System Sales Terms and Conditions
These Terms and Conditions cover the sale by Sensia to Buyer of the hardware, software, and/or services (individually a Product and collectively Products) set forth in the agreed scope of supply, which shall be integrated as set forth (collectively the “Work”).
1. GENERAL. These Terms and Conditions along with the agreed scope of supply provided by Sensia in this proposal (the “Agreement”) is the entire agreement of the parties, superseding any previous agreements and understandings, whether oral or written. This Agreement exclusively will govern the sale and/or licensing by Sensia of the Work and any other Products furnished under this Agreement. No addition or modification to this Agreement will be binding unless mutually agreed to in writing. Each party rejects any other terms and conditions that are in addition to or not consistent with this Agreement that may be proposed by the other party or that appear or are referenced in Buyer’s purchase order or other requisition or in Sensia’s invoice.
2. PRICE. As provided in the agreed scope of supply exclusive of applicable taxes and duties unless otherwise specified.
3. PAYMENT. Net 30 days from date of invoice issued in accordance with the pricing and payment schedule that is part of the agreed scope of supply, unless otherwise agreed in writing.
4. DELIVERY. Buyer is responsible for all shipping and handling charges. Delivery terms are FCA Sensia’s plant or designated location (per Incoterms 2020) and Sensia will arrange, prepay and add all shipping, handling, custom, insurance and similar charges incurred by Sensia or as otherwise specified in the agreed scope of supply (Delivery). Sensia will consider all requests for expedited performance on an individual basis and at Buyer’s expense. In all cases, title transfers to Buyer upon the earlier of Sensia’s delivery to Buyer or receipt by the first carrier for transport to Buyer, except that title to all intellectual property rights associated with the Work remains with Sensia or its suppliers and licensors. In addition to Sensia’s right to assess a storage fee, Buyer’s failure to take possession of the goods by the delivery date will result in Sensia being able to resell or redeploy the goods at its option.
((a) Acceptance of the Work occurs either (i) on the date the Work conforms to acceptance criteria in the agreed scope of supply or is otherwise beneficially used by Buyer, but in no event later than 60 days from start-up or 120 days following Delivery whichever occurs first; or (ii) if no acceptance criteria is specified in the agreed scope of supply then acceptance occurs upon Delivery.
(b) Interim Approvals. Any Sensia provided interim Work deliverable requiring Buyer approval pursuant to the agreed scope of supply will be deemed accepted if formal Buyer approval, written or as otherwise required, is not received by Sensia within two calendar weeks after the date submitted
6. CHANGES. Any change resulting from any of the following circumstances is subject to equitable adjustments to price, scheduling, and other affected terms and conditions:
(a) Buyer requested order changes, including those affecting the identity, scope, and delivery of the Work or Products;
(b) Concealed or otherwise unknown physical conditions differing materially from those indicated or anticipated in the agreed scope of supply or that otherwise differ materially from those ordinarily found under similar circumstances;
(c) Any delays caused by Buyer, its employees, affiliates, other contractors to Buyer, or any other party within Buyer’s reasonable control;
(d) Any emergency endangering persons or property. In such circumstances, Sensia may act at its discretion to prevent damage, injury, or loss.
All changes, except actions necessitated by emergencies as provided in (d) above, must be executed by a written change order signed by both parties or otherwise definitively authorized by both parties. Sensia will not begin work on a change until such change order is properly authorized. All claims relating to a change must be made within a reasonable time after the occurrence, giving rise to the claim. If the parties cannot agree on a change in pricing or schedule, it will be resolved pursuant to Section 27, Disputes.
Sensia reserves the right to substitute using the latest superseding revision or series or equivalent Product having comparable form, fit, and function, and such substitutions shall not be considered changes subject to the other terms of this section.
