HomeMy WebLinkAboutItem 11h - Carbon Exchange ServicesPurchase Order for Carbon Exchange Services
October 1, 2024
Page 1 of 3
DATE: October 1, 2024
TO: Honorable Mayor and City Council
FROM: Paul Cranmer, Public Works Services Director
By: John Corona, Utilities Superintendent
SUBJECT: PURCHASE ORDER WITH CALGON CARBON CORPORATION FOR
CARBON EXCHANGE SERVICES FOR THE LIVE OAK GRANULAR
ACTIVATED CARBON TREATMENT SYSTEM IN THE AMOUNT OF
$214,326
CEQA: Exempt
Recommendation: Waive Formal Bid Process and Approve
SUMMARY
The Public Works Services Department (“PWSD”) is responsible for the daily operation
of City wells and the water that is distributed to the community. At the Live Oak Well
facility, the City utilizes a treatment system using Granular Activated Carbon to remove
contaminants. The treatment system uses a lead/lag configuration, consisting of four lead
vessels and four lag vessels. Based on the State Water Resources Control Board
(“SWRCB”) permit for operations, when the effectiveness of the Granular Activated
Carbon system wanes, new carbon vessels must be installed. In June 2024, four lead
carbon vessels met the required criteria and were replaced. The remaining four lag
carbon vessels have now waned in effectiveness and also require replacement.
It is recommended that the City Council approve a Purchase Order with Calgon Carbon
Corporation for Carbon Exchange Services for the Live Oak Granular Activated Carbon
Treatment System, in the amount of $214,326.
BACKGROUND
The PWSD operates the City’s water distribution system, which provides water service to
more than 56,000 residents through approximately 14,000 service connections. The City
uses groundwater wells as the primary supply source to meet the water demands in
Arcadia. Water quality samples are taken regularly to ensure optimal water quality.
In October 2018, water quality samples at Live Oak Well indicated that the well was
impacted by Trichloroethylene (“TCE”) and Perfluoroalkyl and Polyfluoroalkyl Substances
(“PFAS”). Since the levels of TCE and PFAS contaminations exceeded the allowable
Purchase Order for Carbon Exchange Services
October 1, 2024
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standards, it was determined that a treatment system would need to be constructed. On
February 5, 2019, the City Council authorized the City Manager to execute a Professional
Services Agreement with Calgon Carbon Corporation for the construction of a Granular
Activated Carbon Adsorption System for the Live Oak Well.
DISCUSSION
In July 2021, the City began operating the Live Oak Granulated Activated Carbon
treatment system to remove TCE and PFAS from the Live Oak Well. The treatment
system uses a lead/lag configuration, consisting of four lead vessels and four lag vessels.
Once the surface of the carbon vessels become completely saturated, it is necessary to
remove the carbon vessels from service. Once the vessels are removed, they are
reactivated offsite where they are stored for future use. This process is defined as Carbon
Exchange. Based on contaminant levels documented in 2018, it was estimated that the
Granular Activated Carbon Adsorption System would need to be exchanged every 16
months. The first carbon exchange occurred in December 2022. In early 2024, the four
lead vessels reached their carbon saturation level, and on May 7, 2024, the City Council
approved a purchase order for their replacement. The remaining four lag vessels in the
Live Oak treatment system have now reached their saturation level and must be replaced.
Calgon Carbon Corporation was awarded the original contract to supply Granular
Activated Carbon for the treatment system. The Granular Activated Carbon provided in
the carbon vessels are specific to Arcadia’s treatment needs. The vessels will be recycled
and recharged for reuse only at the Live Oak Treatment facility. Due to these specific
requirements and to avoid any possible cross contamination, Calgon Carbon Corporation
should be considered a sole source provider. For these reasons, it is recommended that
the City Council waive the formal bid process and approve a sole source purchase order
with Calgon Carbon Corporation for the purchase of carbon exchange, for the Live Oak
Treatment Facility Granular Activated Carbon system.
