HomeMy WebLinkAbout21- Pall Corporation - SCADA PC UpgradePall Water
Pall Technology Services
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Confidential - Company Proprietary
839 State Route 13
Cortland New York 13045-5630
Tel: 866.475.0115 ▲ FAX: 607.758..4526
Email: pall_technology_csc@pall.com
Attn: Jill Miller
Email: jmiller@BOZEMAN.NET
Pall Proposal No.: OPP1458390R3
Date: April 28 , 2021
Re: PC Upgrade The City of Bozeman
As a follow up to your discussion with Pall, we are pleased to offer a proposal for technical services. We will
arrange support pending receipt of your purchase order..
Scope of Services
Technical Scope of Supply – Desktop SCADA PC Upgrade
Pall proposes to install SCADA software and application programming ("screens") on a customer-provided
desktop SCADA PC to operate as the plant SCADA system operating on Microsoft Windows 10, using the
existing license of Wonderware InTouch HMI 2020.
*** PLEASE NOTE: The PC must meet minimum specifications:
a. The processor must be at least an i5 processor (i3 and lower are not adequate)
b. The operating system must be either Windows 10 Professional or Windows 10 Enterprise (Home is not
adequate)
c. There must be at least 8GB of RAM. We recommend 16GB or more for performance reasons
d. The hard drive must be at least 500GB
e. There must be two Ethernet connections, or “NIC” cards. This allows the computer to communicate with
the controls network (which has fixed IP addresses) and an internet connection.
Pall intends to perform the installation work remotely via internet connection. There must be a high-speed
internet connection, and either TeamViewer or a VPN connection configured on the PC to allow the work to
proceed. Additionally, there will need to be someone at the site available for assistance while the upgrade is
being performed. This is mainly just in case someone has to do or check something at the site like checking
connections or manually rebooting the PC.
Once high-speed internet connection is reliably established, Pall will perform the following:
- Install/relocate existing Wonderware InTouch software, associated utilities, add-ons and extensions. Both
Development and Runtime software will be installed for Wonderware InTouch. These licenses will be
relocated from an existing computer.
- Provide and install a new license of Rockwell Software RSLinx
- Install Wonderware applications ("screens") for Pall Water system and complete any necessary
configuration for proper operation.
- Configure Microsoft Office software (required for Daily Reporting to function). License to be provided by
others.
- Provide and install ActiveX prompt software (required for use with InTouch)
- Install RSLogix5000, relocating existing license from an existing computer
- Install prompting software for SCADA
- Simulate & test the operation of the PC before turning over use to site personnel
No site visit by a Pall Field Service Engineer is provided. The customer will install the computer prior to software
installation and upgrade work commences. The customer will then be required to contact Pall to log into the
computer remotely. Pall can provide remote telephone support to guide the customer through the installation
process as needed.
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Pall Water
Pall Technology Services
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All software licenses for the software listed above will be moved from the old computer to the new one, unless
otherwise noted. As necessary, Pall will work with the customer to obtain the most current copies of SCADA
screens and other site-specific programming for installation on the new PC. Customer must provide current
software license numbers of all Rockwell Software (RSLinx). Customer must provide current software license
numbers of all Wonderware software. The Wonderware serial number (proof of ownership) must be approved by
its manufacturer; otherwise a price increase will be required. Installation of any software not originally
provided by Pall, as listed above, is not included and must be completed by others.
Freight Charges are not included.
Disclaimer: This proposal is based on information and conditions known at the time of quotation. Pall Water
reserves the right to revise this proposal through change order(s) should conditions vary significantly from those
known at the time of quotation and require additional work or materials.
PROPOSAL SUMMARY
PC Upgrade (Desktop w/Wonderware InTouch) $ 11,955.17
Total amount for purchase order: $ 11,955.17
Service Reports: If service reports are required by your site to comply with your company or state regulations,
please indicate on your order that service report documents are required. Service reports detailing the visit and
recommendations will then be provided.
