1.1 Scope. The terms and conditions contained herein (the “Terms”) provide a framework for the sale of equipment and services to Purchaser. The Terms, together with any additional terms agreed to in writing by both parties in a subsequent purchase order (“PO”)(the Terms and such agreed PO terms, if any, together the “Contract”) govern all sales by Critical Power Equipment and Solutions Inc. (“CPES”) doing business as Wasp Critical Power Solutions (“WASP”), and apply regardless of any subsequent terms and conditions that either WASP or Purchaser refers to, attaches, or otherwise attempts to impose on such sale unless such additional conditions are specifically accepted by WASP in writing. In the event of conflict between these Terms and any terms contained in a countersigned PO, the terms of the PO will govern.
1.2 Equipment. Unless the context otherwise requires, the term "Equipment" as used herein means all of the equipment, parts, accessories, and all software and software documentation, if any, included with the Equipment and licensed to Purchaser by WASP ("Software") under a Purchase Order.
1.3 Services. Unless the context otherwise requires, the term "Services" as used herein means all labor, supervisory, technical, engineering, start-up and commissioning, repair, consulting or other services provided by WASP under a Purchase Order.
2.1 Informal quotes. Prices provided in initial quotes are non-binding and are issued solely for informational purposes.
2.2 Quotations. Once WASP has costed a project, WASP will issue a formal price proposal to Purchaser containing a timeline, bill of materials and overall cost (a “Quotation”). Unless otherwise specified in writing, all Quotations expire thirty (30) days from the date thereof and may be modified or withdrawn by WASP before receipt of Purchaser’s conforming acceptance. All quoted prices are subject to revision at any time in the event of any increase in raw material, energy costs or governmental actions such as tariffs. Purchaser may confirm the order of Equipment and/or Services by issuing a Purchase Order. Where any of the terms of a Purchase Order differ from those contained herein, or in the Quotation, WASP’s countersignature will be required in order for the Purchase Order to be binding on WASP. For the avoidance of doubt, Purchaser’s own Terms & Conditions will not apply to the sale of Equipment or Services by WASP.
2.3 Labor costs. Unless otherwise stated herein, Services prices are based on normal business hours (8 a.m. to 5 p.m. Monday through Friday) and are as stated in the Purchase Order. When required, overtime and Saturday hours will be billed at one and one-half (1 1/2) times the hourly rate; and Sunday hours will be billed at two (2) times the hourly rate; federal holiday hours will be billed at three (3) times the hourly rate.
2.4 Taxes. Unless otherwise stated in a PO, quoted prices do not include any federal, state or local property, license, privilege, sales, use, excise, gross receipts, or other like taxes which may now or hereafter be applicable, and Purchaser agrees to pay or reimburse any such taxes which WASP or its suppliers are required to pay or collect. If Purchaser is exempt from the payment of any tax or holds a direct payment permit, Purchaser shall, upon placement of a Purchase Order, provide WASP a copy, acceptable to the relevant governmental authorities of any such certificate or permit.
2.5 Export. Unless otherwise stated, the price for international orders includes customs duties and other importation or exportation fees. Any change after that date in such duties, fees, or rates, will increase the price by WASP's additional cost.
3.1 Payment Terms. Payment terms are net cash, payable without offset, in United States Dollars, 30 days from date of invoice by wire transfer to the account designated by WASP in the Quotation, or any further account advised by WASP and confirmed by telephone by Purchaser. WASP is not required to commence or continue its performance unless and until invoiced payments have been received in a timely fashion. For each day of delay in receiving required payments, WASP will be entitled to a matching extension of the schedule.
3.2 Advance Payment. WASP may require payment in advance and/or payment security satisfactory to WASP and may suspend its performance until said advance payment or payment security is received or may terminate the Purchase Order, whereupon WASP will be entitled to receive the cancellation charges described herein. If delivery is delayed by Purchaser, payment will be due on the date WASP is prepared to make delivery. Delays in delivery or nonconformities in any instalments delivered will not relieve Purchaser of its obligation to accept and pay for remaining instalments.
