Terms & Conditions
THESE TERMS AND CONDITIONS OF SALE (THIS “AGREEMENT”) APPLY TO ALL QUOTATIONS, PURCHASE ORDERS, ACKNOWLEDGMENTS AND OFFERS FOR PRODUCTS ISSUED OR RECEIVED BY INTELLITECH, INC. (the “MANUFACTURER”) TO OR FROM CUSTOMER (“CUSTOMER”). MANUFACTURER’S ACCEPTANCE OF ANY CUSTOMER PURCHASE ORDER IS EXPRESSLY CONDITIONED ON CUSTOMER’S ASSENT TO THIS AGREEMENT. NO TERMS OR CONDITIONS SET FORTH IN CUSTOMER’S PURCHASE ORDER, TO WHICH NOTICE OF OBJECTION IS HEREBY GIVEN, OR IN ANY FUTURE CORRESPONDENCE BETWEEN CUSTOMER AND MANUFACTURER, SHALL ALTER OR SUPPLEMENT THIS AGREEMENT UNLESS BOTH PARTIES HAVE AGREED IN WRITING TO MODIFY THIS AGREEMENT. NEITHER MANUFACTURER’S COMMENCEMENT OF PERFORMANCE NOR DELIVERY OF ANY PRODUCT(S) SHALL BE DEEMED OR CON- STRUED AS ACCEPTANCE OF CUSTOMER’S ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS. MANUFACTURER RESERVES THE RIGHT TO REJECT ANY ORDER OR TO CANCEL ANY ORDER PREVIOUSLY ACCEPTED IF MANUFACTURER DETERMINES THAT CUSTOMER IS IN BREACH OF ANY TERM OR CONDITION HEREIN. NOTWITHSTANDING THE FOREGOING, IN THE EVENT CUSTOMER AND MANUFACTURER HAVE A WRITTEN MANUFACTURE AND EQUIPMENT SALES AGREEMENT, THE TERMS OF SUCH AGREEMENT SHALL FURTHER SUPPLEMENT THESE TERMS. IN THE EVENT OF ANY CONFLICT OR INCONSISTENCY BETWEEN THE PROVISIONS OF A MANUFACTURE AND EQUIPMENT SALES AGREEMENT AND THESE STANDARD TERMS AND CONDITIONS OF SALE, THE CONFLICTING PROVISION OF THE MANUFACTURE AND EQUIPMENT SALE AGREEMENT SHALL CONTROL AND GOVERN.
All quotations are in $US and shall constitute offers subject to this Agreement. Unless otherwise stated in writing by Manufacturer, all prices quoted: (i) expire thirty (30) days after the date they are provided to Customer; and (ii) are exclusive of transportation, insurance, federal, state, local, excise, value-added, use, sales, property (ad valorem) and similar taxes or duties now in force or hereafter in effect. In addition to the prices quoted or invoiced, Customer agrees to pay all taxes, fees, or charges of any nature whatsoever imposed by any governmental authority on, or measured by, the transaction between Customer and Manufacturer. If Manufacturer is required to collect such taxes, fees, or charges, such amounts will appear as separate items on Manufacturer’s invoice and will be paid by Customer.
2. TERMS OF PAYMENT.
All invoices shall be paid in full in U.S. dollars within thirty (30) days of the invoice date unless payment terms are otherwise quoted. Customer shall pay a late fee of 1.5% per month. Manufacturer reserves the right at any time and for any reason to require payment in advance or COD, or to otherwise modify, suspend, or terminate any credit terms previously extended to Customer. If Manufacturer believes in good faith that Customer’s ability to make any payment required hereunder is or may be impaired, Manufacturer may cancel this Agreement (or any remaining balance thereof), and Customer shall remain liable to pay for any Product(s) previously shipped. When partial shipments are made, payments shall become due in accordance with the designated terms upon submission of an invoice covering any such partial shipment.
