HomeMy WebLinkAboutDocumentation_Regular_Tab 18_1/14/2021Agenda Item #18.
Regular Council
STAFF MEMO
Meeting: Regular Council -Jan 14 2021
Staff Contact: Matthew Hammond, Utilities Department: Utilities
Director
Authorize Sole Source Purchase Contract of 50% Hydrogen Peroxide with Evoqua Water
Technologies
The Utilities Department throughout the year, has a need to purchase 50% Hydrogen Peroxide for
use at the Water Treatment Plant. Hydrogen Peroxide is used to oxidize sulfur and add dissolved
oxygen in the concentrate (byproduct) water from the reverse osmosis treatment process.
The Village has been purchasing hydrogen peroxide from Evoqua Water Technologies since 2013.
As a part of this purchase the Village leases the bulk storage and feed system from Evoqua Water
Technologies required for the system to operate which includes the bulk storage tank, pump skid,
regulators and injection lines as well as service and maintenance of the system throughout the year.
In addition, a tank level monitoring system is included.
To ensure that the Village continues to receive competitive pricing, staff compared the pricing
received from Evoqua Water Technologies with other vendors and piggyback contracts and found it
to be competitive. Note the quoted pricing of $0.45 per pound for Calendar Year 2021 remains the
same from 2020.
As a result, Village staff recommends that the Village continue to purchase 50% Hydrogen Peroxide
under the Sole Source provision of the approved Village Purchasing Directives and Procedures. A
purchase requisition is requested for $43,000.00 for the Fiscal Year 20/21. The proposed purchase
requisition will allow for the purchase of the anticipated annual Hydrogen Peroxide needs
(approximately 95,500 pounds) for the remainder of FY 20/21.
The Village's approved Purchasing Directives and Procedures provides that the Village may acquire
items that for all practical purposes can only be obtained from a single vendor, usually because of
limiting technology, technological compatibility with existing systems or Items already in use by the
Village or other unique qualities of the Items.
Approve sole source agreement and purchase requisition with Evoqua Water Technologies.
Proposed Agreement - Hydrogen Peroxide - Evoqua Water Tech nologies.ada
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Agenda Item #18.
The following documenti*s presented in a non=
ADA compliant format. Please contact the
Village Clerk's office if you would like to
receive an ADA compliant version of this
document.
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Agenda Item #18.
VILLAGE OF TEQUESTA
AGREEMENT FOR HYDROGEN PEROXIDE AND
ODOR CORROSION CONTROL SERVICES
THIS AGREEMENT FOR HYDROGEN PEROXIDE AND ODOR
C O R R I S I O N CONTROL SERVICES is entered into and effective this day of January,
2021 (the "Effective Date"), by and between the VILLAGE OF TEQUESTA, a Florida
municipal corporation with offices located at 345 Tequesta Drive, Tequesta, Florida 33469,
organized and existing in accordance with the laws of the State of Florida, hereinafter the
"Village"; and EVOQUA WATER TECHNOLOGIES, LLC, a Delaware limited liability
company authorized to do business in the State of Florida, with local offices located at 2650
Tallevast Road, Sarasota, Florida 34243, hereinafter the "Contractor" and collectively with the
Village, the "Parties".
WITNESSETH
The Village and the Contractor, in consideration of the mutual covenants contained herein
and for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by both Parties, hereby agree as follows:
1. SCOPE OF SERVICES: The Parties hereby agree to enter into this Agreement
for the
Village's purchase of 50% hydrogen peroxide and associated odor corrosion control services from
Contractor on an as -needed basis. This Agreement is procured as a "sole source" contract pursuant
to the Contractor's Sole Source proposal as Quote No. Q200918SJO4, which is hereby fully
incorporated into this Agreement and attached hereto as Exhibit "A". As part of this Agreement,
the Contractor shall include the following with the Village's purchase of 50% hydrogen peroxide:
• 2,400-gallon single wall high density, cross -linked polyethylene bulk storage tank.
• Tank monitoring system that is linked to Evoqua's Link2site.com website.
• Stainless steel dosing system with diaphragm pumps.
• Once per month preventative maintenance.
• Emergency service as required (technician is <2 hours away).
