Hy-Energy Purchase Order Terms and Conditions

1. SERVICES & DELIVERABLES.
Seller agrees to perform the services ("Services") and/or provide the goods or Service deliverables (collectively referred to as "Goods"), described in any purchase order, in accordance with the applicable purchase order, scope of work and with these Terms and Conditions ("Agreement"). Upon acceptance of a purchase order, shipment of Goods or commencement of a Service, Seller shall be bound by the provisions of this Agreement, including all provisions set forth on the face of any applicable purchase order, whether Seller acknowledges or otherwise signs this Agreement or the purchase order, unless Seller objects to such terms in writing prior to shipping Goods or commencing Services.
This writing does not constitute a firm offer within the meaning of Section 2205 of the California Commercial Code, and may be revoked at any time prior to acceptance. This Agreement may not be added to, modified, superseded or otherwise altered, except by writing signed by an authorized Hy-Energy LLC representative. Any terms or conditions contained in any acknowledgment, invoice or other communication of Seller, which are inconsistent with the terms and conditions herein, are hereby rejected. To the extent that this Agreement might be treated as an acceptance of Seller's prior offer, such acceptance is expressly made on condition of assent by Seller to the terms hereof and shipment of the Goods or beginning performance of any Services by Seller shall constitute such assent. Hy-Energy LLC hereby reserves the right to reschedule any delivery or cancel any purchase order issued at any time prior to shipment of the Goods or prior to commencement of any Services. Hy-Energy LLC shall not be subject to any charges or other fees as a result of such cancellation.
2. DELIVERY.
Time is of the essence. Delivery of Goods shall be made pursuant to the schedule, via the carrier and to the place specified on the face of the applicable purchase order. Hy-Energy LLC reserves the right to return, shipping charges collect, all Goods received in advance of the delivery schedule. If no delivery schedule is specified, the order shall be filled promptly and delivery will be made by the most expeditious form of land transportation. If no method of shipment is specified in the purchase order, Seller shall use the least expensive carrier. In the event Seller fails to deliver the Goods within the time specified, Hy-Energy LLC may, at its option, decline to accept the Goods and terminate the Agreement or may demand its allocable fair share of Seller's available Goods and terminate the balance of the Agreement. Seller shall package all items in suitable containers to permit safe transportation and handling. Hy-Energy LLC does not accept excessive handling fees. Shipping and handling charges are to be limited to actual shipping fees and actual packaging materials costs. Each delivered container must be labeled and marked to identify contents without opening and all boxes and packages must contain packing sheets listing contents. Hy-Energy LLC's purchase order number must appear on all shipping containers, packing sheets, delivery tickets and bills of lading.
3. IDENTIFICATION, RISK OF LOSS & DESTRUCTION OF GOODS.
Identification of the Goods shall occur in accordance with Section 2501 of the California Commercial Code. Seller assumes all risk of loss until receipt by Hy-Energy LLC. Title to the Goods shall pass to Hy-Energy LLC upon receipt by it of the Goods at the designated destination. If the Goods ordered are destroyed prior to title passing to Hy-Energy LLC, Hy-Energy LLC may at its option cancel the Agreement or require delivery of substitute Goods of equal quantity and quality. Such delivery will be made as soon as commercially practicable. If loss of Goods is partial, Hy-Energy LLC shall have the right to require delivery of the Goods not destroyed.
4. PAYMENT.
As full consideration for the performance of the Services, delivery of the Goods and the assignment of rights to Hy-Energy LLC as provided herein, Hy-Energy LLC shall pay Seller (i) the amount agreed upon and specified in the applicable purchase order, or (ii) Seller's quoted price on date of shipment (for Goods), or the date Services were started (for Services), whichever is lower. Applicable taxes and other charges such as shipping costs, duties, customs, tariffs, imposts and government imposed surcharges shall be stated separately on Seller's invoice. Payment is made when Hy-Energy LLC's check is mailed. Payment shall not constitute acceptance. All personal property taxes assessable upon the Goods prior to receipt by Hy-Energy LLC of Goods conforming to the purchase order shall be borne by Seller. Seller shall invoice Hy-Energy LLC for all Goods delivered and all Services actually performed. Each invoice submitted by Seller must be provided to Hy-Energy LLC within ninety (90) days of completion of the Services or delivery of Goods and must reference the applicable purchase order, and Hy-Energy LLC reserves the right to return all incorrect invoices. Hy-Energy LLC will receive a 2% discount of the invoiced amount for all invoices that are submitted more than ninety (90) days after completion of the Services or delivery of the Goods. Unless otherwise specified on the face of a purchase order, Hy-Energy LLC shall pay the invoiced amount within sixty (60) days after receipt of a correct invoice. Seller will receive no royalty or other remuneration on the production or distribution of any products developed by Hy-Energy LLC or Seller in connection with or based on the Goods or Services provided.
