Loading...
R-2024-148 - 6/13/2024 RESOLUTION NO. R-2024-148 WHEREAS, the City of Round Rock ("City") desires to purchase replacement flocculators for the Water Treatment Plant; and WHEREAS, Section 252.022(4) of the Texas Local Government Code states that expenditures for items available from only one source are exempt from competitive bidding requirements; and WHEREAS, SPX Flow, Inc. is the sole source provider of the goods and services being purchased, as shown in Exhibit"A," and incorporated herein for all purposes; and WHEREAS, the City wishes to issue a purchase order to SPX Flow, Inc. for the purchase of replacement flocculators for the Water Treatment Plant, Now Therefore BE IT RESOLVED BY THE COUNCIL OF THE CITY OF ROUND ROCK,TEXAS, That the City Manager is hereby authorized and directed to issue a purchase order to SPX Flow, Inc. for the purchase of replacement flocculators for the Water Treatment Plant Project. The City Council hereby finds and declares that written notice of the date, hour, place and subject of the meeting at which this Resolution was adopted was posted and that such meeting was open to the public as required by law at all times during which this Resolution and the subject matter hereof were discussed, considered and formally acted upon, all as required by the Open Meetings Act, Chapter 551,Texas Government Code, as amended. RESOLVED this 13th day of June, 2024. Z //# / CRAIG RG ,Mayor City o Round V k, Texas ATTEST: JAA AGAN SP S, C' y Clerk 0112.20242:4874-1783-9299 EXHIBIT City of Round Rock Purchasing --q-� ROUNOROCKTEXA', Justification Form Date: 03/18/2024 Department Utilities & Environmental Services Name: To: Purchasing Requestor Lewis Smith Name: Phone +1 (512) 639-4670 Number: Instructions: Complete this form for all purchases that will exceed $3,000 and will be exempted from competition as prescribed in Texas Local Government Code Chapter 252.022. Attach additional information as needed to support the exemption request. The City declares the competitive bidding procedures in Texas Local Government Code Chapter 252 to be exempt for this procurement. This Justification Form is executed and filed with the Purchasing Division as follows: 1. The undersigned is authorized and certifies that the following exemption is applicable to this purchase. Please check the criteria listed below that applies to this purchase request: 8 Sole Source (check one) Items that are available from only one source because of patents, copyrights, secret process, or natural monopolies. ❑Films, manuscripts, or books. ❑Gas, water, and other utilities. O Captive replacement parts or components for equipment. ❑Books, papers, and other library materials for a public library that are available only from the persons holding the exclusive rights to the materials. ❑ Goods Purchased for Subsequent Retail Sale o A procurement of goods being purchased for subsequent resale by the City. ❑ Public Calamity o A procurement made because of a public calamity that requires the immediate appropriation of money to relieve the necessity of the municipality's residents or to preserve the property of a municipality. ❑ Public Health and Safety o A procurement necessary to preserve or protect the public health or safety of the municipality's residents. ❑ Unforeseen Damage o A procurement necessary because of unforeseen damage to public machinery, equipment, or other property. 1 � ❑ Personal, Professional or Planning Services o A procurement of personal, professional, or planning services ❑ Other o Cite the applicable Texas Local Government Code Chapter 252 exemption in the justification box below. 2. Justification: Describe in detail below Why an exemption according to Section 252.022 of the Local Government Code is being submitted for this purchase. (Attach additional pages if needed) The Water Treatment Plant is requesting to replace 12 flocculators on phase 4 of the plant's treatment process.This project is the second stage of a complete replacement of all flocculators across each phase of the plant.The plant requires conformity across all phases of the plant to streamline inventory, repairs, and shipment. SPX Flow designs and manufacturers all Lightnin products with custom specifications,tolerances, and industry standards.The plant already owns units from SPX and It would not be advantageous for the City to consider another brand of flocculators. 3. Attach and submit the following documentation that supports this justification as applicable. • Vendor's proposal/quote. • If sole source a Manufacturer's letter declaring the purchase is sole source and why. The letter should be no older than 6 months old and signed by an authorized representative on company letterhead. 