Aclara Standard Terms and Conditions of Sale for Equipment and Certain Services

Aclara Standard Terms and Conditions of Sale for Equipment and Certain Services

1. PROPOSAL.
Aclara Technologies LLC ("Seller") agrees to sell and deliver to Buyer the goods ("Equipment") and Services described on the Proposal to which these Terms and Conditions are attached. The Proposal is expressly conditioned on Buyer's consent to these terms and conditions. Licensing of any Aclara Software and the providing of any Maintenance Services shall be performed under separate contract agreements and subject to the terms and conditions of such agreements. Buyer may issue one or more purchase orders in response to this Proposal. Any such issuance shall be deemed an acceptance of these terms and conditions; any different or additional terms, whether incorporated in Buyer's Purchase Order or otherwise, are hereby specifically rejected. The Proposal, these terms and conditions, and Buyer's acceptance constitute the "Agreement".

2. PRICE.
As payment for the Equipment and Services, Buyer shall pay the price(s) and within the times as set forth in the Proposal.

3. SHIPMENTS.
Shipment of the Equipment and performance of the Services shall be in accordance with the schedule set forth, or referenced, in the Proposal.

4. CHANGES.
Buyer may request, in writing, changes in the scope of the Proposal. Such changes shall be effected only upon Seller's concurrence with such request. If any such change causes an increase or decrease in the cost of or the time required for performance hereunder, an equitable adjustment shall be made in the price and/or delivery schedule.

5. FORCE MAJEURE.
Seller shall not be liable for delays in shipment or delivery of any items sold hereunder, or loss or damage thereto, when due to acts of God, acts of Buyer, acts of civil or military authority, governmental restrictions or embargoes, war, riot, fires, strikes, flood, epidemics, quarantine, restrictions, default or delay by supplier, breakdown in manufacturing facilities, machinery or equipment, delays in transportation or difficulties in obtaining necessary materials, labor or manufacturing facilities due to such causes, or any other cause beyond Seller's reasonable control.

6. INSPECTIONS.
Any Equipment may, at the option of the Buyer, be subject to inspection by Buyer at its cost at Seller's or Seller's contract manufacturer's factory in accordance with Seller's normal inspection system during normal business hours. All inspections by Buyer shall be performed in such manner as not to delay performance by Seller. Buyer must provide Seller with a minimum of forty-eight (48) hours prior written notice of such inspections.

7. PACKAGING.
All material and equipment to be furnished by Seller shall be packed, crated, or otherwise suitably protected to withstand shipment to its destination. Each package, crate, or container shall be marked with the name of the consignee, shipping destination, and purchase order number. Complete packing lists shall be supplied showing contents and identity of each package.

8. TITLE, SHIPPING, AND RISK OF LOSS.
CPT Destination – Carriage Paid to Destination as defined in accordance with INCOTERMS 2010. Clear title to and risk of loss of any Equipment will pass to Buyer upon the loading of the Equipment on the means of transport of the carrier selected by Seller. Seller shall arrange for carriage on usual terms for Buyer's account and risk. Seller shall have no responsibility to arrange or pay for insurance against loss, damage or destruction upon loading of Equipment.

9. WARRANTY.
Seller warrants its products as follows:
A) For Power-Line System Equipment, please refer to Aclara TWACS standard warranties.
B) For Radio Frequency Equipment, please refer to Aclara STAR standard warranties.
C) For Software products, please refer to Aclara Software standard warranties.
D) For Services, please refer to Aclara's service standard warranties.
E) For Cellular Base Equipment, please refer to Metrum Cellular by Aclara standard warranties.

10. ASSIGNMENT.
Buyer shall not assign its right, title, or interest herein, or any part thereof, to any person without the prior written consent of Seller. Such consent shall not be unreasonably withheld.

11. SUCCESSORS AND ASSIGNS.
The Agreement, subject to the provisions hereof, shall inure to the benefit of and be binding upon the respective successors and assigns of the parties hereto.

