Product Terms and Conditions

Terms and Conditions of Sale

Please notify United Safety and Survivability Corp., on behalf of itself and its affiliates and subsidiaries (“Seller“) immediately in the event of any errors in the quote, order acknowledgement, order confirmation, invoice, or other written confirmation issued by Seller with respect to the products and services to be supplied by Seller (the “Acknowledgement“). If Seller does not receive written notice of any such error within two (2) business days of the date of the Acknowledgement, then the Acknowledgement, including these terms and conditions, any jurisdiction rider issued by Seller, any applicable product-specific limited warranty issued or made available by Seller, and any other written document issued by Seller that expressly incorporates these terms and conditions, (collectively, this “Agreement“) shall be deemed correct and complete and accepted by the buyer of the products and services set forth on the Acknowledgement (“Buyer“) and shall reflect the entire agreement between Buyer and Seller with respect to the subject matter herein.

1. Acceptance. The terms and conditions set forth in this Agreement shall exclusively govern the transaction between Buyer and Seller. Seller’s acceptance of Buyer’s order for the products and services covered by the Acknowledgement, including any goods, equipment, components, parts, materials, software, firmware, documentation, services, and other items sold, licensed, supplied, or otherwise made available by Seller to Buyer (collectively, the “Products“), is expressly conditioned upon Buyer’s agreement that this Agreement constitutes the sole terms and conditions with respect to the sale and purchase of the Products. All agreements predating this Agreement and relating to the sale and purchase of the Products, including, without limitation, those covering credit terms, freight allowances, and waivers of any other standard charges, are hereby declared void, other than any written agreement signed by an authorized representative of Seller that expressly states that it governs the sale of the Product. No course of dealing, usage of trade, course of performance, order verification report, purchase order, vendor manual, procurement portal, website terms, shipping instruction, or any other communication between Buyer and Seller is relevant to explain, supplement, or amend any terms of this Agreement. Any terms or conditions contained in Buyer’s purchase order, acknowledgement, portal, website, procurement system, vendor manual, shipping instruction, request for quotation, or other communication that are additional to, different from, or inconsistent with this Agreement are rejected and shall be void and of no effect, whether or not Seller objects to such terms. Seller’s fulfillment of an order, shipment of Products, issuance of an invoice, or other performance shall not constitute acceptance of Buyer’s terms. This Agreement, including, without limitation, the specifications for the Products, shall not be amended, modified, canceled, rescinded, or discharged except in a writing signed by Seller. Buyer shall note on the face of each order for products and services or any other form of order verification submitted to Seller that the terms of this Agreement control; provided, however, if Buyer fails to include any such notation, the parties hereby agree that the terms and conditions of this Agreement shall still control. All orders are subject to acceptance by Seller. Seller may accept or reject any order in its sole discretion. No order shall be binding on Seller unless and until Seller issues an Acknowledgment or otherwise commences performance. Seller may accept orders in whole or in part and may make partial shipments. Each shipment may be separately invoiced and shall be separately payable.
2. Governing Law. This Agreement shall be interpreted and enforced in accordance with the laws of the Commonwealth of Pennsylvania, U.S.A., without regard to conflict-of-laws rules or principles, except to the extent a written jurisdiction rider or Acknowledgement signed or issued by Seller expressly provides otherwise. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Subject to Section 3 (Arbitration) and except as otherwise expressly provided in a written jurisdiction rider or Acknowledgment signed or issued by Seller, Buyer and Seller consent to the exclusive jurisdiction and venue of the state and federal courts located in or having jurisdiction over Chester County, Pennsylvania, U.S.A., in any and all actions and proceedings arising out of or relating to this Agreement, any order, the Products, or the parties’ relationship. Buyer and Seller waive the right to object to such venue or forum as improper or inconvenient and waive any objection based on lack of personal jurisdiction or forum non conveniens.
3. Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules. The number of arbitrators shall be one (1). The place of arbitration shall be New York, New York, USA. The language(s) of the arbitration shall be English. Judgment on the arbitral award may be entered and enforced in any court of competent jurisdiction. Notwithstanding the foregoing, Seller may seek temporary, preliminary, or permanent injunctive relief, specific performance, collection of amounts due, repossession of Products, protection of intellectual property or confidential information, or enforcement of any judgment or arbitral award in any court of competent jurisdiction. Buyer and Seller further consent to service of process by certified mail, return receipt requested, internationally recognized courier, or any other method permitted by applicable law, to their respective addresses. ALL DISPUTES SHALL BE RESOLVED ON AN INDIVIDUAL BASIS ONLY. BUYER AND SELLER EACH WAIVE ANY RIGHT TO COMMENCE, JOIN, OR PARTICIPATE IN ANY CLASS, COLLECTIVE, CONSOLIDATED, OR REPRESENTATIVE PROCEEDING, AND NO ARBITRATOR SHALL HAVE AUTHORITY TO CONSOLIDATE CLAIMS OR TO PRESIDE OVER ANY CLASS OR REPRESENTATIVE PROCEEDING WITHOUT SELLER’S PRIOR WRITTEN CONSENT. EACH PARTY KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO TRIAL BY JURY.
4. Payment Terms. Buyer shall pay invoices issued by Seller to Buyer within thirty (30) days of the date of invoice unless Seller expressly agrees to different payment terms in writing. Buyer’s payments shall be made in the currency specified in the applicable invoice and in immediately available funds. Buyer shall pay all amounts due in full, without setoff, deduction, counterclaim, chargeback, recoupment, or withholding of any kind, except to the extent expressly required by applicable law. If Buyer is required by law to deduct or withhold any amount from payment, Buyer shall increase the payment so that Seller receives the full amount Seller would have received absent such deduction or withholding. Buyer agrees to pay all costs and expenses, including reasonable attorneys’ fees, court costs, collection agency fees, and other enforcement costs, incurred by Seller in the collection of any sum payable by Buyer to Seller. Overdue payments accrue interest at the greater of one and a half percent (1.5%) per month or the maximum interest rate permitted by applicable law from the due date until the date of payment in full. If, in Seller’s opinion, Buyer’s credit becomes impaired, Buyer fails to pay any amount when due, or Buyer otherwise creates insecurity regarding performance, Seller may suspend performance, stop shipment, withhold delivery, cancel orders, require payment in advance, require adequate assurance of performance, require letters of credit or other security, and/or require different payment terms, until such time as Seller receives assurances acceptable to Seller of Buyer’s ability to pay Seller’s invoices in accordance with this Agreement. Further, Seller has no obligation to continue production or to make any shipment if Buyer is overdue on any payments to Seller, whether under this Agreement or otherwise. If Seller suspends performance and later proceeds with such order, Seller is entitled to such extension of time for performance as is necessitated by the suspension.
5. Prices. The purchase price for the Products is as stated on the face of the Acknowledgement; provided, however, that if Seller announces a general price increase, the purchase price may be revised to include such price increase. Seller may, at its sole discretion, add a surcharge to the price of goods predicated upon increases in the cost of raw materials, components, labor, energy, transportation, tariffs, duties, currency fluctuations, regulatory costs, supply chain constraints, or other cost increases. Such surcharges may be adjusted periodically to reflect a change in such costs.
6. Taxes and Tariffs. Applicable federal, state, provincial, local, value-added, goods and services, sales, use, excise, withholding, import, export, customs, tariff, duty, and other taxes, assessments, charges, and fees in effect from time to time in connection with the sale, purchase, import, export, delivery, resale, use, or disposition of the Products, other than taxes imposed on Seller’s net income (collectively, “Taxes“), are not included in the price and are the sole responsibility of Buyer. If Seller is required by applicable law to collect Taxes, Seller will endeavor to add such Taxes to Seller’s invoices for the Products unless, with respect to Taxes due to a particular taxing authority, Buyer provides Seller with a valid tax exemption certificate indicating that the sale of the Products is not subject to such taxation or collection by Seller. Failure of Seller to add any Taxes to an invoice shall not relieve Buyer of its obligation to pay Taxes.
