Terms and conditions

Notice: Sale of any Products or Services is expressly conditioned on Buyer's assent to these Terms and Conditions. Any additional or different terms proposed by Buyer are expressly objected to and will not be binding upon Seller unless agreed to in writing by Seller. Any oral or written representation, warranty, course of dealing or trade usage not contained in these Terms and Conditions or the Contract shall not be binding on either party. Any order to perform work and Seller's performance of work shall constitute Buyer’s assent to these Terms and Conditions. Unless otherwise specified in the quotation or Contract, any quotation by Seller shall expire 30 days from its date and may be modified or withdrawn by Seller before receipt of Buyer’s acceptance.

1. Definitions.

"Buyer" means the legal entity to which Seller is providing Services under the Contract.

"Contract"means the documents that comprise the agreement between Buyer and Seller for the sale of Services, including these Terms and Conditions and any other documents incorporated by reference, such as, the final quotation, the agreed scope of work and Seller's order acknowledgement.

"Seller" means the legal entity performing Services under the Contract.

“Services” means all services Seller has agreed to perform for Buyer under the Contract.

"Site" means the premises where Services are performed, not including Seller’s premises from which it performs Services.

“Terms and Conditions” means these Terms and Conditions for Energy Consulting Services.

2. Payment.

2.1 Title to Services shall pass to Buyer as performed.

2.2 Buyer shall pay Seller all invoiced amounts, without right of set-off, by wire transfer within 30 days from date of invoice. Seller shall be entitled to payment of all charges associated with Seller’s performance of Services as the Services are performed. Buyer shall pay a late payment charge on any past-due amount computed at the rate of 4.0% in excess of the prime rate as published in the Wall Street Journal calculated from the payment due date to the date upon which Seller actually receives payment, not to exceed the maximum allowed by law.

2.3 If the parties agree in the Contract that Buyer shall establish a letter of credit, the letter of credit shall be in accordance with the terms of the Contract. The letter of credit shall be issued or confirmed by a bank that is acceptable to Seller and shall be payable at the counters of the issuing or confirming bank. Buyer shall pay all banking charges. Buyer will increase the amounts and/or extend the validity period(s) and make appropriate modifications to any letter of credit within five business days of Seller’s notification that an increase or extension is necessary to provide for payments to become due.

2.4 If at any time Seller reasonably determines that Buyer's financial condition does not justify the continuation of Seller’s performance, Seller may require full or partial payment in advance or shall be entitled to suspend or terminate the Contract.

2.5 If Seller’s work is extended or suspended in accordance with these Terms and Conditions, the parties will agree on the amount and timing of interim payments to Seller for work performed to the date of extension or suspension.

2.6 Additional price and payment terms shall be as stated in the Contract.

3. Taxes and Duties.

Unless otherwise specified in the Contract, Seller shall be responsible for and pay directly all corporate and individual taxes measured by net income or profit imposed by any governmental authority on Seller, its employees or subcontractors due to the execution of any agreement or the performance of or payment for work under the Contract (“Seller Taxes”). Buyer shall be responsible for and pay directly when due and payable all taxes, duties, fees, or other charges of any nature (including, but not limited to, ad valorem, consumption, excise, franchise, gross receipts, import, license, property, sales, stamp, storage, transfer, turnover, use, or value-added taxes, and any and all items of withholding, deficiency, penalty, addition to tax, interest, or assessment related thereto), other than Seller Taxes, imposed by any governmental authority on Seller or its employees or subcontractors due to the execution of any agreement or the performance of or payment for work under the Contract ("Buyer Taxes"). All payments due and payable by Buyer to Seller under the Contract shall be made in the full amount of the Contract price, free and clear of all deductions and withholding for Buyer Taxes. If Seller is required to pay Buyer Taxes, Buyer shall, promptly upon presentation of Seller’s invoice for the Buyer Taxes, reimburse Seller for the Buyer Taxes. Buyer shall provide to Seller within one month accurate official receipts from the appropriate governmental authority for deducted or withheld taxes. All rights to drawback of customs duties paid by Seller to the customs authorities of the country of manufacture of any Products belong to and shall remain with Seller. Buyer agrees to cooperate with Seller and to furnish such documents to Seller as may be necessary to obtain a drawback.

