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General terms and condition of sale
Fronius
USA LLC = Seller
1.
Applicable Law and Jurisdiction
These
General Terms and Conditions apply to all proposals and quotations
submitted by Seller, to all purchase orders received by Seller, and to
all goods and services sold by Seller, except as otherwise specifically
provided in a document signed by Seller. This sale or any
sale resulting herefrom consists only of these terms and conditions
and those in other documents which are referred to herein or are
attached hereto or in a document subsequently signed by Seller and
referencing this transaction (all of which constitute the
"Agreement"). The Agreement shall be governed, construed
and enforced under the law of the State of Michigan including the
Uniform Commercial Code in force on the initial date of the Agreement
("UCC"), except as provided herein. The U.N. Convention
on the International Sales of Goods shall not apply provided the
parties’ choice of law is enforced. Any services to be provided
hereunder, whether or not they are otherwise ancillary to and part of a
sale of goods (as separate units), shall be considered ancillary to a
sale of goods and the UCC shall apply to all goods and services to be
provided hereunder ("Goods"). The courts of Michigan
shall have exclusive jurisdiction over the parties and the claims
arising under or related to the Agreement. The parties stipulate
to the convenience of Michigan courts in general, and Livingston
Circuit Court in particular, as to all litigation. Any
declaration of unenforceability of a provision shall be as narrow as
possible and shall not affect the enforceability of the other provisions.
2.
Formation, Integration and Modification
(A)
The Agreement supersedes all previous quotations and agreements
pertaining to the Goods. Delivery to Seller of the Buyer's
acceptance of a Seller’s quotation (according to its terms), Seller's
actions in reliance on Buyer's oral acceptance of a written or oral
quotation, or Buyer's receipt of the Goods, will constitute a binding
contract under the terms of the Agreement. The Agreement is
subject to Seller's revocation or cancellation without liability
until it is approved by the Seller. Notice of such approval may
be furnished to the Buyer in the form of an acknowledgment, shipment,
or other form of express approval. (B) An order submitted by
Buyer orally or in a purchase order or other writing (whether or not it
contains terms or conditions modifying, adding to, repugnant to, or
inconsistent with these Terms and Conditions), may be accepted,
approved or filled by Seller, but any resulting contract and the
liabilities or obligations of Seller shall be determined solely by the
Agreement, and (unless the Seller otherwise advises Buyer in writing)
notice is hereby given that Seller objects to any such terms or
conditions in Buyer's purchase order or other writing. Seller
shall not be deemed to have in any way enlarged or modified its
liabilities or obligations under the Agreement by filling such order or
by failing to further object to Buyer's terms or conditions. (C) The
Agreement is a final, complete and exclusive statement of the
Agreement of the parties. THE SELLER IS WILLING TO NEGOTIATE
WRITTEN CHANGES TO THESE TERMS AND CONDITIONS, BUT RESERVES THE RIGHT
TO MAKE AN ADJUSTMENT IN THE PRICE OF THE GOODS. No modifications,
limitations, waivers or discharge of the Agreement or any of its terms
shall bind Seller unless in writing and signed by Seller's authorized
employee at its home office. Notwithstanding anything to the contrary in
this Agreement, no modifications, limitation, waiver or discharge of
any provision of the Agreement shall affect the Buyer's liabilities to
Seller accrued prior thereto. Seller may correct unilaterally any
mathematical and typographical errors in the Agreement. Typed
provisions of the Agreement take precedence over printed provisions.
A course of performance, course of dealing, or customs in the trade
shall not constitute a modification or waiver by Seller of any right by
Seller. (D) The Agreement is only for the benefit of the parties,
except all disclaimers and limitations applicable to Seller shall be for
the benefit of Seller's agents, employees, contractors, and suppliers.
If any provisions are determined to apply to third parties, all other
provisions including limitations, waivers, and disclaimers shall
also apply. (E) Goods quoted to Buyer are subject to prior sale or other
commitment.
3.
