terms and conditions

Delta Technology Standard Definitions, Terms and Conditions

Please read the following Terms and Conditions (the “Terms”) carefully prior to utilizing any services or products of Delta Technology (“Delta”). Your use of the services is conditioned upon your acceptance and compliance with these Terms. The Terms apply to all users and anyone who utilizes Delta’s services or products. BY USING THE SERVICES OR PRODUCTS, YOU ARE AGREEING, ON BEHALF OF YOURSELF AND THOSE YOU REPRESENT, TO COMPLY WITH AND BE LEGALLY BOUND BY THESE TERMS AND ALL APPLICABLE LAWS.

DEFINITIONS:

Rough Order of Magnitude Proposal (ROM)

Standard Proposal

Engineering PrePurchase

Engineered Proposal

Concept

Scope of Work (SoW)

NRE (Non-Recurring Engineering)

Final Design Review (FDR)

Factory Acceptance Test (FAT)

Site Acceptance Test (SAT)

Engineering Change Notice (ECN)

Sunk Costs

LEASING

CONDITIONS OF SALE

INSTALLATION AND SUPPORT

WARRANTY: 12 MONTHS FROM FAT

Cancellation Clause:

In the event of an order cancellation, the following charges will be the responsibility of the customer: (Projects placed on “hold” for longer than 60 days may be subject to the cancellation fees at Delta’s discretion. Charges are due upon request by Delta.)

© Copyright 2021, Delta Technology

This proposal is protected by US copyright laws and may not be copied or distributed without the express written permission of Delta Technology

INTELLECTUAL PROPERTY

Each Party (the “Receiving Party”) will treat as confidential and prevent unauthorized duplication or disclosure of any confidential or proprietary information, including, without limitation, any information about the Disclosing Party’s (as defined below) products, services, marketing techniques, price lists, customer lists, pricing policies, business methods, business plans, budgets, projections, financial information, and technical information (the “Confidential Information”) of the other Party (the “Disclosing Party”) which the Receiving Party may acquire during the course of its activities under these Terms and will not use any of the Confidential Information for any purpose other than in furtherance of the Receiving Party’s obligations under these Terms. Notwithstanding the foregoing, the Receiving Party may disclose Confidential Information of the Disclosing Party to its employees, members, officers, agents, or consultants (the “Representatives”) who need to have access to the Confidential Information, and who are informed by the Receiving Party of the confidentiality obligations imposed by these Terms. The Receiving Party’s obligations under this Section will not apply to Confidential Information that (i) is or becomes part of the public domain through no fault of Receiving Party or its Representatives; (ii) is known to the Receiving Party at the time of receipt of such information from the Disclosing Party; (iii) if, after the date hereof, obtained by Receiving Party from a third party who has the legal right to disclose the same without a restriction on disclosure; (iv) has been, or is subsequently, independently acquired or developed by the Receiving Party without violating any of the Receiving Party’s obligations under these Terms; or (v) is required to be disclosed by government regulation, court order or other legal process; provided the Receiving Party provides the Disclosing Party with prompt notice of such requirement so that the Disclosing Party may seek a protective order or other appropriate relief. The Receiving Party acknowledges and understands that any right, title, and interest in and to the Disclosing Party’s Confidential Information are vested in the Disclosing Party. The obligations of confidentiality provided hereunder will survive for a period of two (2) years after the expiration or termination of these Terms for any reason.

Each of the Parties acknowledge that the covenants and restrictions contained in these Terms are (a) necessary, fundamental, and required for the protection of the business and intellectual property of each of the Parties; (b) necessary and required to protect the goodwill and value of Delta; (c) relate to matters which are of a special, unique, and extraordinary character that give each of the covenants and restrictions a special, unique, and extraordinary value; and (d) of a nature such that a breach of any such covenants or restrictions or any other provision of these Terms will result in irreparable harm and damage to Delta.

