Except as otherwise agreed, in writing, by nVent Thermal LLC and/or its affiliates (collectively, “Seller”), the following standard terms and conditions of sale will apply to all orders received and all sales made by Seller:
1. REPRESENTATIONS OF BUYER. Buyer represents and warrants that the goods and/or services that it purchases from Seller under this Order Acknowledgment (“Order”) will not be used directly or indirectly for illegal purposes.
2. PRICES. Unless otherwise indicated on the front of this Order, all prices are quoted (INCOTERMS 2010) EXWORKS Seller’s manufacturing facility. Prices may be subject to minimum purchase requirements, as indicated. Unless otherwise specified, the prices do not include any insurance, transportation, shipping, taxes or duties relating to the goods and/or services provided, all of which shall be Buyer’s responsibility. Buyer shall pay those sales or other taxes, however designated or levied (including any value added or similar tax), on the sale or use of goods and/or services other than taxes based upon Seller’s capital or net income. When Seller is required by law or regulation to collect such taxes, Seller will add such taxes to the sales price of the goods or services, which will invoiced to, and paid by, Buyer. The prices set forth are subject to change by Seller at any time upon not less than 10 days prior notice to Buyer. Buyer's sole right upon receipt of such notice shall be to cancel the undelivered portion of any Order affected by the change in price by giving written notice to Seller within 60 days after the date of Seller’s notice. If Buyer fails to give timely notice to Seller of such cancellation, all Orders shall remain in full force and effect and the price shall be that set forth in Seller’s notice.
3. PAYMENT TERMS. Seller may elect to extend credit to Buyer, in Seller’s sole discretion, under Seller’s standard credit terms and conditions as may be applicable from time to time. If Seller does not extend credit to Buyer, payment for goods and services shall be in advance of, or as a condition to delivery of such goods and/or services, as Seller may direct. If for any reason Buyer’s account exceeds the total approved credit line, the amount of overage will become immediately due and payable. In addition, if Buyer places an order for goods and/or services which will cause Buyer’s outstanding credit to exceed the amount of approved credit, the amount over Buyer’s approved credit must be paid in advance of, or as a condition to delivery of goods and/or services under such order. After the due date for any invoice, the lesser of 1.5% of the unpaid balance (annual rate of 18%) or the maximum rate permitted by the law will be added for each month or part thereof that payment is delayed. Buyer shall also be responsible to reimburse Seller for all costs associated with Seller’s attempt to collect amounts due under this Order, including all costs associated with employing a collection agency or initiating legal action to collect amounts due. Seller has the right at any time to change the amount of credit or terms of payment or to withdraw credit and to require partial or full payment in advance as a condition of making further shipments or providing additional services. If Buyer breaches any obligation owed to Seller under this or any other agreement, Seller may impose a “Credit Hold” on Buyer, by which Seller may, at its discretion, refuse to extend credit to Buyer, and/or immediately accelerate all open accounts, and/or require pre-payment or payment “on demand,” and/or remove all of Buyer’s unshipped orders from the shipping queue and release such materials to fill orders to other firms, and/or refuse any further orders. Upon removal of the Credit Hold, Buyer’s orders will be rescheduled as new orders. If Seller performs services or delivers goods in installments, each installment shall be deemed to be a separate delivery for purposes of this section. Payment shall be made without regard to whether Buyer has made or may make any inspection or tests. If either the performance of services or the shipment of goods is delayed at Buyer’s request, payment shall be due on the date Seller is prepared to render such services or make such shipments of goods. Any goods held thereafter by Seller or carrier for Buyer shall be at Buyer’s sole risk and expense. If Buyer fails to pay such sums as are due to Seller, Seller shall have the right to take possession of any goods delivered hereunder as may be in Buyer's possession or control, and to resell, retain or otherwise dispose of the same, offsetting against such unpaid sums any moneys received (net of costs and expenses) as a result of any resale of such goods. Buyer hereby consents to the entry of a judgment or order in any competent jurisdiction, without bond or other security, permitting Seller to enter upon any premises on which such goods may be situated and take possession of or remove such goods, without liability to Buyer, its employees or agents, for any damages caused by such exercise of Seller's rights. As further security for any and all indebtedness to Seller. Buyer hereby grants to Seller, until such time as full payment has been received, a purchase money security interest, with priority over all other security interests, in all (i) goods to which Buyer has or will acquire title hereunder, (ii) present and future accounts receivable and contract rights arising from Buyer's sale, lease or transfer of such goods, and (iii) proceeds and accessions of and to any and all of the foregoing. Buyer authorizes Seller to execute and file, at any time, one or more financing statements with respect to such goods, signed only by the Seller and to otherwise perfect such security interest on Buyer's behalf, and Buyer will cooperate fully in accomplishing the same.