In the absence of specific shipping instructions separately agreed to and set forth in a writing signed by both Parties, Manufacturer shall select a carrier who shall be deemed to act as Customer’s agent. Manufacturer shall be under no obligation to ship via any carrier selected by Customer if such carrier does not comply with applicable laws. Transportation charges will be collected on delivery or, if prepaid, will be subsequently invoiced to Customer. Unless otherwise indicated, Customer is obligated to obtain insurance against damage to Product(s) being shipped, and all Product(s) will be shipped in standard commercial packaging. When special or export packaging is requested or, in the opinion of Manufacturer, required under the circumstances, the cost of the same, if not set forth on the invoice, will be separately invoiced. All shipping dates are approximate, and Manufacturer may change the delivery date without penalty provided Manufacturer provides Customer with reasonable notice of such change. Manufacturer shall not be responsible for any failure to perform or delay in performing under this Agreement which is directly or indirectly due to circumstances beyond its reasonable control, including, without limitation, earthquakes, governmental regulation, fire, flood, labor difficulties, civil disorder, and acts of God.
Except as otherwise agreed in a writing signed by the Parties, Customer shall accept or reject Product(s) within thirty (30) days of receipt of each shipment. Failure to notify Manufacturer in writing of nonconforming Product(s) within such period shall be deemed an unqualified acceptance.
5. RETURN PROCEDURE.
PRODUCT(S) MAY NOT BE RETURNED IF IT IS NON-STANDARD, MADE-TO-ORDER, OR MANUFACTURED TO CUSTOMER’S SPECIFIC DESIGN OR SPECIFICATION, OR IS OUTDATED OR PHASE-OUT STOCK PRODUCT.
(a) Return Authorization Required.
To obtain approval to return Product(s) to Manufacturer, Customer must contact Manufacturer’s Customer Service staff at 1- 866-434-5548, Monday through Friday, between the hours of 8 a.m. and 4:30 p.m. Eastern Standard Time (EST) or e-mail Customer Service at firstname.lastname@example.org. If a return is approved, the Customer will receive a Return Material Authorization (“RMA”) form; a copy of which should be included with the return shipment.
NO PRODUCT RETURNS WILL BE ACCEPTED BY MANUFACTURER IF NOT ACCOMPANIED BY A VALID RMA.
Product(s) without an RMA number will either be refused or returned to Customer at Customer’s expense. Manufacturer is not liable for loss or damage to unauthorized Product(s) returns. Except for issues covered under these Terms and Conditions, all RMA requests must be made within 30 days of the invoice date to be eligible to receive credit. Once issued, RMA numbers are valid for 30 days. Any returns received after 30 days will be refused. Customer is responsible for all return freight charges, including taxes, customs, and duties if applicable. All Product(s) returned for credit must be new, undamaged, and in factory sealed packaging. Any Product(s) returned with marked box, damaged box, missing components, (e.g. cables, manuals, etc.), or other damage not caused by Manufacturer will be assessed a restocking fee premium to cover the cost of replacements.
(b) Defective Product(s).
Product(s) which Customer believes to be defective and covered by Manufacturer’s Limited Warranty (“Defective Product”) must be returned by Customer in accordance with the Return Procedure outlined above. Returned Product will be tested upon arrival at Manufacturer. Any Product(s) that is/are determined to be non-defective will be returned to Customer, at Customer’s expense, and a testing fee of a minimum of 10% of the Product(s) value will be assessed. If, following examination, Manufacturer determines to its satisfaction that such Product(s) is/are defective; Manufacturer will, at its option, repair or replace the Product(s) or the defective part thereof, or credit Customer for the purchase price therefore, subject to these Standard Terms and Conditions of Sale. For purposes of clarity, “repair or replace the Product(s) or the defective part thereof” does not include any removal or reinstallation costs or expenses, including without limitation labor costs or expenses. If Manufacturer chooses to replace the Product(s) and is not able to do so because it has been discontinued or is not available, Manufacturer may replace it with a comparable product. Manufacturer will cover standard ground shipping charges incurred by Purchaser for the return of defective Product(s) and the shipment of replacement Product(s).