• Tank level monitoring for deliveries.
• All repairs to equipment are the responsibility of Evoqua.
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Agenda Item #18.
2. COMPENSATION: Pursuant to Exhibit "A", and in consideration for the above
Scope of Services, pricing shall be as follows:
• 50% Hydrogen Peroxide - $0.45/pound delivered.
The Village shall pay the Contractor after Village's receipt of the above -described Services, and
payment shall be within thirty (30) days of receipt of an invoice documenting the amount due.
3. TERM; TERMINATION; NOTICE: The term of this Agreement shall be from
January 1, 2021 through December 31, 2021. This Agreement may be terminated by either party
upon forty-five (45) days written notice to the other party. Notice shall be considered sufficient
when sent by certified mail or hand delivered to the Parties during regular business hours at the
following addresses:
Village
Contractor
Village of Tequesta
Evoqua Water Technologies, LLC
345 Tequesta Drive
2650 Tallevast Road
Tequesta, FL 33469
Sarasota, FL 34243
Attn: Matthew Hammond
Attn: David Morano,
Utilities Director
Sales Support Manager
4. INSURANCE: The Contractor shall provide proof of workman's compensation
insurance and liability insurance in such amounts as deemed sufficient by the Village and shall
name the Village as an "additional insured" on the liability portion of the insurance policy.
5. INDEMNIFICATION: The Contractor shall at all times indemnify, defend and
hold harmless the Village, its agents, servants, and employees, from and against any claim, demand
or cause of action of whatsoever kind or nature, arising out of error, omission, negligent act,
conduct, or misconduct of the Contractor, its agents, servants, or employees in the performance of
services under this Agreement. Nothing contained in this provision shall be construed or
interpreted as consent by the Village to be sued, nor as a waiver of sovereign immunity beyond
the waiver provided in Section 768.28, Florida Statutes.
6. PUBLIC ENTITIES CRIMES ACT: As provided in Sections 287.132-133,
Florida Statutes, by entering into this Agreement or performing any work in furtherance hereof,
the Contractor certifies that it, its affiliates, suppliers, subcontractors and consultants who will
perform hereunder, have not been placed on the convicted vendor list maintained by the State of
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Agenda Item #18.
Florida Department of Management Services within thirty-six (36) months immediately preceding
the date hereof. This notice is required by Section 287.133(3)(a), Florida Statutes.
7. INDEPENDENT CONTRACTOR: It is specifically understood that the
Contractor is an independent contractor and not an employee of the Village. Both the Village and
the Contractor agree that this Agreement is not a contract for employment and that no relationship
of employee —employer or principal —agent is or shall be created hereby, nor shall hereafter exist by
reason of the performance of the services herein provided.
S. INSPECTOR GENERAL: Pursuant to Article XII of the Palm Beach County
Charter, the Office of the Inspector General has jurisdiction to investigate municipal matters,
review and audit municipal contracts and other transactions, and make reports and
recommendations to municipal governing bodies based on such audits, reviews, or investigations.
All parties doing business with the Village shall fully cooperate with the inspector general in the
exercise of the inspector general's functions, authority, and power. The inspector general has the
power to take sworn statements, require the production of records, and to audit, monitor,
investigate and inspect the activities of the Village, as well as contractors and lobbyists of the
Village in order to detect, deter, prevent, and eradicate fraud, waste, mismanagement, misconduct,
and abuses.
9. SCRUTINIZED COMPANIES: For Contracts under $1 M, the Contractor
certifies that it is not on the Scrutinized Companies that Boycott Israel List created pursuant to
Section 215.4725, Florida Statutes, and that it is not engaged in a boycott of Israel. The Village
may terminate this Agreement at the Village's option if the Contractor is found to have submitted
a false certification as provided under Section 287.135(5), Florida Statutes, if the Contractor has
been placed on the Scrutinized Companies that Boycott Israel List created pursuant to Section
215.4725, Florida Statutes, or if Contractor is engaged in a boycott of Israel. For Contracts over
$1 M, the Contractor certifies that it is not on the Scrutinized Companies with Activities in Sudan
List, the Scrutinized Companies with Activities in the Iran Petroleum Energy Sector List, or the
Scrutinized Companies that Boycott Israel List created pursuant to Section 215.4725, Florida
Statutes. The Contractor further certifies that it is not engaged in a boycott of Israel, and that it
does not have business operations in Cuba or Syria, as similarly provided in Section 287.135,
Florida Statutes. The Village may terminate this Agreement at the Village's option if the
Contractor is found to have submitted a false certification as provided under Section 287.135(5),
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Agenda Item #18.
