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Circuit Breaker Contract through LCRA-5095-Original Contract/Pricing (2)If so9!5 City of Denton 5 Year Blanket Contract SF6 High Voltage Circuit Breakers Siemens Proposal Number 12277 -R -1 RevC October 3, 2012 SF12386736 Siemens Energy, Inc. Joe Richardson 444 Hwy 49 South Application Engineer HVCB Richland, MS 39128 (601) 932 -9921 www.ptd.siemens.com joseph.richardson @siemens.com Dear Customer: Siemens Energy, Inc. would like to sincerely thank you for the opportunity to provide a Siemens Circuit Breaker proposal to you. Siemens SPS2 range of high voltage power circuit breakers produced in our Jackson, MS facility have proven to be a successful global product offering. Since the introduction of the SPS2 family in 1997 we have shipped over 25,000 units in various ratings. Our SPS2 portfolio includes: • 15.5 kV to 72.5 kV, 1200 to 3150 A, up to 40 kA • 123 kV to 170 kV, 1200 to 3150 A, up to 40 kA • 123 kV to 170 kV, 1200 to 4000 A, 50163 kA • 245 kV, 1200 to 4000 A, 40150 kA • 245 kV, 1200 to 4000 A, 63 kA** • 362 kV, 1200 to 5000 A, 63kA a 550kV, 2000A to 5000A, 63kA No line to ground capacitors required for any unit except as noted * *Only 5,000 pF of capacitance required The critical components of these products are standardized across our complete product offering including: dead and live tank breakers, circuit switchers and GIS. The commonality of parts across all voltage ranges enables customers to reduce. cost, minimize spare parts inventory and provides for a common platform for product training. The SPS2 family of breakers uses state of the art "self extinguishing principal" interrupters in all ratings. The FA -2 spring- spring mechanism is used for 15.5 kV to 170 kV, 40 kA units; the FA -4 spring- spring mechanism is used for 121 kV to 245kV, ,63kA units; and lastly, the FA -5 spring- spring mechanism is used for 362KV and 550kV. Siemens prides itself in providing the highest quality breakers in the industry while maintaining flexibility to customize each unit to meet each customer's unique needs. Some examples of our premium design include: all roller or ball bearings, all sealed bearings, no lubrication needed in the field, no adjustments required in the field. Our breakers have proven to be easier to put into service, require less maintenance and have a lower total ownership cost over the life of the breaker than our competition. Again, we thank you for the opportunity to provide this proposal and look forward to any feedback or questions which you may have while reviewing our proposal. Sincerely, Joe Richardson Application Engineer HVCB PROPOSAL Siemens Energy, Inc. (Company) agrees to sell to Purchaser and Purchaser agrees to purchase from Company the goods described below. Item 1: Material Code: COD 211 SPS2- 145 -40- 3000 -3PST • 138kV nominal voltage • 40kA maximum symmetrical interrupting capability • 3150A maximum continuous current • Capable of -30 °C operation without tank heaters • 131 inch creep porcelain bushings rated 650kV BIL @ 3300 feet ASL • 3- cycle, 60Hz, spring- spring operated • Frame mounted outdoor Circuit Breaker • Bushing BCT's: . o Bushings 1 -3 -5: (6) 2000:5 MR C800 relay accuracy, RF 2.0 Bushings 2 -4 -6: (6) 2000:5 MR C800 relay accuracy, RF 2.0 Unit price is: Item 2: Warranty $49,498.00 Siemens will offer a five (5) year warranty at no extra cost ($2,000.00 value per breaker) Item 3: Product Training One day of breaker training per year will be provided at no additional costs. ($4500.00 value) Item 4: Recommended Spare Parts List: • 1 Y -Relay $250.00 • 1 Close Coil $250.00 • 1 Trip Coil $250.00 • Charging Motor $750.00 Orderinq Instructions Orders shall be placed using material codes described above. If new material is required, please contact Siemens Energy for an updated proposal and material code. Material codes were developed using the following matrix. Control Voltage VIEW Breaker I I CT Arrangements Breaker Rating Electrical Requirements Rating Option 1 Option 2 Option 3 Rated Power Frequency Hz 60 60 60 Rated Interrupting Time Maximum Cycles) 3 3 3 System Voltage kV rms, nominal 69 138 138 Rated Maximum Voltage kV rms 72.5 145 145 Basic Lightning Impulse Level kV crest 350 650 650 Rated Continuous Current (A rms s m 3000 3000 3000 Maximum Symmetrical Interrupting Capability (0- 15s -CO- 3min-CO Du Cycle), kA 40 40 63 Breaker Control Voltage Control Voltage Option Rated n Spring Motor, Control Circuits, and Closing Coil, Trip Coil 1 125 V COD Standard Control Diagrams 2 48V COD Standard Control Diagrams Breaker BCT Arranqement Bushing Current Transformer Arrangements Arrangement Option No. Ratio Quantity and Location 1 2000:5A C800 RF2.0 2 per bushing Circuit breaker(s) will