments or charges are imposed on Seller by authorities in the country where the Scope of Supply will be installed in connection with any Site Services and/or in connection with the Contract itself, Buyer shall reimburse Seller all such amounts.

5.3 Where Buyer is obligated by applicable law to make a deduction from any payment due to Seller in relation to any such taxes, duties, assessments or charges, Buyer shall increase the payment to be made to Seller such that the net payment received by Seller after deduction for such taxes, duties, assessment or charges is equal to the amount due to Seller under the Contract.

6. Delivery / Risk of Loss / Delays:

6.1 Seller shall deliver any Products under the Scope of Supply F.O.B. Shipping Point unless otherwise stated, or in the case of international shipments under the Incoterms as specified in the Contract. If no Incoterm is stipulated for an international shipment, delivery shall be Ex Works manufacturer plant as specified by Seller. If no manufacturer plant is specified, then delivery shall be Ex Works Seller’s premises. In case the respective stipulated Incoterm obliges Seller to perform any import formalities for the import into the country of delivery, Buyer at its cost is obliged to support Seller in any way reasonably required by Seller. Any delay (other than a delay by Seller) in completion of import formalities shall be an event entitling Seller to an extension of time and compensation of costs according to Section 6.6.

6.2 Transfer (to Buyer) of risk of loss and damage to the Products and/or Scope of Supply shall occur upon shipment in accordance with the stipulated shipping terms set forth in Section 6.1 above.  The inclusion of any Site Services within Seller’s Scope of Supply shall not alter this transfer of risk of loss and damage and shall not create any assumption by Seller of any form of care, custody and control over any Buyer Scope and/or Site.  In the event Products are lost in shipment, Buyer shall bear the risk of loss, but Seller will cooperate with Buyer in initiating the loss claim with the carrier.

6.3 Statements of packing, measurements and gross weight are an approximate guide and not binding on Seller.

6.4 Seller may deliver the Scope of Supply from multiple locations, including different countries and may use different types of transport. Partial deliveries and trans-shipments are allowed.

6.5 Upon delivery or the provision of the Scope of Supply, Buyer will inspect the relevant Scope of Supply and promptly (but in no event more than 7 days after delivery) inform Seller in writing of any alleged defect in accordance with Section 8.1.1 of the Terms. If Buyer fails to accept any Scope of Supply when tendered at the point of delivery, Seller may deliver the same to a bonded warehouse, at Buyer’s cost and risk, including insurance and storage costs, and shall be deemed to have fulfilled its delivery obligations under the Contract and be entitled to payment of all amounts that are contingent upon delivery. Except where an Acceptance Test is stipulated and governed by Section 8.1 or 8.2 and where Buyer has given written notice pursuant to the first sentence of this Section 6.5, the Products and documents included in the Scope of Supply shall be deemed accepted for all purposes at their respective delivery and Site Services shall be deemed accepted for all purposes at their respective completion, provided such acceptance shall not be with prejudice to Buyer’s warranty entitlements under Section 8.1 or Section 8.2.

6.6 In case of (i) any Change Order pursuant to Section 2.1; (ii) unforeseeable shortages in the availability of personnel or materials attributable in whole or in part to a Force Majeure event; (iii) any delay, disruption, impediment or prevention of Seller or any breach of contract caused by or attributable in whole or in part to Buyer (including third parties for whom Buyer is responsible), (iv) Changed Law (as defined herein); (v) Product damaged or lost by the carrier in shipment; or (vi) any other event or circumstance for which these Terms or the Contract gives Seller an entitlement under this Section, Seller shall be entitled to payment by Buyer of any additional costs incurred by the Seller as a result of the event that triggered the application of this Section 6.6 and to an extension of time in performance for any delay incurred. Seller shall give written notice to Buyer of any event giving it an entitlement under this Section within 14 days of becoming aware of the event.

6.7 Each party shall be released from the performance of its obligations under the Contract (except as to payment) to the extent such performance is delayed, disrupted, hindered or obstructed by a Force Majeure Event as described in this section.  A “Force Majeure Event” means, but is not limited to, an act of war; domestic and/or international terrorism; civil riots or rebellions; quarantines, embargoes and other similar unusual governmental actions or orders; pandemics, epidemics, local disease outbreaks, public health emergencies; strike, lockout or other labor disturbance, the unavailability of labor or materials; or extraordinary elements of nature or acts of God; provided that such Force Majeure Event is beyond the excused party’s reasonable control, occurs without the excused party’s fault or negligence, and is not caused directly or indirectly by the excused.  A party shall give written notice of the occurrence of any Force Majeure Event within 14 days of becoming aware of its occurrence. In case such Force Majeure Event delays exceed 3 months in the aggregate, each party shall be entitled to terminate the Contract by notice with immediate effect. In case of such termination, Seller shall be entitled to all payments then due but unpaid on the date of termination and to all costs and expenses (including both out-of-pocket and internal labor costs) incurred with respect to the following (i) performing the Contract to date; (ii) ceasing its obligations under the Contract; (iii) in contemplation of carrying out all of its obligations under the Contract; (iv) demobilization; and (v) cancelling any related subcontract (including reasonable cancellation fees), and in each case to the extent not covered by the Contract Price as paid to Seller on the date of termination. Save for the obligations under Section 9, neither party shall have upon termination of the Contract any other or further liability or obligation to the other party under or arising out of the Contract to the maximum extent permitted by applicable law.

