Terms and Conditions

GRIDCO INC. GENERAL TERMS AND CONDITIONS

  1. General. The terms and conditions contained herein, together with any additional terms contained in the Quote to which these terms are attached, if any, constitute the entire agreement (the “Agreement”) between the parties with respect to the products and services set forth in the Quote and supersede all prior communications and agreements regarding such products and services. To the extent that there is a conflict between the provisions of these terms and conditions and the provisions of the Quote, the provisions of these terms and conditions shall apply unless the Quote expressly states that the Quote will prevail with respect to such conflicting provision. Acceptance by Gridco of Customer’s purchase order based on this Quote, and Customer’s acceptance of this Quote, is expressly limited to and conditioned upon Customer’s acceptance of these terms and conditions. These terms and conditions may not be changed or superseded by any different or additional terms and conditions proposed by Customer, including without limitation, any terms and conditions contained in Customer’s purchase order submitted to Gridco. Notwithstanding the foregoing, if Gridco and Customer have entered into a Master Services Agreement, the terms of such Master Services Agreement and not these terms and conditions shall apply. Unless the context otherwise requires, the term “Products” as used herein means all of the products, equipment, parts, accessories sold, and all software and software documentation, if any, licensed to Customer by Gridco (“Software”) under the Quote. Unless the context otherwise requires, the term “Services” as used herein means all labor, supervisory, technical and engineering, installation, repair, consulting or other services provided by Gridco under the Quote. As used herein, the term “Customer” shall mean the customer set forth on the Quote.
  2. Prices.

(a) Quote Expiration. Unless otherwise specified in writing, the Quote expires thirty (30) days from the Quote Date listed therein.

(b) Services Rates. Unless otherwise stated herein, Services prices are based on normal business hours (8 a.m. to 5 p.m. Monday through Friday). Overtime and Saturday hours will be billed at one and one-half (1.5) times the hourly rate; and Sunday hours will be billed at two (2) times the hourly rate; holiday hours will be billed at three (3) times the hourly rate. If a Services rate sheet is attached hereto, the applicable Services rates shall be those set forth in the rate sheet. Rates are subject to change upon thirty (30) days prior written notice.

(c) Taxes. The price does not include any federal, state or local property, license, privilege, sales, use, excise, gross receipts, or other like taxes which may now or hereafter be applicable. Customer agrees to pay or reimburse any such taxes which Gridco or its suppliers are required to pay or collect. If Customer is exempt from the payment of any tax or holds a direct payment permit, Customer shall, upon order placement, provide Gridco a copy, acceptable to the relevant governmental authorities of any such certificate or permit.

(d) Customs Duties. The price does not include any customs duties and other importation or exportation fees, if any.

  1. Payment.

(a) Payment Terms. Unless specified to the contrary in writing by Gridco, Customer shall pay all invoices, without offset, in United States Dollars, within 30 days from the date of the invoice in accordance with the payment terms set forth in the applicable invoice.

(b) Customer Financial Condition. Customer’s order will be deemed a representation that Customer is solvent and able to pay for the Products and Services ordered. If Customer fails to make payments when due, or if bankruptcy or insolvency proceedings are instituted by or against Customer, or if Customer makes an assignment for the benefit of creditors, Customer will be deemed in default and Gridco will have the right to terminate Gridco’s obligations by written notice to Customer, but such termination will not affect Customer’s obligation to pay for Products and Services delivered and any work in progress.

(c) Credit Requirement; Collateral. Unless Gridco has established a credit limit for Customer, Gridco may require prepayment, a down payment or a confirmed irrevocable letter of credit acceptable to Gridco, at Customer’s expense, in advance of shipment. In addition, as collateral security for all of Customer’s payment obligations under this Agreement, Customer hereby grants Gridco a first priority security interest in all Products purchased hereunder to the maximum extent permitted by law. Customer shall, at Customer’s expense, take all commercially reasonable action required by Gridco to further evidence and/or perfect such security interest, including without limitation executing and delivering a separate security agreement and UCC-1 financing statement.

