1. Acceptance. This Quote and Agreement (“Quote”) constitutes an offer by System Scale Corporation (“SSC”) and may only be accepted on its exact terms. Provisions by Buyer or within Buyer’s purchase order or other documents that contain terms inconsistent, different or additional to those set forth herein, unless expressly accepted in writing by an officer of SSC within ten (10) days after receipt, shall not be binding upon SSC. All Quotes and transactions are subject to these Standard Terms and Conditions.
2. Responsibilities of the Parties. Buyer and SSC shall cooperate to fulfill their respective obligations and endeavor to maintain good working relationships.
i. Designated Representative. Buyer’s designated representative shall be authorized to act on Buyer’s behalf with respect to the Equipment and/or Work and shall render decisions in a timely manner to avoid delay.
ii. Duties. Buyer shall assist SSC with the provision of Equipment of performance of the Work: (a) provide reports, drawings, and all available information related to the premises; (b) provide access to, and make provision for entrance into, public and private lands as required to provide the Equipment and/or perform the Work; (3) examine and timely report its comments on reports, sketches, drawings and other documents; (4) inform SSC of every location where SSC’s employees or agents should not (because of concealed obstructions or hazards such as pipes, wires, asbestos) enter or access to provide Equipment or perform Work.
iii. Payment. Buyer shall pay the Quote Total, previously unavailable freight charges, applicable tax, and all Change Orders for additional Equipment or Work incurred by SSC.
i. Designated Representative. SSC’s designated representative shall be authorized to act on SSC’s behalf with respect to the Equipment and/or Work.
ii. Duties. SSC shall provide all Equipment and/or perform all Work required under the Quote.
3. Means and Methods. SSC shall supervise and direct the Work and have control over all means, methods, techniques, sequences and procedures related to the Work. The Work shall not include engineering fees, testing, removal and disposal of contaminated or hazardous materials, or any type of refuse or debris not ordinarily encountered in providing Work of the type and nature covered by this Quote, or of any materials containing hazardous material as defined by the EPA; relocating Buyer’s property; labor or materials required to repair or replace any Buyer-supplied equipment; rerouting/removal of vents, pipes, ducts, structural members, wiring or conduits which may be discovered during performance of the Work and repair of damage to roadways, driveways, or sidewalks resulting from machinery and vehicles. SSC shall not have control over or charge of or be responsible for the acts, omissions or failure of the Buyer’s contractors or its agents or employees, or any other persons or entities.
4. Quote and Published Prices. The Quote shall automatically expire thirty (30) calendar days from the Created Date unless otherwise stated in the Quote and is subject to withdrawal by SSC prior to the Expiration Date. SSC reserves the right to extend the Expiration Date up to six (6) months from the Created Date. Prices shown on SSC’s published price lists and other published literature are not unconditional offers to sell and are subject to change without notice. Total Items amount for Equipment, unless otherwise specified, does not include an allowance for installation and/or final on-site adjustment. Such installation and labor is provided separately in the Quote and then included to establish the Quote Total (referred to hereinafter as the “Work”). Quote Total is subject to adjustment at time of shipping and may be adjusted to include any necessary Surcharge(s). Pricing that differs from SSC’s published price lists is confidential and Buyer agrees to strictly maintain such confidentiality as required herein.
5. Surcharges. The Quote Total shall be subject to additional surcharges (“Surcharges”) at SSC’s sole discretion. Surcharges may be required to partially offset the increase in costs of certain raw materials and other commodities including, but not limited to, fuel and steel. Surcharges will appear on Invoices and are due and payable in accordance with the Invoice terms.
6. Taxes. The Quote Total does not include any applicable sales, goods/services, use, excise or similar taxes, and the amount of any such tax will increase the Quote Total, be added to each Invoice and paid by Buyer, unless Buyer has furnished a valid tax exemption certificate acceptable to taxing authorities prior to shipping. If an exemption certificate is, subsequently determined to be invalid, the unpaid sales, goods/services, use, excise or similar tax will be invoiced to Buyer. State sales or use tax may be due in connection with the purchase and delivery of tangible personal property to individuals and businesses. If sales tax is not charged, the Buyer is required to file a use tax return if tax is due in connection with the purchase and shipping. This notice is required pursuant to tax provisions in various states.
