WIGEN WATER TECHNOLOGIES: TERMS AND CONDITIONS

These terms (“Terms”) apply to each purchase order (“PO”) issued to Wigen Companies, Inc. (“Wigen”). Together with the applicable PO and any other documents attached or incorporated by reference (including any proposal (“Proposal”) provided by Wigen), these Terms shall be made a part of any contract (“Agreement”) between Wigen and the party hereto (“Buyer”).

1.0 PRODUCTS AND SERVICES. Products (“Products”) and services (“Services”) are those described in the Proposal.

2.0 PURCHASE PRICE/TERMS OF PAYMENT. Except as set forth herein, the price for the Products and Services (“Purchase Price”) is stated on the PO, absent typographic or other errors, which are subject to correction. Further, unless otherwise agreed in writing, the Purchase Price shall remain valid for 150 days after the effective date of the Agreement/PO. If a Notice to Commence Fabrication (or the equivalent thereof) is not issued on or before 150 days after the effective date of the Agreement/PO, the Purchase Price will be adjusted by change order as described herein. Specifically, the Purchase Price will be adjusted by the ratio of the Producer’s Price Index (“PPI”) of the month that the Notice to Commence Fabrication (or the equivalent thereof) is issued to the PPI of 150 days after the effective date of the Agreement/PO. Both parties may propose changes to the scope of supply; no proposed changes will be acceptable until agreed to by both parties in writing, which both parties agree in good faith to negotiate. Unless otherwise provided, payment shall be made via ACH or wire and is due in US dollars within 30 days from the invoice date. When the Products are placed at the disposal of the Buyer or the end-user of the Products (“Owner”) or at a Facility (defined below) ready for unloading, delivery shall be deemed to have occurred, and invoices “due upon delivery” of Products shall be due 30 days thereafter. Unless otherwise expressly agreed in writing, invoices due upon “Substantial Completion” shall mean payment is due 30 days after Wigen has tested control sequences, commissioned the Products, and provided training per the Proposal OR 90 days after delivery of the Products and/or Services, whichever is sooner. (If unable to achieve Substantial Completion due to delays of Buyer or its contractors, suppliers and/or agents (Buyer’s Agents”) or of Owner, payment is due no later than 90 days after delivery of Products and Services). Any undisputed amounts not paid when due will be subject to interest computed at a rate equal to 1.5% per month or the highest rate permissible under law. Undisputed invoices shall be paid regardless of disputes relating to other invoices.

3.0 SUBMITTALS. Unless otherwise agreed to in writing, (a) Buyer shall respond in full to all engineering submittals of Wigen within two (2) weeks of receipt, and (b) the Purchase Price includes two (2) sets of submittals: a full initial submittal set and a full second submittal set (which second submittal set shall address return comments only, if any, on the initial submittal set). Unless due exclusively to the fault of Wigen, additional submittal sets due to (a) new and/or additional design and/or scope requests, and/or (b) lack of complete prior review by Buyer (and/or Buyer’s customer or representative of Buyer’s customer) will incur additional fee(s) at Wigen’s then current engineering rates. Submittal types and formats are per Wigen’s standard process; any unique or project specific submittal requirements/templates requiring additional engineering hours shall be payable by Buyer at Wigen’s current engineering rates. Further, should Buyer delay in responding to submittals and thereby subject Wigen to additional expenses, including liquidated damages and/or other fees or penalties, Buyer agrees to pay such costs on behalf of Wigen.

4.0 SHIPMENT/DELIVERY. Wigen will package Products for shipment per Wigen’s standard shipping procedures in SP-200-P Shipping, Handling & Storage Procedure, which procedures are hereby incorporated. Title to Products shall not pass to Buyer until Buyer has paid in full for the Products. Buyer shall ensure that its facilities and/or the Owner’s facilities are reasonably suited for receipt and storage of the Products and further ensure adequate access to and available space for placement of all delivered Product.

5.0 FORCE MAJEURE. Wigen shall not be liable or in breach of this Agreement for any delay or failure of delivery or of any other performance caused in whole or part by any contingency beyond Wigen’s reasonable control, including, without limitation, hurricanes, floods, earthquakes, endemics/pandemics, acts/threats of terrorism, acts/omissions of any government or governmental agency, shortage of or inability to secure labor, fuel, energy, raw materials, supplies or machinery at reasonable prices, and any other events/circumstances, whether similar or dissimilar, not within the reasonable control of Wigen. In such event, the time for Wigen’s performance shall be extended by the amount of time lost, plus additional time, if any, as reasonably necessary.

6.0 BUYER’S DELAY. Wigen shall not be liable or considered in breach of this Agreement for any delay or failure of delivery or of any other performance caused in whole or part by acts/omissions of Buyer or Buyer’s Agents, including failure of Buyer to timely respond to submittals, accept Delivery, delay installation or initialization, and failure to pay invoices when due. In such event, the time for Wigen’s performance shall be extended by the amount of time lost by reason of such acts/omissions, plus additional time, if any, reasonably necessary. Buyer shall be liable for additional expenses reasonably incurred by Wigen, if any, due to Buyer’s delays, including but not limited to storage fees (see Storage) and attorneys’ fees. In addition, in the event the time for delivery and/or startup and/or commissioning has arrived, and Buyer is unable or unwilling to accept delivery and/or commence startup and/or commissioning due to no fault of Wigen, such delays shall not excuse Buyer from making any milestone payments otherwise due to Wigen upon delivery and/or startup and/or commissioning.

