Terms & Conditions
SELLER STANDARD TERMS & CONDITIONS
The sale by Norres North America, Inc. (“Seller”) of the goods set forth on the face hereof (the “Product”) is subject to the terms set forth below (the “Contract”). These terms and conditions shall not be superseded by any other terms or conditions in the purchase order of the purchaser of the goods or services set forth on the face hereof (“Buyer”). This Contract merges and supersedes all prior negotiations or agreements of the parties, either written or oral, made either prior to or contemporaneous with this Contract. This Contract cannot be modified or amended except by a subsequent written instrument executed by the parties which expressly supersedes the provisions of this Contract. This Contract, together with its attachments, constitutes the complete, exclusive and final agreement between Buyer and Seller. Any additional or different terms provided by Buyer in subsequent purchase orders or other documents shall not be binding. The rights and obligations under Sections 6 through 22 will survive the cancellation, termination or expiration of this Contract.
Buyer shall give Seller reasonable prior notice of the desired timing of deliveries and shall take deliveries in approximately equal monthly shipments. All delivery dates provided by Seller are approximate, and Seller shall not be responsible for any delay due to a cause beyond its control. Seller is only obligated to sell in any one month 1/10 of its maximum annual supply obligation under this Contract. On 30 days’ notice to Buyer, Seller may limit its maximum monthly supply obligation to the average of Buyer’s monthly purchases for the three-month period before the notice or 1/12 of Seller’s annual supply obligation, whichever is less, unless seasonal requirements are noted in the Contract. Seller shall not be obligated to deliver in any subsequent month any quantity of the Product not shipped as a result of any such limitation. All quantities are subject to Seller’s reasonable production capabilities. Production constraints may result in excess production of up to 10% of Seller’s annual supply obligation, which Buyer shall be required to accept. Seller shall be entitled to make partial deliveries.
Seller may, by giving thirty (30) days’ prior written notice thereof to Buyer at any time during the Contract period, change the price of the Product and terms of delivery and shipment. Such changes shall be applicable to any Product shipped hereunder on and after the date the changes become effective, notwithstanding the fact that Buyer may have requested delivery of such Product pursuant to Section 2 above prior to Seller’s notice to Buyer of such changes. This provision shall not apply to fixed price contracts. All prices are exclusive of any applicable taxes, delivery fees, and alloy surcharges (e.g., for products made from copper, brass, stainless steel, etc.). Any applicable alloy surcharges shall be invoiced in accordance with Seller’s current price list. Buyer shall be responsible for any local, state and/or federal taxes applicable to the sale or use of the Product.
Unless otherwise agreed to in writing by both parties, Buyer shall pay Seller’s invoices within thirty (30) days of the invoice date in full and without set-off. Seller shall grant Buyer a discount equal to 2% of the invoiced amount on invoices paid within ten (10) days of the invoice date. Payment is complete when Buyer places the amount at the Seller’s disposal, except that payment by check is complete when the check is honored. Seller shall apply all amounts paid first to any interest owed, then to amounts due for Products. In the event Buyer does not pay any invoiced amount within thirty (30) days of the invoice date, Seller shall be entitled to charge interest at the highest rate permitted by applicable law.
5. Retention of Title
Seller shall have the right to retain title to any Products (“Retained Goods”) until Buyer settles all claims with Seller, including all balances due under this Contract. Seller may waive the provisions of this Section 5 in its sole discretion. Seller shall be entitled to process and sell the Retained Good in the normal course of business, provided it is not in default under this Contract. Buyer hereby assigns to Seller all receivables arising from the Retained Goods, either as a result of resale or any other event. Seller authorizes Buyer to collect such receivables for Seller’s account. Seller may revoke such authorization if Buyer does not fulfill its payment obligations. In the event Seller combines a Retained Good with another object, Seller shall transfer the proportional value of the Retained Good to Seller. Buyer shall not have the right to grant attachments or security interests in the Retained Goods. In the event a third party interferes with the Retained Goods, Buyer shall inform such third party of Seller’s interest in the Retained Goods and notify Seller immediately. In the event Buyer breaches the contract or defaults on its payment obligations, Seller shall be entitled to repossess the Retained Goods or, if the Retained Good have been sold to a third party, to demand assignment of the Buyer’s restitution claims against third parties. Such repossession of the goods shall not constitute Seller’s withdrawal from the Contract.
