18. EXPRESS WARRANTY
Seller warrants its goods to be free from defects in material and/or workmanship under normal use and service for a period of one (1) year from the date of purchase, subject to the terms and conditions set forth below (the “Express Warranty”). Seller does not warrant its goods against any defect except as set forth above, and Seller is not responsible for, and it does not warrant against, any defect or damage caused by transportation, storage, improper installation, maintenance, internal or external hostile environment, misuse, abuse, negligence, accident, modification, tampering, the attachment of any unauthorized accessory, alteration to the goods, or any other conditions whatsoever that do not constitute a defect in material and/or workmanship. Seller’s sole responsibility under this Express Warranty shall be, at its option, to either repair or replace any goods which fail during the warranty period, provided that Buyer has promptly reported same to Seller in writing, and complies with the provisions of this Express Warranty.
EXCEPT FOR THE EXPRESS WARRANTY DESCRIBED HEREIN, SELLER SEPCIFICALLY DISCLAIMS AND EXCLUDES ANY AND ALL EXPRESS AND IMPLIED WARRANTIES WITH REGARD TO ITS GOODS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR USE, AND FITNESS A PARTICULAR PURPOSE; ALL IMPLIED WARRANTIES ARISING FORM TRADE USAGE, COURSE OF DEALING, COURSE OF PERFORMANCE OR ANY OTHER IMPLIED WARRANTIES; AND THE EXPRESS WARRANTY STATED HEREIN IS IN LIEU OF ALL OBLIGATIONS OR LIABILITIES ON THE PART OF SELLER FOR DAMAGES, INCLUDING BUT NOT LIMITED TO, INCIDENTAL OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF THE GOODS PURCHASED BY BUYER.
NEITHER SELLER NOR ITS AFFILIATED COMPANIES SHALL BE LIABLE TO BUYER IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE) FOR DAMAGE TO OR LOSS OF OTHER PROPERTY OR EQUIPMENT, LOSS OF PROFITS, REVENUE OR GOOD WILL, LOSS OF USE OF EQUIPMENT, FACILITY OR DATA, EXPENSES INVOLVING COSTS OF CAPITAL, COST OF PURCHASED OR REPLACEMENT POWER OR TEMPORARY EQUIPMENT (INCLUDING ADDITIONAL EXPENSES INCURRED IN USING EXISTING FACILITIES), CLAIMS OF CUSTOMERS, EMPLOYEES OR ANY OTHER PERSONS AFFILIATED, ASSOCIATED OR IN PRIVITY WITH BUYER, OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES BY REASON OF BREACH OF THE EXPRESS WARRANTY STATED HEREIN.
PRODUCTS ARE NOT SUITABLE FOR THE INSIDE OF AIRPLANES AND HELICOPTERS, INCLUDING DRONES OR OTHER DIRECT AIR AND SPACE TRAVEL APPLICATIONS.
THE REMEDIES OF BUYER SET FORTH HEREIN ARE EXCLUSIVE WITH RESPECT TO BREACH OF THE EXPRESS WARRANTY STATED HEREIN, AND THE TOTAL LIABILITY OF SELLER FOR BREACH OF SAID EXPRESS WARRANTY, AND/OR AS A RESULT OF THE MANUFACTURE, SALE, DELIVERY, INSTALLATION OR TECHNICAL DIRECTION OF INSTALLATION, REPAIR OR USE OF ANY GOODS FURNISHED TO BUYER, WHETHER IN CONTRACT OR IN TORT (INCLUDING NEGLIGENCE), SHALL NOT EXCEED THE PURCHASE PRICE OF THE GOODS DETERMINED BY SELLER TO BE DEFECTIVE IN MATERIAL AND/OR WORKMANSHIP.
To obtain warranty inspection on any of the Seller’s goods, contact the Seller for field service or warranty shipping instructions. All Express Warranty claims must be made to the Seller or one of its authorized agents, failure to do so shall void the Express Warranty.