(c) Restocking Fees.
Returns authorized by Manufacturer, other than return of defective Product(s), will be subject to a restocking fee and Customer will pay all transportation costs associated with the return, including taxes, customs, and duties, if applicable. Product(s) returned in original condition will be assessed a 25% restocking fee. If Product(s) is/are found to be dam- aged, missing manuals or parts, or if original Manufacturer’s carton is damaged or missing, a minimum 30% restocking fee will be charged.
6. DEFAULT, CANCELLATION, AND RESCHEDULING.
In the event of Customer’s default in payment for the Product(s) purchased hereunder, Customer shall be responsible for all reasonable costs and expenses incurred by Manufacturer in collection of any sums owing by Customer (including reasonable attorneys’ fees), and Manufacturer may decline to make further shipments to Customer without in any way affecting its rights under this Agreement. If, despite any such breach by Customer, Manufacturer elects to continue to make shipments, such shipments shall not constitute a waiver of any breach by Customer or in any way affect Manufacturer’s legal remedies arising from such breach.
7. SECURITY INTEREST.
Manufacturer hereby reserves for itself a purchase money security interest in all Product(s) sold hereunder and the proceeds thereof, in the amount of the purchase price. In the event of default by Customer in any of its obligations to Manufacturer, Manufacturer will have the right to repossess the Product(s) sold hereunder without liability to Customer. Such security interest will be satisfied by payment in full. A copy of the invoice may be filed with appropriate authorities at any time as a financing statement and/or chattel mortgage to perfect Manufacturer’s security interest. Upon request, Customer will execute such financing statements and other instruments as Manufacturer may request to perfect Manufacturer’s security interest herein.
8. DELIVERY AND TITLE.
(a) Manufacturer shall select a carrier who shall be deemed to act as Customer’s agent. Manufacturer shall be under no obligation to ship via any carrier selected by Customer if such carrier does not comply with applicable laws. Transportation charges will be collected on delivery or, if prepaid, will be subsequently invoiced to Customer. Unless otherwise indicated, Customer is obligated to obtain insurance against damage to Product(s) being shipped, and all Product(s) will be shipped in standard commercial packaging. When special or export packaging is requested or, in the opinion of Manufacturer, required under the circumstances, the cost of the same, if not set forth on the invoice, will be separately invoiced. All shipping dates are approximate, and Manufacturer may change the delivery date without penalty provided Manufacturer provides Customer with reasonable notice of such change.
(b) Title to the Product(s) and risk of loss or damage to the Product(s) shall pass to Customer at the Product’s manufacturing location, immediately upon delivery to a suitable carrier, subject to Manufacturer’s security interest in such Product(s) as described below. Notwithstanding title to the Product(s) passing to Customer, title shall not pass to Customer as to any Manufacturer intellectual property rights or Manufacturer software.
9. LIMITED WARRANTY.
(a) Manufacturer warrants for a period of 6 months from the date of delivery (the “Warranty Period”) that Product(s) (except any excluded software) purchased and sold hereunder will substantially conform to Manufacturer’s published specifications or such other specifications specifically set forth in a separately negotiated and executed Manufacture and Equipment Sales Agreement. Repaired or replacement Product(s) provided under warranty are warranted for a period of 6 months from the date of delivery. The warranty on components not manufactured by Manufacturer, but incorporated as part of any system, is limited to the warranty provided by the original manufacturer of said components to the extent, and only to the extent, that such original manufacturer honors such warranty. Notwithstanding the foregoing, Manufacturer’s Product(s) are not designed, and no warranty is made with respect to Product(s) used in devices intended for use in applications where failure to perform when properly used can reasonably be expected to result in significant injury (including, without limitation, military or space applications, navigation, aviation, nuclear equipment, firefighting, or rescue equipment, or for surgical implant or to support or sustain life). Customer hereby represents and warrants to Manufacturer that it will not use or sell any Product(s) for any of the foregoing purposes and Customer agrees to indemnify, defend, and hold Manufacturer harmless from all claims, damages and liabilities arising out of any such uses. This limited warranty is contingent upon proper use of the Product(s) in the applications for which they were intended and does not apply to any Product(s) that are subjected to unusual physical or electrical stress, misuse, neglect, accident or which have been altered or soldered such that they are not capable of being tested under normal test conditions, improper testing or storage, unauthorized repair, or problems that arise from any use of Manufacturer’s Product(s) with other Product(s) not approved by Manufacturer. This limited warranty does not include expendable components. This limited warranty is nontransferable and shall extend only to Customer, and not to any third parties (including, without limitation, Customer’s suppliers, customers, or any end users).
