+1.309.419.8800 | Toll Free 800.523.9129     Emergency Hotline Request a Quote Download Brochures Español
header int purchasing Purchasing Logistics

Purchasing Logistics

All orders by FLSmidth A/S are subject to the terms, provisions and conditions as set forth herein. Orders must be shipped as specified unless authorized differently in writing. EXCEL™ charges back transportation cost if our instructions are not followed.

PREVAILING DOCUMENTATION:

(a) These terms and conditions are an essential part of the Order.

(b) The Order becomes a binding contract on the Effective Date. The Order consists of these Terms and Conditions, the terms and conditions stated on the face of the Order, and any attachments attached to or referenced in this Order. The Order rejects and voids any additional, different and other terms offered by Seller and any other communication or document submitted by Seller, whether in any event made or submitted before, contemporaneous with or after the Effective Date but except to the limited extent expressly stated in the Order. The Order is intended by the Parties as a final expression of their agreement and as a complete and exclusive statement of its terms. The Order incorporates and supersedes all prior and contemporaneous agreements and negotiations, with the specific exception of any existing nondisclosure or confidentiality agreements between the Parties, which are confirmed to remain in force according to their terms.

(c) Notwithstanding any rule of law to the contrary, the Order may only be amended by a written Change Order to the extent stated in Article 4 or by a formal written amendment of these Terms and Conditions signed by authorized representatives of both Parties. The Order cannot be amended (or otherwise be deemed or held by an arbitrator or other tribunal of competent jurisdiction to have been amended) orally, by conduct, by informal writing, by waiver, or by any combination thereof.

(d) Article headings are provided for convenience and are not to be used in construing the Order.

DEFINITIONS:

(a) “Confidential Information” shall mean confidential and/or proprietary data and information that are not in the public domain and are owned by or licensed to FLS and/or its licensors, including but not limited to trade secrets, technical know-how and other intellectual property; FLS’ proposal and pricing; sales methods, distribution methods, pricing, consumer profiles, advertising strategies, lists of suppliers and clients, and manufacturing processes; and proprietary engineering, drawings, specifications and/or instructions created by FLS or its licensor.

(b) “Contractor” means any person, other than Owner, with whom FLS has a contract.

(c) “Effective Date” means the date when Seller accepts the Order, whether upon express acceptance by any means of communication, beginning performance, or upon any other method of acceptance stated on the face of the Order

(d) “FLS” means the FLSmidth entity that is submitting the purchase order, as indicated on the face thereof.

(e) “Goods” means any materials, machinery, equipment, components, or items provided for in the Order.

(f) “Order” means the purchase order issued by FLS, these Standard Terms and Conditions for Equipment Purchase, and any specifications, drawings, supplemental or project specific terms and conditions or other documents incorporated by reference into such purchase order.

(g) “Owner” means the person, firm, or corporation owning the plant for which the Goods are purchased or leased under the Order.

(h) “Seller” means the person, firm, or corporation to whom the Order is issued.

(i) “Services” means the design and/or, as the case may be, other services to be performed by Seller as stated in the Order.

(j) “Party” means either Seller or FLS and “Parties” means both FLS and Seller.

(k) “Work” means the manufacture, and supply of the Goods, performance of Services, and other work to be performed by Seller as stated and described in the Order.

DRAWINGS, SPECIFICATIONS AND TECHNICAL INFORMATION:

(a) The true construction, interpretation and meaning of specifications, drawings and data shall be decided only by FLS. In case of conflict or inconsistency among the Order and any other Order documents, or in case of discrepancies, omissions or errors, Seller shall submit a written description of the matter immediately to FLS for determination.

(b) No specification or specifications with respect to any part of this Order shall constitute a warranty, express or implied, by FLS against any claims for infringement of patents, copyrights or trademarks and FLS shall not be responsible to Seller, as indemnitor or otherwise, for or on account of any such claim or liability.

