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HomeMy WebLinkAboutresolution.council.047-07 RESOLUTION # tr (Series of2007) A RESOLUTION APPROVING A CONTRACT TO BETWEEN GE ENERGY COMPANY, AND THE CITY OF ASPEN, COLORADO, FOR THE PURCHASE OF A REPLACEMENT 43" HCTI TURBINE RUNNER AND, SETTING FORTH THE TERMS AND CONDITIONS REGARDING AND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID CONTRACT WHEREAS, there has been submitted to the City Council a contract between the City of Aspen, Colorado, GE Energy Company, a copy of which contract is annexed hereto and made a part thereof. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ASPEN, COLORADO: Section 1 That the City Council of the City of Aspen hereby approves that contract between the City of Aspen, Colorado, and, GE Energy Company regarding the purchase of one replacement 43" HCTI turbine runner for the Ruedi Hydroelectric Power Plant, a copy of which is annexed hereto and incorporated herein, and does hereby authorize the City Manager of the City of Aspen to execute said contract on behalf of the City of Aspen. Dated~ /;1/ 2fYt)':f- I, Kathryn S. Koch, duly appointed and acting City Clerk do certify that the foregoing is a true and accurate copy of a solution ado ted by the City Council of the City of Aspen, Colorado, at a meeting hel '4l.9 .______".'"_M~._H^.....__..."...___._..".__._.__~._u . GE Energy Report to: City of Aspen Water Department Attn: Steve Hunter 130 South Galena St. Aspen, Colorado 81611 for Rued; Hvdro Imorovement Concepts Mav 2007 Compiled by: General Electric Engineering Services 4900 Kingston Street Denver, CO 80239 Contributors: Ron Miller, GE Denver Brad Rasmussen, P.E. , GE Seattle Send inquiries to: Phone: 425-432-4241 brad.Rasmussen@ge.com Ruedi Hydro Improvement Plan Page I OS/22/07 . GE Energy Generator Specifies: GE Generator Output voltage is 4160v FL amp 731 PF 0.95 leading 360 RPM SF 1.0 5263 KV A 20 poles Field data am ps 153 at rated load resistance at 25 deg C is 1.24 amps at max load 170 collector volts hot 295 amps no load 49 collector volts cold 60 Xd" .25 Turbine #56243 1. Turbine Runner Replacement - (Figure 1). Description: A small 3" crack has been identified on the runner (wheel) and some corrosion/cavitalion is taking place. Although Information from the OEM,Gilkes indicates the crack is not immediately concerning, it should be watched in future annual inspections. Plans for replacing this runner should be made based on measurements and inspections. Measurements at the root of the buckets are the indicator to be used for scheduling replacement. Price below is for a 43" HCn Runner in Stainless Steel BS3100 425 C11 (US Equivalent ASTM A743 CA6NM). Manufactured to Gilkes drawing No. 3135 516. Statically balanced and manufactured in accordance with Gilkes acceptance standard for Turgo Impulse runners with a fusion coating method nickel-chrome alloy @ 1 mm thick to the principal wearing surfaces on the turbine runner. This coating is about five times harder than the base metal and has the advantage that it is fused to the material base it coats, it will not delaminate and when it eventually wears the areas can be rebuilt by re-treatment thus dramatically extending the runners operational life. Benefits: . Conlingency plan for preventing unplanned failure of the runner with extended lead time. . Possible improved operation of the runner . Contingency plan to prevent increased raw material costs from affecting the Runner cost Replacement 43" HCTI Turbine Runner This quotation for a replacement runner for the Ruedi Dam Hydroelectric scheme. We have provided the proposal In a phased approach 10 facilitate budgeting. This proposal will cover phase I and Phase II. GE Energy has included project management and engineering to aid in monitoring the progress of the runner procurement. Phase 1 - Furnish a proof machined casting. Phase 2 - Furnish final dressing machining, and shipping. Phase 3 - Installation. Phase 4 - Existing Runner Refurbishment Ruedi Hydro Improvement Plan Page 2 OS/22/07 . GE Energy Phase 1 : Qty (1): 43" HCn Runner in Stainless Steel 8S3100 425 C11 (US Equivalent ASTM A743 CA6NM). Supplied as a proof machined casting with NDT (Dye Pen Inspection). Packing suitable for long-term storage is included in the price. This casting can be stored until required and the City of Aspen has the need to call for dressing/fettling and finish machining. The runner casting would be clearly identified within stores displaying the owner of the casting and a vesting certificate would be issued to the customer on receipt of final payment. Price: $224,333.00 USD Lead-time: 28 to 30 weeks ARO Payment Terms: 25% With Order 25% 8 Weeks from order date 25% 16 Weeks from order date 25% On completion of proof machining (photo evidence or customer inspection would be welcome) Phase 2: Qty (1) : Manufacture of free issued proof machined casting to Gilkes drawing No. 3135 516. Statically balanced and manufactured in accordance with OEM acceptance standard for Turgo Impulse runners. Price: $131,697.00 USD Lead-time to ship time: 18 Weeks Shipping Cost Included FOB Destination (Excluding import duties/taxes to deliver, these would be paid and added) Payment Terms: 30% 8 Weeks from instruction to commence manufacture 70% On completion and readiness to ship Clarifications: 1. The GBP to USD exchange rate has large affect on lhe pricing of this quotation. When originally quoled the exchange rate was $1.97 > (1.00. 3% contingency is allowed. The proposal and budget eslimate pricing must be adjusted at lime of order if the exchange rale is $2.00 = (1.00 or greater. 2. Free storage of a proof machined casling is available for 3 years, if this was to be extended then A price per year would have to be agreed. Leadtime : As per specific item Customer Responsibilities: Ruedi Hydro Improvement Plan Page 3 OS/22/07 . GE Energy 1) Customer will provide a supervisor to assist the GE I&FS field engineer in the above activities and be the point of contact at the site. 2) Customer will provide site safely/security information. 3) Customer wili provide/operate/maintain services for drinking water, sanitary facilities, parking, trash containers and lighting. 4) Customer wiil provide rigging and crane at the site for lifting and setting lhe runner, power for test equipment or light hand tools, and lighting. 