SULZER CHEMTECH USA, Inc. d/b/a
FRC SYSTEMS INTERNATIONAL
GENERAL TERMS AND CONDITIONS OF SALE
These Terms and Conditions can be found on the Internet at https://frcsystems.com/terms
1. GENERAL
1.1 Definitions
“BUYER” means an individual or entity which signs the CONTRACT documents as counterpart to SULZER CHEMTECH.
“CONTRACT” means the PURCHASE ORDER plus all documents referred to therein.
"DELIVERY TERM" shall have the meaning as established in the version of the INCOTERMS in place as of the effective date of the contract.
“EFFECTIVE DATE” means the date of the ORDER CONFIRMATION. If BUYER expresses its objection to the ORDER CONFIRMATION within three (3) working days after receipt of the ORDER CONFIRMATION, EFFECTIVE DATE shall be the date on which BUYER and SULZER CHEMTECH reach common agreement on the CONTRACT.
"END USER" shall have the same meaning as BUY-ER. However, if the BUYER and END USER are not the same individual or entity, then the term "END USER" shall mean the individual or entity for which the BUYER is obtaining the SCOPE OF SUPPLY.
“ENGINEERING SERVICES” means engineering work included in the CONTRACT required to be carried out for the delivery of EQUIPMENT, FIELD SERVICES, STUDIES and such goods and or services offered.
“EQUIPMENT” means skid mounted equipment, water and wastewater equipment, process and mass transfer, mixer or other equipment which is specified in the CONTRACT.
“EX WORKS” means an Ex Works delivery as defined in the version of the INCOTERMS in place as of the effective date of the contract in effect as of the date of delivery.
“Field Services” shall mean the deployment of SULZER personnel to a BUYER'S or END USER'S PLANT to provide technical assistance with specified maintenance, inspection, installation, repair and/or modification work or other services specified in the CON-TRACT.
“FINAL ACCEPTANCE” means the document issued by the BUYER or the END USER at the beginning of the warranty period or, if no FINAL ACCEPTANCE document is issued, then the document evidencing shipment of the goods or completion of the services. For consignment goods, FINAL ACCEPTANCE will take place at the date of removal of goods from stock, usually at the point of consumption.
“GENERAL TERMS” means these General Terms and Conditions of Sale of SULZER CHEMTECH.
“INSTALLATION Services” shall have the same meanings as “Field Services”.
“ORDER CONFIRMATION” means the document pro-vided by SULZER CHEMTECH to BUYER as a response to BUYER’S purchase order documents either by e-mail, facsimile or as a hardcopy.
"PLANT" means the BUYER or END USER facility for which SULZER work is produced and/ or supplied or services provided.
“PURCHASE ORDER” means the purchase order documents issued by BUYER in the version confirmed by SULZER CHEMTECH in the ORDER CONFIRMATION. In case of non-substantial deviations between said purchase order documents and the ORDER CONFIRMATION, the version of the ORDER CONFIRMATION shall become the binding PURCHASE ORDER unless BUYER expresses its dissent within three (3) working days after receipt of the ORDER CONFIRMA-TION.
“SCOPE OF SUPPLY” means the goods and/or ser-vices to be delivered as specified in the CONTRACT and the pertaining documentation, to the extent explicitly specified in the PURCHASE ORDER and agreed upon by both parties.
"SPARE PARTS" means wear and tear goods not otherwise falling under the definition of Equipment.
“SULZER CHEMTECH” means the company doing business as (d/b/a) FRC Systems International and operating as a business unit under Sulzer Chemtech USA, Inc.
1.2 These GENERAL TERMS apply to all work provided by SULZER CHEMTECH except for the Sulzer Chemtech business related to disposable mixing devices.
BUYER is hereby given notice that any deviations from these GENERAL TERMS are expressly rejected unless such deviations are otherwise agreed upon in a mutual-ly signed document.
The validity of offer is for a period of thirty (30) days commencing with the date of the offer, unless other-wise specified in writing by SULZER CHEMTECH.
