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SUNDYNE, LLC
TERMS AND CONDITIONS OF SALE

1. Agreement.

The following terms and conditions constitute the entire agreement between ����ר��, LLC (hereinafter “Seller”) and Buyer, except as modified in writing and signed by authorized representatives of both parties. These terms and conditions supersede any and all previous communications, representations or agreements, either oral or written, between the parties with respect to the subject matter. Any terms proposed in Buyer’s acceptance of this quotation which add to, vary from, or conflict with these terms are rejected and shall not constitute any part of any contract resulting from this quotation. Any such proposed terms shall have no force or effect and these herein shall constitute the complete and exclusive statement of the terms and conditions of any contract resulting from this quotation and may be modified only by written instrument executed by the authorized representatives of both parties.

2. Title, Delivery, Risk of Loss and Shipping.

Unless otherwise agreed to by Seller, title to and risk of loss or damage to all products sold by Seller passes to Buyer upon their delivery EX WORKS Seller’s facility (Incoterms 2020) to an agent of Buyer, including a common carrier. Where Buyer requires shipment other than as specified, Buyer will be responsible for any additional costs. Delivery dates in this order are estimates and Seller will make good faith effort to meet estimated delivery dates, but will not be responsible for any loss or damage arising from delays, loss or damage in transit. Where Buyer delays in supplying information or approvals necessary to proceed with the order, the shipment date may be extended accordingly. Buyer will furnish written shipping instructions for all products as promptly as possible. In the absence of such instruction, Seller may, at any time beginning 10 days after forwarding notice to Buyer that the products are ready for shipment, do either of the following for the account and at the expense and risk of Buyer: arrange for shipment of the products by a suitable carrier or warehouse the products and invoice Buyer. Seller is not liable for loss or damage attributed to negligence either in selecting the carrier or the warehouse or in agreeing with either of them to contract terms on Buyer’s behalf.

3. Testing and Inspection.

1. The products shall be inspected and where necessary, submitted to the standard tests at the Seller’s premises before delivery. If special tests or tests in the presence of the Buyer or its representative are required, then unless otherwise agreed, shall be made at the Seller’s facility and will be charged as an extra item. In the event of any delay on the Buyer’s part in attending such tests following seven days’ notice that the Seller is ready, the tests shall proceed even in the Buyer’s absence but shall be deemed to have been done in the Buyer’s presence.
2. The Seller shall use commercially reasonable efforts to ensure that accurate information is given to the Buyer regarding packing of the product but it shall have no liability to the Buyer in the event of any variation or difference between weight, dimensions and general specification of the packing in which delivery is made and any descriptions of such packing given to the Buyer prior to delivery.
3. Notwithstanding subparagraph b. above, if the products do not appear to conform to this Agreement, then Buyer must notify Seller within 14 days after its receipt and give Seller a reasonable opportunity to inspect the products and make any appropriate adjustment or replacement. Buyer will not delay payment for the products pending their inspection. If Buyer has not made a claim to Seller within 14 days after receipt of the products, they will be deemed accepted and conforming to contract requirements.

4. Prices and Quotations.

All Prices shown in the Price List, order acknowledgement or otherwise quoted are in USD unless otherwise specified by Seller. Seller may adjust prices prior to shipment to reflect any extraordinary changes in material costs or availability. Written quotations automatically expire 30 days after submission to Buyer and are subject to withdrawal or revision within that 30-day period. Seller reserves the right to make corrections due to any typographical or engineering errors, or because of incomplete or inaccurate information provided by Buyer. Prices shown in any published literature are maintained as a general source of information only and are not quotations or offers to sell.

Seller shall have the right to adjust prices in the event of cost increases within the supply chain or if a change in regulation or other factor negatively impacts the cost of the product.

