Standard Terms and Conditions
CUSTOMER ORDER ACCEPTANCE
All orders are subject to acceptance by Pentair Aquatic Eco-Systems Inc. or Pentair Aquatic Eco-Systems (Canada) Inc., as the case may be (each, “PAES” or “Seller”) and are not accepted by or binding upon PAES unless a signed notice of such acceptance is forwarded to the Buyer in writing or upon fulfillment of the order by PAES. The terms and conditions of sale are only those stated herein, which with the information contained in the face of the quote or acknowledgment shall constitute the complete agreement between the parties and may not be altered or modified except in writing duly executed by each party. The parties agree there are no agreements, representations or warranties between the parties, oral or written, with respect to the products sold hereunder (including any made or implied from past dealings) except as expressed herein. No terms and conditions stated in or attached to Buyer’s communications to PAES, including but not limited to Buyer’s purchase orders the terms of which are hereby rejected, are applicable to these terms and conditions in any way and in no event shall such Buyer’s or any other terms and conditions be considered valid exceptions to the provisions of these terms and conditions. Trade custom, trade usage and past performance are superseded by these terms and conditions and shall not be used to interpret these terms and conditions.
GOVERNING LAW; SOLE JURISDICTION AND VENUE
These terms and conditions and any quote, order or agreement subject to these terms and conditions shall be interpreted in accordance with the commonly understood meaning of the words and phrases hereof in the United States of America. These terms and conditions and any quote, order or other agreement subject to these terms and conditions and the performance of the parties hereto, shall be construed and governed according to the laws of the State of Florida, without regard to conflicts of laws principles. The parties hereby irrevocably consent to jurisdiction in, and to the service of process, pleadings and notices in accordance with, the laws of the State of Florida and the federal laws of the United States of America in connection with any and all actions and processes initiated in courts situated in Orange County, State of Florida, U.S.A. It is the express intent and agreement of the parties that the United Nations Convention for the International Sale of Goods shall not apply to this agreement or to purchase orders submitted hereunder. Each party hereby irrevocably waives any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding relating to these terms and conditions and any quote, order or other agreement subject to these terms and conditions in the state or federal courts situated in Orange County, State of Florida in the United States of America, and further irrevocably waives any claim that Orange County, State of Florida in the United States of America is not a convenient forum for any such suit, action or proceeding.
LIMITATION OF LIABILITY
PAES SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF PAES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WITH RESPECT TO THIS AGREEMENT OR ANY OTHER MATTER RELATING TO THE PRODUCTS OR SERVICES.
IN NO EVENT SHALL PAES’ MAXIMUM AGGREGATE LIABILITY EXCEED THE TOTAL FEES PAID BY BUYER TO PAES WITH RESPECT TO THE SPECIFIC QUOTE, ORDER OR AGREEMENT TO WHICH THESE TERMS AND CONDITIONS APPLY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE OR EXTEND THE LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES IN CERTAIN CIRCUMSTANCES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO BUYER.
PAES warrants that upon completion of the services or at the time of delivery, as the case may be, and for a period of twelve (12) months thereafter: (i) professional services, if any, will be performed in a good and workmanlike manner in accordance with generally acceptable industry standards, and (ii) products specifically manufactured by PAES, except for filters, chemicals and consumables (which shall not be warranted) shall be free from all material defects in materials and workmanship. With respect to the professional services warranty, Buyer’s sole and exclusive remedy for PAES’ breach of the warranty shall be for PAES to re-perform the services at PAES’ sole cost and expense. With respect to the PAES manufactured product warranty, if the PAES manufactured product shall prove to be defective in material or workmanship under normal intended usage and maintenance during the warranty period, upon examination by PAES or its authorized representative, then PAES shall repair or replace, at its sole option, such defective products at its own expense; provided, however, that the Purchaser shall be required to ship each such defective product, freight prepaid, to PAES’ designated facility. The warranty on products and/or components not manufactured by PAES is limited to the warranty, if any, provided by the original manufacturer of said product or component which can be passed onto Buyer. PAES DISCLAIMS ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTIBILITY AND FITNESS FOR A PARTICULIAR PURPOSE.