5. WARRANTIES.
5.1 Services: Seller represents and warrants that all Services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by current, good and sound professional procedures. Further, Seller represents and warrants that the Services shall be completed in accordance with applicable specifications and shall be correct and appropriate for the purposes contemplated in this Agreement. Seller represents and warrants that the performance of Services under this Agreement will not conflict with, or be prohibited in any way by, any other agreement or statutory restriction to which Seller is bound.
5.2 Goods: Seller warrants that all Goods provided will be new and will not be used or refurbished. Seller warrants that all Goods delivered shall be free from defects in materials and workmanship and shall conform to all applicable specifications for a period of fifteen (15) months from the date of delivery to Hy-Energy LLC or for the period provided in Seller's standard warranty covering the Goods, whichever is longer. Seller hereby agrees that it will make spare parts available to Hy-Energy LLC for a period of five (5) years from the date of shipment at Sellers then current price, less applicable discounts. Additionally, Goods purchased shall be subject to all written and oral express warranties made by Seller's agents, and to all warranties provided for by the California Commercial Code. All warranties shall be construed as conditions as well as warranties and shall not be exclusive. Seller shall furnish to Hy-Energy LLC Seller's standard warranty and service guaranty applicable to the Goods. All warranties and Service guaranties shall run both to Hy-Energy LLC and to its customers.
If Hy-Energy LLC identifies a warranty problem with the Goods during the warranty period, Hy-Energy LLC will promptly notify Seller of such problems and will return the Goods to Seller, at Seller's expense. Within five (5) business days of receipt of the returned Goods, Seller shall, at Hy-Energy LLC's option, either repair or replace such Goods, or credit Hy-Energy LLC's account for the same. Replacement and repaired Goods shall be warranted for the remainder of the warranty period or six (6) months, whichever is longer.
6. INSPECTION.
Hy-Energy LLC shall have a reasonable time after receipt of Goods or Service deliverables and before payment to inspect them for conformity hereto, and Goods received prior to inspection shall not be deemed accepted until Hy-Energy LLC has run an adequate test to determine whether the Goods conform to the specifications hereof. Use of a portion of the Goods for the purpose of testing shall not constitute an acceptance of the Goods. If Goods tendered do not wholly conform with the provisions hereof, Hy-Energy LLC shall have the right to reject such Goods. Nonconforming Goods will be returned to Seller freight collect and risk of loss will pass to Seller upon Hy-Energy LLC's delivery to the common carrier.
7. Change
Hy-Energy LLC may make changes to this PO including to drawings and specifications for specially manufactured goods, place of delivery, by giving notice to Supplier. If such changes affect the cost of or the time required for performance of this PO, an equitable adjustment in the price or date of delivery or both will be made. No change by Supplier is allowed without written approval of Hy-Energy LLC. Any claim of Supplier for an adjustment under this Article must be made in writing within thirty (30) days from the date of receipt by Supplier of notification of such change. Nothing in this Article excuses Supplier from delivering the goods and services described in this PO.
8. Maintenance and operation
The Supplier supplies to Hy-Energy LLC instructions for installation, operation, maintenance and repair of the goods.
9. INDEPENDENT CONTRACTOR.
Hy-Energy LLC is interested only in the results obtained under this Agreement; the manner and means of achieving the results are subject to Seller's sole control. Seller is an independent contractor for all purposes, without express or implied authority to bind Hy-Energy LLC by contract or otherwise. Neither Seller nor its employees, agents or subcontractors ("Seller's Assistants") are agents or employees of Hy-Energy LLC, and therefore are not entitled to any employee benefits of Hy-Energy LLC, including but not limited to, any type of insurance. Seller shall be responsible for all costs and expenses incident to performing its obligations under this Agreement and shall provide Seller's own supplies and equipment.