5. Payment and Credit.

Payment terms are net 30 days from date of invoice or in accordance with any Seller approved credit terms. Seller reserves the right to modify or withdraw credit terms and delay product delivery at any time without notice to obtain necessary guarantees, security or payment in advance in the amount of the credit involved. Prior to the extension of credit, Buyer will submit to Seller an application in a form acceptable to Seller. Buyer will execute any other instruments or documentation as Seller from time to time reasonably requires prior to extension of credit to Buyer and Buyer agrees to execute any necessary security agreements covering the products sold and to perform all acts necessary to perfect and assure a security position of Seller.

Any past due accounts are subject to interest at the rate of 1.5% per month or the highest rate allowed by applicable law. In the absence of any specific designation of payment or in the event of failure of Buyer to make timely payment under this or any other contract with Seller, Seller may at its election, apply any payment by Buyer to Buyer’s various accounts as Seller deems appropriate. Without prejudice to any other right or remedy available to the Seller, if the Buyer fails to make any payment within 30 days of Seller’s notice of delinquency, Seller is entitled to (i) withdraw credit, (ii) suspend performance, and (iii) terminate the Agreement.

6. Taxes.

Buyer is responsible for any and all taxes (not including any income and excess profit taxes), duties and/or tariffs which may be imposed by any taxing authority, arising from the sale, delivery or use of the products. If Seller is responsible for collection and payment, then Buyer will pay to Seller upon Seller’s request.

7. Specifications.

Any general specifications referred to in this Agreement are standard form specifications covering products of substantially identical type and character to those being purchased, but there may be variations in the details of design and construction of any particular products actually sold to Buyer. Seller reserves the right to make changes in the details of design and construction of any product.

8. Changes.

Buyer may request modifications to the amount, scope or nature of the products to be supplied by a written change request. If, in Seller’s opinion, any modification will affect the price or delivery schedule, then Seller will be under no obligation to perform any modification until the parties agree to any changes. Buyer shall confirm that such change is authorized and accepted by issuing a revised order.

9. Termination.

1. Termination for Convenience
   Either party may terminate this Agreement at any time upon a written notice of sixty (60) days to the other party. If Buyer terminates this Agreement, Buyer will pay to Seller: (i) the contract price of work or performed through the date of termination; (ii) costs incurred in the performance of work terminated; (iii) subcontractor’s settlement costs; and (iv) fair and reasonable profit on work terminated.
2. Termination for Cause
   The non-breaching party may terminate this Agreement or any order if the other party materially breaches and fails to cure within 30 days of receipt of written notice. Seller may suspend Seller’s performance or terminate this Agreement or any order upon written notice if Seller believes that Seller’s performance may violate the law and/or cause a safety or health risk, or if Buyer is insolvent, there is an adverse change in Buyer’s creditworthiness or an attempt to obtain protection from creditors or wind down operations, Buyer fails to pay any of Seller’s undisputed invoices for 3 days after payment due date, Buyer violates the law in performance of this Agreement, or assigns this Agreement without Seller’s consent. Upon termination or expiry: (a) Buyer must pay all amounts due; and (b) if requested, return or destroy all Seller’s confidential information and certify the same in writing; except for automatically generated backup copies, anonymized data or if maintained for legal purposes.