7.0 STORAGE. If Buyer is unable or unwilling to take delivery of Products due to no fault of Wigen and the scheduled time for delivery to Buyer has arrived, Wigen may deliver Products to a storage facility (“Facility”) of its choosing (including storing Products at any Wigen facility), in which case, upon storage: (i) delivery to and acceptance by Buyer shall be deemed to have occurred; and (ii) all expenses related to storage of the Products shall be payable by Buyer upon submission of Wigen’s invoices (including reasonable expenses for storage at a Wigen Facility and/or additional material and labor). When conditions permit and upon payment of all amounts due Wigen, Wigen shall deliver the Products to Buyer or make the Products available for delivery to Buyer. Should Products remain in storage for 90 days or more, the balance of the Purchase Price shall be immediately due and payable.

8.0 TERMINATION/CANCELLATION. Should Buyer wish to terminate this Agreement for any reason other than Wigen’s default, Buyer shall pay Wigen for all materials and Products (whether procured, in progress, or completed), all lease fees incurred, and all Services performed, plus expenses reasonably incurred by Wigen in connection with termination. Either party may cancel this Agreement on written notice in the event the other party materially breaches this Agreement and does not cure such breach within 30 days after first having knowledge or receipt of notice of such breach.

9.0 SERVICES/TRAINING. The Purchase Price includes equipment startup, training hours, and trips set forth in the Proposal and Wigen’s Order Acknowledgment. Buyer/Owner may request additional hours and/or trips, which Wigen will provide at its then current rates. Buyer shall ensure that all personnel of Buyer/Owner who reasonably require training be present at all trainings.

10.0 SAFETY. Buyer shall take all safety precautions reasonably necessary to ensure a safe worksite and to comply with all applicable laws for the safety of persons/property. See 1M-220-P-Onsite Safety Requirements for Wigen’s complete safety requirements.

11.0 INTELLECTUAL PROPERTY OWNERSHIP. Wigen retains all intellectual property rights and interest in and to all Products, materials, and information, (including copyright, patent, trademark, and trade secret rights).

12.0 LIMITED WARRANTY. If warranty documentation is not included within the Proposal, see 7W-100-P-Wigen Water Technologies’ Limited Warranty for terms of limited warranty (“Warranty”). In the event Wigen delivers Product to a Facility for storage OR Wigen delivers Product to a job site but is unable to achieve Substantial Completion due to no fault of Wigen, the Warranty period will commence as per the terms of the Warranty, it being understood by Buyer that Wigen cannot assume responsibility for delays by Buyer/Owner. In such circumstances, Wigen agrees to work with Buyer in good faith to negotiate the terms of an extended warranty at an additional cost, if any.

13.0 LIMITATION OF REMEDIES. NEITHER BUYER NOR WIGEN SHALL BE LIABLE TO THE OTHER FOR INDIRECT, INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION, FORESEEABLE BUSINESS LOSSES, LOSS OF PROFITS, AND/ OR ECONOMIC LOSS OR PROPERTY DAMAGE. THE PARTIES AGREE THAT THESE LIMITATIONS ARE AGREED ALLOCATIONS OF RISK AND SHALL SURVIVE A DETERMINATION OF ANY COURT THAT ANY REMEDY HEREIN FAILS OF ITS ESSENTIAL PURPOSE.

14.0 LIMITATION OF LIABILITY. UNDER NO CIRCUMSTANCE SHALL WIGEN’S LIABILITY EXCEED THE PURCHASE PRICE PAID BY BUYER.

15.0 DEFAULT. In the event of a material default by Buyer, Wigen may, in addition to other available remedies, (a) suspend in transit any shipment; (b) decline further shipments; (c) postpone further performance until such default is corrected; (d) cancel this Agreement/PO; and (e) declare all amounts owed by Buyer payable immediately.

16.0 INDEMNITY. Buyer shall defend, hold harmless, and indemnify Wigen from and against any and all claims, along with all damages and expenses (including reasonable attorneys’ fees) related to or in connection with (i) any defect or failure of the Products (including any software code related thereto) not due to the fault of Wigen; (ii) any alleged or actual breach of this Agreement by Buyer and/or Buyer’s Agents, and/or (ii) any negligent or intentional acts or omissions of Buyer and/or Buyer’s Agents.

17.0 ASSIGNMENT. Buyer may not assign the PO without first obtaining Wigen’s written consent.

18.0 CONFIDENTIALITY. Buyer agrees to hold in confidence all confidential information disclosed to it by Wigen and to use such information solely for the purpose of performing its obligations hereunder. Such information includes but is not limited to financial data, technical data (including schematics and designs), computer code, software (including PLC, HMI, and VFD code), technical documentation, and other data Buyer has reason to know or reasonably should know is confidential (“Information”). Buyer may disclose Information to Buyer’s Agents with a bona fide need to know under this Agreement, provided prior to such disclosure, Buyer informs Buyer’s Agents of these requirements and obtains from Buyer’s Agents agreement(s) in writing to be bound by confidentiality terms at least as restrictive as those applicable to Buyer.

19.0 COMPLIANCE. Buyer shall, at its expense, comply with all applicable laws and regulations applicable to Buyer and obtain/maintain all governmental approvals applicable to Buyer, if any.

20.0 GOVERNING LAW AND JURISDICATION. The laws of Minnesota shall govern these Terms; any proceeding related to these Terms shall be in Minnesota state or federal courts.

21.0 SURVIVAL. The following sections will survive this Agreement: Intellectual Property Ownership, Limited Warranty, Limitation of Remedies, Limitation of Liabilities, Indemnity, Confidentiality, Governing Law and Jurisdiction, and Survival.