Sales Terms and Conditions

(Standard Sales Terms and Conditions)

1.  General. 

The terms and conditions contained herein, together with any additional or different terms contained in a proposal by DEMRS, INC (dba Denver Electric Motor)., Denver Electric Motor Sales & Service, or any other  or any such quotation and/or invoice (“Proposal”), if any, submitted to Purchaser (which Proposal, policies, addendum(s), if any, submitted to Purchaser shall control over any conflicting terms), constitute the entire agreement (the "Agreement") between the parties with respect to the purchase order and supersede all prior communications and agreements regarding the purchase order. Acceptance by DEMRS, INC. of the purchase order, or Purchaser's acceptance of DEMRS, INC.'s Proposal, is expressly limited to and conditioned upon Purchaser's acceptance of these terms and conditions, payment for or acceptance of any performance by DEMRS, INC. being acceptance. These terms and conditions may not be changed or superseded by any different or additional terms and conditions proposed by Purchaser to which terms DEMRS, INC. hereby objects. No changes to any provision set forth herein shall be effective unless agreed to by Purchaser and DEMRS, INC.’s authorized representatives in writing. Unless the context otherwise requires, the term "Equipment" as used herein means all of the equipment, parts, accessories sold, and all software and software documentation, if any, licensed to Purchaser by DEMRS, INC. ("Software") under the purchase order. Unless the context otherwise requires, the term "Services" as used herein means all labor, supervisory, technical, and engineering, installation, repair, consulting, or other services provided by DEMRS, INC. under the purchase order. As used herein, the term "Purchaser" shall also include the initial end user of the Equipment and/or services; provided, however, that Article 14(a) shall apply exclusively to the initial end user. 

2.  Prices. 

(a) Unless otherwise specified in writing, all Proposals expire thirty (30) days from the date thereof and may be modified or withdrawn by DEMRS, INC. before receipt of Purchaser’s conforming acceptance. All quoted prices are subject to revision at any time by DEMRS, INC. upon written notice in the event of any increase in supplier, foreign exchange fluctuations, currency regulations, raw material, energy costs, governmental actions such as tariffs, or other factors beyond DEMRS, INC.’s control until delivery of the Equipment. If DEMRS, INC. implements a general or industry specific price adjustment for any Equipment, all orders for such Equipment that are confirmed by DEMRS, INC. but not yet shipped as of the effective date of such adjustment shall be re-priced accordingly by DEMRS, INC.. 
(b) Unless otherwise stated herein, Services prices are based on DEMRS, INC.’s standard business hours (8 a.m. to 5 p.m. Monday through Friday in accordance with the applicable time zone where DEMRS, INC. is providing the Services excluding any DEMRS, INC.-observed holidays (each, a “Business Day”)). 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; holiday hours will be billed at three (3) times the hourly rate. If a Services rate sheet is attached hereto, the applicable Services rates shall be those set forth in the rate sheet. Rates are subject to change without notice.
(c) The price does not include any federal, state, or local property, license, privilege, sales, use, excise, gross receipts, or other like taxes, and any other fees of any kind assessed by a governmental authority, which may now or hereafter be applicable. Purchaser agrees to pay or reimburse any such taxes which DEMRS, INC. 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 purchase order placement, provide DEMRS, INC. a copy, acceptable to the relevant governmental authorities of any such certificate or permit.
(d) The price includes customs duties and other importation or exportation fees, if any, at the rates in effect on the date of DEMRS, INC.’s Proposal. Any change after that date in such duties, fees, or rates, shall increase the price by DEMRS, INC.'s additional cost. All drawback of duties paid hereunder shall accrue to DEMRS, INC., and Purchaser shall cooperate with DEMRS, INC. in obtaining such payment, including, but not limited to, furnishing DEMRS, INC. with reasonable supporting documentation as may be required by DEMRS, INC.. 