Florida Statutes or if the Contractor has been placed on one of the aforementioned lists created
pursuant to Section 215.4725, Florida Statutes. Additionally, the Village may terminate this
Agreement at the Village's option if the Contractor is engaged in a boycott of Israel or has been
engaged in business operations in Cuba or Syria, as defined in Section 287.135, Florida Statutes.
10. ATTORNEY'S FEES: In the event a dispute arises concerning this Agreement,
the prevailing party shall be awarded attorney's fees, including fees on appeal.
11. FORCE MAJEURE: The Contractor shall not be considered in default by reason
of any failure in performance under this Agreement if such failure arises out of causes reasonably
beyond the control of the Contractor or its subcontractors and without their fault or negligence.
Such causes include, but are not limited to: acts of God; acts of war; natural or public health
emergencies; labor disputes; freight embargoes; and abnormally severe and unusual weather
conditions.
12. CHOICE OF LAW; VENUE: This Agreement shall be governed and construed
In accordance with the laws of the State of Florida, and venue shall be in Palm Beach County
should any dispute arise with regard to this Agreement.
13. AMENDMENTS AND ASSIGNMENTS: This Agreement, all Exhibits attached
hereto, and required insurance certificates constitute the entire Agreement between both Parties;
no modifications shall be made to this Agreement unless in writing, agreed to by both Parties, and
attached hereto as an addendum to this Agreement. The Contractor shall not transfer or assign the
provision of services called for in this Agreement without prior written consent of the Village.
14. PUBLIC RECORDS: In accordance with Section 119.0701, Florida Statutes, the
Contractor must keep and maintain this Agreement and any other records associated therewith and
that are associated with the performance of the work described in Scope of Services. Upon request
from the Village's custodian of public records, the Contractor must provide the Village with copies
of requested records, or allow such records to be inspected or copied, within a reasonable time in
accordance with access and cost requirements of Chapter 119, Florida Statutes. A Contractor who
fails to provide the public records to the Village, or fails to make them available for inspection or
copying, within a reasonable time may be subject to attorney's fees and costs pursuant to Section
119.0701, Florida Statutes, and other penalties under Section 119.10, Florida Statutes. Further,
the Contractor shall ensure that any exempt or confidential records associated with this Agreement
or associated with the provision of services contemplated herein are not disclosed except as
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Agenda Item #18.
authorized by law for the duration of the Agreement term, and following completion of the
Agreement if the Contractor does not transfer the records to the Village. Finally, upon completion
of the Agreement, the Contractor shall transfer, at no cost to the Village, all public records in
possession of the Contractor, or keep and maintain public records required by the Village. If the
Contractor transfers all public records to the Village upon completion of the Agreement, the
Contractor shall destroy any duplicate public records that are exempt or confidential and exempt
from public records disclosure requirements. If the Contractor keeps and maintains public records
upon completion of the Agreement, the Contractor shall meet all applicable requirements for
retaining public records. Records that are stored electronically must be provided to the Village,
upon request from the Village's custodian of public records, in a format that is compatible with
the Village's information technology systems.
IF THE CONTRACTOR HAS QUESTIONS REGARDING THE
APPLICATION OF CHAPTER 119, FLORIDA STATUTES, TO THE
CONTRACTOR'S DUTY TO PROVIDE PUBLIC RECORDS RELATING
TO THIS CONTRACT, PLEASE CONTACT THE VILLAGE CLERK,
RECORDS CUSTODIAN FOR THE VILLAGE, AT (561) 768-06859 OR AT
lmcwilliamsA,tequesta.org, OR AT 345 TEQUESTA DRIVE, TEQUESTA,
FLORIDA 33469.