ENVIRONMENTAL ANALYSIS
Since the project consists of the restoration or rehabilitation of deteriorated or damaged
facilities to meet current standards of public health and safety, this project is considered
a Class 1 exemption as defined in Section 15301(b) & (d) of the California Environmental
Quality Act (“CEQA”). This project is categorically exempt per the California
Environmental Quality Act as an existing facility, Section 15301 of the CEQA guidelines.
FISCAL IMPACT
Sufficient funds have been budgeted in the Fiscal Year 2024-25 Water Operating Budget
for the purchase of carbon exchange for all four lag vessels in the amount of $214,326.
Purchase Order for Carbon Exchange Services
October 1, 2024
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RECOMMENDATION
It is recommended that the City Council determine that this project is a Class 1 exemption
under the California Environmental Quality Act (“CEQA”); waive the formal bid process;
and approve a Purchase Order with Calgon Carbon Corporation for Carbon Exchange
Services for the Live Oak Granular Activated Carbon Treatment System in the amount of
$214,326.
Attachment: Proposed Carbon Exchange Quote
Calgon Carbon Corporation
3000 GSK Drive,
Moon Township, PA 15108
dws@calgoncarbon.com
Date: September 4th, 2024
Contact: John Corona
Job Title: Utilities Superintendent
Email: jcorona@arcadiaca.gov
Product Quantity Unit Price Total Price
Filtrasorb 400 (F400) 80,000 lbs. $2.43/lb. $194,400
Total $194,400
• Product: Filtrasorb 400 (F400)
• Quantity: 80,000 lbs.
• Scope: Removal of existing GAC installation of F400
• All related labor and equipment (backwash trailers, trucks, hoppers, hoses, etc), except utilities
detailed below.
• Owner to provide clean water source for movement of GAC to and from filter via eduction
• Drain access for excess water from carbon transfer (water will be gray with carbon fines)
• Disinfection (if necessary) not included.
• Additional make up carbon over 20% (CMR only)
• Any applicable taxes not included.
Activated Carbon Scope of
Supply for City of Arcadia, Ca
Live Oak Facility
Sub total $194,400Tax (10.25%) $19,926Revised Total $214,326
• Delivery: 6-8 weeks after receipt of approved purchase order and after carbon acceptance
testing has been completed.
1. Unless otherwise noted, or until other Terms and Conditions are provided, this offer is made
only under Calgon Carbon Corporation’s Terms and Conditions for the Sale of Carbon and
Media.
2. Pricing provided is exclusive of any sales tax.
3. Scope of Supply/Pricing does not include any payment or performance bonds. Costs for any
such bond (if necessary or requested by the buyer) will be added to the quoted pricing.
4. Upon acknowledgement of any purchase order, the buyer will be requested to complete a
Credit Application and provide Tax Exemption Documentation.
5. The quoted price is valid for 30 days from the date of this Scope of Supply document.
For more information or to place an order, contact:
Bryan Rodriguez
Calgon Carbon Corporation - A Kuraray Company
Senior Technical Sales Rep - Drinking Water Solutions
bryan.rodriguez@kuraray.com
412-352-7612
Terms and Conditions for the Sale of Carbon and Media
1) DEFINITIONS:
(a) Seller: Calgon Carbon Corporation or its applicable subsidiary or affiliate
(b) Buyer: The buyer named in the Documentation
(c) Documentation: The proposal, confirmation, acknowledgement or other contract, as applicable, for the sale of the Products to which these Terms
and Conditions are attached
(d) Goods: Any carbon cloth, carbon, resin, diatomaceous earth, and/or perlites sold pursuant to the terms of the Documentation
(e) Products: The Goods and services, collectively, described in the Documentation
(f) Agreement: The Documentation, these Terms and Conditions and any attachments referenced in the Documentation
2) GENERAL: Seller hereby offers for sale to Buyer the Products on the
express condition that Buyer agrees to accept and be bound by the terms and
conditions set forth herein. To the extent of a conflict between these Terms
and Conditions and the express terms set forth in the Documentation, the
terms set forth in the Documentation shall control. Any provisions contained
in any document issued by Buyer are expressly rejected and if the terms and
conditions set forth herein differ from the terms in any document issued by
Buyer, this document shall be construed as a counter offer and shall not be
effective as an acceptance of Buyer’s document. In ordering and delivery of
the Products, the parties may employ their standard forms; provided, however,
that nothing in those forms shall be construed to modify or amend the terms of
this Agreement. In the event of a conflict between this Agreement and either
party’s standard forms, this Agreement shall govern.