3.  Payment.

(a) Unless specified to the contrary in writing by DEMRS, INC., payment terms are net cash, payable without offset, in United States Dollars, by credit card at time of invoice, or net 30 days from date of invoice by check or wire transfer to the account designated by DEMRS, INC. in the Proposal. DEMRS, INC. 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, DEMRS, INC. shall be entitled to a matching extension of the schedule for delivery of the Equipment and/or Services.  In the event payment is due on a day that does not fall on a Business Day, payments shall be due on the last Business Day preceding the relevant date. DEMRS, INC. may issue at its sole discretion invoices to Purchaser in digital format via e-mail, and such invoices shall be deemed as originals.  Purchaser shall ensure that DEMRS, INC. has accurate and current Purchaser contact information including a valid e-mail address.
(b) If in the reasonable judgment of DEMRS, INC., the financial condition of Purchaser at any time prior to delivery does not justify the terms of payment specified, DEMRS, INC. may require payment in advance, payment security satisfactory to DEMRS, INC. and suspend its performance until said advance payment or payment security is received or may terminate the purchase order, whereupon DEMRS, INC. shall be entitled to receive reasonable cancellation of warranty charges. If delivery is delayed by Purchaser, payment shall be due on the date DEMRS, INC. is prepared to make delivery. Delays in delivery or nonconformities in any installments delivered shall not relieve Purchaser of its obligation to accept and pay for remaining installments.
(c)  Without notice of default being required to that effect, Purchaser shall pay, in addition to the overdue payment, a late charge equal to the lesser of 1 1/2% per month or any part thereof or the highest applicable rate allowed by law on all such overdue amounts plus all direct costs incurred by DEMRS, INC. in collecting any such overdue amounts, including, but not limited to, DEMRS, INC.’s attorneys' fees and court costs. Any such late fees or expenses may be invoiced separately by DEMRS, INC.. If Purchaser fails to make payment of any amounts due under any purchase order and fails to cure such default, then DEMRS, INC. 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, DEMRS, INC. will be entitled to recover all costs for work performed to date, including, but not limited to, raw materials, labor, or parts expended in anticipation of fulfilling the purchase order, costs associated with suspension, cancellation or termination of the work and all other costs recoverable at law.

4.  Changes.

(a) No changes requested by Purchaser affecting the purchase order are binding on DEMRS, INC. until and unless such proposed changes are (i) first reviewed by DEMRS, INC. and (ii) the parties mutually agree on any resulting adjustments to affected provisions, including, but not limited to, price, schedule, and guarantees.  
(b) DEMRS, INC. may, at its 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, DEMRS, INC. shall be relieved of its obligation to conform to the applicable specifications to the extent that conformance may be affected by such objection.

5.  Delivery.  

(a) All Equipment manufactured, assembled, or warehoused in the continental United States is delivered FCA DEMRS, INC. point of shipment, Incoterms® 2020 unless otherwise mutually agreed in writing. Equipment shipped outside the continental United States is delivered FCA Incoterms® 2020 United States port of export unless otherwise mutually agreed in writing. Purchaser shall be responsible for any and all demurrage or detention charges.
(b) If the scheduled delivery of Equipment is delayed by Purchaser or by Force Majeure, DEMRS, INC. may move the Equipment to storage for the account of and at the risk of Purchaser whereupon it shall be deemed to be delivered. 
(c) Delivery dates are estimates only and are not guaranteed by DEMRS, INC.. DEMRS, INC. shall not be liable for any loss or damage of any nature incurred by Purchaser due to a delay in delivery and/or loss or damage of any Equipment in transport to the relevant delivery point. Shipping and delivery dates are contingent upon Purchaser's timely delivery to DEMRS, INC. of any instructions, approvals, licenses, authorizations, or of any other documentation required for DEMRS, INC.'s performance hereunder.  
(d) Claims for shortages or other errors in delivery must be made in writing to DEMRS, INC. within ten (10) days of delivery. Equipment may not be returned except with the prior written consent of and subject to terms specified by DEMRS, INC.. Claims for damage after delivery shall be made directly by Purchaser with the common carrier.
(e) In the event Purchaser refuses to accept delivery of the Equipment delivered in accordance with the Agreement, Purchaser shall be responsible for any and all costs, fees, and expenses incurred by DEMRS, INC., including, but not limited to, demurrage or storage. 

6.  Title & Risk of Loss.  

Except with respect to Software (for which title shall not pass, use being licensed) title to Equipment shall transfer to Purchaser upon delivery according to the applicable freight term. Notwithstanding any agreement with respect to delivery terms or payment of transportation charges, risk of loss or damage with respect to the sale of Equipment shall pass from DEMRS, INC. to Purchaser at delivery as defined in this Agreement. 

