Terms and Conditions of Purchased Goods

1. 1. Agreement: This Purchase Order, including these Standard Terms and Conditions of Purchase of Goods  (“Agreement”) constitute the agreement of the Advanced Technology Group Operating LLC (“Buyer”) to  purchase from the Seller provided for on the face of this Agreement (“Seller”) the quantity of goods specified  on the face of this Agreement (“Goods”). BUYER EXPRESSLY OBJECTS TO AND EXPRESSLY  REJECTS ANY PROVISIONS, TERMS, AND CONDITIONS ADDITIONAL TO OR DIFFERENT FROM  THE TERMS OF THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, THOSE PROVIDED FOR  OR CONTAINED IN ANY PRIOR OR LATER QUOTATION, CONFIRMATION, OR  ACKNOWLEDGMENT FROM SELLER, INVOICE FROM SELLER, OR OTHER DOCUMENTS OR  COMMUNICATIONS OF ANY NATURE FROM SELLER. The terms of this Agreement supersede any and  all prior negotiations, dealings, and discussions and constitute the entire agreement between Buyer and Seller  with respect to the Goods. No change, modification, rescission, discharge, or waiver of this Agreement shall  be binding on the parties unless made in writing signed by signed by an authorized representative of such  party. In the event of any inconsistency between the face of this Agreement and these terms and conditions,  the face of this Agreement shall control. No custom, usage of trade, or course of dealing is binding on Buyer  unless agreed to by Buyer in writing. 

 

1. 2. Acceptance: Seller accepts this Agreement, and this Agreement shall be binding upon both parties, at the  time Seller signs this Agreement and returns it to Buyer. Even without Seller signing this Agreement, Seller’s  full or partial performance of this Agreement shall constitute acceptance of this Agreement. Goods shall be  subject to inspection and testing by Buyer upon receipt. 

 

1. 3. Assignment Prohibited: Seller may not assign or delegate its obligations under this Agreement or subcontract  any portion of Seller’s performance under this Agreement without the prior written consent of Buyer. Any  such attempted assignment, delegation or subcontracting shall be void. An assignment shall include a change  in control of Seller, whether by merger, a transfer of equity or assets, consolidation, or otherwise. Seller shall  remain obligated for a permitted subcontractor’s compliance with the terms and conditions of this Agreement  and shall remain primarily liable for the acts and omissions of each such subcontractor. 

 

1. 4. Set-Off: Buyer shall be entitled at all times to set-off any amount owing at any time to Seller from Buyer or  any of its affiliates against any amount payable at any time by Buyer or any of its affiliates to Seller. 

 

1. 5. Termination for Convenience: Buyer may, at any time and upon written notice, terminate this Agreement  in whole or in part regardless of whether Seller is in default hereunder. Such written notice shall state the  extent and the effective date of termination. Upon receipt of such notice, Seller shall take all necessary steps  to mitigate any losses Seller might incur on account of such termination. Upon a termination for convenience  but not due to Seller’s default (which is provided for below), Buyer’s obligations to Seller shall be limited  solely to payment for (a) Goods already shipped to Buyer, (b) completed Goods produced pursuant to Buyer’s unique specifications which cannot be returned to Buyer’s stock for resale and not yet shipped to Buyer, and  (c) the actual costs incurred by Seller that are properly allocable under recognized accounting practices to the  terminated portion of this Agreement (to the extent not covered by (a) and (b) above), including Seller’s obligations to a subcontractor or material supplier to the extent such obligations cannot be cancelled, but  excluding any charge of any nature that may be diverted to other orders. The total payments Buyer is obligated  to make hereunder shall not exceed the price of goods to which termination applies. Seller shall comply with  Buyer’s instructions concerning Goods Seller has procured or manufactured, in whole or in part, but not yet  shipped to Buyer. Buyer shall not be responsible to pay for finished Goods in production or Goods fabricated  or procured by Seller for producing such Goods when such Goods were fabricated or procured by Seller unnecessarily in advance or were produced in a quantity in excess of the quantity of such Goods ordered by  Buyer. Buyer shall not be responsible to pay for Goods are normally carried in inventory by Seller, as  distinguished from Goods specially made to Buyer’s specifications. Termination by Buyer hereunder shall be without prejudice to any claims Buyer may have against Seller. The payment provided under this provision shall constitute Buyer’s only liability in the event that this Agreement is terminated for convenience as provided herein. The foregoing shall not apply to any termination by Buyer on account of Seller’s default or under any of the provisions in the “Termination for Default” clause.

