Terms and Conditions

Read online text version:

→ International: T&C Schwarzer Precision GmbH
→ North America: T&C Schwarzer Precision USA Corporation

 

---

 

Standard Terms and Conditions of Schwarzer Precision GmbH

(hereinafter referred to as "the Supplier") for business with companies, businessmen and public bodies of all descriptions (hereinafter referred to as "the Purchaser").

 

Section 1: General Conditions

1.) The sale and delivery of goods and the performance of services by the Supplier shall be governed by written declarations signed both by the Supplier and by the Purchaser and by these Standard Terms and Conditions. Any standard terms, including without limitation standard terms of purchase orders, of the Purchaser shall not become part of the contract between the Supplier and the Purchaser (hereinafter referred to as "the Contract") even if the Supplier does not raise explicit objections to the application of such standard terms in any specific case.

2.) The Supplier shall retain full title and copyright to any and all cost estimates, drawings and other documents (hereinafter referred to as "Documents") submitted to the Purchaser. The Purchaser shall not divulge any Documents to any third party without the prior permission of the Supplier. In the event that the Contract is not awarded to the Supplier, the Purchaser shall return all such Documents to the Supplier without delay upon request by the Supplier. These provisions shall also apply mutatis mutandis to documents of the Purchaser submitted to the Supplier, except that the Supplier shall be entitled to make documents of the Purchaser available to third parties to whom the Supplier has subcontracted the supply of goods in accordance with the Contract.

3.) The Supplier shall be entitled to make partial deliveries under the Contract in the event that the Purchaser can reasonably be expected to accept such deliveries.

 

Section 2: Contracts

1.) The Purchaser shall be bound by its order for two weeks from the receipt thereof by the Supplier, unless otherwise stated in the order.

2.) The Contract shall be deemed to have been concluded when the Purchaser receives the written confirmation by the Supplier of the Purchaser's order. However, a written order shall be deemed to have been tacitly accepted by the supplier upon expiry of the binding offer period if the supplier has not rejected it in writing within this period.

 

Section 3: Prices, Terms of Payment, Set-off

1.) All prices shall apply to ex works delivery not including carriage, packaging or value added tax, which will be charged in addition to the prices.

2.) Except where prices are explicitly agreed between the Supplier and the Purchaser, the Contract shall be subject to the list prices of the Supplier on the date when the order is issued by the Purchaser.

3.) Payments under the Contract shall be made by the Purchaser by the agreed date without any deduction to the account designated by the Supplier. Payment by check or bill of exchange, if agreed with the Supplier, will only be accepted by the Supplier on account of performance.

4.) The Purchaser shall only be entitled to set off claims against the Supplier which have been accepted by the Supplier or in respect of which an enforceable judgement has been given.

 

Section 4: Retention of Title

1.) The Supplier shall retain title to the goods supplied under the Contract (hereinafter referred to as "the Goods") until any and all claims of the Supplier against the Purchaser under the business relations between them have been settled. In the event that the total value of Goods to which the Supplier retains title exceeds by more than 15 % the total value of the claims of the Supplier on the Purchaser for which security is provided, the Supplier shall release title to an appropriate part of the Goods upon request by the Purchaser.

2.) The Purchaser shall not sell, pledge, transfer title to, rent or otherwise dispose of the Goods to third parties while title to the Goods is retained by the Supplier without the written permission of the Supplier. The Purchaser shall be entitled to sell Goods to third parties in the normal course of his business without such permission in the case of Goods which have been sold to the Purchaser for resale. In the case of Goods resold by the Purchaser in the normal course of business or with the permission of the Supplier, the Supplier shall be entitled to a share in the amount owed to the Purchaser by the third party purchasing such Goods corresponding to the amount owed to the Supplier by the Purchaser. The Purchaser hereby assigns a claim to such amount to the Supplier.

3.) The Purchaser shall be entitled to collect amounts owed to the Purchaser in connection with the resale of Goods until such right is revoked by the Supplier. This shall not apply if the Purchaser is in arrears with payments under the Contract. Until full payment has been made for the Goods by the Purchaser, the Purchaser shall not be entitled to pledge its prospective title to the Goods or to transfer such prospective title by way of security.