(d) Late Fee. Customer shall pay, in addition to the overdue payment, a late charge equal to the lesser of 1.5% per month or any part thereof or the highest applicable rate allowed by law on all such overdue amounts plus Gridco’s attorneys’ fees and court costs incurred in connection with collection.

  1. Changes.

(a) Scope Changes. Any changes requested by Customer affecting the ordered scope of work must be accepted by Gridco and resulting adjustments to affected provisions, including price, schedule, and guarantees mutually agreed in writing prior to implementation of the change.

(b) Other Changes. Gridco may, at its expense, make such changes in the Products or Services as it deems necessary, in its sole discretion, to conform the Products or Services to applicable specifications and governmental standards, or protect security and integrity of Products or Services, or for environmental, health or safety reasons. If Customer objects to any such changes, Gridco shall be relieved of its obligation to conform to the applicable specifications to the extent that conformance may be affected by such objection.

(c) Customer Responsibilities; Installation Site. Customer shall provide Gridco with access to Customer’s premises, facilities and equipment, including, without limitation, equipment, software, passwords, utility connections, network access and disk space as reasonably necessary for Gridco to perform its obligations under this Agreement. Gridco may determine that conditions at a site do not permit installation of the Products. Such conditions (which may not become known until after installation is commenced) may include, for example, lack of space, lack of adequate ventilation, the inability to install required wiring or cables, the presence of asbestos, pollutants, or other toxic or hazardous materials, or any structural or physical conditions which may pose a hazard. In such event, Gridco or its agents may in their sole discretion cease any installation and related Services and remove any or all Products, and the parties will mutually agree upon a modified scope of work specifying an alternate site that meets Gridco’s requirements, and the schedule for performance and the compensation payable to Gridco, which shall be adjusted accordingly.

  1. Delivery.

(a) Shipping Terms. All Products manufactured, assembled or warehoused is delivered F.O.B. Origin. Customer shall be responsible for any and all customs, duties, demurrage or detention charges.

(b) Shipment Delays. Shipping and delivery dates are contingent upon Customer’s timely approvals and delivery by Customer of any documentation required for Gridco’s performance hereunder. If the scheduled delivery of Products is delayed by Customer or by a force majeure event described below, Gridco may move the Products to storage for the account of and at the risk of Customer whereupon it shall be deemed to be delivered.

  1. Title & Risk of Loss. Except with respect to Software (for which title shall not pass, use being licensed), title to Products shall remain with Gridco until fully paid for. Notwithstanding any agreement with respect to delivery terms or payment of transportation charges, risk of loss or damage shall pass to Customer upon shipment.
  2. Testing, Inspection and Acceptance.

(a) Factory Acceptance Testing. If the parties agree in writing to perform factory acceptance testing, Gridco shall notify Customer when Gridco will conduct such testing prior to shipment. Unless Customer states specific objections in writing within ten (10) days after completion of factory acceptance testing, completion of the acceptance test constitutes Customer’s factory acceptance of the Products and its authorization for shipment.

(b) Site Inspection and Acceptance. Inspection will be performed to verify that the Products have arrived at site complete and without physical damage. Completion of inspection constitutes full and final acceptance of the Products. If, through no fault of Gridco, inspection is not completed within fifteen (15) days after arrival of the Products at the site, inspection shall be deemed completed and the Products shall be deemed accepted. If Customer provides Gridco written notice in reasonable detail during such period, Gridco will deliver, at Gridco’s expense, Products to replace damaged Products or to meet the correct quantities, or repair such damaged Products, within a reasonable period from Gridco’s receipt of Customer’s notice. Customer’s acceptance shall not prejudice Customer’s warranty rights herein.

  1. Warranties and Remedies.

(a) Products and Services Warranty. Gridco warrants that the Products (excluding Software, which is warranted as specified in paragraph (d) below) shall be delivered free of defects in material and workmanship and that Services shall be free of defects in workmanship. The Warranty Remedy Period for Products (excluding Software, but including spare parts and refurbished or repaired parts) shall end eighteen (18) months after installation or twenty-four (24) months after date of shipment, whichever first occurs. The Warranty Remedy Period for Services shall end ninety (90) days after the date of completion of Services.