 

1. 6. Termination for Default: Each of the following events shall constitute a default by Seller: (a) Seller’s insolvency or dissolution; (b) any assignment for the benefit of Seller’s creditors; (c) the voluntary or  involuntary filing of a petition, order or other decree in bankruptcy, by or against Seller; (d) the  commencement of any proceeding, under court supervision or otherwise, for liquidation of, reorganization of,  or the composition, extension, arrangement or readjustment of the obligations of Seller or the appointment of  a receiver for Seller; or (e) failure by Seller to comply with any of the provisions of this Agreement or any  representation of Seller in this Agreement is untrue or misleading. Buyer shall have the right to terminate in  whole or in part this Agreement forthwith in the event of any default by Seller. In the event of any such  termination, Buyer, in addition to other rights it may have under applicable law, in equity, or under other terms  of this Agreement, shall have the right (i) to refuse to accept further delivery of Goods, (ii) to return to Seller at Seller’s expense any Goods already delivered and to recover all payments made therefor and for expense  incident thereto, (iii) to recover any advance payments to Seller for undelivered or returned Goods or  unperformed services, and (iv) to purchase Goods elsewhere and charge Seller with any additional costs and  expenses resulting therefrom, including increased purchase price for such replacement goods. Buyer’s right  to return Goods is not affected by assignment by Seller of moneys due or to become due under this Agreement. 

 

1. 7. Changes: Buyer may, at any time upon written notice to Buyer, make changes to the Goods of any nature,  including changes to specifications, quality, quantity, method of delivery and delivery dates. If any such  change materially affects the price or delivery date, Buyer and Seller shall mutually agree upon an equitable  adjustment to the delivery schedule or the price or both. Any claim by Seller for an equitable adjustment under  this clause shall be made as soon as possible, but not later than 10 days after receipt by Seller of the change. Seller shall not suspend performance of this Agreement while Buyer and Seller are negotiating such equitable  adjustment. The agreed upon equitable adjustment shall be reduced to a written change order signed by the  parties.  

 

1. 8. Compliance with Law: Seller warrants that all Goods shipped to Buyer pursuant to this Agreement, and that  Seller’s performance under this Agreement, do and will comply with all applicable laws, statutes, rules,  regulations or orders of the United States government or of any state or political subdivision thereof. If any  of the Goods are purchased for incorporation into products sold under a government contract or subcontract,  the terms required to be inserted or included in this Agreement by that contract or government contract or  subcontract shall be deemed flowed down to and included in this Agreement and are incorporated into this  Agreement by reference. Buyer shall provide Seller with a copy of these provisions upon request. Seller shall  at its expense procure all licenses, permits, authorizations, or other approvals required for Seller’s performance  of this Agreement. Seller acknowledges that this Agreement may be subject to compliance with applicable  United States laws, regulations, and/or orders. These laws, regulations, and orders may include, without  limitation, those that relate to the export of nuclear materials, equipment, software, and technology, such as  the U.S. Department of Energy regulations found in 10 C.F.R. Part 810, the U.S. Nuclear Regulatory  Commission regulations in 10 C.F.R. Part 110, and the U.S. Department of Commerce’s Export  Administration Regulations found in 15 C.F.R. Part 730 et seq., as may be amended (collectively, “Export  Control Laws”). Seller shall comply at all times with the Export Control Laws, and shall not export, reexport,  transfer or retransfer, directly or indirectly, any Confidential Information or other information that is subject  to Export Control Laws, except as permitted by such Export Control Laws. In addition, Seller shall not  disclose or provide access to Confidential Information or other information that is subject to the Export  Control Laws, to any Foreign Nationals. For purposes of this Agreement, “Foreign Nationals” has the meaning  given to such term under applicable law, and includes, without limitation, any person who is neither a U.S.  citizen, a U.S. national, a “Lawful Permanent Resident” (i.e., Green Card holder, 8 USC § 1101(a)(20)), nor  other “Protected Individual” under the Immigration and Naturalization Act (8 USC §1324b(a)(3)) designated  an asylee, refugee, or a temporary resident under amnesty provisions. A Foreign National also means any foreign corporation, business association, partnership, or any other entity or group that is not incorporated to do business in the U.S.

