HomeMy WebLinkAboutC2024-058 - 3/19/2024 - Approved D6LXC30CHP Centrifuge
Service & Maintenance Agreement
This Service and Maintenance Agreement, dated as of April 1, 2024, between ANDRITZ Separation
La (Supplier) having its principal office at 1010 Commercial Blvd. South.Arlington. Texas 76001 and
City of Corpus Christi (Owner) having its principal office at 1201 Leopard St., Corpus Christi, Texas
78401-1300,for the benefit of the Owner's Broadway Wastewater Treatment Plant located at 801 Resaca
Street Corpus Christi. Texas 78401-1300
In consideration of the mutual covenants herein contained, Supplier and Owner hereby agree to
enter into an extended Service & Maintenance Agreement for a period of 3 years. This Agreement
incorporates the attached Exhibits 1, 2, 3 and 4.
Article 1. Scope of Work
Owner's supplied guidelines are attached (Exhibit 1). Supplier agrees to provide a Factory
Technician to conduct service & maintenance on the Owner's Centrifuge based on the attached
Scope of Work (Exhibit 2) and Maintenance Schedule (Exhibit 3).
Article 2. Labor, Tools and Supplies
Owner is responsible to provide additional labor, as required, and any specialized tools and lubrication
fixtures. City staff will operate overhead crane if needed, with prior approval, to provide suitable lifting
assembly when necessary for lifting components. W
Article 3. Manufacturer Service Contact
Supplier maintains standard business hours of 8:00 AM to 5:00 PM CST. After business hour service is
provided 24 hours/day by dialing 1-817-465-5611. After hours calls are distributed to on-call individuals
that will respond via phone to help assess service requirements and ship parts.
Article 4. Service Reports
At the completion of each visit, the technician will submit a report covering in detail the recommended
repairs, if any additional parts are required and any recommendations or observations that require
future service by the Owner. Owner will be responsible to sign and date report acknowledging that
he/she understands the service provided and is aware of potential service issues. A formal service
report will be supplied to Owner within 10 working days of service.
Article 5. Safety Requirements
Supplier provides all technicians with basic safety equipment such as steel toe boots, safety glasses,
hardhat and gloves. Owner is responsible to provide a safe working area and notify Supplier of any
additional safety requirements prior to servicing equipment. If the environment is determined to be
unsafe, it is the Owners responsibility to correct prior to any equipment servicing or to provide
specialized safety equipment and applicable training.
SCANNED
A
Article 6. Contract Renewal
At the expiration of the Agreement, the Owner and Supplier can mutually agree in writing to
renew said Agreement.
Article 7. Terms and Conditions of Sale
The attached (Exhibit 4), Andritz Separation Inc. Terms and Conditions of Sale, shall apply to this
Agreement.
Article 8. Sales and Use Tax
All applicable sales and use taxes are to be paid by the Owner direct to the applicable state tax
authority, unless a Tax Exemption Certificate is provided to the Supplier.
Article 9. Agreement Offering
Supplier offers this Agreement for a lump sum price of$211,776.33 to be paid in three (3) yearly
installments of$70,592.11. Payment is due prior to first visit and will initiate contract start date; annual
payment is due 30 calendar days from invoice date. W
Article 10. Entire Agreement
This Agreement contains the entire and only agreement between the parties with respect to the subject
matter hereof and supersedes all prior oral and written understandings between Owner and Supplier z
concerning the parts and/or services specified herein, and any prior course of dealings or usage of the 3
trade not expressly incorporated herein. W
Article 11. Representations
Each, the Supplier and Owner, represent and warrant that it has duly authorized the execution and
delivery of this agreement; that this agreement as has been executed and delivered by it and that this
agreement constitutes its legal, valid and binding obligation enforceable against it in accordance with its
terms.
Article 12. (Owner)
The continuation of this Agreement after the close of any fiscal year of the Buyer/City, which fiscal year
ends on September 30th annually, is subject to budget approval and appropriations specifically covering
this Agreement as an expenditure in said budget, and it is within the sole discretion of the City's City
Council to determine whether or not to fund this Agreement. The City does not represent that a budget
item providing for this Agreement will be adopted, as that determination is within the City Council's sole
discretion when adopting the budget.
ANDRITZ SEPARATION INC. Page 2 of 11
1010 Commercial Blvd.South
Arlington,Texas 76001
A
IN WITNESS WHEREOF, the parties hereto have executed this Service Agreement on the date first
above written.
Supplier: Andritz Separation Inc. Ow r:
By /2/('-‘----- By PnAWL0 W 1
Name: Robert King Name:
O6Ne- D % OCCi eD �crY
Title: VP Operations TitleLCt0.-Cr 0+1 ► %_ S
Date: 03/19/2024 Date: tk/9 06" Lk
Approv d to form: 41q1,94---,
RED€��A Ht�ERTA Assi tans City Atto
For City Attorney
CITY SECRETARY
1 ..,AUTHUkIL.
sY cOW C L 3- c a
SECtrTAEV
ANDRITZ SEPARATION INC. Page 3 of 11
1010 Commercial Blvd.South
Arlington,Texas 76001
A
EXHIBIT 1
OWNER SUPPLIED GUIDELINES
• (3) D6LXC3OCHP Centrifuge
• Operating xx hours/day,weekly as needed or the period of the Agreement based on the originally
specified process parameters. The centrifuges current approximate hours are listed below, and
this agreement will provide maintenance until 6,000 hours. Operating hours of this agreement
are based on the earlier to occur of 1,000 hours of operation per machine, or one year.
