TERMS AND CONDITIONS FOR THE SALE OF GOODS AND/OR SERVICES (Rev 3/2007)
THIS AGREEMENT CONTAINS PROVISIONS RELATING TO INDEMNITY, RELEASE OF LIABILITY AND ALLOCATION OF RISK
MSI S.A. ("Seller"), a company organized and existing under the laws of Switzerland, whose headquarters' address is 19A Avenue de Choiseul, 1290 Versoix, Switzerland, hereby agrees to sell to the customer named in the Order (as defined in Article 17 hereof) ("Buyer") and Buyer hereby agrees to purchase the Goods and/or Services specified in the Order under these Terms and Conditions for the Sale of Goods and/or Services (the "Agreement"). Buyer and Seller are hereafter sometimes referred to individually as a "Party" and collectively as the "Parties".
In consideration of the mutual promises, conditions, terms and agreements contained in this Agreement, the sufficiency of which is hereby acknowledged, the Parties mutually agree as set forth below:
1. PAYMENT TERMS.
A. The consideration to be paid by Buyer to Seller for Seller's sale of parts, materials, supplies or other products ("Goods") and/or provision of services ("Services") shall be in accordance with the terms of the applicable Order (as defined hereinafter) or, if none, in accordance with Seller's published price list in effect at the time and in the specific location where the Goods or Services are requested.
B. Seller shall submit an invoice(s) to Buyer covering charges for Goods sold or Services performed, and unless alternate payment terms are specified or approved in writing by Seller's credit department, Buyer shall pay each such invoice within thirty (30) days of its receipt by Buyer.
C. In the event Buyer disputes any invoice in whole or in part, Buyer shall notify Seller of the dispute as soon as practicable but in no event later than thirty (30) days from receipt of such invoice and shall pay the undisputed portion in accordance with Paragraph 1(B) above without abatement, reduction or set off of any nature, including, without limitation, any abatement, reduction or set off thereof arising out of any present or future claim Buyer may have against Seller. Buyer and Seller shall promptly endeavor to settle and adjust any disputed amount forthwith.
D. Any cancellation by Buyer of an order for Goods after Seller's receipt of such order shall be subject to a restocking charge of twenty-five percent (25%), plus any packing, transportation or other costs actually incurred. Additionally, Goods specially built or manufactured to Buyer specifications, or orders for substantial quantities manufactured specially for Buyer, may only be canceled subject to payment of a cancellation fee by Buyer. Any return of Goods to Seller shall be subject to Seller's approval and to such Goods being in the same condition as when they originally left Seller's facility for shipment to Buyer.
E. Invoices remaining unpaid after thirty (30) days shall accrue interest at a rate equal to the lesser of 1% per month, compounded monthly, or the maximum rate permitted by applicable law on the unpaid balance from the invoice date until paid. In the event invoices are given to an ttorney, collection agency, or other collector for collection, or if suit is brought for collection, or if it is collected through probate, bankruptcy, or other judicial proceeding, then Buyer shall pay to Seller costs of collection, including reasonable attorneys' or collectors' fees and court costs, in addition to other amounts due.
F. If Buyer's internal procedures require that a purchase order be issued as a prerequisite to payment of any amounts due to Seller, it shall timely issue such purchase order to Seller, incorporating by reference the terms and conditions of this Agreement. Buyer agrees that the absence of a purchase order, other ordering document or administrative procedure may not be raised as a defense to avoid or impair the performance of any of Buyer's obligations hereunder, including, without limitation, payment of amounts owed to Seller.
2. TAXES.
Buyer shall pay to Seller, in addition to the prices provided for herein, any foreign or domestic duty, sales or use tax, manufacturer's tax, occupation tax, license, privilege, excise tax, value-added tax, gross receipts, custom, inspection or testing fee, or any other fee, tax or charge
(" Tax") that Seller may be required by any municipal (including, without limitation, special taxing authority), state, federal or foreign government law, rule, regulation or order to collect or pay with respect to the sale, transportation, storage, delivery, installation or use of any Goods provided hereunder or Services performed hereunder.