4.) If the Goods are connected to other objects in such manner as to become an integral part of such objects and the new object so created is to be regarded as the main object, the Purchaser shall be deemed to have already transferred to the Supplier a pro rata share in the title to such new object and shall store said new object on behalf of the Supplier. This shall also apply to any goods which are processed or caused to be processed by the Purchaser.

5.) In the event that the Purchaser resells any goods which the Purchaser has not paid for in full, the Purchaser shall, as towards the third-party buyer of said Goods, reserve the right of the Supplier to retain title to such goods and transfer any monies received in respect of such Goods to the Suppler forthwith or pay such monies into a special account and secure them until all amounts outstanding to the Supplier under the Contract have been paid.

6.) If any Goods to which the Supplier retains title are seized, confiscated or subject to intervention by third parties, the Purchaser shall promptly notify the Supplier and issue to such third party and the Supplier written confirmation that title to such Goods is held by the Supplier.

7.) In the event that the Purchaser is in breach of any of its obligations under the Contract, including without limitation its obligation to make payments in good time, the Supplier shall grant the Purchaser a reasonable period to remedy such breach and, in the event that the Purchaser fails to remedy such breach within such reasonable period, to rescind the Contract and take back the Goods. This provision shall be without prejudice to the statutory provisions under which the Supplier may not be obligated to grant the Purchaser a reasonable period. In any such case, the Purchaser shall be obligated to deliver up the Goods to the Supplier.

 

Section 5: Delivery Deadlines, Delay, Impossibility

1.) The compliance by the Supplier with deadlines for the delivery of Goods shall be subject to the proviso that any and all documents and approvals to be submitted by the Purchaser are received by the Supplier in good time and that the Purchaser complies with the agreed payment conditions and its other obligations under the Contract. In the event that the Purchaser fails to meet all such obligations in good time, the deadlines for the delivery of the Goods shall be extended by an appropriate period.

2.) In the event that the Supplier fails to comply with any delivery deadline by reason of circumstances of force majeure including war or warlike occurrences, strike or lockout, said delivery deadline shall be extended by an appropriate period.

3.) In the event that the Purchaser proves that it has suffered loss or damage by reason of a failure of the Supplier to comply with delivery deadlines for the Goods, the Purchaser shall be entitled to liquidated damages in the amount of 0.5 % of the price payable for the Goods concerned, subject to a maximum limit of 5 % of the price payable for the Goods which are delayed.

4.) Should the delivery of the Goods become impossible, the Purchaser shall be entitled to claim damages from the Supplier unless delivery becomes impossible for reasons for which the Supplier is not responsible. In any such case, the damages payable to the Purchaser shall not exceed 10 % of the price payable for the Goods the delivery of which has become impossible.

5.) Claims for damages by the Purchaser by reason of delay in delivery or the impossibility of delivery or damages in lieu of performance in excess of the limits stated in paragraphs 3 and 4 of this Section 5 are hereby excluded. This exclusion shall not apply in the event of loss or damage caused by wilful act or omission or gross negligence, death, personal injury or damage to health caused by the Supplier or to loss or damage caused by a wilful or negligent breach of any obligation by a statutory representative, servant, agent or employee of the Supplier.

6.) The Purchaser shall not be entitled to rescind the Contract in accordance with the applicable statutory provisions unless the Supplier is responsible for the delay in or impossibility of delivery of the Goods. Rescission shall be subject to the provisions stated in Section 7, paragraph 4, sentence 2, hereinbelow. These provisions do not entail a reversal of the burden of proof to the detriment of the Purchaser.

 

Section 6: Transfer of Risks

1.) The risks associated with the Goods shall be transferred to the Purchaser when the Goods are handed over to the Purchaser or, in the case of goods to be shipped, when the Goods are handed over to the haulier or forwarder or other person or organization responsible for shipment. In the event that shipment becomes impossible or is delayed for reasons beyond the control of the Supplier or the delivery of goods is delayed at the request of the Purchaser or for reasons for which the Purchaser is responsible, the risks associated with the Goods shall be transferred to the Purchaser when the Supplier notifies the Purchaser that the Goods are ready for shipment.

2.) All Goods shall be shipped at the risk and expense of the Purchaser even in cases where delivery carriage paid or shipment at the request of the Purchaser has been agreed. Unless otherwise agreed, the Supplier shall be entitled to select the mode of shipment to be used for any Goods.

