Terms and Conditions

1. Applicability.
1. These terms and conditions (these “Terms”) are the only terms that shall govern the provision of services (the “Services”) described in the order acknowledgement (the “Order Acknowledgement”) by MetCon Technologies, LLC (“MetCon”) to the customer specified in such Order Acknowledgement (“Customer”).
2. The Order Acknowledgement and these Terms, together with any confidentiality or non-disclosure agreement between the parties (collectively, the “Agreement”), comprise the entire agreement between the parties with respect to the Services, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. In the event of any conflict between these Terms and the Order Acknowledgement, the Order Acknowledgement shall govern. In the event of any conflict between these Terms (including Section 10 hereof) or the Order Acknowledgement and any separate confidentiality or non-disclosure agreement entered into between the parties, the terms of such confidentiality or non-disclosure agreement shall govern.
3. These Terms prevail over any of Customer's general terms and conditions regardless of whether or when Customer has submitted its request for proposal, order, or such terms. Provision of Services to Customer does not constitute acceptance of any of Customer's terms and conditions and does not modify or amend these Terms.
2. Material Receipt; Risk of Loss. 
1. Customer shall deliver all metal materials described in the Order Acknowledgement (the “Materials”) to MetCon’s plant. Customer shall be liable for all freight and other charges, taxes and fees (“Expenses”) associated with the transportation and/or delivery of the Materials to MetCon, and shall prepay all Expenses.
2. Customer shall include a delivery document with each shipment of Materials setting forth the following information: Customer’s name, address and phone number; date and method of shipment; number of containers; description of contents; and gross, tare and net weight of each container.
3. MetCon shall bear the risk of loss of and damage to Materials located at MetCon’s plant.
4. Customer assumes all risk of loss of and damage to the Materials upon shipment, FOB MetCon’s facility.
3. Customer's Representations. Customer represents and warrants to MetCon that (a) Customer has all right, title and interest in the Materials free and clear of all liens and (b) all documentation furnished by Customer with respect to the Materials is accurate.
4. Promise Dates. MetCon shall use commercially reasonable efforts to meet any promise dates specified in the Order Acknowledgement, and any such dates shall be estimates only
5. Customer's Acts or Omissions. If MetCon’s performance of its obligations under the Agreement is prevented or delayed by any act or omission of Customer or its agents, subcontractors, consultants or employees, MetCon shall not be deemed in breach of its obligations under the Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.
6. Change Orders.
1. If either party wishes to change the scope or performance of the Services, it shall submit details of the requested change to the other party in writing. MetCon shall, within a reasonable time after such request, provide a written estimate to Customer of:
1. the likely time required to implement the change;
2. any necessary variations to the fees and other charges for the Services arising from the change;
3. the likely effect of the change on the Services; and
4. any other impact the change might have on the performance of the Agreement.
2. Promptly after receipt of the written estimate, the parties shall negotiate and agree in writing on the terms of such change (a “Change Order”). Neither party shall be bound by any Change Order unless mutually agreed upon in writing in accordance with Section 23.
3. MetCon may charge for the time it spends assessing and documenting a change request from Customer on a time and materials basis in accordance with the Order Acknowledgement.
7. Fees and Expenses; Payment Terms; Interest on Late Payments; Collection Costs.
1. In consideration of the Services provided by MetCon under the Agreement, Customer shall pay MetCon the fees set forth in the Order Acknowledgement.
2. MetCon shall issue invoices to Customer and Customer shall pay all invoiced amounts due to MetCon within 30 days after Customer's receipt of such invoice. All payments hereunder shall be in U.S. dollars and made by check, ACH or wire transfer.
3. In the event payments are not received by MetCon within 30 days after becoming due, MetCon may:
1. charge interest on any such unpaid amounts at a rate of 1.5% per month or, if lower, the maximum amount permitted under applicable law, from the date such payment was due until the date paid; and
2. suspend performance for all Services until payment has been made in full.
4. If Customer defaults in making any payment due under the Agreement, MetCon shall be entitled to recover all costs of collection from Customer, including but not limited to, collection fees, attorney fees and court costs.
8. Taxes. Customer shall be responsible for all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, state or local governmental entity on any amounts payable by Customer hereunder; any such taxes, duties and charges currently assessed or which may be assessed in the future, that are applicable to the Services are for Customer’s account, and Customer agrees to pay such taxes.
9. Intellectual Property. All intellectual property rights, including copyrights, patents (including US Patent 8,357,287 B2, 9,499,919 B2, and US Patent 8,580,103 B2, which cover certain of MetCon’s proprietary methods used in performing the Services), patent disclosures and inventions (whether patentable or not), trademarks service marks, trade secrets, know-how and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, "Intellectual Property Rights") in and to all documents, work product and other materials that are delivered to Customer under the Agreement or prepared by or on behalf of MetCon in the course of performing the Services (collectively, the "Deliverables"), except for any Confidential Information of Customer or customer materials, shall be owned by MetCon and Customer shall have no license or other right to or in the Intellectual Property Rights.