3) PRICE AND PAYMENT: The price shall be as stated in the
Documentation. Unless otherwise stated in the Documentation: (a) The price is
exclusive of any taxes, tariff, and duties of any kind which either party may be
required to pay with respect to the sale of goods described in the
Documentation, and Buyer shall be responsible for the payment of all taxes,
tariffs and duties related hereto, except for income taxes imposed on Seller;
(b) Sales tax will be added to the price based upon the Product destination
unless tax exemption or direct pay documentation is provided; (c) Products
will be billed for at the time of delivery; and (d) Payment terms shall be net
thirty (30) days, or net forty-five (45) days if paid by Electronic Funds
Transfer (EFT). A late payment fee of 1.25% per month, or the highest lawful
rate, whichever is less, will apply to all amounts past due, and will be prorated
per day. Retainage may only be applied on the final invoice. Buyer agrees that
Seller, at its discretion, may accelerate and make due and payable all
remaining payments if Buyer shall fail to perform any of its obligations
hereunder or under the Documentation, including without limitation Buyer’s
failure to pay any amount when due, subject to any applicable cure periods
provided for herein.
4) PRICING CONDITIONS:
(a) Unless otherwise indicated within the Documentation, all pricing quoted in
connection with the Documentation is valid for purchase for a sixty (60) day
period beginning with the date of the Documentation.
(b) If this Agreement shall continue into the next calendar year, the fees
payable pursuant hereto will be adjusted on January 1st of such calendar year
as outlined in the Documentation; provided that if the Documentation is silent,
the mechanism set forth in Section 4(c) below will apply.
(c) If the Documentation is silent regarding the mechanism for adjustment of
fees, the fees will be adjusted on January 1st of such calendar year by the
annual percentage change in the combined average of two Producer Price
Indices, as published by the United States Department of Labor: (i) Producer
Price Index of other Petroleum and Coal Products Manufacturing, and (ii)
Producer Price Index of Basic Organic Chemicals. The percent adjustment
shall be calculated by taking the percent difference for each index during the
twelve month period from January 1st through December 31st of the last
completed calendar year as compared to the twelve month period from January
1st through December 31st of the calendar year immediately preceding the last
completed calendar year. These two percentages will then be averaged for
calculating the final percent increase to which all Goods will be subject. If the
calculation would result in a negative adjustment, no changes shall be made
for such year.
5) SALE AND DELIVERY: Sale terms and pricing, unless otherwise
specified in the Documentation, are F.O.B. Seller’s point of shipment
(Incoterms® 2020). If freight is to be prepaid by Seller and added to the
amount due, Seller shall add up to a thirty-five percent (35%) surcharge to the
freight charges. Seller will have the right, at its election, to make partial
shipments of the Products and to invoice each shipment separately. Seller
reserves the right to stop delivery of any Product in transit and to withhold
shipments in whole or in part if Buyer fails to make any payment to Seller
when due or otherwise fails to perform its obligations hereunder or under any
other outstanding payment obligations of Buyer to Seller, whether related to
the Documentation or otherwise.
6) TITLE AND RISK OF LOSS: Notwithstanding the trade terms indicated
above and subject to Seller’s right to stop delivery of any Goods in transit
pursuant to Section 5 above, title to and risk of loss of the Goods will pass to
Buyer upon delivery of the Goods by Seller to the carrier at Seller’s point of
shipment. Notwithstanding the foregoing or the provisions of the Uniform
Commercial Code or Incoterms® 2020, if Buyer is located outside of the
United States of America, title to the Goods, and all accessions to or products
of the Goods, shall remain with Seller until the later of (a) payment in full of
the purchase price and of other amounts owing by Buyer and (b) delivery to
Buyer.