Materials: This proposal covers parts and services.
Validity: This proposal is valid for 30 days.
Terms of Sale: Standard Terms and Conditions of Sale Non-Systems – The Americas
Terms of Service:
▪Regular minimum service charge is for a 10-hour day.
Service Order acceptance and payment terms: Pall Advanced Separations Systems requires all accounts
outstanding beyond 30 days to be paid in full prior to order acceptance. Your account status will be verified at
the time of order placement, and you will be notified if you have a balance due. To avoid order processing,
goods shipment or service scheduling delays, please insure your account is up to date in advance of placing
your order. Charges per the proposal will be billed automatically upon completion of the service, and sign-off
of the service report, and become payable within 30 business days of receipt of the invoice.
Changes: Pall shall not implement any changes in the scope of services described in Pall’s proposal unless the
Customer and Pall agree to the details of the change. Any resulting price, schedule or other contractual
modifications, will require a verbal change called into Pall’s Customer Service Department, with a follow up
written confirmation. This includes any changes necessitated by a change in applicable law.
A Purchase Order or written authorization to accept the contract of work as described, along with a signed copy
of the attached Customer authorization for service is required in advance of PASS providing the service defined
in this proposal.
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Pall Technology Services
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Please direct your purchase order to:
Pall Water
Pall System Services
P.O. Box 5630
839 State Route 13
Cortland, New York 13045-5630
Tel: 866-475-0115 / Fax: 607.758.4526
Email: Pall_Technology_csc@pall.com
Attn: Customer Service
Pall Proposal No.: OPP1458390R3
Date: April 28 , 2021
Pall Systems Support
To obtain support for your Pall systems installation, our Customers can contact Pall via our toll free number
at 866-475-0115 or by email to pall_technology_csc@pall.com. Through this channel, you gain access to
warranty assistance, technical support as well as our service and spares team.
Pall Customers have access to this 24/7 Service Hotline. Pall System Engineers are on full-time rotation to
provide around-the-clock availability of live technical support. This service is charged at $275 for support
time for the first 30 minutes, during normal workday hours between 9:00-AM and 4:00-PM EST, excluding
weekends and holidays.
If your system is out of warranty or does not have a 24/7 service support contract, there will be a charge
when technical support is to be provided for intervals longer than 30 minutes, or after-hours technical support
to resolve the issue. Extensive off-site support will require a purchase order or credit card. Billing is based
on a minimum 1-hour charge at Pall’s off-site hourly service rate. You will be asked to provide
your credit card number or service contract purchase order number that will be billed at Pall’s Off-Site
Service Rates, with a minimum 1-hour charge. If the problem cannot be resolved over the telephone, the
Customer can request a Pall System Service Representative to visit the site location. You will be quoted
an Emergency Service Rate and billed for last-minute travel expenses.
Please feel free to call me at your convenience with any questions or comments. We look forward to providing
you with field services to assist you with system operation, and await your purchase order.
Sincerely,
Alexander Braman
Inside Sales Representative
Cell: 720-202-6536
E-mail: alexander_braman@pall.com
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Pall Technology Services
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Pall Proposal.: OPP1458390R3
Date: April 28, 2021
Pall Proposal No.:
Effective Date and Duration: This Agreement will be effective as of the date signed below, and will remain in
effect:
• until on site service work has been completed by Pall,
• or until 30 days after receipt of notice of termination by either party.
Customer Billing Address:
Customer Comments:
Purchase Order No. or Reference for Billing:
Circle Service Visit Frequency: Annual Semi-Annual Quarterly Single Emergency
Requested Date(s) to Schedule Service Visit(s):
(unless deemed emergency service, please allow a 4-week window to accommodate scheduling by Pall.)
Date Signature
Title/Position Print Name
Company:
I am an authorized representative of the customer, and I accept the Terms and Conditions of this Service
Agreement on behalf of the customer. I authorize Pall Corporation to perform the work defined in this
agreement, and accept the costs and charges defined in this agreement.
