SUPPLIERS OF ECO-GEN TERMS AND CONDITIONS

General 

2)     INVOICES:

1)      PRICES: All prices are firm unless otherwise agreed to in writing by ECO-GEN Energy, Inc. (“ECO-GEN”).  ECO-GEN will not reimburse Seller for any expenses or costs unless specifically stated in a Purchase Order (“PO”). Seller will bear sole responsibility for payment of all applicable income or employment tax or withholding arising from its performance of its obligations under a PO and agrees to indemnify and hold harmless ECO-GEN with respect to all such items, including reasonable attorneys’ fees. If ECO-GEN is required, pursuant to any applicable present or future law, rule or regulation to make a withholding in respect of tax or otherwise from any amount or amounts payable to Seller pursuant to a PO, ECO-GEN shall pay any amounts net of such withholding.

a)     Unless otherwise requested by ECO-GEN, invoices shall 

(i) be rendered separately for each delivery; 

(ii) cover not more than one PO; and 

(iii) be rendered with the PO number noted thereon. Unless otherwise agreed in writing by ECO-GEN, and approved by a representative of ECO-GEN’s procurement team (prior to the PO being issued), ECO-GEN shall pay Seller’s undisputed invoice within thirty (30) days of receipt of such invoice. Seller shall not 

(iv) invoice ECO-GEN more than sixty(60) days after Seller’s performance under the PO is completed (such late invoice is referred to herein as a “Late Invoice”), 

(v) initially raise a claim for payment of a previously issued invoice more than 365 days after the invoice date (such late claim is referred to herein as a “Late Claim”), or 

(vi) invoice before Seller’s performance under the PO is completed. Seller waives all rights and remedies related to Late Invoices and Late Claims.

b)     If the payment due date of an invoice does not fall on a Business Day, payment shall become due on the Business Day following the due date. “Business Day” means any day except Saturday, Sunday or any other day on which commercial banks are authorized or required by law to be closed for business located where Seller will perform its obligations under a PO.

c)      Invoices must be emailed to the ECO-GEN invoice email address which will be quoted on the relevant PO or provided by the service or goods requestor.

3)     INTELLECTUAL PROPERTY:

a)     “Intellectual Property” means copyrights (including rights in computer software and typography rights), patents, trademarks, domain names, rights in designs, databases, operating systems and specifications (both registered and unregistered) and any applications to register any of the foregoing, rights in inventions (whether patentable or not), know-how, trade secrets and other confidential information and all corresponding rights of a similar nature anywhere in the world.

b)     Seller shall defend, protect and indemnify ECO-GEN from and against any lawsuit, claim, demand, investigation, governmental action, damage, settlement, penalty, order, judgment, liability, cost and expense (including attorney’s fees) (“Losses”) arising from or related to infringement or alleged infringement by any of the goods or services delivered hereunder of any Intellectual Property right of a third party. In the event that ECO-GEN is enjoined from using the goods or services delivered hereunder, Seller, at its expense, shall promptly either 

(i) procure for ECO-GEN the right to continue using the goods or services, (ii) replace the goods with non-infringing goods or services or modify same to become non-infringing, all at Seller’s expense and to ECO-GEN’s satisfaction, or 

(iii) remove the goods at Seller’s expense and refund the purchase price to ECO-GEN.

c)      Subject to the rights of Seller and/or any third party licensors in respect of any pre-existing materials which are supplied by Seller in conjunction with the goods or services delivered hereunder (“Project Materials”) (which shall remain unaffected), ECO-GEN shall be entitled to all Intellectual Property rights in the Project Materials, which Intellectual Property rights Seller shall assign, with full title guarantee, to ECO-GEN immediately upon creation. Seller shall do all such things and sign all documents or instruments reasonably necessary to enable ECO-GEN to obtain, defend and enforce its rights in the Project Materials.

d)     All Intellectual Property rights in any materials provided by ECO-GEN (“ECO-GEN Materials”) to Seller in connection with the goods or services vest in and remain vested in ECO-GEN or its licensors. Upon ECO-GEN’s request and in any event upon the expiry or termination of the PO, Seller shall at its expense promptly deliver to ECO-GEN all copies of Project Materials and ECO-GEN Materials then in Seller’s custody, control or possession.

e)     This Section 3 shall survive the termination or expiry of the PO.