 

Section 7: Liability for Defects in Goods

1.) The Supplier shall, at the option of the Supplier, either repair defects in or supply new Goods in replacement for Goods which were defective at the time of the transfer of the risks associated with the Goods concerned in accordance with Section 6 hereinabove (subsequent performance). The Purchaser shall grant the Supplier a reasonable period of time for such subsequent performance.

2.) The claims of the Purchaser in connection with defects in Goods shall be forfeited unless made within one year of the transfer of the risks associated with the Goods concerned in accordance with Section 6 hereinabove. This shall not apply in the event that longer periods are laid down by law in accordance with Section 479, Para. 1 BGB (Civil Code – right of recourse) or in the event of death, personal injury or damage to health or in the event of wilful or grossly negligent breach of its obligations by the Supplier or in the event that any defect in Goods is maliciously concealed by the Supplier. For this purpose, any breach of obligations by a statutory representative, servant, agent or employee of the Supplier shall be deemed to be a breach of its obligations by the Supplier.

3.) Claims made by the Purchaser in connection with defects in Goods shall be forfeited unless made in writing within two weeks of the transfer of the risks associated with the Goods concerned in accordance with Section 6 hereinabove in the case of evident defects or within one year of such transfer of risks in the case of non-evident defects.

4.) In the event of the failure of subsequent performance by the Supplier, the Purchaser shall, without prejudice to any rights of the Purchaser to claim damages under Section 8 hereinbelow, be entitled to rescind the Contract or abate the price payable under the Contract. In the event of the rescission of the Contract, the Purchaser shall, in consideration of the repayment of the price of the Goods, return the Goods to the Supplier and pay to the Supplier compensation for the actual use of the Goods by the Purchaser and for such use which would have been possible but for the wilful act or omission or gross negligence of the Purchaser. In any such case, the Purchaser shall not be entitled to reimbursement by the Supplier of any expenses incurred. In the event of the loss or deterioration of the Goods while in the possession of the Purchaser and in the event that the Purchaser is unable to return the Goods to the Supplier for any other reason in the event of the rescission of the Contract, the Purchaser shall be obligated to pay compensation for the value of the Goods to the Supplier if the Purchaser was aware of the reason for rescission. In the event that the Purchaser was unaware of the reason for rescission, the Purchaser shall pay to the Supplier compensation for the value of the Goods if the Purchaser was responsible for the loss or deterioration of the Goods or any other reason why it is not possible to return the Goods to the Supplier.

5.) The Purchaser shall not have any claims on the Supplier with respect to insignificant deviations of the Goods from agreed properties, insignificant impairment of the fitness of the goods for the intended purpose, normal wear and tear or damage caused after the transfer of the risks associated with the Goods in accordance with Section 6 hereinabove by incorrect or negligent handling, overloading, the use of unsuitable consumables, chemical, electrochemical or electrical effects, wind, weather or environmental conditions or for damage caused by the improper installation of compressors, vacuum pumps or liquid pumps, including without limitation any failure to provide sufficient cooling air for such compressors or pumps. The Purchaser shall not have any claim on the Supplier with respect to defects in the Goods caused by modifications or maintenance work not performed properly by the Purchaser or third parties or the consequences of such modifications or work.

6.) The Purchaser shall not be entitled to refuse to take delivery of the Goods because of slight defects in the Goods.

7.) The Purchaser shall not be entitled to retain any payments due to the Supplier except in the event that complaints by the Purchaser concerning defects in the Goods are justified without any doubt. In any such case, the Purchaser shall only be entitled to retain amounts which are reasonable in view of the defects concerned. In the event that any complaints made by the Purchaser concerning defects in the Goods prove to be unjustified, the Supplier shall be entitled to claim from the Purchaser reimbursement of the costs incurred by the Supplier in this connection.

8.) Claims for damages by the Purchaser shall also be governed by Section 9 hereinbelow. Any claims of the Purchaser against the Supplier and its servants, agents and employees not covered by or going beyond the limits of Section 7 hereinabove are hereby excluded. This shall not apply in the event of death, personal injury or damage to health or in the event that the Supplier is responsible for any breach of its obligations or to other loss or damage caused by a wilful or grossly negligent breach of its obligations by the Supplier. For this purpose, any breach of obligations by a statutory representative, servant, agent or employee of the Supplier shall be deemed to be a breach of its obligations by the Supplier.