4. RISK OF LOSS, TITLE, DELIVERY and ALLOCATION. Title to and liability for loss or damage to any goods provided shall pass to Buyer upon delivery by Seller to first carrier, notwithstanding any “ship to” address provided by Buyer. Shipping, performance and/or delivery dates for goods and/or services provided are approximate only, and are subject to availability. Seller may allocate resources, production and deliveries among any or all of Seller’s customers as Seller may determine, including without limitation, regular customers not then under contract, as well as for Seller’s (including Seller’s subsidiaries and affiliates) own requirements for further manufacture or other use. Seller has the right to deliver goods and services in installments. Seller shall not be liable for any loss or expense incurred by Buyer if Seller fails to meet such dates for any reason, including, but not limited to, the contingencies stated in Section 8 or any other unavoidable production delays, delays in prompt approval of samples by Buyer, modification of specifications previously agreed upon, delays in submission of specifications acceptable to Seller, or delays due to the fact that Seller has placed Buyer on Credit Hold. Delays in performance, delivery, nonconformity or nondelivery of an installment shall not relieve Buyer of its obligations with respect to any other installments, each installment being deemed to be a separate contract. Unless otherwise specified, Seller shall select the mode of transportation and the carrier for goods delivered. In addition, Seller shall select the method of performance of the services, including without limitation the right, in its sole discretion, to use agents or subcontractors to perform the services to be rendered. All persons performing services for Seller shall be considered to be under Seller’s sole and exclusive direction. Buyer shall not solicit for employment, for itself of for any other person or entity, any personnel of Seller involved in the performance of services under this Order.
5. INSPECTION and ACCEPTANCE. All goods or services delivered or rendered shall be conclusively deemed accepted by Buyer unless a written notice of rejection has been sent by Buyer to Seller within thirty (30) days of receipt by Buyer. Rejected goods shall be placed by Buyer in safe storage for inspection by Seller or returned by Buyer in accordance with the requirements of Section 17. Buyer shall only have the right to reject goods that do not conform to Seller’s warranties. Rejected goods remain at Buyer’s risk until returned to Seller. Buyer acknowledges that its right of inspection shall not affect the passage of title or risk of loss, both of which shall pass to Buyer in accordance with the INCOTERM set forth in Section 2.
6. SOURCE INSPECTION. Except as otherwise agreed in writing with Seller, Buyer shall have no right to enter Seller’s premises to conduct source or other inspections. If Seller permits such inspection, all agents of Buyer entering Seller’s premises shall be subject to Seller’s usual security requirements, including without limitation the execution and delivery of appropriate nondisclosure agreements.
7. SIZE OF ORDER. Unless otherwise expressly agreed to in advance between the parties, Orders (if applicable) must be entered in multiples of the standard pack quantities as may be indicated by Seller from time to time.
8. CONTINGENCIES. Seller shall not be liable for any delay in performance or for nonperformance in whole or in part caused by the occurrence of any contingency beyond the control either of Seller or any of Seller’s suppliers, agents or subcontractors, including, but not limited to, war (whether actual declaration thereof is made or not), sabotage, insurrection, riot or other act of civil disobedience, act of a public enemy, judicial action, any act of government or any agency or subdivision thereof, accident, fire, explosion, flood, storm or other act of God, labor dispute, failure or delay in transportation, shortage of labor, fuel, electricity, raw materials, tools, dies or equipment, or any technical, power or field failure. Any such delays shall excuse Seller from performance and Seller’s time for performance shall be extended for the period of the delays and for a reasonable period thereafter.
9. SUBSTITUTION and MODIFICATION OF GOODS OR SERVICES. Seller has the right to modify the specifications of goods or services to be furnished and to substitute substantially equivalent goods or services.