4)     INSTALLATION AND WORK: In the event that any of the goods or services require, in connection with the installation thereof or work thereon, the services of a supervisor, expert or other person connected with or employed by Seller, and Seller agrees to furnish the same, either with or without charge, such supervisor, expert or other person in performing such services shall not be deemed to be the agent or employee of ECO-GEN, and Seller assumes full responsibility for his acts and omissions and exclusive liability for any payroll taxes or contributions imposed by any applicable federal, provincial, state or local law. Seller shall obtain all necessary permits and licenses, and shall comply with the applicable provisions of any federal, provincial, state, or local laws or ordinance, and all orders rules, and regulations, issued hereunder, and any provisions, representations or agreements, or contractual clauses required to be included or incorporated by reference or operation of law in the contract resulting from acceptance of a PO, and applicable to the goods or services, to labor employed on the goods or services and to preservation of the public health and safety including, but not limited to, regulations and orders relating to Seller’s certification of facilities. Seller represents and warrants that the Sellers shall be responsible if the design is faulty or defective and take appropriate action  notify ECO-GEN. Seller represents and warrants that the Seller has the professional education, expertise, training and licensing to perform the services under this PO.

5)     INSURANCE: Seller shall, at its expense, carry and maintain such liability insurance as will protect Seller and ECO-GEN from claims under any workmen’s compensation claims, product liability and from any other damages from personal injury, including death, which may be sustained by Seller’s products, workmen, subcontractors or any of their servants, agents or employees and the general public, and from claims for property damage or personal injury which may be sustained by anyone, due to the performance of Seller and its agents and assigns. Seller shall furnish certificates acceptable to ECO-GEN within ten days (10) of this PO being  issued. Seller has represented insurance is in effect and current and binding  as required by ECO-GEN for the term of the installation.

(1)   Workers’ Compensation Insurance required by the laws of the state and/or country in which the Seller’s main office is domiciled, and any other state(s) and/or country(ies) where services or Work will be performed under a PO; 

(2) Commercial General Liability Insurance as is reasonable and customary or otherwise required by law in the state(s) and/or country(ies) in which the services or Work will be performed under a PO, including bodily injury, property damage, personal injury liability and contractual liability covering all operations of Seller.

6)     INDEMNITY: Seller agrees to protect, defend, indemnify, assume any liability and hold harmless ECO-GEN, its agents, employees, subsidiaries, affiliates, successors and assigns from and against any Losses of every character whatsoever, including bodily injury, sickness, disease and/or death sustained by any person (including, but not limited to, employees of ECO-GEN, of Seller or of a subcontractor) which are in any way connected with performance of a PO.

7)     FORCE MAJEURE: Neither party hereto shall be liable to the other for default or delay in performing its obligations hereunder if caused by an act of God (including but not limited to: flood, tornado, hurricane, earthquake), fire, explosion, riot or other civil unrest, war, terrorist threats or acts, governmental order or regulation or national or regional emergency in effect after the date of a PO (each, a “Force Majeure Event”). Should a Force Majeure Event occur, the impacted party shall notify the other party, giving notice of the anticipated number of days the Force Majeure Event is expected to continue. Notwithstanding such notice, Seller shall not be excused from performance of its obligations under a PO until it has utilised its best efforts to perform its obligations, including, but not limited to, utilization of its world-wide facilities, total capacity of its facilities and employee overtime. Except as otherwise provided in the PO, ECO-GEN will be assured a first priority and disproportionate bulk share of available Products or Services (percentage to be agreed upon between ECO-GEN and Seller based on market conditions and opportunity assessment). In the event Seller cannot supply sufficient Products or Services to meet ECO-GEN’s requirements hereunder on account of a Force Majeure Event, ECO-GEN shall be released from any obligation hereunder to purchase Products or Services from Seller while such Force Majeure Event continues. Notwithstanding the above, in the event the impacted party’s inability to perform its obligations continues for more than three (3) months or is projected to continue for three (3) months or more after notification of the Force Majeure Event, the other party’s shall have the right, in its sole discretion, to terminate its obligations under a PO, including those for any outstanding POs, upon prompt written notice, without penalty for such termination. No payment shall be made by ECO-GEN to Seller for any expenses incurred by Seller by reason of such default or delay.