15. HEADINGS: The headings contained in this Agreement are provided for
convenience only and shall not be considered in construing, interpreting or enforcing this
Agreement.
16. SEVERABILITY: The invalidity or unenforceability of any provision of this
Agreement shall not affect the validity or enforceability or any other provision of this
Agreement and this Agreement shall be construed and enforced in all respects as if the invalid
or unenforceable provision is not contained herein.
17. WAIVER: No waiver by the Village of any provision of this Agreement shall be
deemed to be a waiver of any other provisions hereof or of any subsequent breach by the
Contractor of the same, or any other provision or the enforcement hereof. The Village's
consent to or approval of any act requiring the Village's consent or approval of any act by the
Contractor shall not be deemed to render unnecessary the obtaining of the Village's consent
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Agenda Item #18.
to or approval of any subsequent consent or approval of, whether or not similar to the act so
consented or approved.
18. ENTIRE AGREEMENT: This six (6) page Agreement constitutes the entire
agreement between the parties; no modification shall be made to this Agreement unless such
modification is in writing, agreed to by both parties and attached hereto as an addendum to this
Agreement.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement on the
date and year first above written.
WITNESSES: EVOQUA WATER TECHNOLOGIES,
LLC
ATTEST:
Lori McWilliams, MMC
Village Clerk
By: Jennifer R. Miller, Division Vice President &
General Manager
(Corporate Seal)
VILLAGE OF TEQUESTA
By: Abigail Brennan, Mayor
(Seal)
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Agenda Item #18.
EXHIBIT A
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Agenda Item #18.
evoQua
WATER TECHNOLOGIES
October 13, 2020
Nathan Litteral
Water Plant Superintendent
Village of Tequesta
Tequesta, FL 33469
Office: (561) 768-0493
Cell: (561) 262-1084
Email: nlitteral@tequesta.org
RE: 50% HYDROGEN PEROXIDE PRICING
VILLAGE OF TEQUESTA, FL
Evoqua Quote No. Q200918SJ04
Dear Mr. Litteral:
Evoqua Water Technologies LLC would like to thank you for your business and continued interest in our
products and services.
Evoqua is currently your supplier for 50% hydrogen peroxide. We are pleased to hold your current price
for 50% hydrogen peroxide at $0.45 per pound delivered. This pricing will remain firm January 1, 2021
through December 31, 2021. Any applicable taxes due are not included. As part of the contract, the
following is included with the purchase of 50% hydrogen peroxide:
Equipment:
• 2,400-gallon single wall high density, cross -linked polyethylene bulk storage tank
• Tank monitoring system that is linked to Evoqua's Link2site.com website.
• Stainless steel dosing system with diaphragm pumps
Service:
a Once per month preventative maintenance
a Emergency service as required (technician is <2 hours away)
a Tank level monitoring for deliveries
a All repairs to equipment are the responsibility of Evoqua
The attached Evoqua Terms and Conditions are considered part of this notice and shall prevail.
Evoqua appreciates your business and support and looks forward to continuing to provide you the quality
products, services and lowest cost solutions in odor and corrosion control. If you have any questions,
comments, or if I can be of service to you in any way, please contact me at (951) 326-7415 or via email at
eric.c.hansen@evoqua.com.
Sincerely,
Evoqua Water Technologies LLC
Luc 'Waadlea
Eric Hansen
Technical Sales Representative
2650 Tallevast Road Tel: +1 (800) 345-3982
Sarasota, FL 34243 USA Fax: +1 (941) 359-7985 www.evoqua.com
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Agenda Item #18. EVOQUA WATER TECHNOLOGIES LLC
Standard Terms of Sale
1. Applicable Terms. These terms govern the purchase and sale of equipment, products, related services, leased products, and media goods
if any (collectively herein "Work"), referred to in Seller's proposal ("Seller's Documentation"). Whether these terms are included in an offer or an
acceptance by Setter, such offer or acceptance is expressly conditioned on Buyer's assent to these terms. Setter rejects all additional or different terms
in any of Buyer's forms or documents.