be equipped and furnished as follows: Note: Breaker(s) will be similar to City of Denton PO 158022, Siemens SO 30107401 -100. Control and Operator Power Requirements: Control supply voltage: Spring charge motor supply voltage: Accessory supply voltage: Heater supply voltage: Options Included: • Fused knife switches • Un -fused knife switch (Trip #2) • 2 -pole fuse block (acc circuit) • One close coil • Dual trip coils • Control switch • Local/remote selector switch • Loss of voltage relays • Position indicator lights • Local Gas alarm indication lights • Time delay relay • 120 VAC 1 125 VDC throw -over scheme on charging motor • External manual trip device • Thermostatically controlled cabinet heaters • Auxiliary switches with 10a and 9b spare contacts for customer use • GFI outlet inside control cabinet • Cabinet light with switch • Wire markers on control and CT wiring. 125 VDC 120 VAC 1 125 VDC 120 VAC 240 VAC • Breaker frame mounted temperature compensated density switch and gauge • Stainless steel nameplates according to IEEE/ANSI standards • #14 AWG Type SIS control wiring • #10 AWG Type AMW -TEW CT wiring • NEMA type 3R control cabinet painted ANSI 70 grey • NEMA 4 -hole un- plated aluminum terminals • Galvanized frame and leg assemblies 0 Standard installation toolkit and touch -up paint included • SF6 fill gas included • 1 Set of electronic AutoCAD approval drawings • 1 Set of electronic AutoCAD certified drawings and 1 set shipped in breaker • 1 Instruction book in PDF format and 1 Instruction book shipped in breaker COMMERCIAL TERMS Siemens Energy, Inc. standard warranty and terms and conditions apply to sale. Approval drawings (if req'd) will be transmitted 8 -10 weeks after receipt of purchase order at factory with all necessary technical information. Failure to return approval drawings within (1) week after submittal may delay shipment. Expedited approval drawings can be provided with all necessary technical information fora fee. PRICE POLICY CLAUSE: PRICES ARE FIRM THROUGH DECEMBER 31, 2013. Cancellation Policy PCD Form No. CP -1J will apply to any contract arising from this proposal. PAYMENT TERMS: Net 30 days cash — customer credit permitting SHIPPING DATE: 18 -20 weeks ARO (to be confirmed at time of order) DELIVERY TERMS: Freight is included in the quoted price for shipments within the contiguous 48 United States. Additional shipping charges may apply if conditions do not permit Seller to utilize its standard delivery methods to the requested delivery destination. WARRANTY: The warranty period covers the equipment for sixty (60) months after shipment. OTHER TERMS: This proposal will remain in effect until 12/31/2013 , unless changed in the interim upon written notice from Company. Documents and related correspondence shall be sent to the Company's office or at: This proposal is based upon the Company's interpretation of the plans and specification and is-subject to correction for errors. This document and any other documents specifically referred to as being a party hereof constitutes the entire agreement on the subject matter, and it shall not be modified except in writing signed by both parties. This proposal is based upon the standard terms and conditions of sale attached. Company hereby objects to any additional or different terms set forth in Purchaser's request for proposal, specification, purchase order or any other document of Purchaser. Acceptance of additional or different terms must be specifically assented to in writing to Company. CANCELLATION POLICY: Cancellation of equipment for High Voltage circuit breakers will be subject to cancellation charges based on the following policies: (all percentages refer to contract price) 1.) Cancellation will automatically result in: • 10% charge for the engineering work on the breaker (Provided that work was accomplished). • The customer will also be responsible for the cost of any non standard items that Siemens purchased in advance to outfit the breaker per specifications. 2.) Further charges depend on: • Cancellation of items made to customer order that is scheduled for shipment in twelve (12) months or less - A charge of five percent (5 %) of the contract price will be made for each month that the contract was held (from P.O. date until cancelation date). • Orders that are scheduled to ship in less than thirty (30) days are non - cancelable. Siemens Energy, Inc. Power Transmission & Power Distribution Divisions Standard Terms and Conditions of Product Sales and Services (3/31/2010) 1. Applicable Terms. These terms govern the sale of goods and services (collectively, "Products ") by Siemens. Whether these terms are included in a proposal, offer or an acceptance by Siemens, such proposal, offer or acceptance is conditioned on Buyers assent to these terms. Any additional, different or conflicting terms contained in Buyer's request for proposal, specifications, purchase order or any other written or oral communication from Buyer shall not be binding in any way on Siemens. Siemens' failure to object to any such additional, different or conflicting terms shall not operate as a waiver of these terms. 