This Warranty does not extend to any products that have been subjected to:
1. Damage caused by careless handling, improper repackaging, or shipping.
2. Damage due to misapplication, misuse, abuse or failure to properly operate the product.
3. Damage caused by improper installation or storage.
4. Damage due to unauthorized product modifications or repairs.
5. Damage caused by negligence, or failure to properly maintain products.
6. Accidental damage, fire, acts of God, or other circumstances outside the control of PAES.
In the event Buyer desires to have Seller perform a non-warranty repair of equipment sold by Seller, Buyer shall contact Seller’s customer service representative at 877 347 4783. If Seller is capable of performing such non-warranty repair of the equipment and Buyer decides to move forward with having Seller perform such repair, Seller will generate a return number which Buyer shall reference in its shipment to Seller of the equipment for evaluation by Seller. Buyer is solely responsible for any and all costs and expenses, customs fees, duties and taxes associated with shipping the equipment for evaluation. Buyer will be charged an up-front evaluation fee in order for Seller to assess the extent and ability of Seller to perform the necessary repairs. The evaluation fee must be paid in advance and will be credited toward the repair fee if Buyer elects to have Seller perform the repair. If Seller is capable of performing the repairs, then Seller shall provide Buyer with a quote for the cost of the repairs. Upon Buyer’s consent to move forward based upon the quote, Seller shall make the repairs outlined in the quote and return the equipment to Buyer in accordance with Seller’s Shipping Policy. If Seller does not wish to move forward with the repairs or Seller cannot otherwise perform the repairs, Buyer shall arrange for the pick-up of the equipment at Seller’s facility at Buyer’s sole cost and expense. Any equipment sent in for a repair evaluation and which is left for more than ninety (90) days after notice is given that either (i) Buyer does not wish to move forward with the repairs or (ii) Seller is unable to perform the repairs, shall be considered abandoned. Certain equipment may be subject to additional documentation or evaluation criteria at Seller’s sole discretion.
In the event a provision of these Terms and Conditions is held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected.
Shipping dates are estimates only and are not guaranteed. Seller will use every effort to make shipments as scheduled and may make partial shipments. Seller shall not be liable for any loss or damage ensuing from late delivery. - Prices quoted, unless otherwise agreed to by PAES, are Incoterms 2010 EXW-Seller’s Factory for United States domestic transactions and FCA-Seller’s Factory for international transactions. In the event of shipping damage, PAES must be notified, in writing, within three (3) business days of shipment receipt. Buyer must hold all products and packing materials intact, until further disposition is provided by PAES in writing. Click here for the full shipping policy.
TITLE AND RISK
On domestic sales, transfer of both title and risk of loss shall occur upon pickup from Seller's site. On international sales, transfer of both title and risk of loss shall occur upon entry into international waters, international airspace, or the crossing of an international border with the sole exception of banked transactions (L/C, DM, DAP), in which case the transfer of title occurs upon exchange of documents at the bank window, and the transfer of risk of loss occurs upon entry into international water, international airspace, or the crossing of an international border.
Within three (3) business days after receipt of shipment of the product, Buyer shall inspect the shipment for obvious damage to or violation of the shipping container. Buyer shall also confirm that the type and quantity of the products received are consistent with the type and quantity specified on the related shipping documents and order. Buyer shall promptly notify Seller of any discrepancies in accordance with the terms hereof. If a notice of discrepancies is not received by PAES within three (3) days after receipt of the shipment by Buyer, the shipment shall be deemed to have been completely and correctly fulfilled, and all claims by Buyer shall be deemed waived and released, except for any Product defect that a visual inspection would not disclose.
No products may be returned without prior written approval of Seller. Orders placed with and accepted by Seller may not be cancelled except upon Seller’s written consent prior to shipment and Buyer’s acceptance of Seller’s cancellation charges which shall protect Seller against all costs and losses, but not higher than the price quoted. Seller reserves the right to cancel any sale hereunder without liability to Buyer (except for refund of monies already paid) if the manufacture or sale of the products is or becomes technically or economically impractical. A cancellation fee equal to thirty percent (30%) of the stipulated price for non-stocked or custom products which have already been manufactured will be charged for any cancellations of non-stocked or custom products that have not been shipped to the Buyer. “Non-stocked or custom products” are defined as goods that are made to order.