10. LIMITED WARRANTY:
(a) Limited Product Warranty. Subject to the provisions of Section 10(b) below, Seller warrants goods against faulty workmanship and use of defective materials when such goods are properly installed, operated, and maintained according to product documentation. All documentation regarding proper use and installation can be found at www.thermal.nVent.com. Goods subjected to misuse, neglect, alteration or improper installation, operation, maintenance, repair or testing (or such other act or omissions not attributable to Seller) are not covered by this Limited Warranty. Seller makes NO WARRANTY as to products which are experimental, developmental, or not manufactured by Seller. As to products not manufactured by Seller, at Buyer’s request (but only as permitted under Seller’s agreements with its suppliers), Seller shall assign to Buyer any rights Seller may have under any warranty of the supplier. Seller shall in no event be liable for the cost of removal or installation, for loss or damage to or loss of use of facilities or other property, loss of revenue, loss of use of revenue, loss of anticipated profits, or other damages or costs of any kind whatsoever, whether direct, indirect, incidental, or consequential, and in no event shall Seller’s liability exceed an amount equal to the sales price. This warranty remains in force for a period of two (2) years from date of purchase. Goods repaired under warranty are warranted for the greater of 90 days or the then unexpired portion of the original goods warranty. Seller will examine and confirm that any alleged product issue covered by this Limited Warranty actually exists and occurred in the course of proper and normal use and was not caused by accident, misuse, neglect, alteration or improper installation, operation, maintenance, repair or testing or such other cause outside of the responsibility of Seller under this Limited Warranty. Seller’s sole liability, and Buyer’s sole remedy, for breach of this warranty is limited, at Buyer’s sole option to repair such goods, or supply replacement goods, or credit Buyer’s account for goods covered by this Limited Warranty. Buyer must notify Seller, in writing, within thirty (30) days after discovery of an alleged warranty issue. Detailed warranty claim information will be requested at this time and must be supplied by Buyer. Buyer may then be asked to return the goods, freight pre-paid, to the location given by Seller. Seller’s warranties extend to Buyer and to no other person or entity. Seller’s warranties shall not be enlarged, diminished or affected by, and no obligation or liability shall arise or grow out of, Seller’s rendering of technical advice or services in connection with furnishing the goods, Software, and/or services described in this Order. The periods of time described above in this Section 10, together with the period of any extended warranty, shall be collectively referred to as the “Warranty Period.” Seller must receive the goods subject to any claims hereunder, or notice in the case of services or Software, no later than 10 days after the expiration of the Warranty Period. During the term of the applicable Warranty Period, Seller’s sole and exclusive liability for a breach of warranty described in this section shall be as provided in Section 17.
(b) Down Hole Heater Units. Notwithstanding anything herein to the contrary, Buyer acknowledges that the product design is based on Buyer supplied data and engineering assumptions, the completeness and/or accuracy of which cannot be independently verified by Seller. Further, Buyer and Seller agree that variables of installation, casing configuration, completion design, bottom hole chemical and operating parameters and environment, are inherently unique and unverifiable, and past successful performance of heater unit design and installation may not be indicative of future success. As such, Buyer understands and agrees that it has final approval and responsibility for the appropriateness of the heating unit design for Buyer’s desired down hole performance. Based on Buyer’s approval of design, Seller warrants the goods will, upon transfer of title and risk of loss, perform in accordance with the electrical specifications set forth in Seller’s detailed engineering deliverable, but not that the design is suitable for any particular purpose of Buyer’s use. Any assistance in heater installation or technical or engineering information concerning heaters provided by Seller will be advisory only, at Buyer’s sole cost and on an “as is” basis. No warranty is given with respect to such services or information and Seller will not be liable for any claims arising from its furnishing, or Buyer’s use of such assistance or information.
(c) Services. To the extent the Order with Buyer includes Buyer’s purchase of on-site services, consulting services, design and/or engineering services, training services, or other miscellaneous services, Seller warrants such services will be performed in a good and workmanlike manner by personnel of such experience, skill, and competence that would be expected of a similar, reputable firm specializing in the provision of services comparable to those made the subject of this Order. Seller’s sole liability, and Buyer’s sole remedy, for breach of this warranty is limited, at Buyer’s sole option to re-perform such services or credit Buyer’s account for services covered by this Limited Warranty.
SELLER’S OBLIGATION TO REPAIR, REPLACE, OR REFUND THE PURCHASE PRICE CONSTITUTES AGREED AND LIQUIDATED DAMAGES FOR ANY BREACH OF SELLER’S WARRANTY. THE FOREGOING WARRANTY IS IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES, OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT, AND OF ANY OTHER OBLIGATION OR LIABILITY ON THE PART OF SELLER, WHETHER BY STATUTE, CONTRACT, STRICT LIABILITY, TORT OR OTHERWISE.