Customer Authorization for Service
City of Bozeman
Jeff Mihelich City Manager
July/August
WTPJMM07012021
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7/14/2021
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Standard Terms and Conditions of Sale
Non-Systems – The Americas
Pall Water
1.Applicability: Entire Agreement:
1.1. These terms and conditions of sale (these "Terms") are the only terms which govern the sale of the
goods identified on Buyer's purchase order (the "Goods") by Seller to Buyer. By placing a purchase
order, Buyer makes an offer to purchase the Goods pursuant to these Terms, including (a) a list of the
Goods to be purchased; (b) the quantity of each of the Goods ordered; (c) the requested delivery date;
(d) the unit Price for each of the Goods to be purchased; (e) the billing address; and (f) the delivery
location (the “Basic Purchase Order Terms”), and on no other terms.
1.2. The accompanying quotation, proposal, confirmation of sale, invoice, order acknowledgment or
similar document delivered by Seller to Buyer (the "Sales Confirmation"), the Basic Purchase Order
Terms and these Terms (collectively, this "Agreement") comprise the entire agreement between the
parties, and supersede all prior or contemporaneous understandings, agreements, negotiations,
representations and warranties, and communications, both written and oral. These Terms prevail over
any of Buyer's general terms and conditions of purchase regardless whether or when Buyer has
submitted its purchase order or such terms. Fulfillment of Buyer's order does not constitute acceptance
of any of Buyer's terms and conditions and does not serve to modify or amend these Terms.
1.3. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in
existence covering the sale of the Goods covered hereby, the terms and conditions of said
contract shall prevail to the extent they are inconsistent with these Terms.
2.Non-delivery:
2.1 The quantity of any installment of Goods as recorded by Seller on dispatch from Seller's Shipment
Point (as defined in Section 4) is conclusive evidence of the quantity received by Buyer on
delivery unless Buyer can provide conclusive evidence proving the contrary.
2.2 Seller shall not be liable for any non-delivery of Goods (even if caused by Seller's negligence) unless
Buyer gives written notice to Seller of the non-delivery within 10 days of the date when the
Goods would in the ordinary course of events have been received.
2.3 Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a
reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity
delivered.
3.Delivery:
3.1 The Goods will be delivered within a reasonable time after the receipt of Buyer's purchase order,
subject to availability of finished Goods. The delivery and/or shipping schedule is the best estimate
possible based on conditions existing at the time of Seller's Sales Confirmation or Seller's quotation
and receipt of all specifications, as applicable, and in the case of non-standard items, any such date
is subject to Seller's receipt of complete information necessary for design and manufacture. Seller
shall not be liable for any delays, loss or damage in transit or for any other direct, indirect, or
consequential damages due to delays, including without limitation, loss of use.
3.2 Seller may, in its sole discretion, without liability or penalty, deliver partial shipments of Goods to
Buyer and ship the Goods as they become available, in advance of the quoted delivery date. If
the Goods are delivered in installments, then insofar as each shipment is subject to the same
Agreement, the Agreement will be treated as a single contract and not severable.
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3.3 Seller shall make the Goods available to Buyer at Seller's factory or designated shipment point
(each, “Seller’s Shipment Point") using Seller's standard methods for packaging and shipping such
Goods. Buyer shall take delivery of the Goods within 5 days of Seller's written notice that the
Goods have been delivered to the Seller’s Shipment Point.
3.4 If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to
Seller's notice that the Goods have been delivered at the Seller’s Shipment Point, or if Seller is
unable to deliver the Goods at the Seller’s Shipment Point on such date because Buyer has not
provided appropriate instructions, documents, licenses or authorizations: (i) title and risk of loss to
the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii)
Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable
for all related costs and expenses (including, without limitation, storage and insurance).