10. Warranties, Remedies and Limitations

1. Defective Products
   (i) Seller warrants that the products will be free from defects in material and workmanship for the earlier of (i) 12 months from commissioning, or (ii) 18 months from delivery date. Seller’s liability and Buyer’s remedy under this warranty is limited to repair or replacement, at Seller’s election, of products or parts returned to Seller which are shown to Seller’s reasonable satisfaction to be defective. Buyer must provide written notice of the defect to Seller within 30 days of identification of any defect. Transportation charges for the return of defective products to Seller and their reshipment to Buyer and the risk of loss thereof will be borne by Seller only if returned in accordance with Seller’s written shipping instructions. If services are to be furnished, Seller warrants to Buyer that such services will be performed in a good and workmanlike manner. Seller’s liability and Buyer’s remedy under this warranty are limited to the correction of such services shown to Seller’s reasonable satisfaction to have been defective; provided that written notice of such defective services is provided to Seller within thirty (30) days after the performance of such services.(ii) Seller’s warranty does not extend to used products or products or services not manufactured or provided by Seller; however, Seller will pass-through to Buyer any supplier warranty.(iii) Seller’s warranty does not extend to any product found to have been subjected to abnormal operating conditions; the use of unapproved parts to the extent such parts are found to be the cause of the failure; failure to follow the installation, operation and maintenance instructions provided by Seller; or to modifications, alternations or repairs to the product not performed by Seller or authorized in writing by Seller.
2. Title
   Seller warrants to Buyer that it will convey good title to the products sold. Seller’s liability and Buyer’s remedy under this warranty are limited to the removal of any title defect or, at the election of the Seller, to the replacement of the products or parts thereof which are defective in title; provided, however, that the rights and remedies of the parties with respect to patent infringement are limited to the provisions of subparagraph c. below.
3. Patent Infringement
   (i) Seller will defend Buyer, its affiliates and subcontractors against any third-party suit alleging that Buyer’s use of the product(s) (as provided by Seller) in accordance with this Agreement, directly infringes any United States third-party patent or copyright, and will pay for any final judgment awarded by a court of competent jurisdiction assessed against Buyer resulting from such suit; provided that Buyer promptly notifies Seller when it is apprised of the claim and provides complete authority, information, and assistance (at Seller’s expense) as to the defense and disposition via counsel of Seller’s choice. Seller will not be responsible for any compromise, settlement, attorneys’ fees, expenses, damages, or costs incurred by Buyer without Seller’s involvement and prior, written consent.(ii) Seller has no obligation or liability for claims arising out of the following: (A) products made to Buyer’s designs, drawings, or specifications; (B) use of Seller’s product(s) in any process or in any manner not supported by the applicable documentation; (C) combination or use of any of Seller’s product(s) with materials not furnished by Seller; (D) use of a version of any software provided by Seller other than its current version; (E) data Buyer provides; (F) Buyer’s use of the outputs of the Seller’s product(s); (G) any alteration, customization, or other modification of the Seller’s product(s) other than by Seller; or (H) damages based on a theory of liability other than infringement by the Seller’s product(s). Further, Buyer agrees to defend, indemnify and hold the Seller Indemnities harmless against any claim of infringement resulting from those circumstances set forth in subparagraphs (A)-(H) of this Section 10(c) of this Agreement.(iii) If a claim of infringement is made for which Seller has indemnification obligations or if Seller believes that such a claim is likely, Seller may, at its sole option and expense, (A) procure for Buyer the right to continue using the Seller’s product(s) or obtain a license to a reasonable substitute; (B) replace or modify the Seller’s product(s) so that it is non-infringing; or (C) in the case of the Seller’s product(s), require Buyer to return the Seller’s product(s) (and terminate Buyer’s license to any software provided by Seller) in exchange for a credit of the purchase price or license fee, less reasonable depreciation and pro-ration of the purchase price and/or license fees for use the Seller’s products. Further, Seller may cease shipping Seller’s product(s) it believes may be subject to a claim of infringement without being in breach of this Agreement. If the final judgment assessed against Buyer is based on the revenue generated from the use of the Seller’s product, as opposed to from the sale of the product(s) by Seller to Buyer (whether alone or in combination with any article or service not furnished by Seller), then Seller’s liability under this indemnity, exclusive of defense costs, shall be limited to a reasonable royalty based on the contract price paid by Buyer to Seller for the Seller’s product(s) that gave rise to the claim.(iv) This Section shall be subject to Seller’s rights under Section 12 (Limitation of Liability). THIS PROVISION STATES THE PARTIES’ ENTIRE LIABILITY, SOLE RECOURSE, AND THEIR EXCLUSIVE REMEDIES WITH RESPECT TO CLAIMS OF IP INFRINGEMENT. ALL OTHER WARRANTIES AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, STATUTORY, EXPRESS, IMPLIED, OR OTHER, ARE HEREBY DISCLAIMED.
4. Exclusive Warranties.
   THE FOREGOING WARRANTIES ARE EXCLUSIVE AND ARE GIVEN AND ACCEPTED IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE WHETHER OR NOT ARISING FROM COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. No agreement varying or extending the foregoing warranties will be binding upon Seller unless in writing, signed by a duly authorized officer of Seller.