11. PROPRIETARY RIGHTS and CONFIDENTIALITY. All confidential information, know-how, ideas, programming, Software, copyrighted materials, trademarks, trade secrets, documentation, plan drawings, specifications, processes, techniques, test results, designs and patterns furnished or created by Seller or by Seller’s agents or subcontractors (other than Buyer) and all intellectual property rights embodied therein or in any of the goods, Software and/or services, are and shall remain the sole property of Seller and neither Buyer nor any other party shall have or acquire any right, title, license or interest therein, except as specifically provided in Section 14. Buyer recognizes and acknowledges that it may gain access to certain confidential, secret or proprietary information possessed by Seller which is a valuable business asset of Seller and that disclosure or unauthorized use of that information would cause grave and irreparable injury to Seller. Buyer shall at all times, whether during the term of this Order or subsequent thereto, honor, maintain and protect the confidentiality of such information. Buyer will take appropriate action to restrict access to such information to those of its employees and agents who have actual need for such access in the course of their duties. Buyer shall not make any copies of any such information nor use such information in any manner contrary to the purposes of this Order without prior written consent of Seller (except that one copy of Software provided may be made by Buyer for storage or archival purposes). Buyer shall not reverse engineer, decompile or disassemble any Software, equipment or any other goods provided. Buyers shall not disclose to any third party the existence or contents of this Order, including prices, without the prior written consent of Seller. The provisions of this Section 10 shall survive the performance, termination or cancellation of this Order.
12. TRADEMARKS and COPYRIGHTED MATERIAL. Buyer shall not use or permit to be used by any person any trademarks, service marks or trade names of Seller without Seller's prior written consent. Buyer shall not make any copies of Seller's copyrighted material including, but not limited to, any printed matter concerning any goods or services, without Seller's prior written consent. Buyer shall display, without alteration, on the goods, Seller’s trademark and/or such other trademarks and trade names affixed thereto or designated by Seller. Buyer shall not use any additional trademarks or trade names, other than Buyer’s name, trademark, or logo, in connection with Seller’s goods or services, without written permission by Seller.
13. NO LICENSE. Neither this Order nor any purchase of any goods and/or services hereunder shall be construed to confer upon Buyer or its customers any license under any patent, trademark, service mark, copyright, or any other proprietary rights of Seller, except the right to use such goods for the purposes for which they were sold.
14. SOFTWARE LICENSES and WARRANTIES. Seller may supply certain firmware, software and/or related documentation (the “Software”) with the goods provided. If any firmware and/or related documentation is furnished with the goods, Seller grants to Buyer and Buyer accepts a nontransferable, nonexclusive license to use, in object code form, such Software solely in connection with Buyer’s use and/or operation of the goods in which such Software is originally installed. If no Standard Terms and Conditions for Licensing of Software or no separate license agreement is provided by Seller in connection with the furnishing of the Software, then (i) Seller warrants that the Software, as delivered, will perform substantially in accordance with Seller’s then-current user manual in all material respects; however, Seller does not warrant that the Software will meet Buyer’s needs, be error free, or operate without interruption, (ii) all warranty claims with respect to the Software must be made by the Buyer in writing not later than 90 days after shipment of the Software by Seller to Buyer, (iii) SELLER MAKES NO WARRANTIES WHATSOEVER REGARDING ANY SOFTWARE AND/OR COMPONENTS OF THE SOFTWARE CREATED OR OWNED BY ANY THIRD PARTY, (iv) THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES EXPESSED, IMPLIED OR STATUTORY RELATING TO THE SOFTWARE, INCLUIDNG BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND WARANTIES OF MERCHANTABILITY, and (v) any unauthorized use or modification of the Software by Buyer shall void any and all warranties. Seller shall use reasonable efforts to remedy any programming error in the Software attributable to Seller which prevents the Software from substantially conforming to specifications. Such remedy shall, at Seller’s discretion, consist of providing corrected portion(s) of Software, communication to Buyer of a workaround, and/or another remedy which enables Buyer to achieve substantially the same functionality as could be obtained without the error. Seller’s obligations under this Section shall arise upon its receipt of written notice of a programming error, containing sufficient information, on computer-readable media if practicable, for Seller to reproduce the error. If Seller determines that a particular problem is not caused by Seller Software errors, or that the problem arises from Buyer modification of the Software, Seller may, at its sole discretion, refer Buyer to Seller’s professional services support group, whose services are available for an additional fee. No other right or license relating to the Software, express or implied, is granted except as provided above. Buyer shall not sell, assign, sublicense, transfer, or otherwise make available the Software to any other person or entity, without the prior written consent of Seller. Subject to Section 10, all copies of Software shall be clearly marked by Buyer with the same proprietary and copyright restrictions which appear on the Software as originally supplied to Buyer.