1.3 The delivery encompasses the SCOPE OF SUPPLY and, unless otherwise mutually agreed in the PUR-CHASE ORDER, will be made EX WORKS.
1.4 In case of contradiction between CONTRACT documents, the following order of precedence shall apply:
a) PURCHASE ORDER in the version accepted in the ORDER CONFIRMATION or other negotiated, agreed and mutually signed document, including all documents made a part thereof
b) SULZER CHEMTECH’S offer
c) These GENERAL TERMS
d) BUYER’S request for an offer
e) BUYER’S Purchase Terms and Conditions
1.5 All documents making part of the CONTRACT can be changed only by a written, duly signed document.
1.6 All information and data contained in brochures and price lists of SULZER CHEMTECH are only binding to the extent that they are by reference expressly included in the CONTRACT.
1.7 SULZER CHEMTECH shall be entitled to engage sub-suppliers for the performance of the CONTRACT.
2. DELIVERY
2.1 SULZER CHEMTECH shall deliver the SCOPE OF SUPPLY on the dates specified in the CONTRACT contingent upon BUYER fulfilling all contractual obligations, including but not limited to timely release of all input specifications, drawing approvals etc.
2.2 BUYER acknowledges and agrees that the delivery of the SCOPE OF SUPPLY may be delayed and re-scheduled in order to accommodate delays caused by:
a) Events of Force Majeure as defined in this CONTRACT;
b) Failure of BUYER or BUYER'S representative to timely make any required advance payments;
c) Failure of BUYER or BUYER'S representative to timely provide;
I. revised or additional specifications;
II. approval drawings; or
III. other items, documentation or materials necessary to complete the SCOPE OF SUPPLY.
d) Any other reasons beyond SULZER CHEMTECH'S control
2.3 This CONTRACT shall be subject to termination at the option of BUYER for BUYER‘S convenience. In the event that this CONTRACT is terminated for the convenience of BUYER, SULZER CHEMTECH shall be paid: (1) the price of the goods or services properly supplied, provided, performed or in production up to the effective date of termination plus, (2) reasonable overheard and profit on such goods and services specified in clause #2.3.1 and (3) reimbursement for direct costs and expenses incurred by SULZER CHEMTECH as a result of BUYER's cancellation for convenience such as termination charges under subcontracts. In no event shall the amount payable to SULZER CHEMTECH exceed the total PURCHASE ORDER price, less any payments previously made. In addition to the preceding, the CONTRACT may be terminated by BUYER "for cause" in the event of a material breach of the terms and conditions by SULZER CHEMTECH which is not promptly cured.
2.4 SULZER CHEMTECH reserves the right to suspend production of the SCOPE OF SUPPLY or terminate this CONTRACT in the event that BUYER fails to provide any required advance payments and/or to issue Letter(s) of Credit as agreed in the PURCHASE ORDER within fourteen (14) days of the due date of the advanced payment or Letter(s) of Credit.
In such event, SULZER CHEMTECH reserves the right to charge BUYER for all losses and damages suffered by SULZER CHEMTECH by reason of such default.
2.5 Unless otherwise expressly agreed in writing in a document signed by SULZER CHEMTECH, SULZER CHEMTECH shall not be subject to any claim for liquidated damages or penalties related to the late delivery of the SCOPE OF SUPPLY.
In case the BUYER fails to timely fulfil any of its contractual obligations including failure to make payments on time or failure to take delivery when called upon to do so by SULZER CHEMTECH or failure to provide necessary infrastructure and facilities to commence the perform of the CONTRACT, SULZER CHEMTECH is entitled to terminate the CONTRACT. In this case BUYER shall pay to SULZER CHEMTECH the costs and expenses incurred by SULZER CHEMTECH connected with work or services performed prior to the date of termination, including a reasonable margin as well as other costs and expenses, including cancellation charges under subcontracts, as SULZER CHEMTECH may incur in connection with such cancellation.
