g. The Product information and statements contained on MELCO's website and in catalogs, manuals, technical bulletins or other
materials provided by MELCO are provided as a guide for Customer's use. They do not constitute warranties and are not
incorporated in the contract of sale for the Products.
h. These terms and conditions constitute the entire agreement between Customer and MELCO with respect to warranties,
remedies and damages and supersede any other understandings, whether written or oral, between the parties. Customer
expressly acknowledges that any representations or statements made by MELCO or others concerning the Products outside
these terms are not part of the basis of the bargain between the parties and are not factored into the pricing of the Products.
i. THE WARRANTIES AND REMEDIES SET FORTH IN THESE TERMS ARE THE EXCLUSIVE AND ONLY WARRANTIES
AND REMEDIES THAT APPLY TO THE PRODUCTS.
j. MELCO DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
3. Limits on Damages.
a. MELCO'S MAXIMUM CUMULATIVE LIABILITY BASED ON ANY CLAIMS FOR BREACH OF WARRANTY OR CONTRACT,
NEGLIGENCE, STRICT TORT LIABILITY OR OTHER THEORIES OF RECOVERY REGARDING THE SALE, REPAIR,
REPLACEMENT, DELIVERY, PERFORMANCE, CONDITION, SUITABILITY, COMPLIANCE, OR OTHER ASPECTS OF THE
PRODUCTS OR THEIR SALE, INSTALLATION OR USE SHALL BE LIMITED TO THE PRICE PAID FOR PRODUCTS NOT AS
WARRANTED.
b. Although MELCO has obtained the certification for Product's compliance to the international safety standards IEC61508 and
EN954-1/ISO13849-1 from TUV Rheinland, this fact does not guarantee that Product will be free from any malfunction or
failure. The user of this Product shall comply with any and all applicable safety standard, regulation or law and take appropriate
safety measures for the system in which the Product is installed or used and shall take the second or third safety measures
other than the Product. MELCO is not liable for damages that could have been prevented by compliance with any applicable
safety standard, regulation or law.
c. MELCO prohibits the use of Products with or in any application involving power plants, trains, railway systems, airplanes, airline
operations, other transportation systems, amusement equipments, hospitals, medical care, dialysis and life support facilities or
equipment, incineration and fuel devices, handling of nuclear or hazardous materials or chemicals, mining and drilling, and
other applications where the level of risk to human life, health or property are elevated.
d. MELCO SHALL NOT BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT OR PUNITIVE DAMAGES,
FOR LOSS OF PROFITS, SALES, OR REVENUE, FOR INCREASED LABOR OR OVERHEAD COSTS, FOR DOWNTIME OR
LOSS OF PRODUCTION, FOR COST OVERRUNS, OR FOR ENVIRONMENTAL OR POLLUTION DAMAGES OR CLEAN-UP
COSTS, WHETHER THE LOSS IS BASED ON CLAIMS FOR BREACH OF CONTRACT OR WARRANTY, VIOLATION OF
STATUTE, NEGLIGENCE OR OTHER TORT, STRICT LIABILITY OR OTHERWISE.
e. In the event that any damages which are asserted against MELCO arising out of or relating to the Products or defects in them,
consist of personal injury, wrongful death and/or physical property damages as well as damages of a pecuniary nature, the
disclaimers and limitations contained in these terms shall apply to all three types of damages to the fullest extent permitted by
law. If, however, the personal injury, wrongful death and/or physical property damages cannot be disclaimed or limited by law or
public policy to the extent provided by these terms, then in any such event the disclaimer of and limitations on pecuniary or
economic consequential and incidental damages shall nevertheless be enforceable to the fullest extent allowed by law.
f. In no event shall any cause of action arising out of breach of warranty or otherwise concerning the Products be brought by
Customer more than one year after the cause of action accrues.
g. Each of the limitations on remedies and damages set forth in these terms is separate and independently enforceable,
notwithstanding the unenforceability or failure of essential purpose of any warranty, undertaking, damage limitation, other
provision of these terms or other terms comprising the contract of sale between Customer and MELCO.
4. Delivery/Force Majeure.
a. Any delivery date for the Products acknowledged by MELCO is an estimated and not a promised date. MELCO will make all
reasonable efforts to meet the delivery schedule set forth in Customer's order or the purchase contract but shall not be liable for
failure to do so.
b. Products stored at the request of Customer or because Customer refuses or delays shipment shall be at the risk and expense
of Customer.
c. MELCO shall not be liable for any damage to or loss of the Products or any delay in or failure to deliver, service, repair or
replace the Products arising from shortage of raw materials, failure of suppliers to make timely delivery, labor difficulties of any
kind, earthquake, fire, windstorm, flood, theft, criminal or terrorist acts, war, embargoes, governmental acts or rulings, loss or
damage or delays in carriage, acts of God, vandals or any other circumstances reasonably beyond MELCO's control.
5. Choice of Law/Jurisdiction.
These terms and any agreement or contract between Customer and MELCO shall be governed by the laws of the State of New
York without regard to conflicts of laws. To the extent any action or dispute is not arbitrated, the parties consent to the exclusive
jurisdiction and venue of the federal and state courts located in the Southern District of the State of New York. Any judgment there
obtained may be enforced in any court of competent jurisdiction.
6. Arbitration.
Any controversy or claim arising out of, or relating to or in connection with the Products, their sale or use or these terms, shall be
settled by arbitration conducted in accordance with the Center for Public Resources (CPR) Rules for Non-Administered Arbitration
of International Disputes, by a sole arbitrator chosen from the CPR's panels of distinguished neutrals. Judgment upon the award
rendered by the Arbitrator shall be final and binding and may be entered by any court having jurisdiction thereof. The place of the
arbitration shall be New York City, New York. The language of the arbitration shall be English. The neutral organization designated
to perform the functions specified in Rule 6 and Rules 7.7(b), 7.8 and 7.9 shall be the CPR.