10. SELLER RESPONSIBLE FOR TAXES AND RECORDS.
Seller shall be solely responsible for filing the appropriate federal, state and local tax forms, including, without limitation, a Schedule C or a Form 1020, and paying all such taxes or fees, including estimated taxes and employment taxes, due with respect to Seller's receipt of payment under this Agreement. Seller further agrees to provide Hy-Energy LLC with reasonable assistance in the event of a government audit. Hy-Energy LLC shall have no responsibility to pay or withhold from any payment to Seller under this Agreement, any federal, state or local taxes or fees. Hy-Energy LLC will regularly report amounts paid to Seller by filing Form 1099-MISC with the Internal Revenue Service.
11. INSURANCE.
Seller shall be solely responsible for maintaining and requiring Seller's Assistants to maintain such adequate health, auto, workers' compensation, unemployment compensation, disability, liability, and other insurance, as is required by law or as is the common practice in Seller's and Seller's Assistants' trades or businesses, whichever affords greater coverage. Upon request, Seller shall provide Hy-Energy LLC with certificates of insurance or evidence of coverage before commencing performance under this Agreement. Seller shall provide adequate coverage for any Hy-Energy LLC property under the care, custody or control of Seller or Seller's Assistants.
12. INDEMNITY.
Seller shall indemnify, hold harmless, and at Hy-Energy LLC's request, defend Hy-Energy LLC, its officers, directors, customers, agents and employees, against all claims, liabilities, damages, losses and expenses, including attorneys' fees and cost of suit arising out of or in any way connected with the Goods or Services provided under this Agreement, including, without limitation, (i) any claim based on the death or bodily injury to any person, destruction or damage to property, or contamination of the environment and any associated clean up costs, (ii) Seller failing to satisfy the Internal Revenue Service's guidelines for an independent contractor, (iii) any claim based on the negligence, omissions or willful misconduct of Seller or any Seller's Assistants, and (iv) any claim by a third party against Hy-Energy LLC alleging that the Goods or Services, the results of such Services, or any other products or processes provided under this Agreement, infringe a patent, copyright, trademark, trade secret or other proprietary right of a third party, whether such are provided alone or in combination with other products, software or processes. Seller shall not settle any such suit or claim without Hy-Energy LLC's prior written approval. Seller agrees to pay or reimburse all costs that may be incurred by Hy-Energy LLC in enforcing this indemnity, including attorneys' fees.
Should Hy-Energy LLC's use, or use by its distributors, subcontractors or customers, of any Goods or Services purchased from Seller be enjoined, be threatened by injunction, or be the subject of any legal proceeding, Seller shall, at is sole cost and expense, either (a) substitute fully equivalent non-infringing Goods or Services; (b) modify the Goods or Services so that they no longer infringe but remain fully equivalent in functionality; (c) obtain for Hy-Energy LLC, its distributors, subcontractors or customers the right to continue using the Goods or Services; or (d) if none of the foregoing is possible, refund all amounts paid for the infringing Goods or Services.
13. CONFIDENTIALITY.
Seller will acquire knowledge of Hy-Energy LLC Confidential Information (as defined below) in connection with its performance hereunder and agrees to keep such Hy-Energy LLC Confidential Information in confidence during and following termination or expiration of this Agreement. "Hy-Energy LLC Confidential Information" includes but is not limited to all information, whether written or oral, in any form, including without limitation, information relating to the research, development, products, methods of manufacture, trade secrets, business plans, customers, vendors, finances, personnel data, Work Product (as defined herein) and other material or information considered proprietary by Hy-Energy LLC relating to the current or anticipated business or affairs of Hy-Energy LLC which is disclosed directly or indirectly to Seller. In addition, Hy-Energy LLC Confidential Information means any third party's proprietary or confidential information disclosed to Seller in the course of providing Services or Goods to Hy-Energy LLC. Hy-Energy LLC Confidential Information does not include any information (i) which Seller lawfully knew without restriction on disclosure before Hy-Energy LLC disclosed it to Seller, (ii) which is now or becomes publicly known through no wrongful act or failure to act of Seller, (iii) which Seller developed independently without use of the Hy-Energy LLC Confidential Information, as evidenced by appropriate documentation, or (iv) which is hereafter lawfully furnished to Seller by a third party as a matter of right and without restriction on disclosure. In addition, Seller may disclose Confidential Information which is required to be disclosed pursuant to a requirement of a government agency or law so long as Seller provides prompt notice to Hy-Energy LLC of such requirement prior to disclosure.