8)    DRAWINGS AND OTHER ITEMS: Unless otherwise expressly provided in a PO, all drawings, blueprints, dies, patterns, tools, printing plates, equipment, materials and other items used in connection with the manufacture of the goods or provision of services hereunder, which are furnished to Seller by ECO-GEN or prepared or constructed by Seller pursuant to the terms of a PO, shall be and remain the property of ECO-GEN, and upon completion of deliveries of the goods or services hereunder, or upon termination of a PO, shall be delivered to ECO-GEN in the same condition as originally received by Seller, reasonable wear and tear excepted. Such property and, whenever practical, each individual item thereof shall be plainly marked or otherwise adequately identified by Seller as property of ECO-GEN and shall be safely stored separate and apart from Seller’s property. Seller shall not substitute any property for ECO-GEN’s property and shall not use such property except in filling ECO-GEN’s POs. Such property while in Seller’s custody or control shall be held at Seller’s risk, shall be kept insured by Seller at Seller’s expense in an amount equal to the replacement cost with loss payable to ECO-GEN. Seller shall not copy or otherwise duplicate such property in any manner without ECO-GEN’s prior written consent. No information relating to a PO shall be released other than to Seller’s employees immediately concerned with the work hereunder without the advance written approval of ECO-GEN.

9)     COMPLIANCE WITH LAWS – SUPPLIER CODE OF CONDUCT.

a)     Regional Law Compliance. Seller must comply with all regional and local laws and regulations including, but not limited to applicable labor, health, safety, environmental related laws, rules, ordinances and regulations, and all laws applicable to the manufacture, assembly, sale, storage, disposal, shipment, packaging and labeling of the goods, services or Work, to labor employed on the Work and to preservation of the public health and safety. Seller shall indemnify and save harmless ECO-GEN and party having an interest in a site where any portion of the work is being performed and against all liability with respect to penalties and/or interest that may result from non-compliance with any such laws, ordinances and governmental rules, regulations and orders. Delivery of goods or completion of services will be deemed to be Seller’s certification that such goods and its manufacture or services comply with all applicable laws.

b)     Supplier Code of Conduct. Seller shall comply with the Supplier Code of Conduct (“SCOC”) established by ECO-GEN a copy of which can be viewed here. For any conflict in terms between the SCOC and these Terms, the terms of the SCOC will govern. From time to time, ECO-GEN may adopt a new SCOC or amend the terms of its standard form SCOC and it shall be Seller’s responsibility to ensure compliance with the then-current SCOC.

c)      Seller agrees to comply with the applicable provisions of any federal, provincial, state or local laws or ordinances and all orders, rules and regulations issued thereunder, and any provisions, representations or agreements, or contractual clauses required to be included or incorporated by reference or operation of law in a PO resulting from acceptance of a PO.

d)     Goods. Seller warrants that each chemical substance constituting or contained in goods sold or otherwise transferred to ECO-GEN complies with the requirements set forth in any applicable state or regional laws governing chemical substances.

10)   SET-OFF: ECO-GEN shall be entitled at all times to set-off any amounts owing at any time from Seller to ECO-GEN against any amount payable at any time by ECO-GEN to Seller. This right is in addition to any other remedies set forth in a PO or available by law.

11)   TERMINATION: If either party (a) ceases to conduct its operations in the normal course of business (including inability to meet its obligations as they mature) or if any proceeding under the bankruptcy or insolvency laws is brought by or against a party, or a receiver or administrator is appointed or applied for, or an assignment for the benefit of creditors is made by a party (whether voluntary or involuntary) or (b) breaches any term of a PO, the other party may terminate a PO without liability except for deliveries previously made or for goods or services covered by a PO which are completed as of the date of termination and subsequently delivered in accordance with the Terms of a PO.

12)  ASSIGNMENT AND SUBCONTRACTING: Any assignment or transfer of a PO by Seller without the prior written consent of ECO-GEN shall be void. Seller shall not subcontract nor delegate performance of all or any substantial part of the work called for under a PO without the prior written consent of ECO-GEN. Seller shall not enter into any subcontract unless the terms thereof with respect to compensation to be paid to subcontractor under such subcontract (including compensation on termination) are first approved by ECO-GEN. ECO-GEN may assign or transfer all of its rights or obligations under a PO at any time.