2. Payment. Buyer shall pay Seller the full purchase price as set forth in Seller's Documentation. Unless Seller's Documentation specifically
provides otherwise, freight, storage, insurance and all taxes, levies, duties, tariffs, permits or license fees or other governmental charges relating to
the Work or any incremental increases thereto shall be paid by Buyer. If Seller is required to pay any such charges, Buyer shall immediately
reimburse Seller. If Buyer claims a tax or other exemption or direct payment permit, it shall provide Seller with a valid exemption certificate or
permit and indemnify, defend and hold Seller harmless from any taxes, costs and penalties arising out of same. All payments are due within 30 days
after receipt of invoice. Buyer shall be charged the lower of 1 1/2% interest per month or the maximum legal rate on all amounts not received by the
due date and shall pay all of Seller's reasonable costs (including attorneys' fees) of collecting amounts due but unpaid. All orders are subject to
credit approval by Seller. Back charges without Seller's prior written approval shall not be accepted.
S. Delivery. Delivery of the Work shall be in material compliance with the schedule in Seller's Documentation, Unless Seller's
Documentation provides otherwise, delivery terms are Ex works Seller's factory (Incoterms 2010). Title to all Work shall pass upon receipt
of payment for the Work under the respective invoice. Unless otherwise agreed to in writing by Seller, shipping dates are approximate only
and Seller shall not be liable for any loss or expense (consequential or otherwise) incurred by Buyer or Buyer's customer if Seller fails to
meet the specified delivery schedule.
4. Ownership of Materials and Licenses. All devices, designs (including drawings, plans and specifications), estimates, prices,
notes, electronic data, software and other documents or information prepared or disclosed by Seller, and all related intellectual property
rights, shall remain Seller's property. Seller grants Buyer a non-exclusive, non -transferable license to use any such material solely for
Buyer's use of the Work. Buyer shall not disclose any such material to third parties without Seller's prior written consent. Buyer grants
Seller a non-exclusive, non -transferable license to use Buyer's name and logo for marketing purposes, including but not limited to, press
releases, marketing and promotional materials, and web site content.
5. Changes. Neither party shall implement any changes in the scope of Work described in Seller's Documentation without a mutually agreed
upon change order. Any change to the scope of the Work, delivery schedule for the Work, any Force Majeure Event, any law, rule, regulation, order,
code, standard or requirement which requires any change hereunder shall entitle Seller to an equitable adjustment in the price and time of
performance.
6. Force Mjaeure Event. Neither Buyer nor Seller shall have any liability for any breach or delay (except for breach of payment
obligations) caused by a Force Majeure Event. If a Force Majeure Event exceeds six (6) months in duration, the Seller shall have the right to
ten,ninate the Agreement without liability, upon fifteen (15) days written notice to Buyer, and shall be entitled to payment for work performed prior
to the date of termination. "Force Majeure Event" shall mean events or circumstances that are beyond the affected party's control and could not
reasonably have been easily avoided or overcome by the affected party and are not substantially attributable to the other party. Force Majeure Event
may include, but is not limited to, the following circumstances or events: war, act of foreign enemies, terrorism, riot, strike, or lockout by persons
other than by Seller or its sub -suppliers, natural catastrophes or (with respect to on -site work), unusual weather conditions.
7. Warranty Subject to the following sentence, Setter warrants to Buyer that the (i) Work shall materially conform to the description in
Seller's Docunientation and shall be free from defects in material and workmanship and (ii) the Services shall be performed in a timely and
workmanlike manner. Determination of suitability of treated water for any use by Buyer shall be the sole and exelLiSiVe responsibility of Buyer. The
foregoing warranty shall not apply to any Work that is specified or otherwise demanded by Buyer and is not manufactured or selected by Seller, as to
which (i) Seller liereby assigns to Buyer, to the extent assignable, any warranties made to Seller and (ii) Seller shall have no other liability to Buyer
under warranty, tort or any other legal theory. The Setter warrants the Work, or any components thereof, through the earlier of (i) eighteen (18)
months from delivery of the Work or (ii.) twelve (12) months from initial operation of the Work or ninety (90) days from the performance of services
(the "Warranty Period''). If Buyer gives Seller prompt written notice of breach of this warranty within the Warranty Period, Seller shall, at its sole
option and as Buyer's sole and exclusive remedy, repair or replace the subject parts, re -perform. the Service or refund the purchase price. Unless
otherwise agreed to in writing by Seller, (1) Buyer shall be responsible for any labor required to gain access to the Work so that. Seller can assess the
available remedies and (ii) Buyer shall be responsible for all costs of installation of repaired or replaced Work. If Seller determines that any claimed
breach is not, in fact, covered by this warranty, Buyer shall pay Seller its then customary charges for any repair or replacement made by Seller.
