The followingTerms and Conditions of Sale(the“Terms”)are applicable to theprovisionof all goods suppliedand/or servicesrendered(“goods”) byElectromechanical Research Laboratories, Inc.,an Indianacorporationand itsaffiliates(collectively“ERL”), to any purchaser, orin the case of sample products or material, recipient,thereof (“Buyer”).
1.GENERALLY-ERL’soffer for sale of goodsand Buyer’s acceptanceof any such offer is governedexclusively bytheseTermsunless otherwise agreed inwriting signed byERL.If an order is deemed to be anoffer by Buyer,ERL’s acceptance of such offer isexpressly conditionedon Buyer’s assent to theseTerms.Any additional, different, or conflicting terms proposedby Buyer inany offer, acceptance, confirmation(including any Buyer purchase order or specifications)orotherwise, (a) arerequests for material alterationstotheseTerms, (b) arehereby rejectedand objected to byERL,and (c)will notbe binding in any way onERL.
2.PRICE;PAYMENT-The goods are herebyoffered for sale at prices to be established byERL.Unlessotherwise specified onERL’s invoice, order confirmation,acknowledgment or otherwise agreed to by the parties inwriting, Buyer will pay for all goods on a[netthirty (30)day]basis.ERLreserves theright to assess reasonableinterest charges on any amounts not paid by the date suchpaymentsaredue.All orders are subject to credit approvalbyERL.ERLreserves the right to withhold shipment or torequire other adequate assurances of performance ofBuyer’s payment obligations asERLin its discretion mayrequire, notwithstanding any order confirmation issuedbyERL.Notwithstanding anything contained herein,additional cleaning or oiling charges with respect toBuyer supplied materials(“Buyer Materials”)nototherwise noted onERL’s order quotation,confirmation,oracknowledgmentmay be applied at the discretion ofERLuponitsreceipt ofsuchBuyer Materials.
3.TAXES-ERL’s price for goods isexclusive ofany Federal, state, or local sales, use, or excise taxeslevied upon, or measured by, the sale, the sales price, oruse of goods required inthe performance of any order.ERLwill list separately on its invoice any such taxesapplicable to anysuch goods or transaction, and payableby Buyer, with respect to which Buyer does not furnish toERLevidence of exemption.
4.DELIVERIES-ERLwill usecommerciallyreasonable efforts to meet the delivery dates,specifications, and quantities as set forth in Buyer’spurchaseorder.ERLwill not, however, be liable fordamages or delays in delivery due to causes beyond itsreasonable control.
5. PRODUCT WARRANTIES – ERL warrants to Buyer that at the time of delivery ERL will have good title to all goods supplied to Buyer and the right to convey title to such goods to Buyer free and clear of all liens. ERL further warrants to Buyer that at the time of delivery all such goods will conform to the specifications, drawings, samples, or other description furnished or specified by Buyer or agreed to in writing by ERL, and will be free from defects in material and workmanship. ERL further warrants that any services it provides hereunder will be performed in a workmanlike manner. The warranties stated in this Clause 5 are the only representations and warranties ERL has given Buyer in connection with the provision of goods to Buyer. THIS WARRANTY IS LIMITED TO ITS PRECISE TERMS AND PROVIDES EXCLUSIVE REMEDIES, EXPRESSLY IN LIEU OF ALL OTHER REMEDIES OF ANY NATURE WHATSOEVER, INCLUDING CLAIMS FOR SPECIAL OR CONSEQUENTIAL DAMAGES. ERL NEITHER MAKES NOR ASSUMES ANY OTHER WARRANTIES OR GUARANTEES WHATSOEVER, WHETHER EXPRESSED OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, and neither Buyer, nor any sub-distributor, agent or dealer under it, nor any other person, is authorized to assume for ERL any obligation or liability not strictly in accordance with the foregoing, or to represent that ERL makes any other warranty or guarantee. All other warranties ERL or anyone purporting to represent ERL may have given, or which may be provided or implied by law or commercial practice, ARE HEREBY EXCLUDED.