12. PROPRIETARY DATA (SELLER).
Certain information which Seller may deliver to Buyer in connection with Seller's performance hereunder, including without limitation all Equipment specifications and drawings and operating manuals, is proprietary to Seller and will be clearly marked as confidential or proprietary by Seller (hereinafter "Seller Proprietary Data"). Buyer agrees to keep such Seller Proprietary Data confidential, to use it only in connection with Buyer's use or operation of the equipment or hardware, and not to sell, transfer, disclose, or otherwise make available any of such data to others. Buyer may disclose or otherwise make available such Seller Proprietary Data, with Seller's consent, to a third party with whom Buyer contracts for work necessary to the performance of the Agreement, provided that said third party agrees to be bound by the limitations on use and disclosure contained herein.Buyer shall be liable for any breach of the terms of this Section 12 by such third party. Notwithstanding the foregoing, Seller Proprietary Data shall not include material which: (i) at the time of disclosure is in the public domain or which, after disclosure, becomes part of the public domain by publication or otherwise; or (ii) is information which Buyer can show was in its possession at the time of disclosure and was not acquired directly or indirectly from Seller; or (iii) is information which was received by Buyer from a third entity having legal right to transmit the same.

13. PROPRIETARY DATA (BUYER).
A. All information of Buyer that Buyer considers proprietary and furnishes to Seller in connection with Seller's performance hereunder will be clearly marked as proprietary by Buyer (hereinafter "Buyer Proprietary Data"). Buyer information not so marked shall not be considered to be proprietary to Buyer. Buyer hereby grants to Seller authority to use Buyer Proprietary Data only for the purposes of this Agreement. Seller agrees to keep such Buyer Proprietary Data confidential, to use it only for work necessary to the performance of the Agreement, and not to sell, transfer, disclose, or otherwise make available any of such data to others. Seller may disclose or otherwise make available such Buyer Proprietary Data, with Buyer's consent, to a third party with whom Seller contracts for work necessary to the performance of this Agreement, provided that said third party agrees to be bound by the limitations on use and disclosure contained herein.
B. Notwithstanding the foregoing, Buyer Proprietary Data shall not include material which: (i) at the time of disclosure is in the public domain or which, after disclosure, becomes part of the public domain by publication or otherwise; or (ii) is information which Seller can show was in its possession at the time of disclosure and was not acquired directly or indirectly from Buyer; or (iii) is information which was received by Seller from a third entity having legal right to transmit the same. All information pertaining to supply/usage/load profiles shall be recognized by Seller as proprietary information.

14. TERMINATION FOR CAUSE.
A. Buyer may terminate this Agreement upon delivery to Seller of a written notice of termination. Such notice of termination shall be given to Seller at least ten (10) days prior to the effective date of such termination. Such notice of termination may be given for any one of the following reasons: 1) If Seller shall become insolvent, commit any act of bankruptcy, make a general assignment for the benefit of creditors, or becomes the subject of any proceeding commenced under any statute or law for the relief of debtors; or 2) if a receiver, trustee or liquidator of any property or income of Seller is appointed; or 3) if Seller: a. defaults in any material manner in the performance of Seller's obligations under any of the terms, provisions, conditions or covenants contained in this Agreement and b. further fails within thirty (30) days (or as otherwise mutually agreed) after written notice thereof from Buyer to take reasonable steps to remedy such default. Buyer shall be permitted to pursue any and all rights and remedies available hereunder or at law or in equity without terminating this Agreement for cause. In the event of termination for cause by Buyer, Seller shall be paid only the portion of the compensation related to Work performed prior to the effective date of termination. Seller shall also be subject to any claim Buyer may have against Seller under other provisions of this Agreement, or as a matter of law.
Seller may also terminate this Agreement upon delivery to Buyer of a written notice of termination. Such notice of termination shall be given to Buyer at least ten (10) days prior to the effective date of such termination. Such notice of termination may be given for any one of the following reasons: 1) If Buyer shall become insolvent, commit any act of bankruptcy, make a general assignment for the benefit of creditors, or becomes the subject of any proceeding commenced under any statute or law for the relief of debtors; or 2) if a receiver, trustee or liquidator of any property or income of Buyer is appointed; or 3) if Buyer: a. defaults in any material manner in the performance of Buyer's obligations under any of the terms, provisions, conditions or covenants contained in this Agreement and b. further fails within thirty (30) days (or as otherwise mutually agreed) after written notice thereof from Seller to take reasonable steps to remedy such default.
Buyer shall also be subject to any claim Seller may have against Buyer under other provisions of this Agreement, or as a matter of law.