3.3 Late Fees. Purchaser shall pay, in addition to the overdue payment, a late charge equal to the lesser of 1.5% per month or any part thereof or the highest applicable rate allowed by law on all such overdue amounts plus WASP's attorneys' fees and court costs incurred in connection with collection. If Purchaser fails to make payment of any amounts due under any Purchase Order and fails to cure such default within ten (10) days after receiving written notice specifying such default, then WASP may by written notice, at its option, suspend its performance under the Purchase Order until such time as the full balance is paid or terminate the Purchase Order, as of a date specified in such notice. In the event of suspension, cancellation or termination hereunder, WASP will be entitled to recover all costs for work performed, and equipment and parts purchased, up to the date of cancellation together with a margin of 20%. This is without prejudice to any other claims that WASP may have against Purchaser.
4.1 Changes by Purchaser. Any changes requested by Purchaser affecting the ordered scope of work must first be reviewed by WASP and any resulting adjustments to affected provisions, including price, schedule, and guarantees mutually agreed in writing prior to implementation of the change (each a “Change Order”). In the event that the parties cannot agree to a Change Order, the cancellation provisions included herein will apply.
4.2 Changes by WASP. WASP may, at Purchaser’s expense, make such changes in the Equipment or Services as it deems necessary, in its sole discretion, to conform the Equipment or Services to the applicable specifications. If Purchaser objects to any such changes, WASP will be relieved of its obligation to conform to the applicable specifications to the extent that conformance may be affected by such objection.
5.1 Delivery Terms. Unless otherwise stated in a Quotation or confirmed by WASP in a Purchase Order, all Equipment manufactured, assembled or warehoused in the continental United States is provided Ex-Works (Incoterms 2020). If the scheduled delivery of Equipment is delayed by Purchaser or by Force Majeure (as that term is defined in Section 16), WASP may move the Equipment to storage for the account of and at the risk of Purchaser whereupon it will be deemed to be delivered. Shipping and delivery dates are contingent upon Purchaser's timely approvals and delivery by Purchaser of any documentation required for WASP's performance hereunder. Claims for shortages or other errors in delivery must be made in writing to WASP within ten days of delivery. Equipment may not be returned except with the prior written consent of and subject to terms specified by WASP. Claims for damage after delivery will be made directly by Purchaser with the common carrier.
5.2 Start-up and Commissioning. WASP may provide start-up and commissioning services pursuant to a separate terms & conditions.
6.1 Except with respect to Software (for which title will not pass) title to Equipment will transfer to Purchaser upon delivery according to the applicable freight term.
7.1 Scheduling. Any inspection by Purchaser of Equipment on WASP's premises must be scheduled in advance to be performed during normal working hours and subject to rules and regulations in place at the WASP premises.
7.2 Site testing. If the Purchase Order provides for site acceptance testing, testing will be performed by WASP personnel or contractors to verify that the Equipment has arrived at site complete, without physical damage, and in good operating condition. Completion of site acceptance testing constitutes full and final acceptance of the Equipment. If, through no fault of WASP, acceptance testing is not completed within thirty (30) days after arrival of the Equipment at the site, the site acceptance test will be deemed completed and the Equipment will be deemed accepted.
8.1 Equipment and Services Warranty. WASP warrants that Equipment (excluding Software, which is warranted as specified in paragraph (d) below) will be delivered free of defects in material and workmanship and that Services will be free of defects in workmanship. The warranty for Equipment (excluding Software and spare parts) will end twelve (12) months after the Shipment Date. The warranty for new spare parts will end twelve (12) months after the Shipment Date. The warranty for Services will end ninety (90) days after the date of completion of Services.