6. Competitive Offer
If Buyer is offered Product of equal quality under a contract containing terms and conditions of sales equal to those hereof and in a quantity at least equal to the quantity of Product undelivered hereunder from a producer in the United States at a price resulting in a 50% lower delivered cost to Buyer, then, upon written evidence of the same satisfactory to Seller, Seller shall, within fifteen (15) days, either indicate to Buyer its willingness to meet such price or to permit Buyer to purchase such quantity of product elsewhere at such lower price, in which event quantities so purchased elsewhere will be deducted from quantities to be purchased hereunder.
Seller may, at its option, deliver from points other than that specified (but shall not be obligated to do so) provided that such delivery shall not result in a higher delivered cost to Buyer. Where the Contract price provides for absorption by Seller of freight charges, wholly or in part, Seller shall have the right to select the means of transportation. If Buyer requires a means of transportation other than that selected by Seller, any extra cost incurred by reason of using such other means shall be paid by Buyer. If freight or other transportation costs are increased, Seller may add any such increase to the Contract price without prior notice thereof to Buyer. The weights, tares and tests fixed by Seller’s invoice shall govern unless proven to be incorrect. Buyer shall be responsible for asserting claims for losses or damages in transit directly against the carrier.
8. Notice of Claims
All claims must be received by Seller in writing within thirty (30) days after Buyer’s receipt of the Product. With respect to any defects incapable of discovery by Buyer (with the exercise of reasonable diligence) until in use or in processing in the manufacture of other products, all claims must be received by Seller in writing within fifteen (15) days after Buyer learns (or, with the exercise of reasonable diligence, could have learned) of the alleged defect. All claims must be received by Seller at the address specified on the front of this Contract. All claims not made in writing as specified above and received by Seller within the time periods specified above shall be deemed waived. Upon receipt of Buyer’s notification, Seller shall have the option of making inspection, analyses and tests of the Product at Buyer’s premises or of requiring Buyer to send the Product or adequate samples thereof, at Buyer’s expense, to Seller or to a person designated by Seller for inspection, analyses and tests. No Product or sample shall be returned to Seller without prior written authorization from Seller. No inspection or any other actions by third parties are authorized or will be paid for by Seller, without Seller’s prior consent in writing.
9. Warranties; Limitation of Liability; Remedies; Damages
Seller warrants to Buyer that (a) the Product is of the quality set forth in Seller’s published specifications, if any, or, as may be otherwise stated in writing in this Contract, and (b) the title conveyed is good and the Product is free from any security interest, lien or encumbrance (other than in favor of Seller for the unpaid balance of all amounts due Seller from Buyer with respect to the Product). Such warranties extend only to Buyer. EXCEPT AS EXPRESSLY SET FORTH IN THE FOREGOING SENTENCE, SELLER MAKES NO EXPRESS OR IMPLIED WARRANTY THAT THE PRODUCT SOLD HEREUDER IS NON-INFRINGING, IS OF MERCHANTABLE QUALITY, OR THAT THE PRODUCT SHALL BE FIT FOR ANY PARTICULAR PURPOSE. THERE ARE NO OTHER WARRANTIES EXPRESSED OR IMPLIED BY OPERATION OF LAW OR OTHERWISE.
IF THE PRODUCT DOES NOT CONFORM TO THE WARRANTIES SET FORTH IN THIS SECTION, OR IF BUYER MAKES ANY OTHER CLAIM OF ANY SORT WHATSOEVER, INCLUDING THE CLAIMS SET FORTH ABOVE, AGAINST SELLER, BUYER’S EXCLUSIVE REMEDY SHALL BE LIMITED TO REPLACEMENT OF THE PRODUCT, OR, AT SELLER’S OPTION, REPAYMENT OF THE PURCHASE PRICE PAID BY BUYER. Any Product supplied by Seller hereunder to replace Product shall be deemed supplied to Buyer subject to all of the terms and conditions of this Contract, including, without limitation, those concerning warranties, limitation of liability, remedies and damages, to the same extent as the Product. In the event Seller agrees to replace any Product or agrees to repay to Buyer the purchase price of any Product supplied by Seller to Buyer under this Contract pursuant to this portion of this Contract, Buyer agrees that it shall take reasonable steps, at Seller’s written request, to return to Seller (at Seller’s expense) the product for which replacement or repayment is sought.
SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ACCURACY OR ADEQUACY OF INFORMATION FURNISHED TO BUYER CONCERNING THE PHYSICAL CHARACTERISTICS AND INGREDIENTS OF, AND PROTECTIVE MEASURES TO BE TAKEN REGARDING THE PRODUCT. SELLER SHALL NOT BE LIABLE FOR ANY ERROR OR OMISSION IN THE PREPARATION OF SUCH INFORMATION. SELLER SHALL NOT BE LIABLE TO BUYER, BUYER’S EMPLOYEES OR ANYONE IN CONNECTION WITH THE ACCURACY, ADEQUACY OR FURNISHING OF SUCH INFORMATION.
SELLER SHALL NOT BE LIABLE TO BUYER OR ANYONE ELSE FOR ANY SPECIAL, INDIRECT, ECONOMIC, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THE PRODUCT, THIS CONTRACT OR ANY BREACH OF THIS CONTRACT INCLUDING, BUT NOT LIMITED TO, ANY LOSS OR DAMAGE RESULTING FROM THE USE OF THE PRODUCT IN BUYER’S MANUFACTURING PROCESSES OR IN COMBINATION WITH OTHER SUBSTANCES.
10. Limitation of Actions
Any action for Seller’s breach of this Contract (including breach of warranties) must be commenced by Buyer within one year after the cause of action accrues, and no such action may be maintained which is not commenced within such period.
11. Buyer’s Handling of Product
Buyer assumes all risks and liability, and Seller assumes no risk and no liability, with respect to unloading and discharge of the Product (including failure of discharge or unloading implements or material used by Buyer, whether or not supplied by Seller), storage, handling, sales and use of the product, and the compliance or noncompliance with all federal and local laws and regulations with respect thereto.
Buyer assumes all risk of patent infringement by reason of any use Buyer makes of the Product in combination with other material or in the operation of any process.
Buyer shall defend (including attorneys fees), indemnify and hold Seller harmless from and against all damages, causes of action, claims, liabilities, penalties, personal injuries (including death), environmental damages and tangible property damage caused by Buyer’s negligence, strict liability, breach of warranty, breach of this Contract, fault, omissions and willful or wanton conduct arising, without limitation, from the handling, transportation, modification, storage and use of the products provided hereunder.
Seller may recover for each shipment hereunder as a separate transaction, without reference to any other shipment. If Buyer fails to pay any invoice in accordance with the terms of this Contract or is past due in payment of any other amount owing to Seller, Seller may, at its option (and without liability and without prejudice to any other remedies) defer further shipments until all payments owing to Seller by Buyer have been made (in which event Seller may elect to extend the Contract period for a time equal to that for which shipments were so deferred), stop any Product in transit, and/or decline further performance of this Contract. If at any time in the judgment of Seller, the financial responsibility of Buyer is impaired, Seller may change the terms of payment and may require advance payment as a condition of shipment.
All payments under this Contract are exclusive of all applicable taxes and governmental charges (such as duties), all of which shall be paid by Buyer regardless of which party such taxes are imposed upon (with the exception of any taxes computed with regard to Seller’s income). In the event Buyer is required by law to withhold taxes, Buyer agrees to furnish Seller all required receipts and documentation substantiating such payment. If Seller is required by law to remit any tax or governmental charge on behalf of or for the account of Buyer, Buyer agrees to reimburse Seller within thirty (30) days after Seller notifies Buyer in writing of such remittance. Buyer agrees to provide Seller with valid tax exemption certificates in advance of any remittance otherwise required to be made by Seller on behalf of or for the account of Buyer, where such certificates are applicable.
16. Risk of Loss
All sales are ex works Seller’s facility, unless otherwise specified in the purchase order. Risk of loss of all Product sold hereunder shall pass to Buyer when the Product has been transferred to the person transporting the Product on Buyer’s behalf or leaves Seller’s warehouse for purposes of dispatch, whichever is applicable. If dispatch is not possible due to circumstances beyond Seller’s control, the risk shall pass to Buyer when Buyer is informed that the Product is ready for dispatch.