5) Customer is responsible for the disposal of ali wastes generated at the work site. 6) Customer shali provide access to the equipment during scheduled service times, standby time can be included for an adder at published rates. Additional work will be performed on a Time and Material basis per our standard published rate for Standard Service, applicable at the time of performing such work. Presently, these rates for Standard Service are as follows. GE Energy Services' Hourly Rates for Standard Service: D $284.00 Hourly ST . Consulting Analyst D $200.00 Hourly ST - Senior Field Service Engineer [g] $170.00 Hourly ST - Field Service Engineer A four (4) hour minimum biliing rate applies at dispatch of the employee. Additionaliy, these rates are for work performed during straight-time hours only (Monday through Friday, 8 AM to 5 PM, exclusive of GE holidays). Rates for overtime (weekdays other than 8 AM to 5 PM and Saturdays) and double-time (Sundays and GE holidays) are 1.5 times and 2.0 times the above rates, respectively. Demand Service rates apply for same day/next day service. Time for employees will be bilied from the time they leave their office until they relurn. Travel and living expenses will be charged al $100.00 per day per employee (for lravel distances of 40 miies or iess) or $200.00 per day per employee (for travel distances greater than 40 miies). Overnight accommodations, air travel, car rental or unusual expenses will be charged at actual cost plus an administrative adder of 15%. Equipment, additional labor and parts wili be priced at user cost plus 25%. AIi equipment is F.O.B. shipping point, selier's dock, with freight prepaid and charged 2% of material price (a minimum per shipment charge of $35.00 shali apply). Selier reserves the right to select the method of transportation provided for ali products unless specified by the client not less than 72 hours prior to shipment. Any premium transportation or required special handling is in addition and shali be for the account of the Buyer. Past due payments will be subject to a late payment penalty at the rate of 1.5% per month. The sale of any service and products, and the integration thereof, ordered by lhe Buyer is expressly conditioned upon the terms and conditions contained herein and TERMS AND CONDITIONS FOR SALE AND LEASE OF PRODUCTS AND SERVICES, attached, ES104 rev 2. Any additional or different terms and conditions set forth in the Buyer's purchase order or olher communicalion are expressly objected to and wili not be binding upon Selier unless specifically agreed to in writing by an authorized GE employee. This quotation is not valid for PCB Services, off shore or confined locations. Our current remit to address is: GE Energy PO Box 281997 Atlanta, GA 30384-1997 If you have any questions, please caIl: Ruedi Hydro Improvement Plan Page 4 OS/22/07 . GE Energy GENERAL ELECTRIC C~MPANY (GE) \ By: Brian vanBaushU c:......- ( j~ Title: Account Manager Phone 303-562-5282 Ruedi Hydro Improvement Plan Fax: 303-329-2367 Page 5 CUSTOMER: By: Title: Utilities Engineer OS/22/07 FORM ES104 (REV 2): TERMS AND CONDmONS FOR SALE AND LEASE OF PRODUCTS AND SERVICES NOllCE; SI\e or Lene of any Products or Semces is expressly conditioned on Buyer's assent to these Terms and Concltions. Any ackItional or cIfferent terms proposed by Buy.. .. expressly objected to and wi. not be bindng upon Seller unless 'Weed to In wrItIl){! by Seller; provided howwer, that no Pf91lrinted facility entry form shall modfy these Terms and Conditions even if signed by SeIler's representative. Any oral or 'Mitten representation, warranty, course of duRng or trade usage not contained in these Terms and Concllions or the Contract shall not be binding on eIth.. party. Any order to perform work and SeIler's performance of worllshall constitute Buyer's anent to these Term. and Conditions. Unltss othlll'Wl.. specified in the quotation or Contract, any quotation by Seller shall expire 30 days from its date and may be modified or withdrawn by Seller before receipt of Buyer's acceptance. 1. Oefinitions.UnlessSellerotherwiseagrees: "Buyer" means the enti1y to which Seller is providing Products or Services undefthe Contract "Cof1\1acr means the documents that complise the agreement between Buyer and Seller for the sale or lease of Products or Services, including lhese Terms and Condilions and any other documents incorporate<l therein by reference, slXh as, the final quotation. the agreed scope(s) of work, and Sellef's order acknowleOgement "Hazardous Materias" means any cherrical, substance, material or emission that is or may be regulated, go\lefl1ed, listed or controHedpursuanltoanyinlemational,oational,federal,provincial,stateorlocalstatute,ordinance,ex-der,directive. regulation, judicial decision or oIher legal requrement applicable to the Site as a toxic substan;e, hazardous substance, hamous material,dangerousorhazardouswaste, dangerousgood,pesticide,radioactivematerial,reg ulate<l substance or any similerclassification. or any other chenical, subslance, emission or material,including,wiItlOUl:lirritation, petroleum or petrolelJlT\oderivedproductsorby-products,regulate<l, govemed,listedorconlrolled or as 10 which Ii ability is ilf1lOsed on the basis of potential impoctlo safety, health or the environment pursuant to any legal authority of the United States or the country of the Site "leased Equiprnenf means all Products Seller has agreed 10 lease 10 Buyer under the Contract as well as aM equipment of Seller which will be located at the Site during all or some portion of the term of the Contract without Seller's personnel p resent, such as remote diagnostic equipment 'Products" means all equipment pClis, materials, supplies, software. and other goods Seller has a{1"eed 10 supply to Buyer underlhe Contract, including leased Equipment and Refumshed Parts 'Refurbished PCIis" means used Products that have been repcired andlorreconditioned by Sellerf or resale 'Seller" means the entily providing ProdLCts orperforming Services under the Conlract 'Services" means all services Seller has agreed 10 perform lor Buyer under the Conlract "Site" means the premises where Products are delivered or Services ere performed, not including Seller's premises from which~performsremoteServices. "Terms and Condilions' means these Terms and Conditions for Sale and lease of Products and Servk:es 2, Payment. Except as otherwise agreed to by Seller in writing, and upon approved credit the following payment temls apply: 2.1 Buyer shall pay Seller all invoiced;rnounts in US. dollars, witlloutrightofset-off, within 30 days from dale of invoice. Seller shall be entitled to payment of all charges associated with Seller's pertormance of Services as the Services are perlormed. For each Product with a price of U,S.5S00,000 or more, partial payments of the conlract price shal be miJde as invdced starting upon order placement, such that 80% of the Contract price is received before scheduled shipment Buyer shall pay a monthly late payment charge computed at the rate of 1,S%, or the maximum interest rate permitted by applicable law, whichever is less, on any past-due crnoontlor each calender month (or fraction thereof) that the payment is overdue and all costs of Seller's collection efforts including reasonable attomey'sfees. 