Procurement -> General Terms and Conditions
Standard Purchase Order Terms & Conditions
Unless a separate written agreement containing relevant terms and conditions exist between Buyer and Vendor, the attached to and incorporated by reference in the Purchase Order (“Agreement”) between Buyer and Vendor applies.
NOTICE: Any sale of Products (defined herein) and/or Services identified herein is expressly conditioned on the Vendor’s assent to the terms and conditions contained or referred to herein. Any additional or different terms proposed by Vendor are expressly objected to and will not be binding upon Buyer unless specifically assented to in writing by Buyer’s authorized representative. Any statement of intent to perform hereunder, or Vendor’s performance of work or provision of Products shall constitute assent to Buyer’s terms and conditions.
Capitalized terms have the meanings given to such terms in these General Conditions, or if such terms are not defined in the General Conditions, in other documents which comprise the Agreement.
1. HARMONY AND PRIORITY OF DOCUMENTS: The Agreement is comprised of multiple documents that are listed below in 1 (c), (d), and (e). All documents that comprise the Agreement are intended to be construed as a single unified and harmonious instrument. In the event of internal discrepancy or inconsistency between or among defined terms or other provisions of the Agreement, the statement of such term or provision which appears in the highest priority portion of the Agreement shall prevail. The order of priority of the various documents or portions thereof which comprise the Agreement is as follows, in descending order of priority:
(a) (highest priority) those portions of the Agreement contained in any amendments or supplements subsequently executed by Buyer and Vendor which expressly state that they amend or supplement the Agreement or any portion thereof;
(b) any handwritten or typewritten interlineations or modifications of the Agreement or any portion thereof, provided that the same are made in conjunction with initial execution of the Agreement and are separately signed or initialed by both parties;
(c) those portions of the Agreement which appear in the body of the Purchase Order rather than in the attachments, schedules, exhibits, appendices, and General Conditions;
(d) the attachments, schedules, exhibits and appendices of the Agreement, as modified from time to time if applicable; and
(e) these General Conditions, plus any supplements appended to the General Conditions contemporaneously.
In the event of inconsistency between two documents of equal priority, the later in time of the two documents shall prevail.
2. SHIPPING: The Vendor shall be responsible for all costs of shipping. Buyer’s count will be accepted as final on shipments not accompanied by Vendor’s itemized packing slips.
3. PATENTS: Vendor warrants that the equipment or products being provided by Vendor pursuant to the Agreement with Buyer (the “Products”) that may be provided under the Agreement (other than Products designed or manufactured to Buyer’s specifications) do not infringe any intellectual property right. Vendor shall, at its sole expense, hold harmless Buyer from and against, and shall defend any suit or proceeding brought against Buyer based on a claim that the manufacture, use or sale of any equipment, or any part thereof supplied under this Agreement constitutes infringement of any patent, copyright, trademark, or proprietary information rights or others, and Vendor shall pay all damages and costs awarded therein against Buyer. Vendor shall be notified promptly in writing of the suit or proceeding and shall be given adequate authority, information and assistance (at Vendor’s expense) for the defense of same, subject to the right of Buyer to participate at its expense and to be fully advised by Vendor in advance of all actions taken by Vendor. If said Products, or any part thereof, are held to be infringing and the sale or use of the infringing Product is enjoined, Vendor shall, at its own expense and at Buyer’s option (i) procure for Buyer the right to sell and use the Product or part or replace same with substantially equal but non-infringing equipment, (ii) modify it so it becomes substantially equal but non-infringing or (iii) remove said equipment and refund the purchase price and the transportation and installation costs thereof. Despite the exercise of one or more of the foregoing options, Vendor shall remain liable to Buyer for all damages incurred by Buyer relative to any infringement situation. Notwithstanding the foregoing, Buyer reserves the right, at its option, to procure non-infringing products or equipment. Vendor shall be liable with all damages associated therewith, including but not limited to cover damages.