7.   Inspection, Testing and Acceptance.

(a) Any inspection by Purchaser of Equipment on DEMRS, INC.'s premises shall be scheduled in advance to be performed during DEMRS, INC.’s normal working hours and subject to any and all rules and regulations in place at the DEMRS, INC. premises.
(b) If the purchase order provides for factory acceptance testing, DEMRS, INC. shall notify Purchaser when DEMRS, INC. will conduct such testing prior to shipment.  Unless Purchaser states specific objections in writing within ten (10) days after completion of factory acceptance testing, completion of the acceptance test constitutes Purchaser's factory acceptance of the Equipment and its authorization for shipment.
(c) If the purchase order provides for site acceptance testing, testing will be performed by DEMRS, INC. personnel 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 DEMRS, INC., acceptance testing is not completed within thirty (30) days after arrival of the Equipment at the site, the site acceptance test shall be deemed completed and the Equipment shall be deemed accepted.

8.  Warranties and Remedies.

(a) Equipment and Services Warranty. DEMRS, INC. warrants that Equipment (excluding Software, which is warranted as specified in paragraph (d) below) shall be delivered free of defects in material and workmanship and that Services shall be free of defects in workmanship. The Warranty Remedy Period for Equipment (excluding Software and Spare Parts) shall be as follows: (a) for Equipment sold by Denver Electric Motor Sales & Service, represented by its NEMA Motors division, twelve (12) months after installation or eighteen (18) months after date of manufacture, whichever occurs first, and (b) for all other Equipment, twelve (12) months after installation or eighteen (18) months after date of shipment, whichever first occurs. The Warranty Remedy Period for new spare parts shall end twelve (12) months after date of shipment. If the purchase order includes the sale of refurbished or repaired parts, the Warranty Remedy Period for such parts shall end ninety (90) days after date of shipment. The Warranty Remedy Period for Services shall end ninety (90) days after the date of completion of Services.
(b) Equipment and Services Remedy. If a nonconformity to the foregoing warranty is discovered in the Equipment or Services during the applicable Warranty Remedy Period, as specified above, under normal and proper use and provided the Equipment has been properly stored, installed, operated and maintained and written notice of such nonconformity is provided to DEMRS, INC. promptly after such discovery and within the applicable Warranty Remedy Period, DEMRS, INC. shall, at its option, either (i) repair or replace the nonconforming portion of the Equipment or re-perform 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 DEMRS, INC. promptly after discovery and within the original Warranty Remedy Period applicable to such Equipment or Services or thirty (30) days from completion of such repair, replacement or re-performance, whichever is later, DEMRS, INC. will repair or replace such nonconforming Equipment or re-perform the nonconforming Services. The original Warranty Remedy Period shall not otherwise be extended.  
(c) Exceptions. DEMRS, INC. shall 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-DEMRS, INC. 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 shall be at Purchaser's risk and expense. DEMRS, INC. shall 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 DEMRS, INC.'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 DEMRS, INC. 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.
(d) Software Warranty and Remedies. DEMRS, INC. warrants that, except as specified below, the Software will, when properly installed, execute in accordance with DEMRS, INC.'s published specification. If a nonconformity to the foregoing warranty is discovered during the period ending one (1) year after the date of shipment and written notice of such nonconformity is provided to DEMRS, INC. promptly after such discovery and within that period, including a description of the nonconformity and complete information about the manner of its discovery, DEMRS, INC. shall correct the nonconformity by, at its option, either (i) modifying or making available to the Purchaser instructions for modifying the Software; or (ii) making available at DEMRS, INC.'s facility necessary corrected or replacement programs. DEMRS, INC. shall have no obligation with respect to any nonconformities resulting from (i) unauthorized modification of the Software or (ii) Purchaser-supplied software or interfacing. DEMRS, INC. does not warrant that the functions contained in the software will operate in combinations which may be selected for use by the Purchaser, or that the software products are free from errors in the nature of what is commonly categorized by the computer industry as "bugs".
(e) 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 DEMRS, INC.’S ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY.
(f) Any information and/or recommendations provided by DEMRS, INC. are provided in good faith. Purchaser acknowledges and it agrees that it shall not rely on any recommendations or other statements provided by or on behalf of DEMRS, INC. regarding suitability of DEMRS, INC. Products and/or Services including, but not limited to, any Product and/or Service literature or other communication, including any information on DEMRS, INC.’s website. DEMRS, INC. makes no representation, warranty, or guarantee, express or implied, that any results described herein will be achieved during end-use conditions, or as to the effectiveness or safety of any design or application incorporating DEMRS, INC.’s Products and/or Services.  Any and all users shall be responsible for determining whether DEMRS, INC. Products and/or are suitable for their purposes through end user testing and/or analysis.  Nothing in any document or statement, written or verbal, shall be deemed to amend or waive any provision of this Agreement unless agreed upon in writing by an authorized representative of DEMRS, INC.. 