15. TERMINATION FOR CONVENIENCE.
Buyer reserves the right, at any time, to terminate this Agreement, or any portion of the Work, for its sole convenience. Any such termination shall be effected by delivery of a written notice of termination to Seller specifying the extent to which the Agreement and related Work have been terminated and the date upon which the termination shall be effective. The date of the effective date of termination shall be no earlier than 30 days from the receipt of the notice of termination by Seller. Upon receipt of such notice, Seller shall in good faith and using all commercially reasonable efforts, stop all work hereunder, and shall promptly take steps to cancel existing orders, contracts and subcontracts relating to the Purchase Order.
In the event of such termination, Seller shall be entitled to receive: 1) the contract price due Seller for the Work performed, the Equipment delivered, the Software licensed and the Services performed; 2) the contract price for Equipment manufactured but not delivered prior to the effective date of termination if Buyer desires to purchase such Equipment; 3) all costs reasonably incurred by Seller prior to the effective date of termination including, but not limited to, labor, materials and overhead not covered under 1) or 2), above; 4) the reasonable cost of termination reasonably incurred by Seller in accordance with Buyer's termination notice which costs shall include the reasonable cost incurred by Seller in preparing any termination settlement proposal; and 5) Fifteen percent (15%) of the amounts payable under 3) and 4), above.
No costs incurred after the effective date of the notice of termination shall be treated as a reimbursable cost unless it relates to performing the portion of the work not terminated, or taking measures reasonably required to comply with Buyer's notice of termination in a prudent and business-like manner.

16. NON-DISCRIMINATION.
During the performance of this Agreement, the Seller agrees as follows: Seller will comply with all applicable provisions of and, if required, furnish all information and reports required by Section 503 of the Rehabilitation act of 1973, as amended, the Vietnam Era Veterans' Readjustment Assistance Act of 1974 (38 U.S.C. 4212), as amended, the Americans with Disabilities Act (ADA) including the ADA Amendments Act , the Federal Executive Order No. 11246, as amended, the regulations at 41 CFR part 60, "Office of the Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor, " and of the rules, regulations, and relevant orders of the Secretary of Labor. Such acts, amendments, rules, regulations and orders are incorporated herein by reference.

17. INDEPENDENT CONTRACTOR.
Seller agrees to perform the work in connection with this Agreement as an Independent Contractor and not as a subcontractor, agent or employee of Buyer, its parent, subsidiaries or affiliates, or their respective officers, directors, agents or employees.

