GENERAL TERMS & CONDITIONS (GTCs) OF ZECO’S
PRODUCT SALES, EQUIPMENT USE, & SERVICES
Agreement and Incorporation
Each proposal signed by authorized representatives of Buyer and Seller that incorporates these General Terms and Conditions (“Proposal”) is subject to these General Terms and Conditions (“GTCs”). “Buyer” means the legal entity identified as Buyer in the Proposal. “Seller” or “Zee” means ZECO, LLC dba Zee Company, a Nevada limited liability company with its principal place of business at 412 Georgia Ave, Suite 300, Chattanooga, TN 37403, including any of its divisions identified in the Proposal, if any. Buyer and Seller are each a “Party” and together “Parties.”
The signed Proposal, its expressly incorporated attachments, and the version of these GTCs identified in the Proposal together constitute “Agreement.” The Agreement becomes binding when authorized representatives of both Parties sign the Proposal. The date of the last signature on the Proposal is “Effective Date.” No separate signature on these GTCs, and no purchase order, is required to form the Agreement. These GTCs are Version 111126.0819TW, available at http://www.zeecompany.com/tandc. Later online changes do not amend an existing Agreement unless agreed between the Parties in writing.
The Proposal identifies the Facility, Products, Equipment, Services, Prices, other charges (if any), and Term. Capitalized terms defined in the Proposal have the same meanings here. Each Agreement applies only to the Facility identified in its signed Proposal. The Proposal supplements these GTCs only as to additional terms and matters these GTCs expressly leave to the Proposal. It does not override a conflicting GTC term unless both Parties expressly identify that specific GTC provision and agree to the specific override in the signed Proposal or a written amendment signed by both Parties. A Proposal amendment may address only matters identified in the Proposal and may not add a new Facility; each new Facility requires a separate Agreement signed by both Parties. Equipment title is governed by Part II, Section 2 and Part IV, Section 4, unless specifically overridden in accordance with this paragraph. A purchase order does not amend the Agreement. Technical and promotional attachments are not contract requirements unless expressly incorporated as such in the Proposal. No such exclusion limits an express warranty in the Agreement.
PART I
MASTER PROVISIONS
1. Requirements Contract. Under the terms and conditions of the Agreement and as more specifically identified in the Proposal, Seller loans to Buyer the Equipment intended for use solely by Buyer at the Facility owned or operated primarily by Buyer, in exchange for Buyer’s agreement to purchase all of its requirements for the Products from Seller at the Prices identified in the Proposal, as amended in accordance with the Agreement and specifically Part III, Section 15, “Price / Changes to Price.” This exclusive-purchase obligation is subject to the temporary alternative-sourcing exception in Part III, Section 27 and ends upon a Seller-default title transfer under Part IV, Section 4. Any additional Products sold by Seller, including services, test reagents, lab equipment, chemical feed equipment and controls, will be made available for sale to Buyer at Seller’s then-current book pricing upon Seller’s written consent.
2. Buyer’s Purchase Orders. Buyer agrees to purchase Products and Services from Seller throughout the Term by issuing a written purchase order (“PO”) referencing (A) the Agreement; (B) the quantity of Product or scope of Services required; (C) the requested delivery or performance date; (D) confirmation of the delivery or work address; (E) the Price agreed in the Proposal; and (F) any other pertinent delivery or work details necessary for Seller’s timely performance. Except for those listed in this Section, additional or contrary terms in Buyer’s PO have no effect on the Agreement or Seller’s obligations.
3. Terms and Conditions. These GTCs govern Products, Services, and Equipment under the Agreement, subject to the order of precedence under “Agreement and Incorporation.” Part III, Sections 1 and 32 govern conflicting terms and the entire agreement.
4. Term of Agreement. The Agreement continues for the Term stated in the Proposal, subject to its termination provisions. Proposal amendments are subject to the signed-writing, scope, and separate-Facility requirements under “Agreement and Incorporation.”
5. Notices. Notices regarding the Agreement must be addressed to the representatives and notice addresses identified in the Proposal. If the Proposal does not designate a separate notice address, notices to Buyer must be sent to its address identified in the Proposal and notices to Seller to ZECO, LLC dba Zee Company, Attention: Chief Operating Officer with copy to Director of Contracts and Risk, 412 Georgia Ave., Suite 300, Chattanooga, TN 37403. Notices must be delivered personally, by nationally recognized overnight courier, or by certified mail, return receipt requested. Notices are effective on delivery or documented refusal of delivery. Either Party may change its notice recipient or address by notice under this Section. Routine PO, delivery, invoice, and operational communications may be exchanged electronically using the contacts designated by the Parties.
PART II
FACILITY COMMERCIAL PROVISIONS
1. Facility and Product Prices. For non-commodity goods only, Prices are fixed for twelve (12) months from the Effective Date and subsequent anniversaries during the Term, subject to Part III, Section 15. Prices of commodity goods, buy-out Products, and Products subject to changes in tariffs or taxes are driven by market, political, or legal conditions largely outside Seller’s control and are subject to change as provided in Part III, Section 15.
2. Equipment. The Proposal identifies the Equipment to be provided at the Facility, quantities, market values as of the Effective Date, and shipping, installation, and any other relevant costs, if any.
A. Ownership and Return. Equipment provided for Buyer’s use remains Seller’s property unless title transfers following Seller’s default or under the 90-day collection provision in Part IV, Section 4. Buyer has no purchase or buyout option. Except for the express transfers under Part IV, Section 4, installation, use, expiration, termination, satisfaction of exclusivity obligations, and payment of any amount do not transfer title. Neither a stated market value nor a charge in the Proposal creates a purchase right. Equipment separately sold to Buyer must be identified in a separate written sale agreement signed by both Parties and is not Equipment provided for use under this Agreement. No equipment buyout or market-value amortization charge is due upon expiration or termination. Buyer remains responsible for applicable accrued charges, removal costs (if any), and casualty obligations each as expressly allocated to it under the Agreement. Equipment reference values are not accounting depreciation schedules. Risk of loss is allocated separately from title under Part IV, Sections 1.B. and 4.
3. Products. The Proposal identifies and classifies the Products, including Product names, item numbers, Prices per unit of measure, commodity, non-commodity, buy-out, and stock or nonstock status, as applicable.
A. Product Shipping Costs.
i. Orders meeting minimum requirements. Unless otherwise stated in the Proposal, orders meeting the minimum requirements are shipped FOB Destination / Freight Allowed. Seller pays freight for orders weighing at least the minimum shipment stated in the Proposal.
ii. Orders below minimum requirements. Unless otherwise stated in the Proposal, orders not meeting the minimum weight requirements are shipped FOB Destination / Pre-Pay and Add Freight. Seller initially pays freight and invoices Buyer under the Payment Terms for orders below the Proposal’s shipment weight minimum.
iii. Rush Orders. Seller invoices Buyer for its then-current Rush Order Fee, payable under the Payment Terms. The freight rules above in subsection ii also apply to Rush Orders only if the order falls below the Proposal’s shipment weight minimum.