9.  Intellectual Property Indemnification.

 
(a) DEMRS, INC. shall defend at its own expense any action brought against Purchaser alleging that the Equipment or the use of the Equipment to practice any process for which such Equipment is specified by DEMRS, INC. (a “Process”) directly infringes a patent in effect in the United States, an European Union member state or the country of 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 DEMRS, INC. 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 in behalf of Purchaser.
(b) DEMRS, INC. shall have no obligation hereunder and this provision shall 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 DEMRS, INC.; (ii) any Equipment or Process supplied according to a design, other than an DEMRS, INC. design, required by Purchaser; (iii) any products manufactured by the Equipment or Process; (iv) any use of the Equipment or Process contrary to DEMRS, INC. instructions; (v) any patent issued after the date hereof; or (vi) any action settled or otherwise terminated without the prior written consent of DEMRS, INC..
(c) 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, DEMRS, INC. 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 DEMRS, INC. AND EQUIPMENT MANUFACTURER FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT.
(d) 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 DEMRS, INC. is a contributory infringer) or said Equipment or any part thereof is used by Purchaser to perform a process not furnished hereunder by DEMRS, INC. or to produce an article, and by reason of said modification, combination, performance or production, an action is brought against DEMRS, INC., Purchaser shall defend and indemnify DEMRS, INC. in the same manner and to the same extent that DEMRS, INC. would be obligated to indemnify Purchaser under this "Intellectual Property Indemnification" provision.

10.   Waiver of Consequential Damages.

In no event shall DEMRS, INC., 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.  Limitation of Liability

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(a) DEMRS, INC.'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 this Agreement 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 this Agreement, or from any services rendered in connection therewith, shall in no case (except as provided in the section entitled "Intellectual Property Indemnification") exceed the purchase order price allocable to the Equipment or part thereof or Services which gives rise to the claim.
(b) All causes of action against DEMRS, INC. arising out of or relating to this Agreement or the performance or breach hereof shall expire unless brought within one (1) year of the time of accrual thereof.
(c) In no event, regardless of cause, shall DEMRS, INC. 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.   Laws and Regulations

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DEMRS, INC. 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 shall be those in effect as of the Proposal date. In the event of any subsequent revisions or changes thereto, DEMRS, INC. assumes no responsibility for compliance therewith.  If Purchaser desires a modification as a result of any such change or revision, it shall be treated as a change per Article 4. Nothing contained herein shall be construed as imposing responsibility or liability upon DEMRS, INC. for obtaining any permits, licenses or approvals from any agency required in connection with the supply, erection, or operation of the Equipment. This Agreement shall in all respects be 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 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 this Agreement, whether  claims are based on contract, tort, equity or otherwise, shall be conducted only in the state or federal courts functioning in the State of New York, Manhattan County and waive the defense of an inconvenient forum in respect to any such litigation. If any provision hereof, partly, or completely, shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision or portion hereof and these terms shall be construed as if such invalid or unenforceable provision or portion thereof had never existed.

13.  OSHA.

DEMRS, INC. 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 Proposal. Upon prompt written notice from the Purchaser of a breach of this warranty, DEMRS, INC. will replace the affected part or modify it so that it conforms to such standard or regulation. DEMRS, INC.'s obligation shall be limited to such replacement or modification. In no event shall DEMRS, INC. 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 DEMRS, INC..

14.  Software License.

(a) DEMRS, INC. owns all rights in or has the right to sublicense all of the Software, if any, to be delivered to Purchaser under this Agreement. As part of the sale made hereunder Purchaser hereby obtains a limited license to use the Software, subject to the following: (i) the Software may be used only in conjunction with equipment specified by DEMRS, INC.; (ii) the Software shall be kept strictly confidential; (iii) the Software shall not be copied, reverse engineered, or modified; (iv) the Purchaser's right to use the Software shall 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 are non-exclusive and non-transferable, except with DEMRS, INC.'s prior written consent.
(b) Nothing in this Agreement shall be deemed to convey to Purchaser any title to or ownership in the Software 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 Agreement any right or remedy under or by reason of this Agreement. 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 DEMRS, INC. the Software and all copies thereof and shall remove all machine-readable Software from all of Purchaser's storage media.