4. Because the above facts and supporting documentation the City of Round Rock exempts this procurement from LGC Chapter 252 and intends to contract with: Vendor Name: SPX FLOW, INC. Description: PH 4 flocculator replacement 5. Check the purchase type and fill in the dollar amount and purchase term as applicable: ❑ This is a one-time purchase request for$ 285,768.00 ❑ This is a term contract request for (# months) in the amount of$ Purchasing Office/ ��/� 03/19/2024 Management Review: Purchaser/Purchasing Management(over$50,000) Date kL-/17M 03/19/2024 Approved by: Mlcha I Thane(Mar 19,202411:00 CDT) Department Manager, Asst Director, or Director Date 21 SIOXFLOW > le>Ple ty nin nty )Philadelphia HRM Environmental 3118 Media Dr. Cedar Park 178641 1 United States Phone: 512-337-7807 1 Fax: 512-337-7824 Attention: Date: 02/14/2024 City of Round Rock 221 E Main St Round Rock, Texas 78664 United States Project Name: Round Rock WTP Phase 3 Flocculators Quote Number: 278774111 Reference Serial Number(s): Existing Units under PMS 96TCN0450-12 Reference Order Number(s): PMC Order 17529 Proposal Summary Primary Solution Item Size/Description/Scope of Supply Price Qty. Sub Total 1 Li htnin Mixer Model CBQP0.75 $23,814.00 12 $285,768.00 Total (US Dollars) $285,768.00 Note: Minimum value of an order must be $200. Add additional items or the difference will be added. Commercial Terms /Terms of Delivery Note: In the absence of any specifications,we reserve the right to review any additional requirements and amend our offer accordingly Commercial Terms Unless otherwise expressly agreed to in writing by SPX FLOW, this quote and any resulting order shall be governed solely and exclusively by the SPX FLOW Standard Terms and Conditions of Sale attached hereto (and also available at')http://www.spxflow.com/terms-conditions'). SPX FLOW hereby expressly rejects the applicability of any and all terms and conditions of Buyer. Available to Ship In: 28 Weeks after receipt of order Delivery Terms*: FOB Destination Freight Terms: Freight Allowed Terms of Payment: Milestone Payment Terms Quote Expiration Date: 04/11/2024 Estimated lead times quoted are based on current production capacity, are subject to stock materials remaining unsold and will be calculated from receipt of clear and actionable order(approval time-if any- is excluded) Tariffs The quoted price has been based on the cost of materials and components("Materials")at the date of this proposal. If, due to the imposition of any tariffs (regardless of the country imposing said tariffs), the cost to SPX FLOW of performing its obligations under any Order arising from this proposal increases between the date of this proposal and the date of Order,the quoted price shall be increased. Such increase shall be determined by SPX FLOW taking into account the applicable tariff imposed on Material(s)as at the date of the Order. Quotation Number:278774111 Customer Reference Number: 1190079 Page 1 of 7 Revision Number:0 Project Name: Round Rock WTP Phase 3 Flocculators Date:01/12/2024 SFOXFLOW >Ple t > ley nin nty >Philadelphia Taxes SPX FLOW prices do not include any customs duties, sales, use, excise, retailer's occupation or other similar taxes payable by reason of this transaction. Buyer is responsible for the payment of any such applicable taxes, which shall be charged by Seller unless Buyer provides SPX FLOW with appropriate Tax Exemption Certificate. Note Any Order placed on the basis of this proposal is subject to SPX FLOW's written Order confirmation, and SPX FLOW shall be under no obligation to accept an Order for whatever reason. In addition to the application of any of the terms and conditions contained or referenced in this proposal SPX FLOW may request some form of security for payment. This proposal is provided for the sole benefit of the Buyer as indicated on the cover page as recipient of this proposal, and contains information proprietary to and/or considered confidential by SPX FLOW. This proposal and all related documentation supplied by SPX FLOW, and their respective contents, including, but not limited to, prices and technical details, may not be disclosed to any third party without SPX FLOW's prior written consent. Supply Chain and Operational Disruptions Due to prevailing market conditions, it is difficult for SPX FLOW and its sub-suppliers to ascertain cost and delivery time with certainty.As such, all prices and dates for execution/delivery are quoted by SPX FLOW based on the costs and availability of materials and labor at the date of quotation. If the actual cost to SPX FLOW of executing the order increases by more than 5% between the date of the quotation and the date of completion of the order, such increase shall be added to the price of the order. SPX FLOW may also demonstrate such increase by applying a price index chosen by SPX FLOW in good faith and applied to all or part of the price. Further, SPX FLOW shall not be responsible for any delays beyond its reasonable control due to a shortage/lack of availability of materials (including increased lead times by its sub-suppliers), staff shortages or transportation disruptions. Supplemental Terms and Conditions The following terms and conditions supplement SPX FLOW's Standard Terms and Conditions of Sale (2 Nov. 2017) for all orders for Lightnin, Philadelphia, Plenty, Stelzer, and Uutechnic branded products. To the extent there is any conflict between the following terms and SPX FLOW's Standard Terms and Conditions of Sale, the following