7. RETURNS. All returns of Products will be pursuant to Sensia’s instructions.
8. DEFAULT, DELAYS, AND TERMINATION.
(a) Default by Sensia. If Sensia is in material default of its obligations in the Agreement, Buyer shall give Sensia written notice, and Sensia shall have 5 business days to begin action and 90 days (or longer if agreed to in writing) to cure the default. If Sensia fails to cure the default, Buyer may terminate this Agreement to the extent that Sensia is in default. Sensia’s liability shall be limited to (a) the proportionate price of the terminated portion of the Work and (b) any documented direct excess reprocurement costs incurred by Buyer to complete the Work to a capability not exceeding that provided in the agreed scope of supply, but Sensia’s liability for documented direct excess reprocurement costs shall be limited to 10% of the proportionate price of the terminated portion of the Work.
(b) Convenience of Buyer. Except as set forth in the agreed scope of supply, Buyer may terminate this Agreement for convenience prior to shipment by giving written notice to Sensia. Buyer shall pay for any Work performed before receipt of notice and any additional costs of termination (including third-party commitments, reasonable profit, and overhead as may be more specifically provided in the agreed scope of supply) upon submission of Sensia’s invoices.
(c) Delays or Default by Buyer. If Buyer, its employees, affiliates, other contractors to Buyer, or any other party within Buyer’s reasonable control causes the delivery, installation, or acceptance of the Work to be delayed beyond the time period set forth in the agreed scope of supply, or if Buyer materially fails to fulfill any condition of the terms of this Agreement, Sensia may elect to (a) withhold deliveries and suspend Work, or (b) place the Products in storage at Buyer’s risk and cost. If such delay or other non-fulfillment is not rectified by Buyer within a reasonable time upon notice, Sensia may terminate this Agreement, and Buyer shall pay all costs of termination (including third-party commitments, reasonable profit, and overhead) upon submission of Sensia’s invoices.
(d) Temporary Suspension of Work by Buyer. Except as set forth in the agreed scope of supply, Buyer may, by providing prior written notice, request that Sensia temporarily suspend performance and delivery of the Work, in whole or in part. The notice shall specify the portion of the Work to be suspended, the effective date of suspension, Buyer’s anticipated duration of suspension, and the reasons for the suspension. Sensia shall suspend Work as requested, except as necessary for the care or preservation of Work previously executed. On or before the date the suspension begins, Buyer must pay Sensia the unpaid balance of the portion of the Work previously executed plus any additional costs incurred by Sensia as a result of the suspension. Sensia shall resume the suspended Work after a change order is executed covering adjustments to the price, schedule, and any other affected terms or conditions resulting from the suspension. Unless otherwise agreed, the maximum cumulative period for suspension is 60 days. Upon expiration of this or any shorter period agreed upon as provided above, Sensia may terminate this Agreement, and Buyer shall pay all costs of cancellation (including third-party commitments, reasonable profit, and overhead) upon submission of Sensia’s invoices
9. FORCE MAJEURE. Neither party will be liable for any loss, damage or delay arising out of its failure (or that of its subcontractors) to perform due to causes beyond its reasonable control, including without limitation, acts of God, acts of civil or military authority, fires, strikes, floods, epidemics, pandemic, supply and/or component shortage through no fault of Sensia, quarantine restrictions, war, riots, acts of terrorism, delays in transportation, or transportation embargoes. In the event of such delay, performance date(s) will be extended as reasonably necessary to compensate for the delay.
10. SOFTWARE LICENSES AND OWNERSHIP.
(a) Standard Software. Software comprised of firmware or standard software (including, but not limited to packaged software, Sensia’s preexisting templates, models and library files, and commercially available software) (collectively “Standard Software”) is subject to Buyer’s acceptance of additional terms and conditions set forth in separate Sensia or third-party click-wrap license agreements provided with such Standard Software. Such terms and conditions shall be the exclusive terms and conditions applicable to such Standard Software, excluding Buyer’s obligation to pay any license fee which shall be identified in the agreed scope of supply.