4. Services. The Proposal identifies the Services, performance schedules, and associated costs, if any.
ANY SERVICE PROVIDED BY SELLER AT NO ADDITIONAL COST IS SUBJECT TO THE AGREEMENT, INCLUDING PART III, SECTION 20, “INFORMATION & SUPPORT.”
PART III
GENERAL TERMS AND CONDITIONS OF AGREEMENT
Parties to Purchase Order
Seller shall furnish Products and Equipment and perform Services specified in Buyer’s written PO in accordance with the Agreement, including this Part III.
1. Contract Formation. Formation and amendments are governed by “Agreement and Incorporation.” Additional or different terms proposed before execution are rejected unless included in the signed Agreement. Terms proposed afterward, including in a PO, have no effect unless expressly agreed in writing by both Parties’ authorized representatives. After formation of the Agreement, Seller accepts the quantities and delivery directives of a subsequently issued PO on the earlier of (A) returning its acknowledgment electronically or in writing or (B) commencing performance of that PO. No other form of PO acceptance binds Seller. PO acceptance does not amend the Agreement or incorporate Buyer’s general terms.
2. Independent Contractor; Barring Use of Logo, Name, Image, or Publicity. The Parties are independent contractors. The Agreement creates no agency, employment, fiduciary relationship, partnership, or joint venture. Neither Party may use or reproduce the other’s name, brand, logo, or image, claim an association with it, or include it in advertising, promotional materials, public statements, or press releases without express permission.
3. Representations. Seller represents to Buyer that it is properly equipped, organized, staffed, financed, experienced, qualified, insured, and licensed to perform the work and/or provide the services under this Agreement. Any work or services to be performed by Seller in connection with the Products or services at any site or premises of Buyer shall be performed (A) in accordance with all provided scope or specifications; (B) with the skill, care and diligence expected of an experienced professional performing similar work or services; and (C) in accordance with Seller’s drug and alcohol policies.
4. Warranty. Seller warrants to Buyer that Buyer will receive Products and Equipment that conform to the provided specification in a timely manner in the quantities requested. Neither Products and Equipment, nor Buyer’s use of them, including but not limited to intellectual property rights, infringe upon any trade secret, patent, trademark, copyright or other intellectual property or proprietary right of any third party. As of the date of shipment by Seller, Products and Equipment are in accordance with the specifications and indications described in the labeling, and have been properly manufactured, processed and labeled. Seller expressly warrants that all services shall be performed in a good and workmanlike manner in accordance with applicable specifications and industry standards. Seller agrees that the foregoing warranties shall be in effect twelve (12) months from the date of initial installation by Seller or, for chemicals and consumables only, the manufacturer’s stated warranty or shelf life. Transfer of Equipment title under Part IV, Section 4 does not create or renew a warranty or extend its stated duration.
5. Limitations. The warranties under this Agreement do not apply where the Products or Equipment are defective or have become defective as a result of having been subjected to (A) abuse, misuse, neglect, negligence; (B) improper storage, improper handling, abnormal physical stress, abnormal environmental conditions; (C) use contrary to any instructions issued by Seller or any manufacturer of Products or Equipment provided hereunder; (D) relabeling, rebottling or any repackaging or reverse engineering of any kind whatsoever; (E) reconstruction, reconstitution, or other alteration by persons other than Seller or its authorized representative; or (F) use with any third-party product not previously approved in writing by Seller.
6. Disclaimer. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, SELLER MAKES NO OTHER WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, EQUIPMENT, OR SERVICES PROVIDED HEREUNDER, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY OF TITLE; WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER PERSON ON SELLER’S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT. THIS DISCLAIMER DOES NOT NEGATE AN EXPRESS EQUIPMENT TITLE TRANSFER UNDER PART IV, SECTION 4.
7. No Liability for Consequential or Indirect Damages. TO THE FULLEST EXTENT PERMITTED BY LAW, AND SUBJECT TO PART IV, SECTION 3 SOLELY FOR ITS EXPRESS THIRD-PARTY INDEMNITY AND COVERED DEFENSE COSTS, NEITHER PARTY (NOR ITS AGENTS, EMPLOYEES, REPRESENTATIVES AND ASSIGNS) IS LIABLE TO THE OTHER PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. THIS EXCLUSION DOES NOT EXCUSE PAYMENT OF AMOUNTS EXPRESSLY DUE UNDER THE AGREEMENT OR EXCLUDE LIABILITY THAT CANNOT LEGALLY BE EXCLUDED.
8. Maximum Liability. TO THE FULLEST EXTENT PERMITTED BY LAW,, SELLER’S AGGREGATE LIABILITY TO BUYER ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, THIRD-PARTY CLAIMS OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER PURSUANT TO THIS AGREEMENT. THIS LIMIT DOES NOT APPLY TO SELLER’S WILLFUL MISCONDUCT OR LIABILITY THAT CANNOT LEGALLY BE LIMITED. SELLER’S INSURANCE DOES NOT INCREASE THIS LIMIT. THIS SECTION LIMITS CONTRACTUAL RECOVERY BY BUYER AND DOES NOT LIMIT A NONPARTY’S INDEPENDENT RIGHTS.
9. Assumption of Risk. SUBJECT TO THE EXPRESS COVENANTS AND LIMITATIONS IN THIS AGREEMENT, BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY PRODUCTS OR EQUIPMENT IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY SELLER, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE PRODUCTS.
10. Change Orders. Buyer may at any time, in writing, direct or authorize Seller to make changes or modifications to any PO issued under this Agreement without additional cost provided such Products have not been packaged for shipment. If Products have been packaged for shipment or if such changes or modifications otherwise necessitate an increase or decrease in the amount due or in the time required for performance, such matters shall be agreed upon in writing prior to proceeding with the change.
11. Payment Terms. Invoices for all Products or services performed or provided by Seller are due within thirty (30) calendar days of the date of the invoice (“Payment Term”). Any payment not received within the Payment Term shall accrue interest monthly at the lesser of one and a half percent (1.5%) or the legal limit until the outstanding invoice balance is paid in full. If Buyer, in good faith, disputes the accuracy of any amount invoiced by Seller, Buyer shall pay all amounts it otherwise believes correct and provide written notice of the disputed amounts before the end of the Payment Term. Such notice shall state the reasons Buyer believes the remaining amount is incorrect and provide supporting documentation. Seller shall not be entitled to interest on late payment of invoice amounts properly disputed by Buyer in good faith. Buyer’s payment of any undisputed portion shall not compromise Buyer’s right to dispute in good faith any other amount it deems inaccurate.