11. Excusable Delays.

Seller is not responsible for delay or non-delivery when due to acts of God or the public enemy, compliance in good faith with any applicable foreign or domestic governmental regulation or order whether or not it proves to be invalid, fires, riots, labor disputes, unusually severe weather, or any other cause beyond the reasonable control of Seller.

12. LIMITATION OF LIABILITY

(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA, DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD UNDER THIS AGREEMENT.

13. Export Compliance.

Buyer and its affiliates will comply with all laws and regulations applicable to access and use of the products. Buyer acknowledges that: (a) Seller does not provide legal advice regarding compliance with laws and regulations related to use of the products, and (b) the products has functionality that could be used in ways that do not comply with laws and regulations and Buyer is solely responsible, and Seller has no liability, for Buyer’s compliance with law with respect to its use of the products. Buyer and its affiliates will comply with, and be solely responsible for compliance with, all laws and regulations on export, import, economic sanctions and antiboycott, regulated by the United States, any locality outside the United States where Buyer conducts business, and as applicable, the United Kingdom, the European Union and its Member States, the United Nations (“Sanctions Laws”) related to Buyer’s access to or use of the products. Buyer represents and warrants that none of Buyer or its directors, employees, contractors, agents, banking partners, affiliates or users (a) are individuals or entities named on or acting on behalf of entities identified on applicable Sanctions Laws restricted party lists, including but not limited to, the U.S. Specially Designated Nationals and Blocked Persons List and the OFAC Sectoral Sanctions Identifications List; (b) organized under the laws of, physically located in, or ordinarily resident jurisdictions subject to comprehensive sanctions; or (c) are owned or controlled, directly or indirectly, 50% or more in the aggregate, by one or more individuals described in (a) or (b) (collectively, “Sanctioned Persons”). Neither Buyer nor its affiliates will (i) permit Sanctioned Persons to directly or indirectly use, access or benefit from the products, (ii) engage in or facilitate activities directly or indirectly related to any end-uses that are restricted by Sanctions Laws, or (iii) export, re-export or otherwise transfer the products for any purpose prohibited by the Sanctions Laws. Buyer will not submit to the product any data subject to the U.S. International Traffic in Arms Regulations or other Sanctions Laws. Buyer’s violation of this Section will be a material breach.

Each party shall comply with all applicable anti-bribery laws and regulations including but not limited to the United States Foreign Corrupt Practices Act (“FCPA”) and the United Kingdom Bribery Act of 2010. The parties represent and warrant that they are currently in compliance with anti-corruption and anti-bribery laws and will remain so and that they will not authorize, offer or make payments, directly or indirectly, to any government authority that may result in a breach of FCPA or established restrictions or prohibitions. Buyer agrees to maintain accurate books and records to demonstrate compliance with the compliance requirements of this section. Seller, at its expense, may audit Buyer to determine compliance with such provisions upon no less than thirty (30) days’ advance written notice, and Buyer will provide reasonable assistance to Seller to complete such audit. Buyer’s failure to comply with this provision will be deemed a material breach of the Agreement.

Seller will obtain the export license when Seller is the exporter of record. Buyer must obtain at its sole cost and expense all necessary import authorizations and any subsequent export or re-export license, or other approval required for the products purchased, delivered, licensed or received from Seller. The parties agree that technical information or technology (i.e., export-controlled information) subject to the Sanctions Laws shall not be disclosed, transferred or exported, including to any affiliate, foreign national employee, supplier, or sub-tier supplier, regardless of location, without valid export authorization or other written government approval.