8.2 Remedy. If a material nonconformity to the foregoing warranty is discovered in the Equipment or Services during the applicable warranty period as specified above, under normal and proper use and Purchaser can demonstrate that the Equipment has been properly stored, installed, operated and maintained and written notice of such nonconformity is provided to WASP within 14 days of such discovery and within the applicable warranty period WASP shall, at its option, either (i) repair or replace the nonconforming portion of the Equipment or reperform the nonconforming Services or (ii) refund the portion of the price applicable to the nonconforming portion of Equipment or Services. If any portion of the Equipment or Services so repaired, replaced or re-performed fails to conform to the foregoing warranty, and written notice of such nonconformity is provided to WASP promptly after discovery and within the original warranty period applicable to such Equipment or Services or 30 days from completion of such repair, replacement or re-performance, whichever is later, WASP will repair or replace such nonconforming Equipment or re-perform the nonconforming Services. The original warranty may not otherwise be extended.
8.3 Exceptions. WASP will not be responsible for providing temporary power, removal, installation, reimbursement for labor costs or working access to the nonconforming Equipment, including disassembly and re-assembly of non WASP supplied equipment, or for providing transportation to or from any repair facility, or for any other expenses incurred in connection with the repair or replacement, all of which will be at Purchaser's risk and expense. WASP will have no obligation hereunder with respect to any Equipment which (i) has been improperly repaired or altered; (ii) has been subjected to misuse, negligence or accident; (iii) has been used in a manner contrary to WASP's instructions; (iv) is comprised of materials provided by or a design specified by Purchaser; or (v) has failed as a result of ordinary wear and tear. Equipment supplied by WASP but manufactured by others is warranted only to the extent of the manufacturer’s warranty, and only the remedies, if any, provided by the manufacturer will be allowed.
8.4 Software. WASP warrants that at time of delivery the Software, and any custom code (“Custom Code”) provided by WASP will, when properly installed, execute in accordance with WASP's published specification. WASP provides no additional warranty regarding Software or any Custom Code, and is not responsible for the future functioning of the software following the updating or patching of any ancillary software used by Purchaser.
8.5 THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF QUALITY AND PERFORMANCE, WHETHER WRITTEN, ORAL OR IMPLIED, AND ALL OTHER WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USAGE OF TRADE ARE HEREBY DISCLAIMED. THE REMEDIES STATED HEREIN CONSTITUTE PURCHASER’S EXCLUSIVE REMEDIES AND WASP’S ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY.
9.1 Indemnity. WASP shall defend at its own expense any action brought against Purchaser alleging that the Equipment or the use of the Equipment as specified by WASP (a “Process”) directly infringes a patent in effect in the United States, a European Union member state or the country in which the Equipment is to be used (and the specific site therein, or in the United States, the “Site”)(provided there is a corresponding patent issued by the U.S., UK or an EU member state), or any copyright or trademark registered in the country of the Site and to pay all damages and costs finally awarded in any such action, provided that Purchaser has given WASP prompt written notice of such action, all necessary assistance in the defense thereof and the right to control all aspects of the defense thereof including the right to settle or otherwise terminate such action on behalf of Purchaser.
9.2 No responsibility for modifications. WASP has no obligation hereunder and this provision does not apply to: (i) any other equipment or processes, including Equipment or Processes which have been modified or combined with other equipment or process not supplied by WASP; (ii) any Equipment or Process supplied according to a design, other than an WASP design, required by Purchaser; (iii) any products manufactured by the Equipment or Process; (iv) any patent issued after the date hereof; or (v) any action settled or otherwise terminated without the prior written consent of WASP.
9.3 Right to procure. If, in any such action, the Equipment is held to constitute an infringement, or the practice of any Process using the Equipment is finally enjoined, WASP shall, at its option and its own expense, procure for Purchaser the right to continue using said Equipment; or modify or replace it with non-infringing equipment or, with Purchaser's assistance, modify the Process so that it becomes non-infringing; or remove it and refund the portion of the price allocable to the infringing Equipment. THE FOREGOING PARAGRAPHS STATE THE EXCLUSIVE LIABILITY OF WASP AND EQUIPMENT MANUFACTURER FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT.