2. Pricing & Payment. The prices for the Products shall be: (a) as stated in Siemens' proposal; or, if none are stated (b) Siemens' standard prices in effect at the time of release for shipment or performance of services. In the event of a price increase or decrease, the price of Products on order shall be adjusted to reflect such increase or decrease. This does not apply to a shipment held by request of Buyer. Products already shipped are not subject to price increase or decrease. Siemens may require, at its discretion, a reasonable and appropriate down payment prior to commencing work. Discounts, if any, a_re as specified on the latest discount sheets issued from time to time. Cash discounts are not applicable to notes or trade acceptances, to prepaid transportation charges when added to Siemens' invoices or to discountable items if there are undisputed past due items on the account. Cash discounts shall only be allowed on that portion of the invoice paid within the normal discount period. (a) Pa)mrenl - Unless otherwise stated, all payments shall be net thirty (30) days from the date of invoice payable in United States Dollars. (b) Credit Approval -All orders are subject to credit approval by Siemens. The amount of creditor terms of payment maybe changed or credit withdrawn by Siemens at any time for any reason without advance notice. Siemens may, in its discretion, withhold further manufacture, performance or shipment; require immediate cash payments for past and future shipments or performance; or require other security satisfactory to Siemens before further manufacture, performance or shipment is made; and may, if shipment has been made, recover the Products from the carrier, pending receipt of such assurances. (c) Installment Shipment - If these terms require or authorize delivery of Products in separate lots, shipments or milestones to be separately accepted by Buyer, Buyer may only refuse such portion of a lot, shipment or milestone that fails to comply with the requirements of these terms. Buyer may not refuse to receive any lot or portion of hereunder for failure of any other lot or portion of a lot to be delivered or to comply with these terms, unless such right of refusal is expressly provided for on the face hereof. Buyer shall pay for each lot in accordance with the terns hereof. Payment shall be made for the Products without regard to whether Buyer has made or may make any inspection of the Products. Products held for Buyer are at Buyer's sole risk and expense. (d) 7axe r, Shipping, Packing, Handling - Except to the extent expressly stated in these terns, Siemens' prices do not include any freight, storage, insurance, taxes, excises, fees, duties or other government charges related to the Product, and Buyer shall pay such amounts or reimburse Siemens for any amounts Siemens pays. If Buyer claims a tax or other exemption or direct payment permit, it shall provide Siemens with a valid exemption certificate or permit and indemnify, defend and hold Siemens harmless from any taxes, costs and penalties arising out of same. Siemens' prices include the costs of its standard domestic packing only. Any deviation from this standard packing (domestic or export), including U.S. Government sealed packing, shall result in extra charges. To determine such extra charges, consult Siemens' sales offices. Any and all increases, changes, adjustments or surcharges (including, without limitation, fuel surcharges) which may be in connection with the freight charges, rates or classification included as part of these terms, shall be for the Buyer's account. (e) Finance Charge - Buyer agrees to pay FINANCE CHARGES on the unpaid balance of all overdue invoices, less any applicable payments and credits, from the date each invoice is due and payable at an ANNUAL PERCENTAGE RATE of EIGHTEEN PERCENT (18 %), or the highest applicable and lawful rate on such unpaid balance, whichever is lower. (f) Uispnted Invoice - In the event Buyer disputes any portion or all of an invoice, it shall notify Siemens in writing of the amount in dispute and the reason for its disagreement within twenty-one (2 1) days of receipt of the invoice. The undisputed portion shall be paid when due, and FINANCE CHARGE on any unpaid portion shall accrue, from the date due until the date of payment, to the extent that such amounts are finally