 

1. 9. Indemnity: To the fullest permitted by law, Seller shall indemnify, defend, and hold Buyer harmless from  and against any and all suits, liabilities, losses, damages, costs, claims and expenses (including reasonable  attorneys’ fees and other costs and defenses of defense) (collectively, “Losses”) which Buyer may sustain or  incur, either directly or indirectly, by reason of or arising from the Goods or services furnished hereunder or  (a) in connection with Seller’s breach of this Agreement or any warranty, representation or obligation of Seller  in this Agreement, or (b) in connection with the design, development, manufacture, distribution, sale, use, or  repair of the Goods, whether the claim is based on breach of contract or warranty, negligence, strict liability,  other tort, infringement, or other legal or equitable theory, except to the extent caused by the sole negligence  of Buyer. 

 

1. 10. Waiver: No delay or omission in exercising any right or remedy hereunder shall operate as a waiver thereof  or of any other right or remedy, and no single or partial exercise thereof shall preclude any other or further  exercise hereof or the exercise of any other right or remedy. The rights, powers, elections and remedies of the  parties hereunder are cumulative and in addition to those which the parties have at law or in equity. Byer’s failure to object to any provision contained in any communication from Seller shall not be deemed an  acceptance of such provision or waiver of any provision of this Agreement. 

 

1. 11. Intellectual Property: Seller acknowledges and agrees that Buyer’s patents, trademarks, copyrights, trade  secrets, trade dress, or any other forms of intellectual property are Buyer’s exclusive property and Seller shall  not acquire any rights to the same and hereby disclaims any interest therein. Except as is required to perform  its obligations under this Agreement, Seller shall not use or commercialize any intellectual property of Buyer.  Seller shall not use the name or logo of Buyer in any advertisement, new release, web site, social media, trade  publication or other public statements without Buyer’s prior written consent. Seller agrees to indemnify, hold  harmless and defend Buyer, its directors, officers, agents and employees and customers from and against any  suit, claim or demand alleging patent, trademark, copyright, or other intellectual property infringement or  misappropriation of any trade secret or trade dress arising out of or in connection with this Agreement. If  Buyer so requests, Seller shall defend or settle at Seller’s expense any suit or proceeding against Buyer alleging such infringement or misappropriation. Buyer may assume its own defense or join in the defense of  any action in which it is made a part, in which event the foregoing indemnity and agreement to hold Buyer harmless shall extend to all of Buyer’s costs herein including reasonable attorneys’ fees and litigation costs. 

 

1. 12. Confidentiality: The parties agree that each party will keep confidential all information disclosed to it by the  other party in connection with this Agreement, including data, drawings, blueprints, or specifications, except  to the extent necessary to perform its obligations hereunder. Confidential information shall not include  information that: (a) is or becomes generally available to the public other than as a result of the receiving  party’s breach of this Section; (b) is or becomes available to receiving party on a non-confidential basis from  a third-party source, provided that such third party is not and was not prohibited from disclosing such  information; (c) was in the receiving party’s possession prior to the disclosing party’s disclosure hereunder;  or (d) was or is independently developed by the receiving party without using any confidential information. The parties will disclose confidential information only to those of its employees directly involved in the  performance of this Agreement. Each party agrees that it will protect the confidentiality of confidential  information disclosed to it in connection with this Agreement, with the same degree of care as it uses to protect  its own confidential information, but not less than a reasonable degree of care. Neither party shall, without  the prior written consent of the other party, use or commercialize any portion of the confidential information  of the other party for any purpose other than performing its obligations under this Agreement, or initiate  contacts of any kind with the customers, vendors, or suppliers of the disclosing party, other than in accordance  with this Agreement. The receiving party shall not use any of the disclosing party’s confidential information  in any manner that would constitute a violation of any laws or regulations, including, without limitation, any  export control laws, restrictions on the disclosure of nuclear power reactor technology, Restricted Data and  Sensitive Nuclear Technology (as such terms are defined in 10 CFR Section 810.3), and restrictions on disclosing nuclear technology, Restricted Data and Sensitive Nuclear Technology to restricted countries provided for in 10 CFR Section 810.8(a). The list of such countries is available at http://www.ecfr.gov and is incorporated herein by reference, as such list is modified or supplemented from time to time. Upon completion, cancellation or termination of the Agreement, or upon the request of a party, the other party return or destroy all confidential information, including any copies thereof.