(b) Documentation and Application Software. Sensia hereby grants to Buyer a non-exclusive, non-transferable license to modify and use solely in conjunction with the Work all documentation and any Application Software created by Sensia as specified in the agreed scope of supply. Application Software includes application project files for control programming, design, configuration, and visualization in source code and/or scripting code created by Sensia under the Agreement for operational use with Sensia’s Standard Software or the Buyer’s system as specified in the agreed scope of supply. Buyer is solely responsible for its modifications to documentation and Application Software. Except for any Buyer or third-party confidential information, Sensia retains all right, title, and interest to documentation and Application Software developed by Sensia. Buyer shall not sublicense or assign the documentation or the Application Software except to a customer who purchases the Work from Buyer. Buyer may make an additional archival copy of such documentation and Application Software for backup.
(c) In the absence of a separate Sensia license agreement for software provided by Sensia under an agreed scope of supply, Sensia hereby grants Buyer a non-exclusive, non-transferable license to use such software solely in conjunction with the Work for the project identified in the agreed scope of supply without the right to sublicense, disclose, disassemble, decompile, reverse engineer, or otherwise modify the software (except for modifications of Application Software as set forth above). Ownership of the respective Sensia or third-party software shall remain with Sensia or the third party.
(d) Ownership of Pre-existing Intellectual Property. Each party shall own all right, title, and interest in all patents, trademarks, copyrights, confidential information, trade secrets, mask rights, and other intellectual property rights as it owned on the date of this Agreement.
(e) No Other Licenses. Except as expressly set forth in this Agreement, no license under any patents, trademarks, copyrights, confidential information, trade secrets, mask rights, or other intellectual property rights is granted or implied by either party.
(a) Warranty for the Work: Sensia warrants to Buyer for the lesser period of 18 months from delivery or 12 months from startup, that the Work will perform as stated in the agreed scope of supply and the Products will be free of defects in material, fabrication, and workmanship provided that: (1) the products are not damaged or degraded during shipment, handling, lifting, or in storage after delivery and during installation and commissioning; (2) the operating conditions and use of the Work are in accordance with any standards set forth in the agreed scope of supply, Sensia's published specifications, and applicable recommendations of Sensia; and (3) the installation, adjustment, tuning, and start-up of the Work have been properly performed in accordance with Sensia’s published specifications and any applicable recommendations of Sensia. Repaired or replacement Products provided pursuant to subparagraph (d) below are similarly warranted for the longer period of six months from date of shipment or the remainder of the original warranty term.
(b) Products Warranty: Sensia warrants to Buyer for the period of 18 months from shipment, that the Products will be free of defects in material, fabrication, and workmanship provided that: (1) the operating conditions and use of the Products are in accordance with any standards set forth in the agreed scope of supply, Sensia's published specifications, and applicable recommendations of Sensia; and (2) the installation, adjustment, tuning, and start-up of the Products have been properly performed in accordance with Sensia’s published specifications and any applicable recommendations of Sensia. Repaired or replacement Products provided pursuant to subparagraph (d) below are similarly warranted for the longer period of six months from date of shipment or the remainder of the original warranty term.
(c) Services Warranty: Sensia warrants to Buyer for the period of 30 days from the date services are provided that services shall be performed in a workmanlike manner conforming to standard oilfield industry practice and that it shall exercise diligence to ensure the correctness and safe transport of all log, test and other data. Sensia does not warrant the accuracy or completeness of log, test or other data, the effectiveness of material used, recommendations given, or results of the services rendered. Sensia will not be responsible for accidental or intentional interception of or tampering with data by others, nor does Sensia guarantee the safe storage or the length of time of storage, or against loss of any digital tapes, optical logs or prints, or other similar products or materials.