terms shall govern. - All orders over one hundred thousand dollars ($100,000 USD)or the local currency equivalent shall be subject to the following milestone invoicing terms: (1) twenty percent(20%)at the time of order acceptance; (2)forty percent(40%) upon the later of: (a)sixty(60)business days after order acceptance; or (b)for orders having approval drawings, ten (10)business days after acceptance of approval drawings; and (3)forty percent (40%) upon shipment. - After order acceptance, any change to the scope of a quotation or to the design of a product or part thereof may be subject to a change order. The change order will be quoted to the Buyer within ten (10) business days of receipt of the change request. - Acceptance of approval drawings, if applicable, shall occur within twenty(20)business days of drawing issuance or in accordance with the schedule set forth in SPX FLOW's order acceptance. If acceptance of approval drawings does not occur within the specified period, SPX FLOW may: (i)extend the shipment date by an amount of time determined in SPX FLOW's sole discretion; and/or(ii) requote the order. - Any extension of the shipment schedule caused by the Buyer, including, but not limited to, failure to arrange transport or not providing a confirmed delivery location, will be subject to a storage charge to be determined in SPX FLOW's sole discretion and quoted to the Buyer at least ten (10) business days prior to taking effect. Quotation Number:278774111 Customer Reference Number: 1190079 Page 2 of 7 Revision Number:0 Project Name: Round Rock WTP Phase 3 Flocculators Date:01/12/2024 SPXFLOW )Ple>Ple ty nty >Philadelphia Primary Solutions Process Summary Information 1, Lightnin Mixer Model CBQP0.75 Vessel Dimensions and Shape Tank Type: Rectangular Nozzle/Beam Height: 24 in Tank Dimensions(W X L): 132 X 132 in Nozzle to Mounting Location: 0 in Straight Side: 192 in Overall Height: 216 in Tank Top Shape: Open Tank Bottom Shape: Flat Baffles Number of Baffles: 4 Baffle Width: 12.41 in Off Wall: 4.14 in Baffle Length: 192 in Process Information Market: Water Wastewater Application: Flocculation- Treatment Wastewater Treatment Operating Temperature: 68°F Design Liquid Level: 180 in Operating Pressure: 0 lbs/in'(g) Mixed Volume: 13,600 gal Fluids Design Process Viscosity: 1 cP Design Specific Gravity: 1 Solids Design Particle Size: 0 cP Solids Specific Gravity: 0 Slurry SG: 1 Solution 739335 Q 061.00 A51 OE-22 60.00 Off Bottom Dimensions in Inches 12.00 FB 156.00 FMB 216.00 OAH 180.00 ILL 192.00 601.00 L �'� 132.00--moi Quotation Number:278774111 Customer Reference Number: 1190079 Page 3 of 7 Revision Number:0 Project Name:Round Rock WTP Phase 3 Flocculators Date:01/12/2024 SIOXFLOW )Piety nin >Plenty )Philadelphia Product Details Item Size/Descri tion/Sco a of Supply Price Qt Sub Total 1 1 Li htnin Mixer Model CBQP0.75 1 $23,814.001 12 1 $285,768.00 MOTOR/DRIVE SPECIFICATIONS Motor Power 1.0 HP Motor Type C-Face Motor Specification Level 2 Motor Frame Type NEMA Number of Poles 4 Pole Nominal Input Speed RPM 1800.0 RPM Motor Frequency 60.0 Hz Motor Voltage 230/460 V Motor Manufacturer Li htnin Choice Motor Frame Size 143TC Motor Duty Severe Duty Motor Efficiency Premium Efficiency Enclosure TEFC Inverter Duty Yes Service Factor 1.15 Furnished By Li htnin Mounted By Li htnin Motor Mounting Motor Pedestal High Speed Coupling Li htnin Standard MACHINE/SEALING SPECIFICATIONS Gear Reduction Ratio 63.1 Gearbox Reduction Triple Q Mounting Option No Base Plate Pedestal Mount Yes Nominal Operating Speed RPM 30.0 RPM Operating Speed Constant SHAFT SPECIFICATIONS Shaft Diameter 2.0 inches Shaft Diameter 2.0 inches Shaft Length FMB 156.0 inches Wetted Parts Material 316ss Shaft Rotation Clockwise IMPELLER SPECIFICATIONS Impeller Quantity 1.0 Impeller 1 Lower, 61.0 inches A51 OE with 22 degree Tip Chord Angle with Stabilizer Impeller 1 Attachment Welded to Shaft OTHER DATA Area Classification Safe Area End User Language English CE Certified Yes Paint Default Drawing(s) L-18899, L-18893, DSE-1669 Quotation Number:278774111 Customer Reference Number: 1190079 Page 4 of 7 Revision Number:0 Project Name: Round Rock WTP Phase 3 Flocculators Date:01/12/2024 nin SPXFLOW >Pl>Lightenty >Philadelphia LIGHTNIN COMPACT SERIES MIXER Gearbox Casing The Compact Series is a simplified parallel shaft design construction. The gearbox is designed and built by Lightnin. The cast ductile iron gear housing has been optimised for maximum strength and stiffness with minimum weight. By design the Compact series has a reduced foot print for equal torque capacity of our other gearboxes. This reduced foot print makes the unit easier to install and reduces the weight on your support structure. The design accommodates either a double or triple reduction without changing the gearbox housing. Reduced weight and loads can help you save money ti on you support infrastructure. Gears The gearbox is designed in accordance with the latest AGMA standards. The use of precision ground, case carburised, and helical gears produces a quiet, efficient and reliable gearbox. One of our innovations in this area reduces the gear deflection,this reduces the wear on the gears and helps True Dry Well construction is critically important in the reduce noise and provide smooth running. water industry and other industries were the operator wants to ensure that gearbox lubrication cannot seep Bearings past shaft seals into the drinking water or other All bearings in the gearbox have a L10 life greater than products. 