(a) General. Each party shall defend, indemnify and hold harmless the other party, its respective officers, directors, agents, subsidiaries, affiliates, subcontractors, assignees and employees (collectively “Indemnified Parties”), against all losses, damages, liabilities, expenses, costs (including court costs and attorneys’ fees), claims, suits, demands, actions, causes of actions, proceedings, judgments, assessments, deficiencies and charges (“Damages”) caused by, relating to or arising from: (i) a default in the performance by such party of its obligations ; (ii) a breach of its warranties or representations; (iii) its negligent acts or omissions; and (iv) its intentional misconduct. Buyer shall also indemnify Seller and the Indemnified Parties against any such Damages caused by, relating to or arising from: (i) the services offered by Buyer or Buyer’s customers, including any assertion that any such services involve tortious conduct or the infringement of any third-party rights; (ii) any disputes between Buyer and any of its distributors or affiliates; and (iii) any disputes or claims involving the end-users for the services of Buyer; provided, however, that such Damages are not caused by any act or omission of Seller which would give rise to an obligation by Seller to indemnify Buyer under this Section 15. This subsection 15(a) shall survive termination or expiration of this Order.
(b) Intellectual Property Indemnity. Subject to Section 15(c), Seller will defend any suit or proceeding brought against Buyer to the extent that such suit or proceeding is based on a claim that goods manufactured and sold by Seller to Buyer constitute direct infringement of any valid patent and Seller shall pay all Damages awarded by final judgment (from which no appeal may be taken) against Buyer holding that such goods do so infringe, on condition that Seller (i) is promptly informed and furnished a copy of each communication, notice or other action relating to the alleged infringement, (ii) is given authority, information and assistance necessary to defend or settle such suit or proceeding in such a manner as Seller shall determine and (iii) is given sole control of the defense (including the right to select counsel), and the sole right to compromise and settle such suit or proceeding. If any goods manufactured by Seller and supplied to Buyer are held to directly infringe any valid patent as set forth above, and Buyer is enjoined from using the same, or if Seller believes such infringement is likely, Seller will exert reasonable efforts, at its option and its expense, (a) to procure for Buyer the right to use such goods free of any such liability for patent infringement, or (b) to replace or modify such goods with a non-infringing substitute otherwise complying substantially with the specifications for such goods, or (c) upon return of the goods, refund the transportation costs and the purchase price, less any applicable depreciation or credit for use, of such goods. If the infringement is alleged prior to completion of delivery of the goods, Seller has the right to decline to make further shipments without being in breach of contract. If Seller has not been enjoined from selling such goods to Buyer, Seller may (at Seller’s sole election), at Buyer’s request, supply such goods to Buyer in which event Buyer shall be deemed to extend to Seller an indemnity of comparable scope to that above. A comparable indemnity as that set forth above shall also be deemed to be extended to Seller by Buyer if any suit or proceeding is brought against Seller based on a claim that the goods manufactured by Seller in compliance with Buyer’s specifications infringe any valid patent.
(c) Limitation of Proprietary Rights Indemnification. In no event shall Seller be liable for any: (i) infringement by goods or associated Software manufactured and/or supplied by third parties; (ii) infringement arising from a combination with, addition to, or modification of the goods or associated Software after delivery by Seller; (iii) infringement arising out of compliance with Buyer’s specifications, (iv) any royalties payable , other than a reasonable royalty based upon revenue derived by Seller from Buyer from sales or license of the infringing goods or associated Software; or (v) royalties payable, or intellectual property claims related to compliance with or implementation of standards issued by other public or private standards bodies.