4.Shipping Terms: Unless otherwise mutually agreed to in writing by the parties, delivery shall be FCA
(Seller’s Shipment Point) INCOTERMS 2010. At Buyer’s request, Seller will, at Buyer's risk and
expense, arrange for the delivery of the Goods to Buyer's site/facility and Buyer will pay, or reimburse
Seller, for all freight charges, taxes, duties, entry fees, brokers’ fees, special, miscellaneous and all other
ancillary charges and special packaging charges incurred.
5.Title and Risk of Loss: Title and risk of loss passes to Buyer upon the earlier of (i) delivery of the
Goods at the Seller’s Shipment Point or (ii) deemed delivery pursuant to clause 3.4 above. As collateral
security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and
security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever
located, and whether now existing or hereafter arising or acquired from time to time, and in all
accessions thereto and replacements or modifications thereof, as well as all proceeds (including
insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a
purchase money security interest under the New York Uniform Commercial Code.
6.Inspection and Rejection of Nonconforming Goods:
6.1 Buyer shall inspect the Goods within 10 days of receipt (the "Inspection Period"). Buyer will be
deemed to have accepted the Goods unless it notifies Seller in writing of any nonconforming Goods
during the Inspection Period and furnishes such written evidence or other documentation as
required by Seller. Such notification shall identify each and every alleged nonconformity of the
Goods and describe that portion of the shipment being rejected. Seller shall then respond with
instructions as to the disposition of the Goods.
6.2 If Buyer timely notifies Seller of any nonconforming Goods, Seller shall, in its sole discretion, (i)
replace such nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such
nonconforming Goods, together with any reasonable shipping and handling expenses incurred by
Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the nonconforming
Goods to Seller's Shipment Point. If Seller exercises its option to replace nonconforming Goods,
Seller shall, after receiving Buyer's shipment of nonconforming Goods, ship to Buyer, at Buyer's
expense and risk of loss, the replaced Goods to the Seller’s Shipment Point.
6.3 Buyer acknowledges and agrees that the remedies set forth in Section 6.2 are Buyer's exclusive
remedies for the delivery of Nonconforming Goods. Except as provided under Section 6.2, all
sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods
purchased under this Agreement to Seller.
6.4 If Seller delivers to Buyer a quantity of Goods of up to 5% more or less than the quantity set forth in
the Sales Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion
of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in
the Sales Confirmation adjusted pro rata.
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7. Services: Seller will provide such services as are expressly described in the Sales Confirmation
(collectively, the “Services”), during normal business hours, unless otherwise specified in the Sales
Confirmation. Services requested or required by Buyer outside of these hours or in addition to the
quoted or agreed upon services will be charged at Seller’s then current schedule of rates, including
overtime charges, if applicable, and will be in addition to the charges outlined in the Sales Confirmation.
8. Purchase Price: The price for the Goods and/or Services thereof shall be Seller’s quoted price. Seller
may also at any time assess a fuel or energy surcharge (in addition to the price of the Goods) (the
“Purchase Price”). The Purchase Price is based on the project schedule defined in this Agreement,
Sales Confirmation or applicable contract documents. Notwithstanding anything to the contrary set out
herein, in the event of any delay to Seller’s delivery schedule caused by Buyer or its representatives
(other than for Force Majeure or delays caused by Seller), including without limitation, a suspension of
work or the project, a postponement of the delivery date or failure to timely issue of a notice of
commencement or similar document, then the Purchase Price shall increase by 1% for every month or
partial month of such delay and this Agreement shall be construed as if the increased Purchase Price
were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased
Purchase Price.
9. Taxes: The Purchase Price is exclusive of any applicable federal, state or local sales, use, excise or
other similar taxes, including, without limitation, value added tax, goods and services tax or other similar
tax imposed by any governmental authority on any amounts payable by Buyer. All such taxes will be for
Buyer's account and will be paid by Buyer to Seller upon submission of Seller's invoices. Buyer agrees
to make tax accruals and payments to the tax authorities as appropriate. If Buyer is exempt from any
applicable sales tax or equivalent, but fails to notify Seller of such exemption or fails to furnish its Sales
Tax Exemption Number to Seller in a timely manner and Seller is required to pay such tax, the amount
of any such payment made by Seller will be reimbursed by Buyer to Seller upon submission of Seller's
invoices.
