Terms and Conditions of Sale
(Products and/or Services)
Atlas Copco IAS LLC
3301 Cross Creek Parkway
Auburn Hills, Michigan 48326 USA
Revised April 2018
1. General. “Seller” means Atlas Copco IAS LLC. “Buyer” means the entity to which Seller’s offer is made, or the entity purchasing any Product or Service from Seller. Seller and Buyer are sometimes referred to herein individually as a “Party” and collectively as the “Parties”. “Product” means any product, equipment, accessory, part, and/or any other type of item offered or sold by Seller to Buyer. “Service” means any installation, start-up, maintenance, inspection, adjustment, repair, and/or any other type of service or work offered or performed by Seller for Buyer. This Terms and Conditions of Sale document is hereinafter referred to as these “Terms and Conditions of Sale”. SELLER’S SALE OF ANY PRODUCT AND/OR SERVICE IS EXPRESSLY CONDITIONED ON BUYER’S ASSENT TO THESE TERMS AND CONDITIONS OF SALE. ANY ACCEPTANCE OF SELLER’S OFFER IS EXPRESSLY LIMITED TO ACCEPTANCE OF
THESE TERMS AND CONDITIONS OF SALE. ANY TERMS OR CONDITIONS (PREVIOUSLY, CONTEMPORANEOUSLY, OR HEREAFTER) PROVIDED BY BUYER WHICH ADD TO, VARY FROM, OR CONFLICT WITH THESE TERMS AND CONDITIONS OF SALE ARE HEREBY EXPRESSLY OBJECTED TO. Any verbal or written order from Buyer to Seller shall constitute Buyer’s assent to these Terms and Conditions of Sale. In the event a separate written agreement covering terms and conditions has been negotiated and mutually signed by authorized representatives of Buyer and Seller, and such agreement is applicable, it shall take precedence (to the extent of conflicts) and the terms and conditions set forth in these Terms and Conditions of Sale will be supplemental to those of such agreement. All orders submitted to Seller are received subject to approval or rejection by Seller at its U.S. headquarters.
2. Order-related changes requested by Buyer.
Any and all orderrelated changes requested by Buyer (whether with respect to changes in drawings, designs, specifications, material, packing, time and place of delivery, mode of transportation, or otherwise) are subject to Seller’s approval in writing. If any change causes an increase or decrease in the cost of, or the time required for, the performance of any part of the order, an equitable adjustment shall be made to the price and/or delivery schedule. Unless agreed otherwise by the parties in writing, pricing for work arising from such changes shall be at Seller’s then-current applicable time and material rates/price.
3. Delivery. 3.1 Unless specifically agreed otherwise by Seller and Buyer in writing with respect to the particular Product ordered, Products manufactured, assembled or warehoused in the continental U.S. are delivered F.O.B. shipping point of origin, and Products shipped from outside the continental U.S. are delivered F.O.B. point of entry.
3.2. All lead-times and all shipping/delivery dates are approximate only, and are among other things dependent upon the Product factory’s production schedule, and prompt receipt by Seller of all necessary information and approvals from Buyer. In no event will the indicated leadtime or shipping/delivery period begin to run prior to Seller’s receipt of all necessary information, approvals and completion of all details deemed necessary by Seller for execution of the order. Seller reserves the right to deliver in installments. Notwithstanding any agreement with respect to delivery terms or payment of transportation charges, the risk of loss or damage shall pass to Buyer and delivery shall be deemed to be complete upon delivery to a private or common carrier or upon moving into storage, whichever occurs first, at the point of shipment for Products assembled, manufactured or warehoused in the continental U.S. or at the point of entry for Products shipped from outside the continental U.S.