19. LIMITATION OF LIABILITY
NOTWITHSTANDING ANY OTHER PROVISION HEREIN OR IN ANY OTHER DOCUMENT OR COMMUNICATION, (A) SELLER’S LIABILITY AND OBLIGATIONS WITH RESPECT TO ANY CLAIM(S) RESULTING OR ARISING FROM OR RELATING TO THIS AGREEMENT, WHETHER IN CONTRACT, STRICT LIABILITY, TORT OR OTHERWISE, AND EVEN IF BUYER’S EXCLUSIVE REMEDY FAILS OF ITS ESSENTIAL PURPOSE, SHALL IN NO EVENT EXCEED IN THE AGGREGATE THE TOTAL PURCHASE PRICE RECEIVED BY SELLER FOR THE GOODS, AND (B) SELLER SHALL IN NO EVENT BE LIABLE TO BUYER OR ANY OTHER PERSON OR ENTITY, WHETHER IN CONTRACT, STRICT LIABILITY, TORT OR OTHERWISE, FOR SPECIAL, CONSEQUENTIAL INDIRECT OR INCIDENTAL DAMAGES OF ANY KIND WHATSOEVER, OR CLAIMS OF ANY THIRD PARTIES.
20. SPECIAL ORDERS
If any goods shall be manufactured and/or sold by Seller to meet Buyer’s particular specifications or requirements and is not part of Seller’s standard line offered by it to the trade generally in the usual course of Seller’s business, Buyer shall defend, protect and save harmless Seller against all suits at law or in equity and from all damages, claims and demands for actual or alleged infringement of any United States or foreign patent and shall defend any suit or actions which may be brought against Seller for any alleged infringement because of the manufacture and/or sale of the material covered thereby.
21. BUYER’S DUTY TO INSPECT AND LIMITATION ON SELLER’S RESPONSIBILITY
Buyer must examine the goods carefully and fully upon receipt and before using, cutting or reselling the same and any claim for defective or non-conforming goods must be immediately reported in detail to the Seller in writing. Buyer’s failure to give such detailed written notice to seller within 10 days of Buyer’s receipt of Seller’s special goods made to order or within 30 days of its receipt of Seller’s stock shall constitute an unqualified acceptance of the goods and a release and waiver of all claims. Seller, at its discretion, must be afforded an opportunity to inspect any non-conforming or defective goods and to cure any problems and Seller shall have the right to require Buyer to assemble and return any defective or non-conforming goods before Seller incurs any liability to Buyer. Seller’s sole liability to Buyer and Buyer’s sole recourse shall be expressly limited to Seller, at Seller’s sole options, either replacing any defective goods or reimbursing Buyer for the original price charged for said goods. In no event shall Seller’s liability exceed the original price charged for the goods.
22. CONFIDENTIAL INFORMATION
“Confidential Information” includes any information of a confidential or proprietary nature provided by Seller which is not readily available to Seller’s competitors or the public. Seller retains ownership of all Confidential Information, whether written, oral, electronic, or otherwise. Buyer shall not disclose or
use any Confidential Information, in whole or in part, other than in the course of performing its obligations hereunder. Buyer shall take all reasonable steps to prevent the prohibited use of any Confidential Information. Buyer shall limit access to the Confidential Information to those employees of Buyer with a valid need to know. Notwithstanding the foregoing, Buyer shall not be required to refrain from disclosing or using any Confidential Information which has become known to Buyer if the original source of such Confidential Information was not Seller or any person or party affiliated with Seller or having a relationship of confidentiality with or an obligation of confidentiality to Seller. Upon request of Seller, Buyer shall immediately return any Confidential Information provided, including all copies made by Buyer. The purchase of any goods hereunder shall not be construed to confer upon Buyer any license under any patent or other proprietary rights of Seller, except the right to use such goods for the purposes for which they are sold.
23. OWNERSHIP OF TOOLING AND INDEMNIFICATION
Any special materials, tools, molds, dies, jigs, gauges, patterns, fixtures and equipment, and any replacements thereof or charges, additions or accession thereto (hereinafter “tooling”) shall become and remain the property of Seller regardless of whether the Buyer paid for same, the charge therefor only representing a portion of the cost thereof. Buyer hereby grants to Seller a non-exclusive irrevocable license without charge or royalty to use tooling or any improvements, ideas, procedures or innovations created, conceived or arising during the manufacturing of the goods being sold to Buyer. The Buyer agrees to indemnify and save Seller harmless from all claims, judgments, decrees, damages, costs and expenses, including attorney’s fees, arising from any claim of infringement of any United States patent, registration, trademark or logo in connection with the production, use of sale of the tooling or the goods sold to Buyer or to the extent that such infringement arises from the design, specification or instructions furnished by Buyer or undertaken at Buyer’s suggestion or request.