• Serial 131964023 3,200 Hours
• Serial 131964025 3,100 Hours
• Serial 131964024 1,516 Hours
• Process Parameters Per Proposal
o Sludge Type: Waste Activated Sludge
o Feed Solids: Unknown
o Cake Dryness: 20% +/- 2% T.S.
o Hydraulic Loading: 250—280 GPM
o Capture 95% TSS
• The Centrifuge is to be operated by the Owner per the Manufacturer's Operating and
Maintenance Manual W
• Owner is responsible for providing the following during services: W
o Removal of the rotating assembly, and or centrate casing, for service when required. i
o Bowl cart, or pallet, to place the bowl on during 24,000 hour interval. W
o Scroll cart, or pallet, to place the scroll upon once removed from the bowl during the
24,000 hour interval.
o The necessary overhead lifting device for service when required.
o Specialty tools for specified machine.
ANDRITZ SEPARATION INC. Page 4 of 11
1010 Commercial Blvd.South
Arlington,Texas 76001
A
EXHIBIT 2
SCOPE OF WORK BY SUPPLIER AND OWNER
SUPPLIER
Supplier agrees to provide a Factory Technician to conduct service and preventative maintenance on
the supplied Centrifuges. Preventative maintenance is based upon an established level of operating
hours and includes scheduled inspections as well as replacement of wear components. This
Agreement includes wear parts, lubricants and service for the period specified per the Maintenance
Schedule (Exhibit 3).
Replacement parts other than the specific wear components listed in the Maintenance Schedule
(Exhibit 3) of this Agreement are not included.
In addition to the service specified, the Factory Technician will inspect the operation, train operators,
adjust programming and provide system quality control.
OWNER
Owner to provide basic/routine preventive maintenance. Owner to conduct and document at a
minimum:
• Daily Performance Optimization
• Hours of operation i
• Inspections and checking for leaks
• Daily Operator Checks
1) Centrifuge operation, vibration, abnormal noise.
2) Greasing of main bearings every 200 hours.
3) Bearing temperature and noise.
4) Current consumption of drive motor.
5) Check torque readings.
6) Check for grease leaks at cyclo unit.
7) Check product leakage at pillow block.
• Note: City staff will operate overhead crane if needed, with prior approval,to provide a
powered overhead crane for disassembly of the machine. Minimum load is 5 tons.
ANDRITZ is responsible for proper cleaning and gathering of all trash, replacement parts, used oil and grease
as it pertains to the work being performed by ANDRITZ personnel and placing it in a customer designated area
or dumpster. Customer is responsible for coordinating all disposal. All exceptions must be in writing and
confirmed by ANDRITZ prior to the start of a service.
ANDRITZ SEPARATION INC. Page 5 of 11
1010 Commercial Blvd.South
Arlington,Texas 76001
A
EXHIBIT 3
MAINTENANCE SCHEDULE
The Supplier's certified factory trained technician will conduct maintenance per the below listed intervals.
3,000 HOURS QTY(3)
Control/Intervention Consumables/ Parts
General Inspection None
Scroll thrust bearing grease change Bearing grease
Cyclo gearbox oil renewal and plug seal replacement Oil and 2 plug seals
Oil filter replacement 1 oil filter
6,000 HOURS QTY(3)
Control/Intervention Consumables/Parts
General inspection
Crack check Replace if needed. (Additional charges apply)
Corrosion check Replace if needed. (Additional charges apply)
Scroll thrust bearing grease change Bearing grease
a
Cyclo gearbox oil renewal and plug seal replacement Oil and 2 plug seals
W
Oil filter replacement 1 oil filter W
Oil return bellows replacement 2 oil return bellows
z
Lubrication unit oil renewal Oil W
Replace belts 1 set belts
Control parts subjected to abrasion: For tile protected conveyor screws, if tiles
Scroll conveyor wear control are worn 5 to 7 mm, repair scroll before
flight becomes worn
Scraper blade wear(option) Scraper blades and fixing screws (if worn)
Solid output nozzle wear control (option) Turn 1/4 turn if wear exceeds 2 mm
Watertight disks wear control (option) Disks, two parts (replace before support
Sediment casing wear control (projection zone) wear)
Protection plate (if wear exceeds 0.25 in,
Sedimentation control in canals (for co-current models). plan for weld repairs)
Sedimentation generally occurs on the inside of the canals up to If sedimentation hinders evacuation of the
the weir plate openings on the bowl plate. This sedimentation clarified liquid, clean or modify the weir
does not usually hinder evacuation of the clarified liquid. plate level to decrease sediment levels.
ANDRITZ SEPARATION INC. Page 6 of 11
1010 Commercial Blvd.South
Arlington,Texas 76001
A
EXHIBIT 3
MAINTENANCE SCHEDULE
Exclusions:
Replacement parts other than the specific wear components listed in the Maintenance Schedule (Exhibit 3) of
this Agreement are not included.
Electrical components replacement cost is not included as part of the service agreement. Andritz technicians will
assist in establishing required replacement components, installation and programming as
required.