4. Buyer’s Inspection. Buyer shall have a reasonable time after receiving the Product to inspect the Product. Any rejection must be based on objective standards of nonconformity based on the contract as opposed to Buyer’s own subjective judgment. Any rejection must be submitted to Seller in writing, and the writing must provide reasonable detail of the alleged non-conformities, within a reasonable time after receiving the Product. Seller shall have reasonable opportunities to inspect the allegedly non-conforming Product, and to at Seller’s option (i) replace the non-conforming Product, or (ii) modify the non-conforming Product to make it conforming, or (iii) take back non-conforming Product and refund the purchase price thereof less a reasonable allowance for use. It is acknowledged that Buyer shall have no right to enter Seller’s facility (or any third party’s facility) to inspect or test the Product or to request Seller to conduct testing. However, if testing/inspection is specified and quoted by Seller in writing and thereafter agreed upon between the Parties in writing, Seller will conduct agreed upon tests and/or schedule agreed upon inspections/reviews by Buyer with respect to the Product. Seller expressly reserves the right to charge Buyer for any such agreed upon tests/inspections (if any). Any such agreed upon test/inspection (if any) shall take place prior to shipment from the factory. The location of any such agreed-upon test/inspection (if any) shall be Seller’s (or Seller’s affiliate’s) applicable factory and the procedures/standards/criteria for the test/inspection shall be Seller’s normal applicable procedures/ standards/ criteria.
5. Price, Payment. Seller’s price in effect at the time of shipment shall apply. Unless specified otherwise in Seller’s written quotation, prices are ex-works and expressly do not include tax, packaging, loading, freight, unloading, transport insurance, assembly, customs, installation, start-up, training, maintenance, travel costs, and/or other expenditures. Unless other payment terms are specified by Seller in writing, the payment terms are Net 30 days after Seller’s invoice date. Invoices shall be paid in full and Buyer shall not be entitled to set-off or to withhold payment. If Buyer fails to pay any invoice when due, Seller may defer deliveries under this or any other contract with Buyer or require receipt of satisfactory security for or cash in payment of any such invoice. Buyer’s failure to pay invoices when due shall (at the option of Seller) constitute a default, and Seller shall have all remedies Seller may have under these Terms and
Conditions of Sale and/or applicable law. If, in the judgment of Seller, the financial condition of Buyer at any time prior to delivery does not justify the terms of payment specified, Seller may require payment in advance or cancel any outstanding order, whereupon Seller shall be entitled to receive reasonable cancellation charges. Seller reserves the right to charge late fees on overdue amounts at a rate of 1.5% (one and a half percent) per month or the rate permitted by law, whichever is lower. In the event Seller reasonably incurs any expense for collection of any overdue amounts owed by Buyer, Seller reserves the right to add reasonable collection charges (including reasonable attorneys’ fees) to the balance due and Buyer shall pay all such reasonable charges. Any and all export shipments by Seller are subject to Buyer arranging for an irrevocable Letter of Credit in favor of Seller from a recognized United States bank. Should the order fall in a category that requires progress payments, the Letter of Credit shall be arranged to release payment in accordance with the agreed payment schedule. It is expressly understood and agreed that all Letters of Credit shall: (a) be acceptable to Seller; (b) be maintained in sufficient amounts and for the period necessary to meet all payment obligations; (c) be irrevocable; and (d) be issued or confirmed by a financial institution acceptable to Seller.
6. Taxes. Taxes are not included in the price, unless the price indicated by Seller specifically lists such tax as a line item. Buyer is responsible for any and all applicable taxes (except any taxes on Seller’s income). If sales tax, use tax, or similar taxes in addition to any listed specifically as part of the stated purchase price are imposed upon Seller, Buyer agrees to pay the same or reimburse Seller. Seller will accept a valid exemption certificate from Buyer, if applicable.
7. Security Interest. Seller reserves and retains a security interest in the Product and the proceeds thereof until Buyer has paid Seller the full price.
Seller shall have the rights and remedies of a secured party under the Uniform Commercial Code. Buyer authorizes Seller to file financing statements and to do any other act or thing necessary or useful in perfecting Seller’s security interest in the Product, and agrees to execute any and all documents required to be executed on its part to perfect said security interest.