12. Invoices. Seller shall provide invoices to Buyer in accordance with Buyer’s reasonable written directions. Any fees, charges, or other costs related to any system, platform, or payment program required by Buyer for Seller to invoice Buyer for Products or Services under the Agreement shall be fully reimbursed by Buyer.
13. Taxes. Buyer shall be solely responsible for and pay all federal, state, and local taxes, including but not limited to value added tax, Products and other goods and Services tax, sales, use or consumption tax. No sales or use tax shall be added when a valid tax exemption is provided by Buyer and indicated on the face of the PO. If tax applies to the purchase, Seller shall itemize it on its invoices.
14. Release of Liens. Upon receipt of amounts properly invoiced, Seller waives and releases all rights, for itself and its subcontractors, if any, and at its sole cost shall obtain prompt removal of any lien fixed against Buyer for Products or services performed under the Agreement.
15. Price / Changes to Price. Buyer shall purchase Products from Seller at the Prices agreed in the Proposal. Shipping costs are governed by Part II, Section 3 and the Proposal. Unless otherwise stated in the Proposal, Prices include all costs associated with handling and packaging reasonably necessary to protect Products from reasonably foreseeable typical damage in transit. Changes to Prices are subject to the following: (A) all changes must be in writing; (B) for non-commodity goods identified in the Proposal, Seller shall notify Buyer of a change no more than once annually and at least thirty (30) days before the anniversary of the Effective Date, when the change becomes effective; (C) for commodity goods and buy-outs identified in the Proposal, Seller shall notify Buyer at least ten (10) days before the effective date of a change; and (D) notwithstanding the foregoing, for imported Products subject to materially changed tariffs, duties, additional taxes or fees, Seller may change Prices to reflect its added cost and shall endeavor in good faith to notify Buyer as soon as practical after learning of the change, but at least ten (10) days before the Price change is effective. If the Parties cannot agree on a Price by the proposed effective date, Prices remain as agreed and either Party may terminate under Section 30. The early-termination provisions, including those concerning Equipment, apply.
16. Lead-time & Shipping Terms. The time needed for Seller to prepare Products for shipment (“Lead-time”) is as follows: (A) standard stock Products are shipped within three (3) business days after receipt of PO (“ARO”); (B) nonstock Products are shipped within five (5) business days ARO; and (C) POs combining stock and nonstock Products are shipped within five (5) business days ARO. Lead-time begins on the date of PO submission for POs received before 1400 EST. For POs received after 1400 EST, Lead-time begins the next business day. A PO is a “Rush Order” if, when placing it, Buyer requests an expedited Lead-time, or one shorter than stated above, for all or part of the PO. The fee under Part II, Section 3.A applies. Products ship FOB Destination. Freight allocation is governed by Part II, Section 3; title and risk pass under Sections 17 and 21. Non-commodity chemicals or products are a subset of Products typically consisting of raw or bulk materials used in manufacture of finished goods but potentially used in Buyer’s sanitation process. The specific stock, nonstock, commodity, and non-commodity classifications agreed in the Proposal govern the Products sold under the Agreement.
17. Title & Risk of Loss. Title to and risk of Products pass to Buyer upon acceptance under Section 21 below. To the extent the FOB Destination provisions address delivery rather than acceptance, this Section governs passage of title and risk. Ownership and return of Equipment provided for use are governed by Part II, Section 2.A and Part IV, Section 4. Product acceptance does not transfer Equipment title.
18. On-Time Delivery. Seller shall use reasonable commercial efforts to package and deliver Products on time and in the quantities described in the PO. All Products must be packaged for transport in accordance with applicable laws and in a manner reasonably ensuring arrival in good condition. Where delays are anticipated, Seller will make reasonable commercial efforts to inform Buyer. In no event is Seller liable to Buyer for loss or damage arising from delay in filling any order, failure to deliver any Product or Equipment, or delay in delivery of any Product, Equipment, or Service. This limitation does not prevent a default, termination, or express Equipment title transfer under the Agreement.
19. Force Majeure. Seller shall not be liable to Buyer for delay or failure in performing its obligations under the Agreement or any PO to the extent caused by an event or circumstance beyond Seller’s reasonable control, without Seller’s fault or negligence, and which by its nature could not have been foreseen by Seller (“Force Majeure Event”). Such events include acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemics or pandemics, war, invasion, terrorist acts, riots, strike, or embargoes. Seller shall use all reasonable commercial efforts to end the failure or delay, minimize its effects, and resume performance as quickly as possible. Part IV, Section 4.D governs the firm 90-day title-transfer deadline notwithstanding this Section.
20. Information & Support. Buyer acknowledges that it is (A) solely responsible for compliance with applicable regulations, including its duty to inform, warn, and train employees and others on the safe use, transport, or storage of Products and Equipment warehoused, present, or otherwise in use at its Facility; and (B) responsible for maintaining, distributing, providing, posting, or otherwise making available to those persons information and documents, including Safety Data Sheets (“SDS”) and manufacturers’ recommendations, warranties, and instructions (“Manufacturer’s Recommendations”).
Without limiting or assuming those obligations, Seller agrees to assist as follows:
A. SDS. At shipping, Seller will provide an SDS for each Product as part of delivery at the Facility. If Buyer does not otherwise possess the current relevant SDS, it shall notify Seller at info@vincitgroup.com if a Product arrives without one. Seller shall provide an electronic copy within five (5) business days after notification.
B. Manufacturer’s Recommendations & Warranties. Seller will convey all relevant Manufacturer’s Recommendations for Products it manufactures. Seller will also convey relevant third-party Manufacturer’s Recommendations and warranties, which Buyer receives “as is” and, except to the extent due to Seller’s gross negligence or willful misconduct, without additional warranty or assumption of liability by Seller.
C. Auxiliary Support. As agreed in the Proposal or a subsequent written instrument and conditioned on Buyer’s agreement to this Section, Seller may provide other services, support, and information to assist Buyer with the obligations above (“Auxiliary Support”). Auxiliary Support is provided in good faith as a courtesy without additional cost and is not professional advice on which Buyer may reasonably rely to maintain safe and compliant operations. Buyer acknowledges that Auxiliary Support is (A) supplemental to Buyer’s own safety, operations, or training programs, processes, and procedures; (B) not professional, medical, or legal advice; and (C) not a substitute for SDS information, Manufacturer’s Recommendations, or rules and regulations of a governing body with authority and jurisdiction, each of which controls over suggestions or directives in Auxiliary Support. Auxiliary Support may include supplemental Product and Equipment familiarization training for the sole purpose of acquainting users with their use and presence at the Facility (“Supplemental Training”). Supplemental Training may contain exemplary or outdated imagery and information concerning Products and Equipment currently or previously used and is not an exhaustive or complete compliance, operations, or safety program. It does not relieve Buyer of its obligations to inform, properly equip, or train employees, visitors, agents, representatives, invitees, or others regarding Products or Equipment, nor engage Seller as Buyer’s agent to meet those obligations.
