Transfer of Risk and Property
The risk of the goods shall pass to Buyer on delivery (See Delivery and Shipping). The risk of loss or damage to the goods Standard terms and conditions of Sale 2011_09_05 Cardlab Confidential Page 2 after delivery shall fall upon Buyer, whose responsibility it shall be to file claims with the carrier. Goods for which delivery is suspended pending payment by Buyer, as well as goods of which delivery is wrongfully rejected or not accepted by Buyer shall be held and stored by Seller at the risk and expense of Buyer.
Buyer may cancel this order only upon providing forty-five (45) days written notice and upon payment to Seller of cancellation charges which shall include, among other things, all expenses incurred, directly and indirectly, commitments already made by the Seller, and Seller profits for the goods ordered.
Examination of Goods and Complaints
On delivery, the Buyer shall examine the goods and satisfy itself that the goods delivered meet all contractual requirements. The Buyer must examine the goods in accordance with the predetermined acceptance criteria (the Outgoing Control Plan). Complaints about the goods shall be made in writing and must reach Seller not later than 10 (ten) days from the date of delivery in respect of any defect, default or shortage which would be clear from the above examination.
Limitation of Warranty
Authorization for return of Products claimed to be defective must be obtained from Seller prior to shipment and all transportation charges must be prepaid by Buyer. Returned Products will be subject to inspection and testing by Seller. For defects determined by Seller to be covered by this limited warranty, Seller shall at its sole option repair, replace or credit Buyer for such defective goods. Upon repair or replacement of the Products, a new 10 day inspection period shall apply commencing on the date such Product is delivered to the Buyer. The liability of Seller under this limited warranty is limited to the purchase price of the Product and transportation charges authorized by Seller for return of the Product. The foregoing warranty constitutes Seller’s sole and exclusive liability, and Buyer’s sole and exclusive remedy, for any breach of any warranty or other nonconformity of the goods covered by these Terms and Conditions. The limited warranty set forth above shall not apply:
a) where the Product has been used or tested in a manner not authorized by Seller or in a way in which it was not designed or intended to be used;
b) where the Product has undergone modification other than by Seller;
c) to damage or malfunction caused by negligence, abuse, or misapplication of the Product;
d) to damage or malfunction caused by the acts of any party other than Seller;
e) where the alleged defect cannot be demonstrated to the reasonable satisfaction of Seller
The foregoing limited warranty is in lieu of all other representations and warranties. Seller expressly disclaims all other representations and warranties, express or implied, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, and title/non-infringement, whether arising by statute, law, course of dealing, custom and practice, or trade usage.
Limitation of Liability
Seller’s liability with respect to the products sold hereunder shall
be limited to the limited warranty provided in these Terms and
Seller shall not be subject to any other obligations or liabilities,
whether arising out of breach of contract, warranty, tort
(including negligence and strict liability) with respect to Products
sold or services rendered by Seller, or any undertakings, acts or
omissions relating thereto.
Without limiting the generality of the foregoing, Seller
specifically disclaims any liability for property or personal injury damages, penalties, damages for lost profits or revenues, loss
of use of products or any associated equipment or software,
cost of capital, cost of substitute products, facilities or services,
down-time, shut-down or slow-down costs, or for any other
types of economic loss, or for claims of Buyer’s customers or
any third party for any such damages, even if Seller has been
advised of the possibility of such damages and regardless of
whether such damages are foreseeable.
Seller shall not be liable for and expressly disclaims all consequential, incidental, indirect, and contingent damages whatsoever, including, but not limited to, lost profits or revenues, loss of reputation or goodwill, damages arising from the inability to use a product, incompatibility with any other product, or breach of the limited warranty contained herein. In no event shall Seller’s aggregate liability under any circumstances (whether based in contract, warranty, tort (including negligence and strict liability or otherwise) arising out of or related to this contract, or the termination or breach thereof, exceed the greater of the purchase price for the goods and five thousand Euro (€ 5,000.00). This paragraph shall be enforceable to the maximum extent permitted by applicable law. The limitations of liability provided in this section shall apply even if any and all remedies fail of their essential purpose.
Limitation of Action
No action by Buyer shall be brought against Seller unless Buyer first provides written notice to Seller of any claim alleged to exist against Seller within thirty (30) days after the event complained of first becomes known to Buyer and an action is commenced by Buyer within twelve (12) months after such notice. Proprietary Rights The Products and materials of Seller constitute the proprietary materials and intellectual property of Seller. Buyer covenants and agrees that it will not take or allow others to take any of the following actions:
a) copy or manufacture the Products, technology, or
confidential information of Seller;
b) modify, alter, adapt, or make derivative works of the Products or technology of Seller;
c) reverse engineer, break down, or disassemble any part of the Products or technology of Seller or attempt any such disassembly or reverse engineering; or
d) take apart or break the seal on any Products, samples, cells, or other materials furnished by Seller hereunder.
Buyer and Third Party
Buyer shall indemnify and hold harmless Seller from and against
any and all losses, liabilities, damages and expenses (including,
without limitation, attorneys’ fees and other costs of defending
any action) that Seller may incur or sustain as a result of any
third-party claim relating to the products or services offered,
licensed or sold by Buyer or Buyer’s customers.
Buyer may not resell Product under any circumstances without
the express written permission from Seller.