4. Excusable Delays.

Seller shall not be liable or in breach of its obligations under the Contract to the extent performance of such obligations is delayed or prevented, directly or indirectly, by causes beyond its reasonable control, including acts of God, fire, terrorism, war (declared or undeclared), severe weather conditions, earthquakes, epidemics, material shortages, insurrection, acts or omissions of Buyer or Buyer’s suppliers or agents, any act or omission by any governmental authority, strikes, or labor disputes (each an “Excusable Delay”). The delivery or performance date shall be extended for a period equal to the time lost by reason of delay, plus such additional time as may be reasonably necessary to overcome the effect of the delay. If Seller is delayed by any acts or omissions of Buyer, or by the prerequisite work of Buyer’s other contractors or suppliers, Seller shall be entitled to an equitable adjustment in price and time for performance.

5. Compliance with Laws, Codes and Standards.

5.1 The Contract price, delivery and performance dates and any performance guarantees will be equitably adjusted in accordance with the Article entitled "Changes" to reflect additional costs and obligations incurred by Seller resulting from a change in industry specifications, codes, standards, applicable laws or regulations after the date of the Contract.

5.2 Seller’s obligations are conditioned upon Buyer’s compliance with all applicable trade control laws and regulations, which include, for purposes of this section, trade control laws and regulations of the United States.

6. Warranty.

6.1 Seller warrants to Buyer that the Services shall be performed in a competent, diligent manner. Seller does not assume responsibility for specific operating results, nor for achieving desired objectives.

6.2 The Warranty Period for Services shall end one year from completion, except for software-related Services, which shall have a Warranty Period ending 90 days from completion. The Warranty Period for some Services may be shorter or longer where agreed expressly in the Contract.

6.3 If Services do not meet the above warranties, Buyer shall promptly give Seller notice in writing within the Warranty Period. As soon as practicable Seller shall then re-perform the defective Services. If in Seller’s reasonable judgment the Services cannot be re-performed, Seller shall refund or credit monies paid by Buyer for that portion of Services that do not meet the above warranties. Any reperformance of Services by Seller shall not extend the applicable warranty period. The parties shall mutually agree on the specifications of any test to determine the presence of a defect or the adequacy of warranty work.

6.4 This Article provides the exclusive remedies for all claims based on failure of or defect in Services, whether the failure or defect arises before or during the applicable Warranty Period and whether a claim, however described, is based on contract, indemnity, warranty, tort/extracontractual liability (including negligence), strict liability or otherwise. The warranties provided in this Article are exclusive and are in lieu of all other warranties and guarantees whether written, oral, implied or statutory. NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES.

7. Limitation of Liability.

7.1 The total liability of Seller for all claims arising out of or relating to the performance or breach of the Contract shall not exceed the Contract price. Seller’s liability shall terminate 36 months after the end of the Warranty Period. Buyer may enforce a claim that accrued before that date by commencing an action or filing an arbitration, as applicable under the dispute resolution clause, before the expiration of the applicable statute of limitations or repose, but not later than 48 months after the end of the Warranty Period.

7.2 Seller shall not be liable for loss of profit or revenues, loss of product, loss of use of any associated equipment, interruption of business, cost of capital, cost of replacement, downtime costs, increased operating costs, claims of Buyer’s customers for such damages, or for any special, consequential, incidental, indirect, punitive or exemplary damages.

7.3 If Buyer is supplying Seller’s Services to a third party, Buyer shall require the third party to agree to be bound by this article. If Buyer does not obtain this agreement for Seller’s benefit, or if the agreement is found void or unenforceable, Buyer shall indemnify, defend and hold Seller harmless from and against any and all liability arising out of claims made by the third party in excess of the limitations and exclusions of this article.

7.4 Seller shall not be liable for any advice or assistance that is not required under the Contract.

7.5 For the purposes of this article, the term "Seller" shall mean Seller, its affiliates, subcontractors and suppliers of any tier, and their agents and employees, individually or collectively.

7.6 The limitations and exclusions in this article shall apply regardless whether a claim is based in contract (including warranty or indemnity), tort (including negligence or strict liability), statute, equity or any other extra-contractual theory.

7.7 Buyer’s and Seller’s rights, obligations and remedies arising out of or relating to the Services are limited to those rights, obligations and remedies described in the Contract. This article shall prevail over any conflicting or inconsistent terms in the Contract, unless those terms further restrict Seller's liability.