2.2 Unless otherwise agreed in the Contract, in any transaction in which Buyer and Seller 1I'e domic iledinseparatecounlries, Buyer shall establish an irrevocable, unconditional, sight letter of credit allowing lor prwata payments lor p1l'lial deliveries, storage, export shipment price adjustments, carcellation or tem1ination, and all other payments due from Buyer under the Contract and certification of the charges and grounds for slXh payment Theletlerofcredltshallbe(a)confinnedbyabank Ihalis acceptable to Seller, (b) payable at the counters of the confirming bart,(c} opene d sJxty (50) days prior to the earliest scheduled shipment and (d) remain in effect until ninety (90) days after the latest scheduled shipmem. Buyer shall pay all banking cherges, Seller will not begin pedormance until the letter of cred~ becomes operative. Buyer wil increase the amounts and/or extend the validity period(s) and m~e appropriate modifications to any letter of cred~ within "ve business days of Seller's oolffication that such increase or extension is necessa}' to provide lor payments 10 become due. 2.3 If at anytime Seller reasonably determines thai Buyer's "nancial condilion does ootjus tify the conlinuation of Seller's performance, Seller may require full or partial payment in advance or shall be entttled to suspend orterminate the Contract 3. Taxes and Duties. Unless otherwise specified in the Contract, Seller shall be responsible lor and pay direc1ly,a1lc orporate and individual taxes measured by net income or profit imposed by any governmental authority on Seller, its employees or subcontracloo; due to the execution 01 any ageementor the performance of or payment for work hereunder ("Seller Taxes") Buyer shall be responsible lor and pay direclly when due and payable all taxes, duties ,fees, or othercherges of any nature (including, but not limiled to, ad valorem, consumption, excise, franchise, gross receipts, import license, property, sales, stanlp, storage, transfer,turnover, use, or value-added taxes. and any and all items of withholding, de1iciency, penalty, acldition to tax, interest or assessment related lhereto),olherthan Seller Taxes, imposed by any governmental aulhorityon Seller or its employees or subcontractors due 10 the execution of any agreement or the performance of or paymenllor worn hereunder ('Buyer Taxes'). i\l1 payments due and payable by Buyer to Seller hereunder shall bemadeinthefull;rnount of the Contract price, free and c1e1l'0fall dedu:tions and withholding for Buyer Taxes, If Buyer deducts or withholds Buyer Taxes,Buyershallpayadditional;rnountstoSellertocausetheamountsSelleractuallyreceives,netofdeductedorwithheld Buyer Taxes, 10 equallhe full Contract price. Buyer shall provide to Seller within one month accurate official receipts from the appropriate governmental authority for deducte<l orwithheld taxes 4. Delivery; Title Transfer; Risk of Loss; Storage. 4,1 For shipments within the country of origin or manufacture and for U,S. exports, Seller shall deliver Products to Buyer EXW SeIler's lacility. place 01 manufacture or werehouse {Incoterms 2000}. For all other export shipments, Seller shall deliver Products to BuyerFCAPortof Export (Incote rms2000), Buyer shall pay all delivery costs and charges or reimburse Seller for shipping charges plus 25% . Except lor those obligations Ihatare consistent with Incoterms 2000 specifically stated above, Seller shall not be liable in any claim asserted by Buyer with respect to delivery. Pcwtial deliveries will be permitled. If Products delivered do not correspond in quantity,type orpri ce to those ilemized in the invoiCeforlhe shipment, Buyer will so notify Seller within 10 days alIer receipt Seller may deliver any or all Products in advance of the delivery schedule, Delivery times ere appro~imate and are dependent upon prompt receipt by Sellerof all matefials and information necessaylo proceed with the wQfk without interruption 4,21111e 10 Products shipped from the US, shall pass III Buyer immediately after each ~em dejlarts from the tenitorialland, seas and overlying airspace of the U,S. For lhis purpose, the pa1ies acknowledge that the Ierritorial seas 0 fthe U.S, exlend 10 twelve naulical rrilesfromthe baseline of the counlry detennined in accordance with the 1982 United Nations Convention 01 the law of the Sea. ntle 10 Products shipped from within the country where Products will be installed shall pass to Buyer when Products ere made available for shipment from the manufacturer's factory or the storage facility utilized by Seller. Tille to Products shipped directly from a European Union rEU") manufac!tJ"er or a EU storage facility outside the country where the Product will be inslalled..shall pass to Buyer the ea~ier of (i) the port of export immediately after the Products have been cleared for export or (ii) immediately alIer each item departs from the terriIorialland, seas and overlying airspace of the EU sendingcounlry. Title to Products 10 be shipped from aoy other country shall pass to Buyer at the port of export immed iately alIerthe Products have been cle1l'ed for export, Titje to Services shall pass to Buyer as performed. Notwithstanding the loregoing, for any softwiMe provided by Seller hereunder, only the license to the softwiM elransfersasselforthherein,andtille to leased Equipment shall remain at all times with Seller 4,3 Notwithstanding Section 4,1 above, in all events risk of loss shall transfer to Buyer upon title passage 4.4 If any Producls cannot be shipped to or received by Buyer when ready due to any cause not attributable to Seller, Seller will notify Buyer and then may ship Products to a storage facility,including a facili ty within the place of manufacture, or 10 an agreedfreightforwCl'der. If Seller places Products in slorage or if Products ere detained at any port, the following con ditjons shall apply: (i) title and all risk of loss or damage shall immediately pass to Buyer if they had oot already passed; (ii) any amounts otherwise payable to SeOer upon deiivery or shipment shall be payable upon presentation of Seller's invoices; (iii) all expenses aod chCl'ges incurred by Seller, such as lor prep1l'ation for and placement into storage, handiing, inspection, preservation,insurance,storage, demurrage, removal and any taxes shall be payable by Buyer upon submission of Seller's involces; and (iv) when condiuons permit and upon payment of all amounts due hereunder, Seller shall reSlJTle delivery of Productstotheoollinallyagreedpojntofdelivery. 4.5 Buyer shall bear the sole risk of loss for Buyer's equipment during the term of the Contract whether at the Site, the SeIler's facilityorintrans~fromthe Seller's facility. II repair Services are to be performed on Buyer's equipment at Seller's facility, Buyer shall be responsible for transporting the equipment io and from SeIler's facility, Buyer shall reimburse Seller aI SeIler's then current storage rate if the equipment remains at Seller's facility beyond 10 days after notification that the Services have been completed. 5 Excusable Delays. Seller shall not be liable nor in breach or default of its obI igations under the Conlractto the extent performanceofsuchobligationsisdelayedorprevenled,directlyorindirectly, due 10 causes beyond its reasonable control. including, but not linited to, acts of God, fire, terrorism, WCl' (declcred or undeclcred), epidemics, material shortages, insurrection. acts (ex- omissions) of Buyer or Buyer's suppliers or agents, any act (or orrission) by any governmental authority, strikes, labor disputes, transportation shortages, or vendor non-performance. The delivery or performance date shall be extended lor a period equal to the time lost by reason of delay, plus such additjonal time as may be reasonably necesscry to GE Confidential and Proprietary overcome the effect of the delay, If Seller is delayed by any acts (or orrissions) of Buyer, or by the prerequisite work of Buyer's othercontractorsorsuppliers,Sellershcllbeentitledlo an equitable price and performance adjustment. 