7) AVAILABILITY: Shipment dates (and delivery and installation dates, if
included in the scope of work) are not guaranteed, and Seller will not be liable
for any loss or damage resulting from any delay in delivery or failure to
deliver which is due to any cause beyond Seller’s reasonable control. In the
event of a delay due to any cause beyond Seller’s reasonable control, Seller
reserves the right to reschedule the shipment within a reasonable period of
time, and Buyer will not be entitled to refuse delivery or otherwise be relieved
of any obligations as the result of such delay. If any delivery is delayed for
more than thirty (30) days beyond the originally scheduled delivery date and
such delay is caused by Buyer, Buyer will be subject to storage charges from
the scheduled shipment date of two percent (2%) of the sale price per month;
and such storage charge shall be due monthly on the first day of each month.
Storage by Seller shall be at Buyer’s risk and expense.
8) SERVICES:
(a) All orders which include services (including installation, supervision,
startup, training, testing, etc.) as stated in the Documentation will require the
completion of the Pre-Visit Checklist and Service Request Form prior to
scheduling the visit. If there are delays, cancellations, or failures by Buyer to
meet service personnel at designated times, then fees will be assessed to the
customer at Seller’s then-applicable per hour rate for each hour of delay for
each person. For domestic or international travel, additional fees will apply.
(b) Buyer shall make the premises, where services are to be performed (the
“Premises”), available to Seller at all reasonable times as Seller may request,
such that Seller shall be able to perform the services in a timely manner. Buyer
shall bear all risk and liability associated with its inability to make the
Premises available to Seller to perform the services. Prior to the
commencement of services, Buyer shall ensure that the Premises are in good
repair and in safe condition, and shall notify Seller of any dangerous, unsafe or
hazardous conditions associated with the Premises, such that Seller can take
the appropriate safeguards. Prior to the commencement of any work, Buyer
shall notify Seller of any special workplace requirements, safety standards,
operating procedures or other conditions imposed on persons performing work
at the Premises.
(c) Any spent activated carbon covered by this Agreement will be subjected to
reactivation acceptance testing by Seller as described in Seller’s Guidelines for
Return for Reactivation of Granular Activated Carbon, which Seller may
update from time to time in its sole discretion. Buyer will provide any
information required by Seller relative to evaluating carbon acceptance. Seller
reserves the right to reject any and all activated carbon if, in its judgment, it is
unsuitable for reactivation. Further, Seller will periodically retest the spent
activated carbon to assure it remains acceptable for reactivation and that it
does not contain constituents that were not in the carbon acceptance sample
and/or Adsorbate Profile Document. Seller reserves the right to apply a
surcharge for reactivation of spent carbon with quality that creates excessive
corrosion, slagging, exothermic reactions, or other operational problems
including lower furnace operating rates. If the spent activated carbon becomes
unacceptable for reactivation, disposal of the carbon will be the responsibility
of Buyer. Seller reserves the right to reactivate the spent carbon at any of its
reactivation facilities where carbon acceptance exists.
9) PERMITS, LICENSES AND FEES: Buyer shall be responsible, at its
sole expense, for all environmental permits, applications, regulatory approvals,
and other permits or licenses that may be required for installation and/or
operation of the Products.
10) TERMINATION: Seller may cancel this Agreement if any of the
following occurs: (a) Buyer becomes insolvent; (b) Buyer ceases to conduct its
operations in the normal course of business; (c) Buyer is unable to meet its
obligations as they mature, or admit in writing such inability or fails to provide
adequate assurances of its ability to perform its obligations hereunder;
(d) Buyer files a voluntary petition in bankruptcy; (e) Buyer suffers the filing
of an involuntary petition in bankruptcy and the same is not dismissed within
thirty (30) days after filing; (f) a receiver, custodian or trustee is appointed for
Buyer or for a substantial part of its property; (g) Buyer fails to make payment
on the terms and within the time specified in this Agreement, or breaches any
other obligations under this Agreement; or (h) Buyer executes an assignment
for the benefit of its creditors. In the event of such cancellation, Seller shall
have all rights and remedies set forth in the Uniform Commercial Code of any
applicable jurisdiction and all other remedies available at law or in equity.