10. Payment:
10.1 Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of Seller's
invoice. Buyer shall make all payments hereunder by EFT, wire transfer, or check and in US
dollars. Payment for foreign billing shall be in accordance with Seller's written instructions.
10.2 Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the
highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer
shall reimburse Seller for all costs incurred in collecting any late payments, including, without
limitation, reasonable attorneys' fees. In addition to all other remedies available under these Terms
or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be
entitled to suspend performance of any Purchase Order, or suspend the delivery of any Goods, if
Buyer fails to pay any amounts when due hereunder and such failure continues for 5 days following
written notice thereof. Additionally Seller my require payment in cash, security or other adequate
assurance satisfactory to Seller when, in Seller's opinion, the financial condition of Buyer or other
grounds for insecurity warrant such action.
10.3 All sales are subject to the approval of Seller's credit department. Seller and Buyer both
recognize that there is a risk of banking fraud when individuals impersonating a business
demand payment under new banking or mailing instructions. To avoid this risk, Buyer must
verbally confirm any new bank or mailing instructions by calling Seller and speaking with Seller’s
accounts receivable contact before mailing or transferring any monies using the new instructions.
Both parties agree that they will not institute any mailing or bank transfer instruction changes or
require immediate payment under the new instructions but will instead provide a ten (10) day
grace period to verify any payment instruction changes before any new or outstanding payments
are due using the new instructions.
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10.4 Buyer may not withhold or setoff any amounts that may be claimed by Buyer against any
amounts that are due and payable to Seller by reason of any set-off of any claim or dispute with
Seller, whether relating to Seller's breach, bankruptcy or otherwise.
10.5 Notwithstanding anything herein to the contrary, this Agreement may be modified or
terminated/cancelled, and scheduled shipments hereunder may be deferred or changed, only: (i)
upon Buyer’s prior written notice to Seller, and Seller’s written acknowledgment of the notice; and
(ii) upon terms satisfactory to Seller. Buyer shall pay to Seller all fees, charges and/or costs that
Seller assesses because of any modification, termination/cancellation, deferment and/or change,
including without limitation all termination/cancellation fees, restocking fees, storage fees, insurance
costs, freight costs, nonrecurring engineering or production costs and recovery of cost plus
reasonable profit required in the event of Buyer’s termination without cause.
11. Limited Warranty:
11.1 Limited Warranty for Goods. Seller warrants to Buyer that for a period of twelve months from the
date of delivery of the Goods, including deemed delivery pursuant to clause 3.4 above (the
"Warranty Period"), that the Goods manufactured by Seller, when properly installed and
maintained, and operated at ratings, specifications and design conditions specified by Seller, will
materially conform to Seller’s specifications for such Goods set forth in Seller’s proposal, or, in the
absence of such a proposal, such specifications for such Goods appearing in Seller’s product
catalogues and literature or in the Sales Confirmation, at the time of the order and will be free from
material defects in material and workmanship (this “Limited Warranty”). Buyer shall notify Seller
promptly in writing of any claims within the Warranty Period and provide Seller with an opportunity
to inspect and test the Goods or service claimed to fail to meet this Limited Warranty. Buyer shall
provide Seller with a copy of the original invoice for the product or service, and prepay all freight
charges to return any Goods to Seller's factory, or other facility designated by Seller. All claims must
be accompanied by full particulars, including system operating conditions, if applicable. If the defects
are of such type and nature as to be covered by this Limited Warranty, Seller shall, at its option and
in its sole discretion, either: (a) accept return of the defective Goods and furnish replacement Goods;
(b) furnish replacement parts for the defective Goods; (c) repair the defective Goods; or (d) accept
return of the defective Goods and return payments made, or issue credits for, such defective Goods.