7. Ownership:

7.1 Title to the Scope of Supply will transfer to Buyer upon shipment of products or, if applicable, completion of Site Services. Until payment of the Contract Price is received by Seller in full, the Scope of Supply shall not be sold, pledged or otherwise encumbered or used for commercial production without Seller’s prior written consent (unless otherwise specified in the Contract). By accepting delivery of the Scope of Supply, including Products specified therein, the Buyer hereby grants to Seller a purchase money security interest in such Scope of Supply and Products to secure the full and prompt payment of the Contract Price. In the event of default in payment, Seller has all rights of repossession and other rights available to a secured party under the Uniform Commercial Code or other applicable law. Buyer agrees that no part of such Products or Scope of Supply is considered a fixture or a part of any realty by reason of its being attached to real estate, and any Products and Scope of Supply may be separated from real estate for purpose of repossession by Seller.

8. Limited Warranties:

8.1 Limited Warranties Regarding Products:

8.1.1 Subject to the provisions of this Section 8.1 and Section 8.3, Seller warrants that the Products in the Scope of Supply shall be free of defects in assembly and workmanship under normal use and service (a “Defect”). This warranty shall expire on the last day of the Warranty Period.  The Warranty Period shall be twelve (12) months from the date of Product shipment unless otherwise specified.   Seller’s warranty obligation is expressly limited to the repair or replacement of Product parts that have a Defect (a “Defective Part”).

8.1.2 Subject to the limitations and provisions contained in Section 8.1.4, Seller shall be responsible for remedying any Defect under Section 8.1.1 provided that Buyer gives detailed written notice to Seller of the Defect (with substantiating documentation): (i) promptly upon discovery of the Defect (and in no event later than seven (7) days after discovery); and (ii) prior to the end of the Warranty Period.

8.1.3 To the maximum extent permitted by applicable law, Seller shall have no liability for any form of Defect under Section 8.1.1, latent or otherwise, for which it received written notification after the Warranty Period. For the avoidance of doubt, the warranty period of any Product in the Scope of Supply that has been rectified by Seller during the Warranty Period shall cease at the expiration of the original Warranty Period.

8.1.4 Where Seller is responsible for a Defect under Section 8.1.1, Seller shall investigate and rectify the Defect as soon as reasonably practicable (taking into consideration the nature of the Defect, lead-time for replacement parts, etc.). Seller reserves the right to inspect Products and component parts thereof claimed to be defective at either the Buyer’s location or at Seller’s facility.   Rectification of a Defect under Section 8.1.1 shall be by way of repair or replacement, at Seller’s option, of the relevant Defective Part.  Upon receipt of a warranty claim from Buyer for a part claimed to be defective, Seller will issue a Return Merchandise Authorization (an “RMA”) to Buyer after which Buyer shall return the part in question to Seller, at Buyer’s expense.  If upon inspection Seller determines that the allegedly defective part is covered by Seller’s warranty, Seller will, at its option, either provide Buyer with a replacement part or, if Buyer has already placed an order for a replacement part under standard billing, issue a credit to Buyer to be applied against the Buyer’s replacement part order.   Seller shall have no responsibility for any work performed by a third party.  Any replacement parts shall be delivered according to the same delivery terms as specified in the Contract. Buyer shall be responsible for all labor, equipment, and costs used or incurred in the disassembly, removal, transport, installation and commissioning of repaired or replaced Defective Parts. Seller shall not be deemed to have breached any of its warranty obligations where it has rectified a Defect according to this Section.

8.1.5 Seller´s responsibility for any Defect under Section 8.1.1 is subject to the condition that it is not caused by one or more of the following: (i)normal wear and tear of parts; (ii) use of non-original replacement parts; (iii) use of consumables or utilities not in strict conformity with the specifications stated in the Contract or in Seller´s written manuals; (iv) any failure of upstream and/or downstream equipment; (v) modifications without Seller’s express prior written consent; (vi) use of corrosive or abrasive substances; (vii) the storage, handling, use, operation or maintenance of any Products which is not in strict conformity with good engineering practice, the Contract or any written requirements of Seller, including any failure to comply with Seller’s written manuals and instructions and Buyer’s own quality assurance requirements; (viii) information, services, personnel, equipment or other items supplied by or for Buyer; (ix) failure to permit Seller to perform Acceptance Tests, supervision of installation and/or installation; (x) improper installation by Buyer or its agents; (xi) chemical reversion or reaction to Buyer’s product; (xii) Buyer failing to provide suitable premises in which the Products are to be located; and/or (xiii) other conditions or circumstances not due to the fault of Seller (collectively, “Warranty Conditions”).

8.1.6 If the Contract provides for Acceptance Tests for purposes other than those stipulated in Section 8.2, such tests shall be performed by Seller or its designee, with the assistance of such trained and qualified personnel of Buyer as may be required by Seller, to verify whether the Products are free of material Defects under the warranty stated in Section 8.1.1. In such case, these Acceptance Tests will be subject to the provisions of paragraphs 1, 2 and 4 of Appendix A. Seller’s obligations in respect of these Acceptance Tests will be discharged in full and Buyer shall be deemed for all purposes to have accepted the Products and Scope of Supply upon the earliest of the following: (i) Buyer takes the Products/Scope of Supply into commercial production; (ii) Buyer is responsible for a delay, in whole or in part, in the execution of the Acceptance Tests for more than 1 month from readiness of delivery of the main Products, completion of commissioning, or completion of installation , whichever is earliest; or (iii) a material Defect is identified during the tests and Seller has rectified the Defect according to the provisions of Section 8.1.4.