(b) This limited warranty is immediately voided by any design changes or modifications performed by anyone other than Manufacturer.
(c) This limited warranty is immediately voided if any software incorporated into the Product(s) is altered or modified by anyone other than Manufacturer.
(d) In the event of a breach of this limited warranty, Customer shall notify Manufacturer in writing by describing the nature of the non-conformity and return such Product(s) to Manufacturer in accordance with Company’s then current returned material authorization policies, within the Warranty Period. Customer shall ship such Product(s) back to Manufacturer at Customer’s expense. Manufacturer shall, at its option, promptly repair or replace non-conforming Product(s), or issue a credit for the purchase price of the nonconforming Product(s), and shall pay the costs of any such repair or replacement, including transportation costs incurred in returning repaired or replaced Product(s) to Customer unless
(i) the Product(s) is/are not defective, in which case Customer shall pay Company reasonable costs of inspection and all transportation charges, or
(ii) the Product(s) is/are defective due to Customer’s or any third party’s improper installation, repair, damage, misuse, abuse, or failure to use replacement parts and materials equivalent to Company’s parts and materials, in which case Customer shall pay all costs of repair or replacement and transportation. The remedy stated in these Terms and Conditions shall be Customer’s sole remedy in case of any breach of limited warranty by Manufacturer.
(e) EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MANUFACTURER DISCLAIMS AND MAKES NO WARRANTIES. ALL PRODUCT(S) ARE PROVIDED AS IS, AS AVAILABLE, AND WITH ALL FAULTS, AND MANUFACTURER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, STATUTORY, OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ARISING OUT OF A COURSE OF DEALING TO THE MAXIMUM EXTENT PERMITTED BY LAW.
(a) Customer Indemnity.
Customer shall indemnify, defend and hold Manufacturer harmless from and against any and all claims brought by any third party against Manufacturer arising out of or related to Customer’s use of the Product(s) purchased hereunder, including
(i) any claim arising out of or related to any warranty made by or on behalf of Customer to its customers that expands any warranties provided herein or fails to limit any liability as provided herein,
(ii) any claim arising out of Customer’s failure to secure all ownership or rights/permissions that convey to Intellitech the lawful right to design, copy and/or modify product design data inputs, or samples, provided to Intellitech, or
(iii) any breach of this Agreement by Customer; provided, Manufacturer:
a. gives prompt written notice to Customer of the institution of the suit or proceedings; and
b. permits Customer through its counsel to defend the same and gives Customer all needed information, assistance and authority to enable Customer to do so.
(b) Company Indemnity.
Subject to the limitations herein, Manufacturer shall defend any suit or proceeding brought against Customer if it is based on a claim that any Product(s) furnished hereunder constitutes an infringement of any third-party copyright, trade secret or United States patent issued as of the date hereof, provided Manufacturer is promptly notified in writing by Customer and is given full and complete authority, information, and assistance (at Customer’s expense) for defense of same. Manufacturer shall pay damages and costs therein finally awarded against Customer but shall not be responsible for any compromise or settlement made without its written consent. In providing such defense, or in the event that such Product(s) is/are held to infringe, or the use of such Product(s) is/are enjoined, Manufacturer shall have the right in its sole discretion to obtain the right to continue using such Product(s), modify such Product(s) to become noninfringing, or require the return of such Product(s) and refund to Customer the purchase price paid by Customer to Manufacturer for such Product(s). Manufacturer’s indemnity does not extend to claims of infringement arising from Manufacturer’s compliance with Customer’s design, specifications or instructions or the modification of the Product(s) by parties other than Manufacturer or arising from the use of the Product(s) in combination with other Product(s) or in connection with a manufacturing or other process not supplied by Manufacturer. THE FOREGOING REMEDY IS EXCLUSIVE AND CONSTITUTES MANUFACTURER’S SOLE OBLIGATION FOR ANY CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT.