Seller shall indemnify Buyer against any liability and expense in excess of the amount of Tax due that is incurred by Buyer by reason of Seller's failure to properly remit said Tax to the proper government agency. In the event that Seller recovers a refund of, or credit for, any Taxes paid to Seller by Buyer with respect to the Goods provided or Services performed hereunder or of any Taxes measured by the price of such Goods or Services or the gross receipts from such sale, then Seller agrees to refund to Buyer the full amount of such refund or credit. Further, Buyer shall be under no obligation to share with, or refund to, Seller any duty drawback recovered by Buyer as a result of the export of products purchased hereunder. Notwithstanding the above, Seller shall not collect, and Buyer shall not pay, any such Tax for which Buyer furnishes to Seller a properly completed exemption certificate or a direct payment permit certificate or for which Seller may claim an available exemption from Tax, such as exemption for export.
Buyer shall be responsible for any Tax, penalty, and interest if such exemption certificate or direct payment permit certificate is later held by any proper authority to be invalid. Further, Seller shall not collect and Buyer shall not pay any Tax based on or measured by the net income or net worth of Seller, or any employment related Tax.
3. SELLER'S WARRANTY.
A. Subject to the limitations provided in this Agreement, for a period of ninety (90) days from the date of completion of Services or delivery of Goods, Seller warrants that the Goods and/or Services to be provided pursuant to the provisions of this Agreement shall conform to the specifications set forth in the relevant order for such Goods or Services, and if not so specified, such Services shall be performed in a good and workmanlike manner and the Goods shall be free from defects in material and workmanship.
In the event that Seller's Services and/or Goods fail to comply with the applicable foregoing standard, then as Buyer's sole remedy for such non-conformance, Seller, in its sole but reasonable discretion (i) in the case of Services, shall re-perform such non-conforming Services, or (ii) in the case of Goods, shall repair or replace such non-conforming Goods with the type originally furnished or if no longer reasonably available, a reasonable substitute.
In the event that Seller cannot satisfy (i) and/or (ii) as applicable, Seller shall refund the fees paid with respect to the nonconforming Services and/or Goods (but only to the extent (i) and/or (ii), as applicable, is brought to Seller's attention in writing by Buyer prior to the expiration of the warranty period set forth herein). This warranty shall not apply to normal wear and tear. Seller's obligation under this warranty shall not include any transportation charges, cost of installation, cost of obtaining access to the non-conforming item, duty, taxes or charges whatsoever.
B. Notwithstanding anything contained in this Agreement to the contrary, Seller makes no warranties or representations of any kind, whether expressed, implied or statutory, and disclaims any responsibility for any Goods sold hereunder which are not manufactured by Seller.
To the fullest extent permitted by law and by the manufacturers, Seller shall assign to Buyer any assignable manufacturer's warranty given to Seller by the manufacturer(s) of such Goods but Seller does not guarantee those warranties or in any way represent or warrant that any such manufacturer's warranties are enforceable or effective to remedy any defect in such Goods. Claims under any manufacturer's warranty shall be made by Buyer in accordance with the manufacturer's requirements. Seller agrees to use all reasonable efforts to cooperate with Buyer in processing any such claims.
C. The warranties contained herein do not apply (i) to repairs or replacements required because of accident, misuse, neglect or failure to maintain in accordance with manufacturer specifications, (ii) to any portion of the Goods or Services modified by or on behalf of Buyer, (iii) where manufacturer serial numbers or warranty decals have been removed or altered, (iv) where Seller performed as directed by Buyer, its agents or representatives and the warranty matter arises as a result of Seller's compliance with those directions, (v) where Buyer fails to follow the recommended operating and maintenance procedures of the original equipment manufacturer, (vi) where Buyer fails to maintain a industry standard safety shutdown/alarm system or (vii) where Seller is not invited to participate in start-up procedures after installation of the Goods.