7. Terms of Payment. Buyer acknowledges that payment is not contingent on any occurrence, matter or event, including, without limitation, Buyer’s receipt of payment from any third party. Invoices shall be based upon Equipment delivered and/or Work completed to the date of invoice. Terms of Payment are cash net thirty (30) days from shipping date. Amounts past due are subject to a service charge equal to the greater of 1.5% per month, (eighteen percent (18%) per annum) or the maximum rate permitted by law. If SSC deems that due to Buyer’s financial condition or otherwise, the continuance, production or shipping on the terms specified is not justified, SSC may require advanced payment. On orders of $100,000 or more and having a shipping date of six (6) months or longer from date of Quote Acceptance, the standard terms will be progressive payments. Subject to the warranties expressly stated herein, all sales are final without right of return. In addition, SSC will invoice the Buyer for Equipment upon receipt of Invoice from any third party manufacturer to SSC. Invoices of $5,000 or greater may not be paid via credit card. SSC reserves the right to charge a processing fee when allowable under state law for credit card transactions. Buyer agrees by entering into this Quote that SSC has satisfied the requirement, if any, for SSC to provide Buyer any notice of SSC’s lien rights prior to supplying labor or material under this Quote.
8. Grant of Security Interest. Buyer grants SSC a purchase money security interest in the Equipment, acknowledges the validity of and its assent to such a grant, and agrees not to challenge the legitimacy of such a grant. Buyer will assist SSC in taking all necessary actions to perfect and protect SSC’s security interest and grants to SSC an irrevocable power of attorney to execute and file a UCC-1 Financing Statement for the benefit of SSC, as secured creditor, to protect the security interest. SSC shall have all of the rights of a secured creditor including the right to enter Buyer’s premises, without disturbing the peace, to disable or remove the Equipment or Work.
9. Shipping. Shipping dates are approximate, not guaranteed, and are based on prompt receipt of all necessary information regarding the Equipment to be shipped or Work to be performed. SSC shall have the right to modify the shipping date. Title to the Equipment and risk of loss shall pass to Buyer upon provision to a third party carrier. In the event of delay in shipping caused by or at Buyer’s request, SSC will store the Equipment at Buyer’s risk and will invoice Buyer for the unpaid portion of the Quote Total, plus applicable storage, handling and insurance charges. All shipments may be subject to additional “hazardous materials” charges or other special shipping and handling fees. SSC has the right to make partial shipments and bill for those shipments, including but not limited to, Buyer delays. Unless Buyer elects freight collect shipping, shipping charges plus the applicable SSC handling charge will be prepaid and invoiced separately.
10. Disclaimer of Express and Implied Warranties. SSC EXCLUDES ALL IMPLIED WARRANTIES OF MERCHANTABILITY; ALL IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND ALL OTHER EXPRESS AND IMPLIED WARRANTIES ON ALL EQUIPMENT, WHETHER THIRD PARTY OR SSC MANUFACTURED EQUIPMENT. SSC DOES NOT OFFER SEPARATE WARRANTIES ON THIRD PARTY MANUFACTURED EQUIPMENT. THE ONLY WARRANTIES ON THIRD PARTY MANUFACTURED EQUIPMENT ARE THOSE OFFERED BY THE THIRD PARTY MANUFACTURER. MANUFACTURER’S WARRANTIES MAY BE TRANSFERRED TO A SUBSEQUENT PURCHASER ONLY WITH THE PRIOR WRITTEN CONSENT OF SSC. THE ONLY WARRANTIES ON SSC EQUIPMENT ARE SET FORTH BELOW. AND SHALL CONSTITUTE THE SOLE AND EXCLUSIVE REMEDIES OF BUYER.