Buyer will notify Seller immediately in writing of actual or reasonably suspected violations of this section. Seller may suspend or terminate the Agreement or any order (or part thereof) or take other actions reasonably necessary to ensure full compliance with all laws including the Sanctions Laws without Seller incurring any liability.

Notwithstanding the foregoing, in the event any government agency does not approve or substantially delays an export or re-export license thereby prohibiting or substantially delaying the export, Buyer shall be responsible for all charges incurred by either party up until the approval and/or cancellation.

14. Data Privacy.

“Applicable Data Privacy Laws” means applicable data protection, privacy, breach notification, or data security laws or regulations;

“Data Controller” means a party that alone or jointly with others, determines the purposes and means of the processing of Personal Data (as that term or similar variants may otherwise by defined in Applicable Data Privacy Laws).

“Personal Data” means any information relating to an identified or identifiable natural person or as that term or similar variants may otherwise be defined in Applicable Data Privacy Laws . Personal Data includes (i) relationship data about individuals provided by one Party to the other to manage the relationship between the Parties, and (ii) personally identifiable usage data made available by Buyer to Seller in relation to the use of the services for the purposes of providing, improving, or developing Seller’s products and services.

1. Each party will process the Personal Data of the other as an independent Data Controller in accordance with Applicable Data Privacy Laws. Each party represents that it has all rights and authorizations to transfer Personal Data to the other party (including providing notice).
2. To the extent required by Applicable Data Privacy Laws, each party agrees to be bound by the terms of the Standard Contractual Clauses for the transfer of personal data to third countries pursuant to Regulation (EU) 2016/679 (including the provisions in Module 1) and the UK’s International Data Transfer Addendum to the EU Commission Standard Contractual Clauses made under s119A(i) of the UK’s Data Protection Act 2018 (“Controller SCCs”) in its capacity as “data exporter” or “data importer”, as applicable, and as those terms are defined therein. The Controller SCCs will be deemed to have been signed by each party and are hereby incorporated by reference into this Agreement in their entirety as if set out in full as an annex to this Agreement. The parties acknowledge that the information required to be provided in the appendices to the Controller SCCs is set out at https://www.honeywell.com/us/en/company/data-privacy. Each party will implement appropriate technical and organizational measures to protect Personal Data against any security breaches. If there is a conflict between this Agreement and the Controller SCCs, the Controller SCCs will prevail. Where applicable law requires changes to the Controller SCCs, those changes will be deemed to have been made without further action from the parties.
3. If Seller processes Personal Data on Buyer’s behalf under this Agreement, Seller’s Data Processing Agreement at apply.

15. Cost of Collection.

Buyer shall pay all costs of collection, including but not limited to reasonable attorney’s fees, court costs and collection agency fees involved in the collection of (a) past due accounts; (b) amounts owed to Seller by Buyer by reason of Buyer’s breach of the order or any term or condition hereof and (c) any and all amounts owed by Buyer to Seller for any other reason whatsoever.

16. Confidential Information.

All non-public, confidential or proprietary information of Seller, including but not limited to specifications, designs, plans, drawings, documents, data, business operations or pricing, disclosed to Buyer, whether orally or disclosed or accessed in written, electronic or other form, and whether or not marked or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all confidential documents and other materials received from Seller. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.

17. Assignment.

Buyer may not assign this Agreement or any rights or obligations arising under this Agreement without Seller’s consent.

18. Governing Law and Dispute Resolution.

All matters arising out of or relating to this Agreement are governed by and construed in accordance with the laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the state and county courts located in New York City and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. The parties expressly agree that this order is not subject to the United Nations Convention on Contracts for the International Sale of Goods (CISG).

EACH PARTY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING (WHETHER BASED IN CONTRACT, TORT, OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT.

19. Modifications and Headings.

No modification of this order will be binding unless in writing signed by both parties. Headings used in these terms and conditions are for convenience of reference only and are not be deemed or construed as in any way limiting or extending the language of the provisions to which such headings may refer.

20. Waiver.

No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

21. Severability.

If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.