30,000 hours. The output shaft bearings exceed this under continuous full load conditions. This ensures Motor maximum durability and a long service life between Motors meet global requirements for motor efficiency overhauls to minimise downtime for maintenance and are flange mounted to ensure consistent alignment purposes. with the flexible high speed coupling. Lubrication Guards Splash lubrication of all internal parts provides efficient, When provided the openings of pedestals are guarded trouble free operation without the need for additional with metal mesh guards that enable inspection while the pumps and piping or greasing of bearings. The machine is in operation. temperature rise of the gearbox lubrication is also very low, this helps increase lubricant life. Mounting Options The Compact series is available for open tank, lip seals The oversized oil fill port makes oil changes easy; and and mechanical sealing options. there is a visible oil fill marking in the gearbox, so a dipstick is not needed—you can select a dipstick if you Legislative Requirements desire one. You don't need to re-grease bearings with Local Legislation requirements can be met using the our design; Compact Series; it is designed for global use. The equipment is designed for OSHA, CE including ATEX, True Dry Well and global Efficiency standards for motors. The Compact Series has a True Dry Well—that is to say a dry well that is cast integrally into the gearbox, and is not an optional component that has an o'ring seal at the In line With our policy of continued product development unit base as is offered in some gearboxes. specifications are subject to change without notice. Quotation Number:278774111 Customer Reference Number: 1190079 Page 5 of 7 Revision Number:0 Project Name: Round Rock WTP Phase 3 Flocculators Date:01/12/2024 S P X F L O W STANDARD TERMS AND CONDITIONS OF SALE These Terms and Conditions of Sale("Terms")shall govern all quotations,orders and more than thirty(30)days beyond expiry of the warranty period.SPX FLOW retains all contracts for the sale of goods and services of SPX FLOW to Buyer. These Terms remedies for Buyer's insolvency including,but not limited to,the right to stop delivery, supersede and exclude any prior written or oral agreement, understanding, reclaim any goods delivered,or withhold delivery except for cash.Failure to pay invoices representation or promise, and any pre-printed or standard terms and conditions at maturity date,at SPX FLOW's election,makes all subsequent invoices immediately contained in Buyer's request for quote, purchase order, invoice, order due and payable and SPX FLOW may withhold all subsequent deliveries until the full acknowledgement, contract or other similar document. These Terms may not be account is settled and SPX FLOW shall not,in such event,be liable for non-performance amended,supplemented,changed or modified except by concurrent or subsequent of contract in whole or in part.Buyer agrees to pay,without formal notice,one and one- written agreement,signed by an authorized representative of SPX FLOW and Buyer.SPX half percent(1.5%)per month of the amount not paid when due,or,if such rate is in FLOW's acknowledgement of Buyer's order shall not constitute acceptance of any terms excess of applicable governing law,Buyer agrees to pay the maximum permitted rate. and conditions contained therein,regardless of how such terms and conditions may be No deduction,whether by way of set-off,counterclaim or otherwise,shall be made by prefaced or described. Buyer. If prerequisites for any payment (such as delivery, completion or formal acceptance)cannot be satisfied due to Buyer's breach,such payment shall nevertheless 1. DEFINITIONS: "SPX FLOW"means the SPX FLOW,Inc.entity named in the order become due and payable at the time agreed to and SPX FLOW's further right to seek which is providing the goods and/or services. "Buyer" means the company who damages shall remain unaffected. accepted SPX FLOW's offer or is named in the order. 