Prices, Risk of Loss and Payment
(A)
Prices contained in Seller's published price lists, if any, are subject
to change without notice. Prices contained in individual written
quotations or proposals are firm only for a period of thirty (30) days
from the date of the quotation after which Buyer should inquire of
Seller as to their validity and request a written confirmation or
revision. Prices do not include taxes and Buyer shall pay all
applicable sales or other taxes levied with respect to Goods (and
replacements) and the Agreement, unless exempt therefrom. Unless
otherwise agreed by the parties, all prices are in U.S. dollars.
Buyer shall pay all government fees levied on the installation and
inspection of the Goods. Buyer shall pay upon receipt all invoices
rendered by Seller for any such items Seller may pay and for the Goods.
(B) This Agreement is for a shipment contract and the Goods shall be
delivered F.O.B. Seller's dock in Brighton, Michigan. Whether or
not Seller prepays shipping charges, risk of loss passes to Buyer upon
tender of the Goods to a carrier. Seller is not responsible to
prepay transportation or insurance costs. Seller's breach of the
Agreement shall not affect the passing of the risk of loss to Buyer
notwithstanding any provision of law to the contrary. (C) Except as
otherwise provided in the Agreement, Seller shall not be responsible for
any freight, transportation, insurance, shipping, storage, handling,
demurrage or similar charges arising out of the performance of this
Agreement. If such charges are specifically included in the price,
any increase in rates becoming effective after the date the price is
quoted to the Buyer shall be added to the price. (D) Invoices may be
rendered separately for each shipment (including any early shipment)
made by Seller. Buyer shall pay all invoices net thirty (30) days
after the date of shipment. Buyer may deduct 2% of the cost of the
Goods, excluding taxes and transportation or shipping expenses if Seller
receives payment within 10 days from the date of the invoice.
Seller may change any payment term to Buyer on seven days written
notice. Buyer shall not withhold or set-off any payments owed to
Seller. (E) Seller may unilaterally increase prices to cover increased
costs (plus reasonable overhead and profit) of design, materials, and
manufacturing required by changes requested by Buyer after the date of
any quotation. (F) All amounts not paid to Seller when due shall incur a
carrying charge of 1.5% per month to the extent allowed by law and
otherwise at the highest written contract rate allowed by law. (G) All
amounts due on installation or other event which requires the action or
cooperation of Buyer which Buyer fails to supply timely shall become due
upon such failure. (H) All export and import permits and licenses and
the payment of all export and import duties and customs fees shall be
the responsibility of Seller, if Seller is obligated by the Agreement to
deliver the Goods within the United States. All export and import
duties, fees, permits, licenses, etc. for Goods to be delivered outside
of the United States shall be the responsibility of the Buyer unless
otherwise agreed.
4.
Delivery
Shipping
dates are estimates based on Seller's present engineering and
manufacturing capacity and scheduling, and may be revised by Seller upon
receipt or scheduling of Buyer's order. All shipping dates are
approximate and shall be computed from the date of entry of the order
on Seller's books. All shipping dates are further subject to
Seller's prompt receipt from Buyer of a written purchase order or
acceptance, letter of credit, down payment, and other conditions as
specified in the Agreement, and of all drawings, information and
approvals necessary to provide the Goods and to grant any credit
proposed in the Agreement.
5.
Delay of Shipment or Performance Excused for Various Reasons
(A)
If shipment of any item or other performance by Seller is delayed at the
request of or due to the fault of the Buyer, the Seller may at its
option hold the item at the place of manufacture at the risk and expense
of the Buyer from the time it is ready for shipment. In the event
of any such delay in shipment, full and final payment for an item shall
be due and payable thirty (30) days after the Buyer is notified that
the item is ready for shipment. If the Seller is unwilling to
accommodate the Buyer by holding such item, the Buyer shall accept
shipment immediately. (B) Dates for Seller's performance are estimates
only. In addition, the Seller shall not be in default because of
its delay or failure to deliver or perform resulting, in whole or in
part, from: (i) any foreign or domestic embargoes, seizures,
acts of God, insurrections, war, or the adoption or enactment of any
law, ordinance, regulation, ruling or order; (ii) the lack of usual
means or transportation, fires, floods, explosions, strikes or any
other accidents, contingencies, or events, at the Seller's or its
supplier's plant or elsewhere (whether or not beyond the Seller's
control) which directly or indirectly interfere with, or render substantially
more burdensome, Seller's production, delivery, or performance; or
(iii) delays caused Buyer. In the event that one or more
deliveries hereunder is delayed by any reason provided in this Section
for a period of 30 days, Seller may, at its option, terminate the
Agreement as to the undelivered goods or waive such delay and establish
a new delivery schedule.