D. Seller’s Disclaimer. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE AGREEMENT OR AUXILIARY SUPPORT, SELLER EXPRESSLY WARNS BUYER AGAINST (A) MIXING, BLENDING, OR OTHERWISE COMBINING PRODUCTS, WHETHER LIKE PRODUCTS OR OTHERWISE, WITH ANY OTHER SUBSTANCE; (B) RELYING ON AUXILIARY SUPPORT FOR SELECTION, PROVISION, SUITABILITY, OR APPLICATION OF PERSONAL PROTECTIVE EQUIPMENT (“PPE”); (C) RELYING ON AUXILIARY SUPPORT FOR FIRST AID, PROFESSIONAL OR MEDICAL ADVICE, OR EMERGENCY RESPONSE; (D) INDEPENDENTLY REPAIRING, RELOCATING, OR REVERSE ENGINEERING PRODUCT OR EQUIPMENT; OR (E) USING CHEMICALS, SUBSTANCES, GOODS, OR PRODUCTS IN EQUIPMENT WITHOUT SELLER’S PRIOR WRITTEN APPROVAL. EXCEPT TO THE EXTENT DUE TO SELLER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, BUYER BEARS ANY COSTS, FEES, FINES, LIABILITIES, JUDGMENTS, CLAIMS, INJURIES, DAMAGES, OR EXPENSES ARISING FROM ACTIONS CONTRARY TO THESE WARNINGS.
21. Inspection, Acceptance & Nonconforming Products. Buyer shall inspect Products for appropriate quantity and conformity to agreed specifications within five (5) business days after delivery (“Inspection Period”). Buyer shall (A) accept Products; (B) reject nonconforming Products (“Nonconforming Products”); or (C) notify Seller of missing or damaged quantities, including missing SDS or Manufacturer’s Recommendations. Buyer is deemed to accept Products unless it notifies Seller in writing of Nonconforming Products within the Inspection Period and furnishes written evidence or other documentation reasonably required by Seller. Upon timely notice, Seller shall determine in its reasonable discretion whether Products are nonconforming. If so, Seller shall either (i) replace them with conforming Products or (ii) refund their Price and Buyer's related shipping and handling expenses. Buyer shall return Nonconforming Products at Seller’s expense and risk to Seller’s designated facility. If Seller elects replacement, it shall ship replacements at its expense to the delivery location after receiving the return. If services are nonconforming, Seller shall reperform them until they meet the agreed scope and outcomes. Buyer shall give written notice of previously unnoticed defects before the warranty period expires, and Seller shall have a reasonable time to cure. BUYER ACKNOWLEDGES THAT THESE REMEDIES ARE ITS EXCLUSIVE REMEDIES FOR DELIVERY OF NONCONFORMING PRODUCTS UNDER THE AGREEMENT AND SUBSEQUENT POs. These exclusive Product remedies do not negate the express Equipment title transfers or release of exclusivity under Part IV, Section 4.
22. Indemnity. To the extent of its negligence, each Party (“Indemnifying Party”) agrees to defend, indemnify, and hold harmless the other Party and its shareholders, affiliates, officers, directors, employees, and agents from claims, losses, liabilities, costs, and expenses, including investigation costs and reasonable attorney’s fees, directly or indirectly relating to, resulting from, or arising out of a breach of representation, warranty, or covenant or any action or failure to act arising out of the Agreement by the Indemnifying Party or its shareholders, affiliates, representatives, officers, directors, employees, or agents. Seller’s obligations under this Section are subject to Sections 7 and 8; Part IV, Section 3 governs Buyer’s specific Equipment indemnity.
23. Insurance. Until completion of Services and/or satisfaction of the PO, Seller shall at its expense maintain insurance with financially sound and reputable insurers, including (A) commercial general liability, including product liability, of at least $1,000,000 per occurrence and $2,000,000 aggregate; (B) workers’ compensation insurance complying with the laws of each jurisdiction affected by the PO; and (C), if motor vehicles are used or provided in performing the PO, automobile insurance for personal injury and property damage liabilities with limits of at least $1,000,000. Upon request, Seller shall provide Buyer a certificate evidencing insurance naming Buyer as additional insured under Seller’s commercial general liability policy to the extent provided by endorsement for liability arising from Seller’s performance. A certificate alone does not create insured status. This Section does not require Seller to obtain Equipment property or cargo insurance.
24. Assignment. Except as allowed by process of law, neither Party shall assign or subcontract its rights or obligations without the other’s prior written permission. Buyer’s permission does not discharge Seller’s obligations under acknowledged POs. Any delegation of duties must be agreed by properly executed novation.
25. Confidentiality. All non-public, confidential, or proprietary information of either Party, including specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, pricing, discounts, and rebates, disclosed orally, in writing, electronically, or otherwise in connection with the Agreement or a PO, whether or not marked confidential, is confidential and may be used solely to perform the Agreement. The receiving Party will protect it with reasonable care and may disclose or copy it only as reasonably necessary for that purpose to its employees, contractors, and professional advisers who need to know it and are bound by confidentiality duties at least as protective as this Section, or with the disclosing Party’s written authorization. The receiving Party is responsible for those recipients’ compliance with this Section. Upon written request, the receiving Party will promptly return all documents and other materials received or destroy them at the disclosing Party’s election, including copies. The receiving Party may retain copies required by law and routine backup copies not reasonably accessible in ordinary operations, subject to this Section; it may not use retained information except as required by law. The disclosing Party may seek injunctive relief for violation of this Section, subject to the court’s requirements; this does not expand recoverable damages under Sections 7 and 29 or displace Section 8’s liability limit. This Section does not apply to information (A) in the public domain other than through a breach of a confidentiality duty; (B) rightfully and legally known to the recipient at disclosure; or (C) rightfully and legally obtained non-confidentially from a third party without breach of a confidentiality duty; or (D) independently developed without use of the disclosing Party’s confidential information. If disclosure is legally required, the receiving Party may disclose only what is required and, to the extent legally permitted, will give prompt advance notice and reasonably cooperate, at the disclosing Party’s expense, in seeking confidential treatment. These duties continue after expiration or termination without a fixed time limit, for as long as the information remains confidential under this Section.