U,
W
U
U
U)
0
W
W
W
z
2
W
ANDRITZ SEPARATION INC. Page 7 of 11
1010 Commercial Blvd.South
Arlington,Texas 76001
EXHIBIT 4
TERMS AND CONDITIONS OF SALE AND/OR SERVICE
1. TERMS APPLICABLE
(a)These Terms and Conditions of Sale and/or Service are the only terms which govern the sale of the products,equipment,or parts and/or the provision of services("Products"and"Services")
pursuant to the quotation or acknowledgement of the Andritz entity supplying the same("Seller")or Buyer's purchase order or other written document issued by Buyer.These Terms and
Conditions of Sale and/or Service control,supersede and replace any and all other additional and/or different terms and conditions of Buyer,and Seller hereby objects to and rejects all such
terms and conditions of Buyer without further notification,except to the extent Seller expressly agrees to such conditions in writing.Buyer's authorization for Seller to commence work under the
Agreement or Buyer's acceptance of delivery of or payment for any Products or Services covered by this Agreement,in whole or in part,shall be deemed Buyer's acceptance of these Terms and
Conditions of Sale and/or Service.The term"Agreement"as used herein means(1)these Terms and Conditions of Sale and/or Service,(2)Seller's quotation or acknowledgment together with
any attachment thereto and any documents expressly incorporated by reference,and(3)Buyer's purchase order or other written document issued by Buyer,together with any attachment thereto
and any documents expressly incorporated by reference(but excluding any Buyer terms and conditions attached thereto or incorporated therein by reference).In the event of a conflict between
any documents forming the Agreement,such documents shall be construed in the above-listed order of precedence.
(b)Prior to Buyer's acceptance of any Seller quotation in which these Terms and Conditions of Sale and/or Service are incorporated,in the event that the introduction of new tariffs,levies,duties,
taxes,regulation,or any type of legislation by a domestic or foreign government has the effect of increasing the price of the quoted Products and/or Services,Seller reserves its right to adjust its
quoted price in order to reflect these increases in cost.Nothing in this document,or any of the applicable contractual documentation shall be construed as a waiver of this right
2. DELIVERY OR PERFORMANCE;RISK OF LOSS AND TITLE
(a) Delivery or performance dates are good faith estimates and do not mean that°time is of the essence." Buyer's failure to promptly make advance or interim payments,supply technical
information,drawings and approvals will result in a commensurate delay in delivery or performance.
(b) Upon and after delivery,risk of loss or damage to the Products shall be Buyer's. Delivery of the Products hereunder will be made on the terms agreed to by the parties as set forth in this
Agreement,according to INCOTERMS 2020. If no delivery term is agreed elsewhere in the Agreement,delivery of the Products will be made FOB destination.Title to the Products shall transfer
to Buyer upon final payment therefor.
3. WARRANTY
(a) Product Warranty. Seller warrants to Buyer that the Products manufactured by it will be delivered free from defects in material and workmanship. This warranty shall commence upon
delivery of the Products and shall expire on the earlier to occur of 12 months from initial operation of the Products and 18 months from delivery thereof(the"Warranty Period"). If during the
Warranty Period Buyer discovers a defect in material or workmanship of a Product and gives Seller written notice thereof within 10 days of such discovery,Seller will,at its option,either deliver
to Buyer,on the same terms as the original delivery was made,according to INCOTERMS 2020,a replacement part or repair the defect in place. Any repair or replacement part furnished
pursuant to this warranty are warranted against defects in material and workmanship for one period of 12 months from completion of such repair or replacement,with no further extension.Seller
will have no warranty obligations for the Products under this Paragraph 3(a):(i)if the Products have not been stored,installed,operated and maintained in accordance with generally approved
industry practice and with Seller's specific written instructions;(ii)if the Products are used in connection with any mixture or substance or operating condition other than that for which they were
designed;(iii)if Buyer fails to give Seller such written 10 day notice;(iv)if the Products are repaired by someone other than Seller or have been intentionally or accidentally damaged;(v)for
corrosion,erosion,ordinary wear and tear or in respect of any parts which by their nature are exposed to severe wear and tear or are considered expendable;or(vi)for expenses incurred for
work in connection with the removal of the defective articles and reinstallation following repair or replacement
b) Services Warranty. Seller warrants to Buyer that the Services performed will be free from defects in workmanship and will conform to any mutually agreed upon specifications. If any
failure to meet this warranty appears within 12 months from the date of completion of the Services,on the condition that Seller be promptly notified in writing thereof,Seller as its sole obligation
for breach of this warranty will correct the failure by re-performing any defective portion of the Services furnished. Seller does not warrant the accuracy of,or performance results of,any
conclusions or recommendations provided,nor that any desired objective will result from the Services provided and Seller shall not be liable for any loss of use or any production losses
whatsoever.
(c) THE EXPRESS WARRANTIES SELLER MAKES IN THIS PARAGRAPH 3 ARE THE ONLY WARRANTIES IT WILL MAKE. THERE ARE NO OTHER WARRANTIES,WHETHER
STATUTORY,ORAL,EXPRESS OR IMPLIED. IN PARTICULAR,THERE ARE NO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
(d) The remedies provided in Paragraphs 3(a)and 3(b)are Buyer's exclusive remedy for breach of warranty.
(e) With respect to any Product or part thereof not manufactured by Seller,Seller shall pass on to Buyer only those warranties made to Seller by the manufacturer of such Product or part
which are capable of being so passed on.