a. Third Party Manufactured Equipment Warranty. Third party warranties vary widely between manufacturer and product offering. Please review your specific model and manufacturer for specifics. Should defects be discovered and reported during the first thirty (30) days after installation (if installation occurs during the Warranty Period), SSC will, at its option, refund the Quote Total or correct such defects, furnishing replacement parts, labor, and travel expense-free of charge.
b. SSC Warranty.
i. Software. Software developed by SSC will substantially perform the functions described when properly installed. The Warranty Period will be the same as the SSC Equipment within which the software is embedded. If the software is not embedded within SSC Equipment, and if Buyer promptly notifies SSC and provides the description of the error and complete information about the manner of its discovery within ninety (90) days following the shipping date, SSC will correct any defect or error (at its option): (a) by modifying or making available to Buyer instructions for modifying any erroneous software, or (b) by making available necessary replacement software. SSC does not warrant that software is error-free, that the Buyer will be able to operate the software without interruption, or that the software will be free of vulnerability to intrusion or attack. Buyer is granted a limited license to make copies of software for use solely with the Equipment for which such software is acquired. This warranty does not apply if the software is licensed for beta, evaluation, or field test use.
ii. SSC Manufactured Equipment. SSC warrants to Buyer that SSC manufactured Equipment will be free from defects in workmanship and materials for a period of one (1) year from the date of original installation, or twelve (12) months from the shipping date to Buyer, whichever occurs first (the “Warranty Period”). Should any such defects be found and reported during the first thirty (30) days after installation (if Installation occurs during the Warranty Period), SSC will, at its option, refund the relevant portion of the Quote Total or correct such defects, furnishing replacement parts, labor, and travel free of charge to Buyer. For the remainder of the Warranty Period, SSC will furnish necessary replacement parts and on-site labor free of charge, provided Buyer agrees to pay reasonable travel time and expenses to and from a service location authorized by SSC.
iii. Repaired Equipment Warranty. In the event Equipment is repaired by SSC during the Warranty Period, the performance of such repair will not extend nor generate a new warranty period for the Equipment as a whole or for those parts not repaired or replaced. Any warranty coverage that exists for those parts of the Equipment actually repaired or replaced by SSC will be stated in writing by SSC at the time of repair.
iv. SSC Labor Warranty. If, within the Warranty Period, the Work is found to be defective or not in accordance with this Quote, SSC shall correct it promptly after receipt of written notice from the Buyer. This labor warranty extends only to the original Buyer. The labor warranty is void if the Work is inspected, tested or serviced by anyone other than SSC during the Warranty Period. ALL OTHER WARRANTIES (EXPRESS, IMPLIED OR ORAL), INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, WORKMANSHIP, AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXCLUDED.
c. General. The foregoing warranties are further subject to the following general conditions: (1) If Buyer requests work provided for under the foregoing warranties not during normal SSC hours, Buyer will be required to pay for all premium time incurred; (2) These warranties will not apply where SSC’s Equipment and/or Work has been subjected to: accident, alteration, misuse, abuse, improper storage, operation and/or maintenance, installation or servicing by anyone other than SSC’s authorized personnel, the addition or supply of equipment not approved for incorporation by SSC, or Buyer supplied software or interfacing; (3) SSC does not warrant the calibration of any Equipment, other than the Equipment is capable of adjustment to meet SSC’s printed specifications, if any, for weighing accuracy as to the particular model/type for the Warranty Period when properly installed, used and maintained; and (4) Equipment of other manufacturers sold by SSC is warranted by SSC solely to the extent of any remaining warranty provided by the original manufacturer.
11. Disclaimer of Damages. IN NO EVENT WILL SSC BE LIABLE TO BUYER OR ANY OTHER SUBSEQUENT PURCHASER FOR ANY TYPE OF SPECIAL, CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES, WHETHER SUCH DAMAGES ARISE OUT OF OR ARE A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, OR WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SSC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Such damages shall include, but not be limited to, loss of profits or revenues, loss of use of the Equipment or associated equipment, cost of substitute equipment, facilities, down time costs, increased construction costs or claims of Buyer’s customers or contractors for such damages.