d) Remedies: Remedies under this warranty will be limited to, at Sensia’s discretion, replacement, repair, re-performance, modification, or issuance of a credit for the purchase price of the Products involved, but only after Sensia’s receipt of Buyer’s written notification of non-conforming Products or Work and the return of such products pursuant to Sensia’s instructions. Replacement Products, at Sensia’s discretion, may be new, remanufactured, refurbished, or reconditioned. If the repair, re-performance, or replacement does not cure the defective performance, Buyer may request emergency on-site service, which will be at Sensia’s expense (consisting of time, travel, and expenses incurred by Sensia related to such services). If the defective performance is not due to warranted defects in the Work or Products, the on-site service will be at Buyer’s expense. On-site warranty services performed at Sensia expense shall not include removal or reinstallation costs related to large-scale assemblies such as motors or transformers nor offshore transportation and accommodation, if applicable. The foregoing will be the exclusive remedies for any breach of warranty or breach of contract arising from warranted defects.
(e) General: Warranty satisfaction is available only if (a) Sensia is provided prompt written notice of the warranty claim, and (b) Sensia’s examination discloses that any alleged defect has not been caused by misuse, neglect, improper installation, operation, maintenance, repair, alteration, or modification by other than Sensia, accident, or unusual deterioration or degradation of the Products or Work or parts thereof due to physical environment or electrical or electromagnetic noise environment.
(f) THE ABOVE WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES AND CONDITIONS, WHETHER EXPRESSED; IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE.
12. INTELLECTUAL PROPERTY INDEMNITY. Sensia will pay costs and damages finally awarded in any suit against Buyer to the extent based on a finding that the design or construction of any Work or Products as furnished, infringe any patent, utility model, copyright, or trademark granted or registered in the country of Sensia’s shipping destination, provided that, Buyer: (i) promptly informs Sensia of the alleged infringement in writing; (ii) provides Sensia the exclusive right to defend and settle the suit, at Sensia’s expense; and, (iii) provides all reasonable information and assistance requested for the defense. Sensia shall have no liability for any infringement that is based upon or arises out of: (a) compliance with Buyer’s instructions, specifications or designs; (b) use of Work or Products in a Buyer or third-party process; or, (c) combinations with other equipment, software or materials not supplied by Sensia. The foregoing states the sole and exclusive obligations of Sensia for intellectual property infringement.
I. Property and Employees of Sensia:
Regardless of the cause of, or reason for, any injury, death, damage, loss or liability covered hereunder, including, without limitation, breach of contract or the sole or concurrent negligence, whether active or passive, of the indemnified and/or released party, Sensia will indemnify, defend and hold harmless Buyer Group from and against all claims, losses, damages, costs (including legal costs) expenses and liabilities for:
(a) loss of, or damage to, property of Sensia whether owned, hired, leased or otherwise provided by Sensia Group arising from, relating to or in any way connected to the performance or non-performance of this Agreement; and
personal injury, including death or disease, to any person employed by Sensia Group arising from, relating to or in any
way connected with the performance or non-performance of the Agreement; and
II. Property and Employees of Buyer:
Regardless of the cause of, or reason for, any injury, death, damage, loss or liability covered hereunder, including, without limitation, breach of contract or the sole or concurrent negligence, whether active or passive, of the indemnified and/or released party, Buyer will indemnify, defend and hold harmless Sensia Group from and against all claims, losses, damages, costs (including legal costs) expenses and liabilities for:
(a) loss of, or damage to, property of Buyer Group whether owned, hired, leased or otherwise provided by Buyer Group arising from, relating to or in any way connected to the performance or non-performance of the Agreement; and
(b) personal injury, including death or disease, to any person employed by Buyer Group arising from, relating to or in any way connected with the performance or non-performance of the Agreement.
III. Property and Employees of Third Parties:
a) Sensia will indemnify, defend, and hold harmless Buyer Group from and against all claims, losses, damages, costs (including reasonable legal costs) expenses and liabilities for personal injury, including death or disease, or physical loss of or damage to, the property of any third party to the extent that any such injury, loss or damage is directly caused by the negligence of Sensia Group. For the purposes of this provision, "third party" will not include Buyer Group’s or Sensia Group’s employees covered under paragraphs I and II above.
b) Buyer will indemnify, defend and hold harmless Sensia Group from and against all claims, losses, damages, costs (including reasonable legal costs) expenses and liabilities for personal injury, including death or disease, physical loss of or damage to, the property of any third party to the extent that any such injury, loss or damage is directly caused by the negligence of Buyer Group. For the purpose of this provision, "third party" will not include Sensia Group’s or Buyer Group’s employees covered under paragraphs I and II above.