Sections 2, 10, 11, 12, 14, 15, 16, 18, 19 and 20 shall survive termination or
expiration of this Agreement.
11) LIMITED WARRANTIES:
(a) Unless otherwise specifically provided for in the Documentation, Seller
warrants that all Products provided under this Agreement shall, at the time of
delivery, conform to Seller’s then-applicable specifications for such Products.
Seller shall correct (by replacement of Goods or reperformance of services)
any failure to conform to the foregoing warranty of which it is notified in
writing within ninety (90) days from delivery. Any Goods removed in
connection with such replacement may be reactivated or disposed of at Seller’s
sole discretion.
(b) THE OBLIGATIONS CREATED BY THIS WARRANTY TO
REPAIR OR REPLACE DEFECTIVE GOODS OR TO PROVIDE
CORRECTIVE SERVICES SHALL BE THE SOLE REMEDY OF
BUYER IN THE EVENT OF DEFECTIVE GOODS OR SERVICES.
THERE ARE NO WARRANTIES MADE WITH REGARD TO THE
PRODUCTS OTHER THAN THOSE CONTAINED IN THIS SECTION.
ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, ARE
HEREBY DISCLAIMED, INCLUDING, WITHOUT LIMITATION,
THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM
COURSE OF DEALING OR USAGE OF TRADE.
(c) The sale of any Products pursuant to this Agreement does not include any
license, express or implied, to practice any intellectual property owned or
licensed by any third party. Buyer agrees not to use the Products for any
patented use not set forth expressly in this Agreement, absent a separate
license from the holder of such patent. Additionally, Buyer agrees not to
resell or sublicense the use of Products for any use not expressly granted
hereunder. Any warranty obligations do not apply to any specific use of the
Products, application of the Products, modification of the Products, or
combination of the Products with any product manufactured by any third
party. Seller, except as noted herein, does not and will not warrant,
indemnify, or in any other way share responsibility for Buyer’s use,
application, modification, or combination of the Products.
12) LIMITATION OF LIABILITY: Notwithstanding any provision to
the contrary herein, except with respect to a breach of the confidentiality
obligations set forth in Section 15 hereof, the parties hereto agree that in
no event shall either party be liable to the other party for any indirect,
special, consequential, incidental or punitive damages, or lost profits, as a
result of a breach of any provision of this Agreement or for any other
claim of any kind arising out of or relating to this Agreement, whether in
contract, in tort or otherwise. Notwithstanding any provision to the
contrary herein, for all losses, damages, liabilities or expenses (including
attorney’s fees and costs), whether for indemnity or negligence, including
errors, omissions or other acts, or willful misconduct, or based in
contract, warranty (including any costs and fees for repairing, replacing
or re-performing services or curing a breach hereof), or for any other
cause of action (individually, a "Claim"; collectively, "Claims"), Seller’s
liability, including the liability of its insurers, employees, agents,
directors, and officers and all other persons for whom Seller is legally
responsible, shall not, to the maximum extent permitted by law, exceed in
the cumulative aggregate with respect to all Claims arising out of or
related to this Agreement, the lesser of (a) the total amount of
compensation paid to Seller hereunder, and (b) One Million Dollars
($1,000,000). All Claims of whatsoever nature shall be deemed waived
unless made in writing within ninety (90) days of the occurrence giving
rise to the Claim. Moreover, any failure of Buyer to notify Seller of
unsatisfactory operation or any improper or unauthorized installation,
maintenance, use, repair, or adjustment shall relieve Seller of any further
responsibilities hereunder.