Seller's warranty is conditioned on Buyer's (a:) operating and maintaining the Work in accordance with Seller's instructions, (b) not making any
unauthorized repairs or alterations, and (c) not being in default of any payment obligation to Seller. Seller's warranty does not cover (i) damage
caused by chemical action or abrasive material., misuse or improper installation (unless installed by Seller) and (ii) media goods (such as, but not
limited to, resin, membranes, or granular activated carbon media) once media goods are installed. THE WARRANTIES SET FORTH IN THIS
SECTION 7 ARE THE SELLER'S SOLE AND EXCLUSIVE WARRANTIES AND ARE SUBJECT TO THE LIMITATION OF LIABILITY
PROVISION BELOW. SELLER MAKES NO OTHER WARRANTIES OF ANY KIND, EXPRESS OR IN LIED, INCLUDING WITHOUT
LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR PURPOSE.
8. 1 nde Seller shall indemnify, defend and hold Buyer harmless from any claim, cause of action or liability incurred by Buyer as a
result of third party claims for personal injury, death or damage to tangible property, to the extent caused by Seller's negligence. Seller shall have the
sole authority to direct the defense of and settle any indcrnnified. claim. Seller's indemnifleation is conditioned on Buyer (a) promptly, within the
Warranty Period, notifying Setter of any claim, and (b) providing reasonable cooperation in the defense of any claim.
(May 2015)
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Agenda Item #18.
9. Assignment. Neither party may assign this Agreement, in whole or in part, nor any rights or obligations hereunder without the prior
wl'itten consent of the other party; provided, however, the Seller may assign its rights and obligations under these terms to its affiliates or in
connection with the sale or transfer of the Seller's business and Seller may grant a security 'interest in the Agreement and/or assign proceeds of the
agreement without Buyer's consent.
10. Termination. Either party may terminate this agreement, upon issuance of a written notice of breach and a thirty (30) day cure period, for
a material breach (including but not limited to, filing of bankruptcy, or failure to fulfill the material obligations of this agreement). If Buyer suspends
an order without a change order for ninety (90) or more days, Seller may thereafter term 1 nate this Agreement without liability, upon fifteen (15) days
written notice to Buyer, and shall be entitled to payment for work performed, whether delivered or undelivered, prior to the date of termination.
11. Dispute Resolution. Seller and Buyer shall negotiate in good faith to resolve any dispute relating hereto. If, despite good faith efforts, the
parties are unable to resolve a dispute or claim arising out of or relating to this Agreement or its breach, termination, enforcement, interpretation or
validity, the parties will first seek to agree on a forum for mediation to be held in a mutually agreeable site. If the parties are unable to resolve the
dispute through mediation, then any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination,
enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be
determined by arbitration in Pittsburgh, Pennsylvania before three arbitrators who are lawyers experienced in the discipline that is the subject of
dispute and shall be jointly selected by Seller and Buyer. The arbitration shall be administered by JAMS pursuant to its Comprehensive Arbitration
Rules and Procedures. The Arbitrators shall issue a reasoned decision of a majority of the arbitrators, which shall be the decision of the panel.
Judgment may be entered upon the arbitrcators' decision in any court of competent jurisdiction. The substantially prevailing party as determined by
the arbitrators shall be reimbursed by the other party for all costs, expenses and charges, including without limitation reasonable attorneys' fees,
i n curred by the prevailing party in c onnecti on with the arbitration. For any order shipped outside of the United States, any dispute shall be referred to
and finally determined by the International Center for Dispute Resolution in accordance with the provisions of its International Arbitration Rules,
enforceable under the New York Convention (Convention on the Recognition and Enforcement of Foreign Arbitral Awards) and the governing
language shall be English.
