Mitsubishi Electric WS0-CPU0 Operating Manual page 319

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.