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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.
X.
SOFTWARE/TECHNICAL/PROPRIETARY INFORMATION
A. Buyer shall not acquire any rights to any software which may be
delivered with Products, except as granted in Seller's standard software
license. Any software license granted in connection with Products shall be
an interim license, which may be withdrawn, pending payment for Products
in full.
B. The purchase of Products shall not include any right to supply of
technical information such as drawings or specifications.
C. Proprietary information, including drawings, documents, technical data,
reports, software, designs, inventions and other technical information
supplied by Seller in connection herewith (hereinafter called "Data"), shall
remain Seller's sole property and shall be held in confidence by Buyer.
Data shall not be reproduced, used or disclosed to others by Buyer without
May 2018
Seller's prior written consent. Upon completion of Order, Buyer shall
promptly return all Data to Seller together with all copies or reprints thereof
then in Buyer's possession or control, and Buyer shall thereafter make no
future use, either directly or indirectly, of any Data or any information
derived therefrom without Seller's prior written consent. The foregoing shall
in no way obligate Seller to provide or supply Data.
XI.
DIES, TOOLS, PATTERNS Seller's charges for dies, molds,
patterns and the like represent the Buyer's proportionate cost thereof, it
being expressly understood that they remain the property of Seller.
Modifications made to dies, molds, patterns and the like in order to
manufacture Products shall be at the discretion of Seller.
XII.
GENERAL A. The rights and obligations of the Buyer and
Seller hereunder shall be governed in all respects by the law of the
Commonwealth of Pennsylvania, U.S.A. The exclusive forum for
adjudication of any disputes shall be the federal or state courts of the
Commonwealth of Pennsylvania, and Buyer/Seller hereby consent to
personal jurisdiction and venue in such courts in any proceeding. The
United Nations Convention on the International Sale of Goods shall not
apply.
B. These Terms and Conditions of Sale together with any other terms
specifically agreed to in writing by Seller constitute the entire agreement
between Buyer and Seller and supersede any prior or contemporaneous
representations, agreements, proposals, warranties, or understandings,
oral or written, express or implied. No waiver, modification, amendment,
rescission or other change to these Terms and Conditions of Sale shall
be binding unless specifically agreed to in writing by an authorized
representative of Seller.
C. The invalidity, of any part hereof shall not affect the validity of the
remainder. The failure of Seller to assert any right at any time hereunder
shall not prevent Seller's subsequent assertion of the same or different
rights.
D. Buyer may not assign this contract without the prior written approval
of the Seller.
XIII.
PROHIBITION FOR HAZARDOUS USE
Products sold hereunder are not intended for application in, and shall not
be used by Buyer in construction or application of a nuclear installation
or in connection with use or handling of nuclear material or for any
hazardous activity or critical application, where failure of a single
component could cause substantial harm to persons or property, unless
Products have been specifically approved for such activity or application.
Seller disclaims all liability for loss or damage resulting from such
unauthorized use and Buyer shall defend, hold harmless and indemnify
Seller against any such liability, whether arising under breach of
contract, warranty, tort (regardless of the degree of fault or negligence),
strict liability or otherwise.
Where Seller approves the application of the Products in a nuclear
facility, the Buyer shall, before such use or provision, arrange for
insurance or governmental indemnity protecting the Seller against
liability and hereby releases and agrees to indemnify the Seller and its
suppliers for any nuclear damage, including loss of use, in any manner
arising out of a nuclear incident, whether alleged to be due, in whole or
in part to the negligence or otherwise of the Seller or its suppliers.
XIV.
STATUTORY REQUIREMENTS
Seller reserves the right to make any changes in the general
specifications of the Products which are required for the Products to
conform to any statutory requirement.
XV.
GOVERNMENT CONTRACTS
Only Federal Acquisition Regulation ("FAR") supplement clauses
expressly accepted in writing by Seller shall be included or incorporated
by reference herein. Seller shall not be bound by and makes no
representation of compliance with any FAR or FAR supplement clauses
that Seller shall not have expressly accepted in writing.
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