PAYMENT; OVERDUE INVOICES
All payment terms are subject to PAES’ Credit Department’s approval. Unless otherwise agreed to by the parties, payment terms are net thirty (30) days from date of invoice.PAES RESERVES THE RIGHT TO ADD, AND PURCHASER AGREES TO PAY, INTEREST AT THE RATE OF 18% PER ANNUM OR THE HIGHEST RATE PERMITTED BY APPLICABLE LAW, WHICHEVER IS LESS, FROM DATE OF SHIPMENT, ON AMOUNTS INVOICED AND UNPAID IN ACCORDANCE WITH THE PAYMENT TERMS.
COLLECTION AND ATTORNEY'S FEES
In the event of any alleged dispute, breach or default of this Agreement necessitating PAES to retain an attorney to represent it, the Purchaser agrees to pay the PAES’ costs and expenses including reasonable attorney’s fees, incurred in connection with, related to or arising out of enforcement of any term or provision of this Agreement, whether or not in connection with any legal or administrative proceedings, plus pre- and post-judgment interest and costs incurred, through appeal, and such shall be in addition to any other remedies or damages to which the PAES may be entitled. Failure to pay these fees automatically voids any Warranty Provisions to which the Purchaser would otherwise be entitled.
Prices quoted, unless otherwise expressly stated in writing do not include sales, use, excise, value added or similar taxes or duties. Buyer shall pay these taxes directly if the law permits or will reimburse Seller if it is required to pay them. Buyer will provide tax exemption certificates or evidence of tax payment on request. The price quoted is based on the cost of raw materials, wage rates, shipping charges, freight, insurance premiums, landing charges and duties, railage and cartage applicable on the date on which a contract, acceptance, confirmation, tender or quotation is issued. Accordingly, any increase in such costs after such date and prior to the fulfillment of the contract may result in a price adaptation in good faith and in proportion to the changed circumstances, and shall thus be for the account of Buyer.
If the products ordered are to be exported from the country of Seller, the quoted shipping dates are subject to receipt of all export documents and authorizations. Regardless of ultimate destination, the prices quoted are based on packing for domestic shipment unless otherwise stated in writing. Buyer agrees to provide Seller in writing with the ultimate destination and identity of the end-user prior to shipment if the products are to be exported. Notwithstanding any other provision of this Agreement to the contrary, Buyer agrees that it will not sell, reexport or transfer any products or technical information or Services supplied under this Agreement to IRAN, NORTH KOREA, SYRIA, CUBA and SUDAN, including any entities or persons in those countries, either directly or indirectly (“Seller’s Position”). Buyer agrees that it will not sell, reexport or transfer any products or technical information or Services supplied under this agreement to any other countries except in full compliance with all applicable governmental requirements, including but not limited to applicable economic sanctions and constraints administered by the U.S. Treasury Department and applicable export control measures administered by the U.S. Department of Commerce and U.S. Department of State, any other U.S. government agencies, and measures administered by the Foreign Affairs, Trade and Development Canada, European Union or the government agencies of any other countries. Any violation by Buyer of the applicable laws or regulations of the U.S., Canada or any other government, or where Buyer breaches Seller’s Position notwithstanding whether or not this is contrary to any aforementioned applicable laws or regulations, shall be deemed a material breach of this agreement and sufficient basis for the Seller to reject any or all orders or to terminate this agreement. Compliance with applicable legal requirements and Seller’s Position is a prerequisite for Buyer to perform its obligations under this Agreement, and if the Buyer fails to comply with such legal requirements, it is incapable of meeting its obligations under this Agreement. The Seller reserves the right to refuse to enter into or perform any order, and to cancel any order, placed under this Agreement if the Seller in its sole discretion determines that the entry into such order or the performance of the transaction to which such order relates could violate any applicable law or regulation of the United States, Canada or any other governments and/or Seller’s Position. Buyer agrees that any such refusal or cancellation of any order, or termination of the Agreement by the Seller, as described above, will not constitute a breach of any of the Seller’s obligations under this Agreement, and Buyer hereby waives any and all claims against the Seller for any loss, cost or expense, including, but not limited to, claims of third parties, any loss of profit, loss of business, loss of or damage to goodwill and/or similar losses, loss of anticipated savings, or increased costs or for any indirect, special or consequential losses, or pure economic loss, costs, damages, charges or expenses howsoever arising, that Buyer may incur by virtue of such refusal or cancellation of any order or termination of this Agreement.