4. WARRANTY AND GUARANTY:
(a) Vendor warrants good title to all Products to be provided under this Agreement. Vendor warrants that the Products are new, safe and free from defects in workmanship and materials and conform to any specification, drawings, samples, or other descriptions referenced herein or applicable thereto.
(b) Vendor warrants that all field labor (“Services”) shall be free from material defects, deficiencies, errors and omissions.
(c) Services, Products or components thereof, including software, found to be defective or nonconforming within the later of one (1) year from initial operation, provided that initial operation shall have occurred within one (1) year after date of delivery, or one (1) year after completion of the Services (the “Warranty Period”); shall, at Buyer’s option, be corrected or repaired in place by Vendor, or be replaced at Buyer’s facilities by Vendor, or be returned to Vendor at Vendor’s expense (including transportation and handling costs) for repair, replacement or full refund. The date of initial operation shall mean the date upon which Buyer first uses the Products for the production of materials to be sold by Buyer.
(d) Any Products or components thereof, including software, repaired or replaced shall be warranted by Vendor for twelve (12) months from the date of putting same into service. Any Services reperformed shall be warranted by Vendor for the later of twelve (12) twelve months from the date of reperformance or eighteen (18) months after delivery.
Seller hereby agrees to indemnify, hold harmless and defend the Buyer, its parents, subsidiaries, directors, officers, members, managers, employees, affiliates and assigns, the Buyer’s Contractor(s), and the Buyer’s Engineer(s)/Consultant(s) (collectively the “Buyer Indemnified Parties”), from and against any and all actions or causes of action, claims, demands, liabilities, losses, damages or expenses (including without limitation reasonable attorneys’ fees) of whatever kind or nature, involving (a) personal injury or death of persons, or (b) damage or destruction of any property, or (c) demands for which Buyer Indemnified Parties might be held liable for the failure of Vendor, or its subcontractors or suppliers (at any tier) to discharge duties to their employees or independent contractors that result in bodily injury or death, regardless of whether the employee was negligent, brought against the Buyer Indemnified Parties or which any of the Buyer Indemnified Parties may suffer as a result of any negligent action or inaction by the Vendor or its agents or subcontractors in any way arising out of or connected with the Services, work or performance of the obligations of the Vendor hereunder.
Buyer hereby agrees to indemnify, hold harmless and defend the Seller, its parents, subsidiaries, directors, officers, members, managers, employees, affiliates and assigns, (collectively the “Vendor Indemnified Parties”), from actions or causes of action, claims, demands, liabilities, losses, damages or expenses (including without limitation reasonable attorneys’ fees) of whatever kind or nature, involving (a) personal injury or death of persons, or (b) damage or destruction of any third party property, brought against the Vendor Indemnified Parties, which any of the Vendor Indemnified Parties may suffer as a result of any negligent action or inaction by Buyer or its agents or subcontractors in the course of Buyer’s performance of its obligations hereunder.
In the event such damage or injury is caused by the joint or concurrent negligence of Vendor and Buyer, the loss shall be borne by each party in proportion to its negligence. The indemnities provided for in this section shall only apply if the party demanding to be indemnified gives the other party prompt notice of any such claim as soon as it is aware of a situation that may give rise to a claim, and all necessary information and assistance. The indemnifying party, at its option, may defend or settle such claim provided that the indemnified party (Buyer’s or Vendor’s as appropriate) may participate in such defense if indemnifying party and indemnified party’s interest are divergent and indemnified party pays the cost of its own counsel, and must consent to any final settlement, such consent not to be unreasonably withheld.
6. DELAYS: Vendor shall be excused for delays in delivery or in performance where such delay is due to acts of God, acts of Buyer not within its rights, acts of civil or military authority, fires, floods, epidemics, war, riot, or other similar causes beyond Vendor’s control, which Vendor could not have reasonably foreseen and provided against. In the event of any such delay, the date of delivery or of performance may be extended for a period equal to the duration of the delay, but Vendor shall not be entitled to any extra compensation for such delay. Vendor shall promptly notify Buyer of any such delay, and, at no additional cost to Buyer, shall take all reasonable steps to avoid or end such delay. Buyer’s lack of response to Vendor’s notices regarding the delay shall not operate to terminate Vendor’s obligation to complete the delayed performance. Strikes and unavailability of goods shall not be considered excuses for delay.