CHANGES:

(a) FLS may at any time, by written notice, without notice to any sureties or assignees, make changes to the Work, including, but not limited to, changes in quantity, size or capacity, in drawings and specifications, methods of shipment and packaging, performance schedules or place of delivery, or performance of technical advisory services. Within seven (7) days after receipt of FLS’ notice, Seller shall submit a request for adjustments to the Order price and/or, as the case may be, the time of completion for the effects caused by the change. No claim by Seller for any adjustment the Order price or time of delivery will be valid unless received by FLS within the foregoing seven (7) day period. Should any change increase or decrease the cost of, or the time required for performance of the Order, an equitable adjustment shall be made to price or delivery schedule or both, as the case may be, to be reflected in a written modification of the Order. For changes that are made by Owner through FLS, Seller shall receive such adjustments to the Order price and/or, as the case may be, the time of delivery or completion as and to the extent that FLS receives corresponding adjustments from Owner for changes to the Work. Nothing contained in this clause shall relieve Seller from proceeding without delay in performance of the Order without regard to whether a proper adjustment has yet been made.

(b) Seller may deviate from the specified requirements only with the prior written approval of FLS. All proposed deviations shall be clearly shown on shop drawings and catalogs and shall be fully described in their transmittal letter. Seller shall bear any and all costs or damages incurred as result of deviations.

PRICE:

The price for the Work shall be the price shown on the face of the Order. Otherwise, the applicable price shall be Seller’s most preferred to preferred customers for like Work.

PACKING AND SHIPPING:

(a) The Order price includes all costs for shipment, including, but not limited to, packing, crating, drayage and storage prior to delivery, unless otherwise stated in the Order. Seller shall pack and otherwise prepare all items for shipment in accordance with the instructions under the Order and to secure the lowest transportation rates consistent with timely delivery, meet carrier s requirements and safeguard against damage from weather and transportation. Seller shall mark the number of the Order on air containers, packing slips, bills of lading and invoices and enclose a packing slip with each shipment. Where applicable, any packing or crating materials which are to be returned to FLS by Seller will be returned to FLS in accordance with FLS policies and to the point designated by FLS in the Order or as otherwise directed by FLS. When multiple packages comprise a single shipment, each package shall also be consecutively numbered. On the date shipment is made, Seller shall fax or E-Mail (followed by regular mail to FLS) invoices, shipping documents and a copy of the packing slip. Seller shall not make partial shipments or deviate from the shipping instructions of the Order without FLS prior written consent. Furthermore, Seller shall not deliver nonconforming Goods, unless so authorized by FLS in writing.

(b) When making delivery of Goods for overseas shipment, the weight information from the Seller must comply with the IMO, International Convention for the Safety of Life at Sea (SOLAS) regulations, chapter in effect at the time. The weight stated in the packing slip by the Seller must be the Verified Gross Weight (VGM) in accordance with the SOLAS regulations, method 1 or 2. The weighing equipment used by the Supplier must meet the accuracy certification and calibration requirements in the Seller’s country or where the weighing is performed. Seller shall not estimate the weight in the packing slip for the packages and/or containers. If the SOLAS regulations are violated, Seller shall be responsible for all demurrage, all costs and damages incurred by FLS if delivery of Goods is delayed, and all sanctions or fines that may be imposed on Seller or FLS.

SPECIAL TOOLING:

(a) If the Order price includes the cost of special tooling (e.g., special dies, jigs, tools, patterns, etc.) to be used for the Work, such special tooling shall become the property of FLS, which FLS may re-sell to the Owner.

(b) Any material (including, but not limited to, tooling such as dies, jigs, tools, patterns, etc. and specifications or drawings, and other material or products for decorating, finishing or processing, etc.) furnished by FLS to Seller for use in connection with the Work shall be and remain the property of FLS. Such special tooling and such materials shall be kept in good condition by Seller without expense to FLS. All risk of loss to such special tooling and such materials shall be and remain with Seller during the time they are in Seller s possession. The actual cost of changes to such special tooling or material resulting from FLS change of design or specification shall be paid for by FLS. No such special tooling and no such material belonging to FLS or Owner shall be used in the production, manufacture, or design of any Goods or parts thereof other than those called for by the Order or other Order(s) of FLS. When such special tooling or such material is no longer required for use in connection with the Order or such other Order(s), the same shall be returned to FLS or otherwise disposed of as FLS shall direct.

