assuring that all performance, endurance, maintenance, safety and warning
requirements of the application of the Products are met. Buyer must
analyze all aspects of the application and follow applicable industry
standards, specifications, and any technical information provided with the
Quote or the Products, such as Seller’s instructions, guides and
specifications. If Seller provides options of or for Products based upon data
or specifications provided by Buyer, 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
Buyer is not the end-user of the Products, Buyer will ensure such end-user
complies with this paragraph.
13.
Use of Products, Indemnity by Buyer.
Buyer shall comply with all
instructions, guides and specifications provided by Seller with the Quote or
the Products.
Unauthorized Uses
. If Buyer uses or resells the Products in
any way prohibited by 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. Further, 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, arising out of or in connection with: (a)
improper selection, design, specification, application, or any misuse of
Products; (b) any act or omission, negligent or otherwise, of Buyer; (c)
Seller’s use of patterns, tools, equipment, plans, drawings, designs,
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, tampering with or repackaging the Products; 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.
14.
Cancellations and Changes.
Buyer may not cancel or modify,
including but not limited to movement of delivery dates for the Products, 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 and any additional expense.
Seller, at any time, may change features, specifications, designs and
availability of Products.
15.
Limitation on Assignment.
Buyer may not assign its rights or
obligations without the prior written consent of Seller.
16.
Force Majeure.
Seller is not liable for delay or failure to perform any
of its obligations by reason of events or circumstances beyond its
reasonable control. Such circumstances include without limitation:
accidents, labor disputes or stoppages, government acts or orders, acts
of nature, pandemics, epidemics, other widespread illness, or public
health emergency, delays or failures in delivery from carriers or suppliers,
shortages of materials, war (whether declared or not) or the serious threat
of same, riots, rebellions, acts of terrorism, fire or any reason whether
similar to the foregoing or otherwise. Seller will resume performance as
soon as practicable after the event of force majeure has been removed.
All delivery dates affected by force majeure shall be tolled for the duration
of such force majeure and rescheduled for mutually agreed dates as soon
as practicable after the force majeure condition ceases to exist. Force
majeure shall not include financial distress, insolvency, bankruptcy, or
other similar conditions affecting one of the parties, affiliates and/or sub-
contractors.
17.
Waiver and Severability.
Failure to enforce any provision of these
Terms will not invalidate that provision; nor will any such failure prejudice
either party’s right to enforce that provision in the future. Invalidation of any
provision of these Terms shall not invalidate any other provision herein and,
the remaining provisions will remain in full force and effect.
18.
Termination.
Seller may terminate any agreement governed by or
arising from these Terms for any reason and at any time 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) becomes or
is deemed insolvent, (c) appoints or has appointed a trustee, receiver or
custodian for all or any part of Buyer’s property, (d) files a petition for relief
in bankruptcy on its own behalf, or one is filed against Buyer by a third party,
(e) makes an assignment for the benefit of creditors; or (f) dissolves its
business or liquidates all or a majority of its assets.
19.
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.
20. 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 Seller to 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) arising 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 claims of infringement of Intellectual
Property Rights.
21.
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 irrevocably 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.
22.
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 and purchase. 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.
23.
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 Products from Seller in a manner or for a purpose that violates Export
Laws or would cause Seller to be in violation of Export Laws. Buyer agrees
to promptly and reliably provide Seller all requested information or
documents, including end-user statements and other written assurances,
concerning Buyer’s ongoing compliance with Export Laws.
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