(b) Products and Services Remedy. If a nonconformity to the foregoing warranty is discovered in the Products or Services during the applicable Warranty Remedy Period, as specified above, under normal and proper use and provided the Products have been properly stored, installed, operated and maintained and written notice of such nonconformity is provided to Gridco promptly after such discovery and within the applicable Warranty Remedy Period, Gridco shall, at its option, either (i) repair or replace the nonconforming portion of the Products or re-perform the nonconforming Services or (ii) refund the portion of the price applicable to the nonconforming portion of Products or Services. If any portion of the Products or Services so repaired, replaced or re-performed fails to conform to the foregoing warranty, and written notice of such nonconformity is provided to Gridco promptly after discovery and within the original Warranty Remedy Period applicable to such Products or Services or 30 days from completion of such repair, replacement or re-performance, whichever is later, Gridco will repair or replace such nonconforming Products or re-perform the nonconforming Services; provided that any spare parts and refurbished or repaired parts, will have the applicable Warranty Remedy Period set forth above. The original Warranty Remedy Period shall not otherwise be extended. Gridco reserves the right to inspect the Products that is subject to a warranty claim.

(c) Exceptions. Gridco shall cover the costs of parts, Gridco labor, and travel expenses for Gridco personnel to perform repair, replacement or re-performance within North America. Customer will pay travel expenses for Gridco personnel for warranty service in locations outside North America. Gridco shall not be responsible for providing working access to the nonconforming Products, including disassembly and re-assembly of non-Gridco supplied equipment, or for providing transportation of parts and tools to or from any repair facility, all of which shall be at Customer’s risk and expense. Gridco shall have no obligation hereunder with respect to any Products which (i) have been improperly repaired or altered, including but not limited to material or workmanship not provided by Gridco or its authorized service centers, and without prior approval from Gridco; (ii) have been subjected to unauthorized use, misuse, negligence or accident; (iii) have been installed or used in a manner contrary to Gridco’s instructions; (iv) are comprised of materials provided by or a design specified by Customer; (v) have failed as a result of ordinary wear and tear; (vi) have been damaged during shipping or transportation; (vii) have been subject to negligence or accidents, including but not limited to improper maintenance; (viii) have been relocated from their original installation location; or (ix) are damaged due to a force majeure event described below. Products supplied by Gridco but manufactured by others are warranted only to the extent of the manufacturer’s warranty, and only the remedies, if any, provided by the manufacturer will be allowed, subject to Section 13.

(d) Software Warranty and Remedies. Gridco warrants that, except as specified below, the Software will, when properly installed, execute in accordance with Gridco’s published specification. If a nonconformity to the foregoing warranty is discovered during the period ending one (1) year after the date of shipment and written notice of such nonconformity is provided to Gridco promptly after such discovery and within that period, including a description of the nonconformity and complete information about the manner of its discovery, Gridco shall correct the nonconformity by, at its option, either (i) modifying or making available to the Customer instructions for modifying the Software; or (ii) making available at Gridco’s facility necessary corrected or replacement programs. Gridco shall have no obligation with respect to any nonconformities resulting from (i) unauthorized modification of the Software or (ii) Customer-supplied software or interfacing. Gridco does not warrant that the functions contained in the Software will operate in combinations which may be selected for use by the Customer, or that the Software is free from errors in the nature of what is commonly categorized by the computer industry as "bugs".

(e) Extended Warranties. Customer may purchase extended warranties subject to their terms and availability. Purchases of extended warranties may be rescinded within sixty (60) days of the order date. After sixty (60) days, it will be at Gridco’s discretion as to whether a rescission will be granted. If approved, Gridco will issue a credit memo to Customer’s account for the value of the extended warranties purchased that can be applied against future product purchases during the next 12 months.