DELIVERY:

(a) Delivery shall be made in accordance with the delivery terms and the time of delivery stated in the Order. Seller shall immediately notify FLS in writing if it discovers that any part of the Goods cannot be delivered within the time specified, stating the cause or causes of the delay. Seller shall promptly submit a plan to FLS and take all steps necessary to eliminate or, if that is not commercially feasible, mitigate the delay at its expense. With respect to delays to the Work for which FLS may be entitled to a change order under its contract with Owner, Seller shall cooperate with FLS and provide all information concerning the delay and its impacts on the Work, the Order price and the schedule as and when required by FLS. In that event, FLS shall issue a change order to Seller for an adjustment of the Order price and/or, as the case may be, the schedule if and only to the extent that FLS receives a corresponding adjustment from Owner for delay of the Work.

(b) Delay: Time of performance is an essential element of the Order. If Seller fails to deliver or, as the case may be, complete Work within the time stated or referenced in the Order, then, notwithstanding anything stated in Clause 21(a), Seller shall be liable to FLS for costs and damages incurred by FLS as a result of such failure, including but not limited to, liquidated damages that are assessed by Owner or, as the case may be, TERMS AND CONDITIONS FOR EQUIPMENT PURCHASE 014.2010.13 3 of 7 customer. In addition, FLS reserves the right to cancel the Order without cancellation charge and without waiving any other rights under the Order, or at law, if any delivery is not made within thirty days of the applicable delivery date and in the event of such cancellation the Seller shall be responsible for FLS’ costs in obtaining substitute Goods.

(c) If freight is allowed, or purchase made at delivered price, freight charges must be prepaid. Carrier claims resulting from in transit damage will be the sole responsibility of Seller. If Goods are shipped on a freight-collect basis, all Goods shall be forwarded in accordance with FLS instructions or in the absence of such instructions by the route involving the lowest transportation rate. Excess transportation cost will be borne by Seller. All invoices with transportation charges must be supported by a receipted freight bill.

OVERSHIPMENTS:

Unless otherwise specified, an increase in the quantities called for by the Order will not be accepted by FLS. Any increased quantity shipped to FLS without prior acceptance may be returned by FLS to Seller at Seller s sole expense.

EXPEDITING, INSPECTION AND TESTING:

(a) The Work, shall be subject to expediting and inspection by FLS or the Owner. FLS’ and Owner’s representatives shall be afforded free access during working hours to Seller s plants.

(b) All inspections and tests shall be made as required by the Order. Seller shall deliver to FLS copies of all test reports, test data, and other documents, in the number specified at the mailing address set forth in the Order. FLS shall be entitled but shall not be required to perform inspections at Seller s or its vendors and subcontractors premises of all Goods at any stage in the manufacturing process, during normal business hours. Seller shall advise FLS ten days in advance when the Goods are ready for inspection. No such inspection or failure to inspect shall relieve Seller of any responsibility or liability with respect to the Work nor be interpreted in any way to imply acceptance thereof by FLS. FLS shall be entitled to reject any partially completed Work that fails to conform to the requirements of the Order.

(c) FLS shall be entitled to reject any Work that fails to conform to the requirements of the Order. All Work found to be nonconforming or defective will be corrected, repaired or replaced by Seller without expense to FLS or, at option of FLS, Seller will refund the price on all such nonconforming or defective Work.

PAYMENT:

Payment will be made in accordance with the Order’s payment terms or, if there are no payment terms, within ninety (90) days after receipt and acceptance of the Goods. If discounts are offered, FLS shall have the option to pay invoices according to discount terms. Discount periods, if applicable, will be computed from the date of delivery of Goods with receipt of acceptable invoices or after the resolution of any dispute to render payment, whichever is later. Invoices shall be mailed to FLS at the address indicated in the Order. If advanced payments or progress payments are made by FLS to the Seller, all Work in progress is deemed to be identified to the Order, and the Seller hereby grants FLS a security interest therein to the extent of such advanced or progress payment.

TAXES:

(a) Unless otherwise provided herein, all federal, state, and local sales, use, excise or similar taxes shall be for Seller s account. FLS shall, upon Seller s request, furnish any exemption certificates available to FLS. Any such taxes agreed to be for FLS account shall be entered on invoice as a separate item.

