Terms and Conditions

TERMS AND CONDITIONS FOR THE PROVISION OF SERVICES   

1. Offer.  EHC's proposal to provide services and/or other pro forma quotation document ("Quote") constitutes an offer to provide the services ("Services") identified in such Quote and includes all the terms and conditions contained herein (the "Terms and Conditions") 

2. Acceptance.  Any purchase order or other form of acceptance issued by the Buyer in response to a Quote from EHC shall result in a contract for the purchase of the Services at the price quoted in such Quote and shall be subject to these Terms and Conditions. Unless Buyer shall have set forth each specific objection to these Terms and Conditions in a separate writing signed and dated by Buyer and delivered to EHC contemporaneously with Buyer's purchase order or other acceptance document, Buyer shall bedeemed to have accepted all of these Terms and Conditions. Where Buyer specifically objects to any of these Terms and Conditions, no contract shall be formed unless and until EHC agrees in writing to Buyer's proposed modifications to these Terms and Conditions. Buyer's issuance of a purchase order or other document which purports to reject some or all of these Terms and Conditions by virtue of Buyer's standard form language, or otherwise, shall not be sufficient objection. EHC's execution of any document issued by the Buyer shall constitute only an acknowledgement of receipt and shall not be construed as an acceptance of any of the Buyer's terms.

3. Entire Agreement. The Quote, Buyer's purchase order or other form of acceptance, and these Terms and Conditions, including any attachments and/or amendments, constitutes the entire agreement and understanding between EHC and Buyer with respect to the subject matter (the "Agreement") and merges and supersedes all prior discussions, agreements, and understandings of every kind and nature between them. Neither party will be bound by any representation, warranty, covenant, term, or condition other than as stated in this Agreement. This Agreement shall not be deemed to be a sub-agreement or subcontract to any other agreement or contract of either party, and no provisions, clauses, terms, or conditions of any other agreement or contract or either party shall be deemed to be flowed down or incorporated by reference in this Agreement. Except as otherwise provided in this Agreement, these Terms and Conditions may not be modified except in writing signed by authorized representatives of EHC and Buyer.

4. Accuracy of Buyer Instructions. Buyer is responsible for the accuracy and timely input of all instructions to EHC that provide the basis for the Services and for any other instructions provided to EHC. Buyer shall be responsible for the consequences of any instructions given to EHC, provided that EHC has followed such instructions.

5. Compliance with Laws. Each party shall be responsible for compliance with all federal and state legal, regulatory, and licensing requirements applicable to its business. The Services do not include any legal, regulatory, or environmental advice or compliance services, and each party shall rely solely upon its own advisors with respect to any such advice or compliance.

6. Fees and Payment.

   6.1  Fees for Services. Buyer agrees to pay EHC for the Services provided as set forth in the Quote. All fees shall be shown in U.S. Dollars and paid          by Buyer in U.S. Dollars.

   6.2  Scope Changes. EHC may revise the fees as set forth in the Quote may if Buyer's actual  requirements, specifications, volumes, or quantities           vary materially from those  communicated to EHC as of the Effective Date.

   6.3  Payment Terms. Buyer shall pay all invoices within thirty (30) days of the date of invoice by EHC. All amounts due are subject to a late                        payment charge as set forth in the Quote. Ver. June 2021 Buyer shall reimburse EHC for all expenses incurred by EHC in collecting any amounts              past due under this Agreement.

   6.4  Shipment/Delivery Fees. Buyer shall be responsible for the cost of, and the timely payment to third parties necessary for, the packaging,                 shipment, and delivery to and from  EHC's premises of any parts or materials in connection with the Services.

7.  Additional Services. If Buyer requests additional, related services offered by EHC on a commercial basis not included in this Agreement, the parties shall either (i) add such services to this Agreement by written amendment signed by both Parties, or (ii) deem such services to be included in this Agreement and EHC shall provide such services subject to the terms of this Agreement at EHC's then current rates for such service.

8. Warranty

    8.1   Warranties. EHC warrants that (i) it will perform the Services in a good, diligent, and professional manner, utilizing personnel with a level of             skill commensurate with that generally required in the industry for the Services to be performed; and (ii) it will comply with all applicable laws                and regulations affecting the operation of its business, including any applicable licensing requirements and export restrictions.