(f) Warranties Not Transferable. The warranties made to Customer in this Section 8 are made solely to Customer and may not be transferred, assigned or extended to any other person or entity, including, without limitation, any customer of Customer. Customer shall not make any warranties or guarantees of any kind on behalf of Gridco. Any warranty or guarantee made by Customer to any third party, including, without limitation, with respect to the Products or Services, shall be and remain the sole responsibility of Customer and shall not obligate Gridco in any way.

(g) Disclaimer. THE FOREGOING WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES OF QUALITY AND PERFORMANCE, WHETHER WRITTEN, ORAL OR IMPLIED, AND ALL OTHER WARRANTIES INCLUDING ANY IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USAGE OF TRADE ARE HEREBY DISCLAIMED. THE REMEDIES STATED HEREIN CONSTITUTE CUSTOMER’S EXCLUSIVE REMEDIES AND GRIDCO’S ENTIRE LIABILITY FOR ANY BREACH OF WARRANTY.

  1. Indemnification.

(a) Gridco Indemnification Obligations. Gridco shall defend at its own expense any third party action brought against Customer and pay all damages and costs finally awarded or agreed upon in settlement in connection with any such action to the extent the action arises out of (i) a claim that the Products directly infringe any third party intellectual property right, or (ii) Gridco’s gross negligence or willful misconduct (including any death or personal injury caused thereby), except to the extent that any such claim is subject to Customer’s indemnification obligations set forth below. Gridco’s indemnification obligations are conditioned upon Customer giving Gridco prompt written notice of such action, all necessary assistance in the defense thereof and the right to control all aspects of the defense thereof including the right to settle or otherwise terminate such action in behalf of Customer. Gridco shall have no obligation hereunder and this provision shall not apply to: (i) any other equipment or products, including Products which have been modified or combined with other equipment or products not supplied by Gridco; (ii) any Products supplied according to a design, other than an Gridco design, required by Customer; (iii) claims where the action would have been avoided if Customer implemented changes, replacements or new releases recommended by Gridco; (iv) any patent issued after the date hereof; or (v) any action settled or otherwise terminated without the prior written consent of Gridco. If, in any such action, any Product is held to constitute an infringement, Gridco shall, at its option and its own expense, procure for Customer the right to continue using said Product; or modify or replace it with non-infringing equipment or, modify the Product so that it becomes non-infringing; or remove it and refund the portion of the price allocable to the infringing Product, less straight-line depreciation based on a five-year life up to the time Customer returns the Product. THE FOREGOING PARAGRAPHS STATE THE ENTIRE LIABILITY OF GRIDCO AND EQUIPMENT MANUFACTURER FOR ANY INTELLECTUAL PROPERTY INFRINGEMENT.

(b) Customer Indemnification Obligations. Customer shall defend at its own expense any third party action brought against Gridco and pay all damages and costs finally awarded or agreed upon in settlement in connection with any such action to the extent the action arises out of (i) the tampering with or improper installation or use of any Gridco Product by anyone other than Gridco or its authorized representatives, or (ii) Customer’s gross negligence or willful misconduct (including any death or personal injury caused thereby), except to the extent that any such claim is subject to Gridco’s indemnification obligations set forth above. Customer’s indemnification obligations are conditioned upon Gridco giving Customer prompt written notice of such action, all necessary assistance in the defense thereof and the right to control all aspects of the defense thereof including the right to settle or otherwise terminate such action in behalf of Gridco.

  1. Limitation of Liability.

(a) Limitation of Liability. In no event shall Gridco, its suppliers or subcontractors be liable for special, indirect, incidental or consequential damages, whether in contract, warranty, tort, negligence, strict liability or otherwise, including, but not limited to, loss of profits or revenue, loss of use of the Products or any associated equipment, cost of capital, cost of substitute equipment, facilities or services, downtime costs, delays, and claims of customers of the Customer or other third parties for any damages. Gridco’s liability for any claim whether in contract, warranty, tort, negligence, strict liability, or otherwise for any loss or damage arising out of, connected with, or resulting from this Agreement or the performance or breach thereof, or from the design, manufacture, sale, delivery, resale, repair, replacement, installation, technical direction of installation, inspection, operation or use of any equipment covered by or furnished under this Agreement, or from any services rendered in connection therewith, shall in no case (except as provided in the section entitled "Indemnification") exceed the purchase price allocable to the Products or part thereof or Services which gives rise to the claim.