7. CANCELLATIONS AND CHANGES:All orders are binding upon acceptance. In the 2. PRICES:Unless otherwise mutually agreed to in writing,prices are net,Free Carrier event that SPX FLOW,in its sole discretion,agrees to cancellation of an order by Buyer, (INCOTERM 2010)SPX FLOW facility.Stenographic,clerical and mathematical errors are Buyer shall be liable for a cancellation charge equal to the greater of(i)twenty-five subject to correction.Prices are exclusive of expenses related to special packaging or percent(25%)of the purchase price and(ii)any loss or cost incurred by SPX FLOW, procedures to cover unique circumstances of shipment or storage unless specifically including,but not limited to,cost of materials,labor,engineering,reconditioning and a noted.Until acceptance of order on these Terms,quoted prices are subject to change. reasonable profit margin.Buyer is responsible for all reasonable storage,insurance,and all other expenses incurred by SPX FLOW as a result of Buyer's cancellations and/or 3. DELIVERY AND PERFORMANCE:Unless otherwise specifically agreed in writing by changes.No changes to the specification or the order are accepted without the prior the partes,all goods shall be delivered Free Carrier(INCOTERM 2010)SPX FLOW facility. written consent of both parties.In the event Buyer requests a change,SPX FLOW will Title shall pass to the Buyer upon delivery,or upon payment in full,whatever is later, provide a quotation to Buyer within a reasonable time of no less than ten(10)working provided that the only rights that SPX FLOW retains in relation to title are those enabling days detailing the corresponding change in delivery,price,materials,and similar.SPX recovery of the goods in the event of Buyer's default on payment. Dates for the FLOW shall not be obligated to implement the requested change until the quotation is furnishing of services and/or delivery or shipment of goods are approximate only and agreed by the parties. are subject to change,and SPX FLOW shall use commercially reasonable efforts to meet such dates; provided, however, that SPX FLOW shall not be liable in damages or 8. LIMITED WARRANTY:Unless otherwise mutually agreed to in writing,(a)SPX FLOW otherwise,nor shall Buyer be relieved of its performance hereunder,because of SPX goods, auxiliaries and parts thereof are warranted to the Buyer against defective FLOW's failure to meet them.If liquidated damages or a penalty have been agreed for workmanship and material for a period of twelve(12)months from date of installation delay,such liquidated damages or penalty shall only become due if the delay is solely or eighteen(18)months from date of delivery,whichever expires first,and(b)SPX FLOW due to the fault of SPX FLOW,the Buyer suffers damage due to this delay,and the Buyer services are warranted to Buyer to have been performed in a workmanlike manner for has notified SPX FLOW in writing afterthe expiry of the time during which delivery could a period of ninety(90)days from the date of performance.If the goods or services do have been reasonably expected. Unless specifically agreed otherwise, it shall be not conform to the warranty stated above,then as Buyer's sole remedy,SPX FLOW shall, calculated based on the value of the delayed part of the delivery,and the aggregate at SPX FLOW's option, either repair or replace the defective goods or re-perform liability of SPX FLOW for all liquidated damages/penalties shall be limited to 5%of the defective services.If Buyer makes a warranty claim to SPX FLOW and no actual defect is total order value.Such liquidated damages/penalty shall be the Buyer's sole remedy subsequently found,Buyer shall reimburse SPX FLOW for all reasonable costs which SPX and SPX FLOW's sole liability in case of delay.For the avoidance of doubt,if the order is FLOW incurs in connection with the alleged defect.Third party goods furnished by SPX subject to the laws of the Netherlands,"liquidated damages"or"penalty"shall mean a FLOW will be repaired or replaced as Buyer's sole remedy, but only to the extent contractual penaltywhich is meant to be a compensation for damages.Additionally,SPX provided in and honored by the original manufacturer's warranty. Unless otherwise FLOW shall not be liable,directly or indirectly,for any delay in or failure to perform agreed to in writing,SPX FLOW shall not be liable for breach of warranty or otherwise caused by carriers or suppliers;labor difficulties,shortages,strikes or stoppages of any in any manner whatsoever for: (i)normal wear and tear; (ii)corrosion,abrasion or sort;difficulty in obtaining materials; Buyer requested order changes; fires, floods, erosion; (iii)any good or services which,following delivery or performance by SPX storms, accidents, or acts of God; any statute, sanction, injunction or other FLOW, has been subjected to accident, abuse, misapplication, improper repair, governmental restraint or prohibition or political unrest;or other causes beyond SPX alteration(including modifications or repairs by Buyer,the end customer or third parties FLOW's reasonable control.In the event of any such delay,the date of delivery shall be other than SPX FLOW), improper installation or maintenance, neglect, or excessive extended for a length of time at least equal to the period of the delay.All goods for operating conditions; (iv)defects resulting from Buyer's specifications or designs or which SPX FLOW does not receive notice of rejection for within seven(7)days after those of Buyer's contractors or subcontractors other than SPX FLOW;or(v)defects receipt,will be deemed accepted. resulting from the manufacture,distribution,promotion or sale of Buyer's products;(vi) damage resulting from the combination,operation or use with equipment,products, 4. SHORTAGE,DAMAGE,ERRORS IN SHIPMENT:SPX FLOW's