12. Export Comipliance., Buyer acknowledges that Seller is required to comply with applicable export laws and regulations relating to the
sale, exportation, transfer, assignment, disposal and usage of the Work provided under this Agreement, including any export license requirements.
Buyer agrees that such Work shall not at any time directly or indirectly be used, exported, sold, transferred, assigned or otherwise disposed of in a
manner which will result in non-compliance with such applicable export laws and regulations. It shall be a condition of the continuing performance
by Seller of its obligations hereunder that compliance with such export laws and regulations be maintained at all times. BUYER AGREES TO
INDEMNIFY AND HOLD SELLER HARMLESS FROM ANY AND ALL COSTS, LIABILITIES, PENALTIES, SANCTIONS AND FINES
RELATED TO NON-COMPLIANCE WITH APPLICABLE EXPORT LAWS AND REGULATIONS.
H. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE TO THE CONTRARY, SELLER SHALL NOT BE
LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE OR OTHER INDIRECT DAMAGES, AND SELLER'S TOTAL
LIABILITY ARISING AT ANY TIME FROM THE SALE OR USE OF THE WORK,, INCLUDING WITHOUT LIMITATION ANY LIABILITY
FOR ALL WARRANTY CLAIMS OR FOR ANY BREACH OR FAILURE TO PERFORM ANY OBLIGATION UNDER THE CONTRACT,
SHALL NOT EXCEED THE PURCHASE PRICE PAID FOR THE WORK. THESE LIMITATIONS APPLY WHETHER THE LIABILITY IS
BASED ON CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY.
14. Rental Enuipment / Services. Any leased or rented equipment ("Leased Equipment") provided by Seller shall at all times be the property
of Seller with the exception of certain miscellaneous installation materials purchased by the Buyer, and no right or property interest is transferred to
the Buyer, except the right to use any such Leased Equipment as provided herein. Buyer agrees that it shall not pledge, lend, or create a security
interest in, part with possession of, or relocate the Leased Equipment. Buyer shall be responsible to maintain the Leased Equipment in good and
efficient working order. At the end of the initial term specified in the order, the terms shall automatically renew for the identical period unless
canceled in writing by Buyer or Seller not sooner than three (3) months nor later than one (1) month from termination of the initial order or any
renewal terms. Upon any renewal, Seller shall have the right to issue notice of increased pricing which shall be effective for any renewed temis
unless Buyer objects in writing within fifteen (15) days of issuance of said notice. If Buyer timely cancels service in writing prior to the end of the
initial or any renewal term this shall not relieve Buyer of its obligations under the order for the monthly rental service charge which shall continue to
be due and owing. Upon the expiration or termination of this Agreement, Buyer shall promptly make any Leased Equipment available to Seller for
removal. Buyer hereby agrees that it shall grant Seller access to the Leased Equipment location and shall permit Seller to take possession of and
remove the Leased Equipment without resort to legal process and hereby releases Seller from any claim or right of action for trespass or damages
caused by reason of such entry and removal.
15. Miscellaneous. These terms, together with any Contract Documents issued or signed by the Seller, comprise the complete and exclusive
statement of the agreenient between the parties (the "Agreement") and supersede any terms contained in Buyer's documents, unless separately signed
by Seller. No part of the Agreement may be changed or cancelled except by a written document signed by Seller and Buyer. No course of dealing or
performance, usage of trade or failure to enforce any term shall be used to modify the Agreement. To the extent the Agreement is considered a
subcontract under Buyer's prime contract with an agency of the United States government,, in case of Federal Acquisition Regulations (FARs) flow
down terms, Seller will be in compliance with Section 44.403 of the FAR relating to connnercial items and those additional clauses as specifically
listed in 52.244-6, Subcontracts for Commercial Items (OCT 2014.)If any of these terms is unenforceable, such term shall be limited only to the
extent necessary to make it enforceable, and all other terms shall remain in full force and effect. The Agreement shall be governed by the laws of the
Commonwealth of Pennsylvania without regard to its conflict of laws provisions. Both Buyer and Seller reject the applicability of the United Nations
Convention on Contracts for the international sales of goods to the relationship between the parties and to all transactions arising from said
relationship.
(May 2015)
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