4. LIMITATION OF LIABILITY
Notwithstanding any other provision in this Agreement,the following limitations of liability shall apply:
(a) In no event,whether based on contract,tort(including negligence),strict liability or otherwise,shall Seller,its officers,directors,employees,subcontractors,suppliers or affiliated companies
be liable for loss of profits,revenue or business opportunity,loss by reason of shutdown of facilities or inability to operate any facility at full capacity,or cost of obtaining other means for performing
the functions performed by the Products or Software,loss of future contracts,claims of customers,cost of money or loss of use of capital,in each case whether or not foreseeable,or for any
indirect,special,incidental or consequential damages of any nature resulting from,arising out of or connected with the Products,Services,Software or this Agreement or from the performance
or breath hereof.
(b) The aggregate liability of Seller,its officers,directors,employees,subcontractors,suppliers or affiliated companies,for all claims of any kind for any loss,damage,or expense resulting
from,arising out of or connected with the Products,Services,Software or this Agreement or from the performance or breach hereof,together with the cost of performing make good obligations
to pass performance tests,if applicable,shall in no event exceed the Agreement price.
(c) The limitations and exclusions of liability set forth in this Paragraph 4 shall take precedence over any other provision of this Agreement and shall apply whether the claim of liability is based
on contract,warranty,tort(including negligence),strict liability,indemnity,or otherwise.The remedies provided in this Agreement are Buyer's exclusive remedies.
(d) All liability of Seller,its officers,directors,employees,subcontractors,suppliers or affiliated companies,resulting from,arising out of or connected with the Products,Services or this
Agreement or from the performance or breach hereof shall terminate on the third anniversary of the date of this Agreement.
(e) In no event shall Seller be liable for any loss or damage whatsoever arising from its failure to discover or repair latent defects or defects inherent in the design of goods serviced(unless
such discovery or repair is normally discoverable by tests expressly specified in the scope of work under this Agreement)or caused by the use of goods by the Buyer against the advice of Seller.
If Seller furnishes Buyer with advice or assistance concerning any products or systems that is not required pursuant to this Agreement,the furnishing of such advice or assistance will not subject
Seller to any liability whether in contract,indemnity,warranty,tort(including negligence),strict liability or otherwise.
5. CHANGES,DELETIONS AND EXTRA WORK.
Seller will not be required to make changes in the Products or Services unless Buyer and Seller have executed a written change order for such change. Any such change order will include an
appropriate adjustment to the Agreement price and/or schedule.If the change impairs Seller's ability to satisfy any of its obligations to Buyer,the change order will include appropriate modifications
to this Agreement.Seller shall be entitled to a change order adjusting the Agreement price,schedule and/or any affected obligations of Seller if after the effective date of this Agreement(a)a
change in applicable law,tariffs,levies,duties,taxes,regulations or ordinances or(b)any act or omission of Buyer or any other party for whom Buyer is responsible,or any error or change in
Buyer-provided information should require a change in the Products or Services or cause an increase in the cost or change in the schedule to supply the Products or Services.
6. TAXES
Andritz Terms and Conditions—Sale and/or Service(November 2020)
Seller's prices do not include any sales,use,exdse or other taxes. In addition to the price specified herein,the amount of any present or future sales,use,excise or other tax applicable to the
sale or use of the Products,Software or Services shall be billed to and paid by Buyer unless Buyer provides to Seller a tax-exemption certificate acceptable to the relevant taxing authorities.
7. SECURITY INTEREST—Reserved.
8. SET OFF
Neither Buyer nor any of its affiliates shall have any right to set off claims against Seller or any of its affiliates for amounts owed under this Agreement or otherwise.
9. PATENTS
Unless the Products or any part thereof are designed to Buyer's specifications or instructions and provided the Product or any part thereof is not used in any manner other than as specified or
approved by Seller in writing or modified by Buyer without the written consent of Seller,(i)Seller shall defend against claims made in a suit or proceeding brought against Buyer by an unaffiliated
third party that any Product infringes a device claim of a patent issued as of the effective date of this Agreement in the country in which the Product will be operated,and limited to the field of the
specific Products provided under this Agreement;provided Seller is notified promptly in writing and given the necessary authority,information and assistance for the defense of such claims;(ii)
Seller shall satisfy any judgment(after all appeals)for damages entered against Buyer on such claims so long as such damages are not attributable to willful conduct or sanctioned litigation
conduct;and(iii)if such judgment enjoins Buyer from using any Product or a part thereof,then Seller will,at its option:(a)obtain for Buyer the right to continue using such Product or part;(b)
eliminate the infringement by replacing or modifying all or part of the Products;or(c)take back such Product or part and refund to Buyer all payments on the Agreement price that Seller has
received for such Product or part. The foregoing states Seller's entire liability for patent infringement by any Product or part thereof.
10. SOFTWARE LICENSE,WARRANTY,FEES
If Buyer and Seller have not entered into a separate license agreement,the following Software Terms and Conditions apply to any embedded software produced by Seller and furnished by Seller
hereunder:
(a) The Software,as described in the Agreement("Software"),and all written materials or graphic files that are fixed in any tangible medium and that relate to and support the Software
("Documentation"),and all present and future worldwide copyrights,trademarks,trade secrets,patents,patent applications,mask work rights,moral rights,contract rights,and other proprietary
rights recognized by the laws of any country inherent therein,including all changes and improvements requested or suggested by Buyer in the support and maintenance of the Software are the
exclusive property of Seller("Seller's Intellectual Property Rights"). All rights in and to the Software not expressly granted to Buyer in the Agreement are reserved by Seller. Nothing in this
Agreement will be deemed to grant,by implication,estoppel,or otherwise,a license under any of Seller's existing or future patents.Software will not include any upgrades,new versions,releases,
enhancements,or updates to the Software,unless agreed to by Seller in writing and at its sole discretion. To the extent any upgrades,new versions,releases,enhancements,or updates to the
Software are provided by Seller,the term"Software"shall be deemed to indude such upgrades,new versions or releases,enhancements or updates. To the extent any ownership right arises
in Buyer with respect to the above,Buyer hereby assigns all of its right,title,and interest in and to any intellectual property embodied in in the Seller's Intellectual Property Rights,including
enforcement rights,to Seller without the payment of any additional consideration thereof either to Buyer,or its employees,agents,or customers and agrees to execute any documents Seller
deems necessary to effect such assignment.