8.1.7 Used materials included in the Scope of Supply are sold as-is with no warranty, express or implied.

8.2 Performance Warranties:

8.2.1 Subject to the provisions of this Section 8.2, Section 8.3 and Appendix A, Seller warrants, upon the completion of Scope of Supply installation, commissioning and start-up, the Products in the Scope of Supply will, at that time, meet the performance specifications set forth in the Contract, if any (the “Performance Warranty”).   Seller’s obligations under the Performance Warranty shall be deemed fully satisfied upon successful completion of the Acceptance Tests, after which the Performance Warranty will expire and Seller shall not have any further Performance Warranty obligations. 

8.2.2 Technical figures, data and other descriptions of any kind concerning or relating to the process, performance or functionality of the Scope of Supply, including its individual parts, which are not expressly and specifically labelled as a “Performance Warranty” shall not constitute a Performance Warranty as that term is used herein. Such figures, data and descriptions shall be indicative only and non-binding.

8.2.3 All Performance Warranties, if any, are expressly conditioned upon and subject to: i) Buyer providing a steady and constant stream of materials and utilities in strict conformity with the specifications stated in the Contract; ii) the furnishing by Buyer of trained, qualified and sufficient personnel as required by Seller during the Acceptance Tests; iii) Seller being given access to all of Buyer’s operating and maintenance records and data; iv) Buyer undertaking all analyses of product and utilities as required by Seller in writing; v) Seller performing or technically directing the performance of the Acceptance Tests; vi) any other warranty conditions specified in these Terms or the Contract to the extent not stated in the foregoing; and vii) the conditions and other provisions of Appendix A.

8.3 Disclaimer and Limitations:

To the fullest extent permitted by applicable law, (i) SELLER HEREBY EXCLUDES AND DISCLAIMS ALL CONDITIONS, WARRANTIES, GUARANTEES AND REPRESENTATIONS THAT ARE NOT EXPRESSLY SET OUT IN SECTIONS 8.1 AND 8.2 OR WHICH ARE IMPLIED, STATUTORY, CUSTOMARY OR OTHERWISE AND WHICH, BUT FOR THIS EXCLUSION AND DISCLAIMER, WOULD OR MIGHT SUBSIST IN FAVOR OF BUYER, INCLUDING ANY WARRANTIES AS TO FITNESS FOR SPECIFIC PURPOSE OR MERCHANTABILITY; (ii) Buyer’s remedies as set forth in Section 8.1.4 and in paragraph 5 of Appendix A shall be Buyer’s sole and exclusive remedies in respect of any Defect in the Products or Scope of Supply, including any Defect covered by Section 8.1 or in respect of any failure to achieve any Performance Warranty covered by Section 8.2; and (iii) Seller shall not be liable for any loss or damage, including any loss or damages described in Section 10.5 below, caused by or resulting from any breach of warranty or any defect, including any Defect covered by Section 8.1 or any failure to achieve any Process Warranty covered by Section 8.2. If it is ultimately determined by final unappealable order of a Court of competent jurisdiction that this remedy fails of its essential purpose or that this disclaimer and limitation of warranties is not enforceable, in no event shall Seller’s maximum liability exceed the Contract Price actually received by Seller and attributable to the portion of the Scope of Supply for which the exclusive remedy has failed.

9. Confidentiality and IP:

9.1 Buyer shall treat all information, drawings and data of any kind made available or provided by Seller in any proposal, quotation or offer or under any Contract, whether orally, electronically, in writing, visually (such as through site visits, tests or audits) or otherwise, including without limitation information pertaining to Seller’s products, services, designs, processes, concepts, techniques, markets, strategy and pricing,  regardless of whether marked as confidential (the “Confidential Information’’), as the private property of Seller and confidential in nature. Buyer shall not publish or disclose Confidential Information or any particulars thereof (except as may be necessary for the purposes of the Contract, including disclosure to its and its affiliates’ officers, directors and employees, and/or as required by the rules of a public stock exchange or by applicable law), without the previous written consent of Seller. Buyer may use Confidential Information only for the work covered by the Contract and not for any other purpose or project. Nothing in this Section 9 shall prevent the publication or disclosure of any Confidential Information which either has come within the public domain other than by breach of this provision or breach of any other agreement between Buyer and Seller or was already in the possession of Buyer with a right to disclose and use such information.

9.2 Any disclosure for the purposes of the Contract shall be made against an undertaking of non-use and confidentiality from Buyer on terms at least as stringent as set out in this Section 9. In respect of any disclosure required by a stock exchange or by applicable law, Buyer shall disclose only that portion of the Confidential Information it is legally required to disclose and to exercise all reasonable efforts to obtain confidential treatment for such Confidential Information.

9.3 Intellectual property or patent rights which may be obtained on the basis of the information given or made available to Buyer in Seller’s proposal, quotation or offer, under the Contract, or with respect to Seller’s Products, Services or Scope of Supply, including, without limitation, any discovery, invention, improvement or enhancement to Seller’s Products, Services or Scope of Supply or the process, operating parameters, or controls associated with such Products, Services or Scope of Supply, will remain the exclusive property of Seller or its subcontractors and/or sub-suppliers, respectively. Buyer shall not, nor shall Buyer permit any third party to, reverse engineer or otherwise technically examine, measure or test Seller’s Products or Scope of Supply (except for the purposes of maintaining and operating the Products) without Seller’s prior written consent.

