Brochure

Rev. July 2009
which become the Buyer’s property, may be considered obsolete and may be
destroyed by the Seller after two (2) consecutive years have elapsed without the
Buyer placing an order for the items which are manufactured using such property.
The Seller shall not be responsible for any loss or damage to such property while it
is in the Seller’s possession or control.
13. Taxes. Unless otherwise indicated, all prices and charges are exclusive of
excise, sales, use, property, occupational or like taxes which may be imposed
by any taxing authority upon the manufacture, sale or delivery of the items sold
hereunder. If any such taxes must be paid by the Seller, or if the Seller is liable for
the collection of such tax, the amount thereof shall be in addition to the amounts
for the item sold. The Buyer agrees to pay all such taxes or to reimburse the Seller
therefore upon receipt of its invoice. If the Buyer claims exemption from any
sales, use or other tax imposed by any taxing authority, the Buyer shall promptly
indemnify and hold the Seller harmless from and against any such tax, as well as
any interest or penalties thereon which may be assessed if the items are held to
be taxable.
14. Warranty. (a) The Seller warrants that the items sold hereunder shall be free
from defects in material or workmanship at the time of shipment by the Seller. The
Seller warrants that if within 12 months of delivery of the goods to the Buyer the
Buyer returns immediately to the Seller’s premises any of the said goods which the
Buyer believes to be defective, carrier paid, properly packed and clearly marked
with the Buyer’s full name and address and any other information such as serial
numbers which may be necessary to enable the goods to be identified, together
with a complete description of the respects in which it is alleged that the goods are
defective, they will be repaired or new goods will be supplied in exchange and the
goods so repaired or such new goods will be delivered to the Buyer free of charge at
the Seller’s premises provided that the foregoing warranty shall only be applicable
if upon demand by the Seller, the Buyer proves to the Seller’s satisfaction: (i)
that the defect was due solely to defective workmanship; (ii) that no alterations
or repairs have been made to the goods except with the Seller’s written consent;
(iii) that the defect was not caused by any act of the Buyer or its agents; and (iv)
that the defect was not caused by any matter beyond the reasonable control of the
Seller, including, without limitation, accident or normal wear and tear. The benefit
of this warranty shall not be assignable by the Buyer. (b) The warranty contained
in sub-paragraph (a) above does not extend to any goods not manufactured by the
Seller even though supplied by the Seller nor does it extend to any second-hand or
reconditioned goods nor does it extend to components manufactured by the Seller
but installed, attached or welded by the Buyer or his customer on equipment not
manufactured by the Seller. Goods not manufactured by the Seller carry only the
warranty (if any) of their makers and the Buyer is entitled to the benefit thereof only
so far as the Seller has the power to transfer it. (c) This warranty comprises the
sole and entire warranty pertaining to items provided hereunder; the Seller makes
no other warranty, guarantee, or representation of any kind whatsoever. All other
warranties, including but not limited to, merchantability and fitness for purpose,
whether expressed or implied, or arising by operation of law, trade usage, or course
of dealing are hereby disclaimed. (d) Notwithstanding the foregoing, there are no
warranties whatsoever on items built or acquired wholly or partially to the Buyer’s
designs or specifications.
15. Limited Remedy. The Seller’s liability arising from or in any way connected
with the items sold or this Agreement shall be limited exclusively to repair or
replacement of the items sold. In no event shall the Seller be liable to the Buyer
or any 3rd party for any incidental, consequential or special damages of any kind
or nature whatsoever, including but not limited to lost profits arising from or in
any way connected with this agreement or items sold hereunder, whether alleged
to arise from breach of contract, express or implied warranty, or in tort, including
without limitation, negligence, failure to warn or strict liability.
16. Indemnity for Infringement of Intellectual Property Rights. (a) The Buyer shall
defend and indemnify the Seller against all actions, claims, demands, penalties
and costs by 3rd parties in tort, or for infringement, or alleged infringement, of
patents, trademarks, copyrights, trade dress, trade secret or other rights of any
3rd party resulting from the goods manufactured in accordance with the Buyer’s
specifications or based on any information provided by the Buyer. The Buyer
will defend any action against the Seller for title, patent, trademark, copyright
infringement, or other claimed by a 3rd party at the Buyer’s sole cost and expense.