D. EXCEPT FOR THE EXPRESS WARRANTIES STATED HEREIN, SELLER DISCLAIMS ALL WARRANTIES ON THE GOODS AND SERVICES FURNISHED HEREUNDER, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BUYER ACKNOWLEDGES AND ACCEPTS THE EXPRESS WARRANTIES AS ITS SOLE REMEDY WITH RESPECT TO THE GOODS AND SERVICES. IF ANY WARRANTIES ARE IMPLIED BY APPLICABLE LAW WITH RESPECT TO THE GOODS AND SERVICES AND CANNOT BE CONTRACTUALLY EXCLUDED, THE PARTIES AGREE THAT SELLER'S LIABILITY FOR A BREACH OF SUCH IMPLIED WARRANTY SHALL BE LIMITED TO, IN SELLER'S SOLE BUT REASONABLE DISCRETION, (i) IN THE CASE OF SERVICES, THE REPERFORMANCE OF SUCH SERVICES, OR (ii) IN THE CASE OF GOODS, THE REPAIR OR REPLACEMENT OF SUCH GOODS WITH THE TYPE ORIGINALLY FURNISHED OR, IF NO LONGER REASONABLY AVAILABLE, A REASONABLE SUBSTITUTE, OR (iii) A REFUND OF THE FEES PAID WITH RESPECT TO THE SUBJECT GOODS AND/OR SERVICES, WHICH SHALL BE PAID WITHIN THIRTY (30) DAYS OF SELLER'S RECEIPT FROM BUYER OF THE SUBJECT GOODS AND/OR WRITTEN DEMAND FOR A REFUND OF FEES PAID FOR THE SUBJECT SERVICES.
4. LIABILITIES, RELEASES AND INDEMNIFICATION.
A. For the purpose of this Article 4 and Article 5, the following definitions shall apply:
(i) "Seller Group" shall mean: (a) Seller, its parent, subsidiaries and affiliated or related companies, (b) its and their working interest owners, co-lessees, co-owners, partners, joint operators, joint venturers, if any, and their respective parents, subsidiaries and affiliated or related companies, and (c) the officers, directors, employees, agents, consultants and invitees of all of the foregoing.
(ii) "Buyer Group" shall mean: (a) Buyer, its parent, subsidiaries and affiliated or related companies, (b) its and their working interest owners, co-lessees, co-owners, partners, joint operators, customers, joint venturers, if any, and their respective parents, subsidiaries and affiliated or related companies, and (c) the officers, directors, employees, agents, consultants and invitees of all of the foregoing.
(iii) "Claims" shall mean all claims, demands, causes of action, liabilities, damages, judgments, fines, penalties, awards, losses, costs, expenses (including, without limitation, attorneys' fees and costs of litigation) of any kind or character arising out of, or related to, the performance of or subject matter of this Agreement.
B. Seller shall release, indemnify, defend and hold Buyer Group harmless from and against any and all Claims brought by, through or derived from any member of Seller Group or Seller Group's subcontractors or their employees, agents or invitees with respect to loss, destruction or damage of the property of Seller Group or Seller Group's subcontractors or their employees, agents or invitees, or personal or bodily injury, sickness, disease or death, loss of services and/or wages, or loss of consortium or society of any member of Seller Group or Seller Group's subcontractors or their employees, agents or invitees.
C. Buyer shall release, indemnify, defend and hold Seller Group harmless from and against any and all Claims brought by, through or derived from any member of Buyer Group or Buyer Group's other contractors or their employees, agents, consultants or invitees with respect to loss, destruction or damage of the property of Buyer Group or Buyer Group's other contractors or their employees, agents, consultants or invitees, or personal or bodily injury, sickness, disease or death, loss of services and/or wages, or loss of consortium or society of any member of Buyer Group or Buyer Group's subcontractors or their employees, agents or invitees.
D. Notwithstanding anything contained in this Agreement to the contrary, and to the maximum extent permitted under law, Buyer shall release, indemnify, defend and hold Seller Group harmless from and against any and all Claims resulting from: (i) pollution or contamination of any kind (other than surface spillage of fuels or chemicals to the extent attributable solely to the negligence of Seller Group) including, without limitation, the cost of control, removal and clean-up; and/or (ii) any hazardous substance, hazardous material, oil and constituents thereof, or hazardous waste regulated by any federal, state, provincial or local law or governmental rule or regulation relating to the protection of the environment.