Except for the obligation to make payments, a party is not liable to fulfill its obligations under the agreement if performance is materially prevented as a consequence of natural catastrophes, terrorism, civil unrest, war, explosions, fire, breakdowns or damages to installations, constructions or machines, disruption to public transport, labour market conflicts (such as strikes and lock-outs) or other similar circumstances or acts of God. In the event of force majeure a party is not obligated to fulfill its obligations as long as, and to the extent, the force majeure continues. The party invoking force majeure shall inform the other party immediately in writing. If a force majeure continues for more than six months the other party may terminate the agreement with immediate effect by sending a written notice to the other party.
Buyer acknowledges that it may gain access to or otherwise learn Confidential Information (as hereinafter defined). Buyer agrees that it will use the Confidential Information only for purposes of performing its obligations under these Terms and Conditions (the “Permitted Purpose”) and shall not transfer or otherwise disclose the Confidential Information to any third party except as expressly permitted by these Terms and Conditions. Buyer shall: (a) give access to Confidential Information solely to those of its employees and approved subcontractors with a need to know such information for the Permitted Purpose; and (b) take the same security precautions to protect against disclosure or unauthorized use of Confidential Information that Buyer takes with its own confidential information, but in no event shall Buyer apply less than a reasonable standard of care to prevent such disclosure or unauthorized use. Confidential Information means any and all information relating to PAES or its affiliates that may be accessed by or disclosed to Buyer including but not limited to quotations, price sheets, engineering and product designs, manuals, equipment and business specifications, trade secrets, reports, or other proprietary data.
INTELLECTUAL PROPERTY RIGHTS
All patents, copyrights, designs, drawings and other technical or commercial information relating to the products, including any software provided by Seller pursuant to any proposal, tender or the contract, and the intellectual property rights therein made or acquired by Seller prior to or during the preparation of the proposal or tender or in the course of work on the contract shall be and remain the exclusive property of Seller.
If a product furnished to Buyer becomes or, in Seller’s opinion, may become the subject of any claim, suit or proceeding for infringement of any intellectual property rights, Seller may at its option and expense (i) obtain for Buyer the right to use, lease or sell the product, (ii) replace the product, (iii) modify the product, or (iv) remove the product and refund the purchase price paid by Buyer less a reasonable amount for use, damage or obsolescence. Seller will not be liable for any infringement arising from the combination of products or from the use of a product in practicing a process. Seller’s total liability to Buyer will not, under any circumstances exceed the purchase price paid for the allegedly infringing product. Buyer agrees, at its expense, to protect and defend Seller against any claim of intellectual property right infringement arising from compliance with Buyer’s designs, specifications or instructions and to hold Seller harmless from damages, costs and expenses attributable to any such claim.
Buyer agrees to defend, indemnify and hold the Seller (and its agents, representatives, employees, officers, related companies, successors and assigns, and customers) harmless from all claims, demands, actions, damages and liabilities (including legal fees and consequential and incidental damages) arising out of any injury (including death) to any person or damage to any property in any way connected with any act or omission of Buyer, its agents, employees, or subcontractors.
No failure to exercise and no delay in exercising on the part of Seller any right, power or privilege hereunder will operate as a waiver thereof nor will any single or partial exercise of any right, power or privilege hereunder preclude further exercise of the same right, power or privilege.
VALIDITY OF PROVISIONS
In the event any provision or any part or portion of any provision of these Terms and Conditions shall be held to be invalid, void or otherwise unenforceable, such holding shall not affect the remaining part or portions of that provision, or any other provision hereof.
If Buyer fails to make any payment when due or to perform on time any of its other obligations under this contract Seller shall be entitled to suspend performance of the contract until the failure is remedied.
Buyer shall not be entitled to cede, transfer and/or assign any of its rights or delegate any of its obligations under this contract, without the prior written consent of Seller. Seller may cede, transfer and/or assign its rights or delegate any of its obligations under this contract without the prior approval of the Buyer.
Seller shall be entitled to terminate the quote, purchase order or other agreement to which these Terms and Conditions form a part in the event Buyer is in breach of any of its obligations hereunder and fails to remedy the breach within fifteen (15) days after receiving written notification thereof from Seller or if Buyer goes into liquidation, receivership, administration or makes any voluntary arrangement with any of its creditors. Any party may terminate the agreement with immediate effect if the other party is in material breach of the agreement. Any termination of the contract in accordance with the terms hereof shall become effective upon service of a written notice of termination on the other party. Upon termination, howsoever arising, Seller shall be entitled forthwith to suspend any further deliveries under the contract without any liability to Buyer. Within 14 days of such a notice of termination, howsoever arising, Buyer shall pay to Seller:
- the outstanding balance of the contract price for products which have been delivered and for those products which are then capable of being delivered, and
- the costs incurred or committed by Seller up to the date of notice of termination in performing work on products which are not then in a deliverable state plus a reasonable margin to be agreed between the parties which shall not be less than 15%, and
- the costs reasonably incurred by Seller as a result of the termination.