 

Section 8: Liability for Defects in Title

1.) The provisions of Section 7 hereinabove shall apply mutatis mutandis to defects in the title to the goods.

2.) The obligations of the Supplier to pay damages shall be governed by Section 9 hereinbelow.

3.) Any claims of the Purchaser against the Supplier and its servants, agents and employees with respect to defect in the title to Goods not covered by or going beyond the limits of Section 7 hereinabove are hereby excluded. This shall not apply in the event of death, personal injury or damage to health or in the event that the Supplier is responsible for any breach of its obligations or to other loss or damage caused by a wilful or grossly negligent breach of its obligations by the Supplier. For this purpose, any breach of obligations by a statutory representative, servant, agent or employee of the Supplier shall be deemed to be a breach of its obligations by the Supplier.

 

Section 9: Claims for Damages

1.) Any claims for damages or compensation made by the Purchaser on whatsoever grounds, including without limitation the infringement of obligations under the contractual relationship, damage to any property other than the Goods themselves and tortious act, are hereby excluded. This shall not apply in the event that the Supplier is liable under compulsory provisions of the applicable law, including liability under the Produkthaftungsgesetz (Product Liability Act), liability for the wilful act or omission or gross negligence of the Supplier or its statutory representatives, servants, agents and employees or the wilful or grossly negligent breach of material provisions of the Contract. In any such case, except in the case of wilful act or omission or gross negligence or death, personal injury or damage to health, the liability of the Supplier shall be limited to such loss or damage as could typically have been foreseen in connection with the Contract. These provisions shall not constitute any change in the burden of proof.

2.) Claims for damages made by the Supplier under this Section 9 shall be forfeited unless made within the period specified for claims in connection with defects in Goods in Section 7, Paragraph 2 hereinabove. Claims for damages under the Produkthaftungsgesetz (Product Liability Act) shall be subject to the statutory provisions concerning periods of limitation.

 

Section 10: Applicable Law, Venue for Disputes

1.) The venue for any disputes arising between the Supplier and the Purchaser out of or in connection with the Contract shall be Essen.

2.) The entire legal relationship between the Supplier and the Purchaser shall be governed by and construed and interpreted in accordance with the law of Germany with the exception of the UN Convention on Contracts for the International Sale of Goods (CISG).

 

Section 11: Miscellaneous Provisions

If any of the provisions of the Contract, including these Standard Terms, is ineffective, the other provisions of the Contract, including these Standard Terms, shall remain in full force and effect. The Purchaser shall not assign its rights under the Contract to any third party without the express permission of the Supplier.

 

Date: May 2024

 

---

 

Terms and Conditions of Schwarzer Precision USA Corporation

 

Schwarzer Precision USA Corporation (hereinafter called ‘Seller’) agrees to sell all of its right, title and interest in to the merchandise described on the Sales Order Confirmation Agreement on the following terms and conditions of purchase by Buyer. Any waiver or amendment of these terms and conditions shall not be binding on Seller unless made in a writing expressly stating that it is such a waiver or amendment and signed by an authorized representative of Seller.

This contract, along with the Sales Order Confirmation Agreement once accepted by Seller, shall constitute the entire agreement between Seller and Buyer with respect to the merchandise to be furnished hereunder. Buyer acknowledges that no representation, promise or condition except as set forth herein has been relied upon in making its determination to purchase.

 

Orders and Acceptance:

All orders are subject to approval at Seller’s home office. Acceptance of any and all purchaser orders from Buyer is conditioned upon Buyer’s consent to the Terms and Conditions set forth herein, which are in lieu of and replace any and all terms and conditions set forth on any purchase order, specifications or other documents issued by Buyer. Any additional, different or conflicting terms or conditions on any such document issued by Buyer are hereby rejected by Seller, and any such document shall be wholly inapplicable to any sale from Seller and shall not be binding in any way on Seller.

 

Prices:

The prices quoted by Seller do not include sales, use, excise or other similar taxes. Buyer shall pay, in addition to the prices quoted, the amount of any present or future sales, use, excise, duty or other similar charge, fee or tax applicable to the sale of merchandise by Seller unless, in lieu thereof, Buyer furnishes Seller at the time an order is submitted appropriate exemption certificates or other documents acceptable to taxing or custom authorities. No responsibility or liability will be undertaken by Seller for import duties, laws, regulations, fees or taxes imposed by any foreign country.