determined to be payable to Siemens. (g) Collecifon — Upon Buyer's default of these terms, Siemens may, in addition to any other rights or remedies at contract or law, subject to any cure right of Buyer, declare the entire balance of Buyer's account immediately due and payable or foreclose any security interest in Products delivered. If any unpaid balance is referred for collection, Buyer agrees to pay Siemens, to the extent permitted by law, reasonable attorney fees in addition to all damages otherwise available, whether or not litigation is commenced or prosecuted to final judgment, plus any court costs or expenses incurred by Siemens, and any FINANCE CHARGES accrued on any unpaid balance owed by Buyer. (h) Srnsperrsion/Terniiticiiioln Right - Siemens reserves the right to suspend work if Buyer is over thirty (30) days late in payment of an undisputed invoice. Siemens reserves the right to terminate the order if Buyer is over sixty (60) days late in payment of an undisputed invoice. 3. Delivery; Title; Risk of Loss. Product shall be delivered F.O.B. Siemens point of shipment with title to the Product and risk of loss or damage for the Product passing to Buyer at that point. Buyer shall be responsible for all transportation, insurance and related expenses including any associated taxes, duties or documentation. Siemens may make partial shipments. Shipping dates are approximate only and Siemens shall not be liable for any loss or expense (consequential or otherwise) incurred by Buyer or Buyers customers if Siemens fails to meet the specified delivery schedule. 4. Deferment and Cancellation. Buyer shall have no deferment rights and Buyer shall be liable for cancellation charges, which shall indude without limitation: (a) payment of the full product price for any finished Product or works in progress; (b) payment for raw materials ordered pursuant to a firm purchase order, and (c) such other direct costs incurred by Siemens as a result of such cancellation. 5. Force rMajeure / Delays. If Siemens suffers delay in performance due to any cause beyond its reasonable control, including without limitation acts of God, strikes, labor shortage or disturbance, fire, accident, war or civil disturbance, delays of carriers, failure of normal sources of supply, or acts of government, the time of performance shall be extended a period of time equal to the period of the delay and its consequences. Siemens will give to Buyer notice within a reasonable time after Siemens becomes aware of any such delay. Siemens shall be entitled to reimbursement of actual costs directly attributable to the force majeure event. A force majeure event lasting greater than six (6) months shall entitle either party to terminate the agreement. 6. Buyer's Requirements. Timely performance by Siemens is contingent upon Buyer's supplying to Siemens all required technical information and data, including drawing approvals, and all required commercial documentation. Siemens shall be entitled to a change order under Section I I of these terms for any delay caused by the Buyer, its contractors, successors or assigns. 7. Limited Warranty. (a) Limiled Product Warranty Statements - For each Product purchased from Siemens or an authorized reseller, Siemens makes the following limited warranties: (i) the Product is free from defects in material and workmanship, (ii) the Product materially conforms to Siemens' specifications that are attached to, or expressly incorporated by reference into, these terms; (iii) at the time of delivery, Siemens has title to the Product free and clear of liens and encumbrances; and (iv) for professional services performed by Siemens hereunder, Siemens warrants the services will be performed in accordance with generally accepted professional standards (collectively, the "Limited Warranties "). The Limited Warranties set forth herein does not apply to any software furnished by Siemens. If software is furnished by Siemens, then the attached Software License Addendum shall apply. (b) Conditions io the Limited Warranties - The Limited Warranties are conditioned on (i) Buyer storing, installing, operating and maintaining the Product in accordance with Siemens' instructions; (ii) no repairs, modifications or alterations being made to the Product other than by Siemens or its authorized representatives; (iii) using the Product within any conditions or in compliance with any parameters set forth in specifications that are attached to, or expressly incorporated by reference into, these terms; (iv) Buyer discontinuing use of the Product after it has, or should have had, knowledge of any defect in the Product; (v) Buyer providing prompt written notice of any warranty claims within the warranty period described below; (vi) at