If Seller determines that any warranty claim is not, in fact, covered by this Limited Warranty, Buyer
shall pay Seller its then customary charges for any additionally required service or products.
11.2 Limited Warranty for Services. Seller further warrants that all Services performed hereunder, if any,
will be performed in a workmanlike manner in accordance with applicable law and industry standards by
qualified personnel (this “Limited Warranty for Services”); this Limited Warranty for Services shall
survive for 30 days following Seller’s completion of the Services (the “Service Warranty Period”). In
the event of a warranty claim under this Limited Warranty for Services, Buyer shall inform Seller
promptly in writing of the details of the claim within the Service Warranty Period. Seller’s liability under
any service warranty is limited (in Seller’s sole discretion) to repeating the service that during the
Service Warranty Period does not meet this Limited Warranty for Services or issuing credit for the
nonconforming portions of the service. If Seller determines that any warranty claim is not, in fact,
covered by the foregoing Limited Warranty for Services, Buyer shall pay Seller its then customary
charges for all services performed by Seller.
11.3 No Warranty as to Third Party Products. Products manufactured by a third party ("Third Party
Product") may constitute, contain, be contained in, incorporated into, attached to or packaged
together with, the Goods. Third Party Products are not covered by the warranty in Section 11.1.
For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES
WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF
MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c)
WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL
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PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW,
COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
With respect to any Third Party Product, the warranty, if any, is provided solely through the
manufacturer of such Third Party Product, the terms of which vary from manufacturer to
manufacturer and Seller assumes no responsibility on their behalf. For Third Party Products,
specific warranty terms may be obtained from the manufacturer’s warranty statement.
11.4 Other Limits. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 11.1 and 11.2,
SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS AND
SERVICES, INCLUDING WITHOUT LIMITATION ANY (a) WARRANTY OF MERCHANTABILITY; (b)
WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d)
WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD
PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF
PERFORMANCE, USAGE OF TRADE OR OTHERWISE. Seller does not warrant against, and in no
event shall Seller be liable for, damages or defects arising out of improper or abnormal use, misuse,
abuse, improper installation (other than by Seller), application, operation, maintenance or repair,
alteration, accident, or for negligence in use, storage, transportation or handling or other negligence of
Buyer. In no event shall Seller be liable for any Goods repaired or altered by someone other than Seller
other than pursuant to written authorization by Seller. All product warranties and performance
guarantees shall only be enforceable if (a) all equipment is properly installed, inspected regularly and is
in good working order, (b) all operations are consistent with Seller recommendations, (c) operating
conditions at the job site have not materially changed and remain within anticipated specifications, and
(d) no reasonably unforeseeable circumstances exist or arise.
11.5 Exclusive Obligation. THIS WARRANTY IS EXCLUSIVE. THE LIMITED WARRANTY AND THE
LIMITED WARRANTY FOR SERVICES ARE THE SOLE AND EXCLUSIVE OBLIGATIONS OF
SELLER WITH RESPECT TO THE DEFECTIVE GOODS AND SERVICES. SELLER SHALL NOT
HAVE ANY OTHER OBLIGATION WITH RESPECT TO THE GOODS, SERVICES, OR ANY PART
THEREOF, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE. THE
REMEDIES SET FORTH IN SECTIONS 11.1 AND 11.2 SHALL BE THE BUYER'S SOLE
AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF
THE LIMITED WARRANTY SET FORTH IN SECTION 11.1 AND 11.2.
11.6 Buyer Breach. In no event shall Buyer be entitled to claim under the above Limited Warranties
if Buyer is in breach of its obligations, including but not limited to payment, hereunder.