15. Intellectual Property, Inventions, and Information. 

(a) “Intellectual Property Rights” means all current and future rights in copyrights, trade secrets, trademarks, mask works, patents, design rights, trade dress, and any other intellectual property rights that may exist anywhere in the world, including, in each case whether unregistered, registered or comprising an application for registration, and all rights and forms of protection of a similar nature or having equivalent or similar effect to any of the foregoing. “Technology” means all inventions, discoveries, ideas, concepts, methods, code, executables, manufacturing processes, unique compositions, mask works, designs, marks, and works of authorship fixed in the medium of expression, and materials pertaining to any of the preceding; whether or not patentable, copyrightable, or subject to other forms of protection. 
(b) DEMRS, INC. shall maintain all right, title and interest in any Technology and Intellectual Property Rights that DEMRS, INC. owned, created, conceived, or discovered prior to entering into this Agreement, or owns, creates, or discovers separately from the activities contemplated by this Agreement. Unless otherwise agreed in writing by DEMRS, INC. and Purchaser, DEMRS, INC. shall have all right, title and interest in any Technology and Intellectual Property Rights that DEMRS, INC. creates, conceives, or discovers in furtherance of this Agreement, and DEMRS, INC. shall have all right, title and interest in any Technology and Intellectual Property Rights embodied in the Equipment and Services.  Any design, manufacturing drawings or other information submitted to the Purchaser remains the exclusive property of DEMRS, INC.. Purchaser shall not, without DEMRS, INC.'s prior written consent, copy or disclose such information to a third party, unless required by a public information request from a governmental body. Such information shall be used solely for the operation or maintenance of the Equipment and not for any other purpose, including the duplication thereof in whole or in part.

16.  Force Majeure. 

DEMRS, INC. shall 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 (including quarantine), acts of God, fire, flood, strike, labor difficulties, earthquake, explosion, terrorist threats or acts, civil unrest, national or regional emergency, acts or omissions of any governmental authority or of Purchaser, compliance with government regulations, insurrection or riot, embargo or other import and/or export restrictions, delays or shortages in transportation or inability to obtain necessary labor, utilities, equipment, transportation, machinery, services, raw materials component parts, and other 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 (each, a “Force Majeure” event). In the event DEMRS, INC. experiences a Force Majeure event, DEMRS, INC. shall be excused of its obligations to supply the Equipment and/or Services (and shall not be required to secure any such replacements). DEMRS, INC., in its sole discretion, reserves the right to determine any allocation of Products and/or Services to its affiliates and customers (whether or not under contract).  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 the price will be adjusted to compensate DEMRS, INC. for such delay. For purposes of clarification, Buyer’s failure to pay for any Equipment or Services set forth in a purchase order shall not constitute a Force Majeure event. 

17.  Cancellation. 

Special order, custom designed, and made-to-order Equipment are non-cancelable and non-returnable. Any other purchase order may be cancelled by Purchaser only upon prior written notice and payment of termination charges as set forth in the cancellation schedule included in the Proposal or payment of, including but not limited to, the purchase price of the work performed prior to the effective date of notice of termination, the costs identified to the purchase order incurred by DEMRS, INC. for work not completed, and all expenses incurred by DEMRS, INC. attributable to the termination, plus a fixed sum of ten (10) percent of the final total price to compensate for disruption in scheduling, planned production and other indirect costs.

18.  Termination. 

(a) No termination by Purchaser for material default shall be effective unless, within fifteen (15) days after receipt by DEMRS, INC. of Purchaser's written notice specifying such default, DEMRS, INC. shall have failed to initiate and pursue with due diligence correction of such specified default. 
(b) If the event of termination by Purchaser for DEMRS, INC.’s material default, DEMRS, INC. shall reimburse Purchaser the difference between that portion of the Agreement price allocable to the terminated scope and the actual amounts reasonably incurred by Purchaser to complete that scope, and Purchaser shall pay to DEMRS, INC. the portion of the Agreement price allocable to Equipment completed and any amounts due for Services performed before the effective date of termination.  
(c) DEMRS, INC. may terminate the Agreement (or any affected portion thereof) immediately if: (i) Purchaser becomes insolvent/bankrupt, (ii) if DEMRS, INC. reasonably believes Buyer’s creditworthiness has been adversely impacted, (iii) or materially breaches the Agreement, including, but not limited to, failure or delay in Purchaser making any payment when due, or fulfilling any payment conditions.
(d) DEMRS, INC. may also terminate the Agreement upon written notice to Purchaser in the event Purchaser has encountered a sale of all or substantially all of its assets or a change of control of ownership.