2.6 Transfer of risk of loss of or damage to the SCOPE OF SUPPLY shall be in accordance with the applicable Incoterms. If dispatch is delayed at the request of the BUYER or due to other reasons beyond SULZER CHEMTECH'S control, the risk of loss of the SCOPE OF SUPPLY shall pass to the BUYER at the original time the SCOPE OF SUPPLY was scheduled to leave SULZER CHEMTECH'S manufacturing facility. From this moment on, the SCOPE OF SUPPLY shall be stored and insured on the account and at the risk of the BUYER. Title and ownership shall be transferred to BUYER upon receipt of payment in full by SULZER CHEMTECH.
3. PRICE AND PAYMENT
3.1 The prices for the SCOPE OF SUPPLY are those stat-ed in the CONTRACT and are fixed and firm until ful-fillment of CONTRACT. For work carried out on a time basis, the prices shall be determined in accordance with the hourly rates specified in the CONTRACT. If no agreement on hourly rates has been made, the hourly rate applied by SULZER CHEMTECH for other cus-tomers and comparable work shall apply. All prices are exclusive of excise duties, VAT, sales or similar taxes and duties.
3.2 Unless otherwise agreed in writing, full payment for the SCOPE OF SUPPLY shall be due within thirty (30) days of issue of an invoice by SULZER CHEMTECH.
3.3 If BUYER disputes any item or charge listed in the invoice, BUYER shall state the item or amount of the charge in dispute and the reasons for such dispute in writing within such thirty (30) day time period. Howev-er, all undisputed amounts shall remain due as speci-fied above.
3.4 At SULZER CHEMTECH’S discretion, an interest charge of six percent (6%) per annum will be charged against any outstanding balance effective as of the due date of the balance.
3.5 Unless otherwise agreed in writing, all uncontested payments shall be made according to the agreed terms of payment without any deductions for discounts, set-offs or otherwise.
3.6 To the extent permitted by law, BUYER hereby grants SULZER CHEMTECH a security interest in the SCOPE OF SUPPLY sold hereunder (together with all accesso-ries, attachments and accessions now and hereafter af-fixed thereto and all substitutions, replacements and all proceeds thereof) as of the date hereof and hereafter to secure the payment of the purchase price thereof and all charges related thereto and authorizes SULZER CHEMTECH to file financing statements (and other such instruments) with appropriate local and state au-thorities.
SULZER CHEMTECH reserves the right to change the credit terms provided herein when, in SULZER CHEMTECH's opinion, the financial condition or previous payment record of BUYER so warrants.
Should BUYER become delinquent on the payment of any sum due hereunder, SULZER CHEMTECH will not be obligated to continue performance. Further, in case of late payment, SULZER CHEMTECH may, after having notified the BUYER in writing, suspend its performance of the SCOPE OF SUPPLY until the open and due invoices have been paid.
3.7 If BUYER and SULZER CHEMTECH agreed on issuing a Letter of Credit by BUYER in favor of SULZER CHEMTECH, such Letter of Credit shall be irrevocable, unconditional, and issued by a first class worldwide active bank. The Letter of Credit shall remain valid until the delivery of the entire of SCOPE OF SUPPLY plus ninety (90) days. SULZER CHEMTECH reserves the right to approve the issuing bank. Withdrawal of the money shall be against the documents that are mutual-ly agreed upon in writing.
4. INTELLECTUAL PROPERTY
4.1 BUYER shall provide the technical documentation (e.g. up-to-date drawings, descriptions, charts, instructions, etc.) that is necessary for the delivery of the SCOPE OF SUPPLY and is specified in the CONTRACT. BUY-ER confirms that BUYER is fully authorized to use (or have used) the technical documentation provided to SULZER CHEMTECH for the performance of the SCOPE OF SUPPLY by SULZER CHEMTECH or its sub-suppliers, respectively. In case BUYER would not be authorized to order said performance from SULZER CHEMTECH without violation of intellectual property rights of third parties, or if such right should be chal-lenged, BUYER shall inform SULZER CHEMTECH without any delay. In this case, SULZER CHEMTECH shall stop the work until the approvals needed for the performance have been obtained.