8. Dispute Resolution, Governing Law.

8.1 Any dispute arising out of or in connection with the Contract, including any question regarding its existence, validity or termination, will be settled, if possible, by negotiation of the parties. If a dispute is not resolved by negotiations, either party may, by giving written notice, refer the dispute to mediation, to be held within 50 business days after giving notice. If the dispute is not resolved in the mediation, the dispute may be submitted to arbitration or court depending on Buyer’s pertinent place of business as follows:

(a) If Buyer’s pertinent place of business is in a country other than the U.S., the dispute shall be referred to and finally resolved by arbitration under the London Court of International Arbitration (“LCIA”) Rules, which are incorporated by reference into this clause. The number of arbitrators shall be one unless the amount in dispute exceeds the equivalent of U.S. $3,000,000, in which event it shall be three. The parties shall attempt to agree on the arbitrators, but if they notify the LCIA Court that they are unable to do so, the LCIA Court shall promptly provide the parties a list of no fewer than 10 suitable arbitrators (if 3 are to be selected) or 6 (if 1 is to be selected). Within 15 days after receiving the list, the parties shall notify each other and the LCIA Court of any potential arbitrator on the list who has a conflict due to current or former representation of a party or its affiliate, and each party will rank those potential arbitrators remaining on the list in order of the party’s preference. The LCIA Court will then promptly appoint the arbitrator or arbitrators giving each party’s preferences maximum consideration. None of the arbitrators may be a national or resident of the country of the Site or the countries in which either party is organized or has its principal place of business, unless both parties otherwise agree. The seat, or legal place, of arbitration shall be London, England. The arbitration shall be conducted in English. In reaching a decision, the arbitrators shall give full force and effect to the intent of the parties as expressed in the Contract, and if a solution is not found in the Contract, shall apply the governing law of the Contract. The decision of the arbitrators shall be final and binding upon both parties, and neither party shall seek recourse to a court or other authority to appeal for revisions of the decision.

(b) If Buyer’s pertinent place of business is in the U.S., any claim, legal action or proceeding (including claims for set-off or counterclaim) regarding the dispute shall be brought in the U.S. District Court for the Southern District of New York. Each party submits to and accepts generally and unconditionally the jurisdiction of this court with respect to its person and property, and irrevocably consents to the service of process in connection with any such action or proceeding by personal delivery to the party or by registered or certified mail, postage prepaid, to its address for notice under the Contract.

8.2 Notwithstanding the terms above, each party has the right at any time, at its option and where legally available, to commence an action or proceeding in a court of competent jurisdiction to apply for interim or conservatory measures, but not monetary damages.

8.3 The validity, performance and all matters relating to the interpretation and effect of the Contract and all further documents executed pursuant to it shall be construed and interpreted in accordance with the laws, excluding the rules on the conflict or choice of laws, of (i) the State of New York, U.S., if the Buyer has its Pertinent Place of Business in the U.S., Korea, Taiwan, Japan, Thailand, Vietnam, Indonesia or the Philippines, or (ii) England and Wales if the Buyer has its pertinent place of business outside of these countries listed in subsection (i).

9. Confidentiality.

9.1 In connection with the Contract, Seller and Buyer (as to information disclosed, the “Disclosing Party”) may each provide the other party (as to information received, the “Receiving Party”) with “Confidential Information.” “Confidential Information” means (a) all pricing, (b) all terms of the Contract, (c) all information that is designated in writing as “confidential” or “proprietary” by the Disclosing Party at the time of written disclosure, and (d) all information that is orally designated as “confidential” or “proprietary” by the Disclosing Party at the time of oral disclosure and is confirmed to be “confidential” or “proprietary” in writing within 10 days after oral disclosure. The obligations of this article shall not apply as to any portion of the Confidential Information that: (i) is or becomes generally available to the public other than from disclosure by the Receiving Party, its representatives or its affiliates; (ii) is or becomes available to the Receiving Party or its representatives or affiliates on a non-confidential basis from a source other than the Disclosing Party when the source is not, to the best of the Receiving Party’s knowledge, subject to a confidentiality obligation to the Disclosing Party; (iii) is independently developed by the Receiving Party, its representatives or affiliates, without reference to Confidential Information; (iv) is required to be disclosed by law, a valid legal process or a government agency; or (v) is approved for disclosure in writing by an authorized representative of the Disclosing Party.

9.2 The Receiving Party agrees: (i) to use the Confidential Information only in connection with the Contract and permitted use(s), (ii) to take reasonable measures to prevent disclosure of the Confidential Information, except to its employees, agents or financing parties who have a need to know for Buyer to perform its obligations under the Contract, and (iii) not to disclose the Confidential Information to a competitor of the Disclosing Party. The Receiving Party shall advise any recipient of Confidential Information of the terms of this article and take reasonable steps to ensure compliance. Confidential Information shall not be reproduced without the Disclosing Party’s written consent, and the Receiving Party shall return all copies of Confidential Information to the Disclosing Party upon request except to the extent that the Contract entitles the Receiving Party to retain the Confidential Information. Seller may also retain one copy of Buyer’s Confidential Information until all Seller’s potential liability under the Contract terminates.