7. Delivery Terms. The delivery dates set forth in the Acknowledgement constitute estimates only and are not firm or binding commitments. Seller is entitled to make partial shipments. Failure to deliver on any estimated delivery dates shall not constitute a breach or violation of this Agreement, shall not entitle Buyer to any right, reimbursement, indemnification, payment, cover, chargeback, or other accommodation from Seller, and shall not be cause for cancellation by Buyer or claims for damages, charges, or liability of any kind whatsoever, including, without limitation, consequential damages, against Seller. Unless Seller expressly agrees otherwise in writing, Seller shall deliver the Products FCA Seller’s facility or other Seller-designated shipping point, Incoterms 2020, with all shipping, insurance, export packing, loading after delivery to the carrier, transportation, customs clearance, import clearance, duties, tariffs, taxes, brokerage charges, and other transportation-related costs being borne by Buyer and, where prepaid by Seller, being included in the invoice for the Products shipped. Incoterms shall govern delivery obligations and risk of loss only. Incoterms shall not govern title, payment, warranty, acceptance, remedies, intellectual property, compliance, indemnity, limitation of liability, or any other rights or obligations unless Seller expressly agrees otherwise in writing. All risk of loss or damage with respect to the Products shall pass to and be borne by Buyer upon delivery of the Products by Seller to the carrier, whether or not title has then passed. Title to the Products shall pass only as, and at the time, provided in Section 13, and nothing in this Section 7 shall be construed to pass title earlier than provided in Section 13.
8. Inspection. Buyer shall inspect the Products promptly upon receipt. The Products shall be deemed accepted unless Buyer gives Seller written notice specifying any visible damage, shortage, or nonconformity within five (5) business days after delivery. Buyer waives all claims for visible damage, shortages, or nonconformities not timely reported. Buyer may not reject Products for minor, immaterial, or commercially reasonable variations. Use, installation, modification, integration, resale, further shipment, or failure to preserve Products in substantially the condition received constitutes acceptance. No rejection, return, or claim shall relieve Buyer of its obligation to pay amounts due unless Seller expressly agrees otherwise in writing.
9. Cancellation and Changes. Buyer may cancel or change an order only with Seller’s prior written consent, which Seller may withhold in its sole discretion. Buyer may request cancellation or changes only if production, procurement, customization, configuration, modification, or other performance with respect to the Products has not started. As soon as production, procurement, customization, configuration, modification, or other performance with respect to the Products begins, Buyer is responsible for accepting delivery and making payment according to the terms of this Agreement. Any approved cancellation, rescheduling, or change shall be subject to payment by Buyer of all costs, expenses, work in process, finished goods, raw materials, components, supplier charges, restocking charges, cancellation charges, administrative charges, and lost profits, as determined by Seller. Buyer acknowledges that Seller’s actual loss arising from a cancellation, rescheduling or change would be difficult or impracticable to determine, that the amounts payable under this Section represent a reasonable pre-estimate of that loss, and that such amounts are not a penalty. Buyer acknowledges that the Products may be specifically manufactured, configured, modified, or procured for Buyer and, therefore, this Agreement and the applicable order are not cancelable by Buyer except as expressly approved by Seller in writing.