13)  REMEDIES: The rights and remedies of ECO-GEN set forth in a PO are not exclusive and are in addition to all other rights and remedies implied by statute or available at law or in equity.

14)   GOVERNING LAW: The validity, interpretation and performance of a PO and any and all subsequent agreements or documentation shall be governed and interpreted solely by the law of the state of California, United States of America where the PO is issued by ECO-GEN.

15)    MISCELLANEOUS: If a PO constitutes an offer, Seller’s acceptance of such PO is hereby expressly limited to the Terms of such PO (and any other additional terms and conditions set forth in any agreement between Seller and ECO-GEN (if applicable), provided, however, that if the terms of such agreement conflict with the terms of such PO, the terms of the agreement shall control) and shipment of any part of the goods or performance of the Work/Services covered hereunder shall be deemed to constitute such acceptance. If a PO constitutes an acceptance of an offer, such acceptance is expressly made conditional of Seller’s assent to the Terms of such PO and shipment of any part of the goods or performance of the Work/Services covered hereunder shall be deemed to constitute such assent. A PO constitutes the entire agreement between the parties hereto pertaining to the subject matter hereof, and there are no oral understandings, representations or warranties affecting it; provided, however, in the event of any conflict, the order of precedence shall be as follows in resolving such conflict: the terms of any Master Supply or Service Agreement, and its exhibits if applicable; a PO; the Work Releases or SOW; the Specifications and the Drawings. Neither course of performance nor course of dealing nor usage of trade shall be used to interpret, construe, qualify, explain or supplement any of the Terms of a PO. A PO shall not be amended except in writing signed by the parties hereto. No waiver by either party of any breach of any of the Terms of a PO to be performed by the other party shall be construed as a waiver of any subsequent breach, whether of the same or of any other Term of a PO. The relationship between the parties is that of independent contractors. Nothing contained in a PO shall be construed as creating any agency, partnership, joint venture, employment or other relationship between the parties and neither shall have the authority to contract for or bind the other party in any manner whatsoever.

16)  LABOR UTILISED: Seller certifies that convict, forced or indentured labor under penal sanctions was not employed by it or any of Seller’s suppliers in any stage of the mining, production or manufacture of the merchandise purchased or of the Work/Services performed hereunder.

17)   CONFIDENTIALITY. Seller understands and acknowledges that all information and knowledge provided by ECO-GEN in writing, orally or which the Seller is put within visual contact, (including, but not limited to, the manufacture of products, the design of machines and equipment and the processes and practices employed by ECO-GEN, or the work performed by Seller) in connection with the PO is the confidential and proprietary information and property of ECO-GEN, disclosure of which may jeopardize ECO-GEN’s ability to remain competitive in the marketplace. Accordingly, Seller acknowledges and agrees (i) to keep such information secret and confidential and, accordingly, not to disclose any information learned by Seller in connection with a PO to any third party, (ii) to use the same only as required to satisfy its obligations in connection with the PO, and (iii) that, in addition to any other remedies that may be available, ECO-GEN may seek and obtain injunctive relief against any breach without prejudice to any other remedies that may be available and without any requirement to post bond.

18)  RECORDS AND BOOKS OF ACCOUNTS: Seller agrees to keep, and to cause its subcontractors to keep, their proper records and books of account showing all data necessary for determining the costs, amounts and charges earned under a PO, in such detail as is requested by ECO-GEN and such records and books of account shall be open to audit by a representative of ECO-GEN at all reasonable times during the performance of the Work/Services or prior to the delivery of goods and for a period of eighteen (18) months after the expiration or sooner termination of a PO.

19)  ADDITIONAL COUNTRY SPECIFIC TERMS: If applicable additional country specific terms are available under the country headings below and incorporated by this reference.