4.2 Each party to the CONTRACT retains all rights to any technical documents provided to the other party. The party receiving such documents recognizes these rights and shall, without previous written consent of the other party, not make these documents available to any third party, either in whole or in part, nor use them for any purpose other than to fulfill the CONTRACT.
4.3 Any know-how, inventions, patents or copyrights or the like belonging to or provided by SULZER CHEMTECH and used for or developed in the course of the fulfill-ment of the CONTRACT by SULZER CHEMTECH shall remain SULZER CHEMTECH’S property, and no ownership shall be transferred to BUYER with respect to such know-how, inventions, patents and copyrights, independent of the hardware on which such know-how, inventions, patents or copyrights is made available (machinery, paper, electronic medium, etc.). However, BUYER shall be granted a limited right to use such know-how, invention, patents, copyright or the like for the operation, maintenance and repair of the SCOPE OF SUPPLY on a non-exclusive basis, which right shall not include the use of the said intellectual property for the reproduction of the SCOPE OF SUPPLY or parts thereof. If the SCOPE OF SUPPLY consists of ENGI-NEERING SERVICES, BUYER shall be permitted to use, on a non-exclusive basis, the documentation re-ceived for the purpose described in the CONTRACT. In case of doubt, ENGINEERING SERVICES provided for the development or construction of EQUIPMENT shall be deemed to be made available for the procurement of such goods from SULZER CHEMTECH solely.
4.4 To the best knowledge of SULZER CHEMTECH the SCOPE OF SUPPLY and any part thereof, in the par-ticular form sold by SULZER CHEMTECH, shall not in-fringe any intellectual property rights of third parties. In the event of any patent infringement relating to the said SCOPE OF SUPPLY, SULZER CHEMTECH may, in its sole discretion, procure the right to use the SCOPE OF SUPPLY without impairing its suitability, or modify or replace it so that it is rendered non-infringing. The obli-gations of SULZER CHEMTECH set forth herein are contingent upon (i) SULZER CHEMTECH receiving prompt written notice from BUYER of such infringe-ment; (ii) SULZER CHEMTECH receiving assistance from BUYER in the defense; and (iii) the right of SUL-ZER CHEMTECH to settle or defend.
4.5 The obligation under 4.4 above of SULZER CHEMTECH shall not apply to (i) the SCOPE OF SUPPLY or part thereof which has been manufactured according to BUYER'S design, (ii) services performed by using BUYER’S documentation, (iii) the use of the SCOPE OF SUPPLY or any part thereof in conjunction with any other product in a combination not furnished by SULZER CHEMTECH as part of the SCOPE OF SUPPLY, (iv) to products fabricated by using the SCOPE OF SUPPLY. As to any such equipment, ser-vice, product, part or use in such combination, SULZER CHEMTECH assumes no liability whatsoever for in-fringement of intellectual property rights of third parties, and BUYER shall indemnify and hold harmless SUL-ZER CHEMTECH against any respective infringement claims. SULZER CHEMTECH shall co-operate with BUYER in the same manner as required by SULZER CHEMTECH under 4.4 (i) to (iv) herein above.
4.6 SULZER CHEMTECH’S copyrighted material shall not be copied by BUYER except for archiving purposes or to replace a defective copy.
5. INSTALLATION AND SITE PREPARATION
5.1 If installation services are a part of the SCOPE OF SUPPLY, it is the responsibility of the BUYER to pre-pare the site environmentally and to provide the re-quired services, electrical wiring and conduit, dry compressed air and piping, gas supply and piping, tools for installation, water drain, permits, including work permits, licenses, approvals, etc. as well as whatever is required to uncrate and move the equipment to its location.