THE TERMS AND CONDITIONS OF THIS ORDER CONTAIN THE SOLE AND EXCLUSIVE LIABILITY OF SELLER FOR INFRINGEMENT OR THE LIKE OF PATENTS, TRADEMARKS, COPYRIGHTS, TRADE SECRETS AND OTHER INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THIS ORDER, WHETHER DIRECT OR CONTRIBUTORY, AND IS IN LIEU OF ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTY AGAINST INFRINGEMENT SPECIFIED IN THE UNIFORM COMMERCIAL CODE.
16. TERMINATION. Except as permitted in Section 2, this Order shall not be terminated by Buyer without Seller’s prior written consent. If Seller consents to termination, Buyer shall be liable for termination charges including without limitation, a price adjustment based on the quantity of goods and/or services actually delivered, all costs incurred and committed for this Order, together with reasonable allowance for prorated expenses and anticipated profits. Seller has the right to terminate this Order if (i) Buyer does not take delivery of all quantities of goods or services within 12 months after the date Seller receives Buyer’s order, or (ii) in Seller’s sole judgment, Buyer’s financial condition does not justify the terms of payment applicable, and Buyer shall not immediately comply with any modification of payment terms required by Seller in accordance with Section 3, or (iii) Buyer fails to pay for the goods and services when payment is due or make arrangements to so do which are acceptable to Seller; or (iv) Buyer defaults in any agreement with Seller or with any third party providing financing to Buyer, or (v) Buyer engages in a course of conduct which, in the sole judgment of Seller, substantially and adversely affects Seller's reputation or its interests in the promotion, marketing, or distribution of its products, or (vi) for other just cause. Upon termination of this Order, all sums, including interest, owing by Buyer to Seller shall immediately become due and payable without notice, and Seller shall have all of the rights and remedies of a seller under applicable law, and as may be provided in this Order. If Seller exercises such right to terminate, Buyer shall be liable for the charges and adjustments referred to herein, in addition to any other remedies Seller may have at law.
17. REMEDIES and LIABILITY.
(a) Nonconforming Goods/Warranty Returns. Where Buyer timely and rightfully rejects or revokes acceptance of nonconforming goods and/or notifies Seller of a breach of warranty relating to goods supplied by Seller, Seller’s sole and exclusive liability will be (at Seller’s option) to repair or replace the goods, or credit Buyer’s account (which credit may be applied by Seller against outstanding amounts owed by Buyer to Seller) with respect to any such goods returned to Seller during the applicable acceptance or warranty period, upon the following conditions: (a) Goods may not be returned without a return authorization (“RA”) and will be refused and returned freight collect to the sender; (b) Goods returned shall be packed securely and shall be shipped freight prepaid (with all insurance, duties, taxes, brokerage fees and all other charges associated with the transportation of such goods (collectively with freight, “Transportation Charges”) being the responsibility of Buyer), together with a statement setting forth the claimed defect; (c) All returns under this section shall be shipped in accordance with all other instructions (if any) contained in the RA; and (d) All return shipments will clearly indicate the RA number on the mailing label. All goods returned under this section shall be subject to examination by Seller. The failure of Buyer to comply with the provisions of this Section 17(a) shall, at Seller’s election, void Buyer’s rights and remedies with respect to any such goods, and such goods may be returned by Seller to Buyer for full payment in accordance with the provisions of this Order. In such an event, all Transportation Charges back to Buyer, including risk of loss, shall be the responsibility of Buyer. If Seller elects to keep any goods returned to Seller by Buyer which are determined by Seller to be free of defect or otherwise conforming to the warranties hereunder, such goods shall be subject to a restocking fee. Seller reserves the right to withhold Buyer’s remedy with respect to nonconforming goods until Buyer has fully paid any past due amounts owed to Seller.
(b) Services. Where Buyer timely and rightfully notifies Seller that services provided breach Seller’s warranty for such services as described in Section 10, Seller’s sole and exclusive liability for such breach will be (at Seller’s option) to re-perform such services or to refund Buyer’s fees paid for such services.