Additional Terms For Purchases Of Goods

20)   QUALITY: Seller warrants that the goods will conform to description and specifications and will be free from defects in material, workmanship and design (other than ECO-GEN’s design). ECO-GEN shall have the right to test and inspect the goods before acceptance. Notwithstanding any such testing or inspection, if any of the goods are found at any time to be defective in material, workmanship or design, or not in conformity with the description, specifications or other requirements of a PO (collectively, “Defect”), ECO-GEN shall have the right to reject and return such goods at Seller’s expense. Seller shall pay ECO-GEN’s cost of inspecting the rejected goods. For purchases of machinery or equipment, Seller at its expense shall repair or replace, as requested by ECO-GEN, machinery or equipment proven to have a Defect as long as such Defect is reported by ECO-GEN to Seller by the earlier of either (a) one (1) year from the date the machinery or equipment is placed in operation or (b) eighteen (18) months from date of shipment of the machinery or equipment by Seller to ECO-GEN.

21)  QUANTITY: Unless otherwise agreed to in writing, no variation in the quantities specified in a PO will be accepted. ECO-GEN may return goods shipped in excess of the quantity designated in a PO at Seller’s expense.

22)  TRANSPORTATION: Transportation of goods purchased will be pursuant to the Incoterm set forth in the PO. If not specified on the face of the PO, terms shall be DDP ECO-GEN’s facility (Incoterms 2010). No premium transportation or insurance cost will be allowed unless authorized in writing. Title and risk of loss shall pass pursuant to the delivery term set forth on the face of the PO, or if not specified on the face of the PO, then DDP ECO-GEN’s facility (Incoterms 2010).

23)  DELIVERY: Delivery of goods under a PO will constitute a certification by Seller that such goods comply with all applicable packaging laws and labeling laws. The goods shall be properly packaged for shipment. Each package shall be numbered and labeled with ECO-GEN’s PO number, stock number, contents and weight, and shall contain an itemized packing slip. No charges of any kind, including charges for packing, boxing, crating, freight express or cartage, are allowed unless agreed to by ECO-GEN in writing. TIME IS OF THE ESSENCE HEREOF. If any goods are not delivered within the time specified in a PO, or within a reasonable time if no time is specified, ECO-GEN may either (a) refuse to accept such goods and terminate a PO, or (b) cause Seller to ship the goods by the most expeditious means of transportation whereupon any additional transportation charges in excess of those for the usual means of transportation shall be for the account of Seller. Price is to cover net weight of material, unless otherwise agreed.

24)  CHEMICAL PURCHASES: Seller shall disclose to ECO-GEN whether, to the best of Seller’s knowledge, the item being purchased is subject to any import or export controls. Seller shall provide to ECO-GEN, prior to shipment, a complete, true and accurate Material Safety Data Sheet (MSDS) for each chemical purchased hereunder. Seller shall promptly update or revise an MSDS upon receipt of any information indicating an MSDS is no longer complete, true and/or accurate. If Seller updates or revises an MSDS previously sent to ECO-GEN, Seller shall promptly send to ECO-GEN the updated or revised MSDS.

Additional Terms For Purchases Of Services

25)   INDEMNITY: In addition to the indemnification in the General section, Seller agrees to protect, defend, indemnify, assume any liability and hold harmless ECO-GEN, its agents, employees, subsidiaries, affiliates, successors and assigns from and against any Losses arising out of the Work or the performance of or failure to perform the Work, or with the presence of such person on the premises of ECO-GEN or the site of the Work, in connection with the Work arising out of Seller’s negligence, intentional misconduct or breach of a warranty or representation contained in these Terms. In the event that this Order provides for the Work to be performed on property owned or controlled by any party or parties other than ECO-GEN, then the aforesaid obligation to defend, indemnify and hold harmless shall be expanded to include such party or parties, their employees and agents. Seller shall be responsible for, and hereby assumes all liability for, loss or damage of, or damage to, all tools, machinery, equipment and appliances owned by Seller, or loaned or leased to Seller by other than ECO-GEN, and all personal property of Seller’s employees. To the extent valid and enforceable under applicable law, the aforesaid relief from responsibility and liability shall include loss, destruction or damage caused by, arising out of or in any way connected with the negligence, in whole or in part, of ECO-GEN, any party owning or controlling property on which any portion of the Work is being performed or any of their employees, agents or subsidiaries. This provision will survive any termination of a PO.