12. Limitation of Liability:
12.1 IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT,
INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR
REVENUES OR DIMINUTION IN VALUE, INCLUDING WITHOUT LIMITATION,
REMANUFACTURING COSTS AND REWORK COSTS, DE-INSTALLATION OR REINSTALLATION
COST, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS
BEEN DISCLOSED IN ADVANCE BY BUYER OR COULD HAVE BEEN REASONABLY
FORESEEN BY BUYER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (TORT,
CONTRACT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND WHATEVER
THE FORUM, WHETHER ARISING OUT OF OR IN CONNECTION WITH THE
MANUFACTURE, PACKAGING, DELIVERY, STORAGE, USE, MISUSE OR NON-USE OF
ANY OF ITS GOODS OR SERVICES OR ANY OTHER CAUSE WHATSOEVER.
12.2 IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO
THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT,
TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS
PAID TO SELLER FOR THE GOODS SOLD HEREUNDER
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12.3 The limitation of liability set forth in Section 12.2 above shall not apply to liability resulting from
Seller's gross negligence or willful misconduct.
13 Cancellation: Buyer may not cancel this Agreement after Sales Confirmation unless all the details
are approved in writing by the parties, including Buyer's agreement to pay a stated amount of
termination charges.
14 Termination: In addition to any remedies that may be provided under these Terms, Seller may
terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any
amount when due under this Agreement and such failure continues for 10 days after Buyer's receipt of
written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in
whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has
commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for
the benefit of creditors.
15 Changes: Seller shall not be obligated to implement any changes or variations in the scope of work
described in Seller’s Documentation unless Buyer and Seller agree in writing to the details of the
change and any resulting price, schedule or other contractual modifications. This includes any
changes or variations necessitated by a change in applicable law occurring after the effective date of
this Agreement including these Terms.
16 Intellectual Property Infringement: Buyer has no authorization to make any representation,
statement or warranty on behalf of Seller relating to any Goods sold hereunder. Buyer shall indemnify
and defend, at its own expense, Seller against claims or liability for U.S. or applicable foreign patent,
copyright, trademark or other intellectual property infringement and for product liability arising from the
preparation or manufacture of the Goods according to Buyer's specifications or instructions, or from
Buyer's unauthorized or improper use of the Goods or part thereof, or from any changes or alterations to
the
Goods or part thereof made by persons other than Seller, or from the use of the Goods in combination
with products not furnished by Seller or from the manufacture or sale or use of Buyer products which
incorporate or integrate the Goods.
17 Ownership of Materials: All ideas, concepts, whether patentable or not, devices, inventions,
copyrights, improvements or discoveries, designs (including drawings, plans and specifications),
estimates, prices, notes, electronic data and other documents or information that are: a) created,
prepared, reduced to practice or disclosed by Seller; and/or b) based upon, derived from, or utilize the
Confidential Information of Seller, and all related intellectual property rights, shall at all times remain
Seller’s property. No right, title or interest in any patents, trademarks, trade names or trade secrets, or in
any pattern, drawing or design for any of the Goods or in any other Seller intellectual property right, shall
pass or transfer to the Buyer and Seller shall at all times retain ownership rights therein. Notwithstanding
the foregoing, Seller grants Buyer a non-exclusive, non-transferable license to use any such material to
the extent necessary and solely for Buyer’s use of the Goods purchased by Buyer from Seller
hereunder. Buyer shall not disclose any such material to third parties without Seller’s prior written
consent. As a condition to Seller’s delivery to Buyer of the Goods, Buyer shall not, directly or indirectly,
and shall cause its employees, agents and representatives not to: (i) alter or modify the Goods, (ii)
disassemble, decompile or otherwise reverse engineer or analyze the Goods, (iii) remove any
product identification or proprietary rights notices, (iv) modify or create derivative works, (v) otherwise
take any action contrary to Seller’s rights in the technology and intellectual property relating to the
Goods, (vi) assist or ask others to do any of the foregoing.