Siemens' discreti on, Buyer either removing and shipping the Product or non - conforming part thereof to Siemens, at Buyer's expense, or Buyer granting Siemens access to the Products at all reasonable times and locations to assess the warranty claims; and (vii) Buyer not being in default of any payment obligation to Siemens under these terms. (c) Exclasionsfrom Limited Warranty Coverage - The Limited Warranties specifically exclude any equipment comprising part of the Product that is not manufactured by Siemens or not bearing its nameplate. To the extent permitted, Siemens herby assigns any warranties made to Siemens for such equipment. Siemens shall have no liability to Buyer under any legal theory for such equipment or any related assignment of warranties. Additionally, any Product that is described as being experimental, developmental, prototype, or pilot is specifically excluded from the Limited Warranties and provided to Buyer "as is" with no warranties of any kind. Also excluded from the Limited Warranties are normal wear and tear items including any expendable items that comprise part of the Product, such as fuses, light bulbs and lamps. (d) Limned Warranty Period - Buyer shall have twelve (12) months from initial operation of the Product or eighteen (18) months from shipment, whichever occurs first (or in the case of services, twelve (12) months from the completion of services), to provide Siemens with prompt, written notice of any claims of breach of the Limited Warranties. Continued use or possession of the Product after expiration of the warranty period shall be conclusive evidence that the Limited Warranties have been fulfilled to the full satisfaction of Buyer, unless Buyer has previously provided Siemens with notice of a breach of the Limited Warranties. (e) Remediesfor Breach oflimited Warranty - Buyer's sole and exclusive remedies for any breach of the Limited Warranties are limited to Siemens' choice of repair or replacement of the Product, or non - conforming parts thereof, re- performance of the services, or refund of all or part of the purchase price. The warranty on repaired or replaced parts of the Product or re- performed services shall be limited to the remainder of the original warranty period. Unless otherwise agreed to in writing by Siemens, (i) Buyer shall be responsible for any labor required to gain access to the Product so that Siemens can assess the available remedies and (ii) Buyer will be responsible for providing Siemens with working access to the Products, including the removal, disassembly, replacement or reinstallation of any equipment, materials or structures to the extent necessary to permit Siemens to perform its warranty obligations, or transportation costs to and from the Siemens factory or repair facility, or for damage to equipment components or parts resulting in whole or in part from improper maintenance or operation or from their deteriorated condition. All exchanged Products replaced under this Limited Warranty will become the property of Siemens. (f) 7ransferahility - The Limited Warranties shall be transferable during the warranty period to the initial end - user of the Product. THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 7 ARE SIEMENS' SOLE AND EXCLUSIVE WARRANTIES AND ARE SUBJECT TO THE LIMITS OF LIABILITY SET FORTH IN' SECTION 8 BELOW. SIEMENS MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING AND USAGE OF TRADE. 8. LIMITATION OF LIABILITY. NEITHER SIEMENS, NOR ITS SUPPLIERS, SHALL BE LIABLE, WHETHER IN CONTRACT, WARRANTY, FAILURE OF A REMEDY TO ACHIEVE ITS INTENDED OR ESSENTIAL PURPOSES, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY OR ANY OTHER LEGAL THEORY, FOR LOSS OF USE, REVENUE, SAVINGS OR PROFIT, OR FOR COSTS OF CAPITAL OR OF SUBSTITUTE USE OR PERFORMANCE, OR FOR INDIRECT, SPECIAL, LIQUIDATED, PUNITIVE, EXEMPLARY, COLLATERAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER LOSS OR COST OF A SIMILAR TYPE, OR FOR CLAIMS BY BUYER ITS SUCCESSORS OR ASSIGNS FOR DAMAGES OF BUYER'S CUSTOMERS. SIEMENS' MAXIMUM LIABILITY UNDER THIS CONTRACT SHALL BE THE ACTUAL PURCHASE PRICE RECEIVED BY SIEMENS FOR THE PRODUCT AT ISSUE OR ONE MILLION DOLLARS, WHICHEVER IS LESS. BUYER AGREES THAT THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 8 ARE SEPARATE AND INDEPENDENT FROM ANY REMEDIES WHICH BUYER MAY HAVE HEREUNDER AND SHALL BE GIVEN FULL FORCE AND EFFECT WHETHER OR NOT ANY OR ALL SUCH REMEDIES SHALL BE DEEMED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE. THESE LIMITATIONS OF LIABILITY ARE EFFECTIVE EVEN IF SIEMENS HAS BEEN ADVISED BY BUYER OF THE POSSIBILITY OF SUCH DAMAGES. SIEMENS LIABILITY WITH REGARD TO THIS AGREEMENT SHALL CEASE UPON THE EXPIRATION OF THE LIMITED WARRANTY PERIOD. 