26. Intellectual Property (IP). Seller expressly warrants that to furnish Products and/or Services under the Agreement do not violate, misappropriate, or infringe any trade secret, patent, trademark, copyright, or other third-party property right, including third-party license rights. Seller shall indemnify, defend, and hold Buyer harmless against such claims concerning Products or services Seller provides. Seller’s obligations under this Section are subject to Sections 7 and 8. Notwithstanding other provisions, Seller or the applicable third-party owner retains ownership and title to its IP, including firmware, software, related copyrights, and copies. Except as otherwise provided, Buyer receives a nonexclusive, royalty-free license during the Term to use firmware, software, and copies solely to operate Equipment as permitted by the Agreement. That license ends upon expiration or termination, except for limited use expressly authorized by Seller in writing for safe shutdown or removal. Buyer’s use of firmware specified by Seller and all other software is governed exclusively by Seller’s or the third-party owner’s applicable license terms. Equipment title transfer does not transfer IP ownership or independently grant or revive a license; Part IV, Section 4.E applies.
27. Default. Seller is in default upon (A) sustained, reckless, or repeated breach of material obligations, including failure to perform promised Services, repeated uncured Nonconforming Products, or failures of on-time delivery; (B) repeated failure or flagrant disregard of safety or environmental regulations or relayed or posted plant policies and procedures; (C) insolvency or inability to meet the financial burden of performance; or (D) willful misconduct or violation of law. Buyer is in default if it (i) purchases any amount of Product from another supplier, except for documented temporary purchases reasonably necessary to meet Buyer’s requirements when Seller cannot supply conforming Product within the agreed delivery requirements, after Buyer gives Seller prompt written notice and a reasonable opportunity to supply; any substitute used in Equipment must satisfy manufacturer specifications and Seller’s reasonable written compatibility requirements; this exclusive-purchase restriction no longer applies after the release under Part IV, Section 4.C; (ii) fails to pay an amount properly due and leaves that failure uncured for ten (10) days after written notice; (iii) becomes insolvent or unable to pay creditors; (iv) significantly alters Equipment location or mechanics without Seller’s prior written consent; (v) attempts or facilitates replication or reverse engineering of Products or Equipment; (vi) attempts or facilitates transfer of Equipment ownership, title, or interest to Buyer or another party except as expressly permitted by Part IV, Section 4 or Seller’s express written authorization; or (vii) misuses Equipment with Products not approved in writing by Seller for that Equipment. Items (iv), (vi), and (vii) apply only while Seller owns the Equipment; they do not restrict Buyer’s ownership rights after an authorized title transfer. Item (v) remains subject to the retained IP rights under Section 26.
28. Disputes. In a dispute arising out of or related to the Agreement, each Party bears its own attorney’s fees, expert fees, preparation fees, travel, and similar costs. Costs taxed by a court or tribunal, or fees charged by a third party assisting with dispute resolution, are split between the Parties. This Section does not exclude defense costs expressly recoverable under Part IV, Section 3.
29. Remedies. The remedies reserved in the Agreement are exclusive and not in addition to other remedies at law or equity available to Buyer. Election of one or more remedies does not exclude others unless incompatible. The damages exclusion in Section 7 applies, including its express exceptions and legally required limitations. Section 8’s aggregate liability limit also applies. Neither this Section nor those monetary limitations prevent an express Equipment title transfer, the release of exclusivity under Part IV, Section 4.C, or a request for injunctive relief expressly permitted by the Agreement.
30. Termination. Either Party may terminate for cause on ten (10) days’ written notice stating the uncured default under Section 27, or for convenience on thirty (30) days’ written notice. Equipment title transfer and return obligations are governed by Part IV, Section 4, including its separate cure periods. A for-cause termination does not shorten Seller’s thirty-day cure period for Equipment title transfer. If Buyer terminates due to Seller’s asserted default before that cure period expires, Buyer will safeguard and insure the Equipment but need not ship it or perform removal-related restoration pending the outcome of that cure period, as provided in Part IV, Section 4. C. Termination does not affect a PO on which Seller has begun performance unless Seller agrees to terminate it. Buyer shall pay accrued amounts properly due for Products, Equipment use, and Services and other costs expressly allocated to Buyer under the Agreement. Part II, Section 2.A governs the absence of equipment buyout charges. In addition to and without waiving other remedies available to Seller at law or equity, upon Buyer’s default or early termination for reasons other than Seller’s material breach, Seller may enter the Facility or another location to which Equipment has been moved, take possession of and remove Equipment, and hold, sell, lease, or otherwise dispose of it, subject to the collection notice, access, and removal requirements in Part IV, Section 4. Recovery without court process is permitted only to the extent legally permitted and without breach of the peace; otherwise Seller must obtain appropriate judicial relief. After any default notice and cure period required by Section 27 and Part IV, Section 4, no additional default notice is required for recovery; the collection notice and access requirements in Part IV, Section 4 and legally required notice and process still apply. Seller is not relieved of liability to the extent its negligence or willful misconduct directly causes damage to Buyer’s Facility or injury to persons. Seller may collect unpaid amounts properly due for Products without prejudice to its right to regain Equipment or exercise other available rights. These recovery and disposal rights apply only while Seller owns the Equipment and end upon title transfer under Part IV, Section 4; accrued payment claims survive.
31. Governing Law & Venue. The Agreement and the Parties’ legal relationships are governed by Tennessee law. All claims or causes of action, whether in contract, tort, or statute, based on, arising out of, or related to the Agreement, including negotiation, execution, performance, representation, warranty, or inducement, are governed and enforced under Tennessee internal law without its conflict-of-laws principles. Exclusive venue is in state or federal courts located in Hamilton County, Tennessee. The Parties consent to those courts’ personal jurisdiction and waive objections to jurisdiction or venue, including forum non conveniens.
32. Entire Agreement. The Agreement is the entire agreement on its subject matter and supersedes other oral or written provisions. No trade usage, prior course of dealing, or course of performance is part of the Agreement or may be used to interpret it. Modification requires both Parties’ express written agreement. The order of precedence and fixed-version provisions under “Agreement and Incorporation” apply.
33. Severability. If a court of competent jurisdiction holds a provision invalid or unenforceable in whole or part, the remainder remains valid and enforceable. If the determination results from a provision’s scope or breadth, it remains enforceable to the extent permitted by law, and unaffected conditions or parts shall be enforced to the fullest extent allowed.