11. LIMITATION OF LIABILITY.
IN NO EVENT SHALL MANUFACTURER BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, OR FOR ANY LOSS OF PROFITS OR LOSS OF USE, INCLUDING LOSS OR DAMAGE TO ANY NETWORKS, SYSTEMS, DATA OR FILES, COMPUTER FAILURE OR MALFUNCTION, OR FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY, INDIRECT OR OTHER DAMAGES HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, ARISING OUT OF THIS AGREEMENT, WHETHER OR NOT MANUFACTURER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. THIS EXCLUSION ALSO INCLUDES ANY LIABILITY THAT MAY ARISE OUT OF THIRD-PARTY CLAIMS AGAINST CUSTOMER EXCEPT AS SET FORTH IN SECTION 9(b), MANUFACTURER ASSUMES NO OBLIGATIONS OR LIABILITY OF ANY KIND WITH RESPECT TO INFRINGEMENTS OR ALLEGED INFRINGEMENTS OF UNITED STATES OR FOREIGN PATENTS, COPYRIGHTS, TRADEMARKS, OR OTHER PROPRIETARY RIGHTS ARISING OUT OF CUSTOMER’S PURCHASE, USE, OR POSSESSION OF MANUFACTURER’S PRODUCT(S) AND CUSTOMER ASSUMES ALL SUCH RISK IN NO EVENT SHALL MANUFACTURER’S LIABILITY ARISING OUT OF THIS AGREEMENT EXCEED THE PURCHASE PRICE OF THE PRODUCT(S) PAID BY CUSTOMER TO MANUFACTURER AND SUBJECT TO THIS AGREEMENT. THE ESSENTIAL PURPOSE OF THIS PROVISION IS TO LIMIT THE POTENTIAL LIABILITY OF MANUFACTURER ARISING OUT OF THIS AGREEMENT AND/OR THE SALE OF PRODUCT(S) TO CUSTOMER, AND THE PARTIES EXPRESSLY AGREE WITH THE RESULTING ALLOCATION OF RISK.
12. PROPRIETARY RIGHTS, INTELLECTUAL PROPERTY AND TRADEMARKS.
(a) Proprietary Rights.
Customer acknowledges that the Product(s) sold by Manufacturer hereunder contain and embody trade secrets belonging to Manufacturer and Customer shall not reverse engineer any Product(s) purchased hereunder. In addition to the foregoing, Manufacturer owns all rights, title, and interest in and to all other intellectual property rights, including patent and copyrights, embodied by, or reflected in the Product(s). A license solely for the use of the software contained in the Product(s) is granted hereunder and Manufacturer retains for itself all proprietary rights in and to all designs, engineering details, and other data pertaining to the Product(s).
(b) Intellectual Property.
Manufacturer and Customer agree that Manufacturer shall own all right, title and interest in and to all work performed in conjunction with the Product(s) hereunder, including without limitation, ideas, discoveries, inventions, design concepts, processes, systems, computer programs, works of authorship, improvements, derivative works, and all other documentation developed for or specifically relating to the Product(s). Manufacturer hereby grants to Customer a perpetual, fully paid up, non-exclusive, non-transferable, non-sublicensable license to use the Product(s) solely for Customer’s internal business purposes. “Design Data” (including but not limited to specifications, drawings, estimates, quotations, illustrations, blueprints, bulletins, maintenance manuals, literature and other digital, electronic, or printed materials, papers, and documents) shall remain Manufacturer’s property. Manufacturer reserves all proprietary and authorship rights in the Design Data, which may not be copied, reproduced, transmitted or communicated to any third party without Manufacturer’s consent, except to Customer’s employees who are required to use Design Data as part of their duties. Manufacturer may make discretionary changes in the Design Data and may modify the Product(s) as long as such changes and/or modifications do not result in material changes in the Product(s) specifications stated in the Agreement between Customer and Manufacturer, and do not change the purchase price.