IV. Liability for Pollution
a) Buyer will indemnify, defend, and hold harmless Sensia Group from and against any claim of whatsoever nature arising from pollution emanating from the reservoir or from the property of Buyer’s Group arising from, relating to or in connection with the performance or non-performance of the Agreement.
b) Sensia will indemnify, defend and hold harmless Buyer Group from and against any claim of whatsoever nature arising from pollution occurring on the premises of Sensia Group or emanating from the property and equipment owned by Sensia (including but not limited to marine vessels) arising from, relating to or in connection with the performance or non-performance of the Agreement.
The indemnities given under this paragraph IV Liability for Pollution shall apply irrespective of cause and notwithstanding the negligence or breach of duty (whether statutory or otherwise) of the indemnified party or any other entity or party and shall apply irrespective of any claim in tort, under contract or otherwise at law.
For purposes of this provision 13, “Buyer Group” shall include Buyer, Buyer’s contractors (other than Sensia), subcontractors on any level, Buyer’s customer, the owner/end user, invitees, and their respective affiliates, employees, directors, officers, or agents. “Sensia Group” shall include SENSIA, its subcontractors on any level, and invitees, and their respective affiliates, employees, directors, officers, or agents.
14. DISCLAIMER OF INDIRECT AND CONSEQUENTIAL LOSS.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY FOR ANY BUSINESS INTERRUPTION OR LOSS OF PROFIT, REVENUE, MATERIALS, ANTICIPATED SAVINGS, DATA, CONTRACT, GOODWILL, OR THE LIKE (WHETHER DIRECT OR INDIRECT IN NATURE) OR FOR ANY OTHER FORM OF INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES OF ANY KIND. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR CONDITION OR EXCLUSION OF DAMAGES IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION EXTENDS TO THE BENEFIT OF SENSIA’S PARENT COMPANIES, SUBSIDIARIES, AFFILIATES, VENDORS.
15. LIMITATION OF LIABILITY.
EACH PARTY’S MAXIMUM CUMULATIVE LIABILITY RELATIVE TO ALL OTHER CLAIMS AND LIABILITIES, INCLUDING OBLIGATIONS UNDER ANY INDEMNITY, WHETHER OR NOT INSURED, WILL NOT EXCEED THE PURCHASE ORDER PRICE PROVIDED UNDER THIS AGREEMENT. PROVIDED, HOWEVER, THAT THIS CLAUSE 15. LIMITATION OF LIABILITY WILL NOT APPLY TO EACH PARTY’S RESPECTIVE INDEMNITY OBLIGATIONS UNDER CLAUSE 13 PARAGRAPHS I, II, III AND IV.
THE ARTICLES 14 AND 15 DISCLAIMERS AND LIMITATIONS OF LIABILITY WILL APPLY REGARDLESS OF ANY OTHER CONTRARY PROVISION AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), OR OTHERWISE. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY OR CONDITION OR EXCLUSION OF DAMAGES IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION.
16. BUYER SPECIFICATION.
(a) Unless otherwise specified in the agreed scope of supply, Sensia does not warrant or indemnify and will not otherwise be liable for (i) design, materials, or construction criteria furnished or specified by Buyer and incorporated into the Work or Products, (ii) products supplied by, made by or sourced from Buyer or other manufacturers or vendors specified by Buyer; or (iii) commercially available computer software, hardware, and electrical components. (Such Buyer supplied/specified products shall include but not be limited to any identified in the agreed scope of supply.) Any warranty or indemnity applicable to such Buyer supplied/specified products will be limited solely to the warranty or indemnity, if any, extended by the original manufacturer or vendor other than Sensia to the extent permissible thereunder
(b) RoHS: Buyer supplied/specified products will meet all applicable material restrictions as defined in RoHS. If it does not, Buyer will notify Sensia prior to shipment of the Buyer supplied/specified products to Sensia. Buyer will indemnify Sensia against any claim arising out of Sensia’s use of Buyer supplied/specified products.
