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Parker Hannifin Corporation
|
Pump & Motor Division
|
Kings Mountain, NC
WARNING:
This product can expose you to chemicals including lead or DEHP which are known to the state of California to cause cancer,
birth defects, and other reproductive harm. www.p65warnings.ca.gov
Offer of Sale (Cont’d)
provided by the Buyer, the Buyer is responsible for determining
that such data and specifications are suitable and sufficient for all
applications and reasonably foreseeable uses of the Products. In the
event the Buyer is not the end-user, Buyer will ensure such end-user
complies with this paragraph.
12. Use of Products, Indemnity by Buyer.
Buyer shall comply
with all instructions, guides and specifications provided by Seller
with the Products. Unauthorized Uses. If Buyer uses or resells the
Products for any uses prohibited in Seller’s instructions, guides
or specifications, or Buyer otherwise fails to comply with Seller’s
instructions, guides and specifications, Buyer acknowledges that
any such use, resale, or non-compliance is at Buyer’s sole risk.
Buyer shall indemnify, defend, and hold Seller harmless from any
losses, claims, liabilities,damages,lawsuits,judgments and costs
(including attorney fees and defense costs), whether for personal
injury, property damage, intellectual property infringement or any
other claim, brought by or incurred by Buyer, Buyer’s employees, or
any other person, arising out of: (a) improper selection, application,
design, specification or other misuse of Products provided by Seller;
(b) any act or omission, negligent or otherwise, of Buyer; (c) Seller’s
use of patterns, tooling, equipment, plans, drawings, designs or
specifications or other information or things furnished by Buyer; (d)
damage to the Products from an external cause, repair or attempted
repair by anyone other than Seller, failure to follow instructions,
guides and specifications provided by Seller, use with goods
not provided by Seller, or opening, modifying, deconstructing or
tampering with the Products for any reason; or (e) Buyer’s failure to
comply with these Terms. Seller shall not indemnify Buyer under any
circumstance except as otherwise provided in these Terms.
13. Cancellations and Changes.
Buyer may not cancel or modify
any order for any reason, except with Seller’s written consent and
upon terms that will indemnify, defend and hold Seller harmless
against all direct, incidental and consequential loss or damage.
Seller, at any time, may change Product features, specifications,
designs and availability.
14. Limitation on Assignment.
Buyer may not assign its rights or
obligations without the prior written consent of Seller.
15. Force Majeure.
Seller does not assume the risk and is not
liable for delay or failure to perform any of Seller’s obligations by
reason of events or circumstances beyond its reasonable control
(“Events of Force Majeure”). Events of Force Majeure shall include
without limitation: accidents,strikes or labor disputes, acts of any
government or government agency, acts of nature, delays or failures
in delivery from carriers or suppliers, shortages of materials, or any
other cause beyond Seller’s reasonable control.
16. Waiver and Severability.
Failure to enforce any provision of
these Terms will not invalidate that provision; nor will any such
failure prejudice Seller’s right to enforce that provision in the future.
Invalidation of any provision of these Terms by legislation or other
rule of law shall not invalidate any other provision herein and, the
remaining provisions will remain in full force and effect.
17. Termination.
Seller may terminate any agreement governed by
or arising from these Terms for any reason and at anytime by giving
Buyer thirty (30) days prior written notice. Seller may immediately
terminate, in writing, if Buyer: (a) breaches any provision of these
Terms (b) appoints a trustee, receiver or custodian for all or any part
of Buyer’s property (c) files a petition for relief in bankruptcy on its
own behalf, or one if filed by a third party(d) makes an assignment
for the benefit of creditors; or (e) dissolves its business or liquidates
all or a majority of its assets.
18. Ownership of Software.
Seller retains ownership of all Software
supplied to Buyer hereunder. In no event shall Buyer obtain any
greater right in and to the Software than a right in the nature of a
license limited to the use thereof and subject to compliance with
any other terms provided with the Software.