responsibility ceases upon hardware, software, firmware,systems or data not provided by SPX FLOW, if such making the goods available for pickup at SPX FLOW's facility.Buyer shall note receipt for damage or harm would have been avoided in the absence of such combination, goods that are not in accordance with bill of lading or express receipt and Buyer shall operation or use;or(vii)Buyer's use of the goods in any manner inconsistent with SPX make claim against such carrier for any shortage, damage or discrepancy in the FLOW's written materials regarding the use of such product.In addition,the foregoing shipment promptly.Partial and transshipments are allowed. warranty shall not include any labor, dismantling, re-installation, transportation or access costs,or other expense associated with the repair or replacement of SPX FLOW S. TAXES:The quotation and order price excludes all assessments,taxes,levies and goods. THE WARRANTIES CONTAINED HEREIN ARE THE SOLE AND EXCLUSIVE charges of whatsoever nature present or future,due or becoming due.This exemption WARRANTIES AVAILABLE TO BUYER AND SPX FLOW HEREBY DISCLAIMS ANY OTHER shall include but not be limited to value added tax,income tax,withholding tax,profits WARRANTIES,EXPRESS OR IMPLIED,INCLUDING WITHOUT LIMITATION THE IMPLIED tax,turnover tax,goods and services tax and any other consumption or environmental WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE,ANY taxes applicable,tax payable on the income of expatriate employees,port dues,import PERFORMANCE OR PROCESS OUTCOME DESIRED BY THE BUYER AND NOT SPECIFICALLY and custom duties on the components and services and all export duties payable on the AGREED TO BY SPX FLOW. THE FOREGOING REPAIR, REPLACEMENT AND repatriation of any SPX FLOW components at the end of an order,where applicable.On REPERFORMANCE OBLIGATIONS STATE SPX FLOW'S ENTIRE AND EXCLUSIVE LIABILITY the basis that an order is tax exclusive SPX FLOW reserve the right to invoice by way of AND BUYER'S EXCLUSIVE REMEDY FOR ANY CLAIM IN CONNECTION WITH THE SALE AND an addition to such order price,such taxes as may be applicable under the relevant FURNISHING OF SERVICES,GOODS OR PARTS,THEIR DESIGN,SUITABILITY FOR USE, jurisdiction's tax regulations,together with SPX FLOW's external costs of dealing with INSTALLATION OR OPERATIONS. these taxes. 9. INTELLECTUAL PROPERTY:In the event of a successful infringement claim by a third 6. CREDIT AND PAYMENT:Unless otherwise agreed in writing by SPX FLOW,payment party,at SPX FLOW's option,SPX FLOW shall either(i)modify the goods sold hereunder of goods shall be net thirty(30)days,in the currency of the country of SPX FLOW.For so that they perform comparable functions without infringement,(ii)obtain a royalty- orders in excess of two hundred and fifty thousand dollars($250,000 USD)or the local free license for Buyer to continue using the infringing goods or(iii)refund to Buyer the equivalent payment terms shall be as follows:(a)twenty percent(20%)down payment, then-depreciated fair market value of the infringing component.SPX FLOW shall have (b)forty percent(40%)upon SPX FLOW's purchase of raw materials/components,and no obligation under this Article to the extent a claim is based upon(a)the combination, (c)forty percent(40%)at the time of delivery.Down payment shall be due within five operation or use of the goods with equipment,products,hardware,software,systems (5)of SPX FLOW's acceptance of the order,with the remaining two payments being net or data that was not provided by SPX FLOW,if such infringement would have been thirty(30)days.Prorated payments shall become due with partial shipments,and Buyer avoided in the absence of such combination,operation or use,or(b)Buyer's use of the shall not be entitled to any retention or holdback; provided, however, if SPX FLOW product in any manner inconsistent with SPX FLOW's written materials regarding the agrees in writing to a retention or holdback,SPX FLOW may provide such retention or use of such product or(c)infringement resulting from Buyer's specifications or designs holdback in the form of a bond,letter of credit or bank guarantee in no event to extend or those of Buyer's contractors or subcontractors other than SPX FLOW.This Section (Rev.2 Nov.2017) 6 Sl=X F L O W STANDARD TERMS AND CONDITIONS OF SALE states SPX FLOW's entire liability and Buyer's exclusive remedy with respect to any proceeding and award.Notwithstanding any other limitations contained in these Terms, actual or alleged infringement arising from the use of the goods or services sold SPX FLOW reserves the right to initiate proceedings in any court of competent hereunder or any part thereof and is subject to the other limitations contained in these jurisdiction, and Buyer shall indemnify SPX FLOW for all costs, fees and expenses Terms. (including reasonable attorneys'fees)SPX FLOW incurs in connection with enforcing its rights pursuant to this order. 