E. THE ASSUMPTIONS AND EXCLUSIONS OF LIABILITY, RELEASES AND INDEMNITIES SET FORTH IN THIS ARTICLE 4 SHALL APPLY TO ANY CLAIM(S) WITHOUT REGARD TO THE CAUSE(S) THEREOF INCLUDING, WITHOUT LIMITATION, PRE-EXISTING CONDITIONS, WHETHER SUCH CONDITIONS BE PATENT OR LATENT, THE UNSEAWORTHINESS OF ANY VESSEL OR VESSELS, IMPERFECTION OF MATERIAL, DEFECT OR FAILURE OF EQUIPMENT (INCLUDING, WITHOUT LIMITATION, THE GOODS), BREACH OF REPRESENTATION OR WARRANTY (EXPRESS OR IMPLIED), ULTRAHAZARDOUS ACTIVITY, STRICT LIABILITY, TORT, BREACH OF CONTRACT, BREACH OF STATUTORY DUTY, BREACH OF ANY SAFETY REQUIREMENT OR REGULATION, OR THE NEGLIGENCE OF ANY PERSON OR PARTY, INCLUDING, WITHOUT LIMITATION, THE INDEMNIFIED PARTY OR PARTIES, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT AND/OR CONCURRENT, ACTIVE OR PASSIVE, OR ANY OTHER THEORY OF LEGAL LIABILITY.
5. INSURANCE.
A. At any and all times during the term of this Agreement, unless otherwise prohibited by law, each Party shall, at each Party's sole expense, equally carry with solvent and reputable insurance carriers, insurance of the types and in the minimum amounts set forth below, subject to policy terms, conditions and exclusions. Any and all deductibles in the insurance policies described below shall be assumed by, for the account of and at the sole risk of the Party carrying such insurance.
(i) Comprehensive General Liability Insurance, including, without limitation, contractual liability and products liability coverage, insuring the indemnity provisions set forth in this Agreement and subject to standard terms and conditions, affording minimum protection of not less than U.S. $1,000,000 per occurrence combined single limit bodily injury, personal injury, sickness or death and loss of or damage to property.
(ii) Workers' Compensation Insurance including, without limitation, occupational disease in accordance with applicable law.
(iii) Employers' Liability Insurance affording minimum protection of not less than U.S. $1,000,000 per occurrence of accident for bodily injury by accident, U.S. $1,000,000 per occurrence of employee bodily injury by disease, and U.S. $1,000,000 policy annual aggregate covering any employee of the primary insured.
(iv) Automobile Liability Insurance covering owned, non –owned or hired vehicles affording minimum protection of not less than U.S. $1,000,000 per occurrence combined single limit bodily injury or death and loss of or damage to property.
(v) Excess Liability Insurance over that required in Paragraphs (A)(i), A(iii) and A(iv) above with minimum limits of U.S. $4,000,000 and specifically including contractual liability.
B. To the extent of the indemnity and release obligations expressly assumed by each Party hereunder, each Party agrees that all such insurance policies carried by the indemnifying Party shall: (i) be primary to the other Party's insurance; (ii) name the Seller Group or Buyer Group as additional insureds, as applicable; and (iii) be endorsed to waive subrogation against the Seller Group or Buyer Group, as applicable.
C. Each Party shall furnish Certificates of Insurance to the other Party evidencing the insurance required herein.
D. The types and amounts of insurance required herein shall in no way limit either Party's indemnity obligations as stated elsewhere in this Agreement.