34. Survival of Obligations. Seller’s warranties, liability for defective or nonconforming Products and services, representations, and other undertakings or obligations concerning compliance with governing law, audit, indemnity, and dispute resolution survive consummation, cancellation, or termination and remain in effect subject to their stated duration, scope, and the liability limitations in Part III, Sections 7 and 8. Accrued payment obligations and obligations concerning confidential information and retained intellectual property likewise survive to the extent necessary to give them effect. Equipment ownership, cessation of use, safeguarding, insurance, return, collection, casualty, and related indemnity obligations survive to the extent necessary to give them effect, subject to Part IV, Section 4’s express title-transfer and waiver provisions. Survival does not extend routine maintenance or operational support beyond the Term.
35. Electronic / Facsimile Transmission. The Proposal and amendments may be signed electronically and in counterparts, which together form one signed document. Transmission of a signed Proposal, amendment, or PO by fax or other electronic means has the same significance as delivery of an executed original. No signature on the posted GTCs is required.
36. No Waiver. Delay, failure, or refusal to exercise or enforce a right does not impair it or waive existing or future rights. A single or partial exercise does not preclude further exercise. A waiver must be written and signed by the waiving Party. An express waiver on one occasion does not waive the same right on another occasion This Section does not prevent an automatic title transfer expressly required by Part IV, Section 4.
37. Authority to Sign. Each person signing the Proposal or an amendment represents that they have read, understand, and are authorized to bind the Party on whose behalf they sign to the Agreement or amendment, including these incorporated GTCs.
Part IV
Additional Terms and Conditions of Equipment
This Part governs Equipment provided for Buyer’s use at the Facility. The Proposal specifies permitted Equipment charges and scope commitments; Part II, Section 2.A and Section 4 below govern title transfer. The order of precedence under “Agreement and Incorporation” applies.
1. Maintenance and Repair of Equipment.
A. Seller’s Responsibilities. During the Term at the Facility, Seller will perform all necessary routine maintenance and repairs attributable to normal wear and tear. Except as described in the Agreement, Seller is relieved of responsibility to maintain or repair Equipment. These routine maintenance, repair, and operational-support obligations end on the effective date of expiration or termination, including Buyer’s early termination, or upon an earlier title transfer under Section 4. This does not excuse Seller’s liability for its negligence, willful misconduct, defective prior work, or unsafe removal, or its collection and safe-removal obligations under Section 4 while those obligations remain applicable.
B. Buyer’s Responsibilities. Buyer is responsible for Facility readiness for Equipment delivery, installation, maintenance, and operation, including all necessary utilities, connections, access, and the items below. Seller’s delivery and installation commitment and Equipment charge do not include Buyer’s readiness obligations unless the Parties expressly agree to a specific override under “Agreement and Incorporation.”
i. Buyer is responsible for maintenance, repair, and replacement costs attributable to its misuse, abuse, or neglect, including use of goods other than Products without Seller’s written consent. If Equipment is lost, damaged, or destroyed while in Buyer’s custody or authorized storage and while Seller owns it, Buyer shall arrange Seller-approved repairs or pay the reasonable replacement cost, except for ordinary wear and tear and to the extent caused by Seller’s negligence, willful misconduct, or breach of the Agreement. Insurance proceeds and salvage value received by Seller will be credited against liability for the same loss; Seller will not recover twice. Payment does not transfer title. After expiration or termination, Section 4 controls risk of loss over this paragraph; Buyer remains responsible to the extent loss is caused by its negligence, willful misconduct, unauthorized use, or breach of its safeguarding obligations.
ii. Buyer provides necessary structural penetrations to the existing Facility.
iii. Buyer provides necessary concrete pedestals and/or supports.
iv. Buyer ensures adequate overhead clearance and access for installation, maintenance, and repair, and that exposed, overhead, or underground utility lines or active power, water, or pressure sources are isolated and locked out.
v. Buyer provides utilities and connections required for installation and operation, including rigging or crane, electricity, water, sewer, instrument air, adequate piping and electrical connections, internet, air or airflow, proper lighting, and HVAC.
vi. Buyer is responsible for necessary permits, licenses, fees, engineering studies, including load, elevation, and bearing calculations, and other engineering or regulatory clearances required for safe and compliant installation and operation.
2. Buyer’s Insurance. Throughout the Term and afterward while Seller-owned Equipment remains in Buyer’s custody or authorized storage, and during a Buyer-required return under Section 4.A until delivery to Seller’s designated return location, Buyer will maintain at its expense the coverage below. These Equipment coverage and endorsement requirements end prospectively when title transfers under either transfer provision in Section 4, without affecting coverage or claims for earlier events; for Seller-arranged collection, they end when Seller or its collection carrier takes possession, subject to claims for earlier events:
A. General liability insurance on an occurrence basis covering liability for injury or death and property damage arising out of Equipment use and operation, with combined single limits of at least $1,000,000 per occurrence and $2,000,000 aggregate, naming Seller as additional insured for Buyer’s Equipment use.
B. All-risk (open perils) property insurance expressly covering Seller-owned Equipment at full replacement cost, including authorized storage, loading, and transport and unloading through delivery on Buyer-required returns under Section 4.A, regardless of the carrier used. Customary exclusions and deductibles are subject to Seller’s reasonable written approval. Buyer bears approved deductibles.
Insurers must have an A.M. Best rated A- or better. Buyer’s general liability policy must provide by endorsement that coverage afforded to Seller as additional insured for liability arising from Buyer’s Equipment use is primary and noncontributory to Seller’s own liability insurance. This requirement does not apply to property insurance; property-policy priority and other-insurance provisions remain governed by the policy and its endorsements, without reducing Buyer’s express coverage obligations. The property policy must identify Seller’s ownership and name Seller as loss payee by endorsement. Equipment-loss proceeds will be payable to Seller, subject to insurer-approved repair arrangements, and applied to repair or replacement or credited against Buyer’s liability for the same loss. Payment does not transfer title or permit duplicate recovery. Buyer will provide certificates and relevant coverage, additional-insured, loss-payee, and waiver endorsements before Equipment delivery and upon renewal. Buyer will promptly notify Seller upon learning of cancellation, nonrenewal, or material reduction of required coverage; Buyer will request insurer endorsements providing at least thirty (30) days’ written notice to Seller before material changes, cancellation, or nonrenewal; insurer notice obligations apply only to the extent endorsed. Seller is not required to arrange Equipment property insurance for return transit. Before a Buyer-required return, Buyer will obtain written confirmation from its insurer or broker that the planned loading, transportation, and unloading are covered through delivery. If coverage is unavailable, Buyer will promptly notify Seller and obtain a written agreement on an alternative before shipment; this does not automatically extend a return or transfer deadline. Seller’s choice not to obtain transit property insurance does not relieve it of risk expressly allocated to it under Section 4. Insurance does not excuse either Party or a carrier from liability for damage it causes, subject to the Agreement’s waivers and limitations..