8.1. Each party has the right to cancel the order in whole or in part (with immediate effect upon writing or at a later time at the non-breaching party’s discretion) if the other party becomes insolvent, makes a general assignment for the benefit of creditors, suffers or permits the appointment of a receiver for its business or assets, becomes subject to any proceeding under any bankruptcy or insolvency law, or has wound up or liquidated (voluntarily or otherwise). In addition, each party has the right to cancel the order in whole or in part if the other party fails, within 30 days after receipt of written notice from the non-breaching party specifying the material breach and intent to terminate, to commence and diligently pursue cure of the breach. Notwithstanding anything else, it is acknowledged that Seller may suspend Seller’s performance in whole or in part immediately if Buyer fails to make any payments when due.
8.2. Except as set forth in Section 8.1, above, Buyer shall have no right to cancel a Product order (or a part of the order) unless Seller, at it sole discretion, agrees in writing that the specific order (or the part of the order) may be cancelled and Buyer pays cancellation charges in accordance with Seller’s cancellation charge policy. The cancellation charges may include, among other things, all costs and expenses incurred, and to cover commitments made, by Seller, and the fee shall not exceed the Product’s purchase price.
9. Returns. Buyer shall have no right to return any Product unless Seller, at its sole discretion, agrees in writing that the specific Product may be returned. If Seller agrees that Buyer may return the Product, Seller will issue a Return Material Authorization number to Buyer, and Buyer must include such Return Material Authorization number with the return. All such returns must be in accordance with Seller’s instructions (including but not limited with respect to condition of the Product, shipping, and restocking fees, if applicable).
10. Scope of Service.
10.1. Unless specifically agreed upon by Seller and Buyer in writing, Seller will not perform installation, startup, maintenance, training or any other Service. Any and all Service to be performed by Seller shall be scheduled and confirmed with Seller’s service department. Seller’s performance of Service is subject to Seller’s normal working hours (8:30 am to 5:00 pm, Monday through Friday excluding public holidays), unless expressly agreed otherwise. If any forklift, crane, and/or other lifting or rigging equipment or lighting equipment is necessary (as reasonably determined by Seller’s service technician) for Seller to perform Service on Buyer’s premises, Buyer shall supply such equipment at its own expense together with sufficiently skilled and qualified labor in connection therewith, unless expressly agreed otherwise. If Seller will provide any Service, the scope of work of the Service is limited to the agreed-upon service activities specified in Seller’s written service quotation and any changes thereto mutually agreed between Buyer and Seller in writing. Only the agreed-upon Product or other equipment identified by serial number (or by another agreed-upon method of identification) in Seller’s written quotation is included in the scope of work of such Service.
10.2 It is expressly understood and agreed that the Service (if any) to be provided by Seller is ancillary to, and not a substitute for, Buyer’s full compliance with the Product’s/equipment’s manual (including but not limited with respect to daily and weekly inspection/maintenance), accompanying labels, inserts and other applicable documents by the manufacturer in addition to specific recommendations (if any) to Buyer by Seller’s Service technician. For example, if Seller will provide preventative maintenance, such service is not a substitute for Buyer’s compliance with any daily or weekly or other routine maintenance instructions contained in the Product’s/equipment’s manual.
10.3. In the event the Service (if any) to the provided by Seller entails Service obligations over a period of time (whether under a maintenance program or otherwise), it is expressly understood and agreed that such Service does not include (a)services, parts, or repairs required as a result of modification or repair by anyone other than Seller’s personnel; (b) service, parts, or repairs required as a result of improper installation, improper storage, improper use, or improper maintenance by anyone other than Seller’s personnel; (c)repair of damages caused by external factors, including, but not limited to: loss or damage resulting from the elements, misuse, abuse, or the operation of the Product/equipment in improper operating environments, including, but not limited to, locations having defective or inadequate power sources, static electricity, or excessive interference caused by external sources; (d) consumable items (unless the consumable item is specifically included in Seller’s written quotation).