(b) The Seller shall have no liability for infringement of any patents, trademarks,
copyrights, trade dress, trade secrets or similar rights except as provided in this
provision. The Seller will defend and indemnify the Buyer against allegations of
infringement of US patents, US trademarks, copyrights, trade dress and trade
secrets (“Intellectual Property Rights”). The Seller will defend at its expense and will
pay the cost of any settlement or damages awarded in an action brought against the
Buyer based on an allegation that an item sold pursuant to this contract infringes
the Intellectual Property Rights of a 3rd party. The Seller’s obligation to defend
and indemnify the Buyer is contingent on the Buyer notifying the Seller within 10
days after sole control over the defense of any allegations or actions, including all
negotiations for settlement or compromise. If an item sold hereunder is subject to a
claim that it infringes the Intellectual Property Rights of a 3rd party, the Seller may,
at its sole expense and option, procure for the Buyer the right to continue using
said item, replace or modify said item so as to make it non-infringing, or offer to
accept return of said item and return the purchase price less a reasonable allowance
for depreciation. Notwithstanding the foregoing, the Seller shall have no liability for
claims of infringement based on information provided by Buyer, or directed to items
delivered hereunder for which the designs are specified in combination or use in a
system of any item sold hereunder. The foregoing in this provision shall constitute
the Seller’s sole and exclusive liability and the Buyer’s sole and exclusive remedy
for infringement of Intellectual Property Rights.
17. Lien. In addition to any right of lien to which the Seller may by law be
entitled, the Seller shall have a general lien on all goods of the Buyer in the Seller’s
possession (although such goods or some of them may have been paid for) for the
unpaid price of any other goods sold and delivered to the Buyer by the Seller under
the same or other contracts.
18. Waiver. The Seller’s rights shall not be affected or restricted by any indulgence
or forbearance granted to the Buyer. No waiver by the Seller of any breach shall
operate as a waiver of any later breach.
19. Force Majeure. The Seller shall be excused from performing any of its
obligations under this Agreement which are prevented or delayed by any
occurrence not within the reasonable control of the Seller, including but not limited
to, accidents, acts of God, destruction or damage to the goods or the Seller’s
manufacturing plant, delays or failures in delivery of carriers or suppliers, shortages
of materials, strikes or other labor matters, floods, earthquakes, fire, riots,
explosions, or any regulations, rules, ordinances or orders of any governmental
authority, federal, state or local, whether such cause exists at the date of the order
or not.
20. Buyer’s Representation of Solvency. The Buyer hereby represents that as
of the signing of this Agreement it was not insolvent within the meaning of the
Uniform Commercial Code or the Bankruptcy Laws of the United States.
21. Assignment and Delegation. The rights and obligations of the parties under
this Agreement may not be assigned or delegated, except on the express written
consent of the other party to the assignment or delegation.
22. Integration. The rights and obligations of the parties and the terms and
conditions set forth herein, together with any amendments, modifications and any
different terms and conditions expressly accepted by the Seller in writing, shall
constitute a complete and exclusive statement of the terms of this Agreement. This
Agreement supersedes not only all prior agreements, but also oral agreements
made contemporaneously with the execution of this Agreement. All such materials
may not be used to supplement, explain, or contradict the terms of this Agreement.
23. Severability. If any of these conditions or any part thereof purports to exclude
or restrict or limit any liability and such exclusion or restriction or limitation is
prohibited or rendered void or unenforceable by any legislation to which it is
subject, or is itself prohibited or rendered void or unenforceable by any legislation
to which it is subject, then the exclusion restriction or limitation on the condition
or part thereof in question shall be so prohibited or rendered void or unenforceable
and the validity or enforceability of any other part of these provisions shall not
thereby be affected.
24. Governing Law/Limitation on Actions. The terms, conditions, rights, and
obligations under this Agreement shall be construed under the laws of the State of
New York, without regard to principles of conflicts of laws. No actions arising out
of the sale of the items sold hereunder or this Agreement may be brought by the
Buyer more than two (2) years after such cause of action accrues.
John Guest USA, Inc. Terms & Conditions of Sale
37