(b) Seller hereby grants to Buyer a non-exdusive,non-transferable,non-sub-licensable,revocable license to install,run,and use the Software,and any modifications made by Seller thereto
only in connection with configuration of the Products and operating system for which the Software is ordered hereunder,and for the end-use purpose stated in the Documentation. Buyer agrees
that neither it nor any third party shall modify,reverse engineer,decompile or reproduce the Software,except Buyer may create a single copy for backup or archival purposes in accordance with
the Documentation(the"Copy"). Buyer's license to use the Software and the Copy of such Software shall terminate upon any breach of this Agreement by Buyer. All copies of the Software,
including the Copy,are the property of Seller,and all copies for which the license is terminated shall be returned to Seller,or deleted from Buyer's computer systems,with written confirmation
after termination.
(c) Seller warrants that,on the date of shipment of the Software or the Products containing the Software to Buyer:(1)the Software media contain a true and correct copy of the Software and
are free from material defects;(2)Seller has the right to grant the license hereunder,and(3)the Software will function substantially in accordance with the related Seller operating documentation.
In no event does Seller warrant that the Software is error free or that Buyer will be able to operate the Software without impairments or interruptions. In addition,due to the continual development
of new techniques for intruding upon and attacking networks,Seller does not warrant that the Software or any equipment,system,or network on which the Software is used will be free of
vulnerability to intrusion or attack.
(d) If within 12 months from the date of delivery of the Products containing the Software,Buyer discovers that the Software is not as warranted above and notifies Seller in writing prior to the
end of such 12 month period,and if Seller determines that it cannot or will not correct the nonconformity,Buyer's and Buyer's Seller-authorized transferee's exclusive remedies,at Seller's option,
are:(1)replacement of the nonconforming Software;or(2)termination of this license and a refund of a pro rata share of the Agreement price or license fee paid.
(e) If any infringement claims are made against Buyer arising out of Buyer's use of the Software in a manner specified by Seller,Seller shall:(i)defend against any claim in a suitor proceeding
brought by an unaffiliated third party against Buyer that the Software violates a registered copyright or a confidentiality agreement to which Seller was a party,provided that Seller is notified
promptly in writing and given the necessary authority,information and assistance for the defense and settlement of such claims(including the sole authority to select counsel and remove the
Software or stop accused infringing usage);(ii)Seller shall satisfy a final judgment(after all appeals)for damages entered against Buyer for such claims,so long as such damages are not
attributable to willful conduct or sanctioned litigation conduct;and(iii)if such judgment enjoins Buyer from using the Software,Seller may at its option:(a)obtain for Buyer the right to continue
using such Software;(b)eliminate the infringement by modifying the Software or replacing it with a functional equivalent(in which case,Buyer shall immediately stop use of the allegedly infringing
Software),or(c)take back such Software and refund to Buyer all payments on the Agreement price that Seller has received. However,Seller's obligations under this Paragraph 10 shall not
apply to the extent that the claim or adverse final judgment relates to:(1)Buyer's running of the Software after being notified to discontinue;(2)non-Seller software,products,data or processes;
(3)Buyer's alteration of the Software;(4)Buyer's distribution of the Software to,or its use for the benefit of,any third party not approved in writing by Seller;or(5)Buyer's acquisition of confidential
information(a)through improper means;(b)under circumstances giving rise to a duty to maintain its secrecy or limit its use;or(c)from a third party who owed to the party asserting the claim a
duty to maintain the secrecy or limit the use of the confidential information. Buyer will reimburse Seller for any costs or damages that result from actions 1 to 5. THE FOREGOING PROVISIONS
OF THIS SECTION 10(e)STATE THE ENTIRE LIABILITY AND OBLIGATIONS OF SELLER AND THE EXCLUSIVE REMEDY OF BUYER,WITH RESPECT TO ANY VIOLATION OR
INFRINGEMENT OF ANY PROPRIETARY RIGHTS UNDER SECTION 10,INCLUDING BUT NOT LIMITED TO PATENTS AND COPYRIGHTS,BY THE SOFTWARE OR ANY PART
THEREOF.
(f) This warranty set forth in subparagraph(c)above shall only apply when: (1)the Software is not modified by anyone other than Seller or its agents authorized in writing;(2)there is no
modification in the Products in which the Software is installed by anyone other than Seller or its agents authorized in writing;(3)the Products are in good operating order and installed in a
suitable operating environment;(4)the nonconformity is not caused by Buyer or a third party;(5)Buyer promptly notifies Seller in writing,within the period of time set forth in subparagraph(c)
above,of the nonconformity;and(6)all fees for the Software due to Seller have been timely paid. SELLER HEREBY DISCLAIMS ALL OTHER WARRANTIES,EXPRESS OR IMPLIED,WITH
REGARD TO THE SOFTWARE,INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY,FITNESS FOR A PARTICULAR PURPOSE,COURSE OF DEALING
AND USAGE OF TRADE.