(c) Limitation of Liability. NOTWITHSTANDING ANYTHING CONTAINED IN THIS ORDER, WHERE SELLER FAILS TO MAKE DELIVERY OR REPUDIATES OR BREACHES ANY PROVISION OF THIS ORDER, INCLUDING, WITHOUT LIMITATION, SELLER’S OBLIGATIONS WITH RESPECT TO NONCONFORMING GOODS, SOFTWARE OR SERVICES, SELLER’S LIABILITY SHALL NOT EXCEED THE TOTAL OF ALL AMOUNTS ACTUALLY RECEIVED BY SELLER FROM BUYER UNDER THIS ORDER. IN NO EVENT WILL SELLER BE LIABLE TO ANYONE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES FOR BREACH OF ANY OF THE PROVISIONS OF THIS ORDER, INCLUDING, BUT NOT LIMITED TO, PROVISIONS REGARDING WARRANTIES, INDEMNITIES AND PATENT INFRINGEMENT, SUCH EXCLUDED DAMAGES TO INCLUDE WITHOUT LIMITATION, COSTS OF REMOVAL AND REINSTALLATION, LOSS OF GOODWILL, LOSS OF PROFITS, OR LOSS OF USE.
18. OUT-OF-WARRANTY REPAIRS. All requests for out-of-warranty repairs shall be permitted at Seller’s sole discretion. Goods returned for out-of-warranty repair shall be subject to the following conditions: (a) Goods may not be returned without an RA and will be refused and returned freight collect to the sender; (b) Goods returned for out-of-warranty repairs shall be packed securely and shall be shipped freight prepaid (with all Transportation Charges and risk of loss being the responsibility of Buyer), together with a statement setting forth the claimed defect; (c) All returns under this section shall be shipped in accordance with all other instructions (if any) contained in the RA; (d) All return shipments will clearly indicate the RA number on the mailing label; and (e) Buyer shall be responsible for all Transportation Charges and risk of loss associated with the return of any repaired goods back to Buyer.
19. CREDIT RETURNS. All requests for credit returns shall be permitted at Seller’s sole discretion. Goods returned for credit shall be subject to the following conditions: (a) Goods may not be returned without a return authorization (“RA”) and will be refused and returned freight collect to the sender; (b) Goods returned for credit shall be packed securely and shall be shipped freight prepaid (with all Transportation Charges and risk of loss being the responsibility of Buyer), together with a statement setting forth the reason for the return for credit; (c) All returns under this section shall be shipped in accordance with all other instructions (if any) contained in the RA; (d) All return shipments will clearly indicate the RA number on the mailing label; (e) Seller may require Buyer to reimburse Seller for all Transportation Charges in connection with initially shipping such goods to Buyer; (f) Seller may elect to charge Buyer a restocking fee; and (g) Made to Order or non factory inventoried goods may not be returned, except as provided in Section 17(a).
20. WAIVER. In the event of any default or breach by Buyer, Seller has the right to refuse to make further shipments of goods or to perform additional services. Seller’s failure to enforce at any time or for any period of time any of the provisions of this Order shall not constitute a waiver of such provisions or of the right of Seller to enforce each and every provision.
21. GOVERNING LAW. The validity, construction, and performance of this Order and the transactions to which it relates shall be governed by the laws of the State of Texas, without regard to conflict of laws principles and excluding the provisions of the United Nations Convention on Contracts for the International Sale of Goods. All actions, claims, or legal proceedings in any way pertaining to this Order or such transactions shall be commenced and maintained in the state or federal courts sitting in the State of Texas and in no other court or tribunal, and Buyer agrees to submit itself to the exclusive jurisdiction of such courts. Nothing herein shall be construed as limiting Seller's right to maintain an action or to enforce any judgment in any jurisdiction in which Buyer or any assets of Buyer may be located.
22. ASSIGNMENT. Except as otherwise permitted, this Order is binding upon and inures to the benefit of the parties and the successors and assigns of the entire business and goodwill of either Seller or Buyer, or to the successors and assigns of that part of the business of either used in the performance of this Order, but will not otherwise be assignable except that the Seller has the right to assign this Order to an affiliate. Nothing in this Order shall inure to the benefit of or be deemed to give rise to any rights in any third party, whether by operation of law or otherwise.
23. SEVERABILITY. Should any of the terms and conditions of this Order be declared invalid by a court, agency, commission or other tribunal or entity having jurisdiction, such declaration shall have no effect on the remaining terms, which shall continue in full force and effect.
24. SET-OFF. Buyer may not set-off any amount owing from Seller to Buyer against any amount payable by Buyer to Seller under this Order, whether or not related to this Order.
25. NOTICE. Any notice required or permitted to be given under this Order shall be in writing and either delivered personally or sent by facsimile, or mail addressed to the parties at their respective business addresses, and shall be effective upon receipt. For the purpose of receiving notices under this Order, either party may change its address or its facsimile number by giving the other party 15 days' prior written notice of its new address or facsimile number.
