TERMS AND CONDITIONS OF SALE #BS0904ECO

Section 2.  SPECIFICATIONS CHANGES:  At any time, Customer may give ECOPATH written notice of its desire to make changes in the Services.  ECOPATH shall give Customer written notice of the additional charges to Customer, if any, to make those changes and any changes to the delivery schedule that may be required.  No change request by Customer shall be effective unless Customer and ECOPATH agree in writing to ECOPATH’s proposed changes in price and delivery schedule.  

Section 3.  FORCE MAJEURE:  Notwithstanding any other provision of this Service Agreement or applicable law to the contrary, ECOPATH shall not be liable or responsible for any failure or delay in performance or nondelivery, in whole or in part, due to events of force majeure, including, but not limited to, acts of God or of public enemy; acts of Customer not within its rights under this Service Agreement; fire; flood; storm; explosion; equipment breakdown; earthquake; riots; wars; hostilities; civil commotion; accidents; strikes or other labor disputes; interruption of supply; shortages of or inability to obtain fuel, power, raw materials or freight or transportation services; any law or regulation; any decision by any tribunal or any other acts of any government agency or persons purporting to act with governmental authority; or any other cause beyond the reasonable control of ECOPATH or which ECOPATH is not able to overcome by the use of reasonable measures or which ECOPATH is able to overcome only at substantial expense.  

Section 4.  PRICE; PAYMENTS; TAXES:  Customer shall pay ECOPATH amounts due hereunder as and when due, regardless of any provisions, including retention provisions, contained in any agreements between Customer and the owner of the Project or other third parties.  Acceptance and endorsement by ECOPATH of any instrument for less than the full amount that ECOPATH claims to be due and payable hereunder shall not be deemed to be an admission of payment in full, and any conditions to the contrary that are noted on any  instrument shall not be binding on ECOPATH.  Customer shall be responsible for and shall pay any and all taxes and all other government charges and other impositions arising from the sale of the Services by ECOPATH to Customer, including, but not limited to, customs tariffs and duties, excise taxes, sales, use and value-added taxes, and all other taxes or levies imposed by any government agency in connection with the transactions contemplated by this Service Agreement, whether imposed upon ECOPATH or Customer, or both of them, except for U.S. federal and state taxes imposed on the net income of ECOPATH.  The intent of this Section 4 is to ensure that ECOPATH receives the full amount of the purchase price for the Services specified in the Service Agreement by the dates specified in the Service Agreement, irrespective of any taxes or other levies that may be imposed by any government.

Section 5.  LIMITED EXPRESS WARRANTY:

(a)  ECOPATH warrants that the Services shall be performed in a good and professional manner and, where applicable, in accordance with engineering practices generally accepted in the United States of America.  That warranty shall be in effect for a period of ten (10) calendar days after the date the relevant Services are performed or materials provided and any claims by Customer shall be made only during that period.  Customer’s sole and exclusive remedy for breach of this warranty is the reperformance of the relevant Services by ECOPATH at ECOPATH’s expense, upon Customer’s written request.
 
(b)  Customer shall be solely responsible for ensuring that the Services conform to all applicable state and federal laws and regulations, including, but not limited to, environmental and product safety laws and regulations.  Notwithstanding any other provision of this Service Agreement and the documents attached hereto and applicable law to the contrary, the parties acknowledge and agree that (i) any comments that ECOPATH makes to Customer or any of its affiliates or any of their contractors or agents concerning the Project (other than ECOPATH’s services) shall be merely advisory and non-binding in nature and shall be based entirely upon ECOPATH’s experience; and (ii) Customer and its affiliated or related companies shall be solely responsible for all of the work to be performed by any party other than ECOPATH in connection with the Project.
 
Section 6.  DISCLAIMER OF ALL OTHER WARRANTIES:  THE EXPRESS WARRANTIES SET FORTH IN SECTION 5 HEREOF ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, AND ECOPATH EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES ON THE SERVICES OR GOODS OR MATERIALS PROVIDED BY ECOPATH, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR ANY WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE.  TO THE EXTENT THAT ANY IMPLIED WARRANTIES MAY NOT BE DISCLAIMED UNDER APPLICABLE LAW, THOSE WARRANTIES ARE EXPRESSLY LIMITED TO THE DURATION OF THE RELEVANT WARRANTY PERIODS STATED IN SECTION 5 HEREOF.