7. CONTRACT OBLIGATIONS PERSONAL: Vendor shall not sublet, assign, transfer or delegate any responsibilities hereunder without prior review and written consent of Buyer.
8. LIMITATION OF LIABILITY: Neither party hereto shall be liable to the other for any special or consequential damages of any kind or character, however arising, including without limitation, loss of anticipated profits, loss of use of the Product or any associated equipment or loss of product.
9. MODIFICATIONS: Buyer shall have the right by written supplement to make changes in the specifications and drawings for equipment, materials, and items covered by this Agreement. If such change would affect the price or delivery for such equipment, materials, or items Buyer and Vendor shall mutually agree in writing upon an equitable adjustment in the price and/or delivery date to reflect the effect of such change. Vendor shall not suspend performance of this Agreement while Buyer and Vendor are in the process of making such changes and any related adjustments and if released in writing by Buyer, Vendor shall comply with and perform such change in accordance with the terms of this Agreement during such time. No substitutions shall be made in this Agreement without the prior written consent of Buyer. Extra compensation will be paid Vendor only if agreed to in writing by Buyer, and no agreement or understanding modifying the conditions or terms of this Agreement shall be binding upon Buyer unless made in writing and approved by Buyer.
10. CANCELLATION: Time is of the essence for Vendor’s performance under this Agreement. In addition to all its other legal rights and remedies, Buyer reserves the right to cancel all or any part of the undelivered Products or Services if Vendor does not make deliveries or perform services, as specified, or if Vendor breaches any of the terms hereof.
11. CANCELLATION FOR CONVENIENCE: Buyer shall have the right to cancel for any reason or no reason performance of all or any separable part of the Agreement at any time by written notice to Vendor. Buyer shall only be required to pay for the actual cost of work and materials satisfactorily delivered or completed as of the effective date of such cancellation. Vendor shall be limited to a ten percent (10%) mark-up for profit on the actual incurred cost for Services that have commenced but have not been completed the time of cancellation.
12. ETHICS, ENVIRONMENTAL & SOCIETAL RESPONSIBILITY.
(a) Vendor acknowledges that it has been informed of, and agrees to abide by, the Buyer’s commitments in the area of ethics, environmental and societal responsibility, as those commitments are set forth in the Ethics Charter, the Guide “Ethics in Practice” and the policy “Ethics of Business Relationship: Governing Principles” and posted on its website www.engie.com.
(b) Vendor represents and warrants to Buyer that, for a period of 6 years immediately preceding the execution of this Agreement, it has complied with the rules of international law and national law applicable to this Agreement, in relation to:
i. Fundamental human rights and in particular the prohibition of A) using child labor and any form of forced or compulsory labor and B) organizing any form of discrimination within its company or towards the suppliers and sub-contractors;
ii. Embargoes, drugs, and weapons trafficking, terrorism;
iii. Trade, import, and export licenses and customs;
iv. Health and safety of staff and third parties;
v. Labor, immigration and prohibition of illegal work;
vi. Environmental protection;
vii. Financial criminal offenses, in particular corruption, fraud, influence peddling (or equivalent offense as it can be provided by national law applicable to the Agreement), swindling, theft, misuse of corporate funds, counterfeiting, forgery and the use of forgeries, and similar or related offenses;
viii. Measures to combat money laundering;
ix. Competition law.
(c) In connection with this Agreement’s performance, Vendor commits to comply in its name and in the name and on behalf of its suppliers and sub-contractors with the same rules.
(d) Buyer has the right to require from Vendor evidence that it has complied with the rules of the present Ethics, Environmental & Societal Responsibility Clause and to carry out audits or have them carried out.
(e) Any breach by Vendor of this Ethics, Environmental & Societal Responsibility Clause shall constitute a contractual breach entitling Buyer to suspend and/or terminate the Agreement at Vendor’s exclusive expense, in accordance with the terms and conditions set forth in this Agreement.