19. Indemnity for Infringement of Intellectual Property Rights.
Seller is not liable for infringement of any patents, trademarks,
copyrights, trade dress, trade secrets or similar rights (“Intellectual
Property Rights”) except as provided in this Section. Seller will
defend at its expense and will pay the cost of any settlement or
damages awarded in an action brought against Buyer based on a
third party claim that one or more of the Products sold hereunder
infringes the Intellectual Property Rights of a third party in the
country of delivery of the Products by the Seller to the Buyer. Seller’s
obligation to defend and indemnify Buyer is contingent on Buyer
notifying Seller within ten (10) days after Buyer becomes aware of
any such claim, and Seller having sole control over the defense of
the claim including all negotiations for settlement or compromise.
If one or more Products sold hereunder is subject to “such a claim,
Seller may, at its sole expense and option, procure for Buyer the
right to continue using the Products, replace or modify the Products
so as to render them non-infringing, or offer to accept return of the
Products and refund the purchase price less a reasonable allowance
for depreciation. Seller has no obligation or liability for any claim
of infringement: (i) a rising from information provided by Buyer;
or (ii) directed to any Products provided hereunder for which the
designs are specified in whole or part by Buyer; or (iii) resulting from
the modification, combination or use in a system of any Products
provided hereunder. The foregoing provisions of this Section
constitute Seller’s sole and exclusive liability and Buyer’s sole and
exclusive remedy for such claims of infringement of Intellectual
Property Rights.
20. Governing Law.
These Terms and the sale and delivery of all
Products are deemed to have taken place in, and shall be governed
and construed in accordance with, the laws of the State of Ohio,
as applicable to contracts executed and wholly performed therein
and without regard to conflicts of laws principles. Buyer irrevoca-
bly agrees and consents to the exclusive jurisdiction and venue of
the courts of Cuyahoga County, Ohio with respect to any dispute,
controversy or claim arising out of or relating to the sale and delivery
of the Products.
21. Entire Agreement.
These Terms, along with the terms set
forth in the main body of any Quote, forms the entire agreement
between the Buyer and Seller and constitutes the final, complete
and exclusive expression of the terms of sale. In the event of a
conflict between any term set forth in the main body of a Quote and
these Terms, the terms set forth in the main body of the Quote shall
prevail. All prior or contemporaneous written or oral agreements or
negotiations with respect to the subject matter shall have no effect.
These Terms may not be modified unless in writing and signed by an
authorized representative of Seller.
22. Compliance with Laws.
Buyer agrees to comply with all
applicable laws, regulations,and industry and professional
standards, including those of the United States of America, and
the country or countries in which Buyer may operate,including
without limitation the U.S. Foreign Corrupt Practices Act (“FCPA”),
the U.S. Anti-Kickback Act (“Anti-Kickback Act”), U.S. and E.U.
export control and sanctions laws (“Export Laws”), the U.S. Food
Drug and Cosmetic Act (“FDCA”), and the rules and regulations
promulgated by the U.S. Food and Drug Administration (“FDA”),
each as currently amended. Buyer agrees to indemnify, defend, and
hold harmless Seller from the consequences of any violation of such
laws, regulations and standards by Buyer, its employees or agents.
Buyer acknowledges that it is familiar with all applicable provisions
of the FCPA, the
Anti-Kickback Act, Export Laws, the FDCA and the FDA and certifies
that Buyer will adhere to the requirements thereof and not take any
action that would make Seller violate such requirements. Buyer
represents and agrees that Buyer will not make any payment or give
anything of value, directly or indirectly, to any governmental official,
foreign political party or official thereof, candidate for foreign political
office, or commercial entity or person, for any improper purpose,
including the purpose of influencing such person to purchase
Products or otherwise benefit the business of Seller. Buyer further
represents and agrees that it will not receive, use, service, transfer
or ship any Product from Seller in a manner or for a purpose that
violates Export Laws or would cause Seller to be in violation of
Export Laws.”
05/17