Section 7.  LIMITATION OF LIABILITY:

(a)  Notwithstanding any provision of this Service Agreement or applicable law to the contrary, ECOPATH’s liability with respect to any and all losses, damage or liabilities shall be limited, in the aggregate, to the amounts actually received by ECOPATH under this Service Agreement and ECOPATH shall have no liability or obligation with respect to any bodily injury to or death of any person or any damage to property attributable to the compliance of ECOPATH or any of its subcontractors with the specifications or instructions of Customer.  ECOPATH shall have no liability to Customer after the date that is twenty-four (24) months after the date of Customer’s acceptance of this Service Agreement.

(b)  ECOPATH’S SOLE LIABILITY TO CUSTOMER WITH RESPECT TO DAMAGE TO PROPERTY OR INJURY TO OR DEATH OF ANY PERSONS SHALL BE AS SET FORTH IN SECTION 7(A) HEREOF.  NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, CUSTOMER SHALL NOT BE ENTITLED TO RECOVER FROM ECOPATH ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, LOST PROFITS, OR PUNITIVE DAMAGES OR EXPENSES ARISING OUT OF (i) ANY DAMAGE TO PROPERTY OR ANY INJURY TO OR DEATH OF ANY PERSON (ii) ANY BREACH OF THE EXPRESS WARRANTIES GRANTED BY ECOPATH IN SECTION 5 HEREOF OR (iii) ANY OTHER BREACH BY ECOPATH OF ANY OF ITS OBLIGATIONS UNDER THIS SERVICE AGREEMENT OR APPLICABLE LAW.  

(c)  ECOPATH shall maintain, at its sole cost, at all times during its performance of the Services, general liability and worker’s compensation insurance in commercially reasonable coverage limits, and a certificate evidencing such insurance shall be delivered to Customer upon request.    

Section 8.  DEFAULT:  If, due to no fault of Customer, ECOPATH fails to perform any obligation hereunder as and when due after the expiration of any excusable delay or extension provided for herein or under the governing law, and if ECOPATH shall continue to fail to perform that obligation or commence reasonable action to cause that obligation to be performed for a period of five (5) calendar days after Notice thereof is delivered to ECOPATH by Customer [after the expiration of any excuse or extension provided for herein or under the governing law], Customer shall be entitled to terminate any further performance by it hereunder, and recover any actual payments received by ECOPATH from Customer hereunder for Services not provided to Customer.  The foregoing remedy is Customer’s sole and exclusive remedy for breach of this Service Agreement by ECOPATH or for any claim of any kind Customer may assert against ECOPATH as a result of the relationship established pursuant to this Service Agreement, and precludes all other remedies, including, but not limited to, recovery of incidental, special, indirect, consequential and/or punitive damages, or actual damages in excess of the limit contained herein; provided, however, that certain events or certain breaches of this Service Agreement are dealt with specifically in Sections 5, 6 and 7 hereof, and the provisions of those Sections shall control with respect to any events or any breaches described therein, regardless of whether or not those events or breaches might also constitute a breach under this Section 8(a).
 
If Customer fails to make any payment or perform any other obligation hereunder as and when due, and that failure continues for a period of five (5) calendar days after ECOPATH gives Notice of the failure to Customer, then, ECOPATH shall thereupon be entitled to terminate any further performance by it under this Service Agreement, retain the payments previously made to it hereunder, recover all remaining unpaid payments hereunder and/or seek any other remedy available to it at law or in equity, including other rights included in these Terms and Conditions.  All of those remedies shall be cumulative and shall not preclude the resort to any other remedies.

Section 9.  ASSIGNMENT:  Neither party hereto shall assign any of its rights or delegate any of its obligations hereunder without the prior written consent of the other party.  This Service Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns.  
 

Section 10.  CHOICE OF LAW; JURISDICTION; ATTORNEY’S FEES:  This Agreement shall be construed and interpreted in accordance with the laws of the State of Arizona.  The trial or court proceeding shall be filed and conducted in Phoenix, Arizona.  In any controversy or claim arising out of or relating to this Agreement or the breach thereof, which results in a legal action or proceeding, the prevailing party in such action, as determined by the court, shall be entitled to recover reasonable attorneys’ fees and costs.