(g) Buyer and its successors are limited to the remedies specified in this Paragraph 10.
(h) Any subsequent modifications or enhancements to the Software made by Seller are,at Seller's option,subject to a fee.
11. SITE RISKS
(a) Site Conditions.The parties acknowledge and agree that as to conditions at the project site,Seller is relying upon information provided by Buyer.If Seller becomes aware of any subsurface,
concealed,or differing condition,environmental hazard or violation of any environmental law or regulation,Seller will immediately suspend performance of the work in the affected area and notify
Buyer.Buyer acknowledges that it will assume the risk of any increased costs and changes to the schedule that may result from such conditions.If Buyer does not immediately remediate such
conditions,Seller may either suspend performance of all work or terminate this Agreement.
(b) Environmental Remediation. Buyer acknowledges that Seller is not an expert in environmental remediation and shall not be directed by change order or otherwise to perform any
Andrih Terms and Condibons—Sale and/or Service(November 2020)
environmental remediation as part of the Services,including but not limited to asbestos and lead paint removal.If any environmental remediation becomes necessary,Buyer will contract directly
with a qualified third party to perform such work.
12. TERMINATION
(a) Buyer may terminate this Agreement upon breach by Seller of a material obligation hereunder and Seller's failure to cure,or to commence a cure of,such breach within a reasonable period
of time(but not less than 30 days)following written receipt of notice of the same from Buyer.
(b) Buyer may only terminate this Agreement for Buyer's convenience upon written notice to Seller and upon payment to Seller of Seller's termination charges,which shall be specified to Buyer
and shall take into account among other things expenses(direct and indirect)incurred and commitments already made by Seller,overhead,and an appropriate profit. In case of such termination,
the licenses granted in Paragraphs 10 and 13 hereof shall terminate.
(c) Seller shall have the right to suspend and/or terminate its obligations under this Agreement if payment is not received within 30 days of due date. In the event of the bankruptcy or insolvency
of Buyer or in the event of any bankruptcy or insolvency proceeding brought by or against Buyer,Seller shall be entitled to terminate any order outstanding at any time during the period allowed
for filing claims against the estate and shall receive reimbursement for its cancellation charges.
13. INTELLECTUAL PROPERTY;CONFIDENTIALITY
(a) All intellectual property embodied in the Products,Services and Software provided to Buyer is the property of Seller,and any intellectual property developed,at least in part,by Seller under
this Agreement is and remains the sole and exclusive property of Seller.Further,Seller shall have the right to collect and use data generated by the Products,Software or Services supplied
hereunder.
(b) Buyer acknowledges that the information that Seller submits to Buyer in connection with this Agreement and the performance hereof is Seller's confidential and proprietary information.
Buyer agrees not to disclose such information to third parties without Seller's prior written consent. Seller grants to Buyer a non-exclusive,royalty-free,non-transferrable license to use Seller's
confidential and proprietary information for the purpose of the installation,operation,maintenance and repair of the Products that are the subject of this Agreement only;provided,however, that
Buyer further agrees not to,and not to permit any third party to,analyze,measure the properties of,or otherwise reverse engineer the Products or any parts thereof,fabricate the Products or
any parts thereof from Seller's drawings or to use the drawings other than in connection with this Agreement All copies of Seller's confidential and proprietary information shall remain Seller's
property and may be reclaimed by Seller at any time in the event Buyer is in breach of its obligations under this Paragraph 13,or in case of Buyer's termination pursuant to Paragraph 12(b). The
parties acknowledge that the City is a Texas governmental entity subject to the Texas Public Information Act(the"Act"). Should City receive a request for disclosure of Confidential Information
pursuant to the Act,City will promptly provide Contractor notice of such request in accordance with Section 552.305 of the Texas Government Code so that Contractor may avail itself of any
opportunities to establish reasons why the information should be withheld prior to disclosing such Confidential Information.The burden of establishing the applicability of exceptions to disclosure
of Confidential Information under the Act resides with Contractor.Should Contractor be unable to establish a valid exception from disclosure or exclusion from the Act or protective order,then
City may release the information,solely to the extent necessary to comply with the Act.
14. END USER
If Buyer is not the end user of the Products sold hereunder(the"End User),then Buyer will use its best efforts to obtain the End User's written consent to be bound to Seller by the provisions
hereof. .
15. FORCE MAJEURE
(a) Force Maieure Defined.For the purpose of this Agreement"Force Majeure"will mean all events,whether or not foreseeable,beyond the reasonable control of either party which affect the
performance of this Agreement,including,without limitation,acts of God,acts or advisories of governmental or quasi-governmental authorities,laws or regulations,strikes,lockouts or other
industrial disturbances,acts of public enemy,wars,insurrections,riots,epidemics,pandemics,outbreaks of infectious disease or other threats to public health,lightning,earthquakes,fires,
storms,severe weather,floods,sabotage,delays in transportation,rejection of main forgings and castings,lack of available shipping by land,sea or air,lack of dock lighterage or loading or
unloading facilities,inability to obtain labor or materials from usual sources,serious accidents involving the work of suppliers or sub-suppliers,thefts and explosions.
