11. SOFTWARE. All licenses to Hach's separately-provided software products
are subject to the separate software license agreement(s) accompanying the
software media. In the absence of such terms and for all other software, Hach
grants Buyer only a personal, non-exclusive license to access and use the sofware
provided by Hach with Products purchased hereunder solely as necessary for Buyer
to enjoy the benefit of the Products. A portion of the software may contain or consist
of open source software, which Buyer may use under the terms and conditions of
the specific license under which the open source software is distributed. Buyer
agrees that it will be bound by any and al! such license agreements. Title to
software remains with the applicable licensor(s).
12. PROPRIETARY INFORMATION; PRIVACY: “Proprietary Information” means
any information, technical data or know-how in whatever form, whether
documented, contained in machine readable or physical components, mask works
or artwork, or otherwise, which Hach considers proprietary, including but not
limited to service and maintenance manuals. Buyer and its customers, employees
and agents will keep confidentiai all such Proprietary Information obtained directly
or indirectly from Hach and will not transfer or disclose it without Hach's prior
written consent, or use it for the manufacture, procurement, servicing or calibration
of Products or any similar products, or cause such products to be manufactured,
serviced or calibrated by or procured from any other source, or reproduce or
otherwise appropriate it. All such Proprietary Information remains Hach's property.
No right or license is granted to Buyer or its customers, employees or agents,
expressly or by implication, with respect to the Proprietary Information or any
patent right or other proprietary right of Hach, except for the limited use licenses
implied by law. Hach will manage Customer's information and personal data in
accordance with its Privacy Policy, located at http://www. hach.conyprivacypolicy.
13. CHANGES AND ADDITIONAL CHARGES: Hach reserves the right to make
design changes or improvements to any products of the same general class 2s
Products being delivered hereunder without liability or obligation to incorporate such
changes or improvements to Products ordered by Buyer unless agreed upan in
writing before the Products’ delivery date. Services which must be performed as a
result of any of the following conditions are subject to additional charges for labor,
travel and parts: (a) equipment alterations not authorized in writing by Hach; (b)
damage resulting from improper use or handling, accident, negiect, power surge, or
Operation in an environment or manner in which the instrument is not designed to
operate or is nat in accordance with Hach’s operating manuals; (c) the use of parts
of accessories not provided by Hach; (d) damage resulting from acts of war,
terrorism or nature; (e) services outside standard business hours; (f) site prework
not complete per proposal; or (g) any repairs required to ensure equipment meets
manufacturer's specifications upon activation of a service agreement.
14. SITE ACCESS / PREPARATION / WORKER SAFETY / ENVIRONMENTAL
COMPLIANCE: In connection with services provided by Hach, Buyer agrees io
permit prompt access to equipment. Buyer assumes full responsibility to back-up or
otherwise protect its data against loss, damage or destruction before services are
performed. Buyer is the operator and in full control-of its premises, including those
areas where Hach employees or contractors are performing service, repair and
maintenance activities. Buyer will ensure that all necessary measures are taken for
safety and security of working conditions, sites and installations during the
performance of services. Buyer is the generator of any resulting wastes, including
without limitation hazardous wastes. Buyer is solely responsible to arrange for the
disposal of any wastes at its own expense. Buyer will, at its own expense, provide
Hach employees and contraciors working on Buyer's premises with all information
and training required under applicable safety compliance regulations and Buyer's
policies, If the instrument to be serviced is in a Confined Space, as that term is
define under OSHA regulations, Buyer is solely responsible to make it available to
be serviced in an unconfined space. Hach service technicians will not work in
Confined Spaces. In the event that a Buyer requires Hach employees or contractors
to attend safety or compliance training programs provided by Buyer, Buyer will pay
Hach the standard hourly rate and expense reimbursement for such training
attended. The attendance at or completion of such treining does not create or
expand any warranty or obligation of Hach and does noi serve to alter, amenid, limit
or supersede any part of this Contract.
15. LIMITATIONS ON USE; RELATIONSHIP OF PARTIES: Buyer will not use
any Products for any purpose other than those identified in Hach’s catalogs and
literature as intended uses. Unless Hach has advised ihe Buyer in writing, in no
event will Buyer use any Products in drugs, food additives, food or cosmetics, or
medical applications for humens or animals. in no event will Buyer use in any
application any Product that requires FDA 510() clearance unless and only to the
extent the Product has such clearance. Any warranty granted by Hach is void if any
goods covered by such warranty are used for any purpose not permitted hereunder.
Buyer is not an agent or representative of Hach and will not present itself as such
under any circumstances unless and to the extent it has been formally screened by
Hach's compliance department and received a separate duly-authorized letter from
Hach setting forth the scope and limitations of such authorization.