3. Waiver of Subrogation / Indemnity
A. Buyer will obtain an insurer-endorsed waiver of subrogation in Seller’s favor under the required Equipment property insurance.
B. Buyer waives its own claims against Seller for Equipment loss or damage only to the extent covered and paid by the required property insurance and permitted by the policy. This waiver excludes Seller’s willful misconduct and liability that cannot legally be waived, does not apply to bodily injury or death, and does not release nonparties’ claims.
C. Failure to obtain required insurance or endorsements is a breach of the Agreement. Buyer remains responsible for its express casualty obligations and losses caused by that failure, but an insurer is not bound by a waiver it has not issued.
D. Buyer will defend, indemnify, and hold Seller harmless against third-party claims, damages, and reasonable defense costs to the extent caused by Buyer’s negligence, willful misconduct, unauthorized Equipment use, breach of its post-term safeguarding duties, or violation of law in connection with Equipment, including acts of persons for whom Buyer is legally responsible. This excludes amounts caused by Seller’s negligence, willful misconduct, defective prior work, unsafe removal, or breach of its collection duties. Seller will promptly notify Buyer of a claim, permit Buyer to control the defense with reasonably acceptable counsel and reasonably cooperate at Buyer’s expense. Delayed notice relieves Buyer only to the extent materially prejudiced. If Buyer fails promptly to assume the defense, Seller may defend and recover reasonable covered defense costs. Buyer may not settle without an unconditional release of Seller or admit Seller’s fault or impose non-monetary obligations on Seller without Seller’s written consent. This Section controls over inconsistent provisions in Part III, Sections 7, 22, 28, and 29, solely for this indemnity and covered third-party defense costs. It does not increase Seller’s liability beyond Part III, Section 8.
4. Risk of Loss & Title of Equipment. Buyer will keep Equipment in safe care and custody at the Facility. Ownership and the absence of a buyout option are governed by Part II, Section 2.A and the transfer provisions below. The restrictions on disposition and Seller’s inspection and retrieval rights below apply only while Seller owns Equipment. Buyer will not sell, pledge, encumber, relocate, or alter Equipment without Seller’s written consent; will preserve ownership labels; and will promptly notify Seller of threatened liens, seizure, or third-party claims. Buyer will reasonably cooperate with ownership acknowledgments, access agreements, and protective filings reasonably requested by Seller, including obtaining acknowledgments from the site owner or secured creditors where necessary. No provision binds a non-signing third party. Equipment remains personal property as between the Parties even if attached to the Facility. Before installation at leased premises or premises subject to a lien that could impair removal, Buyer will obtain the owner’s or creditor’s written acknowledgment of Seller’s ownership and removal rights or notify Seller so the Parties can agree on protections before installation. Buyer will reasonably cooperate without material unreimbursed expense; these provisions do not eliminate any required fixture filing or other perfection step. Seller may inspect Equipment on at least five (5) business days’ written notice during normal business hours, subject to reasonable Facility safety requirements and without unreasonable interference with operations.
A. Expiration, termination, and collection. Unless Buyer is responsible for returning under this Section or title has transferred to Buyer, Seller will arrange and complete Equipment pickup within ninety (90) calendar days after expiration or termination, on at least five (5) business days’ notice, at reasonably coordinated times. Buyer will provide safe access, required site authorizations, and reasonable assistance with disconnection and removal. Seller will use qualified personnel and comply with reasonable site safety requirements. Unless Buyer is in default, including uncured nonpayment, or terminates early, Seller will pay to retrieve Equipment, retain title pending collection or transfer under this Section, and restore the Facility to its previous condition as defined below. Regardless of title, Buyer bears casualty risk while Equipment remains in its custody or authorized storage, subject to Section 1.B.i and the liability exceptions in Section 4.F. For Seller-arranged pickup, risk passes to Seller when Seller or its collection carrier takes possession, including during collection transit. Seller remains responsible for loss caused by its removal activities, subject to the Agreement’s liability limitations. Following written notice of Buyer’s default, Buyer bears all risk and expense of returning Equipment to Seller’s designated return location and restoring the Facility, including transit insurance, shipping, and related costs. For nonpayment, these obligations apply only when the cure period in item (ii) of the Buyer-default paragraph in Part III, Section 27 has expired without cure. For Buyer’s early termination, they apply immediately on the effective termination date without a further notice requirement, subject to Section 4.C for termination based on Seller’s default. Seller’s only required action for a Buyer-default return is written notice of default. Buyer will complete return and restoration within thirty (30) after those obligations take effect. Seller may identify its designated return location in the default notice or, for Buyer’s early termination, by written notice; identifying that location does not require Seller to arrange or perform Buyer’s return. Until Seller identifies the location, Buyer’s return-completion deadline is suspended, but its insurance, risk, safeguarding, and restoration obligations continue. “Previous condition” means the condition reasonably agreed by the Parties; neither may unreasonably withhold consent. Seller is not required to upgrade the Facility, regardless of other changes in the Equipment area. Before installation, the Parties will document the agreed baseline condition in writing, using photographs or a condition report where reasonably appropriate. If installation has already occurred, they will reasonably agree on the baseline using available evidence. Buyer will reasonably cooperate in documenting condition before removal. A disagreement does not authorize unsafe work or extend a title-transfer deadline. The liability exceptions in Section 4.F a apply. Section 4.C controls Seller-default transfers and any suspension of Buyer’s physical-return and removal-related restoration duties. A payment dispute does not permit Buyer to withhold access, subject to court orders and mandatory legal restrictions. Collection means physical removal from the Facility or authorized storage and possession by Seller or its collection carrier; merely scheduling pickup is insufficient. Seller may retain, redeploy, sell, lease, or otherwise dispose of recovered Equipment. Replacement Equipment supplied by Seller becomes Equipment subject to these terms, and Seller will collect displaced Equipment within thirty (30) days after replacement. If the Term ends before that collection, the 90-day provision in Section 4.D also applies to any displaced Equipment still uncollected, except where Buyer is responsible for its return under this Section.