(b) Causes of Action. All causes of action against Gridco arising out of or relating to this Agreement or the performance or breach hereof shall expire unless brought within one year of the time of accrual thereof.

  1. Laws and Regulations. Compliance with any laws and regulations relating to the operation or use of the Products or Software is the sole responsibility of the Customer. All laws and regulations referenced herein shall be those in effect as of the Quote Date. In the event of any subsequent revisions or changes thereto, Gridco assumes no responsibility for compliance therewith. If Customer desires a modification as a result of any such change or revision, it shall be treated as a change per Section 4. Nothing contained herein shall be construed as imposing responsibility or liability upon Gridco for obtaining any permits, licenses or approvals from any agency required in connection with the supply, erection or operation of the Products.
  2. Software License.

(a) License Grant. Gridco owns all rights in or has the right to sublicense all of the Software, if any, to be delivered to Customer under this Agreement. As part of the sale made hereunder Customer hereby obtains a limited license to use the Software, subject to the following: (i) The Software may be used only in conjunction with the Products specified by Gridco; (ii) The Software shall be kept strictly confidential; (iii) The Software shall not be copied, reverse engineered, or modified; (iv) The Customer’s right to use the Software shall terminate immediately when the specified Product is no longer used by the Customer or when otherwise terminated, e.g. for breach, hereunder; and (v) the rights to use the Software are non-exclusive and non-transferable, except with Gridco’s prior written consent. The LICENSE text file that accompanies the Software may contain certain third-party notices that Gridco is required to provide to you in conjunction with the Software. In addition, the LICENSE text file may specifically identify certain software code that is incorporated into or distributed with the Software, but is actually licensed to Customer under one or more “open-source” or “free software” licenses (the “Open Source Software”). Notwithstanding anything to the contrary in this Agreement, the Open Source Software is not licensed under (and is not subject to the terms of) this Agreement, and instead is separately licensed to Customer pursuant to the terms and conditions of their respective open-source software licenses. Copies of such open-source software licenses are reproduced in the LICENSE text file, and Customer hereby agrees to comply with the terms and conditions of such open-source software license agreements.

(b) License Restrictions. Nothing in this Agreement shall be deemed to convey to Customer any title to or ownership in the Software or the intellectual property contained therein in whole or in part, nor to designate the Software a "work made for hire" under the Copyright Act, nor to confer upon any person who is not a named party to this Agreement any right or remedy under or by reason of this Agreement. In the event of termination of this license, Customer shall immediately cease using the Software and, without retaining any copies, notes or excerpts thereof, return to Gridco the Software and all copies thereof and shall remove all machine readable Software from all of Customer’s storage media.

(c) Reservation of Rights. Customer shall not transfer possession of the Software except as part of, or with, the Products, such transfer being subject to the restrictions contained herein. Customer shall not engage in any act or omission that would impair Gridco’s intellectual property rights in the Software or the Products as a whole. Customer hereby acknowledges and agrees that its use of the Software must comply with all applicable laws. Customer may not resell the Software to any third party, even as part of the Product. Customer may exercise its license rights within the United States only and shall not allow access to the Software by any person outside of the United States. The Software and related documentation are "Commercial Items", as that term is defined at 48 C.F.R. §2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation", as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable.  Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished rights reserved under the copyright laws of the United States. If Customer is required to provide a regulatory body with use of or access to the Products, Customer shall provide prior, written notice to Gridco and such use and access by the regulatory body must also be subject to this section and Customer’s confidentiality obligations and Gridco’s rights under such federal regulations or their state law equivalents and any successor regulations.