Buyer shall remain primarily liable for the purchase price, and Seller shall not be obligated to accept any item or condition of payment which will shift said liability to a third person or entity not a party to this contract of sale whether or not such third person is the United Sales Government, its agents or instrumentalities. No cost analysis of the cost of manufacturing or producing the merchandise covered by this contract of sale will be supplied and no examination or audit of Seller’s books and records will be permitted for any reason whatsoever.

 

Credit conditions and approval:

Acceptance of any order, as well as the shipment and delivery of any materials, shall be subject to the credit approval of Seller. Seller may, in its sole discretion and at any time, decline to make any shipments or deliveries except upon receipt of full payment or upon terms and conditions or security arrangements satisfactory to Seller. In the event of the bankruptcy or insolvency of Buyer, or if any proceeding is brought by or against Buyer under the bankruptcy or insolvency laws, or if any appointment or assignment for the benefit of creditors is made with regard to Buyer, Seller may terminate its performance and have the same rights and remedies as it would in the event of a breach by Buyer, including, but not limited to, recovery of reasonable cancellation and restocking charges. Unless otherwise agreed to in writing, all export sales are to be prepaid by wire transfer before shipment.

 

Delivery and risk of loss:

Shipping dates are approximate only, and Seller shall not be liable for, nor shall Seller be in breach of its obligations to Buyer, because of any delivery made within a reasonable time after the stated delivery date. Seller shall not be liable for any late delivery caused by the failure of Buyer to provide any necessary information in a timely manner. Title and all risk of loss or damage to the merchandise shall pass to Buyer upon delivery to the carrier. Seller’s liability for delivery shall cease upon Seller making delivery to the carrier at the F.C.A. point.

 

Force majeure:

Seller shall not be liable to deliver or for delay in the delivery of any merchandise due to any cause beyond its control, including, but not limited to, an act of God, civil unrest, military action, insurrection, terrorism, fire, bombing, accident, epidemic, flood, drought, riot, war restraint on transportation or shipping, sabotage, labor dispute, governmental action, or inability to obtain materials, labor, components, manufacturing facilities, or transportation or shipping by affecting Seller, its suppliers or sub-contractors. In the event of any such delay, Seller shall have the right to cancel this contract of sale or extend the date of delivery or performance hereunder by a period equal to the time lost by reason of such delay. In the event Seller’s production is curtailed for any of the above reasons, Seller may allocate its production among its various customers in a commercially fair and reasonable manner. In the event of delayed or extended shipping dates due to any of the above causes, and Buyer changes shipping instructions, any additional shipping charges shall be paid by Buyer as a part of the purchase price.

 

Weights, Dimensions, and Designs

Shipping weights and dimensions given by Seller, in its catalog or otherwise, are as close to actual as practicable but are not guaranteed. No claims will be allowed because of any discrepancy between actual weight or dimensions shipped and listed data. All designs and specifications are subject to change without notice.

 

Shipping and Packaging:

All merchandise is carefully packed for shipment, and Seller will not be responsible for loss, delay or breakage after having received ‘in good order’ receipts from the carrier. All claims for breakage, loss, delay and damage should be made to carriers, but Seller will assist Buyer in securing satisfactory adjustments for such as claims. In the absence of directions, merchandise will be shipped by the method and via carrier Seller believes dependable in its sole discretion.

 

Cancellation:

An order is not subject to cancellation by Buyer or changes in specifications, shipping schedules or other changes without Seller’s prior written consent and then only upon agreement to compensate Seller for loss caused by such cancellation or changes.

 

Compliance with Laws and Safety Regulations:

It is Buyer’s sole responsibility to assure the safe use, maintenance, and operation of any and all products or merchandise provided by Seller, including any and all options, safety equipment, and additions. Furthermore, Buyer shall solely be responsible for compliance with any and all requirements or recommendations of any supplier or sub- vendor of Seller, OSHA, and any other local, state, federal, or international safety or other treaties, statutes, laws or regulations as they may pertain to the sale, transport, alteration and/or operation or use of the merchandise.