26)  WORK: Upon the Terms herein contained, ECO-GEN hereby orders, and Seller, as an independent contractor, hereby agrees to perform and complete, all the work described in the PO or, if no PO is completed, in the work releases submitted to Seller by ECO-GEN’s Authorized Representative designated for the PO period specified (said work being hereafter called “Work”). Unless otherwise specified in a PO, Seller shall furnish all labor, materials, tools, machinery, equipment, appliances, shoring, scaffolding, false work, transportation and all other things necessary for the performance of the Work. Details of a PO, including description of the Work, start and completion dates, drawings and specifications, employee categories and rates and site of the Work are listed below, on the facing page or a supplemental document provided by ECO-GEN. Seller acknowledges and agrees that time is of the essence with respect to Seller’s obligations and that prompt and timely performance is strictly required.

27)  SELLER’S EXAMINATION: Seller will be held to have examined the Specifications and the Drawings relating to each Work Release and the site of the portion of the Work covered by said Work Release before commencing any work under said Work Release, and to be satisfied as to the conditions under which Seller will be obligated to operate in performing said portion of the Work, including but not limited to above ground obstructions, the character and nature of said portion of the Work, safety regulations and all other considerations which may affect said portion of the Work in any manner. No additional compensation shall be paid to Seller, nor will any extension of time be granted, for any of these considerations.

28)  OVERTIME: “Overtime Work” shall, unless otherwise defined in a PO, be all labor hours worked per man which are required, by applicable custom of the trade, union contract or law, to be paid at a premium hourly rate which is not less than time and one half of basic straight time hourly rate for the work performed. Seller shall not perform any Overtime Work unless such Overtime Work is requested or authorized by ECO-GEN in writing, or is required by the nature of the Work and Seller shall perform all overtime work so requested or authorized by ECO-GEN in writing. ECO-GEN shall pay Seller for such Overtime Work in accordance with the provisions of a PO for determining amounts for Overtime Work. The Seller shall pay the relevant overtime compensation to its workers in accordance with the applicable law.

29)  WARRANTIES: Seller warrants that all materials and equipment incorporated into the results of the Work (except materials and equipment provided by ECO-GEN) and every portion of the Work shall conform to the terms of a PO, the applicable Work Release and the Specifications and the Drawings, shall be of the best quality, shall be fit for the particular purpose for which they are required and shall be free of all defects in materials and workmanship until the expiration of one (1) year after completion of the portion of the Work covered by the Work Release to which such materials, equipment or portion of the Work relates.

30)  TITLE: Title to each item of material and equipment which is furnished for incorporation into the results of the Work and which is not already owned by ECO-GEN shall pass to ECO-GEN upon the delivery of item to the site of Work.

31)  LIENS: Seller shall indemnify and save harmless ECO-GEN and any party having interest in a site where any portion of the work is to be performed from laborers’, mechanics’ and material men’s, liens and all other liens and charges upon the Work, arising out of work performed and/or materials or equipment furnished by Seller or by a vendor or subcontractor hereunder.

32)  WASTE AND OTHER MATERIALS: Seller shall not allow waste materials or rubbish to accumulate in or about the site of the Work, but shall remove the same from ECO-GEN’s property promptly, and in accordance with all applicable laws, rules and regulations. Seller shall, at its expense, appropriately shelter and secure materials remaining outside during the performance of the Work so as to prevent any release or discharge to the environment.

33)   CHANGES: ECO-GEN may, by giving written notice to Seller from time to time, make changes in the Specifications and/or the Drawings, issue additional instructions, require additional work or direct the omissions of work, without invalidating a PO and Seller shall comply with such notice. ECO-GEN shall pay Seller for the changes resulting from said notice in accordance with the provisions of a PO for determining amounts, costs and charges. No additional work will be paid for by ECO-GEN unless performed in accordance with a written notice of ECO-GEN.

34)  SAFETY: Seller shall comply with, and shall cause its employees and all subcontractors to abide by, all health, safety, and security rules and regulations in force at the site of the Work. Seller understands that the authorization implied in the release of a PO is only authorized upon the condition that Seller has read, signed and completed all forms and paperwork including, but not limited to, CSCP forms requested by ECO-GEN. Until such time as the required paperwork is completed, Seller and/or his employees may not enter the work site. This section also includes any country specific terms available under the country heading below and incorporated by this reference.