    8.2  Exclusive Warranty. THE WARRANTY SET FORTH IN THIS SECTION 8 IS THE SOLE  AND EXCLUSIVE WARRANTY GIVEN BY EHC WITH                RESPECT TO THE SERVICES  AND IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER EXPRESS, IMPLIED, OR  STATUTORY, INCLUDING ANY          WARRANTY OF MERCHANTABILITY OR FITNESS  FOR A PARTICULAR PURPOSE, BOTH OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.

    8.3  Limitation of Remedies for Breach of Warranty. In the event of a breach of the limited warranty set forth in this Section 9, Buyer's sole                     remedy, and EHC's sole obligation, is limited to providing additional Services (within the scope of the original Services provided) as necessary to             correct the deficiency in the Services. Such limitation shall apply regardless of whether the claim is characterized as arising out of breach of                     warranty, contract, tort (including, without limitation, fraud, fraudulent misrepresentation, negligence, and/or negligent misrepresentation),                   strict liability, statutory liability, indemnity, contribution, or otherwise.

9. Time for Performance

    9.1  Schedule. Performance of the Services shall be completed in accordance with the schedule specified in the Quote. However, such schedule is        approximate only and shall not constitute any guarantee of performance by the dates specified in the Quote. Time shall NOT be of the essence for        this Agreement.

    9.2  Delay Generally. EHC shall not be responsible to the Buyer or any third party for any damages resulting from any failure or delay in                             performing    the Services due to any cause beyond EHC's reasonable control, including, but not limited to: (i) intervening legal requirements or             governmental directives; (ii) acts of God; (iii) force majeure; (iv) labor disputes; (v) delays caused by EHC's subcontractors, suppliers or vendors;      (vi)       war, terrorism, or similar disruptions; (vii) suspension of performance of the Services under Section 13.1 of this Agreement; and/or (viii) delays caused       by Buyer and/or Buyer's failure to perform its obligations under this Agreement, including (but not limited to) the failure of Buyer to (a) timely                 approve submissions   by  EHC, (b) issue notices to proceed, if applicable, and/or (c) perform any other acts required of the Buyer under this                      Agreement. The time for performance by EHC under this Agreement shall be extended by the length of any such delays, plus such                                      additional time as may reasonably be necessary to re-mobilize and re-commence performance of this Agreement.

10. Ownership of Proprietary Rights. Buyer owns and shall own all rights to Buyer's equipment or parts and information provided to or accessed by EHC in connection with provision of the Services. Any pre-existing equipment, operator's manuals, technical drawings, or procedures used by EHC in connection with its provision of the Services shall at all times remain the exclusive, sole, and absolute property of EHC or the third parties from whom EHC has obtained the right to use such items, and Buyer shall have no interest in same. The related logos, names, etc. are reserved and all rights not expressly granted under this Agreement are reserved by EHC and such third parties. Buyer will not, and will require that its affiliates, vendors, and subcontractors will not, copy, recompile, disassemble, reverse engineer, or make or distribute any other form of or any derivative work from, the Services.

11.  Confidentiality and Nondisclosure

   11.1  Confidential Information. Any and all information that is confidential or proprietary provided by the disclosing party to the receiving party for use in connection with the Services or in connection with any additional services proposed to be provided by EHC ("Confidential Information") shall remain the exclusive and confidential property of the disclosing party. Confidential information includes non-public personal information relating to a party or a party's employees, customers, equipment, parts, products, or services; financial information (including the pricing set forth in the Quote); and all proprietary trade secrets, processes, data, information, or documentation that the disclosing party provides to the receiving party. Confidential Information does not include (i) information the receiving party already knows, (ii) information that becomes generally available to the public, except as a result of disclosure by the receiving party in violation of this Agreement, and (iii) information that becomes known to the receiving party on a non-confidential basis from a source other than the disclosing party.