6, Compliance with laws, Codes and Stand.-ds. 6,1 Seller fe9resents that the Products will be produced in compfiance with applicable fair labor standCl'ds laws. occupational safety and health laws, and laws relate<l 10 nonsegregation and equal employmentopportunity. 6.2 The Contract price, delivery and performance dates and any performance guarantees",;J1 be equitably adjusted 10 reftect addilional costs or obligations incllTed by Seller resulting from a change in industry specifications, codes, standards,applicable laws or regulations 6,3 Seller's obligations ere conditioned upon Buyer's compliance with all applicable trade control laws and regulalions. Buyer shall not transship, re.export, diverlor direct Products oIherthan in and to the ultimate country of destination specified on Buyer'sO(der ordeclcred as the country ofultimate destination on Seller's invoice, except as perrritIed by applicable laws and r egulations. 6.4 Notwithstanding any oIher provisions, Buyer shall timely ob\ain any required authaization, such asiMlexportficense.import Iicense,for~gnexchangepermit,workpermitoranyother~verrwnentalauthorization,evenifSellerapplieslortheauthorization Buyershaij be solely responsible for obtaining, maintaining andlor effectuating any gO\lefl1mental authorizations ex-notifications, including. without limitation, the submission and approval of a spiU prevention and control plan, oil processing notification, and required air perrm modifications, ifany, required for the lawlul pefformance of the Services atlheSite 7. Warranty. 7.1 Seller warrants to Buyer that (i}the Products shall be shipped free lrom defects in material,WOI'kmanship and title and (ii) the Services shall be performed in a competent, diligent manner in accordance with any mutually agreed specifications, Unless Seller expressly agrees otherwise in Wliting, any items not manufactured by Seller (including incidental materials and consumables used in the Services) shall cerry only the warranty thai the original manufacturers provide, and Seller gives 00 wan-anty on behalf of the manufacturers of such items. Furthermore,used Prodldsolhertha'l Reftrbished Parts shall be sold 'as is: 7.2 Unless otherwise slated in the Contract the warranty period for Products shall be one yeCl' from first use or 18 months from delivery,whicheveroccursftrstexceptthatsoftwCl'enwarrantedlor90dayslromdelivery If Services include installation or direction of inslallation of heavy duty gas and steam turbine pa1s,the warranty period lor each slXh plJ't shall be one year after completion of installation or four years from the date 01 delivery, whichever occurs lirst Unless otherwise staled in the Contract, thewcrrantyperiodforServicesshallbeoneyearfrom~leIion,exceptforbaghouses,precipitatorsandotherparticulate collection equipment related Services, which shall be 30 days from completion, software related Services. which shall have a w..-ranly period of 90 days from completion, and repair Services, which shall have w..-ranty periods as follows: centrifuges and unde!gound mine equipment ~ 30 days; pumps. CO!TlIressors, instrumenlalion, coornuniCation, x-ray and control devices -!IO days; and other mechanical equipment ~ 180 days. 7.3 if Products or Services do not meet the above warranties, Buyer shall promptly notify Seller in writing within the wcrranty period Seller shall thereupon (i) at Seller's option, repair or replace the defective ProdlJ::ts or (ii) re-perform the defective Services. Ifin Seller's reasonable judgment the Product cannot be fe9aired or replaced orlhe Services cannot be re-performed, Seller shallrefundorcred~monies paid by Buyer lor that portion of Products or Services that do nol meet the above wcrranties Anyrepair,replacemenlorreperformance by Seller hereunder shall not extend the applicable warranty period, Thep1l'liesshall mutually agree on the specifications ofany testlo determine the presence ofa delect 74 Buyer shall beer the costs of access (including removal and replacement of systems, structures or other pa1s of Buyer's facility),de-installation,deconllrnination,re--installationandtransportationofProductstoSellerandback10 Buyer. 7,5 These w..-ranties and remedies ere conditioned upon (a) the proper storage, installation. operation. and maintenance of the Products and conformance with the proper operation instruction manuals provided by Seller or its suppliers or s ubconlractors, (b) Buyer keeping proper records of operation and maintenance during Ihe warranty period and providing Seller access 10 those records, and (c) modification or repar of the Products or Services only as aulllorized by Seller. Seller does noIwarrantlhe Products or any repaired or replacement parts against normal weer and tea' or d1l'T1age caused by nisuse, accident or use against the advice of Seller. AIiy modificationorrepairofanyofthe Products or Servi::es not authorized by SeHer shall render the warranty null and void. 7,6 This Article provides the exclusive remedies for all claims based on failure of or defect in Products or Services, whether the failure or defect crises beloreor during the applicable warranty period and whether a claim, however described, is based on contract, warranty, indemnity. Ioruextracontractual ~ability (including negligence), strict liability or otherwise. The warranties provided in this Article are exclusJvl! and 1I'e in lieu of all olher warranties and guarantees whether wriUen, oral, implied or statutory, NO IMPLIED STATUTORY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES 8 UmitationofUability 81 The total liability of Seller for all claims crising outof or relating to the performance or breach of the Contractor use of any Products or Services or any order shall not exceed (a) the Controct price or (b) if this Con tract is in the form of a frame or master agreement under which Buyer pla::es an order with Seller lor the Products and Services to be purchased, (i) the "nal price of the particular order under which the specific Products or SeM:es giving rise to the clam are supplied or perfonned or (ii) ten thousand US dollars (US510,000) if the claim is not pa10f any particul erorder.Seller'sliabilityshal1\emlinate upon the expiration of the applicable w..-ranty period, provided that Buyer may enforce a claim that accrlled prior to that date by commencing an action or filing an crbitralion, as applicable underlhe dispute resolution clause, before the expiration 01 the applicablestatuteoflimilationsorrepose, but not later than one yeCl' afIer the expiralion ofsuc hw..-rantyperiod. 