(d) Data Rights. “Data” means any information, data, media or other content provided by or made accessible by Customer in connection with Customer’s use of the Products and Services and will include, without limitation, all Customer user information and actions, product status, behavior and performance data, distribution system status and performance data. For clarity, “Data” does not include any information related to Customer’s end customers. Customer shall retain all rights, title and interest in all Data; provided that Customer hereby grants to Gridco a non-exclusive, non-transferable right and license to use the Data for the limited purposes of: (a) performing Gridco’s obligations hereunder, which may include improving the system operation on behalf of Customer and (b) Gridco’s internal business purposes, which may include developing or improving Gridco’s products and services, including without limitation, grid-connected systems, control and monitoring hardware, software and control algorithms, data collection, processing and analytics, field tools, back-office supervisory and control systems, power system modeling (collectively, “Improvements”). Gridco shall own all right, title and interest in and to all Improvements, including, without limitation, all intellectual property rights therein. Customer hereby irrevocably conveys, transfers and assigns to Gridco any right, title or interest Customer may have in any Improvement, and agrees to promptly execute any document requested by Gridco to evidence or effectuate Gridco’s rights therein.

(e) End User License Agreement. Customer understands and agrees that use of the Software is also subject to the terms of Gridco’s then-current end user license agreement (the “EULA”). To the extent this Agreement and the EULA conflict, the EULA will govern with respect to Customer’s right to use the Software.

  1. Third-Party Products/Integrated Products. Any third party products Gridco provides to Customer hereunder will be sold or licensed pursuant to the terms and conditions contained in any separate license or agreement provided by such third parties. Gridco shall have no obligation for any warranties or maintenance of such third party products. Customer shall be responsible for all transportation and handling charges of any third party products. If Customer purchases third party products from parties other than Gridco containing Gridco parts, such Integrated Product provider(s), and not Gridco, will provide all warranties, liabilities and other terms of sale and for the Integrated Products, including the Gridco parts. If Customer purchases Gridco parts from Gridco for integration into products that Customer purchases separately from one or more Integrated Product providers, the Gridco parts will constitute Products hereunder, but Customer will obtain warranty service for the Gridco parts from the Integrated Product provider(s).
  2. Inventions and Information. Unless otherwise agreed in writing by Gridco and Customer, all right, title and interest in any inventions, developments, improvements or modifications of or for Products and Services shall remain with Gridco. Any design, manufacturing drawings or other information submitted to the Customer remains the exclusive property of Gridco. Customer shall not, without Gridco's prior written consent, copy or disclose such information to a third party. Such information shall be used solely for the operation or maintenance of the Products and not for any other purpose, including the duplication thereof in whole or in part.
  3. Confidentiality.

(a) Ownership of Confidential Information. The parties acknowledge that during the performance of this Agreement, each party will have access to certain of the other party’s Confidential Information or Confidential Information of third parties that the disclosing party is required to maintain as confidential. Both parties agree that all items of Confidential Information are proprietary to the disclosing party or such third party, as applicable, and shall remain the sole property of the disclosing party or such third party. “Confidential Information” means any non-public material or information relating to a party which it discloses or makes available to the other party under this Agreement, including, by way of example, research, strategies, inventions, processes, formulas, technologies, designs, drawings, finances, or other non-public information or trade secrets that such disclosing party treats as proprietary or confidential.

(b) Mutual Confidentiality Obligations. Each party agrees as follows: (i) to use the Confidential Information only for the purposes described herein; (ii) that such party will not reproduce the Confidential Information and will hold in confidence and protect the Confidential Information from dissemination to, and use by, any third party; (iii) that, except as required in performance of a party’s obligations under this Agreement, neither party will create any derivative work from Confidential Information disclosed to such party by the other party; (iv) to restrict access to the Confidential Information to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing or are otherwise bound to treat such information in accordance with the terms of this Agreement; and (v) to return or destroy all Confidential Information of the other party in its possession upon termination or expiration of this Agreement.