   11.2  Nondisclosure. The receiving party shall not disclose the Confidential Information of the disclosing party and will use at least the same degree of care, discretion, and diligence in protecting the disclosing party's Confidential Information as it uses with respect to its own Confidential Information. The receiving party will limit access to the Confidential Information to employees with a need to know the Confidential Information and will instruct those employees regarding the confidentiality requirements of this Agreement. The parties hereby acknowledge, however, that EHC may disclose Buyer's Confidential Information on a need-to-know basis to any subcontractor(s) utilized to provide the Services, provided that EHC shall remain liable for any unauthorized disclosure of Buyer's Confidential Information by such subcontractor(s). Notwithstanding the foregoing, the receiving party may disclose Confidential Information (i) to the extent necessary to comply with any law, regulation, rule or court order applicable to it, (ii) as needed to respond to any summons or subpoena or in connection with any litigation, and (iii) to the extent necessary to enforce its rights under this Agreement. Notwithstanding this subsection 10.2, EHC may, with permission of Buyer (such permission not to be unreasonably withheld) use Buyer's information in an aggregated, anonymized format such that Buyer may not be identified, and Buyer shall have no interest or ownership in such aggregated, anonymized data.

12. Limit on Liability

     12.1  Exclusion of Certain Liabilities.

       a.   
In no event shall EHC or EHC's employees, officers, directors, representatives, affiliates, shareholders, owners, and/or agents be liable for direct         damages to Buyer's parts or materials in EHC's possession except for damages arising from EHC's criminal, willful, or reckless conduct in                           connection with its provision of Services under this Agreement.

    b.  In no event shall EHC or EHC's employees, officers, directors, representatives, affiliates, shareholders, owners, and/or agents be liable for consequential, incidental, or punitive damages incurred by Buyer or any third party in connection with any matter arising out of or relating to the Services or this Agreement, or the Ver. June 2021 breach thereof. Such limitations shall apply regardless of whether EHC has been advised or otherwise made aware of the possibility of such damages arising. For purposes of this Section 12.1.b, consequential damages include, but are not limited to: (i) Buyer's lost production, sales, and/or profits; (ii) Buyer's cost of capital; or (iii) any claims of customers of the Buyer against Buyer or EHC.

  12.2  Limitation on Amount. Notwithstanding any other provision of this Agreement, the total liability, in the aggregate, of either party or its                    employees, officers, directors,  representatives, affiliates, shareholders, owners, and agents, to the other party or to any third party for any claims,            losses, damages, or costs arising out of or relating to the Services or this Agreement, or the breach thereof, shall not exceed the total value of the           Quote to be paid to EHC by Buyer under this Agreement.

 12.3  Scope of Limitations. The limitations of liability set forth in this Section 11 shall apply regardless of whether the claim is characterized as arising out of breach of warranty, contract, tort (including, without limitation, fraud, fraudulent misrepresentation, negligence, and/or negligent misrepresentation), strict liability, statutory liability, indemnity, contribution or otherwise.

13. Termination/Suspension

    13.1  Termination or Suspension by EHC for Default by Buyer. EHC may terminate this Agreement if Buyer: (i) becomes insolvent; (ii) is unable to        meet its obligations as they become due or admits such in writing; (iii) enters bankruptcy or has a receiver or trustee appointed for it; and/or (iv) fails      to provide EHC with adequate assurance of due performance or payment within fifteen (15) days of Buyer's receipt from EHC of a written demand        therefor. EHC shall also have the right, but not the obligation, to suspend performance under this Agreement upon the occurrence of any of the            foregoing defaults and to demand cure thereof by the Buyer. In the event that EHC opts to suspend performance and the Buyer thereafter cures          any such default, the time for performance by EHC under this Agreement shall be extended by the length of the suspension plus such additional          time as may reasonably be necessary for EHC to re-mobilize and re-commence performance of this Agreement. The exercise of the right to                      suspend performance upon a default by Buyer shall not be considered an election of remedies or as otherwise restricting EHC's right to terminate        this Agreement at any time upon default by the Buyer.

     13.2 Termination for Convenience of Buyer. Buyer may terminate EHC's provision of Services under this Agreement at any time with written                 notice. If EHC has commenced the Services prior to the notice of termination, EHC shall discontinue performance under this Agreement and revise       the fees to be invoiced as necessary to reflect the scope of Services rendered up to and including the date of the notice of termination.