9. PATENT AND COPYRIGHT INFRINGEMENT. Siemens will, at its own expense, defend or at its option settle any suit or proceeding brought against Buyer in so far as it is based on an allegation that any Product (including parts thereof), or use thereof for its intended purpose, constitutes an infringement of any United States patent or copyright, if Siemens is promptly provided notice and given authority, information, and assistance in a timely manner for the defense of said suit or proceeding. Siemens will pay the damages and costs awarded in any suit or proceeding so defended. Siemens will not be responsible for any settlement of such suit or proceeding made without its prior written consent. In case the Product, or any part thereof, as a result of any suit or proceeding so defended is held to constitute infringement or its use by Buyer is enjoined, Siemens will, at its option and its own expense, either: (a) procure for Buyer the right to continue using said Product; (b) replace it with substantially equivalent non - infringing Product; or (c) modify the Product so it becomes non - infringing. Siemens will have no duty or obligation to Buyer under this Section 9 to the extent that the Product is (a) supplied according to Buyer's design or instructions wherein compliance therewith has caused Siemens to deviate from its normal course of performance; (b) modified by Buyer or its contractors after delivery; or (c) combined by Buyer or its contractors with devices, methods, systems or processes not furnished hereunder and by reason of said design, instruction, modification, or combination a suit is brought against Buyer. In addition, if by reason of such design, instruction, modification or combination, a suit or proceeding is brought against Siemens, Buyer shall protect Siemens in the same manner and to the same extent that Siemens has agreed to protect Buyer under the provisions of this Section 9. THIS SECTION 9 IS AN EXCLUSIVE STATEMENT OF ALL THE DUTIES OF THE PARTIES RELATING TO PATENTS AND COPYRIGHTS, AND DIRECT OR CONTRIBUTORY PATENT OR COPYRIGHT AND OF ALL THE REMEDIES OF BUYER RELATING TO ANY CLAIMS, SUITS, OR PROCEEDINGS INVOLVING PATENTS AND COPYRIGHTS. 10. Compliance with Laws. Buyer agrees to comply with all applicable laws and regulations relating to the purchase, resale, exportation, transfer, assignment, disposal or use of the goods. IL Changes in Work. Siemens shall not implement any changes in the scope of work unless Buyer and Siemens agree in writing to the details of the change and any resulting price, schedule or other contractual modifications. Any change to any law, rule, regulation, order, code, standard or requirement which requires any change hereunder shall entitle Siemens to an equitable adjustment in the prices and any time of performance. 12. Non- waiver of Default. Each shipment made hereunder shall be considered a separate transaction. In the event of any default by Buyer, Siemens may decline to make further shipments. If Siemens elects to continue to make shipments, Siemens' actions shall not constitute a waiver of any default by Buyer or in any way affect Siemens' legal remedies for any such default. Any waiver of Siemens to require strict compliance with the provisions of this contract shall be in writing and any failure of Siemens to require such strict compliance shall not be deemed a waiver of Siemens' right to insist upon strict compliance thereafter. 13. Final Written Agreement; Modification of Terms. These tents, together with any quotation, purchase order or acknowledgement issued or signed by Siemens, comprise the complete and exclusive agreement between the parties (the "Agreement ") and supersede any terms contained in Buyer's documents, unless separately signed by Siemens. These terms may only be modified by a written instrument signed by authorized representatives of both parties. 14. Assignment. Neither patty may assign the Agreement, in whole or in part, nor any rights or obligations hereunder without the prior written consent of the other, provided however that Siemens may assign its rights and obligations under these terms to its affiliates and Siemens may grant a security interest in the Agreement and/or assign proceeds of the Agreement without Buyer's consent 15. Applicable Law and Jurisdiction. These terms is governed and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is excluded. BUYER WAIVES ALL RIGHTS TO A JURY TRIAL IN ANY ACTION OR PROCEEDING RELATED IN ANY WAY TO THESE TERMS. time directly or indirectly be used, exported, sold, transferred, assigned or otherwise disposed of in a manner which will result in non - compliance with such applicable export laws and regulations. It shall be a condition of the continuing performance