Seller agrees not to copy, alter or directly or indirectly disclose any Hy-Energy LLC Confidential Information. Additionally, Seller agrees to limit its internal distribution of Hy-Energy LLC Confidential Information to Seller's Assistants who have a need to know, and to take steps to ensure that the dissemination is so limited, including the execution by Seller's Assistants of nondisclosure agreements with provisions substantially similar to those set forth herein. In no event will Seller use less than the degree of care and means that it uses to protect its own information of like kind, but in any event not less than reasonable care to prevent the unauthorized use of Hy-Energy LLC Confidential Information.
Seller further agrees not to use the Hy-Energy LLC Confidential Information except in the course of performing hereunder and will not use such Hy-Energy LLC Confidential Information for its own benefit or for the benefit of any third party. The mingling of the Hy-Energy LLC Confidential Information with information of Seller shall not affect the confidential nature or ownership of the same as stated hereunder. Seller agrees not to design or manufacture any products which incorporate Hy-Energy LLC Confidential Information. All Hy-Energy LLC Confidential Information is and shall remain the property of Hy-Energy LLC. Upon Hy-Energy LLC's written request or the termination of this Agreement, Seller shall return, transfer or assign to Hy-Energy LLC all Hy-Energy LLC Confidential Information, including all Work Product, as defined herein, and all copies thereof.
14. OWNERSHIP OF WORK PRODUCT.
For purposes of this Agreement, "Work Product" shall include, without limitation, all designs, discoveries, creations, works, devices, masks, models, work in progress, Service deliverables, inventions, products, computer programs, procedures, improvements, developments, drawings, notes, documents, business processes, information and materials made, conceived or developed by Seller alone or with others which result from or relate to the Services performed hereunder. Standard Goods manufactured by Seller and sold to Hy-Energy LLC without having been designed, customized or modified for Hy-Energy LLC do not constitute Work Product. All Work Product shall at all times be and remain the sole and exclusive property of Hy-Energy LLC. Seller hereby agrees to irrevocably assign and transfer to Hy-Energy LLC and does hereby assign and transfer to Hy-Energy LLC all of its worldwide right, title and interest in and to the Work Product including all associated intellectual property rights. Hy-Energy LLC will have the sole right to determine the treatment of any Work Product, including the right to keep it as trade secret, execute and file patent applications on it, to use and disclose it without prior patent application, to file registrations for copyright or trademark in its own name or to follow any other procedure that Hy-Energy LLC deems appropriate. Seller agrees: (a) to disclose promptly in writing to Hy-Energy LLC all Work Product in its possession; (b) to assist Hy-Energy LLC in every reasonable way, at Hy-Energy LLC's expense, to secure, perfect, register, apply for, maintain, and defend for Hy-Energy LLC's benefit all copyrights, patent rights, mask work rights, trade secret rights, and all other proprietary rights or statutory protections in and to the Work Product in Hy-Energy LLC's name as it deems appropriate; and (c) to otherwise treat all Work Product as Hy-Energy LLC Confidential Information as described above. These obligations to disclose, assist, execute and keep confidential survive the expiration or termination of this Agreement. All tools and equipment supplied by Hy-Energy LLC to Seller shall remain the sole property of Hy-Energy LLC.
Seller will ensure that Seller's Assistants appropriately waive any and all claims and assign to Hy-Energy LLC any and all rights or any interests in any Work Product or original works created in connection with this Agreement. Seller irrevocably agrees not to assert against Hy-Energy LLC or its direct or indirect customers, assignees or licensees any claim of any intellectual property rights of Seller affecting the Work Product.
Hy-Energy LLC will not have rights to any works conceived or reduced to practice by Seller which were developed entirely on Seller's own time without using equipment, supplies, facilities or trade secret or Hy-Energy LLC Confidential Information, unless (i) such works relate to Hy-Energy LLC's business, or Hy-Energy LLC's actual or demonstrably anticipated research or development, or (ii) such works result from any Services performed by Seller for Hy-Energy LLC.
15. NONINTERFERENCE WITH BUSINESS.
During and for a period of two years immediately after the termination or expiration of this Agreement, Seller agrees not to unlawfully interfere with the business of Hy-Energy LLC in any manner, and further agrees not to solicit or induce any employee or independent contractor to terminate or breach an employment, contractual or other relationship with Hy-Energy LLC.