(1) No Improper Means of Obtaining Business. The Seller and the Buyer intend that no payments or transfers of value shall be made which have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion or kickbacks, or other unlawful or improper means of obtaining business. (2) No Bribes. The Buyer will not, directly or indirectly, pay, offer, authorize or promise any monies or anything of value (such as gifts, contributions, travel, or entertainment) to any person or organization (including any employee or official of any governmental authority, government owned or controlled entity, public international organization or political party; any candidate for political office; or any employees of any of the Buyer’s or the Seller’s customers) for the purpose of improperly influencing their acts or decisions in violation of any antibribery or anti-corruption laws, including the United States International Corrupt Practices Act, laws under the OECD Anti-Bribery Convention and local anti-corruption laws (collectively, “Anti-Corruption Laws”). The Buyer will take appropriate actions to ensure that any person representing or acting under its instruction or control (“Buyer’s Agents”) will also comply with this Section. (3) No Kickbacks. No part of the payment of any amounts payable under this Agreement will be distributed to the Seller, its affiliates or customers, or any of its employees or their family members. (4) No Conflicts. Except as disclosed in writing to the Seller (in a questionnaire response or otherwise), the Buyer represents that it does not have any reason to believe that there are any potential conflicts of interest regarding its relationship with the Seller, such as family members who could potentially benefit from the commercial relationship established by this Agreement; and neither the Buyer, nor any of the Buyer’s Agents, have any family members who are government officials or political party candidates in a position to influence the Buyer’s commercial relationship with the Seller. (5) Accurate Books and Records. The Buyer will maintain complete and accurate books and records regarding its transactions with Seller. (6) Notification. The Buyer will notify the Seller promptly if (a) the Buyer or any of the Buyer’s Agents have reason to believe that a breach of this Section has occurred or is likely to occur; or (b) if any conflicts of interest arise after the signing of this Agreement, including if any of the Buyer’s Agents or their family members become a government official or political party candidate in a position to influence the Buyer’s commercial relationship with the Seller. The Buyer will send all such notices to email@example.com or to such other location as the Seller may designate in writing. (7) Compliance Certification. The Buyer will, when and as may be requested by the Seller from time to time, provide to the Seller a written certification in form and substance satisfactory to the Seller that the Buyer is in compliance with this Section. (8) No Payments for Improper Activities. The Seller will not be required under any circumstances to take any action or make any payments that the Seller believes, in good faith, would cause it or its affiliated companies to be in violation of any Anti-Corruption Laws. If the Seller at any time believes, in good faith, that a breach of any of the representations and warranties in this Section has occurred or may occur, the Seller may withhold any commission, compensation, reimbursement, or other payment until such time as the Seller has received confirmation to its reasonable satisfaction that no breach has occurred or will occur. The Seller shall not be liable to the Buyer for any claim, losses, or damages whatsoever related to the Seller’s decision to withhold any commission, compensation, reimbursement, or other payment under this provision. (9) Audit Rights. If the Seller at any time believes, in good faith, that the Buyer has breached the warranties, representations or agreements in this Section, then the Seller will have the right to audit the Buyer‘s books and records related to this Agreement in order to verify the Buyer’s compliance with the provisions of this Section. The audit will be performed by individuals selected by the Seller. However, upon request by the Buyer, the Seller will select in its sole discretion an independent third party to conduct an audit in order to certify to the Seller that no breach has occurred or will occur. The Buyer will fully cooperate in any audit conducted by or on behalf of the Seller. (10) Termination Rights. Any breach of the warranties, representations or agreements in this Section will constitute grounds for immediate termination of this Agreement for cause by the Seller and no commission, compensation, reimbursement or other payment will be due to the Buyer. The Buyer will indemnify and hold the Seller harmless against any actions, legal claims, demands, proceedings, losses, damages, costs, expenses and other liabilities of whatever nature resulting from the Buyer’s breach of the representations, warranties and agreements contained in this Section. (11) Data Privacy Consent. The Buyer consents to the collection, processing and international transfer of data and information related to the business relationship between it and the Seller, including the transfer of personally identifiable data (for example names, email addresses, telephone numbers) to and between the Seller and its affiliates wherever they may be located, for the purposes of allowing the Seller and its affiliates to evaluate the Buyer’s experience and qualifications and implement any business. The Buyer has the right to: (a) request access to this data; (b) rectify or cancel any inaccurate or expired data; and (c) object to any processing that does not conform to these purposes. The Buyer may exercise its rights by writing to the Seller at firstname.lastname@example.org or to such other location as the Seller may designate.