11. Seller’s Insurance.
Seller’s insurance obligations shall be as follows. Seller shall have insurance coverage if Seller’s personnel or representatives will be physically present on Buyer’s premises (or anywhere else), and such insurance coverage shall be as follows:
a) Commercial General Liability insurance in an amount of $2,000,000 each occurrence for bodily injury and physical damage to tangible property, subject to an annual aggregate not to exceed $5,000,000;
b) Automobile Liability insurance in an amount of $2,000,000 combined single limit each occurrence;
c) Worker’s Compensation insurance in accordance with applicable statutory law; and
d) Employer’s Liability insurance in an amount of $1,000,000 for bodily injury each accident or disease.
At Buyer’s reasonable request, Seller shall provide an ACORD form of certificate confirming the above-stated insurance coverage. Seller shall have no other insurance-related requirement, unless specifically agreed to in writing by an authorized manager of Seller at Seller’s U.S. headquarters. Seller shall not be required to add Buyer or any third party as an additional insured to any insurance policy or to waive subrogation, unless specifically agreed to in writing by an authorized manager of Seller at Seller’s U.S. headquarters. Any agreement by Seller to name Buyer (and/or any third party) as an additional insured on Seller’s insurance policy shall be applicable only to Seller’s above-mentioned Commercial General Liability insurance policy and shall be subject to ISO CG 20 10 Additional Insured Endorsement Form, July 2004 edition.Any agreement by Seller to waive any rights of subrogation is subject to the condition that Buyer carries comparable insurance coverage and likewise waives all rights of subrogation.
12.1. Seller warrants that (a) any and all Products delivered hereunder shall be delivered free of defects in material and workmanship, and (b) any and all Services provided by Seller shall be performed in a workmanlike manner. The above-stated warranty for Products shall expire fifteen (15) months from the date of shipment of the Product from Seller to Buyer or twelve (12) months from date of initial start-up of the Product, whichever expires first. Normal wear and tear and consumables/wear items (including but not limited to cables, hoses, seals and valves) are expressly excluded from warranty. The above-stated warranty for Services shall expire sixty (60) days after the particular Service visit by Seller. If the Product is a part (for example a spare part, replacement part), the above-stated warranty shall expire sixty (60) days after Buyer receives such Product/part.
12.2 If Products do not meet the above-stated Product warranty, Buyer shall promptly within the above-stated Product warranty period notify Seller in writing. Subject to this warranty, Seller will at Seller’s option (i) repair the nonconforming Product; (ii) replace the nonconforming Product; or (iii) take back the nonconforming Product and refund or credit monies paid by Buyer to Seller for such nonconforming Product less a reasonable allowance for use. Replaced Products/parts become the property of Seller. If Services do not meet the above-stated Service warranty, Buyer shall promptly within the above-stated Service warranty period notify Seller in writing. Subject to this warranty, Seller will at Seller’s option (i) reperform the defective portion of the Service or (ii) refund or credit monies paid by Buyer to Seller for the non-conforming portion of such Service. Warranty repair or replacement or re-performance shall not extend or renew the applicable warranty period; the Product/Service shall remain under warranty only for the unexpired portion of the original warranty period for the Product/Service.
12.3 Some examples of conditions NOT covered by the warranty are failures or defects in the Product caused by: accident, abuse, neglect, Acts of God, corrosion, normal wear and tear, improper installation, improper storage, failure to perform proper maintenance at the proper frequency in accordance with the Product’s instruction manual, improper use, the use of unsuitable parts or attachments, the use of lubricants or fluids other than those recommended in the Product’s manual, and unauthorized modifications.