B. Post-term use and custody. Upon expiration or termination and until collection or title transfer under this Section, Buyer will immediately cease Equipment use, safely shut down and isolate Equipment in accordance with manufacturer instructions and Seller’s reasonable written directions, and prevent unauthorized operation. Shutdown work requiring specialized skills must be coordinated with qualified personnel. Except for Seller-authorized safe shutdown or removal, any post-term operation by Buyer or anyone Buyer permits to operate Equipment is unauthorized, is a material breach, and is at Buyer’s own risk to the extent losses arise from that operation. Buyer retains full care, custody, and control pending collection or title transfer and will safeguard Equipment, restrict access, address foreseeable site hazards within its control, and promptly report damage or unsafe conditions. Routine maintenance and support end under Section 1.A. Third-party claims are governed by Section 3. To the fullest extent permitted by law, Buyer waives its own claims against Seller for loss to the extent caused by Buyer’s continued operation after Buyer’s early termination, or by Buyer’s failure to safeguard Equipment or site conditions within its control after that termination, including cessation of routine maintenance expressly permitted by the Agreement. The liability exceptions in Section 4.F apply. Collection delay, later Product sales, and acceptance of payment do not renew the Term or authorize Equipment use before title transfer; any renewed use before transfer requires a writing signed by both Parties. The waivers and title-transfer consequences in Sections 4.D–4. F govern collection failure specifically.
C. Seller default. If Seller’s default under Part III, Section 27 remains uncured for thirty (30) days after written notice, title and ownership of Equipment then owned by Seller and remaining at the Facility or in Buyer’s authorized storage automatically transfer to Buyer without further action, whether the Agreement has been terminated. Risk of loss thereafter rests with Buyer, and Buyer’s exclusive-purchase obligation under Part I, Section 1 ends at that time. No physical return or removal-related Facility restoration is required for Equipment transferred under this paragraph. Other provisions of the Agreement continue unless terminated, including payment for Products or Services ordered and amounts properly accrued before transfer. The common transfer consequences in Section 4.E apply. A default notice delivered before termination starts this cure period; termination does not restart it. Transfer does not apply to Equipment already returned to Seller or separately sold under another agreement. If Buyer gives written notice of Seller’s default, including before terminating for that default, Buyer’s duty to physically return Equipment or perform removal-related restoration is suspended during Seller’s thirty-day cure period; Buyer’s custody, safeguarding, casualty-risk, and insurance obligations continue. If Seller cures within that period, no default-triggered transfer or exclusivity release occurs; any otherwise applicable Buyer-return period begins or resumes on cure, with time remaining as of suspension. If Seller does not cure, the transfer and release occur automatically at the end of that period and take priority over Buyer’s return duties, including where both Parties are in default. Accrued claims for Buyer’s earlier breaches survive, but do not prevent this transfer or release.
D. Failure to collect; transfer after 90 days. Where Seller is responsible for collection under this Section, if Seller has not collected the Equipment by the end of the ninetieth (90th) calendar day after the effective expiration or termination, title and ownership of that uncollected Equipment automatically transfer to Buyer immediately upon expiration of that period, without payment, further notice, or a bill of sale. Seller will provide reasonable written confirmation on request, but confirmation is not a condition of transfer. This firm deadline is not automatically extended by force majeure, access restrictions, or unavailable insurance; any change requires a writing signed by both Parties expressly addressing the deadline and title transfer. Buyer’s breach of its access, safeguarding, or insurance obligations remains actionable, subject to the Agreement’s remedies, but does not prevent transfer itself. The 90-day pickup transfer does not apply where Buyer is responsible for returning Equipment because of Buyer’s default or early termination; Buyer’s failure to return does not transfer title. The separate Seller-default transfer remains applicable. Seller will promptly notify Buyer of collection obstacles and reasonably mitigate delay; the Parties must resolve unavailable transit coverage under Section 2 without authorizing unsafe or uninsured shipment. Before transfer, Buyer may not sell, discard, or use Equipment and must preserve Seller’s ownership and retrieval access in any authorized storage arrangement. Delay does not extend exclusivity. To the fullest extent permitted by law, in consideration of receiving title without further payment, Buyer waives its own claims against Seller for storage, safeguarding, transportation, and removal costs attributable to Seller’s failure to collect within the 90-day period, whether incurred before or after transfer, and for damages arising after transfer from the Equipment’s continued presence, condition, use, maintenance, removal, or disposal. The liability exceptions in Section 4.F apply. This failure-to-collect waiver does not apply to a transfer triggered solely by Seller’s default.
E. Common transfer consequences. Upon either title transfer under this Section, Seller’s collection obligation and ownership-based recovery rights end. Buyer assumes responsibility for future operation, maintenance, insurance, storage, removal, and lawful disposal at its expense. Seller has no further maintenance duty or responsibility for damage due to Equipment after transfer, subject to the liability exceptions in Section 4.F. The damages exclusions in Part III, Sections 7 and 29 and the aggregate liability limit in Part III, Section 8’s aggregate liability limit, continue to fully apply as permitted by law; they do not exclude nonwaivable liability. Buyer accepts the transferred Equipment in its then-existing condition, AS IS, WHERE IS, without new warranties; transfer does not renew expired warranties or extend Seller’s maintenance or support obligations. Accrued casualty liability, insurance claims for pretransfer losses, and indemnities survive, without duplicate recovery; Seller has no right to proceeds for losses occurring after transfer. These specific transfer and waiver terms control conflicting ownership, collection, cost-reimbursement, warranty-survival, and risk provisions of the Agreement. Transfer of the physical Equipment does not transfer intellectual property or revive an expired software license; subsequent software use requires rights under the applicable owner’s license terms.
F. Liability exceptions. The risk allocations, waivers, and post-transfer limitations in this Section do not release Seller from loss or damage caused by its negligence, willful misconduct, defective prior work, unsafe removal, or other conduct or liability that cannot legally be waived; do not bind injured persons, insurers, or other nonparties; and do not waive unrelated accrued claims or amounts otherwise expressly payable by Seller. The failure-to-collect waiver expressly applies to claims based solely on missing the collection deadline; it does not waive loss caused by Seller’s negligence, willful misconduct, defective prior work, unsafe removal, or nonwaivable conduct, even if associated with that failure. These exceptions do not expand recoverable categories of damages beyond the exclusions in Part III, Sections 7 and 29, or displace Part III, Section 8’s aggregate liability limit, to the extent those provisions are legally enforceable.
G. Recovery and records. Seller may seek lawful possession, injunctive relief, and other available remedies notwithstanding Part III, Section 29, but only while Seller owns Equipment. Recovery without court process is permitted only without breach of the peace and to the extent legally permitted; no forcible entry is authorized. Seller will maintain Equipment identification, installation, ready-for-use, collection, and redeployment records. Buyer will reasonably cooperate in confirming dates, location, and condition. The Agreement establishes commercial rights and obligations but does not prescribe an accounting result or postpone recognition required by the accounting standards applicable to either Party. Retained title, Buyer’s assumption of casualty risk, embedded Equipment consideration, and conditional title transfers must be evaluated together under those standards; none independently establishes operating-lease classification. Each Party is responsible for its own classification, allocation of consideration, capitalization, depreciation, impairment, and other required recognition.