10. Product-Specific Warranties. Certain Products may be subject to product-specific limited warranties, made available by Seller at www.usscgroup.com/product-warranty (the “Warranty Terms“) or otherwise provided by Seller in writing, including in an Acknowledgement, quotation, warranty statement, product documentation, or other written warranty materials issued or provided by Seller. Any such product-specific limited warranty, if applicable, shall apply only to the Product expressly identified by Seller as covered by that warranty and shall be subject to all limitations, exclusions, procedures, and conditions stated in such warranty and in this Agreement. If no product-specific limited warranty is identified by Seller for a Product, Seller provides such Product to Buyer “AS IS,” “WITH ALL FAULTS,” AND WITHOUT WARRANTY OF ANY KIND, INCLUDING WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING, COURSE OF PERFORMANCE, OR USAGE OF TRADE, BUT EXCLUDING TITLE. The applicable product-specific limited warranty, if any, is the sole and exclusive warranty applicable to the relevant Product. No distributor, dealer, reseller, representative, employee, agent, customer, or other person is authorized to modify, expand, or create any warranty or other obligation on behalf of Seller unless expressly agreed in a writing signed by Seller. For any product-specific limited warranty made available online, the applicable warranty shall be the version identified by Seller for the applicable Product as of the date of Seller’s Acknowledgement, unless Seller expressly states otherwise in writing. Seller may update, modify, replace, or discontinue online warranty terms from time to time; provided that any such update shall not expand Seller’s obligations with respect to Products already sold unless expressly agreed by Seller in writing. In the event of a conflict between this Agreement and an applicable product-specific limited warranty issued or provided by Seller, the product-specific limited warranty shall control solely with respect to the duration, scope, conditions, exclusions, and remedy for the applicable Product warranty. In all other respects, including payment, delivery, acceptance, indemnity, limitation of liability, governing law, dispute resolution, compliance, and remedies, this Agreement shall control unless expressly stated otherwise in a writing signed by Seller.
11. Exclusive Warranty Remedy. Buyer’s sole and exclusive remedy, and Seller’s sole and exclusive obligation, for any breach of an applicable product-specific limited warranty shall be, at Seller’s option, repair, replacement, or credit of the purchase price paid for the nonconforming Product. Seller shall have no obligation for labor, removal, reinstallation, transportation, shipping, access, diagnostic, testing, downtime, loss of use, cover, substitute goods, recall, retrofit, field action, service campaign, customer notification, regulatory filing, or other costs unless expressly agreed by Seller in writing. Warranty claims must be submitted in accordance with Seller’s then-applicable Warranty Terms, including any return material authorization procedures. Unless an applicable product-specific limited warranty expressly states otherwise, Seller’s warranty shall not apply to any defect, failure, damage, injury, nonconformity, or claim arising out of or relating to: (i) installation, integration, configuration, maintenance, repair, service, alteration, modification, storage, handling, transportation, or use by anyone other than Seller; (ii) misuse, abuse, neglect, accident, vandalism, improper operation, improper maintenance, or normal wear and tear; (iii) use outside Seller’s specifications, instructions, documentation, or intended applications; (iv) use with products, components, vehicles, systems, software, firmware, or materials not supplied or approved by Seller; (v) Buyer’s specifications, designs, drawings, instructions, samples, requirements, or other Buyer-supplied information; (vi) unauthorized repairs, modifications, or replacement parts; (vii) environmental conditions, contamination, corrosion, chemicals, fire, water, weather, electrical issues, power surges, or other external causes; (viii) failure to comply with applicable law, regulatory requirements, industry standards, or Seller instructions; (ix) prototype, sample, demonstration, evaluation, pre-production, used, refurbished, or experimental Products, unless Seller expressly states otherwise in writing; or (x) third-party products, for which Seller’s obligation, if any, is limited to passing through any assignable third-party manufacturer warranty.
12. Returns. Buyer may not return any Product without Seller’s prior written return material authorization. Unauthorized returns may be rejected, returned to Buyer, stored, or disposed of at Buyer’s risk and expense. Issuance of a return authorization does not constitute acceptance of liability or admission that the Product is defective, nonconforming, or covered by warranty. Buyer shall be responsible for all packing, shipping, insurance, and transportation costs for returned Products unless Seller expressly agrees otherwise in writing.