12. Limitation of Liability. SSC will not be liable for any loss, claim, expense or damage caused by, contributed to or arising out of the acts or omissions of Buyer or third parties, whether negligent or otherwise. If SSC should be found liable to buyer whether based in contract, warranty, indemnity or tort (including negligence) for loss, damage or injury due to failure of the Equipment or Work in any respect, its liability shall be limited to the total amount of the Quote. Buyer acknowledges that SSC’s agreement to enter into this Quote is based in part on Buyer agreeing to this limitation of liability.
13. Gratuitous Information or Assistance. SSC will not be liable for any information, assistance or advice that, though not required to be provided to Buyer, is nevertheless provided by employees and/or agents of SSC while performing SSC’s obligations.
14. Returns. Eligible equipment returned for Buyer’s convenience (and not for failure or warranty) will be subject to a fifteen percent (15%) restocking fee or a minimum of $200. SSC must be contacted for a Return Authorization Number (“RAN”) within twenty-one (21) days of shipping date (for a Buyer to customer transaction) or thirty (30) days of shipping date (for a Buyer to dealer / distributor transaction) to be eligible for a return credit. Buyers must return items within ten (10) days of receiving a RAN. Equipment must be in new and unused condition, packed in original packaging and container, and include all manuals, peripherals and accessories.
15. Cancellation. Undelivered portions of any Quote may be cancelled by Buyer only with the prior written approval of SSC.
16. Changes. Buyer may request changes within the general scope of the Equipment or Work covered by the Quote, in which event the Quote Total and shipping date shall be adjusted. If Buyer requests a proposal for a change in the Equipment or Work and then elects not to proceed, SSC shall be reimbursed for any costs incurred to prepare the proposal. Unless otherwise agreed, the cost of changed or additional Equipment or Work shall be determined on the basis of the costs of those performing the changed or additional Equipment or Work, plus a reasonable allowance for overhead and profit equal to fifteen percent (15%). SSC will be entitled to reasonable profit, plus costs and expenses incurred for Equipment and the Work rendered unnecessary as a result of such changes. If conditions are encountered which differ from the conditions anticipated by SSC or from those ordinarily found to exist and generally anticipated in the Work provided for in the Quote, the Quote Total and shipping date shall be equitably adjusted.
17. Intellectual Property and Nondisclosure. The sale and delivery of Equipment to Buyer will in no way transfer to Buyer any right of ownership in any patents, copyrights, trademarks, technologies, designs, specifications, drawings, ideas, concepts, procedures, techniques, materials, information, data, papers, proprietary processes, technical information and know how, computer software or other intellectual property incorporated therein, and other records belonging to and in the possession of Buyer (the “Confidential Information”). Confidential Information shall be returned to SSC upon termination of the Quote or at any earlier time upon request. There shall be no publication of the Confidential Information without the express written permission of SSC. The Confidential Information shall remain the exclusive property of SSC. Buyer agrees to receive and hold in confidence any Confidential Information imparted to it by SSC which pertains to that Party’s business activity in any manner, and which is not the subject of general public knowledge. Any knowledge or information which SSC may disclose to Buyer, incident to the Equipment or Work, shall be deemed to be SSC’s confidential and proprietary information and Buyer shall take any and all steps as are reasonable to protect the confidentiality of such information and shall not disclose to any other person, or use, such information.