19.  Export Control.

(a) 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 DEMRS, INC., 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.
(b) If applicable, DEMRS, INC. 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 shall suspend performance of this Agreement by DEMRS, INC.. If an export license is not granted or, if once granted, is thereafter revoked, or modified by the appropriate authorities, this Agreement may be canceled by DEMRS, INC. without liability for damages of any kind resulting from such cancellation. At DEMRS, INC.'s request, Purchaser shall provide to DEMRS, INC. a Letter of Assurance and End-User Statement in a form reasonably satisfactory to DEMRS, INC..

20. Bribery and Corruption 

(a) Purchaser hereby warrants that it will not, directly or indirectly, and it has no knowledge that other persons will, directly or indirectly, make any payment, gift or other commitment to its customers, to government officials or to agents, directors and employees of Seller or any other party in a manner contrary to applicable laws (including but not limited to the Corruption of Foreign Public Officials Act (Canada), the Foreign Corrupt Practices Act (United States) and, where applicable, legislation enacted by member States and signatories implementing the OECD Convention Combating Bribery of Foreign Officials) and shall comply with all relevant laws, regulations, ordinances and rules regarding bribery and corruption. 
(b) Nothing hereunder shall render Seller liable to reimburse Purchaser for any such consideration given or promised.
(c) Purchaser’s material violation of any of the obligations contained in Section 19(a) above may be considered by Seller to be a material breach hereunder and shall entitle Seller to terminate this agreement with immediate effect and without prejudice to any further right or remedies on the part of Seller hereunder or applicable law. Purchaser shall indemnify Seller for all liabilities, damages, costs, or expenses incurred as a result of any such violation of the above-mentioned obligations and termination of this agreement. 
(d) Purchaser understands that Seller’s Code of Conduct is available for consultation online at http://www.DEMRS, INC..com/integrity. Purchaser agrees to perform its contractual obligations hereunder with substantially similar standards of ethical behavior as those found in Supplier’s Code of Conduct.
(e) Seller has established the following reporting channels where Purchaser and its employees may report suspected violations of applicable laws, policies, or standards of conduct: 

Web portal: www.DEMRS, INC..com/integrity
Telephone: number specified on the above Web portal
Mail: address specified on the above Web portal

21.  Assignment.

 
Any assignment of this Agreement or of any rights or obligations under the Agreement without prior written consent of DEMRS, INC. shall be void.

22.   Nuclear. 

Equipment and Services sold hereunder are not intended for use in connection with any nuclear facility or activity, and Purchaser warrants that it shall not use or permit others to use Equipment or Services for such purposes, without the advance written consent of DEMRS, INC.. If, in breach of this, any such use occurs, DEMRS, INC. (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 DEMRS, INC., Purchaser shall indemnify and hold DEMRS, INC. (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 DEMRS, INC. to any such use, if any, will be conditioned upon additional terms and conditions that DEMRS, INC. 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 DEMRS, INC., 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.

23.  Resale.  

If Purchaser resells any of the Equipment or Services, the sale terms shall limit DEMRS, INC.'s liability to the buyer to the same extent that DEMRS, INC.'s liability to Purchaser is limited hereunder. Additionally, if the end-user intends to use the Equipment or Services in connection with any nuclear facility or activity, the Purchaser shall require the end-user to comply with the financial requirements under Price-Anderson Act (PAA) and secure a written release of liability which flows from the end-user to the benefit of DEMRS, INC..  