26. EXPORT COMPLIANCE. Buyer understands and agrees that any products or technical information sold or otherwise provided hereunder may be subject to export and other foreign trade controls restricting the sale, re-export, and/or transfer of such products or technical data to certain countries, uses or parties, including but not limited to, licensing requirements under applicable laws and regulations of the United States and other jurisdictions. The countries that may require a license include, but are not limited to those countries identified by the U.S. Department of Treasury, Office of Foreign Asset Control (“OFAC”). As of the date of this agreement, OFAC sanctioned and embargoed countries and related regulations are listed at: http://www.treas.gov/offices/enforcement/ofac/programs/index.shtml. The parties and uses that may require an export license or other approval include, without limitation (i) any person, entity, organization, or other party identified on the U.S. Department of Commerce's Denied Persons or Entity List, the U.S. Department of Treasury's Specially Designated Nationals or Blocked Persons List, or the Department of State's Debarred Parties List, as published and revised from time to time, and (ii) an end-use involving nuclear applications, chemical/biological weapons or missile, rocket systems or unmanned air vehicle applications. Notwithstanding any other provision herein to the contrary, Buyer agrees that it will not sell, re-export, or transfer any products or technical information supplied by Seller except in full compliance with all applicable governmental requirements, including but not limited to applicable economic sanctions and constraints administered by the U.S. Treasury Department and applicable export control measures administered by the U.S. Department of Commerce and U.S. Department of State, or any other government agencies. Seller reserves the right to refuse to enter into or perform any order, and to cancel any order, if Seller, in its sole discretion, determines that the entry into such order or the performance of the transaction to which such order relates would violate any applicable law or regulation of the United States, or any other legal entity. Buyer agrees that any such refusal or cancellation of any order by Seller, as described above, will not constitute a breach of any of Seller’s obligations, and Buyer hereby waives any and all claims against Seller for any loss, cost, or expense, including without limitation incidental or consequential damages that Buyer may incur by virtue of such refusal or cancellation of any order. Buyer agrees to indemnify, defend and hold Seller harmless from any and all costs (including attorneys’ fees) expenses, judgments, penalties, or other liabilities due to Buyer’s failure to comply with this Section 26. Buyer shall also be responsible for ensuring compliance with all government requirements required for imported products, shall act as importer of record, and shall be responsible for all duties, taxes, fees and other charges or assessments. Unless otherwise agreed in writing, Seller shall not be obligated to provide Buyer with any documentation to substantiate that any of the products sold to Buyer qualify for any preferential duty treatment.
27. LANGUAGE. This Order is in the English language. Any translated version of it is purely for the convenience of the parties and the English version is controlling.
28. COMPLIANCE PROVISIONS. The parties shall comply with all laws and regulations including, but not limited to the United States Foreign Corrupt Practices Act, laws under the OECD Anti-Bribery Convention and local anti-corruption laws. Seller and Buyer intend that no payments or transfers of value shall be made which have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion or kickbacks, or other unlawful or improper means of obtaining business. Buyer will not request Seller to take any action which is prohibited or penalized under any U.S. anti-boycott law or regulation, and any such apparent request will be deemed null and void. No part of the payment of any amounts payable under this Order will be distributed to Seller, its affiliates or customers, or any of its employees or their family members.
29. MERGER. This Order (including any applicable software license terms and conditions referred to in Section 14) constitutes the final written expression of all terms of the agreement relating to the transactions described and a complete and exclusive statement of those terms. This Order supersedes all previous and contemporaneous communications, representations, promises or statements, either oral or written, with respect to such transactions (including, without limitations, any terms proposed by Buyer) and such communications, representations, promises or statements, of any kind, made by any representative of Buyer or Seller, which are not stated, shall not be binding on Seller. Acceptance by Buyer is limited to these terms. No addition or modification of any printed provision of this Order will be binding upon Seller (and Seller hereby objects to and rejects the same) unless made in writing (referring specifically to this Order) and signed by an authorized officer of Seller. Neither commencement of performance nor delivery shall be construed as an acceptance by Seller of Buyer's additional or different terms. No course of dealing or usage of trade or course of performance will be deemed relevant to explain or supplement any term expressed in this Order.
© 2011, 2013 nVent (L1001) 05/16