6. NON-CONFORMING GOODS – Upon Buyer’s receipt of shipment, Buyer shall immediately inspect the goods. Unless Buyer provides ERL with written notice of any claim for shortage, defect or nonconformity in the goods within [ten (10)] days after receipt of shipment, such goods shall be deemed finally inspected, checked and accepted by Buyer and Buyer’s failure to provide such notice shall be deemed to constitute a waiver of any such claim.
7. TRADE COMPLIANCE (a) EXPORT CONTROL REGULATIONS – The goods that are the subject of this document and related technology are subject to export and re-export restrictions under U.S. and other countries’ export control regulations,
including without limitation the U.S. Export Administration Regulations, regulations of the U.S. Office of Foreign Asset Control and comparable laws and regulations of other countries, which may require U.S. or other government approval for any re-export or retransfer (“Export Control Regulations”). Buyer warrants that it (i) will adhere to and comply with (x) all applicable Export Control Regulations and (y) any applicable terms, conditions, procedures and documentation requirements made known to Buyer that may be promulgated by ERL from time-to-time to comply with the Export Control Regulations; (ii) will not, directly or indirectly through a third party, ship ERL materials to Cuba, Iran, Libya, North Korea, Syria, Sudan or any other country subject to trade embargoes in violation of Export Control Laws. Buyer acknowledges that ERL will not proceed with a shipment when ERL knows that the ERL products in that shipment are destined for a sanctioned country. Buyer represents that neither Buyer nor any of its principals, officers, or directors, or any person or entity known to Buyer to be directly involved in this transaction as freight forwarder, customer, end-user, consultant, agent or otherwise is designated on any of the U.S. government restricted parties lists, including without limitation the U.S. Commerce Department Bureau of Industry and Security Denied Persons List, Entity List or Unverified List, the U.S. Treasury Department Office of Foreign Asset Controls Specially Designated National and Blocked Persons List or the U.S. State Department Directorate of Defense Trade Controls Debarred Parties List or restricted parties lists of any country having jurisdiction over Buyer or the transaction involving the goods that are the subject of this document or related technology.
(b) ANTIBOYCOTT PROVISIONS – Buyer will not request of ERL information or documentation where the purpose of such request is to support, give effect to or comply with a boycott of any country in contravention of the laws or policies of the United States, including but not limited to the Arab League boycott of Israel.
ERL hereby rejects any such request by Buyer and will report receipt of any such request to the relevant U.S. government office, as required by law.
(c) ANTICORRUPTION AND ANTIBRIBERY – In relation to any transaction involving the goods that are the subject of this document or related technology, Buyer shall not seek to obtain or retain business or gain any other advantage by making or offering to make any payment of money or by providing or offering to provide anything of value, directly or indirectly, to: (i) any government official; or (ii) any non-governmental person, in either case with the intent that such official or person will perform their responsibilities improperly. Buyer warrants that it will comply with the anticorruption laws and anti-bribery laws of any country having jurisdiction over Buyer or the transaction involving the goods that are the subject of this document or related technology, and will in all cases comply with the U.S. Foreign Corrupt Practices Act and the U.K. Bribery Act.
(d) NONCOMPLIANCE – In the event that ERL reasonably believes that any provision of this Clause 7 has or may have been breached, Buyer shall cooperate fully with ERL’s investigation to clear the matter and ERL shall not be obligated to sell or provide goods or technology or take any other act in furtherance of any transaction or agreement while such investigation is pending and such suspension or forbearance by ERL shall not constitute breach of any obligation in respect of the transaction to which this document applies or otherwise.
8. LIMITATION OF LIABILITY – ERL’S LIABILITY FOR ITS GOODS UNDER ALL THEORIES OF LIABILITY SHALL BE LIMITED TO REPAIRING OR REPLACING THOSE FOUND BY ERL TO BE DEFECTIVE, OR AT ERL’S OPTION, TO REFUNDING THE PURCHASE PRICE OF SUCH GOODS. AT ERL’S REQUEST, BUYER WILL PERMIT ERL OR ITS DESIGNEE TO INSPECT ANY ALLEGEDLY DEFECTIVE GOODS INCLUDING SHIPMENT OF SUCH ALLEGEDLY DEFECTIVE GOODS TO THE LOCATION SPECIFIED BY ERL AT ERL’S COST.