12.4 The warranties and remedies are conditioned upon (a) proper installation, proper use, and proper maintenance of the Product, (b) Buyer keeping complete and accurate records of maintenance throughout the warranty period and giving Seller access to the records at Seller’s request in connection with warranty claim review/processing, and (c) modification of the Product only if and as authorized in writing by Seller to Buyer. Failure to meet any such conditions will render the warranty null and void. In connection with making a warranty claim, Buyer must in writing promptly contact Seller. Seller will then determine whether Buyer should either (a) send the Product to Seller or (b) make the Product available at Buyer’s location (or another location) for examination and/or warranty work by Seller. Unless agreed otherwise in writing with respect to the particular warranty claim, the cost of de-installation, re-installation, and transportation of the Product to and from Seller, and (if applicable) the cost of travel, meals and lodging for Seller’s personnel shall be borne by Buyer. Buyer shall not return any Product (whether defective or not) without an applicable Return Materials Authorization number issued by Seller to Buyer for the specific Product. Seller reserves the right to inspect any alleged nonconforming Product at Buyer’s facility before return of any Product.
12.5 THE ABOVE-STATED WARRANTIES IN SECTION 12 ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES WHETHER ORAL, EXPRESS, IMPLIED OR OTHERWISE (EXCEPT THE IMPLIED WARRANTY OF TITLE). ANY AND ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY AND ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY DISCLAIMED. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SPECIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY CONSEQUENTIAL DAMAGES RESULTING FROM ANY NONCONFORMING PRODUCT/SERVICE. Correction of nonconformities (i.e. warranty repair or replacement or refund or credit, at Seller’s option, of Products that do not conform to the Product warranty above, and re-performance or refund or credit, at Seller’s option, of Service that does not conform to the service warranty above) pursuant and subject to the above-stated warranties provides the exclusive remedies with respect to any nonconforming Product/Service.
12.6. Any and all USED Product (if Buyer and Seller have agreed in writing that Seller is selling a used Product to Buyer) is sold AS-IS and with no warranty of any kind (express, implied or otherwise), except the implied warranty of title, and SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. In addition, any and all Products provided by
Seller for demonstration, evaluation, or prototype purposes are provided AS-IS and with no warranty of any kind (express, implied, or otherwise) and SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
12.7. Products/components sold by Seller to Buyer but not manufactured by Seller or by an affiliate are not warranted by Seller. To the extent permitted, Seller hereby assigns any warranties made to Seller for such Products/components. No warranty, whether expressed, implied, or otherwise (except the implied warranty of title), is provided by Seller with respect to any Products/components not manufactured by Seller or by an affiliate, and SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
13. Software. In the event the Product and/or Service contains or otherwise includes software, the software shall remain the proprietary property of Seller (and/or its affiliates or other third parties who are Seller’s licensors, if applicable), and in no event shall title thereto be sold or transferred to Buyer. In the event a Product and/or Service supplied hereunder contains or otherwise includes software, the following shall apply: (i) subject to Buyer complying with these Terms and Conditions of Sale, Buyer is granted a non-exclusive, non-transferable license to properly use the software in machine readable object code form only; (ii) any license so granted is limited to the proper use of the Product/Service containing the software only in the manner authorized by Seller; and (iii) Buyer shall not sublicense the software to any other entity nor assign its license rights. Notwithstanding the above, in the event Buyer transfers (in compliance with any and all applicable laws and regulations) title to any Product containing the software, the license granted hereby shall transfer to Buyer’s transferee. Any license granted hereunder shall continue: (i) until terminated in accordance with this agreement, or, (ii) for the useful life of the Product/Service in which the software is embedded or is otherwise an integral part, or, (iii) for the useful life of the software, whichever is shorter. Any modification, alteration, or removal or unauthorized use of any software contained in any Product/Service constitute a breach of this agreement and shall automatically terminate any license granted hereby. Buyer shall not (and shall not permit any third party to) create derivative works based on the software, or reverse engineer, or disassemble or decompile the software, or transfer, copy, or modify, the software. In the event a separate written applicable Sellerprovided Software License is provided with the Product/Service, specified in Seller’s quotation, and/or otherwise communicated to Buyer, then the software shall be governed, in order of precedence, by the terms of the separate Software License and then by any non-conflicting terms hereof.