13. Title and Security Interest. Title to Products shall pass to Buyer only upon Seller’s receipt of full payment for the applicable Products, except to the extent applicable law requires title to pass earlier. Risk of loss shall pass as provided in Section 7 regardless of whether title has passed. To the fullest extent permitted by applicable law, title to Products shall remain with Seller until Seller receives full payment of all amounts due for the Products. Until title passes, Buyer shall hold the Products as Seller’s fiduciary or bailee to the extent permitted by applicable law, shall keep the Products separate, identifiable, properly stored, protected, insured, and free from liens, and shall not pledge, encumber, or grant any interest in the Products to any third party. To the extent title passes before full payment, Buyer grants Seller a first-priority purchase-money security interest, lien, charge, pledge, retention-of-title right, or equivalent security right in the Products and all proceeds thereof under Article 9 of the Uniform Commercial Code as in effect in the Commonwealth of Pennsylvania and under any equivalent law of any applicable jurisdiction. Buyer shall execute, deliver, file, register, notarize, legalize, and record all documents, and take all other actions reasonably requested by Seller, to create, perfect, register, preserve, or enforce Seller’s title, security interest, retention-of-title rights, lien, charge, pledge, or equivalent rights in any applicable jurisdiction. Buyer irrevocably authorizes Seller, to the fullest extent permitted by applicable law, to file, register, or record any financing statement, notice, registration, amendment, continuation, or similar document necessary or desirable to perfect, preserve, or enforce Seller’s rights in the Products or proceeds. Upon Buyer’s default, Seller may, to the fullest extent permitted by applicable law and without limiting any other remedy, enter any premises where the Products are located, repossess the Products, stop Products in transit, require Buyer to assemble and make the Products available to Seller, and sell, lease, license, or otherwise dispose of the Products. Buyer shall reimburse Seller for all costs and expenses incurred in connection with enforcement, repossession, storage, transportation, resale, and collection, including attorneys’ fees.
14. Export Controls. Buyer shall comply with all applicable laws relating to the purchase, import, export, reexport, transfer, resale, installation, use, maintenance, service, and disposal of Products, including export control, sanctions, customs, anti-bribery, anti-corruption, anti-boycott, forced labor, human trafficking, product safety, data, environmental, and trade compliance laws. Buyer shall not export, reexport, transfer, resell, divert, or use any Product in violation of applicable law or to or for any sanctioned, blocked, denied, restricted, or prohibited party, destination, or end use. Buyer represents that neither Buyer nor, to Buyer’s knowledge, its owners, directors, officers, affiliates, customers, or end users are sanctioned, blocked, denied, restricted, or prohibited parties. Buyer is solely responsible for obtaining all import permits, export permits, licenses, approvals, registrations, certifications, customs clearances, governmental authorizations, and destination-country approvals required for the Products or Buyer’s intended use, installation, resale, distribution, or application. Buyer shall defend, indemnify, and hold harmless Seller from and against all claims, penalties, fines, losses, damages, liabilities, costs, and expenses, including attorneys’ fees, arising out of or relating to Buyer’s breach of this Section 14.
15. Product Suitability. Buyer is solely responsible for determining whether the Products are suitable and lawful for Buyer’s intended use, application, installation, integration, market, destination country, end user, and operating environment. Buyer is solely responsible for obtaining and maintaining all permits, approvals, registrations, certifications, inspections, licenses, and authorizations required for the import, installation, sale, resale, distribution, use, maintenance, service, or disposal of Products, except to the extent Seller expressly agrees otherwise in writing. Seller makes no representation or warranty that Products comply with laws, standards, approvals, certifications, or requirements applicable to Buyer’s destination country, customer, end user, installation, vehicle, system, or application unless Seller expressly states otherwise in a writing signed by Seller.
16. Recalls. Buyer shall promptly notify Seller of any accident, injury, death, property damage, alleged defect, failure, malfunction, noncompliance, regulatory inquiry, recall, field action, service campaign, customer complaint, claim, or other safety-related issue involving Products. Buyer shall preserve all relevant evidence and cooperate with Seller’s investigation. Buyer shall not initiate any recall, retrofit, field action, service campaign, customer notification, regulatory filing, public statement, or similar action relating to Products without Seller’s prior written consent, except to the extent required by applicable law. Buyer shall bear all costs of any recall, retrofit, field action, service campaign, customer notification, regulatory filing, or similar action to the extent arising out of or relating to Buyer’s specifications, installation, integration, modification, maintenance, resale, use, failure to warn, failure to train, or failure to comply with Seller’s instructions or applicable law.