6.
Inspection, Testing and Rejection
(A)
If the Agreement expressly provides for Buyer's inspection and/or
acceptance of the Goods, Seller's standard test procedures conducted
by Seller's representative shall be the criteria for inspection and/or
acceptance, unless other specific procedures have been specified in the
Agreement. (B) All drawings, specifications, technical documentation,
samples, prototypes and Goods shall be deemed approved and/or accepted
by Buyer if Buyer does not provide a written objection and/or rejection
to Seller within 7 days of receipt or other reasonable time established
by Seller. Any objection and/or rejection by the Buyer must be in writing
to the Seller and state with specificity all defects and non‑conformities
upon which Buyer will rely to support its rejection. ALL DEFECTS
AND NON-CONFORMITIES WHICH ARE NOT SO SPECIFIED ARE WAIVED. (C) If the
Agreement requires, or Seller requests in writing, inspection or testing
prior to shipment, and upon notification by Seller that the Goods are
ready for inspection or testing, the Buyer shall provide at the place of
manufacturer, at its own expense, one or more qualified and authorized
employees to inspect and/or test the Goods, check them for general
compliance with the Agreement, and authorize shipment. If Buyer
fails to do so within seven (7) days, then the Seller may, in its own
discretion, determine that Buyer has waived the right of inspection,
testing and/or acceptance prior to shipment and ship the Goods.
Correction of defects or non-conformities, which would likely have been
discovered by Buyer's inspection and/or testing and are otherwise
covered by Seller's warranty, will be at the Buyer's expense. (D) Buyer
shall provide, at its cost and risk of loss, all materials, fixtures,
tooling and other items necessary for any inspection and/or testing
required by the Agreement or requested by Seller. If the Buyer
fails to supply such items within the time required, Seller may supply
them at Buyer's expense or test by such means as available at the place
of manufacturer. Equipment, parts and materials furnished by Buyer
for testing and/or inspection will be returned to Buyer at Buyer's cost,
unless Buyer authorizes their disposal. If the Goods include the
necessary fixtures and tooling, the inspection and/or testing at the
place of manufacture may be performed on production or other equipment
similar to but other than that identified to the Agreement.
7.
Installation
(A)
All Goods shall be assembled and installed by and at the expense of the
Buyer. Seller may furnish, upon request and without additional
cost or liability to Seller, written instructions for installing,
maintaining, and operating the Goods. At Buyer's request and cost,
Seller may furnish personnel and equipment to assist in the installation
and/or startup of the Goods. Buyer shall pay Seller its prevailing
per diem rates for such personnel and equipment plus reasonable
transportation, food, lodging and other travel expenses. Buyer
shall have competent supervisory, maintenance and operating personnel
present when Seller's personnel are performing such services.
Buyer shall provide Seller, at no cost, with equipment and auxiliary
materials (e.g., winches, rails, electricity, etc.) necessary to install
the Goods. (B) Buyer assumes all risk of using the Goods in its location
and in connection with other equipment. Seller has no
responsibility to determine the adequacy of the foundation, utilities,
skills of Buyer's staff, or other matters. (C) If a standard foundation
drawing is supplied, it includes only plan and elevation views.
Due to many variations in soil type, adjacent equipment, workmanship,
foundation depth, etc. any foundation drawing is a suggestion only.
The foundation (whether or not constructed with Seller’s drawing) is
not warranted and Seller shall not be responsible for any defects in the
foundation or consequences which may result from an inadequate
foundation.
8.