14. Intellectual Property. No patents, copyrights, trademarks, or other intellectual property is being sold, assigned, or otherwise transferred to Buyer.It is expressly acknowledged that Seller retains all right, title and interest in and to all inventions, discoveries, ideas, works of authorship, processes, methods, know-how, and techniques developed, discovered or conceived by Seller or its employees, including without limitation those developed and/or used in connection with the manufacture of Products or performing Services hereunder. No drawings, designs, specifications, or anything else provided by Seller shall be deemed to be “work made for hire” as that term is used in connection with the U.S. Copyright Act.
15. Intellectual Property Indemnity. Seller agrees to defend and indemnify Buyer against any claim by any third party alleging that any Product or Service (furnished by Seller to Buyer hereunder) infringes any United States patent, trademark, trade dress, or copyright, provided that Buyer (i) promptly notifies Seller in writing of the claim and provides Seller with a copy of the claim; (ii) gives Seller full authority to control the defense and settlement of the claim; and (iii) provides Seller with full information and reasonable assistance at Seller’s expense. Seller shall ensure that no such settlement intending to bind Buyer shall be entered into without Buyer's prior written consent, which consent shall not be unreasonably withheld or delayed. Buyer shall be permitted to participate in the defense and settlement with counsel of its own choosing at its own expense. In case the Product/Service, or any part thereof, as a result of any suit or proceeding so defended is held to constitute infringement or its use by Buyer is enjoined, Seller will, at Seller’s option and expense, either: (i) procure for Buyer the right to continue using said Product; or (ii) replace it with substantially equivalent non-infringing Product; or (iii) modify the Product so it becomes non-infringing; or (iv) take back the infringing Product and refund or credit monies paid by Buyer to Seller for such infringing Product less a reasonable allowance for use. Seller will have no duty or obligation to Buyer under this Section to the extent that the Product/Service is (i) supplied according to Buyer's design or instructions wherein compliance therewith has caused Seller to deviate from Seller’s normal designs or specifications, (ii) modified, (iii) combined with items, systems, methods, or processes not furnished hereunder and by reason of said design, instruction, modification, or combination a claim is brought against Buyer. If by reason of such design, instruction, modification or combination, a claim is brought against Seller, Buyer shall protect Seller in the same manner and to the same extent that Seller has agreed to protect Buyer under the provisions above in this paragraph.
THIS PARAGRAPH STATES SELLER’S AND ITS AFFILIATES’ EXCLUSIVE LIABILITY FOR INFRINGEMENT OF ANY THIRD PARTY’S PATENT, TRADEMARK, TRADE DRESS, AND/OR COPYRIGHT.
Each Party (as to information disclosed, the “Disclosing Party”) may each disclose Confidential Information to the other Party (the “Receiving Party”) in connection with this order/contract and/or performance hereunder. “Confidential Information” means information related to the business, products, or services of the Disclosing Party that is not generally known to the public. The Receiving Party agrees: (i) to use the Confidential Information only as the Disclosing Party intended it to be used by the Receiving Party in connection with the order/contract, and (ii) to take reasonable measures to prevent disclosure of the Confidential
Information to third parties. Upon the Disclosing Party’s request, the Receiving Party shall destroy or return to Disclosing Party all copies of Confidential Information. The obligations of this Section 16 shall not apply to any portion of the Confidential Information that: (i) is or becomes generally available to the public other than as a result of disclosure by the Receiving Party, its representatives or affiliates, (ii) is independently developed by the Receiving Party, its representatives or affiliates, without reference to or use of the Confidential Information, (iii) is or becomes available to the Receiving Party on a non-confidential basis from a source other than the Disclosing Party when the source is not, to the best of the Receiving Party’s knowledge, subject to a confidentiality obligation to the Disclosing Party; or (iv) is required to be disclosed by valid legal process or law provided that the Receiving Party who intends to make such disclosure shall promptly notify the Disclosing Party prior to such disclosure and shall reasonably cooperate in attempts to maintain the confidentiality of the Confidential Information. It is expressly agreed that this Section 16 survives any expiration/termination of the order/contract.