Where services are to be provided pursuant to a quote, order or other agreement, the services shall be provided by the Seller to the Buyer during the time period identified in the quote, order or other agreement.
Seller’s Obligations. The Seller shall (1) use reasonable efforts to provide the services to the Buyer, in all material respects in accordance with Seller’s quotation/offer/bid specifications; (2) use reasonable efforts to meet any performance dates specified in Seller’s quotation/offer/bid specifications, but any such dates shall be estimates only and time shall not be of the essence for performance of the services, and (3) to the extent that Seller is performing Services at Buyer’s premises, use reasonable efforts to observe all health and safety rules and regulations, and any other reasonable security requirements that apply at any of the Buyer’s premises and that have been communicated to it, provided that it shall not be liable under the agreement if, as a result of such observation, it is in breach of any of its obligations under the agreement.
Buyer’s Obligations. The Buyer shall: (a) co-operate with the Seller in all matters relating to the services; (b)provide the Seller, its agents, subcontractors, consultants and employees, in a timely manner and at no charge, with access to the Buyer's premises, office accommodation, data and other facilities as reasonably required by the Seller; (c) provide to the Seller, in a timely manner, such material and other information as the Seller may reasonably require and ensure that it is accurate in all material respects; (d) be responsible (at its own cost) for preparing and maintaining the relevant premises for the supply of the services; (e) inform the Seller of all health and safety rules and regulations and any other reasonable security requirements that apply at any of the Buyer's premises. If the Seller's performance of its obligations under the Agreement is prevented or delayed by any act or omission of the Buyer, its agents, subcontractors, consultants or employees, the Seller shall not be liable for any costs, charges or losses sustained or incurred by the Buyer arising directly or indirectly from such prevention or delay. The Buyer shall be liable to pay to the Seller, on demand, all reasonable costs, charges or losses sustained or incurred by the Seller (including, without limitation, any direct, indirect or consequential losses, such as claims of third parties, loss of profit and loss of reputation, loss or damage to property and those arising from injury to or death of any person and loss of opportunity to deploy resources elsewhere) arising directly or indirectly from the Buyer's fraud, negligence, failure to perform or delay in the performance of any of its obligations under the applicable contract, subject to the Seller confirming such costs, charges and losses to the Buyer in writing. The Buyer shall not, without the prior written consent of the Seller, at any time from the date of the Agreement to the expiry of 6 months after the last date of supply of the services, solicit or entice away from the Supplier or employ (or attempt to employ) any person who is, or has been, engaged as an employee, consultant or subcontractor of the Seller in the provision of the services. Any consent given by the Seller in accordance with the above shall be subject to the Buyer paying to the Seller a sum equivalent to 50% of the then current annual remuneration of the Seller's employee, consultant or subcontractor or, if higher, 50% of the annual ‘gross’ remuneration to be paid by the Buyer to that employee, consultant or subcontractor. Where services are provided on a time and materials basis: (a) the charges payable for the Services shall be calculated in accordance with the Seller’s standard daily fee rates, as set out in the order/quotation/bid/offer and as amended from time to time by the Seller’ giving not less than 1 months' written notice to the Buyer; (b) the Seller’s standard daily fee rates for each individual person are calculated on the basis of an eight-hour day, worked between 8.00 am and 5.00 pm on weekdays (Monday-Friday, excluding public holidays); (c) the Seller shall be entitled to charge an overtime rate of 40% of the standard daily fee rate on a pro-rata basis for each part day or for any time worked by individuals whom it engages on the services outside the hours referred to above.Field installation and use training are not included with a product purchase, unless otherwise agreed to in writing by the PAES, for which a separate charge will be imposed. PAES assumes no responsibility for damage to concealed lines, such as, but not limited to, electrical, alarm, water and air conditioning lines.