9. DISCLAIMER OF INCIDENTAL AND CONSEQUENTIAL DAMAGES – ERL SHALL HAVE NO LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE GOODS, INCLUDING WITHOUT LIMITATION BREACH OF ANY OBLIGATION IMPOSED ON ERL HEREUNDER OR IN CONNECTION HEREWITH. CONSEQUENTIAL DAMAGES FOR PURPOSES HEREOF SHALL INCLUDE, WITHOUT LIMITATION, LOSS OF USE, INCOME OR PROFIT. 10. INDEMNITY – Buyer shall indemnify, defend and hold ERL and its directors, officers, employees, agents, suppliers, parents, affiliates, subsidiaries, successors and assigns harmless from and against any and all fines, penalties, suits, actions, claims, liabilities, judgments, losses, damages, costs and expenses (including attorneys’ fees) resulting or arising from (a) Buyer’s negligence or willful misconduct, (b) Buyer’s use, sale, handling, storage, or disposal of the goods or any product or waste derived therefrom, (c) Buyer’s discharge or release of the goods or any product or waste derived therefrom into water, onto land or into the air, (d) Buyer’s exposing any person (including Buyer’s employees) to the goods or any product or waste derived therefrom, including failure to warn of such exposure, (e) the transportation of the goods to Buyer after tender of the goods by ERL to the carrier at ERL’s shipping point, or (f) the infringement (whether actual or alleged) of any intellectual property of any third-party with respect to any goods for which Buyer has supplied manufacturing specifications. The foregoing shall apply, without limitation, to injury to person (including death) or damage or harm to property or the environment. This indemnity shall not apply to any fine, penalty, suit, action, claim, liability, judgment, cost or expense caused solely by ERL’s negligence or willful misconduct, but shall apply where there is concurrent negligence or willful misconduct on the part of ERL and Buyer in proportion to Buyer’s negligence or willful misconduct.
11. FORCE MAJEURE – Except for the payment of monies owed, neither party will have any liability for any breach or failure to perform that is the result of an event, condition or circumstance beyond that parties’ reasonable control, including, without limitation, acts of God, war, insurrection, or terrorism, fire, inclement weather, strikes, boycotts, or other similar circumstances. If a party becomes aware of any such event, condition or circumstance, then such party will promptly advise the other party and both parties will cooperate to ameliorate the circumstance or condition as quickly as possible.
12. GOVERNING LAW – The sale of goods hereunder shall be governed, interpreted and construed by and in accordance with the internal substantive laws of the State of Indiana, United States of America, without
regard to the conflict of laws provisions thereof, and expressly excluding the United Nations Convention on Contracts for the International Sale of Goods. Any dispute arising hereunder shall be resolved in the United States federal courts serving the State of Indiana, U.S.A. or in the courts of the State of Indiana, as may be applicable. Such courts shall have exclusive jurisdiction and venue for resolution of all such disputes and the parties hereto do hereby irrevocably submit to such jurisdiction and venue, and waive any objection to the contrary hereafter.
13. COMPLIANCE WITH LAWS – Buyer shall comply with all applicable laws, regulations, and other legal requirements regarding the export, import, sale, distribution, marketing, and service of the goods and related technology, including without limitation, tax and foreign exchange legislation or regulations and the obligations under Clause 7.
14. COMPLETE AGREEMENT – These Terms contain the complete and final agreement between Buyer and ERL and supersede all other and further agreements, representations, warranties, covenants, promises, and other contractual obligations between the parties in respect of the subject hereof unless otherwise agreed to in a writing signed by ERL. These Terms may be amended, modified or waived only by a written instrument that refers expressly to this paragraph and is signed by an authorized representative of ERL. E-mails and electronic on-line, internet or other terms of Buyer shall not be deemed a means of modifying or amending these Terms.