At all times hereafter, Customer agrees not to copy nor permit anyone else to copy the Product(s) or other intellectual parts thereof without written approval of Manufacturer and will not knowingly, directly, or indirectly, violate or infringe on or contest the validity of any patent, or other intellectual property or license rights of Manufacturer pertaining to any of said Product(s) or their mode of operation or any of the parts thereof. Manufacturer’s name, trademark, trade names, patent numbers, and “patent pending” designations shall not be defaced or removed from the Product(s), nor shall Customer allow such matters to be defaced or removed.
Manufacturer and Customer agree that Customer shall own all right, title and interest in and to any pre-existing works of the Customer. If any Pre-Existing Works are incorporated into or are used in conjunction with the Product(s) under this Agreement, then during the Term, Customer hereby grants to Manufacturer a fully paid up, nonexclusive, non-transferable, non-sublicensable license to use the Pre-Existing Works for incorporation into the Product(s).
Customer acknowledges and agrees that Customer has the rights title and/or permissions for Intellitech to lawfully design, copy and/or modify product design data inputs, or samples, provided to Intellitech including the due diligence of potential patent, copyright, or other proprietary information infringement. Further, Customer warrants and represents that any product design data inputs and/or samples furnished to Intellitech by the Customer for use in connection with Manufacturer’s work does not infringe, misappropriate, or otherwise violate any third-party’s intellectual property rights. The Customer assumes full liability for any infringement claims of proprietary data related to any component part or design data provided to Intellitech by Customer.
13. IMPORT AND EXPORT REQUIREMENTS.
Customer shall, at its own expense, pay all import and export licenses and permits, pay all value added and other VATs, customs charges, and duty fees, and take all other actions required to accomplish the export and import of the Product(s) purchased by Customer. Customer understands that Manufacturer may be subject to regulation by agencies of the U.S. government, including the U.S. Department of Commerce, which prohibits export or diversion of certain technical Product(s) to certain countries. Customer warrants that it will comply in all respects with the export and re-export restrictions set forth in the export license for every Product(s) shipped to Customer.
14. U.S. GOVERNMENT CONTRACTS.
If the Product(s) to be sold hereunder are to be used in the performance of a U.S. Government contract or sub-contract and a U.S. Government contract number appears on Customer’s purchase order, those clauses of the applicable U.S. Government procurement regulation, which are mandated by Federal Statute to be included in U.S. Government subcontracts, shall be incorporated herein by reference.
Customer acknowledges that all technical or business and other documentation, information and materials delivered to or learned by Customer hereunder shall be considered Manufacturer’s confidential information (the “Confidential Information”). Customer hereby agrees: (i) to hold and maintain in strict confidence all Confidential Information of Manufacturer; and (ii) not to use any Confidential Information of Manufacturer except as permitted hereunder. Customer will use at least the same degree of care to protect the Manufacturer’s Confidential Information as it uses to protect its own confidential information of like importance, and in no event shall such degree of care be less than reasonable care. Customer agrees that it will only provide Confidential Information to those employees who have a need to know for the purposes hereunder. Customer agrees that it shall not disclose the Manufacturer Confidential Information to any third party, including third party contractors, without written authorization from Manufacturer.