17. Intellectual Property. All intellectual property, designs, drawings, specifications, technical data, software, firmware, documentation, know-how, tooling, molds, dies, fixtures, processes, methods, improvements, and other proprietary materials developed, owned, used, or supplied by Seller are and shall remain Seller’s exclusive property. Buyer receives no license or rights except the limited right to use Products as sold. Buyer shall not copy, reverse engineer, modify, disassemble, decompile, disclose, or use Seller’s confidential or proprietary information except as expressly authorized by Seller in writing. Unless Seller expressly agrees otherwise in writing, Seller retains all rights in and to any tooling, molds, dies, fixtures, drawings, designs, or technical materials used to manufacture Products, even if Buyer pays or reimburses Seller for some or all of the cost.
18. Confidentiality. Each party shall keep confidential and shall not disclose to any third party or use for any purpose other than performance of this Agreement, all non-public information disclosed by the other party, including pricing, quotations, specifications, drawings, technical data, test results, software, firmware, tooling, know-how, business plans, and customer information (“Confidential Information“). Confidential Information does not include information that is or becomes publicly available other than through breach of this Section 18, was rightfully known to the receiving party free of any obligation of confidence before disclosure, is rightfully received from a third party without restriction, or is independently developed without use of or reference to the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information to the extent required by applicable law, regulation, or court or governmental order, provided that, to the extent legally permitted, it first gives the disclosing party prompt written notice and reasonable assistance to seek protective treatment. Buyer shall not reverse engineer, disassemble, decompile, benchmark, or analyze any Product or Confidential Information, or permit any third party to do so. No license, title, or other right is granted by any disclosure of Confidential Information. Upon Seller’s request, Buyer shall promptly return or destroy all Confidential Information and certify such destruction in writing. The obligations in this Section 18 shall continue for five (5) years after the date of disclosure and, with respect to any information constituting a trade secret under applicable law, for so long as such information remains a trade secret. Buyer acknowledges that a breach of this Section would cause irreparable harm for which monetary damages would be an inadequate remedy, and that Seller shall be entitled to seek injunctive relief and specific performance, without posting bond or proving actual damages, in addition to all other remedies available at law or in equity.
19. Buyer Indemnity. To the fullest extent permitted by law, Buyer shall defend, indemnify, and hold harmless Seller and its directors, officers, employees, agents, representatives, successors, and assigns from and against any and all third-party claims, actions, demands, costs, suits and judgments, liens, penalties, liabilities, damages, losses, and expenses, including without limitation attorneys’ fees and costs of collection (collectively, “Claims“), arising out of, or resulting from, damage or injury, arising from or related to any of the following: (i) any breach or violation of this Agreement; (ii) the sale, resale, distribution, installation, integration, maintenance, service, operation, failure, or use of any of the Products covered by this Agreement and/or any other products sold by Seller to Buyer; (iii) Buyer’s specifications, designs, drawings, instructions, requirements, or other Buyer-supplied information; (iv) the willful misconduct, negligence, or omissions of Buyer or any of its employees, officers, directors, representatives, contractors, agents, distributors, resellers, dealers, integrators, customers, or end users; (v) the use, installation, integration, maintenance, repair, alteration, modification, storage, handling, transportation, or servicing of Products in a manner that is not in full compliance with Seller’s specifications, instructions, documentation, and user manual; (vi) the use of Seller’s Products by a party other than Buyer; (vii) combination of Products with vehicles, systems, components, software, firmware, materials, or products not supplied by Seller; (viii) Buyer’s failure to warn, train, inspect, maintain, service, or comply with Seller instructions or applicable law; (ix) any violation of applicable law by Buyer or its customers, contractors, agents, employees, representatives, distributors, resellers, dealers, integrators, or end users; or (x) any act, omission, illness, disease, condition, exposure, or circumstance to which any of Buyer’s employees, contractors, representatives, agents, customers, passengers, riders, or end users does, fails to do, carries, communicates, or to which such person is subject or is in any way affected by, including, without limitation, any Claim related to any illness, pandemic, disease, including, without limitation, COVID-19 or any strain or mutation thereof, or any side effect of, or injury resulting from, the foregoing or the treatment thereof.