6. WAIVER OF CONSEQUENTIAL DAMAGES.
NOTWITHSTANDING ANYTHING CONTAINED IN THIS AGREEMENT TO THE CONTRARY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR, AND EACH PARTY HEREBY RELEASES THE OTHER PARTY FROM, ANY INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSSES INCLUDING, WITHOUT LIMITATION, ANY DAMAGES OR LOSSES ARISING OUT OF ANY DEFECT IN, OR FAILURE OF, OR MALFUNCTION OF THE GOODS SOLD OR SERVICES SUPPLIED HEREUNDER, WHETHER BASED UPON LOST GOODWILL, LOST REVENUE OR ANTICIPATED PROFITS, INTEREST, LOSS OF USE, WORK STOPPAGE, IMPAIRMENT OF OTHER GOODS, LOSS BY REASON OF SHUTDOWN OR NON-OPERATION, INCREASED EXPENSES OF OPERATION OF THE GOODS, LOSS OF USE OF POWER SYSTEM, COST OF PURCHASE OF REPLACEMENT POWER, OR CLAIMS OF BUYER OR CUSTOMERS OF BUYER FOR SERVICE INTERRUPTION, WITHOUT REGARD TO THE CAUSE(S) THEREOF INCLUDING, WITHOUT LIMITATION, PRE-EXISTING CONDITIONS, WHETHER SUCH CONDITIONS BE PATENT OR LATENT, BREACH OF REPRESENTATION OR WARRANTY (EXPRESS OR IMPLIED, ULTRAHAZARDOUS ACTIVITY, STRICT LIABILITY, TORT, BREACH OF CONTRACT, BREACH OF STATUTORY DUTY, BREACH OF ANY SAFETY REQUIREMENT OR REGULATION, OR THE NEGLIGENCE OF ANY PERSON OR PARTY, INCLUDING, WITHOUT LIMITATION, THE INDEMNIFIED PARTY OR PARTIES, WHETHER SUCH NEGLIGENCE BE SOLE, JOINT AND/OR CONCURRENT, ACTIVE OR PASSIVE, OR ANY OTHER THEORY OF LEGAL LIABILITY. THE PARTIES FURTHER AGREE THAT THE FORGOING RELEASE OF LIABILITY SHALL ALSO EXTEND TO EACH PARTY'S PARENT, SUBSIDIARY, AFFILIATED AND RELATED COMPANIES AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS.
7. LIMITATION OF LIABILITY.
THE REMEDIES OF BUYER SET FORTH HEREIN ARE EXCLUSIVE, AND THE TOTAL LIABILITY OF SELLER AND THE MANUFACTURERS OF GOODS WITH RESPECT TO THIS AGREEMENT AND THE GOODS AND SERVICES FURNISHED HEREUNDER, AND IN CONNECTION WITH THE PERFORMANCE OR BREACH HEREOF, AND FROM THE MANUFACTURE, SALE, DELIVERY, INSTALLATION, REPAIR, REPLACEMENT OR TECHNICAL DIRECTION COVERED BY OR FURNISHED UNDER THIS AGREEMENT, WHETHER BASED ON CONTRACT, WARRANTY, TORT, NEGLIGENCE, INDEMNITY (OTHER THAN AS PROVIDED IN ARTICLE 4 OF THIS AGREEMENT), STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED THE PURCHASE PRICE OF THE GOODS OR SERVICES UPON WHICH SUCH LIABILITY IS BASED.
8. INDEPENDENT CONTRACTOR.
It is expressly understood that Seller is an independent contractor and that neither Seller nor anyone employed by Seller shall be deemed for any purpose to be an employee, agent, partner, servant or representative of Buyer.
9. FORCE MAJEURE.
If either Party is rendered unable, wholly or in material part, by reason of Force Majeure to carry out any of its obligations hereunder, other than the obligation to pay money (including Seller's standby rate, if applicable), then upon such Party giving notice and particulars in writing to the other Party within a reasonable time after the occurrence of the cause relied upon, such obligations shall be suspended. "Force Majeure" shall include acts of God, laws and regulations, strikes, lightning, fire, flood, washout, storm, breakage or accident to equipment or machinery, and any other causes that are not reasonably within the control of the Party so affected. In the event of delay in performance due to any such cause, the time of performance shall be extended for a period of time equal to the period of the delay. If a delay resulting from any such causes extends for more than ninety (90) days and the Parties have not agreed upon a revised basis for continuing the provision of Goods and/or Services at the end of the delay, then either Party, upon thirty (30) days written notice, may terminate the order with respect to the Goods or unexecuted portion of the Services whereupon Buyer shall compensate Seller for Services performed or Goods delivered through the date of termination plus any charges, fees or direct costs, including reasonable, non-cancellable obligations incurred by Seller prior to receipt of the notice of termination, or incurred by Seller in terminating the Services, plus applicable termination fees.