(b) Seller hereby accepts exclusive liability for the payment of all contributions or taxes, for unemployment insurance, social security, old age pensions or annuities, and any other taxes, assessments or charges in connection herewith whether measured by wages, salaries, or other remuneration of Seller s employees, agents, independent contractors, or others, as far as any of the same may affect the Work, and Seller further agrees to indemnify FLS against the assessment of any such taxes or charges.

TITLE AND RISK OF LOSS:

Title to the Goods shall pass to FLS upon the earlier of payment by FLS to the Seller for the Goods (prorated to the portion of the Order price paid) or receipt by FLS or the Owner (as applicable) of such Goods at the destination location designated in the Order. Risk of loss will pass to FLS upon receipt by FLS or the Owner (as applicable) of the Goods in undamaged condition at the destination location stated in the Order.

LIENS:

Seller shall discharge at once, or shall furnish to FLS a bond satisfactory to FLS against any mechanic s lien or other lien, encumbrance or claim that may be filed in connection with the Work. Seller hereby expressly waives and releases any and all right of lien in connection with the Goods and agrees to furnish, or cause to be furnished, to FLS, such waiver of lien as may be requested by FLS as a condition precedent to any payment hereunder. If, at any time, there should be evidence of any lien or claim for which FLS might become liable, FLS shall have the right to retain out of any payment then due or thereafter to become due to Seller an amount sufficient to completely indemnify FLS against such lien or claim. If any lien or claim should remain unsatisfied after all payments are made to Seller, Seller will refund to FLS all monies that FLS may be compelled to pay in discharge of such lien or claim together with all costs and reasonable attorney s fees.

WARRANTY:

Seller expressly warrants that all Goods will be new, in accordance with the Order, including, but not limited to, the design specifications, drawings, samples or other descriptions and free from defects in material, workmanship and design. Unless otherwise stated on the face of the Order, this warranty shall run to FLS and Owner and shall remain in effect as to each item for a period of eighteen (18) months after the item is applied to the ultimate use for which it was intended or twenty-four (24) months after final delivery, whichever is shorter.

All warranties shall survive inspection, acceptance and final payment by FLS and shall run to FLS and subsequent purchasers of the items or end products of which they are a part. Seller agrees to save, defend, indemnify, and hold FLS and such purchasers harmless from all liability, loss, costs and expenses, including all court costs, expert witness fees, investigative costs and attorneys fees, resulting from any breach of any or all such warranties. Notice of breach shall be deemed sufficient if given within ninety days after discovery thereof by FLS. Seller agrees to immediately repair or replace any nonconforming or defective items with conforming items at no cost to FLS and shall indemnify FLS for any and all costs, expenses, claims or damages (by whomever made) associated with any such nonconformance or defect. Seller further warrants that the repair or replacement shall not interrupt, delay or otherwise adversely impact FLS or its customers operations.

THE WARRANTIES SET FORTH IN THE ORDER SHALL EXCLUDE ALL IMPLIED WARRANTIES (EXCEPT OF TITLE). THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR OTHERWISE.

LAWS:

(a) FLSA and Non-Discrimination: Seller shall certify on such standard forms as it customarily uses its compliance with (1) the Fair Labor Standards Act of 1938 (Federal Wage and Hour Law), as amended, including Sections 6, 7, and 12, and regulations and orders issued under Section 14 thereof and (2) all applicable laws, orders, rules and regulations regarding non-discrimination in employment, including but not limited to Executive Orders 11246 (as amended by Executive Order 11375), 11141, 11458, 11625, 11701, and 11758, as amended, and related rules and regulations, as applicable.

(b) Safety: Seller warrants that the Goods sold hereunder shall comply in all respects with the Occupational Safety and Health Act of 1970 (P.L. 91-596, as amended) and all applicable state and local safety laws, and all applicable regulations, rulings, orders and standards promulgated thereunder, or with analogous laws applicable in the country where the Goods originate. Seller further warrants that the Goods will comply with all generally recognized industrial safety standards. Seller agrees to correct any nonconformance at its expense.