9.4 Indemnification by Purchaser. To the extent that said Equipment or any part thereof is modified by Purchaser, or combined by Purchaser with equipment or processes not furnished hereunder (except to the extent that WASP is a contributory infringer) or said Equipment or any part thereof is used by Purchaser to perform a process not furnished hereunder by WASP or to produce an article, and by reason of said modification, combination, performance or production, an action is brought against WASP, Purchaser shall defend and indemnify WASP in the same manner and to the same extent that WASP would be obligated to indemnify Purchaser under this "Patent Indemnity" provision.
10.1 In no event will WASP, its suppliers or subcontractors be liable for special, indirect, incidental or consequential damages, whether in contract, warranty, tort, negligence, strict liability or otherwise, including, but not limited to, loss of profits or revenue, loss of data, loss of use, loss of use of any of the Equipment or any associated equipment, cost of capital, cost of substitute equipment, facilities or services, downtime costs, delays, and claims of customers of the Purchaser or other third parties for any damages.
11.1 WASP 's aggregate liability for all claims whether in contract, warranty, tort, negligence, strict liability, or otherwise for any loss or damage arising out of, connected with, or resulting from these Terms or the performance or breach thereof, or from the design, manufacture, sale, delivery, resale, repair, replacement, installation, technical direction of installation, inspection, operation or use of any equipment covered by or furnished under these Terms, or from any services rendered in connection therewith, will in no case (except as provided in the section entitled "Intellectual Property Infringement") exceed the Purchase Order price for the equipment in question.
11.2 All causes of action against WASP arising out of or relating to these Terms or the performance or breach hereof will expire unless brought within one year of the time of accrual thereof.
11.3 In no event, regardless of cause, will WASP be liable for penalties or penalty clauses of any description or for indemnification of Purchaser or others for costs, damages, or expenses arising out of or related to the Equipment and/Services.
12.1 WASP does not assume any responsibility for compliance with federal, state or local laws and regulations, except as expressly set forth herein, and compliance with any laws and regulations relating to the operation or use of the Equipment or Software is the sole responsibility of the Purchaser. All laws and regulations referenced herein will be those in effect as of the Quotation date. In the event of any subsequent revisions or changes thereto, WASP assumes no responsibility for compliance therewith. If Purchaser desires a modification as a result of any such change or revision, it will be treated as a change per Article 4. Nothing contained herein will be construed as imposing responsibility or liability upon WASP for obtaining any permits, licenses or approvals from any agency required in connection with the supply, erection or operation of the Equipment. The Contract is governed by, and construed, interpreted and enforced in accordance with the laws of the State of New York, USA, excluding its conflicts of laws rules and excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods, and both parties hereby agree that any litigation concerning, arising out of, or related to the Contract, whether claims are based on contract, tort, equity or otherwise, will be conducted only in the state or federal courts functioning in, or with jurisdiction over claims brought in Henry County, Illinois and waive the defense of an inconvenient forum in respect to any such litigation. If any provision hereof, partly or completely, is held invalid or unenforceable, such invalidity or unenforceability will not affect any other provision or portion hereof and these terms will be construed as if such invalid or unenforceable provision or portion thereof had never existed.
13.1 WASP warrants that the Equipment will comply with the relevant standards of the Occupational Safety and Health Act of 1970 ("OSHA") and the regulations promulgated thereunder as of the date of the Quotation. Upon prompt written notice from the Purchaser of a breach of this warranty, WASP will replace the affected part or modify it so that it conforms to such standard or regulation. WASP 's obligation will be limited to such replacement or modification. In no event will WASP be responsible for liability arising out of the violation of any OSHA standards relating to or caused by Purchaser's design, location, operation, or maintenance of the Equipment, its use in association with other equipment of Purchaser, or the alteration of the Equipment by any party other than WASP.
14.1 WASP owns all rights in, or has the right to sublicense, any Software or Custom Code provided with the Equipment. As part of the sale made hereunder Purchaser hereby obtains a limited license to use such Software or Custom Code, subject to the following: (i) the Software or Custom Code may be used only in conjunction with equipment specified by WASP; (ii) the Software or Custom Code will be kept strictly confidential; (iii) Purchaser shall not copy, reverse engineer, or modify the Software or Custom Code; (iv) the Purchaser's right to use the Software or Custom Code will terminate immediately when the specified equipment is no longer used by the Purchaser or when otherwise terminated, e.g. for breach, hereunder; and (v) the rights to use the Software or Custom Code are non-exclusive and non-transferable, except with WASP 's prior written consent.