5.2 BUYER also undertakes to maintain the facilities upon which SULZER CHEMTECH’S personnel may be re-quired to enter, in a safe condition, and to comply with all applicable laws, statutes and regulations governing workplace health and safety, and to give SULZER CHEMTECH’S personnel all instructions necessary. SULZER CHEMTECH shall make sure that its personnel will follow all instructions reasonably made by BUYER. The same applies vice versa in case BUY-ER’S personnel have to enter upon SULZER CHEMTECH’S facilities.
5.3 BUYER’S failure to comply with the obligations stated in Articles 5.1 and 5.2 above shall entitle SULZER CHEMTECH to either stop rendering its services, and/or postpone the delivery, and/or ask for additional charges for the lost time of its service personnel, such time to be calculated and charged in accordance with Article 3.
6. WARRANTY
Articles 6.1 through 6.4 contain specific warranties referring to various SCOPES OF SUPPLY. Only the warranty provision(s) referring to a specific SCOPE OF SUPPLY shall apply.
6.1 EQUIPMENT
a) SULZER CHEMTECH shall remedy any defect arising within twelve (12) months from the date of initial operation of the EQUIPMENT or eighteen (18) months from the date of shipment, and, if dispatches, erection, supervision of erection and/or commissioning are delayed due to reasons beyond SULZER CHEMTECH'S control, the warranty period shall end not later than eighteen (18) months after notification that the EQUIPMENT is ready for dispatch (whichever date shall occur first). This warranty shall apply to defects resulting from faulty materials or faulty workmanship. Additionally, to the ex-tent SULZER CHEMTECH has provided the design for the EQUIPMENT, this warranty shall also apply to defects resulting from faulty design.
b) If requested to do so by BUYER in writing, and as BUYER’S sole and exclusive remedy, SULZER CHEMTECH agrees to, at its sole option, either repair or replace the faulty parts of the EQUIPMENT, or sup-ply BUYER with non-defective EQUIPMENT or part thereof. These remedies shall be provided for the defects notified to SULZER CHEMTECH during the warranty period under the conditions defined in Article 6.5 herein.
c) The warranty period for any EQUIPMENT which is repaired or replaced shall be for a period of twelve (12) months or the remainder of the original warranty period, whichever period is longer.
6.2 FIELD SERVICES
a) SULZER CHEMTECH warrants that the FIELD SER-VICES will be performed as specified in the CON-TRACT and will comply with applicable industry standards and practices. SULZER CHEMTECH shall remedy any defect arising within ninety (90) days from the date of completion of the FIELD SERVICES work and which are resulting from faulty workmanship performed by SULZER CHEMTECH. Defects resulting from insufficient or inappropriate documentation delivered by BUYER shall be remedied at BUYER’S cost.
b) If requested to do so by BUYER in writing, and as BUYER’S sole and exclusive remedy, SULZER CHEMTECH shall at its sole option repair the defective FIELD SERVICES or re-perform such FIELD SER-VICES. These remedies shall be provided for the defects notified to SULZER CHEMTECH during the warranty period under the conditions defined in Article 6.5 herein.
c) All FIELD SERVICES work which is remedied shall be warranted for a period of ninety (90) days from the date of the completion of repair or reperformance.
d) SULZER CHEMTECH shall bear the costs for the corresponding repair or the re-performance of work whether occurring at the SULZER CHEMTECH or BUYER or END USER facility to the extent that they are reasonable under the circumstances. BUYER or END USER shall grant SULZER CHEMTECH the first opportunity to remedy any defect in the FIELD SER-VICES. If the BUYER or END USER has obtained the services of a third party to perform the FIELD SER-VICES, SULZER CHEMTECH shall bear the costs for the corresponding repair or re-performance work pro-vided that the BUYER or END USER has obtained SULZER CHEMTECH’S prior written approval.