(c) Hazardous and Toxic Materials: Seller warrants that each chemical substance constituting, or contained in, the materials is listed in the Environmental Protection Agency s Toxic Substances Control Act (P.L. 94-469, as amended) Master Inventory File of Chemical Substances. If the Goods, or any part thereof, have been classed as hazardous materials by the U.S. Department of Transportation, Seller warrants that the product shall be packaged, marked, labeled and shipped in full compliance with the Hazardous Materials Transportation Act (P.L. 93-633, as amended) and regulations promulgated thereunder. Seller further warrants that the Goods comply with the Federal Hazardous Substances Act (P.L. 92-516, as amended) and regulations promulgated thereunder, or with analogous laws applicable in the country where the Goods originate. Seller agrees to correct any nonconformance at its expense.

(d) Export Controls: The United States Department of Commerce Administration regulations (15 CFR) identify specific commodities which require export licenses. FLS requires Seller to advise FLS if any items in the Order require a validated U.S. export license. Seller s active response (confirmed “yes/no” ) is required to verify that Seller has investigated the licensing requirements. If an export license is required, Seller shall provide FLS with the applicable Export Control Commodity number (ECCN) and the Schedule B number.

(e) With respect to subparagraphs (a) through (d) hereof, Seller agrees to hold FLS, its customer(s) and Owner(s) harmless from any and all liabilities, claims, civil fines, penalties and awards, damages, losses, settlements and expenses, including attorney s fees, which may arise out of Seller s actions or omissions which do not meet these requirements.

CORPORATE SOCIAL RESPONSIBILITY:

(a) The FLSmidth Group, as a signatory to the UN Global Compact, expects its suppliers and contractors to maintain and apply policies and procedures that ensure compliance with the law and which support generally acknowledged sustainable business practices, including, but not limited to: (i) respecting basic human rights as set out in the principles of the UN Declaration of Human Rights, including to refrain from any use of forced labor, and to respect ethnical, cultural, religious and political diversity; (ii) respecting the UN Convention on the Rights of the Child with respect to any use of child labor; (iii) respecting basic labor rights as stated by the International Labor Organization (ILO), including the freedom for employees to organize themselves and to collectively bargain employment terms; (iv) avoiding conflicts of interest and to refrain from any use of corruption in their business practices, including bribery, extortion and kickbacks, and from participation in any kind of money laundering; (v) complying with anti-competition and export control regulations; and (vi) conducting its business in full respect of FLS’ and/or any third Party’s intellectual property.

(b) Seller is responsible for the safe execution of the Work in compliance with all local regulations, and shall take all necessary safety measures, including safe working conditions and training in safe working methods, appropriate personal safety equipment, and other precautions to protect all persons and property against injury or damage.

(c) Seller must ensure that its employees are provided with access to normal health Services in the country where the Work is performed, and that all mandatory social insurances for its employees are being complied with.

CONFIDENTIAL INFORMATION:

All supplies, blueprints, sketches, drawings, specifications, and other technical or commercial information furnished by or on behalf of FLS or created or produced by Seller for FLS in furtherance of the Order shall remain or become FLS property and shall be deemed to be the confidential information of FLS. Such confidential information shall not be reproduced, given or disclosed to any third Party by Seller without FLS prior written consent and nothing in the Order shall be deemed to grant Seller any rights to use all or any of FLS confidential information except for the purposes contemplated in the Order. All confidential information shall be returned to FLS or FLS designated representative upon completion of the Order or upon FLS demand. Any information which FLS may disclose to Seller with respect to the design, manufacture, sale or use of the items covered by the Order shall be deemed to have been disclosed to Seller for use only in connection with the Order. Seller, therefore, shall not supply such items to others without FLS prior written consent.

PATENT INDEMNIFICATION:

To the extent the Goods are not manufactured or performed according to designs specified by FLS, Seller shall indemnify and hold FLS, its agents and customers harmless from any loss, damage or liability for infringement of United States or foreign patents or copyrights, or for unauthorized use of trade secrets or proprietary information of a third Party with respect to such items and their process of manufacture, or the performance of such services. Seller shall, at its own expense, defend any action in which such infringement or unauthorized use is alleged with respect to the manufacture, sale or use of such items delivered hereunder or Services performed hereunder. Notwithstanding the above, FLS may elect to maintain its own defense of such claims at the cost of Seller.