14.2 Nothing in this Contract conveys to Purchaser any title to or ownership in the Software or Custom Code or the intellectual property contained therein in whole or in part, nor to designate the Software a "work made for hire" under the Copyright Act, nor to confer upon any person who is not a named party to this Contract any right or remedy under or by reason of this Contract. In the event of termination of this License, Purchaser shall immediately cease using the Software and, without retaining any copies, notes or excerpts thereof, return to WASP the Software and all copies thereof and shall remove all machine-readable Software from all of Purchaser's storage media.
15.1 Unless otherwise agreed in writing by WASP and Purchaser, all right, title and interest in any inventions, developments, improvements or modifications of or for Equipment and Services will be the property of WASP. Any design, manufacturing drawings or other information submitted to the Purchaser remains the exclusive property of WASP. Purchaser shall not, without WASP 's prior written consent, copy or disclose such information to a third party. Purchaser shall only use such information for the operation or maintenance of the Equipment and not for any other purpose, including the duplication thereof in whole or in part.
16.1 WASP will neither be liable for loss, damage, detention or delay nor be deemed to be in default for failure to perform when prevented from doing so by causes beyond its reasonable control including but not limited to acts of war (declared or undeclared), delays attributable to outbreaks, epidemics and pandemics, Acts of God, fire, strike, labor difficulties, acts or omissions of any governmental authority or of Purchaser, compliance with government regulations, insurrection or riot, embargo, delays or shortages in transportation or inability to obtain necessary labor, materials, or manufacturing facilities from usual sources or from defects or delays in the performance of its suppliers or subcontractors due to any of the foregoing enumerated causes. In the event of delay due to any such cause, the date of delivery will be extended by period equal to the delay plus a reasonable time to resume production, and WASP will adjust the price to compensate for such delay.
17.1 Any Purchase Order may be cancelled by Purchaser upon prior written notice and payment of cancellation charges, which will be an amount equal to all costs incurred by WASP up to the date of termination, including parts and equipment purchased to service the Purchase Order, together with a margin of 20%. Within 21 business days of receipt of a notice of cancellation, WASP will provide Purchaser with a bill of costs together with a calculation of the total cancellation fee. Purchaser will then have 14 business days in which to make full payment, after which time interest will accrue at a rate of 1.5% per month or the maximum amount under state law, whichever is lower. WASP’s determination of the cancellation fee will be final.
18.1 WASP may terminate the Contract (or any affected portion thereof) immediately for cause if Purchaser becomes insolvent/bankrupt, or materially breaches the Contract, including, but not limited to, failure or delay in Purchaser making any payment when due, or fulfilling any payment conditions. Such termination will not alleviate Purchaser’s payment obligations under the Contract.
19.1 Purchaser represents and warrants that the Equipment and Services provided hereunder, and the "direct product" thereof are intended for civil use only and will not be used, directly or indirectly, for the production of chemical or biological weapons or of precursor chemicals for such weapons, or for any direct or indirect nuclear end use. Purchaser agrees not to disclose, use, export or re-export, directly or indirectly, any information provided by WASP or the "direct product" thereof as defined in the Export Control Regulations of the United States Department of Commerce, except in compliance with such Regulations.
19.2 If applicable, WASP shall file for a U.S. export license, but only after appropriate documentation for the license application has been provided by Purchaser. Purchaser shall furnish such documentation within a reasonable time after Purchase Order acceptance. Any delay in obtaining such license will suspend performance of the Contract by WASP. If an export license is not granted or, if once granted, is thereafter revoked or modified by the appropriate authorities, the Contract may be cancelled by WASP without liability for damages of any kind resulting from such cancellation. At WASP 's request, Purchaser will provide to WASP a Letter of Assurance and End-User Statement in a form reasonably satisfactory to WASP.