17. Tooling. Any and all tooling, fixtures, dies, molds, patterns and other materials used by Seller (or, if applicable, an affiliate of Seller who manufactures the Product) to produce the Products are and shall remain the property of Seller (or of Seller’s affiliate, if applicable). Seller is not selling any such tooling, fixtures, dies, molds, patterns, etc. to Buyer. Buyer is not providing Seller any such tooling, fixtures, dies, molds, patterns, etc., unless specifically agreed by the parties in writing signed by hand by authorized managers of the parties (in which case Buyer will retain any ownership rights Buyer has in the items provided to Seller).
18. Export Control, and Foreign Corrupt Practices Act. Products, Services, technical data, technology, software, and any other items or information provided by Seller to Buyer shall at all times be subject to any and all applicable export control laws and regulations, including but not limited to applicable U.S. Export Administration Regulations, United Nations resolutions and European Union directives relating to trade embargoes and restrictions.Buyer expressly agrees that no Product, Services, technical data, technology, software or other items or information or assistance or other item received from Seller shall be exported (or re-exported) by Buyer or its authorized transferees (if any), directly or indirectly, in violation of any law or regulation. Buyer further agrees that Buyer shall neither violate nor cause Seller to violate the U.S. Foreign Corrupt Practices Act of 1977 (as amended), in connection with any sale or distribution of the Products and/or Services. Buyer agrees to indemnify Seller from any and all costs, liabilities, penalties, sanctions, and fines arising from Buyer’s non-compliance with this Section 18.
19. Force Majeure. If Seller is not able to perform or is delayed due to any cause beyond its reasonable control (including but not limited to acts of God, strike or other concerted action of workmen, act or omission of any governmental authority, act of war or terrorism, act of the public enemy, embargo, delays of carriers, or delays by Seller’s usual suppliers), the time of performance will be extended by the amount of time reasonably sufficient to make up for the delay.
20. LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING ELSE, THE TOTAL LIABILITY OF SELLER IN THE AGGREGATE (ARISING OUT OF OR RELATED TO THE PRODUCTS, SERVICE, CONTRACT, AND/OR BREACH OR PERFORMANCE OF CONTRACT) SHALL BE LIMITED TO THE ACTUAL PURCHASE PRICE AMOUNT RECEIVED BY SELLER FROM BUYER FOR THE PRODUCT/SERVICE INVOLVED IN THE CLAIM (regardless of whether such damages are characterized as arising out of breach of warranty, tort, contract, or otherwise); however it is understood that nothing in this Section shall limit Seller’s liability (if any) under applicable law for personal injury or liability that cannot be limited or excluded under applicable law.For purposes of this Section, the term “Seller” means Seller, its affiliates, suppliers, and subcontractors, and their respective employees/agents.
21. NO CONSEQUENTIAL DAMAGES, etc. NOTWITHSTANDING ANYTHING ELSE, UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SPECIAL DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR REVENUE, LOSS OF TOTAL OR PARTIAL USE OF PRODUCTS OR SERVICES, DOWNTIME COSTS, AND DELAY COSTS), EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF SUCH DAMAGES ARE FORESEEABLE (regardless of whether such damages are characterized as arising out of breach of warranty, tort, contract, or otherwise). For purposes of this Section, the term “Seller” means Seller, its affiliates, and subcontractors (if any), and their respective employees/agents.
22. U.S. Government Contracts. If the Products and/or Service are to be used in the performance of a U.S. Government contract or subcontract, Buyer expressly agrees to notify Seller in writing in connection with Buyer’s order.Further, if the Products and/or Service are to be used in the performance of a U.S. Government contract or subcontract, only those clauses of the applicable U.S. Government procurement regulations which are mandatorily required by federal statue to be included in this order/contract shall be incorporated herein by reference.
23. Equal Employment Opportunity Requirements.If applicable to this agreement,Seller and Buyer shall abide by the requirements of 41 CFR §§ 60-1.4(a), 60-300.5(a), and 60-741.5(a). These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. Moreover, these regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability.