10. Confidential Information.
1. All non-public, confidential or proprietary information of a party hereto, including, but not limited to, trade secrets, technology, information pertaining to business operations and strategies, and information pertaining to customers, pricing, and marketing (collectively, “Confidential Information”), disclosed by such party to the other party hereto, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the provision of the Services and the Agreement is confidential, and shall not be disclosed or copied by the receiving party without the prior written consent of the disclosing party. Confidential Information does not include information that the receiving party can show is:
1.  in the public domain prior to such disclosure by the disclosing party;
2. known to the receiving party  at the time of such disclosure without breach of any other obligation of confidentiality to the disclosing party; or
3. rightfully obtained by the receiving party  on a non-confidential basis from a third party that is not, to the knowledge of the receiving party, subject to any obligation of confidentiality to the disclosing party.
2. Customer agrees to use MetCon’s Confidential Information only to make use of the Services and Deliverables, and MetCon agrees to use Customer’s Confidential Information only to provide the same and in connection with the performance of its obligations under the Agreement.
3. The disclosing party shall be entitled to injunctive relief for any violation of this Section 10 by the receiving party.
11. Limited Warranty of MetCon.
1. MetCon warrants to Customer that it shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under the Agreement.
1. Where MetCon’s Services are being performed in accordance with criteria or specifications stated on the Order Acknowledgement or in a separate reference document as specifically agreed to by the parties in writing, MetCon warrants that it will comply with said criteria or specifications.
2. MetCon shall not be liable for a breach of the warranty set forth in Section 11(a) unless Customer gives written notice of the defective Services, reasonably described, to MetCon within 30 days of the time when Customer discovers or ought to have discovered that the Services were defective.
3. Subject to Section 11(b), MetCon shall, in its sole discretion, either:
1. repair or re-perform such Services (or the defective part); or
2. credit or refund the price of such Services at the pro rata contract rate.
4. THE REMEDIES SET FORTH IN SECTION 11(c) SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY AND METCON’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11(a).
12. Disclaimer of Warranties. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11(a), METCON MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY (A) WARRANTY OF MERCHANTABILITY; OR (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (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.
13. Limitation of Liability.
1. IN NO EVENT SHALL METCON BE LIABLE TO CUSTOMER OR TO ANY THIRD PARTY FOR ANY LOSS OF USE, LOSS OF REVENUE, LOSS OF PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
2. IN NO EVENT SHALL METCON'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THE AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE AGGREGATE AMOUNTS PAID OR PAYABLE TO METCON PURSUANT TO THE APPLICABLE ORDER ACKNOWLEDGEMENT GIVING RISE TO THE CLAIM.
3. The limitation of liability set forth in Section 13(b) above shall not apply to liability resulting from MetCon's gross negligence or willful misconduct.
14. Termination. In addition to any remedies that may be provided under the Agreement, MetCon may terminate the Agreement with immediate effect upon written notice to Customer, if Customer:
1. fails to pay any amount when due under the Agreement and such failure continues for 45 days after Customer's receipt of written notice of nonpayment;
2. has not otherwise performed or complied with any of the terms of the Agreement, in whole or in part; or
3. 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. Waiver. No waiver by MetCon of any of the provisions of the Agreement is effective unless explicitly set forth in writing and signed by MetCon. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Agreement operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
16. Force Majeure. MetCon shall not be liable or responsible to Customer, nor be deemed to have defaulted or breached the Agreement, for any failure or delay in fulfilling or performing any term of the Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of MetCon, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, pandemic, lock-outs, strikes or other labor disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
17. Assignment. Customer shall not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of MetCon. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Customer of any of its obligations under the Agreement.
18. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the 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.
19. Governing Law. All matters arising out of or relating to the Agreement are governed by and construed in accordance with the internal laws of the State of Pennsylvania without giving effect to any choice or conflict of law provision or rule (whether of the State of Pennsylvania or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Pennsylvania.
20. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to the Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Pennsylvania in each case located in the City and County of Philadelphia, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
21. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth in the Order Acknowledgement or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
22. Severability. If any term or provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
23. Survival. Provisions of these Terms, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of the Agreement including, but not limited to, the following provisions: Intellectual Property, Confidential Information, Limited Warranty of MetCon, Disclaimer of Warranties, Limitation of Liability, Governing Law, Submission to Jurisdiction and Survival.
24. Amendment and Modification. The Agreement may only be amended or modified in a writing which specifically states that it amends the Agreement and is signed by an authorized representative of each party.
25. Headings. Headings and captions used in these Terms are for convenience of reference only and do not alter the meaning or interpretation of these Terms.