(b) Suspension of Obligations.If either Buyer or Seller is unable to carry out its obligations under this Agreement due to Force Majeure,other than the obligation to make payments due
hereunder,and the party affected promptly notifies the other of such delay,then all obligations that are affected by Force Majeure will be suspended or reduced for the period of Force Majeure
and for such additional time as is required to resume the performance of its obligations,and the delivery schedule will be adjusted to account for the delay.
(c) Strikes On-Site. Notwithstanding anything herein to the contrary,in the event a strike,lockout,blockage,slowdown,labor,union or other industrial disturbance at Buyer's site affects,
delays,disrupts or prevents Seller's performance of this Agreement,Seller shall be entitled to a change order containing an appropriate adjustment in the Agreement price and delivery schedule.
16. INDEMNIFICATION AND INSURANCE
(a) Indemnification. Seller agrees to defend and indemnify Buyer from and against any third-party claim for bodily injury or damage to tangible property("Loss")arising in connection with the
Products or the Services provided by Seller hereunder,but only to the extent such Loss has been caused by the negligence,willful misconduct or other legal fault("Fault")of Seller. Buyer shall
promptly tender the defense of any such third-party claim to Seller. Seller shall be entitled to control the defense and resolution of such claim,provided that Buyer shall be entitled to be
represented in the matter by counsel of its choosing at Buyer's sole expense. Where such Loss results from the Fault of both Seller and Buyer or a third party,then Seller's defense and indemnity
obligation shall be limited to the proportion of the Loss that Seller's Fault bears to the total Fault.
(b) Insurance. Seller shall maintain commercial general liability insurance with limits of$2,000,000 per occurrence and in the aggregate covering claims for bodily injury(including death)and
physical property damage arising out of the Products or Services. Seller shall also provide workers'compensation insurance or the like as required by the laws of the jurisdiction where the
Services will be performed,and owned and non-owned auto liability insurance with limits of$1,000,000 combined single limit. Seller will provide a Certificate of Insurance certifying the existence
of such coverages prior to providing services pursuant to the Agreement and,otherwise,upon request
17. EXPORT CONTROL AND ECONOMIC SANCTIONS COMPLIANCE
(a) Buyer recognizes that any Products and Software that are the subject of this Agreement and originate in the U.S.remain subject to U.S.export control and economic sanctions laws
and regulations even after such Products are exported from the U.S.(if applicable),and even though such Products and Software have been purchased in and,if applicable,exported from
Canada. Buyer certifies that such Products and Software will not be diverted,transshipped,re-exported,or otherwise transferred in contravention of any applicable export control and economic
sanctions laws and regulations,nor will it allow the Products or Software to be incorporated into other products or used to make direct products thereof that are exported,re-exported,used,or
transferred in violation of U.S.export control and economic sanctions laws and regulations. Buyer further affirms that such Products and Software will not be used,directly or indirectly,in any
application involving missile technology,nuclear proliferation,or chemical and biological weapons proliferation. Without limiting the foregoing,Buyer will not,nor will it allow third parties to,
export,re-export,or transfer any Products or Software to any person or entity that is the target of U.S.sanctions or is in Crimea,Cuba,Iran,North Korea,or Syria,or any other country or territory
in violation of U.S.sanctions.
(b) Buyer shall be responsible for any breach of this provision by it,and its successors and permitted assigns,as well as its parents,affiliates,employees,officers,directors,partners,
members,shareholders,customers,agents,distributors,resellers,or vendors("Buyer Parties").
(c) Buyer shall,upon request of Seller,promptly provide all information necessary for Seller to ensure compliance with U.S.export control and economic sanctions laws and regulations,
including but not limited to information related to end-users,end-uses,and destination countries.
18. SPECIAL CONDITIONS FOR PRESSURE VESSELS
For installation,repair,or maintenance Services on existing pressure vessels,piping and equipment,the following shall apply:
(a) Unless otherwise agreed and stated in the Agreement,Buyer shall be responsible for.(i)physically disconnecting and isolating vessels and equipment being repaired from existing piping
and electrical power before Seller or any of its subcontractors start the Services,and take adequate precautions that re-connection and resumption of use does not take place until the Services
are completed,and(ii)emptying the vessels and piping and freeing them from any toxic or harmful substances before the Services begin so that the vessels and piping are safe for Services to
begin.Buyer shall maintain the area entirely free of combustible,toxic and asphyxiant substances and provide fire protection service until the Services are completed;
(b) If the Services are on an existing vessel or existing piping,the Buyer is responsible for determining the prior condition of the portion of the vessel or piping not involved in the Services,and
its ability to withstand the Services and any tests that may be necessary;
Andritz Terns and Condi0one—Sale and/or Service(November 2020)
(c) Buyer shall also be responsible for evaluating the effects of prior use of the vessel or piping upon structural adequacy,and the suitability of the vessel or piping for the service intended
when the Services are completed;
(d) Seller has no obligation to provide any inspections or tests,and Buyer takes full responsibility for all necessary inspections and tests,including but not limited to,selection of testing
personnel,type,location,frequency,and severity of any inspections and tests and all test results at any stage of the Services;
(e) Upon request of Seller,Buyer shall provide Seller with the history of the vessel,a statement of the tests to be performed and a statement of the proposed use of the vessel after completion
of the Services,and
(f) If repairs are required:(i)Buyer will provide an Authorized Inspector("AI")who will determine the scope of the Services to be done;(ii)Seller will provide Buyer with a proposed Quality
Control("QC")package specifying the methods and procedures that Seller will follow in performing the Services specified by the Buyer;(iii)the proposed QC package is subject to approval by
the Buyer,and such approval must be provided before Services commence;(iv)after approval of the QC package,the Services shall be done in accordance with the QC package. At the option
of the Al,hold points may be established for inspection during the course of the Services;and(v)upon completion of the Services,the Al shall inspect the Services and provide a signed
acceptance that they have been completed in accordance with the QC package. Such acceptance by the Al shall establish completion of the Services.