Software License
The
Seller grants the Buyer, for its internal use only, a nonexclusive
perpetual license ("License") of all user manuals, software
programs, firmware, and storage media ("Software") provided by
the Seller in conjunction with the Goods with which the Software is
provided, for the sole purpose of the operation of the Goods. This
License terminates automatically if Buyer is in default of its
obligations. The Software may be provided in machine readable
object code only. Licensee may make and keep one copy of the
object code, if provided by Seller, for backup purposes. When
making a copy, the Buyer shall reproduce all Seller's copyright or
patent notices in all forms originally included in the Software.
Buyer shall not make any effort to obtain or reproduce the Software's
source code. Title and all ownership rights to the Software remain
with Seller, its licensors, or its suppliers. The Software is the
proprietary information and trade secret of the Seller or its licensors,
whether or not any portion thereof is or may be validly copyrighted or
patented. The License may not be assigned nor transferred by Buyer
except as a part of a transfer of the Goods without the written consent
of Seller which may be withheld. The Software is provided for the
Buyer's internal use only and the Buyer shall maintain the confidential
nature of the Software and related materials and protect them against
disclosure or improper use. Buyer shall pay all taxes based on the
Software or use of the Software, however designated or levied, except
those based on Seller's net income. These provisions take
precedence over any government procurement policy, regulation, or
contract clause relating to rights in computer software. All
disclaimers and limitations applicable to the Goods apply to the
License.
9.
General Express Warranties
(A)
Seller warrants to Buyer only, that the portions of Goods manufactured
by Seller shall be free from manufacturing defects in materials and
workmanship which are discovered within the warranty period, subject to
the disclaimers and limitations of the Agreement. The warranty
period, measured from date of purchase to the original end-user, or from
the date of manufacture if the original invoice cannot be provided,
shall be: (i) two years for welding machines and wire feeders; (ii) 90
days for TIG and Spools guns and cable assemblies; and (iii) six months
from the date of installation for replacement P.C. boards. The
following items are not covered under this Section: contacts, tips,
liners, feed rolls, or other wear items. This is not a warranty of
performance, but a limited warranty as to the condition of the Goods at
the beginning of the warranty period. Because the Goods may be
subject to a wide variety of use, installation, maintenance and
cleaning, the warranty is only against such defects and not against any
other failures such as, but not limited to, those due to wear and tear,
and normal maintenance and perishable items are excluded from this
warranty against defects. (B) Seller warrants to Buyer that the Goods
will be as described in the Agreement in all material respects,
subject to the limitations stated herein and Seller's published and
internal standards; however, Seller retains the right to change the
dimensions, composition, design, performance, color and appearance
of the Goods without liability if, in its judgment, the change is
non‑material. Seller may, in its discretion, also rely on
any generally accepted industry standards. (C) Seller's warranties
shall apply only if the Goods: (i) have been installed,
maintained, and used in conformity with instructions furnished by
Seller from time to time, if any; (ii) have been subjected to normal use
for the purpose for which Goods were designed; (iii) have not been
subjected to misuse, negligence, or accident; (iv) have not been altered
or repaired by persons other than Seller in any respect which, in the
judgment of Seller, adversely affects the condition or operation of
the Goods; and (v) are not altered, modified, used or manufactured by a
third party.
10.
Patent Express Warranties
Seller
shall defend and indemnify Buyer from any claim which asserts that the
Goods or their inherent methods of operation, intrinsically, infringe
any United States patent, except as to a claim based on Buyer's use of
the Goods as a step in an overall process or as an element in an overall
combination. Seller's obligation shall not apply to a claim based
on Goods or portions thereof specified, designed, or manufactured by
Buyer. Buyer shall notify Seller promptly of any assertions of
patent infringement and provide Seller with assistance and information
requested by Seller, or Seller shall have no further obligation to
defend or indemnify. Seller shall defend with its counsel or other
counsel of its choice and shall have the sole right, without
consultation with Buyer, to take all action Seller deems appropriate to
prosecute or settle such claims. Seller's exclusive obligation to
indemnify as to Goods declared to infringe is limited to the acquisition
of a license, the replacement of Goods with non-infringing goods, the
modification of the Goods so that they are non-infringing, or the return
of the purchase price and shipping costs in exchange for the Goods, as
Seller may elect. This section states the Seller's entire and
exclusive obligation regarding patent infringement.