8,2 Seller shall noI be liable for loss ofprolit or revenues, loss of product, loss of use of Products or Servi::e sor any associated equipment inlerru9lion of business, cost of capital, cost of cover, downtime costs, increased operating costs, claims of Buyer's customers for such damages, or for any special, consequential.incidental,indrect, punitiveorexe mplaryl1amages. B,3IfBuyerissupplyingSeller'sProductsorServicesloalhirdp<l1y,Buyershallrequirethethirdparty to agree to be bound by this Article. If Buyer does 001 obtain this agreement lor Seller's benefit, Buyer shall indenmify. defend iMld had Seller hamless from andagainstanyand all claims made bythethird paty in excess of the lirritations andexclusi ons of this Article. B 4 Seller shall not be liable for any adviCe or aSSistance that is not required under the Contr acl B,S For the purposes of this Article, the term 'Seller" shall mean Seller, its affiliates, subcontrac torsandsuppliersofanytier,and their agents and employees. individually or colleclively 8,6 The lim~ations and exclusJons in this Article shall apply reganlless ofwhelher a claim is based in contract, wcrranty, indemnity, toruextracontractual liability (including negligence),strictliabilityorotherwise. 8.7 Buyer's and SeIler'srighls,obllgationsandremediescrisingOlrtoforrelatingtothe Products or Serv ices ere limited 10 those rights, obligations and remedies describe<! in this Contract This Article shall prevail over any conflicting or inconsistent terms in the Contract, excepttotheextentthatsuchtermsfurtherrestrictSeller'sliability. 9 Dispute Resolution, Governing Law, 9.1 Any dispute arising out of or in connection with the Contract inciuding any question regarding its existence, validityorterminalion, sllall be resolved in accordarrce with this p aragraphandwillbesellled,ifpossible, by negotiation of the parties. If a dispute is not resolved by negotiations, eilher party may, by givingwrillen nolice, refer the dispute to a meeting of appropriate higher management of each party, 10 be held within Iwenly (20) business days aflergiving notice, If the dispute is not resolved within thirty (30) bosiness days after the date of the meeting of higher management, or any laler date to which the parties may agree, either party may subrritto arbitration or court depending on Buyer's pertinent place of business, as follows (a) If Buyer's pertinent place of business is in a country other than the U.S,. th e dispute shall be referred 10 and finally resolved by arbilration under the london Court of International Arbitration ("lCIA") Rules, which are incorporated by reference into this clause. The number of arbitrators shall be one unless tile amount in dispute exceeds the equivalent of U,S. 51.000.000. in which event ~ shall be three, When three arbitrators areinvoived,each pcrty shall appoinlone arbitrator, andth ose two shall appoint the third within thirty (30) days, who shall be the Chairman. The single arbitrator or the Chairman may not be a national or resident of the country of the Site or the counlries in which eilherparty is organized or has its plincipal place of business, uniessbotl1 p<rties otherwise agree. The seal, or legal plil:e, of arbitration shall be London, England. The Cl'bitralio n shal\ be conducted in English In reaching lheirdecision, the arbitratcrs shall give fulllorce and elfectlOthe inlefll of the lIarties as expressed in the Contract and if a solution is not found in the Conlract, shall apply the governing law of the Contract The decision of the arbitrator shall be "naland binding upon boIh p1l'lies, and neither party shall seek recourse to a iaw court or olher authority to appeal for revisions of the decision (b) if Buyer's pertinent place of business is in Ihe US., anyclaim,legalactionorp roceeding (including without limilation claims for set.off or counterclaim) regCl'ding the dispute shall be brought in the U.S. District Court for the Northern District of Georgia, or in the event that colrt lacks jurisdiction to heer the claim, in the appropriate slate courts of Cobb County,Georgia, and Ihe parbes irrevocably consent to the exclusive jurisdiction of those collts for such claims. Each party s ubmits 10 and axeptsgenerally and unconditionally the jurisdiction of those courts with respect 10 its person andproperty,and irre vocablyconsentstolheserviceof process in connection with any such aclion orproceedlng by personal delivery to the pcrty or by registered or certified mail. postageprepaid,loilsaddressfornoticeundertheContract Pagelof2 9.2 Notwithstanding lheteITIIS above, each party has the right at any bme, at its opbon and where legally available, kl corrmence an action or proceeding in a court of compelentjurisdic1ion to apply lor interim or con5ef'latory measures, but not monetary damages. 9.3 The validity, pefformance and all matters relating to the interpretatioo and effect of the Contract and all further documents executed pursuanttoijshaU be construed and intefpreledin accorllance with lhe laws, excluding Ihe rules Oil the co fl1lictor choiceof\aws, of(i} the State of New York, U.S., iflhe Buyer has its pertinent place of business inlhe U.S., or (ii) England and Waes if the Buyer has its pertinent place ofbusiness outside of the U.S. If the Contract includes the sale of Products and the Buyer has its pertinent place of I:lUsiness outside 01 the U.S., the United Nations Convention on Contracts lor the Intemational Sale of Goods shall..,ply. 10. Confidentillity, 10.1 In connection with the Contract, Seller and Buyer (as to information disclosed, the "Disclosing Party") may each provide the other party (as to irlformaiion received, the "Receiving Part() with "Confidentiallnlormation: "Conl\dential Information" means (a) all prk:ing for Products and Services, (b) all terms of the Contract, (c}a1linlormationlhat is designated in writing as "confillential" or "proprietary" by the Disclosing Party at the time olwrillen disc losure, and (d) all infonnation that is orally designated as 'confidential" or 'proprietay" by the Disclosing Party at the time of oral disclosure and is confirmed to be "confidential'or "proprietary" in Wliting within 10 days alleroral ctsclosure. The obligations of this Article shallnot..,ply as to any portion of the Confidential Infonnation that (i) is or becomes generally a.oailable tothepublicolher than from disclosae bylhe Receiving Party. its representatives or its affilhtes; (ii) is or becomes availabie to the Receiving Party or itsrepresenlatives or affiliates on a non-confidential basis from a soorce other than the Disc10sing Party when the source is not to the best of the Receiving Party's knowledge, subject to a confidentiality obligation to the Di sclosingParty;Qii) is inclependenUy developed by the Receiving Party, its representatives or affiliates, wiIhoutreference to the Confidential Information; (iv) is required to be disclosed bylaw, a valid legal processora govemmentagency; or (v) is approvedfcr disclosure in writing by an authorized represenlative of the Disclosing Party. 