 

1. 13. Delivery: Except as otherwise indicated on the face of this Agreement, all Goods are to be shipped F.O.B.  Destination or 2020 Incoterms Delivery at Place, accompanied by packing slips. In addition to any other  requirements imposed on the Seller by law, Seller shall suitably pack, crate and mark all Goods to prevent  damage and conform to requirements of carriers without additional charge to Buyer. If Seller fails to pack the  Goods in an appropriate manner or to ship in the manner or route that is directed by Buyer, Seller shall  reimburse Buyer for any resulting loss. Delivery shall be made in quantities and at times specified by Buyer  in this Agreement. Risk of loss shall be borne by Seller until delivery to Buyer at Buyer’s designated facility.  Seller shall obtain all necessary export/import licenses and authorizations, and Seller shall assume  responsibility for all fees, costs, tariffs, and expenses associated with getting the Goods ready for delivery,  including but not limited to export/import customs clearance, tariffs, and associated documentation fees and  administrative costs. Buyer may return to Seller at Seller’s expense any Goods shipped to Buyer in advance  of the requested schedule. If Buyer elects to retain any such Goods, the date on which payment therefor is due  shall not be advanced by reason of such early shipment. If any Goods delivered do not conform to all terms  of this Agreement, Buyer may reject such Goods or the entire lot received. Buyer shall obtain Seller’s prior  written consent to partial shipments. If this Agreement requires or authorizes deliveries of Goods in separate  lots, Buyer, if it rejects or cancels one or more separate lots as aforesaid, may also, at its sole election, cancel  any undelivered lots and purchase elsewhere and charge Seller with any resulting losses and expenses  incurred, including increased purchase price. Buyer shall have the right to return all freight-damaged Goods  to Seller at Seller’s expense and receive full credit therefor. If at any time Seller has reason to believe that  deliveries will not be made as scheduled, Seller shall promptly give written notice to Buyer setting forth the  cause and length of the anticipated delay. Seller shall take all commercially reasonable steps, at Seller’s sole  expense, to expedite delivery. In the event of any late delivery, Buyer may, at its option, cancel this Agreement  in whole or in part, and upon Buyer’s request Seller shall reimburse Buyer promptly for any losses, expenses and costs Buyer sustains or incurs on account of the failure of Seller to deliver the Goods as required in this  Agreement. 

 

1. 14. Extra Charges: Buyer shall not be responsible for any extra charges of any kind, including, but not limited  to, taxes of any nature, crating, boxing, storing, packing, returnable containers, loading, unloading, insurance,  or transportation unless separately itemized herein and on any invoices sent. The price includes all applicable  taxes and such taxes shall be itemized on each invoice Seller submits to Buyer. 

 

1. 15. Time is of the Essence; Force Majeure: Time is of the essence with respect to any delivery or performance  dates provided for in this Agreement. Neither party, however, shall be liable for delay caused by an occurrence  beyond its reasonable control, including but not limited to fire, strikes, accidents, acts of God, and delays of  common carriers; provided that the affected party shall promptly give the other party notice of any such event  and the anticipated delay. The party affected by the event shall use commercially reasonable efforts to find  alternative means to perform and to minimize the effects of the delay. However, in the event of any delay due  to such a force majeure event that extends beyond 10 days, Buyer shall have the right to terminate all or any  portion of this Agreement without further liability for the terminated portion. Any extension of time granted  to Seller pursuant hereto shall be Seller’s exclusive remedy for any claim resulting from a delay caused by a  force majeure event. 