18. INDEMNIFICATION.
For the purpose of this Article 18 only, "Buyer Parties" shall mean Buyer, its directors, officers, agents and employees, contractors and subcontractors (other than Seller), assignees, subsidiaries and affiliates, and each of them; "Seller Parties" shall mean Seller, its directors, officers, agents and employees, contractors and subcontractors at any tier, and the subcontractor's directors, officers, agents and employees, and each of them; and "Claims" shall mean claims, demands, suits or causes of action. The Parties obligations under this Article 18 shall not be limited to their respective insurance coverage.
General Indemnity. 1) Seller shall indemnify Buyer Parties for any and all loss or liability, including the costs of settlements, judgments, damages and direct expense including reasonable attorney's fees, costs and expenses arising from Claims, whether based on statute or regulation or on theories of contract, tort, strict liability, or otherwise, which are brought against one or more Buyer Parties by or on behalf of persons other than Buyer Parties involving injuries or damages to persons or property arising from or in any manner relating to negligent acts or omissions of Seller Parties under this Agreement provided that: a. Buyer promptly notifies Seller in writing of such claims; b. Buyer fully cooperates with Seller in assisting in the defense or settlement of such claims; and c. Seller has the sole right to conduct the defense of such claim or to settle such claim. Seller shall defend at its own expense, with counsel of its choosing, but reasonably acceptable to Buyer, any suit or action brought against Buyer Parties based upon such Claims. Further, provided that Buyer promptly notifies Seller in writing of any alleged violations described below, Seller shall also indemnify Buyer Parties for any and all loss or liability for fines, fees or penalties for violations of any statutes, regulations, rules, ordinances, codes or standards applicable to the Work arising from or relating to acts or omissions of Seller Parties. Seller's obligations under this Article 18.A.1) shall be reduced to the extent of the negligence, gross negligence or willful misconduct of Buyer Parties. 2) Buyer shall indemnify Seller Parties for any and all loss or liability, including the costs of settlements, judgments, damages and direct expense including reasonable attorney's fees, costs and expenses from Claims, at law or in equity, whether based on statute or regulation or on theories of contract, tort, strict liability, or otherwise, which are brought by or on behalf of persons other than Seller Parties for injuries or damages to persons or property arising from or in any manner relating to acts or omissions of Buyer Parties under this Agreement provided that: a. Seller promptly notifies Buyer in writing of such claims; b. Seller fully cooperates with Buyer in assisting in the defense or settlement of such claims; and c. Buyer has the sole right to conduct the defense of such claim or to settle such claim. Buyer shall defend at its own expense, with counsel of its choosing, but reasonably acceptable to Seller, any suit or action brought against Seller Parties based upon such Claims. Further, provided that Seller promptly notifies Buyer in writing of any alleged violations described below, Buyer shall also indemnify Seller Parties for any and all loss or liability for fines, fees or penalties for violations of any statutes, regulations, rules, ordinances, codes or standards applicable to the Work arising from or relating to acts or omissions of Buyer Parties. Buyer's obligations under this Article 18.A.2) shall be reduced to the extent of the negligence, gross negligence or willful misconduct of Seller Parties.
Intellectual Property Indemnity. Seller shall defend, indemnify, save and hold harmless Buyer from and against any claims, losses, damages, fees, costs and expenses incurred by Buyer arising out of or in connection with a third party's claim of infringement or alleged infringement of any United States patent, copyright, trademark, trade or business secret, service mark or any other proprietary right based solely on the use or design of any Equipment sold or the Aclara Licensed Software licensed hereunder and used by Buyer strictly in accordance with the terms of this Agreement provided that 1) in the case of Aclara Licensed Software, it is the latest released version of the Aclara Licensed Software; 2) Buyer promptly, and in any event, within ten (10) days of becoming aware of the claim, notifies Aclara in writing of such claims; 3) Buyer fully cooperates with Seller in assisting in the defense or settlement of such claims and 4) Seller has the sole right to conduct the defense of such claim or to settle such claim.
In addition, in the event any such Equipment sold or Aclara Licensed Software licensed hereunder are held in such suit to be infringing or misappropriating or their use by Buyer is enjoined or limited in any manner, or Seller believes that such holding or enjoining is likely, Seller shall at its expense: 1) procure for Buyer the right to continue use of such Equipment or Aclara Licensed Software, or 2) replace or modify the same with an equivalent non-infringing product with functionality substantially similar to the product it is replacing. Notwithstanding the foregoing, Seller shall not be liable for any claim based on the combination or use of the Equipment or Aclara Licensed Software with any other equipment or software not supplied or authorized by Seller, or any claim based on Buyer's possession or use of any altered version of the Equipment or Aclara Licensed Software unless such alteration has been performed or expressly authorized by Seller.

19. PUBLICITY.
Neither Party shall, without the express written consent of the other Party, disclose any information or make any news release, advertisement, or public communication regarding this Agreement. Notwithstanding the foregoing, nothing herein shall prevent either Party from making such public disclosures as it, in its sole judgment, may deem appropriate to satisfy such Party's (or such Party's Parent's) obligations under any applicable law or requirement of any stock exchange.