20. Seller Indemnity. Seller does not provide any form of indemnification to Buyer unless expressly agreed in a writing signed by Seller. In no event shall Seller be responsible to indemnify, defend, or hold Buyer harmless from any Claims arising with respect to the sale, resale, maintenance, operation, installation, integration, failure, or use of any of the Products. The indemnification obligations set forth in this Agreement with respect to any Claim shall survive termination or expiration of this Agreement. In no event shall Seller have any indemnification or other liability for a Claim if notice of such Claim is provided more than thirty (30) days after Buyer becomes aware, or reasonably should have become aware, of the facts and circumstances underlying such Claim.
21. Default. Buyer shall be in default under this Agreement upon: (i) default by Buyer on payment of any installment, invoice, bill, or any other indebtedness or obligation now or hereafter owed by Buyer to Seller; (ii) default by Buyer in the performance of any obligation, covenant, or liability contained in this Agreement or any other agreement or document between Buyer and Seller; (iii) any inaccuracy with respect to any warranty, representation, certification, statement, or information made or furnished by Buyer; (iv) dissolution, termination of existence, insolvency, business failure, or discontinuance of Buyer’s business or the appointment of a receiver for any part of the property of, or assignment for the benefit of creditors by, Buyer or the commencement of any proceedings under any bankruptcy, reorganization, liquidation, or arrangement laws by or against Buyer or the attachment, levy, seizure, or garnishment of any of Buyer’s property, rights, assets, contingent or otherwise, including, without limitation, the Products; (v) any change in control of the ownership or management of Buyer, unless prior to the occurrence of such change of control Seller shall have been notified in writing and Buyer shall have obtained Seller’s prior written approval to such change in control; or (vi) any other event that causes Seller, in its reasonable judgment, to believe Buyer’s performance, credit, or payment is insecure. In the event of default by Buyer, Seller may, without liability and in addition to all other rights and remedies, suspend performance, stop goods in transit, cancel any order, accelerate all amounts due, require cash in advance, require adequate assurance of performance, reclaim or repossess Products, retain deposits, resell Products, and recover all costs, fees, and expenses, including, without limitation, cancellation charges, price, lost profits, attorney fees, court costs and fees, collection costs, and other enforcement costs. Seller’s rights and remedies are cumulative and not exclusive.
22. Limitation of Liability. Buyer and Seller acknowledge that the following provisions have been negotiated by them, reflect a fair allocation of risk, and such allocation is reflected in the fees payable under this Agreement: TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SELLER’S LIABILITY, IN THE AGGREGATE, FOR DAMAGES ARISING OUT OF OR RELATING TO THE USE OF THE PRODUCTS, THIS AGREEMENT, ANY ORDER, ANY PRODUCT, OR THE PARTIES’ RELATIONSHIP, WHETHER IN TORT, CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, STATUTE, INDEMNITY, OR OTHERWISE, TO BUYER OR ANY OTHER PERSON OR ENTITY EXCEED THE AMOUNT ACTUALLY PAID BY BUYER TO SELLER FOR THE SPECIFIC PRODUCT GIVING RISE TO THE CLAIM. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, ENHANCED, OR SIMILAR DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF GOODWILL, LOSS OF USE, DOWNTIME, WORK STOPPAGE, COVER, SUBSTITUTE GOODS, REMOVAL, REINSTALLATION, FIELD ACTION, RECALL, RETROFIT, SERVICE CAMPAIGN, CUSTOMER NOTIFICATION, BUSINESS INTERRUPTION, OR ANY AND ALL OTHER COMMERCIAL DAMAGES OR LOSSES, WHETHER DIRECTLY OR INDIRECTLY CAUSED, WHETHER IN TORT, CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, STATUTE, INDEMNITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. The limitations and exclusions in this Section 22 apply even if any limited remedy fails of its essential purpose. No claim, action, or proceeding arising out of or relating to this Agreement, any order, any Product, or the parties’ relationship may be brought against Seller unless Buyer gives Seller written notice within thirty (30) days after Buyer knew or should have known of the facts giving rise to the claim and, in any event, unless the claim is commenced within one (1) year after delivery of the applicable Product; provided that claims for breach of a product-specific limited warranty are instead subject to the claim period specified in the applicable Warranty Terms. The limitations and exclusions in this Section 22 do not apply to, and shall not limit, (i) Buyer’s obligation to pay amounts due under this Agreement, (ii) Buyer’s indemnity obligations under Sections 14 and 19, or (iii) Buyer’s breach of Section 14 (Export Controls), Section 17 (Intellectual Property), or Section 18 (Confidentiality).