20.1 Any assignment of the Contract or of any rights or obligations under the Contract without prior written consent of WASP will be void.
21.1 Equipment and Services sold hereunder are not intended for use in connection with any nuclear facility or activity, and Purchaser warrants that it will not use or permit others to use Equipment or Services for such purposes, without the advance written consent of WASP. If, in breach of this, any such use occurs, WASP (and its parent, affiliates, suppliers and subcontractors) disclaims all liability for any nuclear or other damage, injury or contamination, including without limitation any physical damage to a nuclear facility itself, resulting from a nuclear incident and, in addition to any other rights of WASP, Purchaser shall indemnify and hold WASP (and its parent, affiliates, suppliers and subcontractors) harmless against all such liability including, but not limited to, any physical damage to the nuclear facility or surrounding properties, if any. Consent of WASP to any such use, if any, will be conditioned upon additional terms and conditions that WASP determines to be acceptable for protection against nuclear liability including but not limited to the requirement that the Purchaser and/or its end user customer shall have complete insurance protection against liability and property damage including without limitation physical damage to a nuclear facility itself or any surrounding properties, if any, resulting from a nuclear incident and shall indemnify WASP, its subcontractors, suppliers and vendors against all claims resulting from a nuclear incident including, but not limited to, any physical damage to the nuclear facility.
22.1 If Purchaser resells any of the Equipment, Purchaser will ensure the sale terms limit WASP 's liability to the buyer to the same extent that WASP 's liability to Purchaser is limited hereunder. Additionally, if the end-user intends to use the Equipment in connection with any nuclear facility or activity, the Purchaser shall require the end-user comply with the financial requirements under Price-Anderson Act (PAA) and secure a written release of liability which flows from the enduser to the benefit of WASP.
23.1 Purchaser is obligated to maintain safe working conditions at the Site, including the implementing of appropriate procedures regarding any item or chemical which can cause harm to people, plants, or animals when released by spilling, leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping, leaching, dumping or disposing into the environment (“Hazardous Materials”), confined space entry, and energization and deenergization of power systems (electrical, mechanical and hydraulic) using safe and effective lock-out/tag-out (“LOTO”) procedures including physical LOTO or a mutually agreed upon alternative method.
23.2 Purchaser shall immediately advise WASP in writing of all applicable Site-specific health, safety, security and environmental requirements and procedures. Without limiting Purchaser’s responsibilities hereunder, WASP has the right but not the obligation to, from time to time, review, audit and inspect applicable health, safety, security and environmental documentation, procedures and conditions at the Site.
23.3 If, in WASP’s reasonable opinion, the health, safety, or security of personnel or the Site is, or is likely to be, imperilled by security risks, the presence of or threat of exposure to Hazardous Materials, or unsafe working conditions, WASP may, in addition to other rights or remedies available to it, remove some or all of its personnel from Site , suspend performance of all or any part of the Purchase Order, and/or remotely perform or supervise work. Any such occurrence will be considered a Force Majeure event. Purchaser shall reasonably assist in ensuring the safe departure of personnel from the Site, shall not require or permit WASP’s personnel to operate Purchaser’s equipment at Site, will make its Site medical facilities and resources reasonably available to WASP personnel who need medical attention.
23.4 WASP has no responsibility or liability for the pre-existing condition of Purchaser’s equipment or the Site, which is the sole responsibility of Purchaser. Prior to WASP starting any work at Site, Purchaser will provide documentation that identifies the presence and condition of any Hazardous Materials existing in or about Purchaser’s equipment or the Site that WASP may encounter while performing under this Contract. The provision of such documentation will in no way release Purchaser from its responsibility for said conditions. Purchaser will disclose to WASP industrial hygiene and environmental monitoring data regarding conditions that may affect WASP’s work or personnel at the Site. Purchaser will keep WASP informed of changes in any such conditions.
23.5 WASP will promptly notify Purchaser if WASP becomes aware of: (i) conditions at the Site differing materially from those disclosed by Purchaser, or (ii) previously unknown physical conditions at Site differing materially from those ordinarily encountered and generally recognized as inherent in work of the character provided for in the Contract. If any such conditions cause an increase in WASP 's cost of, or the time required for, performance of any part of the work under the Contract, WASP will make an equitable adjustment in price.