18. Patent Infringement and Indemnification. SSC shall defend any suit or proceeding brought against Buyer based on a valid claim that any Equipment furnished hereunder, or any part thereof, constitutes an infringement of any applicable patent, if notified promptly in writing and given authority, information and assistance (at SSC’s expense) for the defense of same and if such alleged infringement is not the result of a design or other special requirement specified by Buyer or the result of the application or the use to which such Equipment is put by Buyer or others. SSC will pay all damages and costs finally awarded in such suit or proceeding against Buyer provided that SSC has the sole and exclusive right to defend, settle or compromise any suit or proceedings and Buyer takes no action that would materially detract from SSC’s ability to conduct an effective defense, settlement or compromise. In the instance such Equipment is held to infringe any such patent and the use thereof is enjoined, SSC will at its expense and option either (a) obtain for Buyer the right to continue using such Equipment or; (b) replace the Equipment with non-infringing Equipment, or; (c) modify the same so that it becomes non-infringing or; (d) remove said Equipment and refund the relevant portion of the Quote Total and the transportation and installation costs therewith. The foregoing states the limit and entire liability of SSC to Buyer for patent infringement.
19. Insurance. Buyer shall provide and maintain insurance to protect Buyer’s interest in the Equipment in favor of SSC until final payment by the Buyer.
20. Subrogation. Buyer waives the right of subrogation against SSC and its agents, officers, directors and employees for recovery of damages to the extent damages are covered by commercial general liability, commercial umbrella liability, business, automobile liability or workers compensation or employers’ liability insurance maintained by Buyer.
21. Indemnification. SSC agrees to indemnify Buyer and hold it harmless from and against any direct loss suffered and any direct liability to third parties whenever such loss or liability is directly due to bodily injury (including death) to any third party or direct damage to any third party property occurring in the course of, and caused exclusively by, any negligent act or omission by SSC while on the premises of Buyer that occurs during the performance of the Work contemplated herein. This indemnity shall include reasonable attorneys’ fees and settlement of claims or suits. Buyer shall provide prompt written notice to SSC of any actual or anticipated claims against it that might trigger the foregoing indemnity; failure to do so shall waive Buyer’s right to indemnification. Following such written notice, SSC shall have the sole and exclusive right to manage the defense of any indemnified claims and shall be authorized to settle or compromise such claims at its sole and exclusive discretion. Buyer shall cooperate in the defense of all indemnified claims as deemed necessary by SSC.
22. Delay. Owner recognizes that events out of SSC’s reasonable control may prevent the timely delivery of Equipment or completion of the Work. If the manufacture, transfer or receipt by Buyer of any Equipment is prevented, restricted or interfered with by reason of any event beyond the reasonable control of SSC, SSC shall be excused from shipping hereunder to the extent of such prevention, restriction or interference, and SSC shall not be liable for default or delay in performing. Should SSC’s delivery of Equipment be delayed, the shipping date shall be extended. It is expressly agreed that Buyer shall not be entitled to any damage for delay in shipping of Equipment or completion of the Work and an extension of the shipping or completion date shall be granted by Buyer for any delay. If the manufacture, transfer or receipt by Buyer of any Equipment covered hereby is prevented, restricted or interfered with by reason of any event beyond the reasonable control of the SSC, SSC shall be excused from shipping hereunder to the extent of such prevention, restriction or interference, and SSC shall not be liable to Buyer for default or delay in performing.
23. Termination for Default. If Buyer fails to materially comply with any provision of this Quote, makes a general assignment for the benefit of creditors, is insolvent or unwilling to perform, has a receiver is appointed, becomes insolvent or files for protection under the Bankruptcy Code, or fails to make payments to the SSC in accordance with this Quote (collectively, “Default”), SSC may provide written notice to Buyer and: (1) take such steps to correct, cure or overcome the Default as SSC deems expedient, and charge all expenses, losses, costs and damages, including attorneys’ fees, to Buyer, or (2) terminate this Quote and for such amounts and under such terms as SSC deems expedient. If such expense and other losses, costs and damages exceed the unpaid balance of this Quote, Buyer shall pay the difference to SSC. SSC has the unconditional right to cancel Quote or demand full or partial payment in advance. In the event of any cancellation of the Quote, Buyer will pay to SSC the reasonable costs and expenses (including expenses and all commitments to SSC’s suppliers and subcontractors) incurred by SSC prior to receipt of notice of such cancellation, plus SSC’s usual rate of overhead and profit. The minimum cancellation charge will be fifteen percent (15%) of the adjusted Quote Total.