10. SEVERABILITY.
If any term or provision of this Agreement, or the application thereof to any person or circumstance, shall at any time or to any extent be invalid, illegal or unenforceable in any respect as written, Buyer and Seller intend for any court or arbitrator construing this Agreement to modify or limit such provision temporally, spatially or otherwise so as to render it valid and enforceable to the fullest extent allowed by law. Any such provision that is not susceptible of such reformation shall be ignored so as to not affect any other term or provision hereof, and the remainder of this Agreement, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid, illegal or unenforceable, shall not be affected thereby and each term and provision of this Agreement shall be valid and enforced to the fullest extent permitted by law.
11. ASSIGNMENT.
Seller shall have the right to freely assign this Agreement to an affiliate or subsidiary without obtaining Buyer's written consent. Buyer shall not assign this Agreement without the prior written consent of Seller. This Agreement shall be binding upon and inure to the benefit of the Parties and, when validly assigned, to their respective heirs, executors, administrators, successors and/or assigns.
12. GOVERNING LAW.
THE PARTIES TO THIS AGREEMENT AGREE THAT THE VALIDITY, CONSTRUCTION, ENFORCEMENT, AND INTERPRETATION OF THIS AGREEMENT SHALL BE GOVERNED AND CONTROLLED BY THE SUBSTANTIVE LAWS OF SWITZERLAND, EXCLUDING ANY CONFLICTS LAWS OR CHOICE OF LAW PRINCIPLES. THE PARTIES AGREE TO THE EXCLUSIVE JURISDICTION OF THE COURTS LOCATED IN GENEVA, SWITZERLAND.
13. HEALTH, SAFETY AND ENVIRONMENTAL.
A. Buyer shall provide clean, de-energized, properly isolated and if applicable, decontaminated equipment for the performance of any Services hereunder. Buyer is responsible for charges related to Seller's standby time (in accordance with the pricing detailed in the written order for Services or, if not so detailed, in accordance with Seller's published price list in effect at the time and in the specific location where the Services are requested) while Seller waits for equipment to be properly prepared. Buyer shall provide Seller with information regarding current hazards and specific procedures that may affect Seller employees while on-site prior to Seller conducting activities.
B. In the event Buyer requires Seller to complete specific and/or unique safety training other than regulatory or Seller's standard training requirements, Buyer shall be responsible for all charges related thereto.
C. Seller shall have the right to stop the performance of any Services due to unsafe conditions and practices by Buyer or third parties. Buyer shall be responsible for charges related to such work stoppage.
D. Seller shall not be responsible for disposal of waste resulting from the provision of any Services, whether hazardous or otherwise; however, Seller shall place waste in receptacles provided by Buyer for the purpose of disposal of any such waste. If Buyer fails to timely provide such receptacles, Seller shall have the right, but not the obligation, in Seller's sole but reasonable discretion, to (i) stop performance of Services until such receptacles are supplied, (ii) supply an alternative receptacle and/or (iii) dispose of the waste, all at Buyer's risk and expense.
E. Seller shall be responsible for the case management of its own employees.
14. DELIVERY, TITLE AND RISK OF LOSS.
Risk of loss or damage to any Goods sold under this Agreement shall pass to Buyer upon oral, electronic or other written tender of delivery F.O.B. manufacturer's/supplier's facility (for Goods not in Seller's inventory) or Ex Works Seller's relevant facility (for Goods in Seller's inventory) (INCOTERMS 2000) unless otherwise mutually agreed to in writing, and Buyer shall keep the Goods fully insured with loss payable to Seller from the time of delivery until the purchase price has been fully paid to Seller.
Title to the Goods sold shall pass at the time of delivery with Seller retaining a security interest in the Goods until such time as it receives full and final payment. Any delivery dates quoted are approximate and shall depend on prompt receipt by Seller of all information necessary to proceed with the Goods immediately and without interruption.
If the Parties agree in writing to require Seller's delivery to Buyer's premises or jobsite, the price quoted and delivery is conditional upon free ingress and egress to the location and upon the location being readily accessible. Seller reserves the right to make delivery in installments, and a delay with respect to any installment shall not affect any other installments. Any delivery of Goods that is delayed by causes within Buyer's control or due to Buyer's inability to accept delivery may be placed in storage by Seller at Buyer's risk, and Buyer shall be responsible for all freight, storage, insurance, and other expenses incurred thereby. Buyer's receipt of Goods from carrier shall constitute a waiver of any claim for damage or shortage of Goods.