 

1. 16. Warranty: Seller warrants that the Goods will conform to the specifications, grade, and quality contained or  specified in this Agreement or other documentation provided to Seller by Buyer, that such Goods will be free  from any defects in design, material and workmanship, that such Goods shall be free of any lien or other claim  of any third party and title to such Goods is unencumbered, and that such Goods and the sale and use of such  Goods do not infringe upon any United States or foreign patents, trademarks, copyrights, trade secrets, trade dress, or any other form of intellectual property. Seller agrees, at Buyer’s option and without prejudice to any other rights Buyer may have, to repair or replace any defective Goods at Seller’s sole expense or reimburse Buyer for its costs of repairing any defective Goods or its costs of replacing defective Goods or its costs incurred because of any delays caused by either repairing or replacing defective Goods. Such warranties shall survive inspection, testing and acceptance. Payment for Goods specified herein shall not constitute an acceptance thereof, but all Goods shall be received subject to Buyer’s inspection and rejection. Defective Goods or Goods not in accordance with Buyer’s specifications, grade or quality shall be held for Buyer’s instructions at Seller’s risk. Buyer’s inspection, acceptance or retention of all or any part of the Goods shall not be deemed to be a waiver of Buyer’s right to cancel or to return all or any portion of the Goods because of failure to conform to this warranty or otherwise to this Agreement, or by reason of defects, latent or patent, to claim a breach of warranty; or to make any claim for damages, including manufacturing costs and cost and expenses of replacing the Goods. The warranty period provided for will apply to replacement or repaired Goods. If any Good is the subject of any claim or allegation of intellectual property infringement, then Seller shall, at its sole cost and expense and without prejudice to any other right or remedy of Buyer, provide a commercially reasonable alternative, including procuring for Buyer and Buyer’s customers the right to continue using the Goods, modifying such Goods so that they are no longer infringing but still of the grade, quality and functionality required by Buyer, or replacing such Goods with non-infringing Goods that meet the grade, quality and functionality required by Buyer.

 

1. 17. Price: If no price is specified herein, charges shall not exceed the lowest of Seller’s standard price or the price  previously quoted or charged to Buyer for goods of like kind and quality. Seller warrants that the prices for  the Goods sold to Buyer under this Agreement are not materially less favorable than those currently extended  to any other customer for the same or like Goods in similar quantities. Seller further warrants that the prices  charged hereunder are in compliance with all applicable government laws rules and regulations. Payment shall  be made by Buyer within thirty (30) days after the later of (a) Buyer’s receipt of an invoice for the Goods or  (b) Buyer’s receipt payment from its customer for such Goods. Any charges prepaid by Seller on behalf of  Buyer must be separately stated on the invoice and supported by appropriate receipts furnished to Buyer. Any  discount period shall be calculated from the date on which Buyer receives an invoice for Goods or the date it  receives such Goods, whichever is later. In cases where a price subject to escalation has been agreed upon, all  claims for price escalation must be received by Buyer within 30 days of final shipment. If Buyer, in good  faith, disputes all or any portion of an invoice, then Buyer shall pay the undisputed portion of the invoice and  shall notify Seller of the amount disputed along with reasonable detail as to the basis for the dispute. The  parties shall then attempt to resolve the dispute as soon as possible with representatives authorized to settle  such dispute. Upon resolution of the dispute, Buyer shall pay the agreed upon amount. Seller shall maintain  complete and accurate records of and supporting documentation for all Goods and payments received therefor  or are otherwise related to Seller’s obligations under this Agreement (“Seller Records”). Seller shall provide  to Buyer (and internal and external auditors, inspectors, regulators, customers and other representatives that  Buyer may designate from time to time) access at reasonable hours to Seller’s personnel, facilities and to  Seller Records and other pertinent information, all to the extent relevant to Seller’s obligation under this  Agreement. Such access shall be provided for the purpose of performing audits and inspections of Seller to  verify the accuracy of the compensation and expenses paid under this Agreement and the accuracy and  completeness of Seller’s invoices. Seller shall provide any assistance reasonably requested by Buyer or its  designee in conducting any such audits. If during any such audit Buyer discovers that Buyer overpaid Seller,  than Buyer’s costs and expenses in conducting such audit shall be paid by Seller and Seller shall reimburse or  credit Buyer for such overpayment.