10. LIMITATION OF LIABILITY:NOTWITHSTANDING ANYTHING TO THE CONTRARY SET FORTH HEREIN:(A)IN NO EVENT SHALL SPX FLOW BE LIABLE FOR ANY EXEMPLARY, 14. RESALE:Buyer further agrees that upon resale of the goods,it will include in the PUNITIVE, INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES contract for resale provisions which limit recoveries against SPX FLOW in accordance WHATSOEVER(COLLECTIVELY DEFINED AS"CONSEQUENTIAL DAMAGES"),WHETHER with these Terms.If Buyer fails to include such provisions in any such contract for resale, FORESEEABLE OR NOT,INCLUDING WITHOUT LIMITATION,THIRD PARTY CHARGES AND (a)SPX FLOW may reject Buyer's order related to such contract for resale,and(b)Buyer COSTS, LOST PROFITS (WHETHER DIRECT OR INDIRECT), PRODUCT, PRODUCTION, shall indemnify,defend and hold harmless SPX FLOW against any claim,liability,loss, BUSINESS OR BUSINESS OPPORTUNITY, REGARDLESS OF THE CAUSE, INCLUDING cost, damage, or expense (including reasonable attorneys' fees) arising out of or WITHOUT LIMITATION,THE NEGLIGENT ACTS OR OMISSIONS,BREACH OF CONTRACT, resulting from such failure. WARRANTY(EXPRESS OR IMPLIED)OR DUTY(STATUTORY OR OTHERWISE)OR STRICT LIABILITY OF SPX FLOW GROUP OR ANY OTHER THEORY OF LEGAL LIABILITY;AND(B) 15. BUYER CAUSED DELAYS;WAIVER OF RIGHTS:If Buyer fails to perform any of its SPX FLOW'S AGGREGATE LIABILITY ARISING FROM OR IN CONNECTION WITH ALL obligations under an order,SPX FLOW shall be entitled to suspend its performance ORDERS AND CONTRACTS FOR GOODS AND SERVICES UNDER THESE TERMS SHALL under the order until such time as Buyer performs such obligations,and any dates for (SAVE FOR LIABILITIES WHICH CANNOT BE LIMITED BY APPLICATION OF LAW) NOT the delivery of goods or performance of services shall be extended for an amount of EXCEED THE CONTRACT PRICE FOR THE GOODSAND/OR SERVICES FOR WHICH LIABILITY time determined in SPX FLOW's discretion. IS CLAIMED.ANY ACTION FOR BREACH OF CONTRACT BY BUYER MUST BE COMMENCED WITHIN 30 DAYS OF THE EXPIRY OF THE WARRANTY PERIOD.BUYER SHALL BE SOLELY Delays caused by Buyer which prevent SPX FLOW from achieving the original order RESPONSIBLE FOR ANY AND ALL AGREEMENTS MADE WITH THIRD PARTIES THAT ARE performance requirements includes but is not limited to: (a) the construction of OUTSIDE THE SCOPE OF THESE TERMS AND WHICH ARE CONTRARYTO THE LIMITATIONS buildings,structures or other parts of the site within which SPX FLOW's goods are to be OF LIABILITY AND/OR WARRANTY INCLUDED HEREIN. located; (b) changes in scope of an order introduced by Buyer; (c) completion of approvals, consents or delivery of critical information by Buyer beyond the periods 11. GOODS FOR EXPORT:Buyer acknowledges that the goods may be subject to export provided in an order;(d)any specified site facilities and working conditions not being restrictions,and that Buyer will comply with all such applicable laws and regulations.If maintained by Buyer;(e)failure of Buyer to arrange carriage of the goods under an the goods are intended for export,Buyer shall designate country of destination on its order,where Buyer has such obligation,or any other inability or refusal of Buyer to order. In the event that Buyer purchases goods for export without so notifying SPX accept delivery in accordance with order delivery dates;(f)delays in obtaining customs FLOW,SPX FLOW reserves the right to cancel the order at no penalty or liability for clearance(where applicable)of the order deliveries;and(g)delay by Buyer in providing breach in the event that SPX FLOW objects to the ultimate destination of the goods. any required security to SPX FLOW in the form of a letter of credit,bank guarantee or Buyer will have sole liability and shall defend,indemnify and release SPX FLOW for any otherwise.In the event of such Buyer delays,SPX FLOW shall in addition to an extension loss or damage(including without limitation,claims ofgovernmental authorities)arising of remaining milestones,be entitled to an increase in the total order price to reflect the from the export or import of such goods,including,without limitation,those related to increase in cost to SPX FLOW directly caused by Buyer delays.Additionally,SPX FLOW packaging,labeling,marking,warranty,contents,use,or documentation of the goods. shall be entitled to submit invoices for any order milestone for which completion has Buyer has sole responsibility for obtaining any required export licenses.Buyer will not been frustrated due to Buyer delays.Such invoices shall be paid within 30 days of the take,and will not solicit SPX FLOW to take,any action which would violate any anti- date of SPX FLOW's invoice. boycott or any export or import statutes or regulations applicable to the order,of any governmental authorities,and shall defend,indemnify,and reimburse SPX FLOW for any Any engineering,technical or other submittal drawings submitted by SPX FLOW to Buyer loss or damage arising out of or related to such actions.To the extent SPX FLOW is which are not expressly rejected in writing within ten(10)business days of Buyer's required to obtain an export license for any goods:(1)SPX FLOW obligation to fulfill an receipt,will be deemed accepted by Buyer.Buyer's right to conduct any agreed upon order with goods requiring such a license will be directly subject to the granting of the