11.
Disclaimer and Limitation of Express Warranties
There
are no express warranties other than those contained in the Agreement.
Any representations as to performance and other matters, except as contained
in the Agreement, were for illustrative purposes only and do not constitute
a warranty. Whether or not the Goods are to be used exclusively by
Buyer, there shall be no third party beneficiaries to the express warranties
contained herein. Seller does not warrant any portion of the Goods
not manufactured by or not furnished by Seller (whether or not specified
by Buyer), but Seller shall assign to Buyer upon request all assignable
warranties of Seller's suppliers related to such Goods. All
descriptions, shipping specifications and illustrations of the Goods or
the Seller and its quality and other systems and capabilities in
catalogues, brochures and price lists or otherwise provided by the
Seller are intended for general guidance only and the Seller is not
responsible for any errors or omissions therein or for any loss or
damage resulting from reliance on them. Seller does not warrant
that it or the Goods are in compliance with any entity, organization or
industry standards, guidelines, or procedures unless specifically
contained in the Agreement. Seller does not warrant any damage to
Goods caused by atmospheric discharge, over-voltage or chemical
influences.
12.
Remedy and Limitation of Seller's Liability
(A)
Defective or non-conforming Goods or parts thereof discovered during
the warranty period shall be repaired, or replaced by Seller without any
additional charge and shipped to Buyer, FOB Seller's place of business,
for reinstallation by Buyer at its cost, subject to the terms hereof.
The warranty obligation of Seller is limited to the repair or
replacement at Seller's place of business of any part of the Goods which
Buyer shall, within the warranty period, return to Seller, with
transportation charges prepaid by Buyer, and which Seller shall
determine upon examination to be defective or not in conformity with the
express warranties contained herein. In lieu of repair or
replacement, if Seller elects, Seller may, upon return of such Goods and
making a determination of non‑conformity or defect, keep the
Goods and refund the purchase price. Buyer's remedies shall be
limited (even in the event of Seller's default of its warranty
obligations) exclusively to those provided in this section.
UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR CONSEQUENTIAL OR INCIDENTAL
DAMAGES. Buyer waives any causes of action or theories of
liability including, but not limited to, those arising under contract,
tort, strict liability, product liability, statutes, or otherwise,
except as specifically prohibited by the UCC as modified and limited
herein. The replacement or repair of Goods by the Seller does
not give rise to any new warranty except the warranty period provided
for herein shall be extended by the length of any period from the date
the defective or non‑conforming Goods are received by
the Seller until the date repaired or replacement Goods are delivered to
Buyer. Any legal inability to limit or restrict the right of the
Buyer or a third party to such damages shall not affect the right of
Seller to indemnification hereunder, and under no circumstance shall
Buyer recover more than the purchase price. (B) Buyer must contact
Seller requesting warranty coverage plus a return authorization number
and other instructions for the return of Goods to Seller or other
instructions. If requested by Seller, Buyer shall issue a new
purchase order or amendment to Seller for replacement parts, subject to
Seller issuing a credit memo if Buyer’s claim for warranty coverage is
approved. Buyer must comply with Seller’s return instructions
(including return of the Goods) within 30 days or the claim shall be
deemed conclusively to have been abandoned. Buyer is responsible
for properly tagging, identifying, and packing returned Goods.
Goods returned without compliance with the above procedures shall be
returned to the sender at sender’s cost.
13.
Disclaimer of Implied Warranties
THE
SELLER DISCLAIMS ALL IMPLIED WARRANTIES (OTHER THAN GOOD TITLE)
INCLUDING BUT NOT LIMITED TO THOSE OF FITNESS FOR A PARTICULAR
PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT. Buyer affirms that it
has not relied upon the Seller's skill or judgment to select or furnish
Goods for any particular purpose beyond the specific express warranties
in this Agreement. Seller does not warrant the Goods will comply
with the requirements of any safety or environmental code or regulation
of any federal, state, municipality or other jurisdiction beyond the
specific express warranties in this Agreement.