17. Force Majeure
Neither party shall be liable for its failure to perform hereunder if due to any event beyond the reasonable control of the party affected, including but not limited to acts of God, war, fire, bad weather, flood, accident, labor trouble or shortage, terrorism, civil disturbance, plant shutdown, equipment failure, voluntary or involuntary compliance with any applicable governmental regulation or order, or shortage or inability to obtain (on terms deemed reasonable by the party affected) any raw material (including energy), equipment or transportation, which materially impairs such party’s ability to so perform. Any quantities not delivered or accepted because of any such event shall be eliminated from the Contract without liability. Seller shall not be obligated to deliver the Product from other than the production or shipping points designated herein and shall not be obligated to rebuild or repair any damage or destruction to such production or shipping points in order to fulfill this Contract. Seller shall also not be obligated to obtain any raw materials or Product from sources other than its usual sources. In the event that Seller cannot deliver any Product because a supplier has failed to satisfy its supply obligations in a correct and timely manner, Seller shall be entitled to withdraw from the Contract, provided Seller notifies Buyer of such circumstances without unnecessary delay. During any period when Seller is unable to supply the Contract quantity of the Product, whether caused by the circumstances above or otherwise, Seller may allocate any available Product, among its customers, including its own subsidiaries, divisions and departments, on such basis as Seller deems fair and reasonable, and its failure, partial or otherwise, to make deliveries to Buyer shall not be a breach of this Contract.
18. Termination of Contract
Should Seller for any reason elect to suspend manufacture of any Product which is the subject of this Contract, or curtail production or sale of the Product in consequence of the application of any governmental regulation or order which will, in the reasonable judgment of Seller, render the production, marketing or transportation of the Product economically, technically or commercially impracticable, Seller may terminate this Contract upon thirty (30) days prior written notice to Buyer.
This Contract and the rights and obligations of Buyer hereunder shall not be assignable by Buyer, either by act of Buyer or by operation of law without the prior written consent of Seller, and shall not be deemed an asset of Buyer in, and at the option of Seller shall terminate in the event of, the commencement of any case or proceeding in respect of Buyer under any bankruptcy, insolvency or similar law or any assignment for the benefit of creditors. At the option of Seller, this Contract shall terminate in the event of the insolvency of Buyer. Any purported assignment of this Contract without the prior consent of Seller shall be void.
20. Governing Law and Forum Selection
This Contract is made under and shall be governed by, construed in conformance with, and all disputes shall be governed by the internal laws (exclusive of the conflicts of law principles) of the State of Indiana. The United Nations Convention on Contracts for the International Sale of Goods (CIGS) shall not apply. All disputes, claims demands, liabilities and causes of action related to this Contract shall be exclusively resolved by arbitration which shall be commenced by filing a Notice of Arbitration under the then current Commercial Rules of the CPR International Institute for Conflict Prevention and Resolution Rules for Non-Administered Arbitrations (“CPR Rules”). The entire dispute and all related disputes that the parties may have or possess shall be arbitrated in accordance with the CPR rules in effect, by a sole arbitrator. The arbitrator shall determine the rights and obligations of the parties according to applicable substantive laws and the express terms of this Contract. The arbitrator shall not be empowered to grant any damages in excess of those permitted or limited under the express terms of this Contract. The selection of the arbitrator shall be made by agreement of the parties. In the event the parties cannot agree upon the selection of an independent arbitrator, the arbitrator shall be appointed pursuant to CPR Rules. The party prevailing on substantially all of its claims in arbitration shall be entitled to recovers its costs, including reasonable attorney fees, on a full indemnity basis, for the arbitration proceeding, as well as any ancillary proceedings, to request interim measures, or to confirm or set aside an award. The arbitration shall be governed by the rules of CPR, and judgment upon the award rendered by the arbitrator may be entered by any court having competent jurisdiction. The place of the arbitrations shall be Chicago, Illinois. The parties may however, seek solely injunctive or equitable relief in a court of competent jurisdiction.
If any provision of this Contract shall be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render unenforceable the entire Contract. The entire Contract shall be construed as if not containing the particular invalid or unenforceable provision and the rights and obligations of each party shall be construed and enforced accordingly.
22. Buyer’s Breach of Contract
If Buyer fails to perform any of the terms of this Contract, Seller may at its option defer shipments until the default is remedied and/or treat such default as a breach of the entire Contract.
Seller’s waiver of any breach or failure to enforce any of the terms or conditions of this Contract at any time shall not in any way affect, limit or waive its right thereafter to enforce strict compliance with every term and condition hereof.