9.4 Subject to payment in full by Buyer of the Contract Price, Buyer shall have a non-exclusive, non-transferable and royalty free license to use the intellectual property rights in the Scope of Supply and any Confidential Information provided by Seller for the sole purpose of operating and maintaining the Products provided under the Contract and strictly for the application and use set out in the Contract, subject at all times to subsisting third party rights and the obligation of confidentiality. Buyer may transfer the intellectual property rights in the Scope of Supply only together with the title in the Scope of Supply and the transferee of such rights and title shall be subject to the provisions of this Section 9.

9.5 Seller will defend and indemnify Buyer and hold Buyer harmless from and against any liability arising out of any claim that the method of manufacture or design of the Products infringes any United States utility patent apparatus claim. The foregoing indemnity for any infringement claims does not apply to the extent that any such claims result from: (i) the interconnection, combination or use of the Products with equipment, services, systems or software not supplied by Seller; (ii) specifications, including designs and instructions, prepared by Buyer or third parties on its behalf; (iii) modification of the Scope of Supply without Seller’s prior written consent; (iv) any process, method, product or by product process patent claim; (v) the use of the Scope of Supply as part of a Buyer process, including any product thereby produced or processed; (vi) any patent issued outside the country where Seller has its registered offices; or (vii) any patents owned or acquired by Buyer or by any holding company and subsidiary of Buyer. In each of the foregoing cases (i) through (vii), Buyer will defend, indemnify and hold Seller harmless for any infringement claims. In all cases of either party’s indemnity provided in this paragraph, the party seeking indemnity must promptly notify the other party in writing of such claim of infringement; the defense of any legal action relating to such claim will be under the direction and control of the indemnifying party; the indemnified party shall cooperate with the indemnifying party in making such defense; and the indemnifying party will have complete control of the litigation or proceeding, including the amount of any settlement (provided the indemnified party has no monetary contribution obligation with regard to such settlement) and the choice in retention of counsel, and shall bear all expenses of such defense; provided, however, that the indemnified party may be represented in such action by its own counsel at its own expense. In the event that the Products or any portion thereof is held to infringe the intellectual property rights of any third party such that Seller would be required to indemnify Buyer hereunder, Seller will, at its option and at its sole cost and expense: (a) procure for Buyer the right to continue the use of the Products; (b) replace the Products or any portion of the Products with non-infringing goods of similar quality and utility; or (c) modify the Products to the extent necessary to become non-infringing. Indemnity under this paragraph is Buyer’s sole and exclusive remedy for the infringement provided for in this paragraph.

10. Remedies and Limitations of Liability:

10.1 Reasons for Termination:

10.1.1 A party may terminate the Contract by giving written notice thereof to the other party if: (i) a provision of these Terms gives the party an express entitlement to terminate the Contract, (ii) the other party fails to perform any material obligation under the Contract and has not developed a cure of the failure within 30 days of receipt of written notice of such failure from the non-defaulting party and does not diligently pursue the cure thereafter, (iii) the other party becomes the subject of liquidation, bankruptcy or other insolvency proceedings, has a receiver appointed over any of its assets or undertakings, makes any arrangement or composition with its creditors (excluding a scheme of arrangement as a solvent company for the purposes of amalgamation or reconstruction) or is the subject of any similar arrangement, event or proceedings. Notwithstanding the foregoing, where Seller’s default is based on a failure of the Scope of Supply to meet a material requirement of the Contract, the time period within which Seller must complete the cure will be agreed to by the parties based on the reasonable time required for material re-supply, re-fabrication and/or re-manufacture of any replacement of, or any repair or modification to the Scope of Supply and Buyer must permit Seller to have reasonable access and opportunities to investigate and cure any alleged default.  Buyer acknowledges that due to the unique nature of the Scope of Supply, multiple attempts by Seller may be required in order properly analyze and identify the reason why the Scope of Supply may not meet a material requirement of the Contract and to develop an applicable solution, and Buyer shall afford Seller with multiple opportunities, as reasonably required under the circumstances, to complete the cure before taking any action to terminate the Contract.

10.2 Termination by Buyer:

10.2.1 Where Buyer has a right to terminate the Contract pursuant to Section 10.1.1 and Buyer has terminated the Contract by giving timely written notice thereof, the liability of Seller to Buyer upon such termination shall be limited to the lesser of (i) the reasonable additional costs in excess of the Contract Price that are required to complete the Scope of Supply;  (ii) the difference between the fair market value of the Scope of Supply as delivered and the Contract Price; and (iii) the amount specified in Section 8.1.4. To the maximum extent permitted by applicable law, such rights of Buyer upon termination shall be to the exclusion of any other remedies that may be available to Buyer in case of termination or rescission / withdrawal; provided however that in no event shall Seller’s liability to Buyer exceed the Contract Price.

10.2.2 Seller shall have no liability for any other cost and expense, loss or damages incurred by Buyer and, except for the obligations under Section 9 and Section 10.2.1 above, neither party shall have any further liability or obligation to the other party under or arising out of the Contract, to the maximum extent permitted by applicable law.

10.2.3 If expressly stated in the Contract that Buyer may terminate the Contract for convenience, or in case Buyer may be entitled to such right under the applicable statutory law, and where Buyer exercises such right, Seller shall be entitled to: (i) payment of the Contract Price equivalent to the portion of the Scope of Supply completed; (ii) reimbursement for any additional direct costs and internal labor costs incurred by Seller in furtherance of the Contract as of the date of termination that are not otherwise included in the portion of the Contract Price due to Seller under the preceding clause (i); and (iii) costs arising from Buyer’s termination, including without limitation penalties and cancellation costs imposed by Seller’s suppliers, with a 20% markup on the costs identified in clauses (ii) and (iii).

