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Instromet in Dec. 1999 and Other EM&MS Edits
Mime-Version: 1.0 Content-Type: text/plain; charset=us-ascii Content-Transfer-Encoding: 7bit X-From: Drew Fossum X-To: Martha Benner X-cc: X-bcc: X-Folder: \Drew_Fossum_Dec2000_June2001_1\Notes Folders\Sent X-Origin: FOSSUM-D X-FileName: dfossum.nsf pls print asap. thanks. dF ---------------------- Forwarded by Drew Fossum/ET&S/Enron on 01/25/2000 12:28 PM --------------------------- Colleen Raker 01/25/2000 12:04 PM To: Drew Fossum/ET&S/Enron@ENRON cc: Jim Talcott/ET&S/Enron@ENRON, Maria Pavlou/ET&S/Enron@ENRON, Louis Soldano/ET&S/Enron@ENRON Subject: Edits Made to Enron Machine and Mechanical Services, Inc. Subcontract Agreement with Instromet to Integrate Changes Requested by Instromet in Dec. 1999 and Other EM&MS Edits The below note outlines the changes I made to the Enron Machine and Mechanical Services, Inc. (Clifton machine shop) Subcontract Agreement with Instromet per Instromet's requested changes that Randy Rice and Rick Craig accepted. In the course of editing this Agreement, I rearranged certain provisions to clarify the indemnity obligations of the parties, and the representations and warranties of the parties. The latter changes are described below. Instromet has not yet seen this revised Agreement. GPG Procurement and Supply will be meeting with Instromet this Thursday, January 27th, and would like to execute the agreement that day. The plan is to send the attached agreement to Instromet no later than the close of GPG's business today. Please review the below changes as well as Exhibit A, Scope of Work, and Exhibit B, Unit Price List, and advise me as soon as possible today of any concerns you may have. Thank you for your help in finalizing this agreement. ---------------------- Forwarded by Colleen Raker/ET&S/Enron on 01/25/2000 11:46 AM --------------------------- Colleen Raker 01/25/2000 11:45 AM To: Rod Maybee/OTS/Enron@ENRON cc: Subject: Edits Made to Enron Machine and Mechanical Services, Inc. Subcontract Agreement with Instromet to Integrate Changes Requested by Instromet in Dec. 1999 and Other EM&MS Edits Part II, Section 1, Definitions. Modified to replace the definition of "Test Period" with "Warranty Period", and to define the latter as "the period of time up to 30 days from the date Instromet receives the shipment of Work at Instromet's first point of destination". Instromet's right to reject the completed Work by notifying Enron Machine and Mechanical Services, Inc. (EM&MS) in writing of the alleged defect must be exercised by Instromet during the Warranty Period or this right is waived. Instromet's sole remedy for defective goods is the repair or replacement by EM&MS. Part II, Section 6.2, Instromet Furnished Information, Data, Material, Equipment Services. Modified to limit Instromet's liability for consequences of defects in manufactured spools to defects in the data, material, equipment, supplies or services furnished by or through Instromet. Original draft also made Instromet liable for defects in supplies or services furnished by Enron Machine and Mechanical Services, Inc. Part II, Section 11, Title and Risk of Loss to Work. Modified to transfer title and all risk of loss in the Work to Instromet as of the date of Enron Machine and Mechanical Services, Inc.'s invoice statement to Instromet (whether or not Instromet has arranged for the shipment of the completed spools). Original draft placed risk of loss in the Work with Instromet at all times, and identified the Point of Delivery (Clifton machine shop) as the place of title-transfer. Part II, Section 12, Changes. Modified to provide for the completion of a Work Change Order form (attached to the Agreement as Exhibit C) to document changes in Work agreed to by the parties. Part II, Section 13, Standards of Performance and Limited Warranty. Modified to integrate the new Warranty Period definition discussed in the first bullet item above. Also modified to treat as a separate numbered section (Section 9, Indemnification for Third Party Claims) the indemnity obligation (regardless of the presence or absence of insurance coverage) of Instromet to EM&MS for third party claims for personal injury or property damage arising from EM&MS' Work . Section 9 is further modified to expressly exclude from Instromet's indemnity obligation the percentage of any claim that results from the gross negligence, willful misconduct or bad faith of EM&MS. Section 9 is also modified to state the right of EM&MS to assume its defense of a third party claim if Instromet fails to assume the same per its indemnity obligation on being notified of the claim. Please note that under Section 8, Liabilities and Indemnifications for Other Than Third Party Claims, Instromet and EM&MS have agreed to release and hold each other harmless for claims of injury or death of person or loss or damage to property in favor of each party or its employees or its agents arising from the Work of EM&MS at the Clifton machine shop. Claims by Instromet's or EM&MS's independent contractors would be third party claims coverd by Section 9. Part II, Hazardous Materials, Waste, Pollution Section. This section was deleted in its entirety. Section 9, Indemnification for Third Party Claims, will cover the respective responsibilities of the parties for such claims. Part II, Intellectual Property Rights Section. Instromet was to provide EM&MS with its proposed alternate language for this section. EM&MS has not received this. Therefore, this separate Section was deleted by EM&MS and two of its provisions integrated elsewhere in the Agreement. The first, the provision concerning Instromet's representations and warranties of ownership of the processes and methods that Instromet requires EM&MS to use in its manufacture of the spools has been set out in a separate section, Section 14, Instromet's Representations and Warranties. Section 14 now stipulates that Instromet warrants that either Instromet, Inc. or its "Affiliate" own such processes or methods used in the Work and that all products provided by Instromet are free from third party claims of infringement of intellectual property rights. The second, the provision in the original "Intellectual Propery Rights" section concerning Instromet's obligation to indemnify EM&MS from third party intellectual property infringement claims has been removed and integrated into Section 9, Indemnification for Third Party Claims. Lastly, please note that Section 22.5, Confidential Information, now states that the parties' obligations of confidentiality and non-disclosure shall continue for a period of 3 years after the termination of this Agreement. The original draft had stipulated that the confidentiality obligations shall terminate ___ years after the date of the disclosure of such confidential information. The change was made based on the difficulty of tracking different disclosure dates through the term of the Agreement.
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