9.3 If either party or any of its affiliates or representatives is required by law, legal process or a government agency to disclose any Confidential Information, that party agrees to provide the Disclosing Party with prompt written notice to permit the Disclosing Party to seek an appropriate protective order or agency decision or to waive compliance by the Receiving Party with the provisions of this article. If efforts to secure confidential treatment are unsuccessful, Seller may lawfully revise the Confidential Information to make it nonproprietary or to minimize the loss of its proprietary value.

9.4 Nothing in this article grants the Receiving Party any license under any invention, patent, trademark or copyright now or later owned or controlled by the Disclosing Party.

9.5 Buyer shall not disclose Confidential Information to Seller unless it is required to do so to enable Seller to perform work under the Contract. If Buyer does disclose Confidential Information, Buyer warrants that it has the right to disclose the information, and Buyer shall indemnify and hold Seller harmless against any claims or damages resulting from Buyer’s improper disclosure.

9.6 As to any individual item of Confidential Information, the restrictions of this Article shall expire the earlier of five years after the date of disclosure and three years after termination or expiration of the Contract.

9.7 This article does not supersede any separate confidentiality or nondisclosure agreement signed by the parties.

9.8 Notwithstanding anything to the contrary, and except to the extent that disclosure is required by law, Buyer shall not publish or otherwise disclose to the public or any third party, without the advance written consent of Seller, (i) that Buyer and Seller have entered into this Contract or that Seller is performing or has performed the work for Buyer that is the scope of this Contract, or (ii) all or any portion of any report, study, work, recommendations, findings or data developed or prepared by Seller pursuant to this Contract, In the event that Buyer is required by law to make such a disclosure, Buyer shall promptly notify Seller in advance of such disclosure and reasonably cooperate in attempts that Seller may determine to be advisable to protect the confidentiality of such work, information or material.

9.9 Neither Buyer nor Seller shall make any public announcement about the Contract without prior written approval of the other party.

10. Termination and Suspension.

10.1 Buyer may terminate the Contract (or any portion thereof) for cause if Seller: (i) substantially breaches a material obligation that does not otherwise have a specified contractual remedy, provided that: (a) Buyer shall first provide Seller with detailed written notice of the breach and of Buyer’s intention to terminate the Contract, and (b) Seller shall have failed, within 30 days after receipt of the notice (or such extended period as is considered reasonable and agreed in writing by the parties), to either (1) commence and diligently pursue cure of the breach, or (2) provide reasonable evidence that the breach has not occurred; or (ii) becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for the benefit of its creditors, or files for protection from creditors under any bankruptcy or insolvency laws. If Buyer terminates the Contract as provided in this section, Buyer shall pay to Seller all portions of the Contract price allocable to work performed at the Seller's then current standard time and material rates.

10.2 Seller may terminate the Contract immediately for cause if: (i) any representation or warranty made by Buyer in the Contract or in any document or certificate furnished by Buyer in connection with the Contract proves to be incorrect in any material respect; (ii) Buyer substantially breaches a material obligation that does not otherwise have a specified contractual remedy, provided that: (a) Seller shall first provide Buyer with detailed written notice of the breach and of Seller’s intention to terminate the Contract, and (b) Buyer shall have failed, within 30 days after receipt of the notice (or any extended period considered reasonable and agreed in writing by the parties), to either (1) commence and diligently pursue cure of the breach, or (2) provide reasonable evidence that the breach has not occurred; or (iii) Buyer becomes insolvent, makes an assignment for the benefit of its creditors, has a receiver or trustee appointed for the benefit of its creditors, or files for protection from creditors under any bankruptcy or insolvency laws.

10.3 If Excusable Delays last longer than 120 days in the aggregate and the parties have not agreed upon a revised basis for continuing the work, then upon 10 days notice either party may terminate the order with respect to any uncompleted Services (except that if the delay is caused by Buyer or Buyer’s suppliers or agents, only Seller may terminate the order).

10.4 If the Contract (or any portion thereof) is terminated for any reason other than for cause, Buyer shall pay Seller for all Services performed before the effective date of termination, plus a cancellation charge equal to 15% of the Contract price allocable to the unperformed Services. The following shall apply when determining the amount due from Buyer for Services performed before the date of termination: (i) for Services performed under time-and-material pricing, Buyer shall pay for all hours performed at Seller’s then-current standard time-and-material rates and (ii) for Services performed under a firm fixed price, Buyer shall pay (a) the applicable price for all milestones achieved and (b) for any milestone not yet achieved, all hours performed in connection with the unachieved milestone(s) at Seller’s then-current standard time-and-material rates. However, if Seller’s charges are specified in the Termination Schedule in the Contract, if any, Buyer shall instead pay those charges upon submission of Seller’s invoice.