10.3 Termination by Seller:

Where Seller has a right to terminate the Contract pursuant to Section 10.1 and Seller terminates the Contract by giving timely written notice thereof, Seller shall be entitled to compensation as if the Contract had been terminated due to a Force Majeure Event according to Section 6.7 of the Terms except that Seller shall also be entitled to payment in full of the profit that Seller expected under the Contract.

10.4 Exclusive Remedies:

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BUYER’S RIGHTS AND REMEDIES AS EXPRESSLY STATED IN THESE TERMS (WHETHER BY WAY OF DAMAGES, PAYMENT OR REIMBURSEMENT OF COSTS,  MAKE GOOD OR REMEDIATION, TERMINATION OR OTHERWISE) SHALL BE ITS SOLE AND EXCLUSIVE RIGHTS AND REMEDIES REGARDLESS OF THE EVENTS, CIRCUMSTANCES OR THEORY ON WHICH A CLAIM MAY BE BASED (INCLUDING TERMINATION, BREACH OF CONTRACT OR STATUTORY DUTY, NEGLIGENCE OR OTHER TORT, STRICT LIABILITY, INDEMNITY, RESCISSION / WITHDRAWAL OR OTHERWISE).

10.5 Exclusion of Certain Damages:

NOTWITHSTANDING ANY OTHER PROVISION TO THE CONTRARY IN THE TERMS OR THE CONTRACT OR THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY EXCLUSIVE OR LIMITED REMEDY, EXCEPT ONLY (i) TO THE EXTENT OF ANY LIQUIDATED DAMAGES SPECIFICALLY PROVIDED FOR IN THE CONTRACT AND (ii) TO THE EXTENT THE EXCLUSION OF SELLER’S LIABILITY IS PROHIBITED BY APPLICABLE LAW (IN WHICH CIRCUMSTANCES SELLER’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW):

SELLER SHALL IN NO CASE WHATSOEVER BE LIABLE TO BUYER FOR ANY (A) LOSS OF REVENUES OR PROFITS; LOSS OF OPPORTUNITY, PRODUCTION OR CONTRACTS; LOSS OF USE; STANDBY COSTS; LOSS OF OR DAMAGE TO FEED, RAW MATERIALS, UTILITIES OR PRODUCT; PLANT DOWNTIME OR DELAYS; LOSS OF GOODWILL; LIQUIDATED DAMAGES OR PENALTIES IMPOSED ON BUYER BY ITS CUSTOMERS OR THIRD PARTIES; BUYER’S CONTRACTUAL LIABILITY TOWARDS ANY THIRD PARTY; COSTS TO RECALL BUYER’S PRODUCT; ANY DAMAGES FINES OR PENALTIES PAYABLE BY BUYER; OR OTHERWISE FOR ANY FINANCIAL OR ECONOMIC LOSSES OR DAMAGES, AND IN EACH CASE IRRESPECTIVE WHETHER THE LOSSES OR DAMAGES IN QUESTION ARE DEEMED OR CLAIMED TO BE DIRECT, CONSEQUENTIAL, INDIRECT OR OTHERWISE, OR (B) FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY, LOSSES OR DAMAGES HOWSOEVER CAUSED OR ARISING; OR (C) FOR ANY LOSS OR DAMAGE TO THE EXTENT ARISING OUT OF THE SOLE OR CONTRIBUTORY NEGLIGENCE OF BUYER, ITS EMPLOYEES OR AGENTS OR ANY THIRD PARTY.

10.6 Maximum Aggregate Liability:

NOTWITHSTANDING ANY OTHER PROVISION TO THE CONTRARY IN THE TERMS OR THE CONTRACT OR THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY EXCLUSIVE OR LIMITED REMEDY, EXCEPT ONLY TO THE EXTENT THE EXCLUSION OR LIMITATION OF SELLER’S LIABILITY IS PROHIBITED BY APPLICABLE LAW (IN WHICH CIRCUMSTANCES SELLER’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY APPLICABLE LAW), SELLER’S MAXIMUM AGGREGATE LIABILITY TO BUYER UNDER OR IN CONNECTION WITH THE CONTRACT SHALL IN NO CASE EXCEED THE CONTRACT PRICE AS RECEIVED BY SELLER, IRRESPECTIVE WHETHER SUCH LIABILITY ARISES BY WAY OF BREACH OF CONTRACT (INCLUDING TERMINATION) OR OF STATUTORY DUTY, NEGLIGENCE OR OTHER TORT, STRICT LIABILITY, INDEMNITY, CONTRACT PRICE REDUCTION OR REPAYMENT, TERMINATION, RESCISSION/WITHDRAWAL, MAKE GOOD OR REMEDIATION OR OTHERWISE.

10.7 The expiration of the Warranty Period shall, to the maximum extent permitted by applicable law, constitute conclusive evidence for all purposes and in all proceedings whatsoever between the parties that Seller has completed its obligations under or arising out of the Contract and performed the Scope of Supply and made good all Defects therein in accordance with its obligations under the Contract. After the expiration of the Warranty Period, all claims of any nature whatsoever Buyer may have against Seller, whether known or not, under or arising out of the Contract and the use of the Scope of Supply, and any right, cause of action and or remedy shall be deemed to be barred and extinguished. Provided always that this provision shall not apply in case of fraud or to the extent any proceedings were commenced and served in writing on Seller within the Warranty Period.