 

1. 18. Special Dies: If the price to be paid as stated on the face of the Agreement to include special dies, jigs, tools  or patterns used in the manufacture of the articles ordered hereunder, then such special dies, jigs, tools or  patterns shall be and become the property of Buyer. No dies, jigs, tools, patterns, drawings or specifications  supplied to Seller by, or otherwise belonging to Buyer, shall be used in production, manufacture or design of  any articles other than the Goods under this Agreement, except with the written consent of Buyer, nor shall  articles manufactured to Buyer’s dies, jigs, tools, patterns, drawings or specifications be furnished or quoted to any other person or entity. Upon termination of this Agreement, Seller shall dispose of such dies, jigs, tools and patterns as directed by Buyer. All such dies, jigs, tools, patterns, drawings or specifications shall be fully insured by Seller against loss by fire and other perils covered in a standard extended coverage endorsement while in Seller’s possession.

 

1. 19. Right of Access: Buyer, Buyer’s customers, and any governmental authorities reserve the right to access  Seller’s facility to perform audits, survey’s and/or inspections, as required by law or as contractually required,  including any flow down provisions. 

 

1. 20. Governing Law: This Agreement shall be governed and construed in accordance with the laws of the state  of Colorado without reference to Colorado’s choice of law principles. Any legal suit, action, or proceeding  arising out of this Agreement or the transactions contemplated by this Agreement will be instituted in the  federal courts of the United States of America located in Denver, Colorado, or the courts of the State of  Colorado located in Denver County, Colorado, and each party irrevocably submits to the exclusive jurisdiction  of such courts in any such suit, action, or proceeding. The parties irrevocably and unconditionally waive any  objection to venue of any suit, action, or proceeding in such courts and irrevocably waive and agree not to  plead or claim in any such court that any such suit, action, or proceeding brought in any such court has been  brought in an inconvenient forum. 

 

1. 21. Conflict Materials. Seller agrees to trace and certify, or if Seller is not the manufacturer of the Goods, to  require the manufacturer of the Goods to trace and certify, the country of origin of minerals used by and materials used in the manufacture of the Goods, and to otherwise comply with all applicable laws and  regulations relating to Conflict Materials (as such term is defined in such laws and regulations). 

 

1. 22. Counterfeit, Fraudulent and Substandard Items. Seller agrees and acknowledges that delivery of  suspect/counterfeit and substandard items (“CFSI’s”) are of special concern to Buyer and Buyer’s customers.  If any Goods, or parts or materials used in the Goods, are described using a manufacturer’s part number or  using a product description and/or specified using an industry standard, Seller shall be responsible to assure  that the Goods, and parts and materials therein, supplied by Seller meet all of the requirements of the latest  version of the applicable manufacturer data sheet, description, or industry standard. If Seller is not the  manufacturer of the Goods, or parts or materials therein, Seller shall use commercially reasonable efforts to  assure that the Goods supplied under this Agreement are made by the Original Equipment Manufacturer  (“OEM”) and meet the applicable manufacturer data sheet or industry standard. If CFSI’s are furnished under  this Agreement or are found in the Goods delivered hereunder, such items will be dispositioned by Buyer  and/or the OEM and may be returned to Seller. Seller shall promptly replace such CFSI’s with Goods  acceptable to Buyer and Seller shall be liable for all costs incurred by Buyer relating to or resulting from the  removal and replacement of such CFSI’s. Seller agrees that any governmental or quasi-governmental directive  indicating that a Good, or parts and materials therein, are counterfeit, shall be deemed definitive evidence that  the Goods contain CFSI’s. Seller agrees to maintain a quality assurance program designed to prevent, detect,  and dispose of CFSI’s. 

