270NH3.MAN.REVD.062019
Page
16
of
17
learns of or has reason to know of any violation of FCPA and/or
or UKBA in connection with the sale or distribution of
Products/Services, Buyer shall immediately advise Seller.
C. Buyer further warrants that Buyer shall not violate or cause
Seller to violate the U.S. Antiboycott Provisions of the U.S.
Export Administration Regulations issued pursuant to the U.S.
Export Administration Act of 1979, as amended, in connection
with Buyer’s purchase of Products/Services and that Buyer
shall not request or require Seller to make statements or
certifications against countries that are not subject to boycott
by the U.S.
VI. WARRANTIES
A. Seller warrants that Products manufactured by Seller, when
delivered, shall be free from defects in material/workmanship.
Seller warrants that Services shall be performed in accordance
with generally accepted industry practice. Seller's obligations
under this warranty shall be limited exclusively to repairing or
replacing, at Seller's option, any part of Products which, if
properly installed, used and maintained, proved to have been
defective in material or workmanship within 1 year from the
date of shipment or re-performing the Services. Seller warrants
for a period of 1 year from the date of shipment that software or
firmware, when used with 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/requirements. Buyer shall notify Seller of any
defect in the quality or condition of Products (including
software/firmware) or Services within 7 days of the date of
delivery or performance, unless the defect was not apparent on
reasonable inspection, in which case, within 7 days after
discovery of the defect. If Buyer does not provide such timely
notification, it shall not be entitled to reject Products (including
software/firmware) or Services, and Seller shall have no liability
for such defect.
B. Seller's warranty obligations shall not apply to Products
which (1) have been altered or repaired by someone other than
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 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 Products/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.
VII. PATENTS/INDEMNITY
If Buyer receives a claim that Products, or part thereof
manufactured by Seller infringes a patent, Buyer shall notify
Seller promptly in writing and give Seller information,
assistance and exclusive authority to evaluate, defend and
settle such claim. Where Buyer has furnished
specifications/designs for the manufacture of the allegedly
infringing Products, Buyer shall defend, indemnify and hold
harmless Seller against third-party claims for infringement
arising out of Seller’s use of such specifications/designs.
VIII. 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/Services, shall not exceed the price allocable
to the Products/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, SHALL
SELLER, 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 OR REPLACEMENT 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
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/suppliers the
protection of the preceding sentence. Any action against Seller
must be brought within 18 months after cause of action
accrues.
IX. EXCUSABLE DELAYS
A. Seller shall not be liable for delays in delivery or failure to
perform due directly or indirectly to causes beyond Seller's
reasonable control including but not limited to: acts of God;
war; terrorism; civil commotion; riots; embargoes; government
regulations, orders, instructions or priorities; port congestion;
acts of or failure to act on the part of Buyer or its
agents/employees; fires; floods; sabotage; nuclear incidents;
earthquakes; storms; epidemics; strikes; lockouts or other labor
difficulties; shortages of or inability to timely obtain proper
labor, materials, components, shipping space or transportation,
fuel, supplies or power at current prices; or due to limitations
imposed by the extent of availability of Seller’s normal
manufacturing facilities.
B. If a delay excused per the above extends for more than 90
days and the parties have not agreed upon a revised basis for
continuing providing Products/Services at the end of the delay,
including adjustment of the price, then either party (except
where delay is caused by Buyer, in which event only Seller)
upon thirty (30) days’ notice may terminate the Order with
respect to the unexecuted portion of the Products/Services,
whereupon Buyer shall promptly pay Seller its reasonable
termination charges upon submission of Seller's invoices
thereof.