18. Export: As a condition to Seller’s delivery to Buyer of the Goods, Buyer agrees, with respect to the
exportation or resale of the Goods by Buyer, to comply with all requirements of the International Traffic
in Arms Regulations ("ITAR") and the Export Administration Regulations ("EAR"), regulations issued
thereunder and any subsequent amendments thereto, and all other national, including, but not limited to,
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European, government laws and regulations on export controls, including laws and regulations
pertaining to export licenses, restrictions on export to embargoed countries and restrictions on sales to
certain persons and/or entities. Buyer further agrees that the shipment and/or delivery of the Goods by
Seller is contingent upon Seller obtaining all required export authorizations, licenses, and permits
(collectively, “Authorizations”) and Buyer agrees that Seller shall not be liable to Buyer for any failure or
delay in the shipment or delivery of the Goods if such Authorizations are delayed, conditioned, denied or
not issued by the regulatory or governmental agencies having jurisdiction over such Authorizations.
19. Confidentiality: If Seller discloses or grants Buyer access to any research, development, technical,
economic, or other business information or "know-how" of a confidential nature, whether reduced to
writing or not, Buyer will not use or disclose any such information to any other person or company at any
time, without Seller's prior written consent. In the event that Buyer and Seller have entered into a
separate confidentiality agreement (the “Confidentiality Agreement”), the terms and conditions of the
Confidentiality Agreement shall take precedence over the terms of this paragraph.
20. No Waiver: No waiver by Seller of any of the provisions of this Agreement is effective unless
explicitly set forth in writing and signed by Seller. Seller's failure to exercise, or to delay in exercising,
any right, remedy, power or privilege arising from this Agreement, or to insist on Buyer's strict
performance of these Terms shall not operate as or be construed as a waiver by Seller.
21. Force Majeure: Under no circumstances shall either party have any liability for any breach relating
to nonperformance or underperformance caused by extreme weather, natural disaster, fire, accident or
other act of God; strike, lock out or other labor shortage or disturbance; lock down, boycott, embargo or
tariff; terrorism or act of terrorism, war or war condition or civil disturbance or riot; failure of public or
private telecommunications networks; delay of carriers or other industrial, agricultural or transportation
disturbance; failure of normal sources of supply; epidemics, pandemics, contagion, disease or
quarantine; law, regulation or any act of government; or any other cause beyond either party’s
reasonable control. Either party’s performance shall be excused and deemed suspended during the
continuation of such event or events and, for a reasonable time thereafter, delayed or adjusted
accordingly.
22. No Third-Party Beneficiaries: This Agreement is for the sole benefit of the parties hereto and their
respective successors and permitted assigns and nothing herein, express or implied, is intended to
or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any
nature whatsoever under or by reason of these Terms.
23. Relationship of the Parties: The relationship between the parties is that of independent
contractors. Nothing contained in this Agreement shall be construed as creating any agency,
partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between
the parties, and neither party shall have authority to contract for or bind the other party in any manner
whatsoever.
24. Validity: If any provision of this Agreement, the Sales Confirmation or these Terms is held by any
competent authority to be invalid or unenforceable in whole or in any part, such provision shall be
ineffective, but only to the extent of such invalidity or unenforceability, without invalidating the
remainder of such provision nor the other provisions, which shall not be affected.
25. Governing Law: This Agreement, and all the rights and duties of the parties arising from or relating
in any way to the subject matter of this Agreement or the transaction(s) contemplated by it, shall be
governed by the laws of the State of Montana.
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26. Survival: All payment, confidentiality and indemnity obligations, warranties, limitations of liability,
product return, and ownership of materials provisions, together with those sections the survival of
which is necessary for the interpretation or enforcement of these Terms, shall continue in full force
and effect for the duration stated in such provisions or the applicable statute of limitations.
27. Amendment and Modification: This Agreement may only be amended or modified in a writing
which specifically states that it amends this Agreement and is signed by an authorized representative of
each party.
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