 

Sellers Warranty and Limitation of Liability:

Seller warrants that the merchandise sold to Buyer shall be free from defects in material and workmanship under normal use and service for a period of twelve (12) months from the date of shipment from Sellers facility. If, during such period 
(i) Seller is notified promptly in writing upon discovery of any defect in the merchandise sold hereunder, including a detailed description of such defect, and 
(ii) such merchandise is returned to Seller, F.O.B. Seller’s facility, and 
(iii) Seller’s examination of such returned merchandise proves to Seller’s satisfaction that such merchandise is defective and such defects were not caused by accident, abuse, misuse, neglect, improper installation or any repair, modification, adaptation or other physical change performed by someone other than Seller, improper testing, or use contrary to any instructions issued by Seller, 
then, within a reasonable time, Seller shall (at its sole option) either repair, replace, or credit Buyer for such merchandise.

Seller shall return any merchandise repaired under this warranty to Buyer transportation prepaid. The performance of this warranty does not extend the warranty period for any merchandise beyond that period applicable to the merchandise originally delivered. The foregoing warranty constitutes Seller’s exclusive liability, and the exclusive remedy of Buyer and all others claiming under, with or through Buyer for any breach of any warranty or other nonconformity of the goods covered by this acknowledgement. This warranty is exclusive, and in lieu of all other warranties, express, implied, arising by trade usage, or statutory, including but not limited to the warranties of merchantability and fitness for a particular purpose, which are hereby expressly disclaimed to the fullest extent allowed by law. In no event will Seller be liable for special, indirect or consequential damages or loss of use or profits resulting from Seller’s performance or failure to perform, or the furnishing, performance, or use of any merchandise sold by Seller to Buyer, whether due to breach of contract, breach of warranty, statute, tort of Seller or otherwise. The total liability of Seller under or in connection with this Agreement shall, in no event, exceed the total payments made by Buyer to Seller under this Agreement. This limitation of liability also extends to any injuries and/or damages of whatever nature resulting in any way from Buyer’s use of any engineering recommendations, or technical assistance, advice or data supplied by Seller to Buyer in connection with the merchandise supplied by Seller.

 

Non-Warranty Returns for Repair:

Should Buyer desire to return merchandise for repair due to causes not covered by Seller’s warranty, Buyer shall first notify Seller in writing and, after receipt of shipping advice, Buyer may return it to Seller’s place of business carrying charges prepaid. Seller’s Service Department will, if commercially reasonable, repair such merchandise at a price offered before repair. When necessary to request a non-warranty return, give all possible information regarding the trouble experienced and complete details of installation of the merchandise and the use to which it was put

 

Returns for Credit:

No returns for credit will be accepted unless Seller’s permission has been obtained in each case in advance and then only to the original purchaser. Only sizes and designs that are in Seller’s current product line that are in active demand can be accepted for credit. Credit will be based on prices prevailing at the time of return, or the invoiced price, whichever is lower, subject to deduction for expenses incurred in restoring goods to sellable condition. Obsolete or specially manufactured merchandise can be accepted only to the extent of value to Seller in each case, and in Seller’s unfettered discretion.

 

Notice of Claims by Buyer:

Seller shall have no liability on any claim by Buyer with respect to any merchandise furnished hereunder alleged to be not in conformity with the terms and conditions hereof or with any warranty in these terms and conditions unless written notice specifying such claim shall have been the earliest date on which the basis for such claim could have been discovered by Buyer with reasonable diligence but in no event more than twelve (12) months from the date of shipment from Sellers facility. Except as stated in the preceding sentence, Seller shall not be liable to Buyer for any claim under this contract of which it does not receive such timely written notice. Failure to so notify Seller shall constitute a waiver of all claims hereunder.

 

Limitations upon Remedies of Buyer and Others:

As to any claim of whatever nature or kind asserted against Seller that is related to this transaction or to the merchandise which is the subject hereof, the remedies of Buyer and all other claiming under, with or through Buyer are expressly limited to the following:
Seller will, at its sole option, either 
(1) repair or replace such merchandise at the delivery point specified herein, or 
(2) repay the contract price herein of such merchandise upon its return by Buyer to said delivery point, plus any transportation charges paid by Buyer in addition to such price, or 
(3) credit Buyer with an amount determined in accordance with Section 2-714(2) of the Uniform Commercial Code.