16. Default
A party is in default of its obligations under this Agreement if any of the following events occur, namely:
a.
such party is adjudged bankrupt or insolvent by a court of competent jurisdiction, or otherwise becomes insolvent, as evidenced by its inability to pay its debts generally as and when they become due; or
b.
such party is in default of its obligations hereunder and fails to cure such default within thirty days of written notice from the other party, or if such default cannot be cured within thirty days, within such longer period as may be reasonable, provided the defaulting party commences promptly and diligently proceeds with curing the default.
Upon the occurrence of any of the above events, the party not in default may, by written notice to the defaulting party, terminate this Agreement without prejudice to any other right or remedy available to it at law and without liability for such termination. Neither the Supplier nor Hy-Energy LLC shall be liable to the other for indirect damages, for loss of profit or for damages arising from loss of use or production.
17. TERMINATION.
Hy-Energy LLC may terminate this Agreement upon written notice to Seller if Seller fails to perform or otherwise breaches this Agreement, files a petition in bankruptcy, becomes insolvent, or dissolves. In the event of such termination, Hy-Energy LLC shall pay Seller for the portion of the Services satisfactorily performed and those conforming Goods delivered to Hy-Energy LLC through the date of termination, less appropriate offsets, including any additional costs to be incurred by Hy-Energy LLC in completing the Services.
Hy-Energy LLC may terminate this Agreement, or any Service(s), for any other reason upon thirty (30) days' written notice to Seller. Seller shall cease to perform Services and/or provide Goods under this Agreement on the date of termination specified in such notice. In the event of such termination, Hy-Energy LLC shall be liable to Seller only for those Services satisfactorily performed and those conforming Goods delivered to Hy-Energy LLC through the date of termination, less appropriate offsets.
Seller may terminate this Agreement upon written notice to Hy-Energy LLC if Hy-Energy LLC fails to pay Seller within sixty (60) days after Seller notifies Hy-Energy LLC in writing that payment is past due.
Upon the expiration or termination of this Agreement for any reason: (a) each party will be released from all obligations to the other arising after the date of expiration or termination, except for those which by their terms survive such termination or expiration; and (b) Seller will promptly notify Hy-Energy LLC of all Hy-Energy LLC Confidential Information or any Work Product in Seller's possession and, at the expense of Seller and in accordance with Hy-Energy LLC's instructions, will promptly deliver to Hy-Energy LLC all such Hy-Energy LLC Confidential Information and/or Work Product.
18. REMEDIES.
If Seller breaches this Agreement, Hy-Energy LLC shall have all remedies available by law and at equity. For the purchase of Goods, Seller's sole remedy in the event of breach of this Agreement by Hy-Energy LLC shall be the right to recover damages in the amount equal to the difference between market price at the time of breach and the purchase price specified in the Agreement. No alternate method of measuring damages shall apply to this transaction. Seller shall have no right to resell Goods for Hy-Energy LLC's account in the event of wrongful rejection, revocation of acceptance, failure to make payment or repudiation by Hy-Energy LLC and any resale so made shall be for the account of Seller.
19. FORCE MAJEURE.
Hy-Energy LLC shall not be liable for any failure to perform including failure to (i) accept performance of Services or, (ii) take delivery of the Goods as provided caused by circumstances beyond its control which make such performance commercially impractical including, but not limited to, acts of God, fire, flood, acts of war, government action, accident, labor difficulties or shortage, inability to obtain materials, equipment or transportation. In the event Hy-Energy LLC is so excused, either party may terminate the Agreement and Hy-Energy LLC shall at its expense and risk, return any Goods received to the place of shipment.
20. SEVERABILITY.
If any provision of this Agreement shall be deemed to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
21. LIMITATION OF LIABILITY.
IN NO EVENT SHALL Hy-Energy LLC BE LIABLE TO SELLER OR SELLER'S ASSISTANTS, OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER OR NOT Hy-Energy LLC WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
22. ASSIGNMENT; WAIVER.
Seller may not assign this Agreement or any of its rights or obligations under this Agreement, without the prior written consent of Hy-Energy LLC. Any assignment or transfer without such written consent shall be null and void. This Agreement shall inure to the benefit of, and be binding upon, the successors and assigns of Hy-Energy LLC without restriction. A waiver of any default hereunder or of any term or condition of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition.