10.2 The Receiving Party agrees: (~ to use the Confidentiallnfonnation only in conl1eClion with the Contract and permitted use{s) and maintenance 01 Products and Services. (ii) to take reasonable measures to prevent disc losure 01 the Conficlential Infofmation, except to its employees, agents orfinancing parties who have a need to know for Buyer to perform its obli gations under the Contractor to use and mantain Products or Services. and (iii) not to disclose the Contidentiallnformation toa competitor of the Disclosing Party. The Receiving Pa-ty agrees to obtain a cormi1ment from any recipient of Confidential Inforrnalion to comply with the terms of this Article. Confidential Inforrnation shall not be reproduced wiIhoutthe Disclosing Party'sWfittenconsentandtheReceivingPartyshallretumallcopiesofConfidentiallnforrnationtotheDisclosing Party uporl request except to the extent Ihatthe Contractentilles Ihe Receiving Paty to retain the Confidential Information. Sellermay also retain one copy 01 Buyer's Confidentia tnlormation until all its potef1lial liability under the Contract terminates 10.3 If either party or any of its affiliates or representatives is required by law, legal process or a govemment agency to disclose any Confidential InformaIion. Ihat pa-ty agrees to provide the Disclosing Party with promptwrilten notice to permilthe Disclosing Party to seek an appropriate protective order cr agency decision or to waive compliance by the Receiving pwty with the provisions of this Article. In the event that elforts to secure confidential lreatment are unSllCCessful, Seller may lawfully revise the Conftdentiallnformation to make it nonproprietary or to minimize the loss 01 its proprietary value 10.4 Nothing in this Art:icle grants the Receiving Party any license under any invention, patent tradem.n or cop}'light now or later owned or controlled by the Disclosing Party. 10.S Buyer shall not disclose Contidential Inlormation to Seller unless it is required to do so to enable Seller to pe rformworX under the Contract II Buyer does discloseConfidentiallrlformation, Buyer warrants Ihatit has the right to disclose the information, and Buyer shall Indemnify and oold Seller harmless against any claims or damages resulbng from improper disclosure by Buyer 10.6 f>.s to any individual item of Confidential Informalion, the resbictions of this Artide shall ex plrethe earlieroffive (5}years allerthedateofdisclosureorthree (3) years allertermination or expiration ollheContract 10.7 This Article does not supersede any sepa"ateconfidentiaiity or nondiscloslJ"tl agreement signed byth eparties 11. Health and Safety Matt..... 11.1 Buyer shall take all necessary precautions, at al times. for the health and safety 01 Seller personnel at the Site. TheseiflClude, but ill! not limited to: providillgto Seller lor review, and instructing Seller's personnel regarding, Buyer's safety practices; proper and safe handlillg of,andprotection of Sell er'spersonnel Irom exposure to, Hazardous Materials; energizatiof1 and de--energizatioo 01 all power systems (electrical, mechanical and hydraulic} using safe and effecbve Iock-out/tag-out procedU!eS; and conducting periooc safetymeebngs 11.2 Seller may, from time to time, conduct safety audits to ensure the existence of safe site and working conditions and make recorrrnendations to Buyer cOflCerning them. Whether or not Seller conducts safety audits or makes recommendations. Buyer will remain responsible lor providing a wor1l environment that is safe and that complies with all ..,plicable legal requirements. Buyer will make its local medical lacilities and resources available to Seller personnel who need medical attef1Iion. !of the duration of the.. needs, Under no circumstance w~ Seller personnel be required to work more than any maximum time periods allowed by applicable law. 11.3 If, in Seiler's reasonable opinion, the safe execution of the Contract at the Site is, or is apt to be. ifll)eri led by security concerns, local conditions, war (declared Ofundeclare<l), armedconftictorthreatene<lconftict civil unrest, terrorist acts oc threats, threat to safety orwell-being of the Site or personnel or Seller's pefSons or interests, thepresenc eoforthreatof exposure to Haza-dous Materials, or unsafe working conditions,_Seller may, in addition to other rights or remedies available to it evacuate some or all 01 its personnel from the Site, suspend performance of all or any part of the Contract and/or transfer such perfoonance and supervise i1at a location solely determined by Seller Buyer shall assist in a nyevacuation.Anydelay that results shall be considered excusable 11.4 Elefofe issuing its purchase order, Buyer shall advise Seller in Wfiting 01 all applicableS ite-speclficrules, regulations, saetycodes,and laws that ClIlply to Products and Services 11.5 Operation of Buyer's equipment is the responsibility 01 Buyer. If Buyer requires or permits Seller's personnel to operate Buyer's equipment at the Site. Buyer shall indemnify and save Seller, its employees and agents, ha-mless from expense and liability (including reasonableatlomeys' fees) incurred by or ilfllosed upon Seller, Its employees and agents, based upon exposure to Haza-dous Materials. injll)' to persons (including death) or damage to property resulbng from operation 01 equipment at the Site by Seller personnel. Buyer shall not require Seller pefSonnel to work on other projects or equipment dUrillg the term of the Contract 12. Site Access Ind Contition.; HlZlrdou. Matetills. 12.1 Buyer shall provide Seller access to the Site and any other lacilities free of charge, including the operating and development environment and irlforrnation, as necessay for Seller's performance 01 the Contract. Prior to Seller starting any work at the Site. Buyer will (i) provide documentalion that identifies anyexislingHazardousMaterialsonorabouttheSiIe,and{ii)allowSeller,atitsoption,accessto the Site to perform or have performed a SiIe evalLJation, including witholll lirritation. a review of ClIlplicable oocuments and visu alexaminaoon of \he Site Whether or not Seller conducts any evaluation, Seller will have no responsibility or liability for exisbng Site conditions 12.2SellershallprompUy,and,iffeasible,beforeSUChconditions.:redislurbed,notifyBuyerinwritingof:(i)subsurface,latent physicalorotherconditionsattheSite,includingbutnotlimitedtoBuyer'shealthand salety requirements, differing materially from those indicated in the Contract or otherwise disclosed by Buyer, and (ii) previously unknown physical conditions at the Site, including archeological remans. differing materially from those ordinaily eflCountered and generally recognized as inherent in work 01 the character provided for in the Contract Buyer shall prolfllny investigate those conditions II it is determined that any conditions do materially differ and cause an increase in Seller's cost of. or the bme required for, performance of any part olthe work under the Contract, the pil1ies shall make an equitable adjus tmentinpriceandschedule and modify the Contraclin writing accordingly 12.311. at the Site, Seller encounters Hazardous Materials that require special handling or disposal. Buyer shall immediately take whatever precautions are required to eliminate legally the haza-dous conditions so that the wor1l under the Contract may safely proceed. Seller shall not be obligated to commence or continue wor1l until Buyer causes