by Siemens of its obligations hereunder that compliance with such export laws and regulations be maintained at all times. BUYER AGREES TO INDEMNIFY, DEFEND AND HOLD SIEMENS HARMLESS FROM ANY AND ALL COSTS, LIABILITIES, PENALTIES, SANCTIONS AND FLIES RELATED TO NON - COMPLIANCE WITH APPLICABLE EXPORT LAWS AND REGULATIONS. IS. Nuclear. Buyer represents and warrants that the goods covered by this agreement shall not be used in or in connection with a nuclear facility or application. If Buyer is unable to make such representation and warranty, then Buyer agrees to indemnify and hold harmless Siemens and to waive and require its insurers to waive all right of recovery against Siemens for any damage, loss, destruction, injury or death resulting from a "nuclear incident ", as that term is defined in the Atomic Energy Act of 1954, as amended, whether or not due to Siemens's negligence. 19. Asbestos - Federal Law requires that building or facility owners identify the presence, location and quantity of asbestos containing materials (hereinafter "ACM ") at work sites. Siemens is not licensed to abate ACM. Accordingly, prior to (a) commencement of work at any site under a specific Purchase Order, or (b) a change in the work scope of any Purchase Order, Buyer will certify that the work area associated with Siemens' scope of work under said Purchase Order, Change Order, or either of them, is free of ACM. 20. Confidentiality. (a) During the term of this Agreement and thereafter, Buyer shall treat as confidential all information obtained by him/her for and from Siemens and all information compiled or generated by him/her under this Agreement for Siemens including, but not limited to, business information, manufacturing information, technical data, drawings, flow charts, program listings, software code, and other software, plans and projections. Buyer shall not disclose or refer to the work to be performed under this Agreement in any manner which would identify Siemens without the advance written permission of Siemens. (b) Nothing, however, in this Agreement shall obligate Buyer to treat as confidential any information which: (i) is or becomes generally known to the public, without the fault of the Buyer; (ii) is disclosed to Buyer, without obligation of confidentiality, by a third party having the right to make such disclosure; (iii) was previously known to Buyer, without obligation of confidentiality, which fact can be demonstrated by means of documents which are in the possession of Buyer upon the date of this Agreement; or (iv) is required to be disclosed by law, except to the extent eligible for special treatment under an appropriate protective order, provided that Buyer shall promptly advise Siemens of any requirement to make such disclosure to allow Siemens the opportunity to obtain a protective order and assist Siemens in so doing. 16. Severability. If any provision ofthese terms is held to be invalid, illegal or unenforceable, the validity, (c) It is Siemens' policy not to unlawfully or improperly receive or use confidential information, including trade legality and enforceability of the remaining provisions will not in any way be affected or impaired, and such provision will secrets, belonging to others. This policy precludes Siemens from obtaining, directly or indirectly from any be deemed to be restated to reflect the original intentions ofthe parties as nearly as possible in accordance with applicable employee; Buyer, or other individual rendering services to Siemens confidential information of a prior employer, law. client or any other person which such employee, Buyer, or individual is under an obligation not to disclose. The Buyer agrees to abide by this policy. 17. Export Control. Buyer acknowledges that Siemens is required to comply with applicable export laws and regulations relating to the sale, exportation, transfer, assignment, disposal and usage of the goods provided under this agreement, including any export license requirements. Buyer agrees that such goods shall not at any SOFTWARE LICENSE / WARRANTY ADDENDUM - SIEMENS ENERGY, INC. ( "SIEMENS ") POWER TRANSMISSION & POWER DISTRIBUTION DIVISIONS This Addendum applies to software furnished by Siemens and replaces the Limited Warranty provisions of Siemens' Standard Terms and Conditions of Product Sale and Services. All other terms and conditions contained in Siemens' Standard Terms and Conditions of Product Sale and Services are unaffected by this Addendum. 