23.6 If WASP encounters Hazardous Materials in Purchaser’s equipment or at the Site that require special handling or disposal, WASP is not obligated to continue work affected by the hazardous conditions. In such an event, Purchaser shall at its sole cost and expense eliminate the hazardous conditions in accordance with applicable laws and regulations so that WASP’s work under the Contract may safely proceed, and WASP will be entitled to an equitable adjustment of the price and schedule to compensate for any increase in WASP’s cost of, or time required for, performance of any part of the work. Purchaser shall properly store, transport and dispose of all Hazardous Materials introduced, produced or generated in the course of WASP’s work at the Site.
23.7 Purchaser shall indemnify WASP for any and all claims, damages, losses, and expenses arising out of or relating to any Hazardous Materials which are or were (i) present in or about Purchaser’s equipment or the Site prior to the commencement of WASP’s work, (ii) improperly handled or disposed of by Purchaser or Purchaser’s employees, agents, contractors or subcontractors, or (iii) brought, generated, produced or released on Site by parties other than WASP.
24.1 WASP and Purchaser (as to information disclosed, the “Disclosing Party”) may each provide the other party (as to information received, the “Receiving Party”) with Confidential Information in connection with this Contract. “Confidential Information” means (a) information that is designated in writing as “confidential” or “proprietary” by Disclosing Party at the time of written disclosure, and (b) information that is orally designated as “confidential” or “proprietary” by Disclosing Party at the time of oral or visual disclosure and is confirmed to be “confidential” or “proprietary” in writing within fifteen (15) days after the oral or visual disclosure. In addition, prices for Products and Services will be considered WASP’s Confidential Information.
24.2 Receiving Party agrees: (i) to use the Confidential Information only in connection with the Contract and use of Products and Services, (ii) to take reasonable measures to prevent disclosure of the Confidential Information to third parties, and (iii) not to disclose the Confidential Information to a competitor of Disclosing Party. Notwithstanding these restrictions, each party shall permit access to the other's Confidential Information only to its employees who: (i) reasonably require access to Confidential Information for purposes approved by this Contract, and (ii) have undertaken a binding obligation of confidentiality with respect to the confidential information of others entrusted to him or her, and (iii) have been apprised of the confidentiality obligations hereunder. WASP may disclose Confidential Information to its affiliates and subcontractors in connection with performance of the Purchase Order. A Receiving Party may only disclose Confidential Information to any other third party with the prior written permission of Disclosing Party, and in each case, only so long as the Receiving Party obtains a non-disclosure commitment from any such third party that prohibits disclosure of the Confidential Information and provided further that the Receiving Party remains responsible for any unauthorized use or disclosure of the Confidential Information. Receiving Party shall upon request return to Disclosing Party or destroy all copies of Confidential Information except to the extent that a specific provision of the Contract entitles Receiving Party to retain an item of Confidential Information. WASP may also retain one archive copy of Purchaser’s Confidential Information.
24.3 The obligations under this Article 24 do not apply to any portion of the Confidential Information that: (i) is or becomes generally available to the public other than as a result of disclosure by Receiving Party, its representatives or its affiliates; (ii) is or becomes available to Receiving Party on a non-confidential basis from a source other than Disclosing Party when the source is not, to the best of Receiving Party’s knowledge, subject to a confidentiality obligation to Disclosing Party; (iii) is independently developed by Receiving Party, its representatives or affiliates, without reference to the Confidential Information; (iv) is required to be disclosed by law or valid legal process provided that the Receiving Party intending to make disclosure in response to such requirements or process shall promptly notify the Disclosing Party in advance of such disclosure and reasonably cooperate in attempts to maintain the confidentiality of the Confidential Information.
24.4 As to any individual item of Confidential Information, the restrictions under this Article 24 will expire five (5) years after the date of disclosure. This Article 24 does not supersede any separate confidentiality or nondisclosure document signed by the parties.