the haza"dousconditio nsto be removed. If any such Haza-dous Materials cause an increase in Seiler's cost of or time required for performance of any part of the work, the p1l1ies shall make an equitable adjustment to the price a"Id schedule and modify the Contract in writing accordingly. Buyer agrees to property store, transport and dispose 01 all Hazardous Materials introduced, produced or generated in the course of Seller's work at the Site 12.4 Buyer shall indemnify and oold Seiler h<r11iess for any and all claims, damages, losses, causes of action. demands, judgments and expenses arising out of or relating to any Hazardous Materials which are or were (i) present on or about the Site prior to the commencement of Seiler's work, (ii) improperly handled or disposed 01 by Buyer cr Buyer's employees, agents. contractors cr subcontractors, or (iH) brought generated,producedorreleasedonthe Site by parties other than Seller 11 Termination Ind Suspen.lon, 111 Buyer may terminate the Contract (or any portion It)ereof) lor cause if Seller: (i) substantially breaches a material o~igation which does not otherwise have a specified contractual remedy, provided that (a) Buyer shall first provide Seller with detailedwrillen notice of the breach and of Buyers intention tote rminate the Contract and (b) Seller shall have failed. within 30 days afler receipt of the notice (or sucll extended period as is considered reasonable by the parties), to either (1) commence and diligently pursue cure of the breach, or (2) provide reasonable evidence that the breach has not occurred; or (ii) becomes insolvent makes an assignment for the benefit of its credilors, has a receiver or trustee..,pointedforthebenelilolitscreditors,orlileslorprotectionfromcredi1orsunderanybankrupttyor insolveflCy laws. If Buyer termnates the Contract as provided In this Section: (a) Buyer shall pay to Seller all portions of the Contract price allocable to work performed (for example, the price lor Products cOlfllleled or partiallycolfllleted before the termination). Lease Fees incurred, and all Services performed at the Seller's then.(urrentstanda"dbmeand material rates; and (b) SeI ler r.:F r-"nfilV>n~~1 ~ntl Prnnn.."'", shall pay Buyer the difference between that portion 01 the Contract Price allocable to the terrninated scope and the actual a"I'lOunts reasonably paid by Buyer to another supplier for thatscope 13.2 SeDer shall have the righl to suspend or terminale the Contracl (or any portion Ihereof) irrmediately for cause it (i) Bu yer becomes insolvent makes an assignment f<< the benefit of its creditors, has a receiver or trustee appointed lor the benefit of its credi1ors,or files lor protection from creditors under any bankruptcy or insolvency laws; (ii)thereisane xcusabledelay (as per Section 5 above} lasting longer than 120 days; (iii) any rtlIlresentation or wll'Tanty m;r:le by Buyer herein or ill any oocument or certificatelurnished by Buyer in connection herewilh proves to be incorrect in any material respect or (iv) Buyer materially fails to comply with any tenns of the Contract incllKling but not Iirrited to, failure to make any payment when due or to fuffill any payment conditions 13.3 lithe Contract (or aflY portion thereof) is terminated lor any reason other than those setlor1tl In Section 13.1 above, Buyer shall pay Seller lor all Products completed or p<r1ially cOlfllleted. Lease Fees incurred. and Services perbrmed before the effective date of termination, plus a cancellation ch..-ge equal to 15% of the Contractprice a1locaIJl eto theurlCOflllleted Products. unfinished tease Term and unperformed Services. The following shallapJlly when determining the amount due from Buyer for Services performed before the date of termination: (i) lor Services performed under time and material pricing, Buyer shall pa yfor all hours performed at Seller's then-turrentstandCl'd time and material rates and Qi} for Services performed under a firm fixed price, Buyer shall pay (a}theapplica~epriceforallmilestonesachieved and (b) lor any rrilestone not yet achieved. all hours performed in connection with the unachievedmilestone(s) at SeIler's then-cooentstanda"d lime and material rates. 13.4 Buyer shall pay any reasonable eKJlenses incurred by Seller in connection with a suspension or terrrinatlon, including expenses for repossession, fee collection, demobilizalionlremobilization or costs of storage during suspensiorl ~n submission of Seller'sinvoice(s). Performance of Seller's obligations shal be extended for a pertod of time reasonably necessa-y to overcome the effects ofany suspension 14. Softwn, Lined Equipment, Remote Environmental Services, Remote Dilgnostic Servic", PCB Servic.., EPC Services. 14.111 Seller prollides any softwill!to Buyer. the terms of this Contract shall..,ply including the Softwa"e License Addendum. II Seller leases any of SeIler's equipment or provides related Services to Buyer, including placing Seller's equijlment at Buyer's site to provide remote Services, the terms of this Contractshall..,ply including the Lease Agreement Addendum. II Seller provides any remole environmental Services to Buyer. the terms of this Contract shall apJIly including the Remote Environmental Services Addendum. II Seller provides allY remote diagnostic services to Buyer. the terms of this Contract shall apply including the Remote Diagnostic Services Addendum. If Seller provides any PCB Services to Buyer. the Ierms of this Contract shall apply including the PCB Services Addendum II Seller provides any EPC Services to Buyer, the terms 01 this Contract shall apply including the EPC Services Addendum. II there is any conflict between these terms and the terms of any applica~eaddendum,theterrnsoftheaddendumshallprevail. 14.2 II Seller performs Services related to Seller's own proprietay softwill!, Buyer agrees that Seller owns all proprietary rights. including, but not limited to any patent copyright tradesecret,trademarkandotherproprietaryrighls,inandtothatsoftwill!a nd an~ work derived from that soflwill! ("Derivative Wor1I1. "Derivative Work" is (i) any work that is based ~ one or rrore pre-- existing work. such as a revision. enhcn:ement, rmdification,translation,1DiI:Igement condensalion,exp<rlSion,extensionoranyother forrn in whch such pre--eltisting.....oo.: may berecast,transformed,ocadapted,andlhat ifprepa"ed 'MthouIthe authorization of the owner ofthecopyrighttosuchp~ngwork. would conslilute a copyright infrilgementand (li) any CCJrllIiation thatincaporaes such a pre-- existing work. Buyer shall have only a "righlto use" license to a DerivativeWor1I for intemal business purposes and s hall not disclose, ~I. lease, distribute, or otherwise transfer the Derivative Work to any third party except as may be permlled by these terms or as approved in writing by Seller. 14.3ForthepurposesoflhisArticIe,"SeIler" means Seller. its affiliates. and their successors or assigns. 15 Intellectual Property IndemniliCltlon. 