24. Miscellaneous. 24.1. Typographical and/or clerical errors in Seller’s quotations are subject to Seller’s correction.
24.2. Buyer’s issuance of a purchase order or Buyer’s receipt of any Product from Seller shall (without prejudice to any other manner in which acceptance of these Terms and Conditions of Sale may be evidenced) constitute Buyer’s assent to these Terms and Conditions of Sale.
24.3. THESE TERMS AND CONDITIONS OF SALE CONTAIN THE ENTIRE AGREEMENT BETWEEN SELLER AND BUYER WITH RESPECT TO TERMS AND CONDITIONS AND SUPERSEDE ANY AND ALL PREVIOUS OR CONTEMPORANEOUS STATEMENTS, AGREEMENTS, AND REPRESENTATIONS WITH RESPECT TO TERMS AND CONDITIONS. This agreement cannot be superseded, amended, or modified except by an applicable negotiated agreement signed in handwriting by a company officer of Seller and an authorized representative of Buyer. Any purchase order issued by Buyer to Seller is for Buyer’s internal purposes and no term or condition stated in such document shall modify these Terms and Conditions of Sale. Seller’s execution of any document issued by Buyer shall constitute only an acknowledgment of receipt thereof, and shall not be construed as an acceptance of any of the terms or conditions therein that differ from, conflict with, or add to these Terms and Conditions of Sale.
24.4. Neither Party shall assign or transfer this order/contract without the prior written consent of the other Party (which consent shall not be unreasonably withheld); any purported assignment in violation of this sentence shall be void. Irrespective of the foregoing, Seller may without consent assign this order/contract (or any of rights or obligations hereunder) to any of its affiliates and/or use sub-contractors.
24.5. The provisions of these Terms and Conditions of Sale are severable and the invalidity or unenforceability of any provision hereof shall not affect the validity or enforceability of any other provision. In addition, if any provision of these Terms and Conditions of Sale (or portion thereof) is determined by a court to be unenforceable as drafted by virtue of the duration, scope, extent, or character of any obligation contained herein or otherwise, the parties acknowledge that it is their intention that such provision (or portion thereof) shall be construed in a manner designed to effectuate the purposes of such provision to the maximum extent enforceable under applicable law.
24.6. Neither Party’s failure to enforce, or its waiver of a breach of, any provision contained in these Terms and Conditions of Sale shall constitute a waiver of any other breach or of such provision.
24.7. All headings, captions and numbering in this document are for convenience of reference only and shall not be used to interpret any meaning of any terms or condition.
24.8. The validity, performance, and all other matters arising out of, or relating to the interpretation or effect of this order/contract shall be governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule (whether of Michigan or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of Michigan. Any legal suit, action or proceeding and all other matters arising out of or relating to the interpretation and effect of this order/contract shall be instituted in a court (federal court or state court) sitting in Wayne County in Michigan, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such action, suit, or proceeding. Notwithstanding the foregoing, Seller shall have the right at any time (at its option and where legally available) to immediately commence a legal suit, action, or proceeding in any court of competent jurisdiction (in any State or country) in order to seek an injunction or similar order to enforce the confidentiality provisions set forth in Section 16 above (entitled “Confidentiality”), and/or to enforce or protect intellectual property rights or trade secrets, and/or to enforce the provisions of Section 5 above (entitled “Price, Payment”).
24.9. Seller and Buyer expressly agree that the United Nations Convention on International Sale of Goods shall not apply.
24.10. The parties are independent contractors under this agreement and no other relationship is intended including, without limitation, any partnership, franchise, joint venture, agency, employer/employee, fiduciary, master/servant relationship, or any other special relationship.
24.11. All rights and obligations contained in these Terms and Conditions of Sale, which by their nature or effect are required or intended to be kept, observed, or performed after the termination or expiration of the order/contract will survive and remain binding upon and for the benefit of the parties, their successors, and permitted assigns.