NOTICE: Sale of any Products or Services is expressly conditioned on Buyer's assent to these Terms and Conditions. Any acceptance of Seller's offer is expressly limited to acceptance of these Terms and Conditions and Seller expressly objects to any additional or different terms proposed by Buyer.
All prices are subject to change without notice in the event of any changes in cost of materials or labor, specifications, quantities, delivery schedules, customs duties, other factors beyond Seller’s control, or in the event of delays caused by the instructions of the Buyer, or the failure of the Buyer to give the Seller adequate information.
A). Seller warrants that Products manufactured by Seller, when delivered, shall be free from defects in material and workmanship. Seller's obligations under the aforesaid warranty shall be limited exclusively to repairing or replacing, at Seller's option and at the Sellers location of business, any part of the Products which, if properly installed, used and maintained, proved to have been defective in material or workmanship within two (2) years from the date of shipment. The aforesaid warranty does not cover labor or other costs that may be incurred by the Buyer such as, but not limited to, costs associated with diagnosis, removal, replacement, or installation of the Defective Products. Defective parts replaced by Seller shall become the property of Seller. Seller warrants that Services performed shall be performed in accordance with generally accepted industry practice. Seller warrants for a period of two (2) years from the date of shipment that software or firmware, when used with the Products, shall perform in accordance with Seller’s published specifications. Seller makes no warranty, express or implied, that the operations of the software or firmware shall be uninterrupted or error-free, or that functions contained therein shall meet or satisfy the Buyer’s intended use or requirements. Buyer shall notify the Seller of any defect in the quality or condition of the Products, (including any software/firmware) or Services within seven (7) days of the date of delivery or performance, unless the defect was not apparent on reasonable inspection, in which case, within seven (7) days after discovery of the defect. If Buyer does not provide such timely notification, it shall not be entitled to reject the Products (including any software/firmware) or Services, and Seller shall have no liability for such defect.
B). Seller's warranty obligations shall not apply to any Products which (1) have been altered or repaired by someone other than the Seller, or (2) have been subjected to misuse, neglect, or improper use or application, or (3) are normally consumed in operation, or (4) have a normal life inherently shorter than the warranty period stated therein.
C). No Products may be returned unless authorized in advance by Seller, and then only upon such conditions to which Seller may agree. Buyer must obtain a Return Material Authorization (RMA) number from Seller prior to any return shipment, and such RMA number must appear on the shipping label and packing slip. Buyer shall be responsible for the returned Products until such time as Seller receives the same at its facility, and for all charges for packing, inspection, shipping, transportation or insurance associated with returned Products.
D). This section VI sets forth the exclusive remedies and obligations for claims based upon defects in or nonconformity of the Products or Services, whether the claim is in contract, warranty, tort (including negligence of any degree or strict liability) or otherwise. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED OR STATUTORY. NO IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE SHALL APPLY.
III. LIMITATION OF LIABILITY
The total liability of Seller on any claim, whether in contract, tort (including negligence of any degree and strict liability) or otherwise arising out of, connected with, or resulting from the manufacture, sale, delivery, resale, repair, replacement or use of any Products or Services, shall not exceed the price allocable to the Products or Services or part thereof which gives rise to the claim. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT,WARRANTY, TORT, (INCLUDING NEGLIGENCE OF ANY DEGREE, STRICT LIABILITY OR PATENT INFRINGEMENT) OR OTHERWISE, SHALLSELLER, ITS AFFILIATES, SUBCONTRACTORS, OR SUPPLIERS BE LIABLE FOR ANY LOSS OF PROFIT OR REVENUES, LOSS OF USE OF THE PRODUCTS OR SERVICES, OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES, SERVICES ORREPLACEMENT POWER, DOWNTIME COSTS OR CLAIMS OF BUYER'S CUSTOMERS FOR DAMAGES OR FOR ANY SPECIAL, PROXIMATE, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR EXEMPLARY DAMAGES. If Buyer transfers title to, or leases the Products sold hereunder to, or otherwise permits or suffers use by, any third party, Buyer shall obtain from such third party a provision affording Seller and its subcontractors and suppliers the protection of the preceding sentence. Any action against Seller must be brought within eighteen (18) months after the cause of action accrues.
IX. TECHNICAL/PROPRIETARY INFORMATION
A). Buyer shall not acquire any rights to any hardware/software which may be delivered with the Products.
B). The purchase of Products shall not include any right to the supply of technical information such as drawings or specifications.
C). Proprietary information, including drawings, documents, technical data, reports, software, designs, inventions and other technical information supplied by Seller in connection herewith (hereinafter called "Data"), shall remain Seller's sole property and shall be held in confidence by Buyer. Such Data shall not be reproduced, used or disclosed to others by Buyer without Seller’s prior written consent. Upon completion of the Order, Buyer shall promptly return all Data to Seller together with all copies or reprints thereof then in Buyer's possession or control, and Buyer shall thereafter make no future use, either directly or indirectly, of any Data or any information derived there from without Seller's prior written consent. The foregoing shall in no way obligate Seller to provide or supply Data.
A). The rights and obligations of the Buyer and Seller hereunder shall be governed in all respects by the law of the State of Delaware, U.S.A. The exclusive forum for adjudication of any disputes shall be the federal or state courts of the State of Delaware, and the parties hereby consent to personal jurisdiction and venue in such courts in any proceeding. The United Nations Convention on the International Sale of Goods shall not apply.
B). These Terms of Sale together with any other terms specifically agreed to in writing by Seller constitute the entire agreement between Buyer and Seller and supersede any prior or contemporaneous representations, agreements, proposals, warranties, or understandings, oral or written, express or implied. No waiver, modification, amendment, rescission or other change to these Terms and Conditions of Sale shall be binding unless specifically agreed to in writing by an authorized representative of Seller.
C). The invalidity, of any part hereof shall not affect the validity of the remainder. The failure of Seller to assert any right at any time hereunder shall not prevent Seller's subsequent assertion of the same or different rights.
D). Buyer may not assign this contract without the prior written approval of the Seller.
E). All advertising collateral and merchandising used by the Buyer in connection with the Sellers products shall be subject to prior written approval of Seller prior to use.
F). The Buyer agrees not to use in any way, or to remove, alter or change in any way, any of Seller’s trademarks, trade names, logo types or other commercial symbols, found on any Products or otherwise without the prior written permission of Seller, which may be withheld in its sole discretion.
G). Seller may terminate this Proposal effective immediately by notice in writing without liability to the other Buyer. In the event this Agreement is terminated for any reason, Buyer shall be responsible for any and all Purchase Orders accepted by Seller prior to the date of termination and Seller shall deliver any and all Purchase Orders accepted prior to any termination.
H). Any and all Orders, Purchase Orders, Contracts, or other binding forms of sale issued by the Buyer and accepted by Seller shall be subject to any and all Terms and Conditions noted herein.
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