(c) Confidentiality Exceptions. Notwithstanding the foregoing, the confidentiality provisions above shall not apply to Confidential Information that (i) is publicly available or in the public domain at the time disclosed; (ii) is or becomes publicly available or enters the public domain through no fault of the recipient; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto at the time of disclosure; (v) is independently developed by the recipient; or (vi) is approved for release or disclosure by the disclosing party without restriction. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a party’s rights under this Agreement, including to make such court filings as it may be required to do.

  1. Force Majeure. Gridco shall neither be liable for loss, damage, detention or delay nor be deemed to be in default for failure to perform when prevented from doing so by causes beyond its reasonable control including but not limited to acts of war (declared or undeclared), Acts of God, fire, strike, labor difficulties, acts or omissions of any governmental authority or of Customer, compliance with government regulations, insurrection or riot, embargo, delays or shortages in transportation or inability to obtain necessary labor, materials, or manufacturing facilities from usual sources or from defects or delays in the performance of its suppliers or subcontractors due to any of the foregoing enumerated causes. In the event of delay due to any such cause, the date of delivery will be extended by period equal to the delay plus a reasonable time to resume production, and the price will be adjusted to compensate Gridco for such delay.
  2. Cancellation. No order submitted by Customer may be cancelled by Customer without the prior written consent of Gridco and payment of any applicable cancellation charges.
  3. Termination. No termination by Customer for default shall be effective unless, within thirty (30) days after receipt by Gridco of Customer’s written notice specifying such default, Gridco shall have failed to correct such specified default.
  4. Export Control. Customer agrees not to disclose, use, export or re-export, directly or indirectly, any information provided by Gridco as defined in the Export Control Regulations of the United States Department of Commerce, except in compliance with all applicable laws. If applicable, Gridco shall file for a U.S. export license, but only after appropriate documentation for the license application has been provided by Customer. Customer shall furnish such documentation within a reasonable time after order acceptance. Any delay in obtaining such license shall suspend performance of this Agreement by Gridco. If an export license is not granted or, if once granted, is thereafter revoked or modified by the appropriate authorities, this Agreement may be canceled by Gridco without liability for damages of any kind resulting from such cancellation. At Gridco’s request, Customer shall provide to Gridco a Letter of Assurance and End-User Statement in a form reasonably satisfactory to Gridco.
  5. Miscellaneous. Customer is permitted to use the Products and Services for Customer’s internal purposes only and may not resell the Products or Services without Gridco’s prior written consent, which may be withheld in Gridco’s sole discretion. Any assignment of this Agreement or of any rights or obligations under the Agreement without prior written consent of Gridco shall be void. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, but excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods and excluding Massachusetts law with respect to conflicts of law. Customer agrees that all causes of action against Gridco under this Agreement shall be brought in the state and federal courts located in Boston, Massachusetts. If any provision hereof, partly or completely, shall be held invalid or unenforceable, such invalidity or unenforceability shall not affect any other provision or portion hereof and these terms shall be construed as if such invalid or unenforceable provision or portion thereof had never existed. If the Products and Services are to be used in fulfilling a contract with the United States Government, Customer shall disclose this to Gridco. Gridco agrees to comply with the mandatory government contract provisions that are applicable to Gridco under federal law and regulations, provided Customer has given Gridco written notice of the applicable provisions, Gridco has accepted them in writing, and Gridco is compensated for related administrative costs. Customer and Gridco acknowledge and agree that the relationship arising from this Agreement does not constitute or create any joint venture, partnership, employment relationship or franchise between them, and the parties are acting as independent contractors in making and performing this Agreement. The headings are for convenience only and are not to be used in the construction or interpretation of these terms and conditions. The waiver by any party of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach of any term or provision. Customer shall be solely responsible for the acts and omissions of its subcontractors, agents and employees in connection with this Agreement. Gridco shall be solely responsible for the acts and omissions of its subcontractors, agents and employees in connection with this Agreement, other than such acts and omissions taken or not taken at the direction of Customer.