24. Termination for Convenience. SSC may, at any time, terminate this Quote for its convenience, in which event SSC shall receive, as full compensation, its actual and reasonable costs paid relating to the Equipment as of the date of termination.
25. Termination Due to Delay or Suspension. If the Equipment or Work is stopped, suspended or delayed for a period of seven (7) days under an order of any court or other public authority having jurisdiction, or as a result of any force majeure, act or neglect of the Buyer’s contractors, agents or employees, changes ordered in the Equipment or Work, labor disputes, fire, unusual delay in deliveries, unavoidable casualties or other causes beyond the control of SSC or its agents or employees, then SSC shall be entitled to a reasonable extension in the shipping date for Equipment or completion date of the Work pursuant to a Change Order and the Buyer may not withhold its approval of same. In the event of such Work stoppage, the completion date shall be extended and the Quote Total shall be increased by the amount of SSC’s reasonable costs of shutdown, delay and startup. In the alternative, SSC may upon not less than seven (7) days’ written notice to the Buyer, terminate this Quote and recover from the Buyer all amounts due SSC for all Equipment provided and all Work performed pursuant to this Quote, including overhead and profit, together with any other liabilities, obligations, damages or commitments, attorneys’ fees and/or costs of collection of the amounts due under this Quote.
26. Conformance with Applicable Laws and Standards. Unless otherwise provided herein, the performance of the parties hereto is subject to the applicable laws of the United States or Canada, depending on the location of delivery of the Equipment or performance of the Work. SSC shall take reasonable measure to provide the Equipment and perform the Work in conformity with nationally recognized standards and such regulations. However, SSC recognizes that the Equipment and Work is utilized in many regulated applications and that from time to time standards and regulations may conflict. However, SSC makes no representation that the Equipment or Work will conform to any federal, provincial, state or local laws, ordinances, regulations, codes or standards except as particularly specified and agreed upon in writing by an authorized SSC officer. The Quote Total does not include the cost of any related inspections or permits or inspection fees.
27. Controlling Law and Venue. This Quote shall be governed by and construed according to the laws of the State of Indiana. Exclusive venue for all claims, disputes and litigation arising out of this Quote shall be in Marion County, Indiana.
28. Informal Claim and Dispute Resolution. The Parties shall make all claims in strict compliance with the procedures provided below. The parties agree to provide one another with written notice of a dispute within a reasonable time, not to exceed thirty (30) days, after obtaining knowledge and shall include a statement: (1) specifying that a dispute has occurred, (2) the party’s position and a summary of evidence and arguments that support such position, and (3) the name and title of the disputing party’s authorized representative. Within twenty (20) days after receipt of the disputing party’s notice, the responding party shall submit a written response to the disputing party. The response shall contain a statement: (1) of the responding party’s position and a summary of evidence and arguments that support such position; and (2) the name and title of the responding party’s authorized representative. In the absence of an agreement to the contrary, the parties’ authorized representatives shall meet in Indianapolis, Marion County, Indiana, at a mutually acceptable time and place within ten (10) days after the disputing party receives a response and thereafter as often as they reasonably deem necessary to exchange relevant information and to attempt to resolve the dispute. If the dispute has not been resolved within forty (40) days after the disputing party receives the response, or if the responding party refuses or fails to comply with the provisions of this Paragraph, then either party may commence mediation.
29. Mediation. If informal resolution proves fruitless, the parties shall endeavor to settle the dispute by mediation (which shall be conducted, administered and govern by the Indiana Rules for Alternative Dispute Resolution or by other process agreed to by the parties) before recourse to other dispute resolution methods. Mediation shall be concluded within sixty (60) days after the conclusion of the initial thirty (30) day dispute negotiation period. Either party may terminate the mediation at any time after the first session. The cost of any mediation proceeding shall be shared equally by the Parties. If mediation efforts are not successful, the parties may exercise all of their rights under law or equity through litigation.