46. EXPORT AND IMPORT LICENSES AND COMPLIANCE WITH LAWS:
Unless otherwise specified in this Contract, Buyer is responsible for obtaining any
required export or import licenses. Hach represents that all Products delivered
hereunder will be produced and supplied in compliance with all applicable laws and
regulations. Buyer will comply with all Jaws and regulations applicable to the
installation or use of all Products, including applicable import and export control
laws and regulations of the U.S., E.U, and any other country having proper
jurisdiction, and will obtain all necessary export licenses in connection with any
subsequent export, re-export, transfer and use of all Products and technology
delivered hereunder. Buyer will not sell, transfer, export or re-export any Hach
Products or technology for use in activities which involve the design, devetopment,
production, use or stockpiling of nuclear, chemical or biological weapons or
missiles, nor use Hach Products or technology in any facility which engages in
activities relating to such weapons. Buyer will comply with all local, national, and
other laws of all jurisdictions globally relating to anti-corruption, bribery, extortion,
kickbacks, or similar matters which are applicable to Buyer's business activities in
connection with this Contract, including but nat limited to the U.S. Foreign Corrupt
Practices Act of 1977, as amended (the “FCPA’). Buyer agrees that no payment of
money or provision of anything of value will be offered, promised, paid or
transferred, directly or indirectly, by any person or entity, to any government official,
government employee, or employee of any company owned in part by a
government, political party, political party official, or candidate for any government
office or political party office to induce such organizations or persons to use their
authority or influence to obtain or retain an improper business advantage for Buyer
or for Hach, or which otherwise constitute or have the purpose or effect of public or
commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other
unlawful or improper means of obtaining business or any improper advantage, with
respect to any of Buyer's activities related to this-Contract. Hach asks Buyer to
“Speak Up!” if aware of any violation of law, regulation or our Standards of Conduct
(‘SOC’) in relation to this Contract. See htip://danaher.com/ntegrity-and-compliancs
and www.danaherintegrity.com for a copy of the SOC and for access to our Helpline
portal.
17. FORCE MAJEURE: Hach is excused from performance of its obligations
under this Contract to the extent caused by acts or omissions that are beyond its
contra! of, including but not limited to Government embargoes, blockages, seizures
or freeze of assets, delays or refusals to grant an export or import license or the
suspension or revocation thereof, or any ather acts of any Government: fires, floods
severe weather conditions, or any other acts of God; quarantines; tabor strikes or
lackouts; riots; strife; insurrections; civil disobedience or acts of criminals or
terrorists; war; material shortages or delays in daliveries to Hach by third parties. in
the event of the existence of any force majeure circumstances, the period of time for
delivery, payment terms and payments under any letters of credit will be extended
for a period of time equal to the pariod of delay. If the force majeure circumstances
extend for six months, Hach may, at its option, terminate this Contract without
penalty and without being deemed in default or in breach thereof.
18 NON ASSIGNMENT AND WAIVER: Buyer will not transfer or assign this
Contract or any rights or interests hereunder without Hach's prior written consent
Failure of either party to insist upon strict performance of any provision of this
Contract, or to exercise any right or privilege contained herein, or the waiver of any
breach of the terms or conditions of this Contract will not be construed as thereafter
waiving any such terms, conditions, rights, or privileges, and the same will continue
and remain in force and effect as if no waiver had occurred.
18. LIMITATION OF LIABILITY: Hone of the Hach Indemnified Parties will be
liable to Buyer under any circumstances for any speciel, treble, incidental or
consequential damages, including without limitation, damage to or loss of
property other than for the Products purchased hereunder; damages Incurred
in installation, repair or replacement; fost profits, revenue or opportunity; loss
of use; iosses resulting from or related to downtime of the products or
inaccurate measurements or reporting; the cost of substitute procucts; or
claims of Buyer's customers for such damages, howsoever caused, and
whether baged on warranty, contract, ancifor tort (including negligence, strict
liability or otherwise). The total liability of the Fach Indemnified Parties arising
out of the performance or nonperformance hereunder or Hach’s obligations in
connection with the design, manufacture, saie, delivery, and/or use of
Products wil in no circumsiance excecd in the aggregate a sum equal to
twice the amount actually paid io Hech for Products deliverac hereunder.
20. APPLICABLE LAW AND DISPUTE RESOLUTION: The construction,
interpretation and performance hereof and all transactions hereunder shall be
governed by the laws of the State of Colorado, without regard to its principles or
laws regarding conflicts of laws. If any provision of this Contract violates any
Federal, State or local statutes or regulations of any countries having jurisdiction of
this transaction, or is illegal for any reason, seid provision shall be self-deleting
without affecting the validity of the remaining »rovisions. Unless otherwise
specifically agreed upon in writing between Hach and Buyer, any dispute relating
to this Contract which is not resolved by the parties shall be adjudicated in order of
preference by a court of competent jurisdiction (i) in the State of Colorado, U.S.A.
if Buyer has minimum contacts with Colorado and the U.S., (ji) elsewhere in the
U.S. if Buyer has minimum contacts with the U.S. but not Colorado, or (iif) in a
neutral iocation if Buyer does not have minimum contacts with the United States
21. ENTIRE AGREEMENT & MODIFICATION: These Terms & Conditions of
Sale constitute the entire agreement between the pariies and supersede any prior
agreements of representations, whether oral or written. No change to or
modification of these Terms & Conditions shall be binding upon Hach unless in 4
written instrument specifically referencing thet it is amending these Terms &
Conditions of Sale and signed by an authorized representative of Hach. Hach
rejects any additional or inconsistent Terms & Conditions of Sale offered by Buyer
at any time, whether or not such terms or conditions materially alter the Terms &