1. Software License, Warranty, Fees. (a) Siemens hereby grants to Buyer: a non - exclusive, non - transferable right to use the computer software program licensed under this Contract in machine - readable, object code form and any modifications made by Siemens thereto ( "Software "), but only in connection with the configuration of the goods and operating system for which the Software is ordered and for the end -use purpose stated in the related Siemens operating documentation. Buyer agrees that neither it nor any third party shall modify, reverse engineer, decompile or reproduce the Software, without Siemens's prior written consent, except for making a single copy for backup or archival purposes in accordance with the related Siemens operating documentation, and provided that Siemens's confidential and proprietary legend is included. Except to the extent that the parties otherwise agree in writing, Buyer's license to use the copy of such Software shall terminate upon breach of this license or the Contract by Buyer, including, without limitation, breach of payment or confidentiality obligations. All copies of the Software are the property of Siemens, and all copies for which the license is terminated shall be returned to Siemens promptly after termination. (b) Siemens may authorize Buyer (such as a Siemens distributor or original equipment manufacturer) to transfer this software license and warranty to a third parry ( "Siemetts- authorized transferee ). Such authorization to transfer shall be in writing and signed by a Siemens authorized representative. Siemens- authorized transferee shall have the same rights and obligations as Buyer, except it shall not have the right to transfer such license. (c) Siemens warrants that on the date of shipment of the Software only to Buyer or Buyer's Siemens - authorized transferee hereunder that: (1) the Software media contain a true and correct copy of the Software and are free from material defects; (2) Siemens has the right to grant the license hereunder; and (3) the Software will function substantially in accordance with the related Siemens operating documentation. Siemens disclaims any warranty that the operation of the Software will be uninterrupted or error free. This warranty does not apply to software delivered by Siemens but produced by others. The warranty for software produced by others shall be the warranty as stated by the software producer. (d) If within one (1) year from date of initial installation (but not more than eighteen (18) months from date of shipment by Siemens to Buyer) of Software, Buyer or its Siemens - authorized transferee hereunder discovers that the Software is not as warranted above and promptly notifies Siemens in writing, within this period of time, of the nonconformity, and if Siemens cannot correct the nonconformity or deems correction to be commercially impracticable or prohibitively expensive, Buyer's and Buyer's Siemens - authorized transferee's exclusive remedies, at Siemens's option and expense, are: (1) replacement of the nonconforming Software; or (2) termination of this license and a refund of an equitable, pro rata share of the Contract price or license fee paid. (e) This warranty will apply for the period specified in (d) above, provided that: (1) the Software is not modified, changed, or altered by anyone other than Siemens or its suppliers, unless authorized by Siemens in writing; (2) there is no change by anyone other than Siemens to the goods for which the Software is ordered; (3) the goods are in good operating order and are installed in a suitable operating environment; (4) the nonconformity is not caused by Buyer, Buyer's Siemens - authorized transferee, or any of their agents, servants, employees, or contractors, or any third party; (5) Buyer or Buyer's Siemens- authorized transferee promptly notifies Siemens in writing, within the period of time set forth in (d) above, of the nonconformity after it is discovered; and (6) all fees for the Software due to Siemens have been paid. SIEMENS HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO THE SOFTWARE, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING AND USAGE OF TRADE. (f) Buyer and successors of Buyer are limited to the remedies specified in this Section and shall have no others for a nonconformity in the Software. Buyer agrees that these remedies provide Buyer and its successors with a minimum adequate remedy and are their exclusive remedies, whether Buyer's or successors' remedies are based on contract, warranty, tort (including negligence), strict liability, indemnity, or any other legal theory, and whether arising out of warranties, representations, instructions, operating documentation, installations, or non - conformities from any cause. (g) Unless otherwise provided in this Contract, the fees for this Software license are included in the purchase price of the goods. Any subsequent modifications or enhancements to the Software made by Siemens are, at Siemens's option, subject to a fee.