14.
Parts, Service and Training Performed by Seller
All
warranty and non-warranty parts, inspection, labor, service, software,
and training, if any, provided by the Seller or its agents and
contractors (including those provided under purchase orders subsequent
to the Agreement) related to the Goods are subject to all limitations
and disclaimers of warranties and remedies provided in the Agreement.
The Seller is not under any duty to inspect the Goods for any defects or
any improper use or modification of the Goods nor to correct or advise
the Buyer of any such condition, use or modification, which is observed.
Any notification which may be given is voluntary and subject to all
limitations and disclaimers in the Agreement.
15.
User's Responsibility for Safety
(A)
It is Buyer's or other user's responsibility to provide all proper dies,
devices, tools, training, and means that may be necessary to effectively
protect all personnel from serious bodily injury which otherwise may
result from the method of particular installation, use, operation,
setup, or service of the Goods. Manuals furnished by Seller, ANSI
Safety Standards, OSHA and similar state regulations, and other sources
should be used by Buyer to insure the safe use of the Goods. (B) Seller
believes that the Goods will be in substantial compliance with the
general requirements of federal OSHA regulations directly associated
with operator safety and noise level control. The technical detail
of the complete OSHA regulations and many additional references to other
standards render it impracticable to provide complete compliance unless
Buyer requests compliance with specific sections or paragraphs of OSHA
or other standards and such standards are included in Seller's
quotation. Because of changes which occur in OSHA, state codes,
local codes and user safety programs, Seller must be advised by Buyer or
other users if they desire specific modifications in the Goods required
for compliance. A quotation will be submitted for such requested
modifications. (C) Goods designed and manufactured by Seller are capable
of being used in a safe manner, but Seller cannot guarantee their safety
under all circumstances. BUYER MUST INSTALL AND USE THE GOODS IN A
SAFE AND LAWFUL MANNER IN COMPLIANCE WITH APPLICABLE HEALTH, SAFETY, AND
ENVIRONMENTAL REGULATIONS AND LAWS AND GENERAL INDUSTRY STANDARDS OF
REASONABLE CARE.
16.
Indemnification
(A)
Buyer shall indemnify the Seller from any and all third party claims,
damages, and expenses (including reasonable attorney fees) under
theories of tort, product liability, negligence (ordinary or
gross), warranty, contract, statute, or otherwise arising out of the
use, storage, sale, processing or other disposition of the Goods,
supplies or materials used in connection with the Goods, or parts
manufactured with the Goods, if the action or inaction of the Buyer or
its employees, customers or agents, or the Buyer's design
specifications, were a material or proximate cause of injuries or
damages giving rise to claims against the Seller. (B) Buyer shall use
and shall require its employees to use all safety devices and guards
furnished with or intended to be used with the Goods, and to follow
proper safe operating procedures in accordance with general industry
standards and as set forth in manuals and instruction information
furnished by Seller. If Buyer fails to comply with the obligations
set forth in this subsection, Buyer shall indemnify and hold Seller
harmless from any liability or obligation incurred by Seller to persons
injured directly or indirectly in connection with the operation of the
Goods and all warranties of Seller shall become automatically void.
Buyer shall notify Seller promptly, and in any event within 30 days, of
any accident or malfunction involving Goods which results in personal
injury or damage to property and shall cooperate fully with Seller in
investigating to determine the cause of such accident or malfunction,
including allowing Seller access to the Goods and Buyer's reports
regarding the Goods for Seller's inspection. If Buyer fails to
give such notice to Seller and so cooperate, Buyer shall indemnify
Seller from any claims arising from such accident or malfunction.
17.