20. INSURANCE.
In the event that Seller's obligations hereunder require or contemplate performance of Services by Seller's employees, or persons under contract to Seller, to be done on Buyer's property, or property of the Buyer's customers, Seller agrees that all such work shall be done as an independent contractor and that the persons doing such work shall not be considered employees of the Buyer. Further, in such event, Seller shall maintain: A. General Liability insurance on a one million dollar ($1,000,000), per occurrence basis; and B. Statutory workers compensation insurance. Buyer shall be named an additional insured or loss payee as its interest may appear on the policy referred to in 20.A. above.

21. LIMITATION OF LIABILITY.
Notwithstanding anything contained herein to the contrary, the total aggregate liability of Seller to the Buyer for all liability arising out of or in connection with the performance by Seller of its obligations under this Agreement shall be limited to the aggregate sum of payments made by buyer to Seller under this Agreement. IN NO CASE SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR SPECIAL DAMAGES OR FOR THE LOSS OF BENEFIT, PROFIT, REVENUE, OR DATA, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

22. TAXES AND PAYMENT.
All prices set forth in the Agreement are in United States dollars, and are exclusive of any applicable sales or use taxes. If Buyer is exempt from such taxes, Buyer will provide Seller with the necessary documentation required by the taxing authority to substantiate such exemption. Unless exempt, payment of all such taxes shall be the responsibility of Buyer.

23. INVOICING AND PAYMENT.
A. Seller will invoice Buyer for the Equipment, Software and Services as follows based upon the prices set forth in the Agreement: 1) Equipment. Seller will invoice Buyer for the Equipment purchased hereunder upon Delivery (as defined below). 2) Software. Seller will invoice Buyer for the Software license purchased hereunder upon Delivery. 3) Program Management Support and Support Services. Program Management and Support Services will be invoiced as such services are provided and after shipment of software to Buyer.
B. Payment of all such invoices shall be due and payable thirty (30) days from the date of delivery.
C. Any amounts not paid when due shall bear interest at the lesser of 1 1/2% per month or the highest amount permitted by law until paid.
D. Delivery means, (i) in the case of Equipment purchased hereunder, the loading of the equipment on the means of transport of the carrier selected by Seller pursuant to Section 8 above; (ii) in the case of Software provided hereunder, the remote installation of the Software by Seller on the Buyer-provided designated Equipment, or if applicable, upon the Delivery of the designated Equipment provided by Seller on which the Software is installed; and (iii) in the case of Services provided hereunder, the periodic performance of such Services as described herein.

24. SEVERABILITY.
In case any one or more of the provisions contained in this Agreement should be invalid, illegal or unenforceable in any respect, the remaining portions of this Agreement shall continue to be binding and enforceable.

25. DISPUTES.
Buyer and Seller agree to attempt to settle any dispute arising out of this Agreement through good faith consultations and negotiations. If those attempts fail, the parties agree that any disputes arising under, out of, or in relation to this Agreement shall be finally and conclusively determined by binding arbitration under the Commercial Arbitration rules of the American Arbitration Association and the judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Buyer and Seller agree that arbitration proceedings shall be held in St. Louis, Missouri.

26. GOVERNING LAW.
The Agreement shall be subject to and construed in accordance with the laws of the State of Missouri, United States of America.

27. NOTICES.
Any notices required under this Agreement shall be in writing, in the English language, and shall for all purposes be deemed to be fully given and received if sent by registered or certified mail, postage prepaid, to the respective parties at the addresses set forth on face hereof Such addresses are subject to change by the respective parties upon written notice as herein provided for.

28. SURVIVABILITY.
Notwithstanding the expiration or termination of this Agreement, the following Sections shall survive according to their terms: 9, Warranty; 12, Proprietary Data (Seller); 13, Proprietary Data (Buyer); 25, Disputes; 26, Governing Law; and 27, Notices.

29. ENTIRE AGREEMENT.
The Agreement contains the entire agreement and all representations between the parties relating to the subject matter hereof, and supersedes and cancels any prior understandings and agreements between the parties, written or verbal, relating thereto.