13) FORCE MAJEURE: Notwithstanding any provision to the contrary
herein, Seller shall have no liability to Buyer or its affiliates, and shall have
the right to suspend performance (including, without limitation, shipments)
hereunder, in the event of war, riot, terrorism, accident, explosion, sabotage,
flood, acts of God, fire, court order, strike, labor disturbance, work stoppage,
national defense requirements, act of governmental authority, pandemic,
epidemic, extraordinary failure of equipment or apparatus, inability to obtain
electricity or other type of energy, raw material, labor, equipment or
transportation, or other causes beyond Seller's reasonable control. It is
understood and agreed that settlement of strikes, lockouts and other labor
disputes shall be entirely within the discretion of Seller and that nothing in this
Agreement shall require the settlement of strikes, lockouts and labor disputes
when such course is inadvisable in the sole discretion of Seller.
14) EXPORT CONTROLS: Buyer acknowledges that the Products and
related technology are subject to U.S. export control and economic sanctions
laws and regulations, which may include the International Traffic in Arms
Regulations (ITAR), the Export Administration Regulations (EAR) and
regulations promulgated by the U.S. Department of the Treasury Office of
Foreign Assets Control (OFAC). Buyer further acknowledges that the re-
export of the Products and/or related technology to a third country or
retransfer to an unapproved end user may require a license or other
authorization from the Government of the United States. Such licenses or
other authorizations may impose further restrictions on the re-export or
retransfer of the Products and/or related technology. U.S. law also restricts the
re-export or retransfer of U.S.-origin goods, technology, or services to
countries or persons subject to U.S. sanctions or embargoes. Buyer represents
and warrants that it is in compliance with and agrees to comply with all such
applicable export control and economic sanctions laws and regulations. It is
the sole responsibility of Buyer to apply for and obtain any necessary licenses
or other authorizations prior to any re-export or retransfer of the Products
and/or related technology. Seller makes no warranty that any such licenses or
other authorizations will be granted, and shall have no liability for Buyer’s
inability to obtain such licenses or other authorization or for any violation by
Buyer of any applicable export control and/or economic sanctions laws and
regulations. Buyer will indemnify Seller and hold it harmless from any
liability resulting from Buyer’s violation of this provision or applicable export
laws or regulations. Notwithstanding any other provision in this Agreement,
Seller shall have the right to terminate this Agreement immediately upon the
determination by Seller, in Seller’s sole discretion, that Buyer has breached,
intends to breach, or insists upon breaching any of the provisions in the above
clauses.
15) CONFIDENTIALITY: Other than in the performance of the terms of this
Agreement, neither Buyer nor its agents, employees, or subcontractors shall
use or disclose to any person or entity any confidential information of Seller
(whether written, oral, electronic or other form) that is obtained or otherwise
prepared or discovered in connection with this Agreement. Buyer agrees that
all pricing, discounts, design drawings and technical information that Seller
provides to Buyer are the confidential and proprietary information of Seller,
whether or not otherwise identified as such. The obligations under this section
continue perpetually and survive the termination or expiration of any
underlying agreement between the parties. The provisions of this section
relating to use and disclosure shall not apply to any information that: (a) is or
becomes generally available to the public other than as a result of a disclosure
by Buyer under this Agreement; (b) becomes available to Buyer from a source
other than Seller without breach of any obligation of confidentiality; (c) was
independently developed by Buyer without violation of Seller’s rights and
without reference to the confidential information, as evidenced by written
records, maintained in the ordinary course of business by Buyer; (d) is used or
disclosed with the prior written approval of Seller; (e) is information
previously known to Buyer as evidenced by written records maintained by
Buyer in the ordinary course of business, and not otherwise subject to any
confidentiality restrictions; or (f) Buyer becomes legally compelled (by oral
questions, interrogatories, requests for information or documents, subpoenas,
investigative demands or similar process) to disclose. The burden of proof that
the information resides within one of the exceptions set forth above shall be on
Buyer. If Buyer becomes legally compelled (by oral questions, interrogatories,
requests for information or documents, subpoenas, investigative demands or
similar process) to disclose any of the confidential information, Buyer shall
provide Seller with prompt written notice so that Seller may seek a protective
order or other appropriate remedy or waive compliance with the provisions of
this Agreement. If such protective order or other remedy is not obtained, or if
Seller waives compliance with the provisions of this Agreement, Buyer shall
furnish only that portion of the confidential information which Buyer is legally
required to disclose and shall exercise its reasonable efforts to obtain reliable
assurance that confidential treatment shall be accorded the confidential
information. Buyer shall not undertake any qualitative or quantitative analysis,
reverse engineering or replication of any of Seller’s products, samples or
prototypes without Seller’s specific written authorization.