23. NONEXCLUSIVE AGREEMENT.
This is not an exclusive agreement. Hy-Energy LLC is free to engage others to perform Services or provide Goods the same as or similar to Seller's. Seller is free to, and is encouraged to, advertise, offer and provide Seller's Services and/or Goods to others; provided however, that Seller does not breach this Agreement.
24. NOTICES.
Except for Purchase Orders which may be sent by local mail, facsimile transmission, or electronically transmitted,, all notices, and other communications hereunder shall be in writing, and shall be addressed to Seller or to an authorized Hy-Energy LLC representative, and shall be considered given when (a) delivered personally, (b) sent by confirmed telex or facsimile, (c) sent by commercial overnight courier with written verification receipt, or (d) three (3) days after having been sent, postage prepaid, by first class or certified mail.
25. SURVIVAL OF OBLIGATIONS.
Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.
26. GOVERNING LAW.
This Agreement shall be construed in accordance with, and disputes shall be governed by, the laws of the State of California, excluding its conflict of law rules. The Superior Court of the County of Alameda or the United States District Court for the Northern District of California shall have jurisdiction and venue over all controversies arising out of, or relating to, this Agreement. The applicability of the UN Convention on Contracts for the International Sale of Goods is hereby expressly waived by the parties and it shall not apply to the terms and conditions of this Agreement.
27. ENTIRE AGREEMENT; MODIFICATION.
This Agreement is the complete, final and exclusive statement of the terms of the agreement between the parties and supersedes any and all other prior and contemporaneous negotiations and agreements, whether oral or written, between them relating to the subject matter hereof. This Agreement may not be varied, modified, altered, or amended except in writing, including a purchase order or a change order issued by Hy-Energy LLC, signed by the parties. The terms and conditions of this Agreement shall prevail notwithstanding any variance with the terms and conditions of any acknowledgment or other document submitted by Seller. Notwithstanding the foregoing, this Agreement will not supersede or take the place of any written agreement which is signed by both parties and covers the same subject matter as this Agreement or its related purchase orders.
28. COMPLIANCE WITH LAWS.
28.1 General: Seller shall comply fully with all applicable federal, state and local laws in the performance of this Agreement including, but not limited to, all applicable employment, tax, export control and environmental laws.
28.2 Equal Employment Opportunity: Hy-Energy LLC is a government contractor and is subject to the requirements of Executive Order 11246, the Rehabilitation Assistance Act. Pursuant to these requirements, the Equal Opportunity Clauses found at 41 Code of Federal Regulations sections 60-1.4(a) (1-7), 60-250.4(a-m) and 60-741.5 (a) (1-6) are incorporated herein by reference as though set forth at length, and made an express part of this Agreement. If applicable, Seller will comply with the following Federal Acquisition Regulations: (i) 52.222-26 "Equal Opportunity", (ii) 52.222-35 "Affirmative Action for Special Disabled and Vietnam Veterans", (iii) 52.222-36 "Affirmative Action for Handicapped Workers."
28.3 Small Business Plan Requirements: Hy-Energy LLC is a government contractor and is subject to the requirements of FAR section 52.219. Pursuant to FAR 52.219.9, if Seller (i) is not considered a Small Business (as the term is defined in section 3 of the Small Business Act) and (ii) is providing Goods or Services under this Agreement in an amount greater than or equal to $500,000, and (iii) is subcontracting a portion of the Goods or Services from a third party, Seller agrees to submit to Hy-Energy LLC a Small Business Plan or letter stating that Seller does not have a Small Business Plan and listing the approximate dollar amount to be subcontracted.
28.4 Hazardous Materials: If Goods include hazardous materials, Seller represents and warrants that Seller understands the nature of any hazards associated with the manufacture, handling and transportation of such hazardous materials
28.5 Customs: Upon Hy-Energy LLC's request, Seller will promptly provide Hy-Energy LLC with a statement of origin for all Goods and United States Customs documentation for Goods wholly or partially manufactured outside of the United States.
29. INJUNCTIVE RELIEF.
Seller acknowledges and agrees that the obligations and promises of Seller under this Agreement are of a unique, intellectual nature giving them particular value. Seller's breach of any of the promises contained in this Agreement will result in irreparable and continuing damage to Hy-Energy LLC for which there will be no adequate remedy at law and, in the event of such breach, Hy-Energy LLC will be entitled to seek injunctive relief, or a decree of specific performance.