24. BUYER’S DEFAULT
In addition to any rights reserved to Seller under law or these terms of sale, if Buyer becomes insolvent, or if any insolvency petition is filed by or against Buyer, or if an assignment for the benefit of creditors is filed by Buyer, or if a trustee receiver, fiscal agent or other court officer is appointed for Buyer, or if Buyer makes fraudulent transfers or preferential payments, or if Buyer refuses to accept conforming goods or otherwise breaches its obligations to Seller, or repudiates any agreement with Seller, or if Seller in its sole discretion deems itself insecure or feels that Buyer’s financial condition is impaired or does not justify continuance of production or shipment on the terms agreed upon herein, Seller reserves the right to cancel the order or to refuse to continue production and/or deliveries until it receives full payment in advance or satisfactory security and guarantee that payment will be made when due.
In the event of non-payment for any delivery made, installment or otherwise, Seller may suspend future deliveries due until full payment is made, or may cancel the agreement. Notwithstanding Seller’s actions, however, Buyer shall be liable for all costs and expenses incurred by Seller due to Buyer’s default, including all cancellation charges, court costs and attorney’s fees.
25. NO WAIVER OF RIGHTS
Seller’s failure to exercise or enforce any of its rights under this agreement or under law shall not constitute a waiver of Seller’s rights.
26. NO ASSIGNMENT BY BUYER
Buyer shall not be allowed to assign its contract with Seller.
27. CORRECTION OF ERRORS
Seller shall have the right to correct any stenographic, clerical, typographical, or patent errors contained
in this document or any of the documents relating to the transaction between the parties.
28. GOVERNING LAW AND JURISDICTION
The agreement between the parties shall be deemed to be made in New Jersey and shall be governed by the laws of New Jersey and specifically the Uniform Commercial Code (hereinafter “Code”) in effect in New Jersey as of the date of this document.
Whenever a term defined by said Code is used in this instrument, the definitions in the Code shall control its meanings. The parties submit to the jurisdiction of the courts of New Jersey which shall be the only forum for litigating any disputes arising under an order or this agreement. In the event that any provision of this agreement shall be invalid under the laws of any jurisdiction, such invalidity shall not affect the other provisions of this agreement which shall remain in full force and effect. The United Nations Convention on Contracts for the International Sale of Goods will not, for any purpose, govern or apply to the sale of goods and services or any transactions, performance or disputes hereunder.
The captions to the clauses contained herein are for identification only and shall not be construed as being a substantive part of the agreement nor as having any independent meaning.
30. FORCE MAJEURE
Seller shall not be liable for delay in performance or nonperformance of any of its obligations hereunder, in whole or in part, if such performance is rendered impracticable by the occurrence of any contingency or condition beyond the control of either Seller or Seller’s suppliers, including without limitation war, sabotage, embargo, riot, terrorism, or other civil commotion, failure or delay in transportation, act of any government or any court or administrative agency thereof (whether or not such action proves to be invalid), labor dispute (whether or not involving Seller’s employees), epidemic, pandemic, accident, fire, explosion, flood, earthquake or other casualty, shortage of labor, fuel, energy, raw materials or machinery or technical failure. If any such contingency or condition occurs, Seller may allocate production and deliveries in any reasonable manner and may include in such allocation any regular customers, whether or not then under contract, and Seller’s own requirements. If, as a result of any such contingency, Seller’s performance is delayed by more than six (6) months, the prices set forth herein shall be subject to appropriate adjustment by Seller.
Buyer acknowledges that the goods provided under this Agreement are subject to U.S. and other export laws and regulations. Buyer agrees not to export, re-export, transfer, or transmit the Products, software, or technical information except in compliance with all such laws and regulations. This sale is subject to any applicable governmental approvals and, at Seller’s request, Buyer agrees to sign written assurances and other export-related documents as may be required for Seller to comply with export laws and regulations.