24. OFAC Listes
None of Buyer or any of its officers, directors or employees is on any list of prohibited countries, individuals, organizations or entities that is administered or maintained by the U.S. Office of Foreign Assets Control (“OFAC”), including but not limited to the List of Specially Designated Nationals and Blocked Persons, or on any similar list not maintained by the OFAC. Buyer has and will maintain a process to ensure compliance with this Section 24.
BUYER STANDARD TERMS & CONDITIONS
1. General Terms
These terms and conditions which form this “Agreement” shall apply to all sales of chemicals, products, goods (“goods”) or services by Seller to Norres North America, Inc. (“Buyer”) and to any quotation by the Seller for sales. Buyer hereby buys and Seller hereby sells those goods or services set forth on the face hereof subject to the terms set forth below, the terms and conditions of purchase stated or referenced on the face of this Agreement and the terms of any documents, specifications or standards attached hereto, or which are otherwise hereby expressly incorporated and made a part of this Agreement. To the extent that any provision on the face of this Agreement conflicts with any provision set forth on this page, the provision on the face hereof shall govern. Seller is deemed to have accepted this offer when Seller signs or returns the acknowledgment copy of this Agreement to Buyer, when Seller begins performance of this Agreement or by delivery. Seller’s acceptance is solely limited to the acceptance of Buyer’s terms expressly set forth in this Agreement. These terms and conditions shall not be superseded by any other terms or conditions in Seller’s transactional documents, including Seller’s quote or invoice, the parties having expressly agreed that any terms in Seller’s transactional documents shall be without force and effect. This Agreement is the complete, entire and exclusive statement of the terms of the understanding between the parties concerning the sale of goods or services under this Agreement, merging and superseding all prior negotiations or agreements of the parties, either written or oral, made either prior to or contemporaneous with this Agreement. This Agreement cannot be modified or amended except by a subsequent written instrument executed by the parties which expressly supersedes the provisions of this Agreement.
2. Prices and Setoff
Unless otherwise specified on the face hereof, the contract price includes, and Seller shall be responsible for, all charges for taxes, cartage, transportation and other incidental expenses. The price stated on the face hereof includes all (i) applicable local, state and federal taxes, including, but not limited to excise, sales, use, and value-added taxes; (ii) all governmental charges, including but not limited to customs, import/export fees and duties; and (iii) insurance. Unless otherwise specified on the face hereof, all fees, costs, expenses, and taxes in excess of the price charged, shall be paid by Seller regardless of which party such fees, costs, expenses or taxes are imposed upon (with the exception of any taxes imposed on Buyer’s income). Buyer is entitled to setoff and deduct amounts due under this or any other agreement in the event Seller is in breach of this or any other agreement with Buyer, or provides defective or nonconforming goods or services.
3. Express Warranty, Quality Specifications, Safety and Environmental Information and Legal Compliance
Seller expressly warrants that goods and/or services provided hereunder conform to any formula, specifications, samples and data which are part of this Agreement or which were provided to Seller by Buyer or Buyer’s customer. Seller warrants that goods and/or services are free from contamination and defects in design, manufacture, material and workmanship. Seller shall provide sufficient information regarding safety, health and environmental hazards and recommended precautions associated with the goods and/or services provided hereunder to Buyer and all third parties reasonably foreseen to come in proximity to such goods and/or services. Seller warrants that the goods and/or services, information and performance provided satisfy or exceed all applicable federal and state law requirements, and applicable engineering, environmental or material standards, including, but not limited to, any recognized industry standards. In the event Seller is providing Buyer its requirements for goods, Seller shall comply with all such requirements and forecasts. Failure to comply with this subsection shall be a material breach of this Agreement and grounds for cancellation by Buyer.
4. Substitute Goods
Seller shall make no substitution of the goods specified to be sold nor make any material change in the production process for goods hereunder unless agreed to in advance and in writing by Buyer.
5. Option to Cancel
This contract may be terminated immediately by a party (without prejudice to its other rights and remedies) if the other party (1) becomes insolvent, makes an assignment for the benefit of its creditors, or is placed in receivership, administration, liquidation or bankruptcy; or (ii) is in breach of any term of this Contract and fails to remedy such breach within thirty (30) calendar days after its receipt of written notice of such breach from the non-breaching party.