INDEMNIFICATION

To the fullest extent allowed by law, Customer shall defend, indemnify, and hold Delta harmless, from and against any and all losses, damages, liabilities, claims, demands, actions, judgments, costs, and legal or other expenses (including, without limitation, reasonable attorneys’ fees, costs, expert costs, and expenses) incurred as a result of: (i) claims by third-parties relating to or arising out of facts and circumstances of the services and products provided by delta and arising out of these Terms; or (ii) any breach of, or failure by Customer to perform, any of its representations, warranties, or covenants set forth in these Terms.

PRICE AND TERMS

ENTIRE AGREEMENT

The Purchase Order, this Agreement and the operative provisions of any Sales Quote issued by Delta Technology and any Purchase Order issued by Customer, sets forth the entire agreement and understanding among the parties as to the subject matter hereof, and merges and supersedes all prior discussions, agreements, and understandings of every and any nature among them. No Sales Quote, Purchase Order, Purchase Order confirmation, acceptance, or any other document provided by either Party to the other, shall be deemed to amend the terms hereof and any such contradictory or additional terms shall be ineffective.

In the event of any ambiguity or conflict between any of the terms and conditions contained in this Agreement and the terms and conditions contained in a Purchase Order, the terms and conditions of this Agreement shall control, unless the Delta Technology has expressly provided in such Sales Quote that a specific provision in this Agreement is amended, in which case this Agreement shall be so amended, but only with respect to the associated Sales Quote and Purchase Order.

The Purchase Order or this Agreement may not be amended, supplemented, changed, or modified, except by agreement in writing signed by the parties to be bound thereby.

The liability of Delta in any and all categories and for any and all causes arising out of these Terms, whether based in contract, tort, negligence, strict liability, or otherwise will, in the aggregate, not exceed the actual fees paid by Customer to Delta over the period of one-year prior. In no event will Delta be liable for incidental, consequential, punitive, indirect, or special damages, including, without limitation, any interruption or loss of business, profit, or goodwill. As a condition for recovery of any liability, Customer must assert any claim against Delta within three (3) months after discovery or sixty (60) days after the termination or expiration of any relationship, whichever is earlier.

These Terms shall be governed by and construed in accordance with the laws of the State of Arizona, without regard to conflicts of law’s provisions. The Parties agree that resolution of disputes or claims arising under these Terms shall be resolved first by good-faith participation by each of the Parties in mediation utilizing qualified mediators who are mutually agreed upon by the Parties. If the dispute is not resolved through mediation within thirty (30) days from the date that either party makes a written demand on the other party to enter into mediation, and in the absence of a mutual agreement to enter into binding arbitration with an arbitrator mutually agreed upon by the Parties, either party shall have the right to bring a judicial action to resolve the dispute through the filing of an action with the court in Maricopa County, Arizona. Unless otherwise determined by the court and/or by the arbitrator, each of which shall have the power to allocate the costs of the action or the arbitration, each party shall pay its own attorneys and court costs. Each of the Parties acknowledge that a breach or threat of a breach of any provision of these Terms by either Party will result in irreparable harm and damage to the non-breaching Party. Consequently, the non-breaching Party’s remedies at law will be inadequate and, in each such event, the non-breaching Party will be entitled to an injunction or other similar relief to prevent the breaching Party or its executives from breaching these Terms and to enforce specifically the provisions hereof, in addition to money damages sustained by the non-breaching party resulting from a breach or threatened breach of this the State of Arizona, without regard to conflicts of law’s provisions.

Neither Party will be liable for any delay or failure to perform under these Terms (other than with respect to payment obligations) to the extent such delay or failure is a result of an act of God, war, earthquake, civil disobedience, court order, labor dispute, or other cause beyond such Party’s reasonable control.If Customer is more than (ten) 10 days late in making the required payments to Delta pursuant to the terms of these Terms, and upon receipt of written notice that the payment is late, Customer shall have (ten) 10 calendar days to cause a cashier’s check to be sent to Delta, by overnight mail to be received by Delta on or before the 10th day after Customer’s receipt of said written notice of non-payment. In the event Customer fails to send the cashier check within said period, it shall be in default under these Terms and, thereupon: (1) Delta will have no responsibility to perform further services on behalf of Customer; and (2) the entire amount of the unpaid balance of the payments required under the Terms shall become immediately due and payable to Delta.