16. MANUFACTURER’S REMEDIES FOR BREACH.
(a) Customer recognizes and acknowledges that if it breaches the provisions of Section 16, damages owed to Manufacturer would be difficult, if not impossible, to ascertain. Because of the immediate and irreparable damage and loss that may be caused to Manufacturer for which it would have no adequate remedy, Customer agrees that Manufacturer, in addition to and without limiting any other remedy or right it may have, shall be entitled to seek, and receive an injunction or other equitable relief in any court of competent jurisdiction, enjoining any such breach. Customer hereby waives any and all defenses it may have on the grounds of lack of jurisdiction or competence of a court to grant such an injunction or other equitable relief. The existence of this right shall not preclude the applicability or exercise of any other rights and remedies at law or in equity which Manufacturer may have. Customer agrees that Manufacturer may obtain and shall be entitled to obtain any injunction under this Agreement without the posting of a bond. (b) In addition to any remedies set forth in this Agreement, Manufacturer shall be entitled to any and all remedies otherwise available to it under applicable law and remedies available to Manufacturer shall be considered cumulative. In the event Customer refuses or fails, for any reason, to accept any Product(s) manufactured by Manufacturer for Customer, Customer shall pay Manufacturer for all costs, including materials consumed and labor expended, to manufacture such Product(s), and Customer shall also reimburse Manufacturer for any special, incidental, or consequential damages incurred by Manufacturer because of Customer’s failure or refusal to accept delivery of such Product(s). Notwithstanding any other provision in this Agreement or in any other written document, if payment in full is not made by Customer for the Product(s) sold by Manufacturer to Customer, then Manufacturer may repossess such Product(s) by any lawful means in the event of a breach of default by Customer in any of its obligations hereunder.
17. FORCE MAJEURE.
Manufacturer shall not be liable for damages, including liquidated damages, if any, for delays in delivery or failure to perform due to causes beyond the control and without the fault or negligence of Manufacturer. Such causes include but are not limited to, acts of God, acts of the public enemy, acts of the federal or any State or local government, fires floods, epidemics, quarantine restrictions, strikes, disturbances or embargoes.
18. DISPUTE RESOLUTION.
(a) Parties agree to explore an amicable resolution of any dispute arising from this Agreement before either party pursues litigation. As such, the Parties agree to participate in no less than one non-binding mediation session before a neutral third- party mediator before instituting any litigation related to performance of this Contract. The Parties acknowledge their shared preference that any necessary mediation session be conducted by a retired Maryland Judge or other qualified attorney mutually acceptable to the Parties. The Parties agree that the costs of the third-party mediation shall be equally shared, except that each party shall individually bear all attorneys’ fee, costs, and disbursements arising from the actions of its own counsel in conjunction with any mediation. (b) If any action at law or equity is necessary to enforce or interpret the terms of this Contract, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees.
19. APPLICABLE LAW, JURY TRIAL WAIVER, JURISDICTION, AND LIMITATION ON ACTIONS.
This Agreement shall be governed and construed in all respects under the laws of the State of Maryland, without regard to principles of conflicts of laws. Each party hereby submits to the exclusive jurisdiction and venue of the state and federal courts sitting in the State of Maryland for resolution of any dispute relating to this Agreement. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement or to any of the transactions contemplated hereby. THE PARTIES HEREBY IRREVOCABLY AND KNOWINGLY WAIVE TO THE FULLEST EXTENT PERMITTED BY LAW ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION OR PROCEEDING ARISING OUT OF THIS AGREEMENT. The parties agree that any such action or proceeding shall be tried before a court and not a jury. The parties hereby irrevocably and unconditionally submit to the jurisdiction of the Courts of the State of Florida and of the United States of America for the District of Florida and agree that any legal action or proceeding relating to this Agreement may be brought in such courts. In the event the parties’ waiver of a trial by jury is deemed invalid, the parties hereby agree that any action or claim arising out of any dispute in connection with this Agreement, any rights, remedies, obligations, or duties hereunder, or the performance or enforcement hereof or thereof shall be deter- mined by judicial reference. Customer shall not bring any action relating to any dispute Customer may have after one (1) year of the accrual of such dispute.