13. COMPLIANCE. Vendor shall comply strictly with all applicable laws, ordinances, rules, and regulations of all federal, state, local, and municipal authorities (“Governmental Requirements”) at any time in effect governing the performance of the Agreement, including but not limited to those concerning health, safety, taxation, wages and hours, labor relations, equal opportunity, non-discrimination, immigration, importation and exportation, trade regulation, and environmental protection. In addition, Vendor shall comply strictly with all of the Buyer’s site security and safety procedures and protocols.
14. INDEPENDENT CONTRACTORS: Vendor shall remain as an independent contractor. Vendor is not an agent of Buyer for any purpose, and shall have no power, nor shall Vendor represent that Vendor has any power, to bind Buyer or to assume or to create any obligation, expressed or implied, on behalf of Buyer. Vendor shall disclose to subcontractors, vendors, and other third parties that Vendor is not an agent of Buyer.
15. INSURANCE: Neither the Vendor nor any of its subcontractors shall commence under this Agreement until the Vendor has obtained and paid for all insurance required by this section and until the policies of insurance have been approved by the Buyer as to the kind, coverage and amount.
(a) Worker’s Compensation & Employer’s Liability: The Vendor shall provide Workers’ Compensation and Employers Liability Insurance for all employees engaged to perform work which is the subject of this Agreement in accordance with all applicable laws and in the following minimum amounts evidenced below. Neither Party nor its directors, officers, employees, agents, affiliates or representatives, nor any independent contractor engaged by it in connection with the performance of this Contract, shall be deemed an employee of the other Party. Neither Party shall bring any claim against the other Party or its directors, officers, affiliates, agents, representatives, employees or independent contractors with respect to any liability for compensation under an applicable State or Federal Worker’s Compensation Act, including, but not limited to, Worker’s Compensation and/or employer’s liability claims of employees. Where Buyer may be responsible for directing or controlling the work of Vendor’s employees, the Alternate Employer endorsement shall be added to Vendor’s Worker’s Compensation policy in Buyer’s favor.
Coverage A: As Required by Statute
Coverage B: Employers Liability Limits
Bodily Injury By Accident $1 Million Each Accident
Bodily Injury By Disease $1 Million Each Employee
Bodily Injury By Disease $1 Million Policy Limit
(b) Commercial General Liability: Without in any way limiting or restricting the indemnity provisions of this Agreement, the Vendor shall carry a Commercial General Liability policy with minimum limits evidenced below:
General Aggregate $2 Million
Products Completed Operations Aggregate $2 Million
Personal & Advertising Injury Limit $1 Million
Each Occurrence Limit $1 Million
Fire Damage Limit Any One Fire $300,000.
Medical Expense Limit Any One Person $5,000.
The following minimum coverages must be included in the policy form described in this section:
– Products/Completed Operations
– Broad Form Contractual Coverage
(c) Automobile Liability: The Vendor shall also carry Business Automobile Liability Insurance for all owned, hired and non-owned vehicles with a minimum Combined Single Limit $1,000,000 Bodily Injury Liability and Property Damage Liability.
(d) Umbrella/Excess Liability: The Vendor shall also carry Umbrella/Excess Liability Insurance with a limit of $5,000,000 per occurrence and annual aggregate, with a self-insured retention not exceeding $25,000; extending limits in excess of primary Employers Liability, General Liability and Automobile Liability coverages required above. In the event that any primary underlying aggregate has been eroded or exhausted due to the payment of claims, it shall be a provision of this policy to “drop down” and provide liability coverage excess of any reduced underlying limits of insurance or, provide first dollar coverage in the event of exhaustion of underlying limits.
(e) The following must be shown as Additional Insured on all policies, except Workers’ Compensation coverage:
ENGIE North America Inc. and its relevant affiliates party to an Agreement with Vendor
Buyer must be named as an Additional Insured (except for Workers Compensation) for liabilities ARISING OUT OF Vendor’s products or operations (including completed operations). Additional Insured coverage is extended to Buyer as required by contract, but only in respect of work performed on behalf of the Buyer and only to the extent that the Additional Insured is held liable for the negligence or other culpability of the Vendor. No endorsements attempting to limit coverage given to the Additional Insureds shall be accepted. This insurance does not apply to claims or liability arising directly out of the negligent acts or omissions of the Additional Insured(s).