6.3 ENGINEERING SERVICES
a) SULZER CHEMTECH’S obligations consist of using proper care and skills in performing the work described in the CONTRACT. Unless otherwise explicitly agreed upon in writing, SULZER CHEMTECH shall not provide any warranty for successful achievement of the results envisaged in the CONTRACT. Defects arising from faulty ENGINEERING SERVICES arising within six (6) months from completion thereof shall be re-performed by SULZER Chemtech at its own cost.
b) The warranty period for any engineering services which have been re-performed under the warranty shall be for a period of six (6) months.
6.4 Performance Guarantee
Unless explicitly agreed upon in writing in the CON-TRACT, SULZER CHEMTECH shall not provide per-formance guarantees.
6.5 General Conditions applicable to SULZER CHEMTECH’S Warranty
a) Maximum Extension of Warranty Period
The warranty period for any part of the SCOPE OF SUPPLY which is repaired or replaced shall be for the applicable period specified under 6.1 through 6.3 or the remainder of the original warranty period, whichever period is longer. Under no circumstances shall the re-paired, replaced or re-performed warranty period ex-tend for a period of time which is greater than 50% of the original period.
b) Inspection of Equipment and Services
BUYER shall ensure that inspection of SULZER CHEMTECH'S SCOPE OF SUPPLY and the issuance of a written notice of FINAL ACCEPTANCE shall occur within seven (7) days of receiving SCOPE OF SUP-PLY. If a written notice of FINAL ACCEPTANCE is not received, then FINAL ACCEPTANCE will be deemed to have occurred fourteen (14) days after BUYER or END USER has received SULZER CHEMTECH'S EQUIP-MENT or ENGINEERING SERVICES or fourteen (14) days after the completion of SULZER CHEMTECH'S FIELD SERVICES.
c) Place where Warranty Work will be executed
SULZER CHEMTECH reserves the right to require that BUYER or END USER return the SCOPE OF SUPPLY or parts thereof to SULZER CHEMTECH’S production facility to provide proper warranty service. In such cas-es, SULZER CHEMTECH shall reimburse BUYER or END USER for the reasonable costs paid for sea or land transportation of the SCOPE OF SUPPLY. If the return of the SCOPE OF SUPPLY to SULZER CHEMTECH'S production facility is not required, then SULZER CHEMTECH shall use its best efforts to per-form the warranty work at BUYER’S or END USER’s facility, and as soon as reasonably practicable after re-ceipt of written notification by the BUYER or the END USER. BUYER or END USER shall make the SCOPE OF SUPPLY available for SULZER CHEMTECH to re-pair or replace. SULZER CHEMTECH shall not be re-sponsible for the disassembly, removal or reinstallation of the SCOPE OF SUPPLY.
d) Early termination of Warranty Period
The warranty periods stipulated in 6.1 through 6.3 above shall terminate if BUYER or a third party under-take inappropriate or improper modification or repairs, or if the BUYER, in case of a defect, does not as soon as reasonably possible take appropriate steps to miti-gate damages and to notify SULZER CHEMTECH in writing of its obligation to remedy such defect.
e) Exclusion from SULZER CHEMTECH’S Warranty
Excluded from SULZER CHEMTECH’S warranty and liability for defects are all deficiencies which cannot be proved to have their origin in bad material, faulty design (if applicable), or poor workmanship. Also excluded from SULZER CHEMTECH’S warranty and liability for defects are deficiencies resulting from normal wear and tear, improper maintenance, failure to observe the op-erating instructions provided by SULZER CHEMTECH or deficiencies resulting from other reasons beyond SULZER CHEMTECH’S control, including damages caused by erosion or corrosion. For supplies and ser-vices of those subcontractors prescribed by the BUY-ER, SULZER CHEMTECH assumes warranty, guaran-tee and/or liability for defects only to the extent that such subcontractors assumed warranty, guarantee and/or liability obligations in its contract with SULZER CHEMTECH.
f) Dismantling and Reassembly
To the extent necessary to remedy the defect, BUYER or END USER shall, at their own expense, arrange for any dismantling and reassembly of EQUIPMENT.
g) No Additional Warranties or Representations
SULZER CHEMTECH MAKES NO WARRANTY OR REPRESENTATION TO THE SCOPE OF SUPPLY OTHER THAN AS SPECIFIED IN THIS SECTION. ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FIT-NESS FOR A PARTICULAR PURPOSE, ARE HERE-BY DISCLAIMED.