10.8 TO THE EXTENT THAT BUYER MAKES ANY CLAIM UNDER ANY FRAUD OR TORT THEORY FOR THE PURPOSE OF CIRCUMVENTING THE LIMITATIONS AND DISCLAIMERS SET FORTH ABOVE AND IS UNSUCCESSFUL IN PREVAILING ON THOSE CLAIMS, BUYER HEREBY AGREES TO REIMBURSE AND INDEMNIFY SELLER FOR ALL ATTORNEYS’ FEES AND EXPENSES AND COSTS INCURRED BY SELLER IN DEFENDING THOSE CLAIMS.

11. Directives / Changed Laws / Permits / Safety:

11.1 The Scope of Supply shall comply with governmental directives, laws, rules, regulations, codes and standards (collectively “Laws”), if any, that are expressly stated in the Contract, as the same are in effect on the date the Contract is executed/formed (the “Contract Date”).  If after the Contract Date any change in Laws (“Changed Law”) affects the Scope of Supply and/or Seller’s means or manner of executing its work and which Seller is required by such Changed Law to comply with and implement, Seller shall be entitled to an equitable adjustment to the amounts due from Buyer under the Contract and to the time periods for performance by Seller under the Contract, including the remedies set out in Section 6.6.  Seller shall have no responsibility for compliance with any emission, discharge or other environmental requirements, except to the extent specifically set forth in the Contract. Seller shall have no responsibility for any other Changed Law.

11.2 Buyer shall be responsible for (i) all permissions, consents and permits in connection with the Site; (ii) maintaining the Site in a safe working condition for all personnel at the Site at any time, providing safe means of access to the Site and Scope of Supply at all times, conducting all activities on the Site in a safe manner and as prescribed by applicable directives, laws, rules, regulations, codes and standards and as set forth in the operating and maintenance manuals and instruction sheets furnished by Seller; (iii) not removing or modifying any safety device, guard or warning sign provided as part of the Scope of Supply. If Buyer fails to strictly observe any of the obligations in this Section, Buyer shall indemnify, defend and hold Seller harmless from any resulting claims and liability arising out of loss or damage to any property or out of bodily injury or death, except to the extent directly caused by the negligence of Seller.

12. Amendment to the Contract:

12.1 No change in, addition to, or waiver of the provisions of the Contract shall be binding upon Seller or Buyer, unless contained within an identified written formal amendment to the Contract or Change Order duly executed by both Buyer and Seller.

13. Export Control:

13.1 Buyer acknowledges that the Products to be provided by Seller in the Scope of Supply are or may be controlled by federal export control laws and regulations (“Export Control Laws”).  Seller shall be entitled to reimbursement from Buyer for all additional costs and expenses incurred by Seller in conjunction with Seller’s compliance with Export Control Laws, including costs and expenses incurred in obtaining an export license for the Products to be provided in the Scope of Supply (“Export License”). Buyer agrees to promptly provide to Seller all necessary information that may be requested in order for Seller to obtain an Export License, such as end-user certificates. Seller will promptly inform Buyer about any material delay in obtaining an Export License, a revoked license or any prohibition to execute the Contract.  Seller shall not be liable to Buyer for any delays associated with securing an export license for the Products or Scope of Supply.

13.2 If an Export License is denied or revoked or if an embargo prohibits the execution or performance of the Contract or if any other event arising in conjunction with or relating to Export Control Laws (each an “Export Control Event”) will hinder Seller in fulfilling one or more of its contractual obligations,  Seller shall be excused from the performance of its obligations under the Contract, with immediate effect. This shall, without limitation, also apply in case that Seller may be hindered to fulfill its contractual obligations due to any of Seller´s suppliers or subcontractors being hindered by an Export Control Event to supply the Products all or in part. In any case, Seller shall not be liable or accountable to Buyer for any claims for delay, loss or damage in connection with an Export Control Event.

13.3 Subject to Section 13.2, if Seller gives notice to Buyer that the performance of Seller’s obligations under the Contract will be hindered by Export Control Laws, export licensing thereunder or an Export Control Event, each party shall be entitled to terminate the Contract upon seven (7) days’ prior written notice of termination to the other party. In the event of such termination, Seller shall be entitled to all costs and expenses (including without limitation all direct costs and internal labor costs) for all work in progress under the Contract or for which Seller is liable to pay to any supplier or subcontractor due to the termination of the Contract, as well as to all losses and damages arising from or related to the termination.

13.4 Buyer shall strictly comply with all Export Control Laws and shall implement and follow all necessary procedures to comply with Export Control Laws related to the Products to be provided by Seller under the Scope of Supply and guarantees not to engage in any activity which it or Seller reasonably believes could be subject to civil, criminal or administrative liability, including but not limited to the sale, lease, transfer, or sublicensing of any Products without appropriate authorization and licensing. Buyer shall indemnify and hold harmless Seller from and against any claim, proceeding action, fine, cost, loss and damage arising from or related to the breach of this warranty.

14. Data Processing:

14.1 Buyer agrees that Seller will collect, process and use personal data and other data disclosed by Buyer in the course of the business relationship with Seller for the purpose of (1) managing and performing the Contract (which includes the creation and processing of invoices), (2) advertising and/or offering further goods and services to Buyer and/or (3) managing the business relationship with Buyer through a customer relationship management system. Such data may include the following data categories of persons being employed or retained by Buyer: name, title, company, function within the company, business contact details (phone- and fax-number, email-address, mail address), history of orders, history of issues (e.g. warranty claims or disputes). Within the limitation of the above-described purpose, Seller can collect, process and use the above-described data by itself and/or through the use of affiliates or other external subcontractors.