35)   PATENTS: Seller shall defend or settle, at its sole expense, any suits, proceedings and claims for infringement of any patent arising in connection with facilities constructed or worked on hereunder out of any material, equipment or combination which is designed by Seller or is a standard article of sale of Seller, and shall indemnify and save harmless ECO-GEN from and against all Losses on account of such infringement; provided that Seller is notified promptly in writing of such claim, or of the commencement of such suit or proceeding, as the case may be, and is given authority, information and assistance for the defense or settlement thereof, and provided further that ECO-GEN shall not settle such claim, suit or proceeding, without the written consent of Seller. Seller shall use its best efforts to obtain from each of its vendors and subcontractors who furnish to Seller for the Work any material and/or equipment which is designed by such vendor or subcontractor or is a standard article of sale of such vendor or subcontractor, a written infringement indemnity agreement, satisfactory to ECO-GEN with respect to such materials and equipment. Seller shall in no way obligate ECO-GEN for any royalties or license fees applicable to the Work without the prior written consent of ECO-GEN.

36)    WAIVER: Except for changes made under Section 33 hereof, no change in, addition to or waiver of any of the Terms of a PO, any Work Release or any of the Specifications or the Drawings shall be binding upon either party, unless made in writing signed by an authorized representative of such party.

37)  TERMINATION FOR CONVENIENCE OF ECO-GEN: ECO-GEN may terminate a PO and all Work Releases at any time, whether or not Seller is in default, upon written notice to Seller. In such event, ECO-GEN’s only liability shall be to pay Seller, within sixty (60) days after receipt of invoice, all amounts, costs and other charges earned under a PO prior to such termination and all amounts paid by Seller and approved by ECO-GEN in settling and discharging outstanding purchase orders and subcontracts, less all amounts previously paid to Seller hereunder and less the amount of all claims by ECO-GEN against Seller in connection with a PO or the Work. In the event of such termination, Seller shall promptly deliver to ECO-GEN all such purchase orders and subcontracts which ECO-GEN requests Seller to settle. Promptly after such termination, Seller shall assign and transfer to ECO-GEN all of said purchase orders and subcontracts which are not so settled and discharged, all materials for which Seller has received payment hereunder and all drawings and documents furnished by ECO-GEN to Seller in connection with the Work. Seller shall take such action as may be necessary to secure to ECO-GEN the rights of Seller under all purchase orders and subcontracts assigned to ECO-GEN hereunder.

38)            LABOR: Seller shall employ, or cause to be employed, on or in connection with the performance of the PO, only persons who are fit and skilled in the work assigned. Should any disorderly, incompetent or objectionable person be employed on the Work by Seller or by any of its subcontractors, Seller shall, upon request of ECO-GEN, cause such person to be removed from the Work. If ECO-GEN determines that the Work was not performed in accordance with relevant standards, in addition to any other remedies available to ECO-GEN, Seller shall, at ECO-GEN’s option: (a) re-perform the Work; (b) reimburse ECO-GEN for any expense incurred by ECO-GEN to have the Work performed by a third party; or (c) reimburse ECO-GEN for any fees or other costs incurred for such Work.

39)  VENUE AND JURISDICTION: Each Party irrevocably consents to the jurisdiction and venue of the State Courts located in Los Angeles County, State of California, in connection with any action, suit, proceeding or claim to enforce the provisions of this PO and any subsequent agreements or amendments to recover damages for breach of or default under this PO or otherwise arising or by reason of this PO.  Each Party hereby irrevocably waives any right that it may have to assert that any such court lacks jurisdiction or that such forum is not convenient and waive any defense based on forum non conveniens. 

30)  ATTORNEY FEES:  If either party brings an action to enforce their rights the prevailing party may recover only fifteen thousand dollars ($15,000.00) in expense and attorney’s fees in connection with the actions and appeals from the losing party. 

41)  CERTIFICATE OF MERIT:  Before a party to this PO can file a claim against the other party, it must obtain a written certificate and confirmation from a qualified professional practicing the same discipline as the defendant that such a claim has merit.