6.7 Hazard Warning Responsibility
BUYER and SULZER CHEMTECH acknowledge that each have respective obligations with respect to maintaining compliance with all safety and health related regulations concerning SCOPE OF SUPPLY. BUYER is familiar with the SCOPE OF SUPPLY and acknowledges its separate and independent knowledge of such risks, which are known in BUYER'S industry. BUYER shall maintain compliance with all safety and health related governmental requirements concerning SCOPE OF SUPPLY and shall take all reasonable and practical steps to inform, warn, and familiarize its employees, agents, contractors, and customers with all hazards as-sociated therewith, including handling, shipment, storage, use, and disposal. BUYER assumes as to its own employees, its independent contractors, and subsequent purchasers of the SCOPE OF SUPPLY sold hereunder, all responsibility for any and all necessary warnings or other precautionary measures. BUYER shall defend at its own expense, indemnify fully and hold harmless SULZER CHEMTECH and its parents, subsidiaries, and affiliates and its and their agents, officers, directors, employees, representatives, successors, and assigns from and against any and all liabilities, losses, damages, demands, claims, penalties, fines, actions, suits, legal, administrative or arbitration proceedings, judgments of any jurisdiction, costs and expenses (including, but not limited to, attorney’s fees and related costs) arising out of or in any manner related to BUYER'S failure to provide necessary warnings or other precautionary measures in connection with the SCOPE OF SUPPLY sold hereunder.
7. OVERALL LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRA-RY IN THE CONTRACT, INCLUDING ALL DOCU-MENTS FORMING A PART OF THE CONTRACT AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SULZER CHEMTECH BE LIA-BLE TO THE BUYER OR ITS CUSTOMER FOR ANY LOSS OF PROFIT, LOSS OF CONTRACTS OR EARNINGS, INTERRUPTION OR LOSS OF PRO-DUCTION OR LOSS OF USE OR LOSS OF OPPOR-TUNITY, DELAY IN DELIVERY OR CLAIMS BY THE BUYER'S CUSTOMER FOR SUCH DAMAGES OR BUSINESS, INDIRECT, INCIDENTIAL OR CONSEQUENTIAL DAMAGES, WHETHER SUCH LIABILITY IS BASED ON CONTRACT, INDEMNITY, TORT (INCLUDING NEGLIGENCE), STATUTE OR ANY OTHER BASIS OF LEGAL LIABILITY. THE REMEDIES OF BUYER SET FORTH HEREIN ARE EXCLUSIVE, AND SULZER CHEMTECH'S LIABILITY WITH RESPECT TO ANY CONTRACT OR SALE OR ANYTHING DONE IN CONNECTION THEREWITH, WHETHER IN CONTRACT, TORT (INCLUDING NEG-LIGENCE), UNDER ANY WARRANTY, STRICT LIA-BILITY OR OTHERWISE SHALL IN TOTAL NOT EX-CEED 100% OF THE CONTRACT PRICE TO BE PAID
TO SULZER CHEMTECH, UNLESS CLAIMS ARISE DIRECTLY FROM GROSS NEGLIGENCE OR WILFUL MISCONDUCT OF SULZER CHEMTECH.
8. EXPORT AND OTHER GOVERNMENTAL DOCU-MENTS
8.1 SULZER CHEMTECH undertakes to provide the documents required by the authorities at SULZER CHEMTECH’S place for the manufacturing and transportation EX WORKS of the SCOPE OF SUPPLY.
8.2 BUYER undertakes to provide all other documents required, e.g. documents required by an authority at BUYER’S or BUYER’S customer’s place, or the place where the SCOPE OF SUPPLY will be used.