INDEMNIFICATION:

(a) Seller shall defend, indemnify, and hold harmless FLS from any and all third-person claims for damages, losses, costs and expenses (including all fines and penalties as well as reasonable attorney’s fees, consultant fees and litigation expenses) arising out of or resulting from or related to personal injury to or death of any person, and damage to or destruction of tangible third-person property to the extent arising out of defects in Goods furnished by, or acts or omissions, negligence, gross negligence, or willful misconduct of Seller, its subvendors of any tier, or their respective directors, officers or employees. Seller waives its immunity under applicable workmen’s compensation laws solely for FLS’ benefit regarding Seller’s obligations in this Article and to enjorce Seller’s obligations to FLS under this Article.

(b) FLS shall promptly notify Seller of any suit, claim, action or other proceeding covered by this Article that is threatened or asserted against it. The Parties shall cooperate fully with one another in the defense and settlement of the suit, claim, action or other proceeding.

INSURANCE:

During the term of the Order and through the end of the warranty period, Seller shall maintain primary insurance coverage listed below with insurers satisfactory to FLS: (a) Workers’ Compensation as required by statute with Employer s Liability coverage in the a minimum amount of $1,000,000 and Seller shall provide for or require all subcontractors to maintain similar coverage for the subcontractor s employees employed;

(b) Commercial General Liability including products liability and completed operation coverage shall be in the minimum amount of $1,000,000 each occurrence with Public Liability insurance including contractual coverage for indemnity clauses set forth in the Order;

(c) Automobile Liability coverage for non-owned hired vehicles and owned vehicle with a minimum of $1,000,000 each occurrence combined single limit and

(d) Property Damage and transportation coverage at 110% of the Order price for loss of or damage to the Goods while in manufacture and through delivery of such Goods if and to the extent FLS has made payments prior to delivery. Seller shall cause FLS to be named as an Additional Insured under Seller s insurance required under clause (b) and (c) above and loss payee under (d) to the extent of payments made by FLS prior to delivery. Certificate(s) evidencing this fact shall be submitted to FLS and must be approved by FLS before Work commences under the Order. The insurance coverages above shall be primary to and not in excess of any other insurance available to FLS. Seller shall obtain from its insurers for insurance coverage in clause (b) and (c) a waiver of subrogation in favor of FLS. In the event that Seller fails to furnish such insurance coverages, FLS may, without prejudice to any other remedy available to it, terminate the Order, or, at its option, upon the giving of fifteen days’ notice by ordinary mail to Seller, obtain any required insurance and charge the cost thereof to Seller. All certificates must contain a clause reading in substance as follows: The Insurance Company will endeavor to notify FLSmidth, in writing, at the site of the Work, at least thirty days prior to any cancellation, or any change in or reduction of the coverages shown herein.

TERMINATION AND SUSPENSION:

(a) Default: FLS may at its election, by delivery to Seller of written notice of termination or suspension, cancel or suspend the Order or any part hereof without any obligation or liability whatsoever, if Seller (i) fails to deliver the Goods within thirty (30) days from the Order s delivery date schedule or perform the Work Services in accordance with the delivery or any other schedule specified in the Order, or (ii) fails to comply with any of the other material provisions of the Order. In the event of any such failure by Seller, and whether or not the Order shall be canceled, FLS may purchase similar materials elsewhere or secure the manufacture and delivery thereof and Seller shall be liable to FLS for all costs and damages suffered or incurred by FLS TERMS AND CONDITIONS FOR EQUIPMENT PURCHASE 014.2010.13 6 of 7 arising or resulting from such failure or failures by Seller. If it is determined that Seller was not in default, or that the default was excusable, the termination will be deemed to have been ordered pursuant to the termination for convenience clause set forth herein.

(b) Convenience: FLS reserves the right to cancel or suspend the Order in whole or part by written notice, for its convenience. FLS may further cancel the Order after any period of suspension. In the event of such termination or suspension, Seller may claim reasonable costs incurred plus a reasonable allowance for profit (in the case of termination only) and overhead only on Work completed as of the effective date of termination or suspension, to be determined in accordance with (i) and (ii) below. Any claim by Seller must be made in writing no later than ten (10) business days after receipt of the notice of cancellation or suspension from FLS. If it appears that Seller would have sustained a loss on the entire Order had it been completed, no allowance for profit and overhead shall be allowed.