15. EXPORT SHIPMENT; AUTHORIZATIONS.
A. Buyer shall comply with all applicable export control laws and regulations and shall be responsible for the timely application for any required export license for the products, provided that Seller reserves the right to terminate without liability any order for Goods prior to shipment where the Goods are not classified "EAR 99" by United States' export regulations. Buyer shall also be responsible for obtaining any required import license, exchange permit or any other required governmental authorization. Buyer and Seller shall assist each other when such help is reasonably possible, and Seller shall be reimbursed by Buyer for any expenses incurred in providing such assistance. Seller shall not be liable if any authorization of any government is delayed, denied, revoked, restricted and/or not renewed, and Buyer shall not be relieved thereby of its obligations to pay Seller for the Goods and any other charges that are the obligation of Buyer hereunder.
B. All Goods sold and shipments made hereunder shall at all times be subject to the export control laws and regulations of Switzerland, the United States and any other applicable jurisdictions, and any amendments thereof. Buyer agrees that it shall not, except as said laws and regulations expressly permit, make any disposition of United States-origin Goods or technical information obtained from Seller (directly or indirectly), by way of transshipment, re-export, diversion or otherwise, other than in and to the ultimate country of destination specified on the applicable Order (as defined hereinafter) for Goods and/or declared as the country or ultimate destination on Seller's invoices.
16. ACCEPTANCE.
Buyer's acceptance of Goods sold hereunder shall occur upon delivery unless Seller is otherwise notified in writing of Buyer's intent to reject any items purchased hereunder within ten (10) days of its receipt of such Goods. Seller shall have no less than thirty (30) days from the date of receipt of such notice to remedy any nonconforming aspects of such Goods.
17. CONTROLLING TERMS.
A. Buyer's taking delivery of any Goods or Seller's provision of any Services to Buyer shall constitute Buyer's acceptance of the terms and conditions of this Agreement, together with any terms and conditions that the manufacturer of any Goods sold under this Agreement requires Seller to incorporate into a sale of its products and any terms and conditions contained in Seller's sales order, proposal or similar documentation accompanying this Agreement ("Order"). Any terms and conditions of an Order that differ from the terms and conditions of this Agreement shall only be applicable with respect to describing (i) the Goods sold or the scope of services applicable to a particular Order to be performed, (ii) delivery terms and (iii) pricing, and shall not otherwise expand upon or modify the terms of this Agreement, including, without limitation, the warranties, indemnification or limitations of liability provisions contained herein. Seller expressly rejects any terms and conditions submitted by Buyer that are inconsistent with or in addition to the terms and conditions contained in this Agreement, and Seller's agreement to provide Goods or perform Services is expressly conditioned upon Buyer's acceptance of the terms and conditions contained herein. No waiver or alteration of, or addition to the terms and conditions contained in this Agreement shall be binding unless expressly agreed to in writing by an officer of Seller.
B. Notwithstanding anything in this Agreement to the contrary, this Agreement does not apply to or otherwise impact the Parties' agreement with respect to (i) Seller's provision of contract compression services (which includes the provision of compression services utilizing Seller's own compressor units and equipment and Seller's services related thereto) to Buyer, if any, which shall be exclusively governed by separately negotiated terms and conditions, or (ii) Seller's fabrication and sale of new, complete compressor packages to Buyer, which shall be exclusively governed by separately negotiated terms and conditions.
18. GENERAL.
Failure of Buyer or Seller to enforce any of the terms and conditions of this Agreement shall not prevent a subsequent enforcement of such terms and conditions or be deemed a waiver of any subsequent breach. This Agreement contains all representations of the Parties and supersedes all prior oral or written agreements or representations with respect to the Goods and/or Services covered herein. Buyer acknowledges that it has not relied on any representations other than those contained in this Agreement. This Agreement shall not be varied, supplemented, qualified, or interpreted by any prior course of dealing between the Parties or by any usage of trade and may only be amended by an agreement executed by a duly authorized representative of both Parties.