11. Software.

11.1 If Seller provides any software to Buyer, the Contract is subject to these terms including the Software License Addendum.

11.2 If Seller performs Services related to Seller’s own proprietary software, Buyer agrees that Seller owns all proprietary rights, including, but not limited to any patent, copyright, trade secret and trademark, in and to that software and any work derived from that software (“Derivative Work”). “Derivative Work” is (i) any work that is based upon one or more pre-existing works, such as a modification, enhancement or translation that, if prepared without the authorization of the owner of the copyright to such pre-existing work, would constitute a copyright infringement and (ii) any compilation that incorporates such a pre-existing work. Buyer shall have only a “right to use” license to a Derivative Work for internal business purposes and shall not disclose, sell, lease, distribute, or otherwise transfer the Derivative Work to any third party except as may be permitted by these terms or as approved in writing by Seller.

11.3 For the purposes of this Article, "Seller" means Seller, its affiliates, and their successors or assigns.

12. Intellectual Property.

12.1 For purposes of this Contract, “Intellectual Property” means all intellectual property and proprietary rights including without limitation all rights of inventorship and authorship, inventions, patents, patent applications, and knowhow for any product, process, method, machine, manufacture, design, composition of matter, or any new or useful improvement thereof, as well as copyrights, trademark, trade dress and service mark rights and all rights in trade secrets, computer software, data and databases, and mask works.

12.2 For purposes of this Contract, “Seller Property” means: (a) Intellectual Property incorporated into any deliverables under this Contract; (b) Intellectual Property conceived, produced or developed by Seller, whether directly or indirectly or alone or jointly with others, in connection with or pursuant to Seller’s performance of the Services; and (c) creations and inventions that are otherwise made by Seller through the use of Seller’s or its Affiliates’ equipment, funds, supplies, facilities, materials and/or Proprietary Information.

12.3 Each party shall retain ownership of all Confidential Information and Intellectual Property it had prior to this Contract, but Seller shall own exclusively all rights in ideas, inventions, works of authorship, strategies, plans and data created in or resulting from the work, including but not limited to all patent rights, copyrights, moral rights, rights in proprietary information, database rights, trademark rights and other intellectual property rights, and Buyer will execute assignments as necessary to achieve that result. Nothing in this Contract shall be deemed to grant a license directly or by implication, estoppel, or otherwise, although the parties may provide for such a license in an express written agreement. Buyer agrees to transfer and assign, and hereby transfers and assigns, to Seller and its designees, without further compensation, the entire right, title and interest throughout the world in and to all Intellectual Property resulting from under this Contract.

12.4 Notwithstanding anything to the contrary, if the deliverable of this Contract is a report prepared solely for the Buyer pursuant to the scope of work, and excepting any and all Seller Property that may be used to create or is incorporated within the deliverable, the Buyer shall own the report that is a deliverable under this Contract.

12.5 Seller shall indemnify Buyer against any damages, costs and expenses arising out of any suit, claim, or proceeding (a “Claim”) alleging that Services infringe a patent in effect in the U.S., an EU member state or the country of delivery (provided there is a corresponding patent issued by the U.S. or an EU member state), or a U.S. copyright or copyright registered in the country of delivery, if: (a) Buyer promptly notifies Seller in writing of the Claim; (b) Buyer makes no admission of liability and gives Seller sole authority, at Seller’s expense, to direct and control the defense and any settlement and compromise negotiations; and (c) Buyer provides Seller with full disclosure and assistance that may be reasonably required to defend any such Claim.

12.6 Seller shall have no obligation or liability with respect to any Claim based upon: (a) any Services that have been altered; (b) the combination or use of Services with other products or services when the combination is part of any allegedly infringing process; (c) failure of Buyer to implement any update provided by Seller that would have prevented the Claim; (d) unauthorized use of Services, whether or not in breach of the provisions of the Contract; or (e) Services performed to Buyer’s specifications. Buyer shall defend any suit or proceeding based upon, and shall indemnify and hold Seller harmless against, any claim that any Service performed to Buyer’s specifications infringes any patent.

12.7 If any Service, or any portion thereof, becomes the subject of a Claim, Seller may at its option (a) procure for Buyer the right to continue using it, or any portion of it, (b) modify or replace it in whole or in part to make it non-infringing, or (c) failing (a) or (b) refund any applicable fees.

12.8 This states Seller’s entire liability for indemnification for patent, trademark, copyright, and trade secret infringement for Services.

12.9 Notwithstanding this, with respect to any Services, or portions thereof, which are not developed by Seller, only the indemnity of the developer, if any, applies.