17. INSURANCE. During the term of this Agreement, Sensia shall maintain, at its sole expense, the following insurance coverages:
(a) Workers’ Compensation: statutory in accordance with applicable law;
(b) Employer’s Liability: USD 1,000,000 per accident, per employee, per disease;
(c) Commercial General Liability: USD 2,000,000 per occurrence single limit of liability, USD 2,000,000 general aggregate that shall include but not be limited to contractual liability, premises liability, advertising liability, and product liability; and
(d) Commercial Automobile Liability: USD 2,000,000 per occurrence combined single limit of liability, covering all owned, leased, and non-owned vehicles.
18. BUYER INFORMATION.
(a) Buyer represents and warrants that it has the rights to the information provided or made available by Buyer to Sensia, including but not limited to technical specifications, drawings, source code, application code, communication interfaces, protocols, and all other documentation (collectively “Buyer Information”), for Sensia to perform its obligations under this Agreement and that such access to and use of Buyer Information under this Agreement will not infringe or violate any agreement, confidentiality obligations, copyrights, or other intellectual property rights of the original vendor or any other third party. Buyer agrees to indemnify Sensia from any claims arising out of Sensia’s use of Buyer Information pursuant to the agreed scope of supply.
(b) In Sensia’s performance of services, sales activities, or in connection with Buyer’s use of Sensia Products, Sensia may obtain, receive, or collect data or information, including Buyer’s contract information, computer system profile, Sensia Product installation data, and Buyer’s usage specific data of Sensia Products (collectively, the "Data"). In such cases, Buyer grants Sensia a non-exclusive, worldwide, royalty-free, perpetual, non-revocable license to use, compile, distribute, display, store, process, reproduce, or create derivative works of the Data solely to facilitate the performance of sales and services by Sensia and its affiliates (including, but not limited to, quality, safety, energy, and security analytics, product and service diagnostics and prognostics, and reporting), and to facilitate or improve Buyer’s use of the Products. In addition, Buyer grants Sensia and its affiliates a license to use and aggregate the Data in support of Sensia’s marketing and sales activities. Sensia and its affiliates may also use this information in the aggregate, in a form which does not personally identify Buyer, to improve Products and Sensia may share anonymous aggregate data with our third party suppliers and service providers.
19. SAFETY AND STANDARDS.
(a) Sensia is responsible for compliance of the Work with laws, regulations, and standards, including safety regulations and standards, of the country where the Work will be located that are applicable to the Work at the effective date of this Agreement,.
(b) Buyer must inform Sensia of any other laws, regulations, or standards that may apply to the Work. Sensia will be responsible for compliance with such other safety or other standards only if documented in the agreed scope of supply.
(c) Sensia is not responsible for laws, regulations, or standards that apply to Buyer’s (or end user’s, if different from Buyer) facility, equipment, process, information system, or data.
20. SITE RULES, LICENSES, PERMITS, SITE PREPARATION.
(a) Sensia agrees to comply with all applicable posted site rules of Buyer (unless inconsistent with the obligations set forth in the agreed scope of supply) and any additional Buyer’s site rules that have been incorporated into the agreed scope of supply.
(b) Buyer is responsible for:
(1) all licenses, permits, clearances, and site access rights;
(2) all sites being ready and equipped with all necessary Buyer furnished equipment and facilities;
(3) the sites, including any required Buyer fixtures or facilities being safe, hazard free, structurally sound, and sufficient;
(4) reasonable access to the worksite;
(5) properly using, calibrating operating, monitoring and maintaining the Work consistent with all Sensia or third-party provided instructions, warnings, recommendations and documentation; and
(6) all other factors affecting the Work that are outside of the direct control of Sensia.