19. GENERAL
(a) Seller represents that any Products or parts thereof manufactured by Seller will be produced in compliance with all applicable federal,state and local laws applicable to their manufacture
and in accordance with Seller's engineering standards.Seller shall not be liable for failure of the Products to comply with any other specifications,standards,laws or regulations.
(b) This Agreement shall inure only to the benefit of Buyer and Seller and their respective successors and assigns. Any assignment of this Agreement or any of the rights or obligations
hereunder,by either party without the written consent of the other party shall be void.
(c) This Agreement contains the entire and only agreement between the parties with respect to the subject matter hereof and supersedes all prior oral and written understandings between
Buyer and Seller concerning the Products and/or Services and any prior course of dealings or usage of the trade not expressly incorporated herein.
(d) This Agreement may be modified,supplemented or amended only by a writing signed by an authorized
representative of Seller. Seller's waiver of any breach by Buyer of any terms of this Agreement must also be in writing and any waiver by Seller or failure by Seller to enforce any of the terms
and conditions of this Agreement at any time,shall not affect,limit or waive Seller's right thereafter to enforce and compel strict compliance with every term and condition hereof.
(e) All terms of this Agreement which by their nature should apply after the cancellation,completion or termination of
this Agreement,including,but not limited to,Paragraphs 4,13,17 and 19,shall survive and remain fully enforceable after any cancellation,completion or termination hereof.
(f)(i) If Seller's office is located in the United States,this Agreement and the performance hereof will be governed by and construed according to the laws of the State of Texas,where the services
pursuant to this Agreement will be provided.
(ii) If Seller's office is located in Canada,this Agreement and the performance hereof will be governed by and construed according to the laws of the Province of New Brunswick...
(g)(i) In the circumstances of f(i)above,any controversy or claim arising out of or relating to this Agreement,or the breach hereof,or to the Products or the Services provided pursuant hereto,
shall be definitively settled by arbitration,to the exclusion of courts of law, administered by the American Arbitration Association("AAA")in accordance with its Construction Industry Arbitration
Rules in force at the time this Agreement is signed and to which the parties declare they will adhere(the"AAA Rules"),and judgment on the award rendered by the arbitrator(s)may be entered
in any court having jurisdiction over the party against whom enforcement is sought or having jurisdiction over any of such party's assets. The arbitration shall be conducted in Atlanta,Georgia
by a panel of three members,one of whom will be appointed by each of Buyer and Seller and the third of whom will be the chairman of the panel and will be appointed by mutual agreement of
the two party appointed arbitrators.All arbitrators must be persons who are not employees,agents,or former employees or agents of either party.In the event of failure of the two party appointed
arbitrators to agree within 45 days after submission of the dispute to arbitration upon the appointment of the third arbitrator,the third arbitrator will be appointed by the MA in accordance with
the AAA Rules.In the event that either of Buyer or Seller fails to appoint an arbitrator within 30 days after submission of the dispute to arbitration,such arbitrator,as well as the third arbitrator,
will be appointed by the AAA in accordance with the AAA Rules.
(ii) In the circumstances of f(ii)above,any controversy or claim arising out of or relating to this Agreement,or the breach hereof,or to the Products or the Services provided pursuant hereto,
shall be definitively settled under the auspices of the Canadian Commercial Arbitration Centre("CCAC"),by means of arbitration and to the exdusion of courts of law,in accordance with its
General Commercial Arbitration Rules in force at the time the Agreement is signed and to which the parties declare they will adhere(the"CCAC Rules"),and judgment on the award rendered by
the arbitrator(s)may be entered in any court having jurisdiction over the party against whom enforcement is sought or having jurisdiction over any of such party's assets. The arbitration shall be
conducted in Saint John,New Brunswick by a panel of three arbitrators,one of whom will be appointed by each of Buyer and Seller and the third of whom will be the chairman of the arbitral
tribunal and will be appointed by mutual agreement of the two party-appointed arbitrators.All arbitrators must be persons who are not employees,agents,or former employees or agents of either
party.In the event of failure of the two party-appointed arbitrators to agree within 45 days after submission of the dispute to arbitration upon the appointment of the third arbitrator,the third
arbitrator will be appointed by the CCAC in accordance with the CCAC Rules.In the event that either of Buyer or Seller fails to appoint an arbitrator within 30 days after submission of the dispute
to arbitration,such arbitrator,as well as the third arbitrator,will be appointed by the CCAC in accordance with the CCAC Rules.
(h) In the event this Agreement pertains to the sale of any goods outside the United States or Canada,the parties agree that the United Nations Convention for the International Sale of Goods
shall not apply to this Agreement.
(i)The parties hereto have required that this Agreement be drawn up in English. Les parties aux presentee ont exige que la presente convention soit redigee en anglais.
Andritz Terns and Conditions—Sale and/or Service(November 2020)