30. Limitation of Action. Any suit must be commenced within one (1) year from the date on which the cause of action accrues.
31. Attorneys’ Fee. Upon default and placing of Buyer’s account for collection or repossession of Equipment, Buyer agrees to reimburse SSC for all collection costs, legal fees, and court costs and expenses incurred. In the event of a default by Buyer, SSC will be entitled to any rights and remedies provided by law or in equity, including, but not limited to, the right to immediately reclaim the Equipment and Work without further notice, unless otherwise required by applicable law.
32. Integration. This Quote and these Terms and Conditions represent the entire and integrated agreement between the Parties, supersede all prior negotiations, representations and agreements, whether written or oral, and shall not be modified or interpreted by evidence of course of dealing, course of performance or usage of trade.
33. Third-Party Beneficiaries. The parties expressly agree that there are no intended third-party beneficiaries under the Quote.
34. Severability. Should any term or provision contained herein contravene or be invalid under applicable law, these Terms and Conditions shall not fail by reason thereof but will be construed in the same manner as if such term or provision had not appeared herein.
35. Assignment. This Quote may be assigned by SSC to another entity capable of performing the requirements under this Quote. Buyer will not transfer, assign or lease the Equipment sold hereunder to any third party without first securing from such party the protection afforded to SSC as required herein.
36. Safety. SSC shall take necessary precautions to comply with applicable federal, state and municipal safety laws for its employees. SSC shall have no responsibility for the elimination or abatement of safety hazards created or otherwise resulting from the acts or omissions of Buyer, Buyer’s contractors, or others employed by Buyer.
37. Hazardous Waste. Buyer shall promptly notify SSC of the existence of any hazardous substance on or adjacent to the site. The phrase “hazardous waste” shall be defined by the Superfund Act (Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended) and shall include similar definitions of a substance subject to a similar control by state or local law. The Buyer, or its other agents or contractors, shall have responsibility for compliance with all federal, state and local laws, regulations, guidance or other requirements relating to the handling, treatment, storage or disposal of hazardous wastes, substances or constituents. Buyer agrees that SSC, as well as its owners, officers, directors or employees are not an owner, handler, generator, operator, treater, storer, transporter, disposer or Potentially Responsible Party, under the Resource Conservation and Recovery Act of 1976, as amended, the Comprehensive Environmental Response, Compensation and Liability Act as amended, or any other similar federal, state or local law or regulation, including the Indiana Environmental Legal Action statute. If asbestos or other health hazardous material is encountered, SSC shall cease Work until Buyer, at its sole expense, obtains clearance from a licensed asbestos removal or hazardous material contractor and that continuation of Work will not pose any danger to SSC personnel. In no case shall SSC be liable for discovery or exposure of hidden asbestos or other hazardous material. Buyer agrees to defend, indemnify and hold harmless SSC, its owners, officers, directors and employees from and against all claims and liabilities resulting from any form of allegation that SSC, its owners, officers, directors or employees are an owner, handler, generator, operator, treater, storer, transporter, disposer, or potentially responsible party under any federal, state, or local law or regulation.
38. Allowances. Allowances included in the Quote Total for particular items of the Work, if any, are set forth in the Quote. Decisions affecting allowances shall be made promptly by Buyer to avoid delay, disruption or interference to the Work. Whenever costs are more or less than a stated allowance, the Quote Total shall be adjusted accordingly. SSC shall be entitled to its reasonable overhead and fee equal to fifteen percent (15%) for increases in the Quote Total.
39. Notice. Notice shall be in writing and delivered via e-mail, overnight delivery, hand delivery, or certified mail. Notice shall be considered provided as of the date of delivery. Where notice cannot be immediately provided in writing, telephonic notice may be made followed by written notice.