24.  Environmental, Health and Safety Matters.

(a) Purchaser shall be obligated to maintain safe working conditions at its facility or location (the “Site”), including the implementing of appropriate procedures regarding hazardous materials, confined space entry, and energization and de-energization 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.  
(b) Purchaser shall immediately advise DEMRS, INC. in writing of all applicable Site-specific health, safety, security and environmental requirements and procedures.  Without limiting Purchaser’s responsibilities hereunder, DEMRS, INC. 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.  
(c) If, in DEMRS, INC.’s reasonable opinion, the health, safety, or security of personnel or the Site is, or is likely to be, imperiled by security risks, the presence of or threat of exposure to Hazardous Materials, or unsafe working conditions, DEMRS, INC. 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 shall be considered a Force Majeure event. Purchaser shall reasonably assist in ensuring the safe departure of personnel from the Site.  
(d) Purchaser shall not require or permit DEMRS, INC.’s personnel to operate Purchaser’s equipment at Site.   
(e) Purchaser will make its Site medical facilities and resources reasonably available to DEMRS, INC. personnel who need medical attention.  
(f) DEMRS, INC. 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 DEMRS, INC. 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 DEMRS, INC. may encounter while performing under this Agreement.  The provision of such documentation shall in no way release Purchaser from its responsibility for said conditions. Purchaser shall disclose to DEMRS, INC. industrial hygiene and environmental monitoring data regarding conditions that may affect DEMRS, INC.’s work or personnel at the Site.  Purchaser shall keep DEMRS, INC. informed of changes in any such conditions. 
(g) If DEMRS, INC. discovers conditions that differ to those represented by Purchaser and such conditions cause an increase in DEMRS, INC.'s cost of, or the time required for, performance of any part of the work under the Agreement, an equitable adjustment in price and schedule shall be made.
(h) If DEMRS, INC. encounters Hazardous Materials in Purchaser’s equipment or at the Site that require special handling or disposal, DEMRS, INC. 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 DEMRS, INC.’s work under the Agreement may safely proceed, and DEMRS, INC. shall be entitled to an equitable adjustment of the price and schedule to compensate for any increase in DEMRS, INC.’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 DEMRS, INC.’s work at the Site.
(i) Purchaser shall indemnify DEMRS, INC. 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 DEMRS, INC.’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 DEMRS, INC..  

25. Confidentiality.

(a) DEMRS, INC. 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 Agreement. “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 shall be considered DEMRS, INC.’s Confidential Information.
(b) Receiving Party agrees: (i) to use the Confidential Information only in connection with the Agreement 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 Agreement, 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. DEMRS, INC. 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 Agreement entitles Receiving Party to retain an item of Confidential Information. DEMRS, INC. may also retain one archive copy of Purchaser’s Confidential Information.
(c) The obligations under this Article 25 shall 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.
(d) As to any individual item of Confidential Information, the restrictions under this Article 25 shall expire five (5) years after the date of disclosure.  This Article 25 does not supersede any separate confidentiality or nondisclosure agreement signed by the parties.

26.  Non-Survival.

 
The following Articles shall not survive termination or cancellation of this Agreement:  5, 7, 8, 17 and 18.  All other Articles shall survive the termination or cancellation of the Agreement.

27.  Entire Agreement. 

This Agreement constitutes the entire agreement between DEMRS, INC. and Purchaser. There are no agreements, understandings, restrictions, warranties, or representations between DEMRS, INC. and Purchaser other than those set forth herein or herein provided. As stated in Article 1 of this Agreement, DEMRS, INC.'s Proposal, policies, addendum(s), if any, submitted to Purchaser, shall control over any conflicting terms. DEMRS, INC. specifically rejects any exceptions to this Agreement, Proposals, polices, and/or addendum(s) on the face of any purchase order.  Purchaser shall advise DEMRS, INC. in writing of all conflicts, errors, omissions, or discrepancies among the Proposal, policies, addendum(s) and this Agreement immediately upon discovery. This Agreement shall supersede any standard, preprinted terms and conditions that are automatically attached to purchase orders issued by Purchaser. 

28. US Government Contracts.

(a) This Article 28 applies only if the Agreement is for the direct or indirect sale of any Equipment and/or Services 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 DEMRS, INC. 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 DEMRS, INC.’s Software License. To the extent the Buy America(n) Act, Trade Agreements Act, or other domestic preference requirements are applicable to this Agreement, the country of origin of Equipment is unknown unless otherwise specifically stated by DEMRS, INC. in this Agreement. Purchaser agrees any Services offered by DEMRS, INC. are exempt from the Service Contract Act of 1965 (FAR 52.222-41). The version of any applicable FAR clause listed in this Article 28 shall be the one in effect on the effective date of this Agreement.
(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 Agreement 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.

29. Data Protection.

(a) The parties agree that the protection of personal data is very important. If Purchaser discloses personal data to DEMRS, INC., DEMRS, INC. 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 DEMRS, INC. 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.