15. Miscellaneous:

15.1 If any provision of these Terms or the Contract is determined to be invalid or unenforceable by a court of competent jurisdiction, it shall not affect the validity or enforceability of the remaining provisions and the parties will substitute the invalid or unenforceable provision by a valid provision that achieves as closely as possible the same economic effect.

15.2 Any section, clause or paragraph headings or other headings appearing in the Terms are for reference only and shall not affect the construction of those sections, clauses or paragraphs. Words importing the singular shall include the plural and vice versa where the context requires.

15.3 All communications, verbal or written, notices, documents and drawings given by one party to the other or exchanged or made available between the parties and including in the course of any Site related activities where applicable, shall be in English in a fluent, correct and intelligible manner.

15.4 Neither these Terms nor the Contract shall  be construed or interpreted against or to the disadvantage of either Buyer or Seller, whether on the grounds that the Terms or Contract represents Buyer’s or Seller’s standard or customary terms and conditions of business and/or that the Terms or Contract and/or any particular recital, article, section, clause and or annex or appendix thereof may have originated from Buyer or Seller or other similar grounds.

15.5 The Contract and these Terms set forth the entire agreement between Seller and Buyer with respect to the subject matter thereof and supersedes any previous agreement or arrangement between the parties. Except to the extent expressly and specifically set forth in the Contract, all oral representations, warranties, undertakings and other statements of any kind and all documents given or exchanged on or prior to the date of Contract (including any brochures or sales material of Seller) are expressly excluded and disclaimed by Seller. Buyer acknowledges that it has not relied on and is not relying on any such representations, warranties, undertakings, statements or documents when entering into the Contract.

15.6 The Contract may not be assigned by either party without the other party’s prior written consent, except that no consent is required for a party to assign the Contract to an affiliate as part of a corporate reorganization. Notwithstanding the preceding sentence, Seller is not required to obtain consent to subcontract any part of its obligations under the Contract. The Contract shall be binding upon and inure to the benefit of each of the parties and to their respective legal successors and assigns. Seller may assign receivables under the Contract to a financial entity financing Seller’s performance and Seller may provide to such financial entity copies of the invoices to which those receivables relate.

15.7 No delay or omission by either party to exercise any right or power accruing upon any default will impair any such right or power or will be construed as a waiver thereof, but any such right or power may be exercised from time to time and as often as may be deemed expedient.

16. Disputes/Applicable Law:

16.1 Any dispute arising out of or in connection with the Terms or the Contract, including any question regarding the Contract’s existence, validity or termination, shall first be submitted to a senior executive dispute resolution process and mediation prior to the institution of litigation, provided that the settlement negotiation process can be completed within the statute of limitations. Either party may notify the other party in writing of the nature of the claim or dispute with as much detail as possible about the alleged deficient performance of the other party (the “Dispute Notice”). Within 14 days after delivery of a Dispute Notice, a senior executive (a President or Vice President level) of each party shall meet in person or by telephone at a mutually acceptable time and place to attempt to resolve the dispute. They shall negotiate in good faith, attempting to reach a resolution satisfactory to both parties. If the senior executives have not resolved the matter, or agree upon a written plan of corrective action, within 45 days of delivery of a Dispute Notice, or if they fail to meet within 30 days after delivery of a Dispute Notice, either party may initiate mediation with a mediator and mediation location acceptable to both parties. All settlement negotiations shall be confidential and will be treated as compromise and settlement negotiations for purposes of applicable rules of evidence.

16.2 Any dispute arising out of or in connection with the Terms or the Contract, including any question regarding the Contract’s existence, validity or termination, shall exclusively be referred to and finally resolved by the United States District Court for the Middle District of Pennsylvania or the Court of Common Pleas of York County, Pennsylvania.  The governing law of the Contract shall be the substantive laws of Pennsylvania without regard to conflict of law’s provisions.

16.3 EACH PARTY IRREVOCABLY WAIVES ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION BROUGHT TO ENFORCE THE TERMS OF THE CONTRACT.

16.4 EXCEPT AS SPECIFICALLY PROVIDED IN THESE TERMS OR THE CONTRACT, EACH PARTY IRREVOCABLY WAIVES ANY RIGHT TO THE RECOVERY OF ATTORNEY’S FEES.

17. Insurance:

17.1 Seller shall, upon execution of the Contract and throughout the performance of its obligations hereunder, maintain in effect and shall furnish certificates of insurance upon Buyer’s request evidencing the insurance coverage based on the amounts and limits as follows: (i) Comprehensive General Liability Insurance including contractual liability coverage with specific reference to liability assumed herein and including coverage for products liability and completed operations which includes coverage for bodily injury and property damage with limits of $1,000,000 for each occurrence, and $2,000,000 in the aggregate; (ii) Comprehensive Automobile Liability Insurance including coverage for owned, non-owned and hired vehicles with limits of $1,000,000 for each occurrence for bodily injury and death, and property damage; and (iii) Workmen’s Compensation Insurance as required by statute in the specific jurisdiction where the work is to be performed.

