other documents necessary to perfect such interests and liens. If Buyer defaults in its obligations under the Order Acknowledgement before the price (including any notes given therefore) of the equipment has been fully paid in cash, Seller may take any and all actions permitted by law to protect its interests including, where permissible, repossession of such equipment.
SHIPMENTS: All sales are Ex-Works Factory (as such term is defined by the International Chamber of Commerce as of the date hereof). Shipping contracts made by Seller shall be to Buyer's account. All claims for loss or damage after risk of loss has passed to Buyer shall be filed by Buyer with the carrier. Buyer shall be liable to Seller for the full price of the goods, irrespective of loss or damage in transit. Seller shall not be required to provide freight cost receipts to Buyer at the time of invoice. Buyer shall bear all risk and expense for delivery of goods, including without limitation, shipping, loading, unloading, storage, freight, and insurance. Goods may be shipped to Buyer in whole or in part. Title to goods shall pass to Buyer when delivered to the carrier or the Buyer, whichever occurs first, even if the goods are shipped freight prepaid. Among other things, a signed delivery receipt or bill of lading will constitute proof of delivery. The choice of carrier is made solely at the discretion of Seller, and Seller makes no representation as to the acceptability of a particular carrier. Except when Seller expressly agrees in writing, Seller does not guarantee shipment or delivery by a certain date or time, although Seller will strive to deliver goods by the date that it may communicate to Buyer. Seller shall not be liable to Buyer, or any other person, for any loss or damage of any kind which results from delay in shipment, delivery, or failure to give notice of delay, whether or not such delay was caused by Seller or otherwise. Seller reserves the right to backorder any goods and to ship from backorder in such order as Seller determines.
LIMITED WARRANTY: Seller warrants, to its original Buyer, that goods manufactured by Seller are free from defects in material and workmanship for 12 months from date of shipment (except for specified products with warranties that supercede this limited warranty. Please consult factory for these products). The Buyer hereby acknowledges and agrees, though free from defects in material and workmanship at the time of shipment, that the useful life of goods manufactured by Seller will vary depending upon the Buyer's frequency of use, application, and other factors, with regard to such goods. In that respect, notwithstanding any other provision to the contrary in the Agreement, these Terms and Conditions, or the Order Acknowledgement, the Seller specifically does not warrant the useful life of any product. If a failure to conform to specifications or a defect in materials or workmanship is discovered within this period, Seller must promptly be notified in writing within thirty (30) days, which notification, in any event must be received no later than 12 months from the date of shipment. Within a reasonable time after such notification, Seller will correct any failure to conform to specifications or any defect in materials or workmanship, or in lieu of such repair, and at its sole option, shall replace the equipment. THE ABOVE ARE THE BUYER'S EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY. Seller does not warrant: (a) defects caused by failure to provide suitable installation environment for the product, (b) damage caused by use of the product for purposes other than those for which it was purchased, (c) damage caused by disasters such as fire, flood, wind, and lightning, (d) damage caused by unauthorized attachments, or modification, (e) any other abuse or misuse by the Buyer, including improper installation; or (f) goods which have been damaged or altered by Buyer or its customers. Each good sold by Seller to Buyer shall be deemed to be without defect and in conformity with its specifications and the terms of this Agreement and the associated Order Acknowledgement even though reasonable variances may exist. As a result, Seller cannot and does not guarantee that goods sold hereunder, whether in whole or in part, will exactly match in specification or otherwise, and Buyer acknowledges that reasonable variance is permissible. Additionally, Seller shall have no liability if a good does not conform to any applicable state, county or local ordinance, as the conformity of a good to each state, county and local ordinance is the sole responsibility of the Buyer. Seller reserves the right to change its goods and the components of its goods without prior notice to Buyer, although in circumstances where an order from Buyer has been accepted by Seller, Seller will use commercially reasonable efforts to ensure that such change will not affect performance of the good in a materially adverse manner.
EXCEPT AS SET FORTH ABOVE AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, SELLER MAKES NO OTHER WARRANTIES FOR A PRODUCT OR UNDER THIS AGREEMENT OR ANY ORDER ACKNOWLEDGEMENT AND HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR USE, AND INCLUDING THE WARRANTY OF MERCHANTABILITY. IN NO CASE SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES BASED UPON ANY LEGAL THEORY, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF SAVINGS OR REVENUE, LOSS OF USE OF THE PRODUCT OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF ANY SUBSTITUTE EQUIPMENT, FACILITIES OR SERVICES, DOWNTIME, THE CLAIMS OF THIRD PARTIES INCLUDING CUSTOMERS, INJURY TO PROPERTY AND, UNLESS PRECLUDED UNDER APPLICABLE STATE LAW, BODILY AND PERSONAL INJURY.
INDEMNITY; LIABILITY LIMITATION: Buyer hereby agrees to indemnify, reimburse in full, defend and hold harmless Seller, its subsidiaries, affiliates, officers, directors, personnel and agents from and against any and all liability, claims, suits, actions, losses, costs or expenses including (without limitation) reasonable attorneys' fees relating to or arising out of any claim or demand (a) for any Taxes or related penalties and interest, (b) due to Buyer's breach of the Order Acknowledgement; (c) that Buyer's customers or a third party may make against Seller based upon or arising from damage due to the acts and/or omissions of Buyer or due to the installation of the goods; (d) for infringement or misappropriation of a third party's intellectual property rights based upon Seller's incorporation of any designs, formulas or specifications in any goods where such designs, formulas or specifications have been specifically ordered or requested by Buyer. To the maximum extent allowable under applicable law and excluding those liabilities that by law Seller cannot limit