 

1. 23. Corrupt Practices. Each party represents, warrants, and covenants that in preforming its obligations under  this Agreement, it and any of its affiliates, subsidiaries, parent, owners, officers, directors, employees, or  agents, has not, and will not, pay, offer, or promise to pay, or authorize the payment directly or indirectly of  any money, gift, or anything of value to any official, employee, or representative of any governmental  authority, including any candidate for political or governmental office, for the purpose of influencing any act  or decision of such official or otherwise in violation of the United States Federal Corrupt Practices Act or any  similar governmental requirement or law in effect in the United States. In event Service Provider breaches  this subsection, Client may immediately terminate this Agreement.\

 

1. 24. Independent Contractor. The parties are organized and will at all times be operated as separate and distinct  legal entities consistent with all applicable legal formalities. None of the provisions of this Agreement are  intended to create, nor will they be deemed or construed to create, any relationship between the parties other  than that of independent entities contracting for the purpose of effecting the provisions of this Agreement. Neither party has, and shall not hold itself out as having, any authority to enter into any contract or create any obligation or liability on behalf of, in the name of, or binding upon the other party.

 

1. 25. Limitation of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY  FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY  DAMAGES, INCLUDING LOSS OF PROFITS, REVENUE, DATA OR USE OF DATA, INCURRED BY  EITHER PARTY OR ANY OTHER PERSON IN ANY WAY RELATED TO OR ARISING OUT OF THIS  AGREEMENT OR THE PERFORMANCE OF ANY OBLIGATION PURSUANT TO THIS  AGREEMENT, WHETHER AN ACTION IN CONTRACT, BREACH OF WARRANTY OR TORT, EVEN  IF THE OTHER PARTY HAS BEEN ADVISED OF OR COULD HAVE REASONABLY FORESEEN  THE POSSIBILITY OF SUCH DAMAGES. The foregoing limitation shall not apply to a breach of a party’s  confidentiality obligations under this Agreement, any claim for infringement of intellectual property or an  indemnity obligation due to such infringement, or a breach of Section 22 of this Agreement with respect to  CFSI’s. Buyer’s liability to Seller for any damages not disclaimed above is limited to the purchase price for  the Goods giving rise to the damages. 

 

1. 26. Reformation and Severability. If any provision of this Agreement is found to be invalid or unenforceable  by any court of competent jurisdiction, such court may reform such provision to such narrower scope as it  determines to be valid and enforceable and, if such provision cannot be reformed as anticipated above, then  such provision shall be deemed separate and severable and shall not invalidate or render unenforceable the  remaining provisions hereof, the Parties’ intent being to effectuate this Agreement to the fullest extent  permitted by law. 

 

1. 27. Survival. Any provision that, in order to give effect to its intent, should survive expiration or termination of  this Agreement, will survive such termination or expiration, including without limitation, Sections 4, 9, 11,  12, 16, 18, 20, 22, 23 and 25. 

 

1. 28. Entire Agreement; Amendment. This Agreement, including any agreements and provisions thereof required  to be flowed down to this Agreement, constitutes the entire agreement between the parties with respect to the  subject matter hereof, and supersedes and replaces all prior and contemporaneous agreements and  understandings, written or oral, between them as to such subject matter. Except as explicitly provided herein,  the terms of this Agreement may be altered, deleted, amended or expanded only by a written instrument  executed by the parties, including change orders referenced above. 

 

1. 29. Notices. All notices or other communications required to be given or served on any party pursuant to this  Agreement shall be in writing and deemed duly given, if delivered: (a) personally by hand or by a nationally  recognized overnight courier service, when delivered at the address specified on the face of this Agreement;  or (b) by United States certified or registered first class mail when delivered at such address, on the date  appearing on the return receipt therefor. In the event that a party is unable to deliver a notice or other  communication due to the inaccuracy of the address provided by the other party pursuant to this Agreement,  or the other party’s failure to notify the party of a change of same pursuant to this Section, such notice or other  communication shall be deemed to be effective upon confirmation by a nationally recognized overnight  courier service of its failure to complete delivery to the other party’s address specified below (or other address  duly given to the party by the other Party in accordance with this Section). 

 

1. 30. Insurance. Seller shall maintain insurance with financially sound and reputable insurance companies with  respect to its properties and business against loss, risk or damage of the kinds customarily insured against by  a prudent party engaged in the same or similar business, and of such types, coverages, amounts and deductibles  as are customarily carried under similar circumstances by such party. At Buyer’s request, Seller shall provide  Buyer with a certificate of insurance evidencing the insurance coverages maintained by Seller.