    13.3 Remedies; Recovery of Damages. The remedies specified in this Section 13 are not exclusive, and EHC shall be entitled to exercise any other          remedies which may be available to EHC under this Agreement or applicable law, including (but not limited to) the recovery of any damages                  incurred by EHC as a result of the default of the Buyer, regardless of whether the default is subsequently cured by Buyer. Such damages include,            but are not limited to, any de-mobilization and re-mobilization costs incurred by EHC.

14. Dispute Resolution

  14.1  Resolution by Mutual Consultation. If any dispute should arise, the party asserting such dispute may give written notice thereof to the other        party. Such notice shall be expressly identified as a "Dispute Notice", and shall describe in reasonable detail the nature of, and factual basis for, the         dispute. The parties shall thereafter consult for the purpose of attempting to amicably resolve the Dispute. 

  14.2  Mediation. If the parties fail to resolve a dispute within sixty (60) days after the Dispute Notice, either party may invoke non-binding mediation      by submitting the dispute to an independent, third-party mediator mutually agreed to by the parties. The mediation shall be conducted in Erie,            Pennsylvania, or such other location as may be agreed upon by the Parties. The mediation shall be conducted in English. The cost of the mediation     shall be divided equally between the parties. The mediation process shall be  confidential, and all information discussed or disclosed in the                   mediation, and all positions asserted, shall be treated as compromise and settlement  negotiations for the purposes of any applicable rules of     evidence. If the parties are unable to resolve the dispute through mediation within one hundred eighty (180) days after the initial issuance of the     Dispute Notice in question or sixty (60) days after the submission of the dispute to a mediator, whichever is the later, either party may commence         litigation to resolve the dispute.

  14.3  Litigation. The parties agree that any dispute which is not otherwise amicably resolved shall be resolved solely in the state and federal courts        sitting in Erie County, Pennsylvania, and each party consents to the exclusive jurisdiction of such courts. The parties covenant and agree that they          shall not commence any litigation or other proceeding with respect to any Dispute in any court or other tribunal, other than the state and federal          courts sitting in Erie County, Pennsylvania. The consent to jurisdiction and choice of venue provisions shall apply regardless of whether the dispute is    characterized as arising in breach of warranty, contract, tort (including, without limitation, fraud, fraudulent misrepresentation, negligence, and/or        negligent misrepresentation), strict liability, statutory liability, indemnity, contribution or otherwise.

15. Miscellaneous.

   15.1  Amendment. Except as otherwise provided in this Agreement, this Agreement may not be modified except in writing signed by authorized           representatives of EHC and Buyer.

   15.2  Assignment. Neither party may assign this Agreement without the express written consent of the other party.

   15.3  Independent Contractor. The performance by EHC of its duties and obligations under this Agreement will be that of an independent                      contractor. Nothing contained in this Agreement will create or imply an agency, joint venture, or partnership between EHC and Buyer. Neither the         employees of EHC nor EHC's subcontractor(s) or suppliers will be considered employees or agents of Buyer.

    15.4  Counterparts. The parties agree that this Agreement may be executed in multiple original copies, identically worded, and that each such              executed copy shall constitute an original.

   Facsimile signatures, or signatures transferred in .pdf or similar format for scanned copies of documents, shall be treated as original signatures for         all  purposes.

    15.5  No Third-Party Beneficiaries. Nothing in this Agreement creates, or will be deemed to create, third-party beneficiaries of or under this                    Agreement.

    15.6  Force Majeure. Either party to this Agreement will be excused from performance under this Agreement for any period of time that the party         is   prevented from performing its obligations under this Agreement due to an act of God, war, earthquake, civil disobedience, court order, or other      cause beyond the Party's reasonable control. Such non-performance shall not constitute grounds for default.

    15.7  Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the Commonwealth of                          Pennsylvania.

    15.8  Waiver and Severability. The failure by either party to this Agreement to insist upon strict performance of any provision of this Agreement            does not constitute a waiver of that provision. If any provision of this Agreement is held by a competent authority to be invalid, illegal, or                            unenforceable, the validity, legality, or enforceability of the remainder of this Agreement will not be in any way affected or impaired.