6. Delivery, Shipping and Freight Insurance
Time is of the essence. Seller shall make deliveries in the quantities and at the time specified in this Agreement or in Buyer’s Purchase Orders. Buyer’s Purchase Order number, and any code number used in conjunction with specific material, must appear on all invoices, packing slips, and correspondence. No act of Buyer, including, without limitation, modification of this Agreement or acceptance of late deliveries, shall constitute a waiver of this provision. Seller shall notify Buyer immediately of any circumstance which is delaying or which threatens to delay the timely performance of this Agreement, but such notice shall not excuse performance by Seller nor affect Seller’s liability for performance hereunder. Seller shall not backorder any goods unless directed to do so by Buyer in writing. Seller shall insure all shipments for full value for the benefit of Buyer. Seller shall use all commercially reasonable shipping, packing and delivery methods to ensure on-time deliveries and to protect the goods in transit.
7. Proprietary Rights
Seller shall keep this Agreement, all trade secrets, confidential business and technical information, formula, specifications or other information or tangible items received from Buyer as bailed property of Buyer and shall keep such information confidential and not disclose such information or tangible items to any third parties other than Buyer.
8. Force Majeure
Neither party will be liable nor have any obligation to the other party of any kind, including but not limited to any obligation to accept goods or services, arising from any delay or failure to perform all or part of this Agreement as a result of causes, conduct, or occurrences beyond a party’s reasonable control, including, but not limited to, fire, flood, failure of either party to deliver goods, materials or equipment to the other party, act of war, civil disorder or disobedience, act of public enemies, terrorism, problems associated with transportation (including car or truck shortages), acts or failures to act of any state, federal or foreign governmental or regulatory authorities, labor disputes, strikes, or failure of suppliers to make timely deliveries of materials, goods or services by or to either party.
9. Nonconforming Goods
Buyer reserves the right to reject or return at Seller’s risk and expense all nonconforming goods, shipments made in excess of this Agreement, or shipments in advance of delivery schedules at any time. Seller will reimburse Buyer for any packaging, handling, cleaning, remediation and transportation costs incurred with respect to rejected goods.
10. Title and Risk of Loss
Shipment of goods shall be DDP (INCOTERMS 2010) unless otherwise specified on the first page of this Agreement. Seller warrants that, upon delivery, it has transferred free and clear title to the goods to Buyer and that there are no liens upon the goods or services provided hereunder. Title and risk of loss or destruction of the goods shall pass from Seller to Buyer upon delivery and acceptance of the goods.
Neither this Agreement nor any of a party’s rights or obligations hereunder shall be assignable without the prior written consent of the other party; provided, that Buyer’s rights and obligations under this Agreement shall be freely assignable, without such consent, to a successor of Buyer by purchase of its capital stock, merger or otherwise, or to a purchaser of all or substantially all of its assets. In the event that any permitted assignment of either party’s rights or obligations hereunder is made, this Agreement shall be binding upon and shall inure to the benefit of such party’s successors and its assigns. Nothing in this Agreement, express or implied, shall be deemed to confer upon any other person, including, without limitation, the employees of either party, any rights or remedies under, or by reason of this Agreement. No claim or right arising out of the breach of this Agreement can be discharged in whole or in part by a waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing signed by the aggrieved party.
12. Attorneys’ Fees
In the event it becomes necessary for either party to enforce the terms and conditions of this Agreement against the other, or to defend or prosecute any litigation arising out of or as a result of this Agreement, or in connection with the sale or provision of goods and/or services as applicable, the prevailing party in any dispute shall be entitled to recover from the other party, in addition to any other relief granted, the prevailing party’s reasonable attorneys’ fees, expert fees, costs and expenses of litigation.
13. Limitation of Liability
NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR SPECIAL, INDIRECT, ECONOMIC, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR UNDER THIS AGREEMENT, OR OTHERWISE, WITH RESPECT TO THE SALE, PURCHASE, OR USE OF THE GOODS AND/OR SERVICES, INCLUDING ANY LOST REVENUE OR PROFITS, BUSINESS INTERRUPTION OR DAMAGE TO BUSINESS REPUTATION, REGARDLESS OF THE THEORY UPON WHICH ANY CLAIM MAY BE BASED, INCLUDING, WITHOUT LIMITATION, TORT, BREACH OF CONTRACT, BREACH OF WARRANTY, NEGLIGENCE, PRODUCT LIABILITY OR ANY STATUTORY CAUSE OF ACTION.