13. Changes.

13.1 Each party may at any time propose changes in the schedule or scope of Services in the form of a draft change order. Some changes requested by Buyer may require analytical or investigative work to evaluate the change, and this evaluation work may be charged to Buyer at prevailing rates. The parties may mutually agree on the length of time in which a decision will be made regarding the change. If mutually agreed, the changes will be documented in a written change order, or if necessary a new contract, along with any equitable adjustments in the Contract price or schedule, and signed by authorized representatives of each party. Seller is not obligated to proceed with the changed schedule or scope until both parties sign the change order.

13.2 If there is any change in applicable laws, rules and regulations requiring a change in the Services, Seller shall be entitled to a change order that includes an equitable adjustment to the Contract price and time for completion. Unless otherwise agreed by the parties, pricing for additional work arising from changes in laws, rules and regulations will be at current time-and-material rates.

13.3 All Products delivered shall conform to Seller’s part or version number specified or (at Seller’s option) its equivalent or the superseding number subsequently assigned by Seller. If the number ordered is no longer available, Seller is authorized to ship a valid interchangeable Product without notice to Buyer.

14. General Indemnity.

14.1 Each party (each an “Indemnifying Party”) shall be liable to and indemnify the other party, its officers, employees, agents and subcontractors (each an “Indemnified Party”) for any injuries to third parties or damage to third party property, and, at its expense, shall defend against and hold the Indemnified Party harmless from any claims raised by a third party arising in connection with the Contract, to the extent they are caused by the negligence of the Indemnifying Party or its officers, employees, agents or subcontractors and to the extent the Indemnified Party is liable to the third party under applicable law.

14.2 If damage or injury is caused by the joint or concurrent negligence of the parties, their officers, employees, agents, or subcontractors, the parties shall bear the loss in proportion to their or their officers’, employees’, agents’ or subcontractors’ degree of negligence.

14.3 The indemnities provided in this article shall apply only if the party seeking indemnity gives the Indemnifying Party prompt notice of any claim and provides the Indemnifying Party all necessary information and assistance so that the Indemnifying Party may, at its option, defend or settle the claim.

14.4 “Third parties” under this Article do not include the parties, the owner of the Site, their affiliates, agents, successors or assigns, any operation or maintenance contractor of the parties or the owner of the Site, or any entity (a) with an equity or security interest in either party or the owner of the Site, or their assets or property, (b) that seeks to claim any rights, power or privileges of one of the parties or the owner of the Site, or (c) that seeks to claim as a third party beneficiary of one of the parties or the owner of the Site

15. Insurance.

15.1 During the term of the Contract, both parties shall maintain the insurance for work-related injuries or disease of their own employees in such forms and amounts as may be required by laws that are applicable to each party and its employees.

15.2 During the term of the Contract, each party shall maintain the following insurance coverage at its own expense to protect its own interests: (a) Commercial General Liability or Public Liability insurance, in broad form, either per occurrence or effective for at least three years after the expiration of the contract, that includes coverage for contractual liability, bodily injury and third party property damage, with a combined single limit of not less than U.S. $5,000,000 per occurrence and U.S. $5,000,000 in the aggregate annually, for primary and excess policies combined; and (b) automobile liability insurance covering all owned, non-owned, and hired automobiles used by it in connection with the work, if any, with a combined single limit of not less than U.S. $5,000,000 per occurrence, for primary and excess policies combined. Each of the foregoing insurance policies shall not be cancelled or materially changed without thirty (30) days advance written notice to the other party or, in the case of non-payment, ten (10) days advance written notice. Upon request, each party shall deliver to the other party certificates of insurance showing that the foregoing insurance is in full force and effect.

16. Personal Data Protection.

16.1 “Personal Data” is any information relating to an identified or identifiable natural person (“Data Subject”).

16.2 Buyer and Seller each agree that any Personal Data obtained from the other party will be deemed “Confidential Information” of the other party as defined in these Terms and Conditions whether or not the Personal Data is publicly available. Buyer and Seller shall provide security for the Personal Data they receive from each other and limit its disclosure and use.

16.3 Buyer and Seller each represent that in providing Personal Data to one another they will comply with all applicable laws and regulations, including but not limited to providing notices to or obtaining consents from the Data Subjects when required.

17. General Clauses.

17.1 Services sold by Seller are not intended for use in connection with any nuclear facility or activity without the written consent of Seller. Buyer agrees that it shall not use or permit others to use Services for such purposes, unless Seller agrees to the use in writing. If, in breach of this, any such use occurs, Seller (and its parent, affiliates, suppliers and subcontractors) disclaims all liability for any nuclear or other damages, injury or contamination, and in addition to any other legal or equitable rights of Seller, Buyer shall indemnify and hold Seller (and its parent, affiliates, suppliers and subcontractors) harmless against any such liability. If Seller agrees in writing to any such use, the parties will agree upon special terms and conditions that provide Seller protections against nuclear liability and that are acceptable to Seller under the then-current applicable laws.