pre-shipment inspections(i)which Buyer does not schedule within ten(10)business license;(2)SPX FLOW will use commercially reasonable effort to obtain such license;(3) days of receipt of notice of readiness to inspect from SPX FLOW or(ii)which Buyer Buyer shall make available all necessary information and documentation required for delays for more than ten(10)business days from the date originally scheduled,will be SPX FLOW to obtain such license; and (4) Buyer shall reimburse SPX FLOW for its waived,so long as SPX FLOW certifies in writing that the goods successfully passed SPX reasonable expenses incurred in connection with obtaining such license. FLOW's standard pre-shipment inspection.Where Buyer delays taking shipment of any goods or otherwise fails to engage or otherwise dispatch a freight forwarder or transit 12. PROPRIETARY INFORMATION:SPX FLOW shall retain title to all engineering and company within ten(10)business days of notification that the goods are ready to ship, production prints,drawings,technical data,and other intellectual property,information SPX FLOW shall be entitled to change the delivery term to Ex Works(INCOTERM 2010) and documents that relate to the goods or services sold to Buyer.All such information SPX FLOW facility. and documents disclosed or delivered by SPX FLOW to Buyer:(i)are to be deemed proprietary to SPX FLOW;(ii)shall not be disclosed to any third party for any reason 16. NO OTHER CONTRACT PROVISIONS;OTHER:No dealer,broker,branch manager, without the express prior written consent of SPX FLOW;and(iii)shall be used by Buyer agent,employee or representative of SPX FLOW has any power or authority except to solely for the purpose of inspection,installation,use and maintenance of the goods and take orders for SPX FLOW goods or services and to submit the same to SPX FLOW for services sold to Buyer under these Terms. SPX FLOW's approval and acceptance on the terms herein or rejection.There are no representations,agreements,obligations,orconditions,expressed or implied,statutory 13. APPLICABLE LAW;VENUE;DISPUTE RESOLUTION:For sales of goods sold or to be or otherwise,relating to the subject matter hereof,other than contained herein.For the delivered or services to be performed within the United States:The rights and duties of avoidance of doubt and not in limitation of the foregoing,SPX FLOW shall not be bound the parties hereunder shall be governed by the laws of the State of North Carolina, by the terms of any contract between Buyer and any third party or other flow down United States of America,excluding its conflicts law and choice of laws principles.Any provisions,regardless of whether Buyer notifies SPX FLOW of such terms unless SPX action or proceeding with respect to any dispute or controversy involving or arising out FLOW expressly agrees to be bound by such terms in writing by an authorized of this order,at SPX FLOW's sole discretion,(i)shall be brought in any State court in representative of SPX FLOW.If any provision hereof is invalid or not enforceable under Mecklenburg County,North Carolina or the Federal courts of the Western District of applicable law,the remaining provisions shall remain in full force and effect. North Carolina,United States of America,and Buyer and SPX FLOW submit to and accept generally and unconditionally the jurisdiction of those courts with respect to such SPX FLOW reserves the right to transfer or assign its obligations, rights and party's person and property,or(ii)shall be settled by arbitration administered by the responsibilities hereunder,so long as such successor or assign agrees to these Terms. American Arbitration Association in accordance with its Commercial Rules,which award Any assignment of Buyer's rights hereunder without SPX FLOW's consent(which shall shall be final and binding on the parties and may be entered and enforced in any court not be unreasonably withheld)shall be void. SPX FLOW's failure to require Buyer's having jurisdiction.Buyer and SPX FLOW hereby irrevocably waive any objection to the performance of any of these Terms shall not serve as a waiver of or diminish SPX FLOW's laying of venue of any action or proceeding in the above-described courts.For sales of rights to require strict performance of these Terms. goods sold or to be delivered or services to be performed outside of the United States: The rights and duties of the partes hereunder shall be governed by and construed in accordance with the law of the jurisdiction of the SPX FLOW entity providing the goods or services for this order. The United Nations Convention on Contracts for the International Sale of Goods and the conflict rules of international private law shall not apply.Any action or proceeding with respect to any dispute or controversy involving or arising out of this order, at SPX FLOW's sole discretion, (i)shall be brought in any competent court of the jurisdiction in which the SPX FLOW entity providing the goods or services is located,or(ii)shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with said Rules,with English serving as the language of the arbitration (Rev.2 Nov.2017) 7