9. SELLER’S LIMITED WARRANTY Seller warrants to Buyer that upon delivery to buyer the
Products purchased hereunder shall conform to the applicable manufacturers specifications
for such Products and that any value-added work performed by Seller on such Products shall
conform to applicable Buyers specifications relating to such work. Seller makes no other
warranty, express or implied, with respect to the Products. IN PARTICULAR, SELLER
MAKES NO WARRANTY RESPECTING THE MERCHANTABILITY OF THE PRODUCTS OR
THEIR SUITABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE OR USE OR
RESPECTING INFRINGEMENT. With respect to Products which do not meet applicable
manufacturers specifications and with respect to value-added work by Seller which does not
meet applicable Buyers specifications. Sellers liability is limited at Sellers election, to (1)
refund of Buyers purchase price for such Products (without interest), (2) Repair of such
products, or (3) replacement of such Products, provided, however, that such Products must be
returned to Seller, along with acceptable evidence of purchase, within thirty (30) days from
date of delivery, transportation charges prepaid. Seller shall transfer to Buyer whatever
transferable warranties and indemnities Seller receives from the manufacturer of the Products,
including any transferable warranties and indemnities respecting patent infringement.
10. LIMITATIONS OF LIABILITIES BUYER SHALL NOT IN ANY EVENT BE ENTITLED TO,
AND SELLER SHALL NOT BE LIABLE FOR INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES OF ANY NATURE INCLUDING, WITHOUT LIMITATION,
BUSINESS INTERRUPTION COSTS, REMOVAL AND/OR REINSTALLATION COSTS,
REPROCUREMENT COSTS, LOSS OF PROFIT OR REVENUE, LOSS OF DATA,
PROMOTIONAL OR MANUFACTURING EXPENSES, OVERHEAD, INJURY TO
REPUTATION OR LOSS OF CUSTOMERS, EVEN IF SELL HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. BUYERS RECOVERY FROM SELLER FOR ANY
CLAIM SHALL NOT EXCEED BUYERS PURCHASE PRICE FOR THE PRODUCT GIVING
RISE TO SUCH CLAIM IRRESPECTIVE OF THE NATURE OF THE CLAIM, WHETHER IN
CONTRACT, TORT, WARRANTY, OR OTHERWISE. SELLER SHALL NOT BE LIABLE FOR
AND BUYER SHALL INDEMNIFY, DEFEND AND HOLD SELLER HARMLESS FROM ANY
CLAIMS BASED ON SELLERS COMPLIANCE WITH BUYERS DESIGNS,
SPECIFICATIONS OR INSTRUCTIONS, OR MODIFICATION OF ANY PRODUCTS BY
PARTIES OTHER THAN SELLER, OR USE IN COMBINATION WITH OTHER PRODUCTS.
11. USE OF PRODUCTS IN LIFE SUPPORT, NUCLEAR AND CERTAIN OTHER
APPLICATIONS Products sold by Seller are not designed, intended or authorized for use in
life support, life sustaining, nuclear, or other applications in which the failure of such Products
could reasonably be expected to result in personal injury, loss of life or catastrophic property
damage, If Buyer uses or sells the Products for use in any such applications(1) Buyer
acknowledges that such use or sale is at Buyers sole risk. (2) Buyer agrees that Seller and the
manufacturer of the Products are not liable, in whole or in part, for any claim or damage
arising from such use; and (3) Buyer agrees to indemnify, defend and hold Seller and the
manufacturer of the Products harmless from and against any and all claims, damages, losses,
costs, expenses and liabilities arising out of or in connection with such use or sale.
12. EXPORT CONTROL The sale, resale or other disposition of Products and any related
technology or documentation are subject to the export control laws, regulations and orders of
the United States and may be subject to the export and/or import control laws and regulations
of other countries. Buyer agrees to comply with all such laws, regulations and orders and
acknowledges that it shall not directly or indirectly export any Products to any country to which
such export or transmission is restricted or prohibited. Buyer acknowledges its responsibility to
obtain any license to export, re-export or import as may be required.
13. FEDERAL CONTRACTS For products acquired pursuant to Federal Acquisition
Regulations, the following shall be construed to be incorporated herein (1) Equal Opportunity
(E.O. 11246); (2) Affirmative Action for Special Disabled and Viet Nam era Veterans (38
U.S.C. 2012(a)); and (3) Affirmative Action for Handicapped Workers (29 U.S.C. 793). No
other Federal Acquisition Regulations shall be construed to apply to Seller without Sellers
written agreement thereto.
14. PATENT INFRINGEMENT INDEMNIFICATION
1. Seller will (i) defend Buyer against any action or claim brought by a third party against Buyer to the extent that it is based upon any claim that any of the Products, each in the same form as provided by Seller to Buyer under this Purchase Order, infringe any U.S. patent rights, copyright rights, or other intellectual property rights in the United States, or incorporates any misappropriated trade secrets (“Claim”), and (ii) indemnify Buyer against any liabilities, costs, damages, and expenses, including reasonable attorneys’ fees, attributable to such Claim, provided that Buyer (i) promptly notifies Seller in writing of the Claim; (ii) allows Seller to exclusively control the defense and settlement of the Claim; and (iii) provides Seller with all assistance, information, and authority reasonably requested for the defense and settlement of the Claim. Buyer may retain its own counsel, at its own expense, to monitor the defense and settlement of the Claim. Notwithstanding anything to the contrary, Seller shall not be responsible for any liabilities, costs, damages, and expenses, including reasonable attorneys’ fees, or settlement incurred without its prior written consent.
2. Seller will have no obligations, responsibilities, or liabilities under this Section or otherwise, and Buyer will indemnify Seller and hold Seller harmless from any Claim, if (i) the infringement is caused by the combination of any of the Products, with or use in combination with, any products, services, content, or other subject matter that is not part of the Products in the form provided by Seller, where such infringement would not have arisen but for such combination, (ii) the infringement is caused by the use, offer for sale or sale of other than the current version of the Products if the current version would be non-infringing, provided that such current version had been provided prior to such infringement arising; (iii) the infringement is willful; or (iv) the infringement results from any marketing, distribution, sale, or use outside the United States.
15. GENERAL As used herein, terms appearing in the singular shall include the plural and
terms appearing in the plural shall include the singular. No rights, duties, agreements or
obligations hereunder may be assigned or transferred by either party, by operation of law,
merger or otherwise, without the prior written consent of the other. Any attempted or purported
assignment shall be void. Notwithstanding the foregoing, Sellers obligations under these
Terms and Conditions may be performed by divisions, subsidiaries or affiliates of Seller. The
obligations rights, terms and conditions hereof shall be binding on the parties hereto and their
respective successors and assigns. The waiver of any provision hereof or of any breach or
default hereunder shall not be deemed a waiver of any other provision hereof or breach or
default hereunder. Any provision hereof which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or
unenforceability without invalidating the remaining provisions hereof in that jurisdiction or
affecting the validity or enforceability of such provision in any other jurisdiction. These Terms
and Conditions shall be governed by and construed in accordance with the laws of the State
of Illinois excluding any law or principle which would apply the law of any other jurisdiction.
The United Nations Convention for the International Sale of Goods shall not apply.
Made in U.S.A.