Buyer specifically requires attachment of A.I. Endorsement CG 20 10 11 – 85 (or its equivalent) to Vendor’s Primary General, Automobile, and Excess Liability policies. A copy of this endorsement should be attached to the Certificate as evidence of this protection. Buyer shall be provided Waiver of Subrogation coverage and Vendor’s policies should be amended to respond on a Primary/Non Contributory basis. Buyer requires a Certificate of Insurance on the appropriate Accord Certificate form listing exclusion and endorsement numbers. Vendor shall maintain during the entire performance of this contractual agreement, at least the kinds and minimum amounts of insurance scheduled above. All insurance must be placed with carriers holding a minimum financial rating of A-VIII with A.M. Best and coverage must be occurrence based (not claims made). Prior disclosure of any and all self-insured or fronting plans is required. Any and all deductibles contained in the above described policies shall be assumed by, for the account of, and at the sole risk of Consultant. The policies evidencing this required insurance shall contain an endorsement to the effect that any cancellation, termination or material change adversely affecting Buyer’s interest shall not be effective until after Buyer has received 60 days advance written notice from Vendor’s insurer(s). It is expressly intended that these insurance requirements are in addition to and separate from any other obligations contained in the contract.
(f) The Vendor’s insurance shall either provide coverage for its Subcontractors and Consultants or Subcontractors and Consultants must provide evidence of coverage to the Buyer in at least the minimum insurance requirements stated above. Vendor is required to insert the substance of these insurance and indemnity requirements as “flow down” provisions in any and all subcontracts with subcontractors.
(g) Renewal of expiring policies shall be confirmed by renewal certificates forwarded to the Buyer at least seven (7) days prior to coverage expiration. Any failure on the part of Buyer to pursue or obtain the evidence of insurance required above and/or failure of Buyer to point out any non-compliance of such evidence of insurance shall not constitute a waiver of any insurance requirements.
(h) Should any insurance coverage required to be held by Vendor under this Agreement be cancelled, and the Vendor fails to obtain substitute coverage, the Buyer may obtain such insurance and deduct the premiums for insurance from any amounts due the Vendor. If all payments have been made to the Vendor, then the Vendor agrees to reimburse the Buyer for the costs of the premiums.
(i) The Vendor shall report to the Buyer and to the insurance carriers, any and all incidents relating to the work undertaken by the Vendor pursuant to the terms of this Agreement which may give rise to a claim under any insurance policy maintained by the Vendor pursuant to this section. Such notice shall be given promptly after the Vendor obtains knowledge thereof. The Vendor shall be responsible for all deductibles and/or self-insured retention amounts incurred by Vendor or Buyer, and shall coordinate and facilitate settlement of all such claims.
(j) To the extent applicable, the Vendor shall maintain or provide for insurance covering full replacement value of the Products for damage during shipment while in transit and storage as well as damage to the Products during rigging, loading and unloading until the Products have been inspected, demonstrated it meets all performance tests and accepted by the Buyer. The Vendor shall have the sole care, custody and control and risk of loss of the Products and be solely liable for any damage until title and risk of loss passes to Buyer in accordance with this Agreement. The Vendor shall be responsible for any and all deductibles and/or self-insured retention amounts incurred by Vendor or Buyer, and shall coordinate and facilitate settlement of all such claims.
16. LIENS: In the event that performance of any Services or the furnishing of Products under the Agreement could serve as the basis for attachment or imposition of a lien or encumbrance on the real or personal property of Buyer, to the fullest extent permitted by law Vendor waives and releases the rights to assert and enforce any such lien, shall obtain from all subcontractors and suppliers similar waivers and releases, and shall defend, indemnify and hold Buyer harmless from all such liens or claims of liens arising under the Agreement.