Notwithstanding any other provision or term of this contract or any existing or future document or instrument being deemed part of this contract, the limit of Seller’s liability with respect to this transaction or with respect to the merchandise which is the subject hereof, whether in contract, in tort, under any warranty or statute, or otherwise shall, except as expressly provided otherwise in paragraph (A), be the contract price herein of the specific product supplied by Seller to which this contract Relates. Without limiting the foregoing, Seller shall not be liable for any special, or consequential damages in any claim, action, suit or proceeding related to this transaction; nor shall there be any liability thereunder to Seller for claims for labor, loss of profits or goodwill, repairs, delay damages, direct or indirect penalties, or expenses incidental to replacement.

Seller shall not be liable for and Buyer assumes responsibility for all personal injuries and property damages resulting from the handling, possession, installation or use of the merchandise covered by this Agreement; and The foregoing is intended as a complete allocation of the risks and fault between the parties. Because the bargain struck and the price paid reflect such allocation, this limitation upon remedies will not have failed of its essential purpose.

 

Ownership and other Rights:

Buyer has no title to or interest in the merchandise covered by this Agreement except as expressly provided herein. Seller has and shall retain sole and exclusive title to or interest in the merchandise until completely paid for by Buyer. In no event shall Buyer acquire any trade secrets, copyrights, patents or rights to patent, trademark or any other such intellectual property or proprietary rights embodied in the merchandise

 

Indemnification:

Buyer shall indemnify Seller from and against any claims, including third party claims, loss, costs, damages or expenses, fines, amounts paid in settlement, and reasonable legal fees and expenses (collectively “Claims”), arising out of or related to any of the following: 
(i) Buyer’s breach of this Agreement; 
(ii) the negligence, gross negligence, bad faith, intentional or willful misconduct of Buyer; or 
(iii) bodily injury, death or damage to personal property arising out of or relating to Buyer’s use or operation of the merchandise.

 

Governing Law, Limitations, Arbitration and Forum Selection:

This Agreement, including the parties' rights, obligations and performance under it or with regard to the merchandise, are governed by the laws of the State of North Carolina, excluding its choice of laws' provisions and excluding the Convention for the International Sale of Goods. Any controversy, claim or dispute arising out of or relating to this Agreement or the merchandise shall be submitted to binding arbitration in Mecklenburg County, North Carolina in accordance with the rules and laws of the State of North Carolina, including the Revised Uniform Arbitration Act, within two (2) years of the earlier of the date of shipment. The Parties shall each pay one-half of the costs and expenses of such arbitration and each shall separately pay its counsel fees and expenses unless otherwise ordered by the arbitrator(s). In the event that a dispute arises which requires arbitration or results in legal action, the prevailing party may recover its reasonable attorney's fees pursuant to N.C. Gen. Stat. § 6-21.6. Judgment upon any award rendered by the arbitrator(s) may be entered in any North Carolina State Court having jurisdiction thereof. Further, Buyer hereby irrevocably consents to and confers personal jurisdiction upon the courts of the State of North Carolina, and waives any objections to the sole and exclusive jurisdiction or venue of such courts.

 

Assignment:

Buyer may not assign its rights or obligations under this Agreement or any other purchase order with Seller without the prior written consent of Seller, any purported assignment without such consent shall be of no effect.

 

Survival of Obligations:

The obligations of the parties under this Agreement, which by their nature would continue beyond the termination, cancellation or expiration of this Agreement, shall survive termination, cancellation or expiration of this Agreement. Similarly, any portion of this Agreement that is found to be unenforceable will not invalidate the remainder of this Agreement.

 

Acceptance, Waiver and Acknowledgment:

By taking delivery of the merchandise covered by this Agreement, Buyer accepts and agrees to be bound by all the terms and conditions stated herein. Any waiver by Seller of any default by Buyer, of any of the terms and conditions of this Agreement, or any other purchase order with Seller shall not be deemed to be a continuing waiver. It is acknowledged by Buyer that Seller shall in no way be deemed or held to be obligated, liable, or accountable upon or under any claims, guarantees, warranties, express or implied, statutory, by operation of law or otherwise in any manner or form whatsoever beyond its express agreements herein

 

Date: November 2024