14. Indemnification; Assignment of Certain Claims
To the fullest extent permitted by law, Seller agrees to protect, defend, indemnify and hold harmless Buyer (including Buyer’s officers, customers, agents, employees, representatives, and affiliated companies) from and against all claims, causes of action, suits and liabilities of every kind, including all expenses of litigation, court costs, and attorneys’ fees, for injuries to or death of any person (including, but not limited to, Buyer’s employees or Seller’s employees that may enter upon Buyer’s premises), or for damage to any tangible or intangible property or property rights (including, but not limited to, purely economic losses), arising out of or relating the Seller’s manufacture, design, sale, transportation, distribution, installation, performance, erection, testing, recall, or the breach of this Agreement, except to the extent of Buyer’s negligence or breach of this Agreement. To the fullest extent permitted by law, Buyer agrees to protect, defend indemnify and hold harmless Seller (including Seller’s officers, customers, agents, employees, representatives, and affiliated companies) from and against all claims, causes of action, suits and liabilities of every kind, including all expenses of litigation, court costs, and attorneys’ fees, for injuries to or death of any person (including, but not limited to, Buyer’s employees or Seller’s employees that may enter upon Buyer’s premises), or for damage to any tangible or intangible property or property rights (including, but not limited to, purely economic losses), arising out of or relating to Buyer’s use, after delivery or completion, of any goods and services provided hereunder except to the extent of Seller’s negligence or breach of this Agreement.
Notwithstanding the indemnification provisions set forth in the preceding paragraph, Seller agrees to maintain in full force and effect workers’ compensation, comprehensive general liability, broad form extended casualty, employer’s liability, automobile liability, product liability, completed operations coverage and insurance against any and all losses, damages, liabilities, claims, lawsuits, demands, costs and expenses (including attorneys’ fees and expert expenses) that arise out of or are alleged to have arisen, directly or indirectly, in whole or part, from Seller’s design, manufacture, sale, transportation, or distribution of any goods or services provided by or under this Agreement. The insurance provided hereunder shall include contractual liability coverage to cover Seller’s obligations under this Agreement. Seller shall provide coverage for any acts of omission or commission, negligence, willful or wanton conduct or otherwise of Seller, its subcontractors, employees, workmen, servants, or agents, with limits of not less than US$2,000,000 for each person and US$4,000,000 for each occurrence, and property damage limits of not less than US$5,000,000. Seller shall maintain Buyer as an additional insured on all such policies required under this Agreement. The coverage afforded to Buyer as additional insured under such policies shall be primary insurance. If Seller has other insurance, including self-insurance, which is also applicable to the coverage, such other insurance shall be considered only as excess coverage over and above any and all of Seller’s insurance. Seller shall obtain an endorsement to its policy to effect this priority of coverage. Buyer may, at its sole discretion, request that Seller provide certificates of insurance evidencing coverage as set forth herein.
16. Patent and Trademark Indemnification
Seller agrees to defend, indemnify and hold Buyer harmless from any and all claims, causes of action, demands, or disputes which allege, in whole or in part, any United States or foreign patent, trademark or copyright infringement with respect to the design, manufacture, sale, distribution or transportation of the goods or services provided by Seller. Said protection and indemnification shall include indemnification for Buyer’s expenses of litigation, court costs, expert expenses and attorneys’ fees.
17. Governing Law/Forum Selection
This Agreement shall be governed by the laws of the State of Indiana, U.S.A. without regard to or application of its principles or laws regarding conflicts of law, and excluding the United Nations Convention on the International Sale of Goods of 1980 (and any amendments or successors thereto). The parties consent to the exclusive jurisdiction of the federal court in South Bend, Indiana or the state court located in St. Joseph County, Indiana with respect to all litigation, claims, causes of action, demands, or disputes between the parties.
18. OFAC Lists; Compliance
None of Seller or any of its officers, directors or employees is on any list of prohibited countries, individuals, organizations or entities that is administered or maintained by the U.S. Office of Foreign Assets Control (“OFAC”), including but not limited to the List of Specially Designated Nationals and Blocked Persons, or on any similar list not maintained by the OFAC, nor will Seller cause or allow any funds received pursuant to this Agreement to be provided to any country, individual, organization or entity on any such list. Seller is in compliance with all of its obligations and requirements pursuant to the Conflict Minerals Statutory Provisions of Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act and Section 13(p) of the Securities Exchange Act of 1934 relating to the use of conflict minerals. Seller has and maintains a process to ensure compliance with this Section 19.