17. LICENSES AND PERMITS: Vendor shall, without expense to Buyer, obtain, maintain in force, and exhibit to Buyer upon request any and all permits or licenses necessary or useful for performing the Agreement, including without limitation those licenses and permits which are required to be issued in the name of Buyer, but excluding those which are required solely for performance of duties which are required to be performed by Buyer under the Agreement. Buyer shall cooperate with Vendor in obtaining licenses and permits required to be obtained by Vendor. If any such licenses and permits are issued specifically with respect to a designated Buyer facility or specifically with respect to performance of the Agreement, they shall be surrendered to Buyer upon termination or expiration of the Agreement, whether or not such licenses and permits are transferable or were issued in the name of Buyer.
18. SAFETY AND HEALTH REGULATIONS: Vendor and its employees shall at all times comply with all statutory and governmental safety and health regulations, and with the safety, health and plant regulations of Buyer, and shall ensure that all of its employees and agents have a safe place to work on the premises of Buyer. Vendor shall keep said premises and the vicinity thereof clean of debris and rubbish caused by its work and, shall upon completion of its work, shall leave the premises clean and ready for use. Upon request of Buyer, and at no cost or expense to Buyer, Vendor shall promptly remove from the premises of Buyer any person under the control of the Vendor who violates any of its aforesaid safety, health, or plant regulations, or who may cause or threaten to cause a breach of the peace, or who is otherwise objectionable to Buyer.
Buyer shall furnish to Vendor copies of such Buyer Requirements as apply with respect to the Agreement.
18. TAXES: All other taxes, excise or governmental charges are deemed to be included in Vendor’s gross compensation and such taxes, excise, or governmental charges shall be paid by Vendor; unless Buyer provides Vendor with a properly completed exemption certificate.
19. INVOICES AND PAYMENT: Invoicing by Vendor and payment by or on behalf of Buyer shall be in accordance with the provisions set forth herein. All taxes, excise and governmental charges shall be itemized in each invoice.
Delay in receiving Vendor’s invoices in the number of copies specified, invoice and packing lists not agreeing in all respects or errors or omissions on either, will be considered just cause for withholding payment without loss of cash discount privilege. All discount periods will begin on the date that the office making payment receives corrected invoices in proper form with supporting proof of shipment from Vendor. The final invoice against this order shall be marked “Order Complete”.
20. INSPECTION AND ACCEPTANCE: In the event that Products are furnished by Vendor under the Agreement, such Products shall be accepted subject to Buyer’s rights of inspection, rejection, and revocation of acceptance pursuant to the provisions of Article 2 of the Uniform Commercial Code. Without limitation of any of Buyer’s rights provided by law or otherwise under the Agreement, Vendor shall, upon request of Buyer and at Vendor’s expense, promptly replace at the point of delivery all Products rightfully rejected by Buyer. Payment for or use of Products shall not constitute acceptance thereof, and may be made without prejudice to any and all claims that Buyer may have against Vendor with respect to such Products.
(a) Consents, demands, approvals, notices, information, or other communications required under the Agreement (“Notices”) shall be in writing and shall be deemed to have been given when received at the addresses provided therefore, addressed to the respective parties as provided in the Agreement. Either party may at any time and from time to time change the address and official to which Notices addressed to such party are to be sent by giving Notice of such change in the manner herein provided.
(b) All Notices shall be delivered personally or sent by registered, certified, or express U.S. Mail, return receipt requested, or by any recognized independent private mail or courier service which routinely maintains records of delivery and will upon request provide verification thereof, or, if facsimile or electronic mail Notices have been requested by such recipient by Notice as herein provided, at the option of the sender by facsimile or electronic mail transmission initiated and completed during the ordinary business hours of the intended recipient; provided, however, that no Notice given by facsimile or electronic mail shall be deemed given unless the sender obtains, contemporaneously and in the ordinary course of business, confirmation of receipt of the written Notice in legible form.