  1. If the Order covers materials manufactured or fabricated to FLS specifications or specifications especially prepared by Seller for FLS, the following provisions shall apply: (A) immediately upon receipt of such notice of termination or suspension, or upon such other date as may be specified in said notice, Seller shall stop all Work in connection with the Order, except as otherwise directed by FLS; (B) In the case of cancellation for convenience, FLS shall pay and Seller shall accept as full compensation, Seller s reasonable costs to the date Work is stopped, including Seller s reasonable expense in connection with termination or suspension of any subcontracts, all as approved by FLS, plus ten percent (10%) of such costs as full overhead and profit, provided, however, that in no event shall the total amount to be paid to Seller upon such termination or suspension plus payments previously made exceed that proportion of the aggregate total purchase price specified herein that the Work actually completed hereunder to the date Work is stopped bears to the entire work to be performed hereunder; (C) all completed Goods and Work in progress shall become and remain the property of FLS and Seller shall safely hold the same for a reasonable time subject to receipt of FLS’ written shipping or other disposition instructions; and (D) in the case of suspension of the Order, Seller shall resume production and deliveries in accordance with FLS’ written instructions. Upon completion of the resumed Work, Seller shall receive the total purchase price in the manner and amount as specified herein, less any payments previously made under the Order.
  2. If the Goods covered by the Order are standard stock merchandise, FLS shall have no obligation for cancellation charges or otherwise hereunder, except to make payment subject to other applicable terms hereof, for the materials actually shipped and in transit prior to such termination or suspension, and to make payment for any materials as to which the Order is not terminated or suspended which are shipped subsequent to such termination or suspension. Upon completion of the Order after resumption, Seller shall receive the total purchase price in the manner and amount as specified herein, less any payments previously made under the Order.

(c) Upon termination under any of the foregoing circumstances, Seller will be deemed to have offered to FLS an assignment of all its subcontracts and purchase orders related to the Order.

FORCE MAJEURE:

If Seller is unable by reason of Force Majeure to carry out any of its obligations under the Order, then upon Seller giving notice and particulars in writing to FLS within a reasonable time after the occurrence of the cause relied upon, such obligations shall be suspended for the duration of Force Majeure. Force Majeure shall be defined as stated in FLS’s contract with the Owner. Otherwise “Force Majeure” is defined to include: catastrophic events (for example, fires and explosions); Acts of God (including, but not limited to, floods, tornadoes, hurricanes and earthquakes); riots, insurrections, or civil unrest; acts or threatened acts of piracy or terrorists; war, blockades or other acts or threatened acts of war or military action; trade embargoes or restrictions imposed after the date of the Order, the imposition of which was not generally known or anticipated before that date; changes in applicable law after the date of the Order; governmental or judicial acts, decrees, injunctions, restrictions or other orders that were not requested, promoted or caused by the affected Party; or any other unforeseeable causes that are not reasonably within the control of Seller or FLS. FLS shall issue a change order to Seller for a time extension if and to the same extent that FLS obtains a time extension from Owner for delay of the Work caused by Force Majeure.

LIMITATION OF LIABILITY:

(a) Neither FLS nor Seller shall under any circumstances be liable to one another for claims for or arising from loss of profits, revenue, or interest; pre-judgement interest; additional or increased interest or other financing charges or expenses; loss of use; loss by reason of plant shutdown, interruption, or nonoperation; cost of substitute power, equipment, facilities or services; additional usage of fuel or utilities; loss of customers or business; business interruption losses, damages or expenses; delays or disruptions of or interferences with the Work; or for any special, incidental, indirect, exemplary, punitive or consequential damages, whether or not such loss or damage is based in contract, warranty, tort (including, but not limited to negligence and strict liability), indemnity, or otherwise. Unless otherwise stated in these Terms and Conditions, this paragraph applies to all rights, claims, remedies and liabilities that either Party may have under or in connection with the Order. TERMS AND CONDITIONS FOR EQUIPMENT PURCHASE 014.2010.13 7 of 7

(b) Each Party s maximum aggregate liability to the other Party for any claim whether in contract, warranty, tort (including, but not limited to, negligence and strict liability), or other theory of recovery for any loss or damage concerning, arising out of, or resulting from the Goods or the Purchase Order shall be capped at one hundred percent (100%) of the Order price. The limitations and caps on liability that are stated or referenced herein shall not apply to the following: (i) Seller s duty to defend, indemnify, and hold harmless FLS under Articles 19 (Patent Indemnification), 20 (Idemnification” ); (iii) claims for willful misconduct, bad faith, or gross negligence; and (iv) proceeds of Seller furnished insurance.