8.3 SULZER CHEMTECH, BUYER and END USER shall support and assist each other without undue delay with obtaining any necessary information or documentation required by any authority in connection with the CON-TRACT. SULZER CHEMTECH'S acceptance of the CONTRACT shall be subject to the receipt of all necessary export authorizations required from any govern-mental authority which has jurisdiction over this CON-TRACT.
8.4 The BUYER hereby represents and warrants that it is, and will remain in compliance with the requirements of all applicable export laws and regulations, including but not limited to the U.S. Export Administration Regulations and International Traffic in Arms Regulations. Such requirements include, but are not limited to obtaining all required authorizations or licenses for the export or re-export of any controlled item, product, article, commodity, software or technology. Without limiting the generality of the foregoing, the BUYER hereby rep-resents and warrants that it has not been, and is not currently, debarred, suspended or otherwise prohibited or restricted from exporting, re-exporting, receiving, purchasing, processing or otherwise obtaining any item, product, article, commodity, software or technology regulated by any agency of the United States or any other state. The BUYER agrees to indemnify and hold harmless SULZER CHEMTECH from any costs, penal-ties or other losses caused by, or related to, any violation or breach of the warranties contained in this provision.
9. FORCE MAJEURE
9.1 SULZER CHEMTECH shall not be liable for any non-performance, loss, damage, or delay due to acts of God such as but not limited to severe weather conditions, fire, flood or war, riots, strikes or labor difficulty, governmental acts such as but not limited to trade re-strictions including embargoes, acts of the BUYER or END USER, delays in transportation, inability to obtain necessary labor or materials from usual sources, or other causes beyond the reasonable control of SUL-ZER CHEMTECH. In the event of delay in performance due to any such cause, the date of delivery or time for completion will be extended to reflect the length of time lost by reason of such delay. If the grounds for Force Majeure continue for more than six (6) months, either SULZER CHEMTECH or BUYER may terminate the CONTRACT upon seven (7) days' written notice to the other party.
9.2 SULZER CHEMTECH shall be entitled to be compensated for the extra costs caused by the interruption, or, in case of termination, for the work done prior to termination and the expenses for non-cancelable procurements. BUYER shall be entitled to receive the work for which it has paid.
10. FREE ISSUE MATERIALS
Materials supplied by BUYER to SULZER CHEMTECH (e.g. samples to be processed or tested, product for usage in performance tests, materials to be used for implementation in the SCOPE OF SUPPLY, etc.) shall at all times remain the property of BUYER and shall be sufficiently covered under BUYER’S property insurance policy. Subject to Article 6 and 7 hereinabove, SULZER CHEMTECH shall be solely liable for damages caused by gross negligence or willful misconduct to FREE IS-SUE MATERIALS.
11. MISCELLANEOUS
11.1 Applicable Laws and Jurisdiction
a) The CONTRACT shall be construed and shall be interpreted in accordance with the laws of the State of Del-aware without application of any conflict of law rules.
b) Nothing contained in this CONTRACT shall limit the rights of SULZER CHEMTECH available under the applicable law.
c) In case of a dispute, the parties shall make their best efforts to resolve such dispute amicably. If an amicable resolution should not be possible, the resolution of the dispute shall be conducted in either a Federal or State court of competent jurisdiction.
11.2 Assignment
Any attempt to assign, transfer, or delegate any of the rights, duties or obligations herein to a third party with-out prior written consent of the other party shall render such attempted assignment or transfer null and void. SULZER CHEMTECH’S affiliated companies shall not be considered third parties for this purpose.
11.3 Waiver of Rights
SULZER CHEMTECH’S or BUYER’S failure to exercise any of its rights shall not constitute or be deemed a waiver or a forfeiture of such rights.
11.4 Severability
If a provision of the CONTRACT is determined to be void or unenforceable, this finding shall not render other provision void or unenforceable, and SULZER CHEMTECH and BUYER shall make their best endeavors to replace such provision by a valid one covering the original commercial intention as far as legally possible.