Section 11.  ENTIRE AGREEMENT; CONSTRUCTION:  This Service Agreement constitutes the entire agreement of the parties and supersedes all prior oral or written representations, warranties or agreements relating thereto, including any provisions in any request for quotation, bid, proposal or purchase order submitted by Customer, and may not be amended except by a writing executed by authorized representatives of the parties.  The invalidity or unenforceability of any provision of this Service Agreement shall not affect the validity or enforceability of any other provision of this Service Agreement, and the remaining provisions of this Service Agreement shall nevertheless continue to be valid and enforceable as though the invalid or unenforceable provision had not been included herein; provided, however, that any provision determined by an arbitral or tribunal of competent jurisdiction to be invalid or unenforceable shall be modified only so much as shall be necessary to permit it to be enforced to the maximum extent permissible.  Time is of the essence with respect to all provisions of this Service Agreement that specify a time for performance.

Section 12.  WAIVER:  The failure or delay of either party hereto to require performance by the other party hereto or to enforce its rights under any provision hereof shall not affect the rights of that party to require performance and to enforce its rights with respect to that provision unless and until that performance has been waived in writing by that party.  Any waiver shall be effective only in accordance with its terms and may be restricted or conditioned in any way.  No waiver hereunder shall constitute waiver of a continuance or reoccurrence of any failure or delay in performance hereunder, except as provided in that waiver.  The rights granted to each party hereunder and any rights available at law or equity shall be cumulative and may be exercised in whole or in part from time to time.

Section 13.  NOTICES.  All Notices hereunder shall be in writing (by registered or certified mail or by facsimile, confirmed by registered or certified mail, with registered or certified mail being sent by return-receipt-requested and postage-prepaid) and shall be addressed to the parties hereto at their respective addresses set forth in the Proposal, or such other address provided from time to time via written Notice to the other party.  All Notices shall be deemed effective on the date that is five (5) calendar days after the date on which sent.  

Section 14.  RELATIONSHIP:  Each party hereto is acting as an independent contractor and neither party hereto shall be deemed to be an agent, joint venturer, partner or legal representative of the other party.  This Service Agreement does not grant, and neither party hereto shall have, any authority, express or implied, to create or assume any obligation, enter into any agreement, make any representation or warranty, file any document with any government agency, to settle any claim by or against the other party, or to bind or otherwise render the other party liable in any way.

Section 15.  TERM AND SURVIVAL:  The term of this Service Agreement shall commence on the date of acceptance of the Proposal (the “Effective Date”) and shall expire on the six-month anniversary of the Effective Date (unless otherwise stated in the Proposal), or upon the completion of the Services contemplated by this Agreement, unless terminated as permitted in this Agreement.  Notwithstanding any expiration, cancellation or termination of this Service Agreement for any reason, Customer’s obligations under, and the disclaimers, restrictions and limitations of ECOPATH’s liability set forth in, Sections 1,4 through 8, 11, and 15 through 18 hereof shall survive that expiration, cancellation or termination.  

Section 16.  CONFIDENTIALITY:  Customer shall NOT (i) disclose to any third party, directly or indirectly, any proprietary or confidential information, data, documents or drawings provided, directly or indirectly, by ECOPATH to Customer, (“ECOPATH’s Information”), or disclose the price or terms of this Service Agreement; or (ii) use ECOPATH’s Information other than as strictly necessary for the Project.

Section 17.  INDEMNIFICATION:  Customer agrees to defend, indemnify and hold harmless ECOPATH and its successors or assignees, and the respective agents and employees of each, from and against any and all damages, costs (including, without limitation, reasonable attorneys’ fees and costs), expenses, liabilities, claims and causes of action in any way arising by reason of or relating to: i) the breach by Customer of any warranty, representation, covenant or any other provision in this Agreement; ii) damage to property or bodily injuries to persons (including death) caused in whole or in part by Customer, its affiliates, employees or its contractors and suppliers; iii) Customer’s (or its employees’ or contractors’) negligence; or iv) otherwise arising out of or related to the arrangement and relationship contemplated by this Service Agreement.

Section 18.  REPRESENTATIONS AND WARRANTIES.  By their signatures on the Service Agreement Proposal, which constitute counterpart signatures to these Terms and Conditions, each party represents and warrants that it, and the person or entity signing on its behalf, is duly authorized to enter into this Service Agreement without the consent of any other person or entity, and that the foregoing Terms and Conditions are the sole terms and conditions applicable to this Service Agreement, notwithstanding any other provisions in forms of any purchase order or acceptance supplied by Customer, all of which provisions are expressly disclaimed and rejected.