17.2 Buyer shall ensure that Seller and its subcontractors carrying out the Site Services (if applicable) are covered under an all-risk insurance policy applicable to the Scope of Supply and the Site. Such cover shall be primary and name Seller as an additional insured. Seller shall be entitled upon request to a copy of the policy in question. The deductible, if any, shall be at Buyer’s cost.

APPENDIX A

ACCEPTANCE TESTS AND PROCESS WARRANTIES

1. Acceptance Tests / Conditions:

Acceptance Tests shall be conducted promptly by Seller or its designee with the assistance of such trained and qualified personnel of Buyer as may be required by Seller. In addition to any other obligations it has under the Contract, Buyer shall ensure during the Acceptance Tests that (i) all materials and utilities conform strictly to the specifications of the Contract (or if no such specifications are stated, according to the Testing Protocol provided by Seller pursuant to paragraph 2 below), (ii )all analyses of the materials, utilities and product are timely provided as required by Seller, and (iii) that all upstream and downstream equipment from the Products operates properly. Where the Acceptance Tests are not supervised or conducted by Seller, Buyer shall allow Seller to attend and witness the Acceptance Tests and Seller shall be entitled to a copy of all related inspection reports and records. Where stipulated in the Contract or as reasonably requested by Seller, the Scope of Supply will be tested in sections, in which case the provisions of this Appendix A shall apply to each section.

2. Testing Protocol:

Except to the extent detailed in the Contract, the procedures and requirements for the Acceptance Tests shall be in accordance with Seller’s test procedures and requirements. These procedures and requirements, as adapted to the Scope of Supply and the Contract, shall be provided by Seller to Buyer in the form of a “Testing Protocol” prior to the expected start of any Acceptance Tests. The Testing Protocol will specify, among other things, any pre-conditions, any Performance Warranties not previously discharged and the subject of the Acceptance Tests, length of the relevant Acceptance Tests, measurement tolerances and the procedures and methods for conducting the Acceptance Tests.

3. Plant Acceptance:

The Performance Warranties and Seller’s obligations in respect of any Acceptance Tests shall be discharged in full and Buyer shall be deemed for all purposes to have accepted the Products and Scope of Supply if any one or more of the following applies:

3.1 The Products have on average performed in accordance with the Performance Warranties; or

3.2 Any part of the Products is taken into commercial use by Buyer prior to completion of the Acceptance Tests; or

3.3 The Products have not passed the Acceptance Tests for reasons attributable in whole or in part to Buyer within 1 month from readiness of delivery of the main Products, completion of commissioning or completion of installation, whichever is the earliest.

4. Acceptance Certificate:

When the Products and Scope of Supply shall be deemed to have passed the Acceptance Tests according to paragraph 3 above, Seller shall submit to Buyer and Buyer shall immediately sign an acceptance certificate for the Scope of Supply (“Acceptance Certificate”). The Acceptance Certificate shall state the date when the Performance Tests were deemed to have been passed.

Buyer shall not be entitled to delay or refuse to issue the Acceptance Certificate due to the existence of defects or omissions that do not adversely and materially affect the operation of the Products or Scope of Supply; any such alleged defects and omissions shall be noted by Buyer on the Acceptance Certificate and, to the extent they constitute defects in the Products or Scope of Supply as specified in the Contract,  will be addressed by Seller as soon as reasonably practical thereafter, but without in any way affecting the validity or effect of the Acceptance Certificate.

If Buyer fails to issue the Acceptance Certificate within 14 days of when Buyer is obliged to do so under this paragraph 4, Buyer shall be nonetheless deemed to have issued the Acceptance Certificate effective as of the date when the Products and Scope of Supply is deemed to have passed the Performance Tests under paragraph 3 above without any conditions or qualifications.

Buyer may take the Products and Scope of Supply (or relevant section thereof) into use only after issuance of an Acceptance Certificate. On the issuance or deemed issuance of the Acceptance Certificate, Buyer shall perform all its obligations, including payment, which then become due.

5. Failure to pass the Acceptance Tests:

If during the Acceptance Tests the Products or Scope of Supply fail to achieve the Performance Warranties, Seller shall as soon as possible investigate the reasons for such failure and inform Buyer of the results of its investigation. Buyer shall, at its cost, fully co-operate with Seller in such investigation and shall provide Seller with all access, resources, information and documentation required by Seller to determine the cause of the failure. If it is determined that the cause of such failure is due to reasons attributable to the fault of Seller (and not to any fault attributable in whole or in part to Buyer), Seller shall without delay and at its own cost undertake all reasonable actions to remedy the cause of the failure and, unless the failure was insignificant, the relevant part of the Acceptance Tests shall be repeated.

If, notwithstanding such efforts, the Products still fail to pass one or more repeats of the relevant part of the Acceptance Tests, for reasons attributable to the fault of Seller (and not to any fault attributable in whole or in part to Buyer), Seller may, after consultation with Buyer and after affording Seller a reasonable number of attempts to assess and remedy the failure, taking into consideration the nature of the failure, lead-time for replacement parts, etc.), agree to further remedial actions acceptable to both Buyer and Seller.

If Seller is prevented, for more than 14 days, from carrying out an Acceptance Test or an Acceptance Test fails to pass in each case for reasons attributable in whole or in part to Buyer, the Acceptance Tests shall be deemed passed and Seller shall be entitled to payment by Buyer for its additional Seller costs.

6. Delay in Acceptance:

If the Acceptance Tests are delayed or prolonged due to reasons not attributable in whole or in part to Seller, Seller shall be entitled to payment by Buyer for its additional Costs.