15.1 Subject to the terms of the Contract, Seller shall indemnify Buyer against any damages, costs and expenses arisingoutofanysuit, claim, Of proceeding (a "Claim") aIlegi ng that Products or Services inlringe a parentin effect in the U.S.. an EU member state or country of delivery (provided there is a corresponding patent issued by the U.S. or an EU member state). or U.S. copyright or copyright registered in the coontry 01 delivery; provided that (a) Buyer promptly notifies Seller in writing of any soch Claim; (b) Buyer makes no admission of liability and gives Seller soje aulhori1y, at Seiler's expense. to direct and control all defense. setIIement. and compromise negotiations; and (c) Buyer provides Seller with full disclosure and assistance that may be reasonably requred to defend any soch Claim. 15.2 Sellershal have no obligation or liability with respect to any Claim based upon: (a) any Products or Services that have been allered. modified, or revised; (b) the combination, operation, or use of any Products or Services with other products when such combination is pa1 01 any a1legeliy infringing process; (c) lailure 01 Buyer to ifl1llement any update provided by Seller that would havepreventedtheClaim;(d)unauthorizeduseofProdllClsorServices.including,wilhout~ilation. a breach of the prollisionsol the Contract or (e) Products or Services made or performed to Buyer's specifications 15.3 Should any ProdlJclor Service, or any portion thereof, become the subject of a Claim. Seller may at its option (a) procure for Buyer \he nght to conbnue using the ProdlJcl or Service. or portion thereof, (b) modify or replace it in whole or In part to make it non-infringing,or(c)lailing(a)or(b),takebackProductsorServicesandrefundanyfeesreceived by Seller attributable to the infringing Produclor Service 15.4 This states Seller's entire liability !of indemnification for patent trademar\(, cop~light and trade secret infringement for Products and Services 15.5 Notwithstanding the foregoing. with respect to any Products or Services, or portions thereof, which are not manufactured/developed by Seller, only the indemnity olthe manufacturer/developer, if any, shall apply. 16. Chlnges. 16.1 Each p;rtymay at any time propose changes in the schedule or scope 01 Products or Services in Ihe fo rmol a draft change order. Some changes requested by Buyer may require analytical or investigative work to evalucte the change. and this evaluation work may be chMged to Buyer at prevailing rates. The parties may mutually a!r6& on the length of time within which a decision shall be made rega"ding the change. II mutually agreed, the changes will be documented in a wrillen document signed by authorized representatives of each party,aIong with any equitable adjustments in the Contract price or sched ule. Seller is nol obligated to proceed with the changed schedule or scope until bolh paties agree inwriling. Changes in applicable laws. rules and regulations shcWl be treated as a change within the meaning, and subject to the requirements, of this Article. Unless otherwise agreed by the parties. pricing for additional work aising from changes in laws, rules and regulations shall be at time and material rates 16.2 All Products delivered shall conform to Seller's pa1 or version number specified or (at Seiler's option) its equivalent or Ihe superseding number subsequently assigned by Seller. Ifthenumberorderedisnolongeravailable,Seileris authorized to ship a validinlerchangeable Product wilhout notice to Buyer. 17. Inspection Ind FlctofyTests. The quality control exercised by Seller in its manufacture of Products shal be in accordance with Seller's normal quality control policies, proceduresandprac1ices. Seller shall atlemptto accommodate Buyer's requests to witness Seller's lactory tests of Products, if such witnessing can be lI'Tanged witholll delaying thewor1\. Such access shall be limited to areas direcUy concerned with Products ordered by Buyer and shall not include resbi ctedc.-easwheredevelopmentwork or work of a proprietary nalure is being conducted. 18. GenerllClluses. 18.1 Products and Services sold by Seller are not intended for use in connection with any nuclea-facil ity or acbvity without the wrillen consent of Seller. Buyerwcrrantsthalijshall not use or permil others to use Products or Services for such plXpoSes. unless Seller agrees to the use in writing if, in breach 01 this, any such use occurs, Seller (and its parent atliliates, suppliers and sulx:ontractors) disclaims all liability for any nuclear or other danages. injury or contamination, and in addition to any other legal or equilable rights of Seller, Buyer Shall indemnify and hold Seller (and its parent atliliates, suppliers and sulx:ontractors) h<r11iess aganst any such liability. II Seller agrees in wriling to an y such use, the parties shall agree upon special terrns and conditions that provide Seller protections againstnuclea" Habilityandw hichaeacceptable!cSellerunderthe then current laws that apply 18.2 Seller may assign or novate its rights andolJligations under the Contract, in part or in whole, to any 01 its affiliates without Buyer's consent and may subcontract portions of the work. so k:mg as Seller remains responsi b1e for it Buyer agrees to execute any documents that may be necessay to effect Seller's assignment or novation. The delegation or assignment by Buyer of any or all ofits duties or rights under the Contract without Seller's prior wriIIen consent shall be void 18.3 Buyer shall notify Seller immediately upon any change in the ownership of more than fifty percent (SQ%} 01 Buyer's voting rights orin Buyer's controlling interest. II Buyer lailsto do so or Seier objects to the change, Seller may (a) terminate the Contract, (b) require Buyer to provide adequate assurance of performance (including but not limited to payment), or (c) put ill place SIleclal controlsregading Seiler's Confidenbal Information 18.4 If any provision 01 the Contract is found to be void or unerlforceabie,the remainder of the Contractshallnotbeaflected.The parties will replace any such void or unenforceable provision with a new provision Ihat achieves substantially the same practical or economic effect and is valid and enforceable 18.SThefollowing Articiesshall sUIVivetermillation or cancellation of the Contract 2,3,4,6, 7,8,9.10, 12, 13, 14, lS, Handle 18.6 The Contract represents the entire agreement between the paties. No modification, amendment rescission Of waiver shall be binding on eilher party unless agreed in writing by the parties' authorized representalives. 18.7 For direcl and indirect U.S. government contracts only, all Products and Services provided by Seller shall be considered 'corrrn&fcial items" as defined in FAR Part 2, 2.101 and in accordance with FAR S2.244-6. If the reasonableness of the price cannotbeestablished,ifcoslorpricing dala is required for any other reason, Of if the Products or Servicescannol be considered 'corrmercial items: Seller may cancel the Contract without liability. 188 This Contract may be executed in multiple counterparts that together shall constitute one agreement 18.9ExceptasprovidedintheArtic~enlilled"tirritationoltiability:andin18.1 aboverega"dingnuclearuse,thisContraclisfor the benefrtofthe parties and not lor any third party