22. RESPONSIBILITY FOR EMPLOYEES: Vendor represents that it is an independent contractor of an employing unit subject as an employer to all applicable unemployment compensation, occupational safety and health, or similar statutes. Without limiting any other indemnification provision of the Agreement, Vendor shall indemnify and hold Buyer harmless and reimburse Buyer for any expense or liability incurred in connection with employees, subcontractors, and vendors of Vendor, including without limitation any claims relating to worker’s compensation and claims relating to keeping records, making reports, and withholding and paying any payroll taxes or contributions.
Vendor shall be responsible for its own labor relations and shall negotiate and be responsible for adjusting all disputes between Vendor and Vendor’s employees. Vendor shall promptly notify Buyer of any threatened or actual employee unrest, labor disturbances, slow downs, strikes or other labor actions (each a “Job Action”) that may adversely affect Vendor’s performance of the Agreement.
23. EMPLOYEE DISCIPLINE; DRUG FREE WORKPLACE: Vendor shall require employees working at Buyer facilities to comply with all applicable instructions, regulations, and codes of conduct as specified from time to time by Buyer for Buyer employees.
24. EMERGENCIES: Vendor shall immediately notify Buyer personnel in the event of any fire and of all other emergency conditions observed by Vendor at any Buyer facility. Vendor shall give Buyer prompt notice of any injury or damage observed by Vendor at any Buyer facility, and shall immediately furnish Buyer a copy of all notices received by Vendor with respect to any Claim for bodily injury anywhere on any Buyer facility. Without limitation of the foregoing, Vendor shall give prompt notice of any injury sustained by any of its employees or agents in the performance of the Agreement.
25. CONFIDENTIALITY: If applicable, Vendor shall at all times exercise due care not to obtain or disclose business or technical information regarded by Buyer as sensitive or confidential. Vendor shall not make any unauthorized use of writings, data, designs, drawings, specifications, or any information furnished to it by Buyer or observed or developed by Vendor in the performance of the Agreement, and shall not disclose any of the foregoing to third parties, except as may be required in the performance of the Agreement and then only after first obtaining a written agreement from such third parties to be bound by similar confidentiality and use restrictions. Upon completion, cancellation or termination of the Agreement, Vendor shall return to Buyer all of the foregoing, including all copies, extracts, or derivatives thereof, in any tangible form containing any of the foregoing obtained by Vendor or third parties hereunder. Buyer may require that all or certain of Vendor’s employees who have the opportunity to be exposed to business information regarded by Buyer as sensitive or confidential sign a standard form of “Confidentiality Agreement” adopted from time to time by Buyer for use by persons not employed by Buyer. Such Confidentiality Agreement may make the signing employee directly liable to Buyer for damages in the event of breach of security, or misappropriation or unauthorized disclosure of sensitive or confidential information, but shall not relieve Vendor of any liability to Buyer arising out of such occurrence in the event of negligence or failure by Vendor to comply with Vendor’s obligations under the Agreement. No photographs or other records of any nature of any portion of any Buyer facility shall be made or (after termination or expiration) retained by Vendor or any subcontractor without Buyer’s prior written permission.
26. SUCCESSORS AND SURVIVAL: Except as otherwise provided, the Agreement shall inure to and be binding upon the heirs, executors, administrators, successors, and assigns of the parties. Upon expiration or termination of the Agreement for any reason, all rights and remedies of Vendor and Buyer accruing through such time of expiration or termination shall survive until the duties and obligations of the parties to each other at the time of expiration or termination have been fully performed and satisfied.
27. REFORMATION AND SEVERABILITY: If any term or other provision of this Agreement is invalid, illegal, or incapable of being enforced by any law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated by this Agreement is not adversely affected as to either party.