(7) indemnifying Sensia for any claims to the percentage extent directly caused by Buyer’s breach of the obligations listed in section 20(b) above.
(c) Well Conditions; Notification of Hazardous Conditions. Buyer, having custody and control of the well and superior knowledge of the conditions in and surrounding it, shall provide Sensia with all necessary information to enable Sensia to perform its services safely and efficiently. Sensia’s equipment is designed to operate under conditions normally encountered in the well bore; however, if hazardous or unusual conditions exist, Buyer shall notify Sensia in advance and make special arrangements for servicing such wells.
21. QUALITY, INSPECTIONS AND TESTING.
(a) Sensia maintains ISO 9001-2015 certified quality systems globally at its major production facilities.
(b) Unless otherwise agreed in the agreed scope of supply, Buyer inspection and testing prior to delivery will be limited to witnessing Sensia’s standard factory tests of the Work or Products on the date scheduled by Sensia. All such tests will be subject to reasonable advance notice and may be subject to additional charges.
22. GOVERNMENT CLAUSES AND CONTRACTS. No government contract clauses, specification, or regulations apply to the Work, Products, or otherwise to this Agreement except to the extent agreed in writing by Sensia.
23. EXPORT CONTROL. Buyer acknowledges that the products, software, services and Buyer Service-Compatible Application(s) may be subject to various export controls and regulations. Buyer agrees to comply with all applicable export and re-export laws and regulations, embargoes and sanctions including, but not limited to, those of the United States (collectively the “Export Laws”), and represents and warrants that all services provided hereunder, and any derivatives thereof will not be: (i) used, downloaded, exported, re-exported or transferred, directly or indirectly, contrary to the Export Laws; (ii) used for any purpose prohibited by the export Laws, including but not limited to, the design, development, manufacture or production of nuclear, missile, chemical or biological weapons; and/or (iii) delivered to persons/entities otherwise ineligible to acquire or use the products or services provided hereunder. Buyer represents and warrants that they are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, and are not owned 50% or more or controlled by such a party, including but not limited to the lists maintained by the United Nations Security Council, the U.S. Government (e.g. the U.S. Department of Treasury’s Specially designated Nationals list and Foreign Sanctions Evader list, and the U.S. Department of Commerce’s Entity List), the European Union or its member states, or other applicable government authority. Buyer further warrants that no sanctioned or blocked individual will be involved in the work envisioned under this agreement, including negotiations, contracting, or any other transaction, and shall advise Sensia immediately in the event an ownership or other change would violate any term in this section, in which case Sensia shall be relieved from any further responsibilities under this agreement. Buyer understands that certain functionality of Software, such as encryption or authentication, may be subject to use, import or export restrictions in the event that Buyer transfers the Software from country of delivery, and Buyer is responsible for complying with any such applicable restrictions. Buyer shall be responsible for procuring all required government authorization for any subsequent export, import or use of the Service and any Buyer Service-Compatible Application(s) utilized by Buyer. Sensia will not comply with boycott related requests except to the extent permitted by U.S. law and then only at Sensia’s discretion.
24. ASSIGNMENT. This Agreement may not be assigned in whole or in part by either party without the written consent of the other. However, consent will not be required for internal transfers and assignments between party and its parent company, subsidiaries, or affiliates as part of a consolidation, merger, or any other form of corporate reorganization.
25. EMPLOYEE SOLICITATION. During the term of this Agreement and for 12 months following its termination, Buyer agrees that if it hires any employee of Sensia with whom the Buyer has had contact as a result of this Agreement, it will pay Sensia 50% of the hired Sensia employee’s annual salary.