20. ATTORNEYS’ FEES.
In the event litigation shall be instituted to enforce any provision of this Agreement, the prevailing party in such litigation shall be entitled to recover reasonable attorneys’ fees and expenses incurred in such litigation, including on appeal, in addition to any other recovery to which such party may be legally entitled.
21. INSTALLATION AND COMMISSIONING.
Installation and commissioning services are available by separately executed agreement.
22. SUBSTITUTIONS AND MODIFICATIONS.
Manufacturer reserves the right to (i) make substitutions and modifications in the specifications of Product(s) sold by Manufacturer, provided that such substitutions or modifications do not materially affect overall Product(s) performance, and (ii) discontinue or otherwise end-of-life any Product(s) sold hereunder.
23. NO PARTNERSHIP OR AGENCY.
Nothing in this Agreement shall (i) be deemed a partnership in law between the Parties, (ii) constitute either party an agent of the other for any purpose or (iii) entitle either party to commit or bind the other (or any member of its respective group) in any manner.
Any notice contemplated by or made pursuant to this Agreement shall be in writing and shall be deemed delivered on the date of delivery if delivered personally, or three (3) days after mailing if placed in the U.S. mail, postage prepaid, registered, or certified mail, return receipt requested, addressed to Customer or Manufacturer (as the case may be) at the designated address, or such other address as shall be designated by at least ten (10) days prior written notice. A notice given by any means other than as specified herein will be deemed duly given when received by the addressee.
If any provision of this Agreement or the application thereof to any party or circumstance is held to be invalid, illegal, or unenforceable in any respect, that provision to that extent shall be severed from this Agreement (but, to the extent permitted by law, not otherwise), and shall not affect the remainder hereof, and the Parties agree to substitute for such provision a valid provision which most closely approximates the intent and economic effect of such severed provision.
(a) Customer may not assign its rights or obligations hereunder without the prior written consent of Manufacturer, which may not be unreasonably withheld. This Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, personal representatives, successors and assigns. (b) Manufacturer may subcontract or assign any or all of its obligations under this Agreement in its sole discretion. It is understood, however, that Manufacturer remains responsible for compliance with its obligations under this Agreement including conformance of the Product(s) to the requirements set forth herein.
27. ERRORS AND VALIDITY OF AGREEMENT.
Stenographic and clerical errors in sales made under this Agreement are subject to correction. In the event any provision of this Agreement is held to be invalid or unenforceable, then such provision shall be deemed automatically adjusted to the minimum extent necessary to conform to the requirements for validity as declared at such time and, as so adjusted, shall be deemed a provision of this Agreement as though originally included herein. In the event that the provision invalidated is of such a nature that it cannot be so adjusted, the provision shall be deemed deleted from this Agreement as though such provision had never been included herein. In either case, the remaining provisions of this Agreement will remain in full force and effect.
28. WAIVER AND MODIFICATION.
No delay or failure by either party to exercise or enforce at any time any right or provision hereof will be considered a waiver thereof of such party’s rights thereafter to exercise or enforce each and every right and provision hereof. No single waiver will constitute a continuing or subsequent waiver. No waiver, modification or amendment of any provision hereof will be effective unless it is in a signed writing by the Parties. No representative, agent, salesperson, or service engineer is authorized by Manufacturer to give any guaranty, warranty or to make any representation contrary to these Terms and Conditions. Only a duly authorized officer of Manufacturer can modify or alter these Terms and Conditions and such modification can only be in a writing signed by the Parties.
The Parties acknowledge and agree that any provision that by its nature survives shall survive cancellation or termination of this Agreement.
30. ENTIRE AGREEMENT.
The terms and conditions set forth herein constitute the entire Agreement between Customer and Manufacturer and supersede any other agreements or offers, including any purchase order of Customer, prior or contemporaneous oral or written understandings, or communications relating to the subject matter hereof. Notwithstanding the foregoing, in the event Customer and Manufacturer have a written Supply Agreement, the terms of the Supply Agreement shall govern.