25.1 The Contract constitute the entire agreement between WASP and Purchaser. There are no agreements, understandings, restrictions, warranties, or representations between WASP and Purchaser other than those set forth in the Contract. As stated in Article 1 of the Terms, WASP 's Quotation and countersigned Purchase Order if any, control over any conflicting terms. WASP SPECIFICALLY REJECTS ANY EXCEPTIONS TO THIS CONTRACT, ON THE FACE OF ANY PURCHASE ORDER THAT HAS NOT BEEN SPECIFCICALLY ACCEPTED AND COUNTERSIGNED BY WASP. Purchaser shall advise WASP in writing of all conflicts, errors, omissions, or discrepancies in the Contract immediately upon discovery. This Contract supersedes terms and conditions provided by Purchaser that are attached to Purchase Orders issued by Purchaser.
26.1 This Article 26 applies only if the Contract is for the direct or indirect sale to any agency of the U.S. government and/or is funded in whole or in part by any agency of the U.S. government. (b) Purchaser agrees that all Equipment and Services provided by WASP meet the definition of “commercial-off-the-shelf” (“COTS”) or “commercial item” as those terms are defined in Federal Acquisition Regulation (“FAR”) 2.101. Purchaser agrees, consistent with FAR 12.212, that commercial computer software and commercial computer software documentation are licensed under WASP’s Software License. To the extent the Buy America(n) Act, Trade Agreements Act, or other domestic preference requirements are applicable to this Contract, the country of origin of Equipment is unknown unless otherwise specifically stated by WASP in this Contract. Purchaser agrees any Services offered by WASP are exempt from the Service Agreement Act of 1965 (FAR 52.222-41). The version of any applicable FAR clause listed in this Article 28 will be the one in effect on the effective date of the Contract. (c) If Purchaser is an agency of the U.S. Government, then as permitted by FAR 12.302, Purchaser agrees that all paragraphs of FAR 52.212-4 (except those listed in 12.302(b)) are replaced with these Terms and Conditions. Purchaser further agrees the subparagraphs of FAR 52.212-5 apply only to the extent applicable for sale of COTS and/or commercial items and as appropriate for the Contract price. (d) If Purchaser is procuring the Equipment or Services as a contractor, or subcontractor at any tier, on behalf of any agency of the U.S. Government, then Purchaser agrees that FAR 52.212-5(e) or 52.244-6 (whichever is applicable) applies only to the extent applicable for sale of COTS and/or commercial items and as appropriate for the Purchase Order price.
27.1 Amendments. Amendments to the Contract are only valid if agreed to in writing by both parties.
27.2 Assignment. The Contract may not be assigned by Purchaser without the written consent of WASP.
27.3 Notices. All notices required under the Contract must be sent both by email and overnight courier to the address listed in the Quotation or any other address that has been notified by one party to the other.
27.4 No Waiver. Any express waiver or failure to exercise promptly any right under the Contract will not create a continuing waiver or any expectation of non-enforcement.
28.1 The parties agree that the protection of Personal Data is very important.
(a) If Purchaser discloses Personal Data to WASP, WASP shall comply with all applicable data protection laws and regulations. Purchaser shall comply with all applicable data protection laws and regulations in respect of any Personal Data it receives from WASP in the course of receiving the Equipment or Services;
(b) The parties agree that neither will withhold or delay its consent to any changes to this clause which are required to be made in order to comply with applicable data protection laws and regulations and/or with guidelines and order from any competent supervisory authority, and their application to the Equipment or Services from time to time and agrees to implement any such changes at no additional cost to the other party.
(c) The parties acknowledge that the processing of Personal Data in accordance with this purchase order may require the conclusion of additional data processing agreements or additional data protection agreements. If and to the extent such additional data processing agreements or additional data protection agreements are not initially concluded as part of the purchase order, the parties shall, and shall ensure that their relevant affiliates or subcontractors shall, upon the other’s request promptly enter into any such agreement with an affiliate, as designated by the other party and as required by mandatory law or a competent data protection or other competent authority.