26. INDEPENDENT CONTRACTORS. The parties at all times will be independent. Neither party is an employee, joint venturer, agent or partner of the other; neither party is authorized to assume or create any obligations or liabilities, express or implied, on behalf of, or in the name of the other. The employees, methods, facilities, and equipment of each party at all times will be under the exclusive direction and control of that party.
27. DISPUTES. The parties will attempt in good faith to promptly resolve any dispute by negotiations between representatives who have authority to settle the dispute. Any dispute not resolved by negotiation may then be submitted to a court of competent jurisdiction in accordance with the terms provided in this Agreement. These procedures are the exclusive procedures for the resolution of disputes between the parties.
28. GOVERNING LAW AND FORUM. This Agreement and all disputes arising under it will be governed by and interpreted in accordance with the internal laws and will be subject to the exclusive jurisdiction of the courts of the state, province, or other governmental jurisdiction in which Sensia’s principal place of business resides but specifically excluding the provisions of the 1980 UN Convention on Contracts for the International Sales of Goods.
(a) During the term of this Agreement and for a period of three years thereafter, each party will maintain in strict confidence all technical and business data and information disclosed by one party to the other that is marked "Confidential” and will not use or reveal such information without the prior written authorization of the other.
(b) “Recipient” and “Discloser” shall refer to Buyer and Sensia in their respective roles as both recipient and discloser of Confidential Information under this Agreement.
(c) The obligations of confidentiality and non-use will not apply to information (i) that is published or becomes part of the public domain other than by means of a breach of this Agreement; (ii) that the Recipient can prove by written documentation was known to it prior to disclosure by the Discloser; (iii) that the Recipient subsequently rightfully receives from a third party without an obligation of confidentiality; (iv) that the Discloser discloses to a third party on a non-confidential basis; or (v) that was independently developed by the Recipient.
(d) The Recipient shall not use or disclose any Confidential information, except as expressly authorized by this Agreement, and shall protect all such Confidential information using the same degree of care which Recipient uses with respect to its own similar proprietary information, but in no event with safeguards less than a reasonably prudent business would exercise under similar circumstances. Recipient shall take prompt and appropriate action to prevent unauthorized use or disclosure of the Confidential Information.
(e) If any Confidential information must be disclosed to any third party by reason of legal, accounting or regulatory requirements beyond the reasonable control of the Recipient, the Recipient shall promptly notify the Discloser of the order or request and permit the Discloser (at its own expense) to seek an appropriate protective order.
30. SEVERABILITY. If a provision of this Agreement is found unenforceable by law, the remainder of this Agreement shall continue in full force and effect. A delay or failure in enforcing any right or remedy under this Agreement shall not prejudice or operate to waive that right or remedy.
31. COUNTERPARTS. This Agreement may be executed in multiple counterparts.
32. NOTICE. Written notice will be deemed to have been given when the notifying party delivers such notice to the other party or has sent such notice to the other party by certified or registered mail or facsimile (with confirming letter to follow), directed as follows (unless written notice of a change of address has been given in accordance with this paragraph):
With copy to the Office of General Counsel
200 Westlake Park Blvd., Ste. 1400
Houston, TX 77079 USA
33. PUBLICITY. Buyer agrees that Sensia may disclose in the ordinary course of business buyer’s name and logo on the Sensia’s Buyer list and website. For the work performed pursuant to this agreement, Buyer consents to Sensia’s desire to publicize the award of this Agreement by creating a brief success story identifying the type of work performed, the Sensia products and services used, location, industry and Buyer’s name for marketing purposes only.
34. LANGUAGE. The parties acknowledge that they have required that the agreement evidenced hereby be drawn up in English. In the event of a conflict between the English and other language versions, the English version will prevail.
35. EXECUTION. Buyer may accept this Agreement by either signing this Agreement or sending Sensia a purchase order explicitly referencing on its face this Agreement (e.g., “This order is placed in accordance with Sensia proposal number ____________dated_____________ and the terms and conditions included therein” or, simply, “Per Sensia proposal number__________ and its terms and conditions)”.