28. REMEDIES: Should Vendor be in material breach of the Agreement, Buyer shall be entitled to all rights and remedies available to Buyer at law or in equity and may, in addition to any other remedies that Buyer may have: (a) proceed against Vendor to recover Buyer’s damages on account of Vendor’s breach; (b) obtain an injunction or other equitable relief in those instances in which equitable relief is available; (c) subject to any limitations with respect to prior Notice and opportunity to cure elsewhere set forth in the Agreement, by Notice to Vendor terminate the Agreement and all of Vendor’s rights hereunder; (d) immediately and without Notice to Vendor take such self-help measures, at Vendor’s expense, as may be reasonable to remedy such breach if delay or failure to do so might irreparably harm or damage Buyer; provided, however, that Buyer shall be under no duty to take such self-help measures; and/or (e) satisfy, in whole or in part, Vendor’s obligations to Buyer by offset against sums then due or thereafter becoming due from Buyer to Vendor under the Agreement or any other contract or agreement between Vendor and Buyer. All of such remedies shall be cumulative and may be exercised by Buyer separately and independently, successively, or concurrently with each other and with any other remedies of Buyer under the Agreement.
29. RECORDS, ACCOUNTING, AUDIT: For Services or Products provided from Vendor to Buyer on an actual cost basis, Vendor shall keep full and detailed records and accounts related to the actual and shall be open for inspection by a Buyer designated representative from time to time for a period of three (3) years after the payment, for the limited purposes of determining that Vendor has complied with GAAP. Under no circumstances shall Buyer be required to consider any claim submitted by Vendor on an actual cost basis, unless and until such records and accounts are made available to Buyer in their entirety for review and use in evaluation of the claim.
30. WAIVERS: Any term, covenant, condition, representation, or warranty under the Agreement may be waived by the party entitled to the benefit thereof, and any default in performance by one party may be waived by the party entitled to receive such performance, but none of such provisions of the Agreement shall be considered waived by either party unless such waiver is reduced to writing and signed by the party entitled to such benefits. No such waiver shall be construed as a modification of any of the provisions of the Agreement, or as a waiver of any past or future default or breach hereof unless expressly so stated in such waiver.
31. CONSTRUCTION AND INTERPRETATION: The organization of the Agreement into articles, paragraphs, and clauses is intended to facilitate understanding of the parties’ rights and obligations but not to limit such rights and obligations. Divisions and captions are inserted only for convenience, are not parts of the Agreement and shall be disregarded in interpreting the Agreement. Words of any gender used in the Agreement shall be read to include any other gender, and words in the singular number shall be read to include the plural when the sense requires. Whenever the word “including” or similar terminology is used to refer to a specific item, event, occurrence, or example in conjunction with a general provision, the specific reference shall serve only to illustrate and in no way to limit the meaning of the general provision. Neither party shall be deemed drafter of the Agreement or any portion thereof.
32. GOVERNING LAW AND JURISDICTION. The Agreement shall be determined and adjudicated under the laws of the State of Texas without regard to conflicts of laws principles that would require the application. The United Nations Convention on the International Sale of Goods is expressly excluded. Vendor consents to the exclusive jurisdiction of the appropriate state court in the State of Texas or, if original jurisdiction can be established, in the federal court in the U.S. District Court for the Southern District of Texas, for any legal or equitable action or proceeding arising out of, or in connection with, the Agreement. Vendor specifically waives any and all objections to venue in such courts.
All claims or causes of action (whether in contract or in tort, in law or in equity) that may be based upon, arise out of or relate to an Agreement, or the negotiation, execution or performance of an Agreement (including any representation or warranty made in or in connection with any such Agreement or as an inducement to enter into any such Agreement), may be made only against the entities that are expressly identified as parties thereto. No Person who is not a named party to an Agreement, including without limitation, Buyer, solely as a party to this Agreement, any director, officer, employee, incorporator, member, partner, stockholder, affiliate, agent, attorney or representative of any named party to such Agreement (“Non-Party Affiliates”), shall have any liability (whether in contract or in tort, in law or in equity, or based upon any theory that seeks to impose liability of an entity party against its owners or affiliates) for any obligations or liabilities arising under, in connection with or related to such Agreement or for any claim based on, in respect of, or by reason of such Agreement or its negotiation or execution; and the parties to such Agreement, waive and release all such liabilities, claims and obligations against any such Non-Party Affiliates. Non-Party Affiliates are expressly intended as third party beneficiaries of this provision of any Agreement.