GOVERNING LAW AND FORUM:

(a) The Order shall be interpreted, construed and enforced as written in accordance with, and all other matters in connection with the Order and/or its performance shall be governed by, the laws of the Commonwealth of Pennsylvania, notwithstanding that a different result would be required by application of the conflicts of laws rules of Pennsylvania or of any other jurisdiction.

(b) The Parties expressly waive application and jurisdiction of the UN Convention on the International Sale of Goods.

(c) All disputes and claims between the Parties concerning, arising from or relating in any way to the Order (collectively for the purpose of this Article, Disputes ) that cannot be settled by good faith discussion, shall be resolved through binding arbitration by the American Arbitration Association ( AAA ) pursuant to the AAA s Commercial Arbitration Rules in effect at the time. The arbitration shall be held in Philadelphia, PA and conducted in English. The arbitrators shall have no right to add to, subtract from or modify any of the provisions of the Order, and shall not exceed any limitations of liability and remedy provided in the Order. No pre-award interest shall be included in any award made by the arbitrators The arbitration award shall not be appealable or subject to recourse to or review by any court or other arbitration panel. Notwithstanding Section 25(a), this agreement to arbitrate shall be construed, interpreted and enforced under the Federal Arbitration Act [U.S.C. 9 U.S.C. § 1 et seq].

NOTICE:

Notice under this Contract shall be given by hand-delivery, U.S. Mail, courier, fax, or e-mail at the address set forth in the offer, or to such address as such party may provide in writing from time to time. All notices shall be effective upon receipt.

ASSIGNMENTS:

Neither party shall assign this Contract or any benefits arising therefrom without prior written consent of the other Party.

SUBCONTRACTING:

Seller shall not subcontract any part of the Work without first securing the written approval of FLS. In the event that Seller so subcontracts without first securing the written approval of FLS, FLS may cancel that portion of the Order relating to such items without any liability to FLS.

DOCUMENTATION, PREVAILING LANGUAGE AND DATES:

Unless specifically provided for elsewhere in the Order, all documentation, including drawings and written materials, shall be in the English language. In the event the text of the Order is translated into a language other than English, the English text shall prevail, control and be binding in the event of any conflict or discrepancy. All dates shall be based on the Gregorian calendar.

ADVERTISING:

Seller shall not advertise or publish the fact of or details relating to the Order to any third party except as specified in the Order, permitted by FLS, or as required to perform the Order.

WAIVER OF BREACH:

A Party’s payment or receipt of payment, failure to insist on strict performance, or waiver of a breach of the Contract shall not constitute a waiver by that Party of any other breach of the Contract or its right to enforce the other Party’s compliance with its obligations hereunder.

SEVERABILITY:

If any term or other part of the Contract is held to be unenforceable or invalid by an arbitrator or court of competent jurisdiction, the validity and enforceability of all other terms and parts shall not be affected thereby.

ENVIRONMENTAL MANAGEMENT SYSTEM ASSURANCE:

FLS maintains an Environmental Management System (“EMS”) under ISO 14001 that establishes environmental performance requirements for the reduction of wasted resources and operating cost during the engineering design, procurement, manufacture, transportation, use, and final disposition of the Goods. Seller and its subcontractors and suppliers of every tier shall (i) apply, environmental performance requirements that are consistent with the EMS in the performance of work under and in connection with this contract and (ii) maintain documented records of their compliance those requirements. FLS may audit compliance with this Paragraph, and Seller shall provide access to and copies of all such records as FLS may request.

SURVIVAL OF TERMS:

Articles 12 (Taxes), 16 (Laws), 18 (Confidential Information), 19 (Patent Indemnification), 20 (Indemnification), 24 (Limitation of Liability), 25 (Governing Law and Forum), 30 (Advertising) 31 (Waiver of Breach), and 33 (Environmental Management System Assurance) shall survive completion or termination of the Order.