Cancellation and Breach
(A)
Buyer may cancel its order for the Goods prior to their completion by
immediate payment to Seller of Seller's cost of manufacture and
liquidated damages (including labor, engineering, materials, equipment
time, and overhead) computed using Seller's standard internal costing
procedures, plus 15% of the sale price of the Goods. Cost of
manufacture shall include all materials or services which Seller has
ordered and which cannot be canceled and all costs incurred in canceling
material and service orders which can be canceled. Seller may
retain without cost all materials and partially completed Goods on
canceled orders. The parties acknowledge the great difficulty of
proving damages for the cancellation of products such as the Goods and
the reasonableness of this liquidated damages provision. (B) If Buyer
defaults in the performance of its obligations, if Buyer advises Seller
that it will default in the performance of its obligations, or if any
action is started by or against Buyer seeking the appointment of a
trustee or receiver or the entry of an order for debtor's relief for
Buyer, the Seller may cease performance of its obligations, recover
Goods in transit or delivered, disable delivered Goods, and otherwise
enforce its remedies for Buyer's default. (C) Seller shall be awarded
incidental damages and costs (such as actual reasonable attorney fees)
in any proceeding to enforce its remedies in which it obtains relief or
damages.
18.
Security Interest, Power of Attorney
In
addition to any security interest granted by the UCC, the Buyer hereby
grants a security interest to the Seller in all Goods and documents
related thereto and proceeds and products therefrom to secure all
obligations of the Buyer to the Seller, whether or not arising under the
Agreement. Buyer shall sign financing statements evidencing the
security interest as reasonably requested by Seller, or Seller may file
a copy of the Agreement or portion thereof as a financing statement.
Buyer grants Seller an irrevocable power of attorney to sign Buyer's
name to a financing statement if necessary or convenient to perfect
Seller's security interest. The Goods shall be and remain strictly
personal property and retain their character as such, no matter whether
on permanent foundation or in whatever manner affixed or attached to
building or structure, or for what purpose the Goods may be used.
Buyer shall not sell, exchange, transfer, convey, mortgage, pledge,
hypothecate, or grant a security interest in any Goods which are the
subject to this Agreement if payment therefor shall not have been made
in full to Seller.
19.
Proprietary Information
(A)
Buyer acknowledges that any information disclosed to Seller has not and
will not be confidential or a trade secret unless clearly and
conspicuously noted on the disclosure, or in some other writing
delivered to Seller at or prior to the time of the disclosure.
Otherwise, Seller shall be under no obligation to refrain from using in
its business any information, manufacturing processes or unpatented
disclosures which may pass to it from the Buyer in the performance of
the Agreement. (B) All proposals, plans and other information furnished
by the Seller in bidding, negotiating and performing the Agreement, are
confidential and the property of Seller and shall not be shown or
disclosed to any other bidder, and shall not be shown or disclosed to
any third party or used by Buyer except as may be necessary for the
selection or use of the Goods. (C) Any design, invention or other
information developed by Seller in the performance of the Agreement
shall remain the property of Seller. (D) Seller is not obligated to
furnish detailed or shop working drawings, engineering calculations,
computer programs, or other information for any Goods or part thereof.
20.
Solvency of Buyer
Buyer
represents that it is solvent and able to pay the price for the Goods,
and that all financial and business information given to Seller is
correct. If Buyer becomes insolvent before delivery of the Goods,
it shall notify Seller. Acceptance of delivery shall be a
reaffirmation at delivery of Buyer's solvency, and that there has not
been a material adverse change in such information.
21.
U.S. Government Regulations
The
Buyer shall not engage in any transaction with respect to the Goods
which violates any statute or regulation of the United States of
America.
22.
Time for Bringing Action
Any
proceeding by the Buyer for breach of the Agreement or any other right
against Seller arising from or in connection with the payment cannot be
filed nor maintained unless: (i) it is commenced within one (1)
year after the cause for action has accrued; (ii) Buyer has given
timely written notice to Seller of its claim as provided herein; and
(iii) Buyer deposits the unpaid portion of the purchase price with the
tribunal pending final adjudication. An action shall accrue no
later than shipment of the Goods.
23. Assignment
No right or interest in the Agreement may be assigned
by the Buyer without the prior written consent of the Seller. Any
assignment attempted by Buyer shall be void and ineffective for all
purposes unless made in conformity with this section.
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