17.2 Seller may assign its rights and delegate its obligations under the Contract, in part or in whole, to any of its affiliates (an “Assignee”) without Buyer’s consent. Upon assignment, primary rights and obligations shall transfer to Assignee. Assignee will issue invoices directly to Buyer, and Buyer shall pay Assignee directly for the assigned scope of work. Seller may subcontract portions of the work, so long as Seller remains responsible for the subcontracted work. Buyer agrees to execute any documents that may be necessary to effect Seller’s assignment or delegation, including a novation agreement. Buyer may assign its rights or delegate its obligations under the Contract to any of its affiliates, upon at least 10 days prior written notice to Seller and Seller’s prior written consent, which will not be unreasonably withheld. It shall be reasonable for Seller to withhold consent if, among other reasons, Buyer fails to demonstrate that the transferee has the legal, financial and technical ability to perform the Contract and is not a “Competitor of Seller,” and that the transfer would not cause Seller to be in violation of any laws or regulations. A “Competitor of Seller” is a person or entity that sells Services similar to or of a type sold by General Electric Company or its affiliates, or that has an affiliate that does so. Instead of demonstrating a transferee’s financial ability to perform the Contract, Buyer may guarantee the transferee’s obligations in a form acceptable to Seller or retain those obligations. No transferee may further assign Buyer’s rights or delegate Buyer’s obligations without Seller’s prior written consent. Buyer may also assign a collateral interest in the Contract to a financing party as a collateral security for a loan for purchases under the Contract if Buyer and the lender agree that any future assignment to the lender will occur only due to exercise by the lender of its remedies under the loan agreements relative to bankruptcy or liquidation of Buyer. Otherwise, either party may only assign any or all of its rights or delegate its duties under the Contract with the other’s prior written consent, without which the attempted delegation or assignment shall be void.

17.3 Buyer shall notify Seller immediately upon any change in its ownership or control. If Buyer fails to do so or Seller objects to the change, Seller may (a) terminate the Contract, (b) require Buyer to provide adequate assurance of performance, or (c) put in place special controls regarding Seller’s Confidential Information.

17.4 If any provision of the Contract is found to be void or unenforceable, the remainder of the Contract shall not be affected. The parties will replace any such void or unenforceable provision with a new provision that achieves substantially the same practical or economic effect and is valid and enforceable.

17.5 The following Articles shall survive termination or cancellation of the Contract: 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 14, 15, 16 and 17; however, if Seller terminates due to Buyer’s insolvency or breach, Buyer’s rights pursuant to the warranty and patent indemnity clauses in the Contract will end.

17.6 The Contract is the result of mutual negotiation and represents the entire agreement between the parties. No modification, amendment, rescission or waiver shall be binding on either party unless agreed in writing by the parties’ authorized representatives.

17.7 The Contract may be executed in multiple counterparts that together constitute one agreement.

17.8 Except as provided in the Article entitled “Limitation of Liability,” and regarding nuclear use, this Contract is for the benefit of the parties and not for any third party, and nothing confers any benefit or enforcement right under the Contracts (Rights of Third Parties) Act of 1999.

17.9 Only the specifications and standards explicitly cited in the statement of work, drawings or elsewhere in the Contract apply. Further specifications and standards cited in those explicitly referenced are only for guidance and are not binding on Seller.

17.10 All notices required or desired to be given must be in writing and delivered by hand or facsimile or sent by prepaid, recognized delivery service addressed to the party’s address provided in the Contract. Any notice will be deemed given on the date actually received. Either party may modify its address for notice by notice to the other party in accordance with this Article.

17.11 The parties are independent, and nothing in these terms creates a partnership or joint venture.

18. US Government Contracts

18.1 This Article 18 applies only if the Contract is for the direct or indirect sale to any agency of the U.S. government and/or is funded in whole or in part by any agency of the U.S. government.

18.2 Buyer agrees that all Products and Services provided by Seller meet the definition of “commercial-off-the-shelf” (“COTS”) or “Commercial Item” as those terms are defined in Federal Acquisition Regulation (FAR) 2.101. To the extent the Buy American Act, Trade Agreements Act, or other domestic preference requirements are applicable to this Contract, the country of origin of Products in unknown, unless otherwise specifically stated by Seller. Buyer agrees that any Services offered by Seller are exempt from the Service Contract Act of 1965 (FAR 52.222-41). Buyer represents and agrees that this Contract is not funded in whole or in part by American Recovery Reinvestment Act funds unless otherwise specifically stated in this Contract. The version of any applicable FAR clause listed in this Article 18 shall be the version in effect on the effective date of this Contract.