16) SECURITY INTEREST: Buyer hereby grants Seller a security interest
in the Goods to secure the payment of the purchase price, and shall not sell,
lease, transfer or encumber the Goods and will keep the Goods free from any
and all liens and security interests until Seller has been paid in full. Buyer
shall execute any and all documents reasonably requested by Seller to protect
such security interests.
17) MANAGEMENT OF CHANGE: Seller is constantly striving to improve
its products and capabilities and to provide the best product to its customers.
Seller may from time to time develop product improvements or alterations
with respect to the Products hereunder (the “Product Improvements”), and
Seller may implement such Product Improvements without notice to Buyer so
long as the performance of the Products will not be materially diminished, as
determined in Seller’s sole discretion, and so long as Seller has not separately
agreed in writing to provide such notification to Buyer. In the event that Seller
has agreed in writing to provide notice of Product Improvements to Buyer (the
"Notice”), then Seller shall provide such Notice in accordance with the terms
set forth in the separate writing.
18) APPLICABLE LAW AND JURISDICTION: This Agreement shall be
governed by, construed and enforced in accordance with the laws of the
Commonwealth of Pennsylvania, without regard to its conflict of law
principles. The UN Convention on Contracts for the International Sale of
Goods shall not apply to the transaction(s) represented hereby. The parties
consent and submit to the exclusive jurisdiction and service of process of any
state or federal court located in Allegheny County, Pennsylvania.
19) MISCELLANEOUS:
(a) Neither party may assign this Agreement, including without limitation any
of its rights or obligations hereunder, without the express written consent of
the other party hereto; provided that Seller may, without Buyer’s consent,
assign this Agreement, including without limitation any of its rights or
obligations hereunder, to any of its parents, subsidiaries or affiliates or to any
third party which merges with Seller or acquires all or substantially all of its
business and assets or a substantial part of its assets or business relating to the
Products. Seller may use subcontractors to fulfill its obligations pursuant to
this Agreement.
(b) In the event of any legal proceeding between Seller and Buyer relating to
this Agreement, neither party may claim the right to a trial by jury, and both
parties waive any right they may have under applicable law or otherwise to a
trial by jury.
(c) In the event that any one or more provisions (or portions thereof)
contained herein shall be held by a court of competent jurisdiction to be
invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions (or portions thereof) contained
herein shall remain in full force and effect, unless the revision materially
changes the bargain.
(d) Seller’s failure to enforce, or Seller's waiver of a breach of, any provision
contained in this Agreement shall not constitute a waiver of any other breach
or of such provision.
(e) Seller reserves the right to correct clerical, arithmetical, or stenographic
errors or omissions in this Agreement, invoices or other documents.
(f) Any notice or communication required or permitted hereunder shall be in
writing and shall be deemed received when personally delivered or three (3)
business days after being sent by certified mail, postage prepaid, to a party at
the address specified in this Agreement, or at such other address as either
party may from time to time designate in writing to the other.
(g) Buyer agrees that it will not use Seller’s name(s), logo(s) or mark(s) in any
public communication or press release, or for any other marketing or
promotional purpose, without Seller’s prior written consent.
(h) Terms used in this Agreement which are not defined herein and which are
defined by the Uniform Commercial Code of the Commonwealth of
Pennsylvania shall have the meanings contained therein.
20) ENTIRE AGREEMENT: With respect to the subject matter hereof, this
Agreement constitutes the complete and exclusive statement of the contract
between Seller and Buyer. No waiver, consent, modification, amendment or
change of the terms contained in this Agreement shall be binding unless made
in writing and signed by Seller and Buyer. Seller’s failure to object to terms
contained in any subsequent communication from Buyer (whether in a
purchase order or other communication) will not be a waiver or modification
of the terms set forth herein.