18.3 If Buyer is an agency of the US government, then as permitted by FAR 12.302, Buyer agrees that all paragraphs of FAR 52.212-4 (except those listed in 12.302(b) are replaced with these Terms and Conditions. Buyer further agrees the subparagraphs of FAR 52.212.5 apply only to the extent applicable for sale of COTS and/or Commercial Items and as appropriate for the Contract Price.

18.4 If Buyer is procuring the Products or Services as a contractor, or subcontractor at any tier, on behalf of any agency of the US government, then Buyer agrees that FAR 52.212-5 e or 52.244-6 (whichever is applicable) applies only to the extent applicable for sale of COTS and/or commercial items and as appropriate for the Contract Price.

This Addendum incorporates by reference the TERMS AND CONDITIONS FOR ENERGY CONSULTING SERVICES and includes additional provisions contained herein. In the event of any conflicts between this Addendum and TERMS AND CONDITIONS FOR ENERGY CONSULTING SERVICES, the Addendum shall take precedence.

1. Definitions.

“Course” is an individual or set of educational seminars related to a particular subject over a designated period of time.

“Participant” is an individual registered by Buyer to attend one or more Course.

"Training" is an instructional program prepared and provided by personnel proficient in the subject matter.

2. Payment. Tuition payment is due to Seller on or before the first day of the Course, and shall be made by company check, wire transfer, purchase order or by credit card (MasterCard or Visa) from Buyer. Tuition includes appropriate instruction, Course material and teaching facilities. Buyer is responsible for Participant’s transportation, lodging, meals and other expenses.

3. Warranty.

3.1 Seller warrants that Training will be provided by qualified instructors, but it does not assume responsibility for specific performance results by Participants.

3.2 If any failure to meet the foregoing warranty appears within the time span of the completion of a Course, if promptly notified in writing thereof, Seller will, at Seller's option, replace the assigned instructor or refund the tuition payment.

3.3 In the event a particular instructor is not available to teach a specific session because of job assignment, change in employment, illness, retirement or similar circumstance, Seller will endeavor to fill the teaching position with an equally competent instructor.

3.4 Minor additions or deletions may be made in the Course outline as required to optimize the educational value within the time schedule.

3.5 This Article provides the exclusive remedies for all claims based on failure of or defect in Training, and whether a claim, however described, is based on contract, indemnity, warranty, tort/extracontractual liability (including negligence), strict liability or otherwise. The warranties provided in this Article are exclusive and are in lieu of all other warranties and guarantees whether written, oral, implied or statutory. NO IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE APPLIES.

4. Cancellation Policy.

4.1 Upon receipt by Seller of written notification of cancellation at least 14 days prior to the start of a Course, Seller will refund to Buyer 100% of the Course tuition paid less any expenses (including legal fees) and administrative costs incurred by Seller in support of the Participant’s visa application.

4.2 Upon receipt by Seller of written notification of cancellation 7 to 13 days prior to the start of a Course, Seller will refund to Buyer 50% of the Course tuition paid less any expenses (including legal fees) and administrative costs incurred by Seller in support of the Participant’s visa application.

4.3 No refund will be issued if :

a. Participant attends any part of the Course,

b. Participant cancels less than 7 days prior to the start of a Course, or

c. Participant fails to attend a Course without providing advance written notice of cancellation.

4.4 Buyer may replace a Participant with a substitute from the same company upon notification in writing at least 5 days prior to the start of the Course.

5. Intellectual Property. All information and data originated by Seller shall be the sole property of Seller, and Seller may, at its sole option, copyright any or all Training materials, Training aids, and other copyrightable materials produced or furnished hereunder. There shall be no limitations on the Buyer or any Participants to the Training on the disclosure of any information or data provided as a part of the Training material.

6. Audio or Video Recording. Any audio or video recording of Seller's lecture material is considered an extension of Seller's copyright and is strictly prohibited.

7. General Clauses.

7.1 During the period of Training, Participant shall remain an employee of his or her company and Seller shall have no responsibility for payment of his or her compensation, benefits, living, medical, or travel expenses.

7.2 Tuition discount eligibility is based on the person who actually attends the Course.

7.3 Seller reserves the right to alter Course contents, change instructors, or to discontinue a Course in the event circumstances arise which in Seller's judgment makes further conduct of the Course inadvisable.