23. Force Majeure. If the performance by Seller of any obligation under this Agreement, other than Buyer’s obligation to pay money, is prevented, delayed, or impaired by Force Majeure for any cause beyond Seller’s reasonable control, Seller shall be excused from performance so long as such situation continues to prevent, delay, or impair performance. “Force Majeure” means an event beyond the reasonable control of Seller including, but not limited to, fire, flood, sabotage, shipwreck, embargo, strike, labor dispute, labor shortage, explosion, riot, act of governmental authority, including, without limitation, acts relating to raw material or product allocation, acts of God, acts of war, terrorism, civil unrest, epidemic, pandemic, quarantine, supplier delay or failure, component shortage, material shortage, energy shortage, transportation shortage, port congestion, cyberattack, ransomware, governmental order, tariff, sanction, export restriction, import restriction, regulatory action, or other similar or dissimilar event beyond Seller’s reasonable control. Seller may allocate available production, inventory, materials, components, labor, transportation, and shipments among its customers in any manner Seller deems commercially reasonable. Buyer’s obligation to pay amounts due is not excused by Force Majeure. If a Force Majeure event prevents, delays, or impairs Seller’s performance for a continuous period of more than ninety (90) days, Seller may, in its sole discretion and without liability to Buyer, cancel or terminate the affected order, or any unshipped portion of it, upon written notice to Buyer. In that event Buyer shall pay Seller for all Products delivered and for all work in process, finished goods, raw materials, components, and non-cancelable supplier commitments incurred with respect to the affected order, and Seller’s sole obligation shall be to refund amounts prepaid by Buyer for Products not delivered, net of the foregoing amounts. Seller shall have no liability for any cost of cover, substitute goods, lost profits, or other damages arising out of any delay, suspension, allocation, cancellation, or termination under this Section 23.
24. Relationship of the Parties. Buyer and Seller are independent contractors. Nothing in this Agreement creates any partnership, joint venture, agency, franchise, distributorship, dealership, employment, or fiduciary relationship between the parties, and neither party has any authority to bind the other or to incur any obligation on the other’s behalf.
25. Setoff. Seller may at any time, and without notice, set off, deduct, recoup, or apply any amount owed by Seller or any of its affiliates to Buyer or any of Buyer’s affiliates against any amount owed by Buyer or any of Buyer’s affiliates to Seller or any of its affiliates, whether arising under this Agreement or otherwise, whether liquidated or unliquidated, and whether or not then due. Buyer’s rights of setoff, deduction, counterclaim, recoupment, chargeback, and withholding are governed by Section 4 and are excluded except to the extent expressly required by applicable law.
26. Product Changes and Discontinuation. Seller may at any time, without notice or liability, change the specifications, design, materials, components, suppliers, manufacturing processes, and sources of supply for any Product, provided that no such change materially impairs the form, fit, or function of the Product as described in Seller’s published specifications in effect on the date of the Acknowledgement. Seller may fulfill any order with Products of a later revision level. Seller has no obligation to make any change, upgrade, retrofit, or improvement to Products previously delivered. Seller may discontinue any Product, product line, model, or configuration at any time in its sole discretion. Seller has no obligation to supply spare parts, service parts, components, or replacement Products following discontinuation, except to the extent expressly agreed by Seller in a separate writing signed by an authorized representative of Seller.
27. Assignment. Any assignment of this Agreement, or any rights hereunder, by Buyer without prior written consent of Seller shall be void. Seller may assign this Agreement, any order, or any rights or obligations under this Agreement to any affiliate, successor, purchaser of assets, or financing source. This Agreement is for the exclusive benefit of Buyer and Seller and not for the benefit of, nor does it grant any rights to, any other person, corporation, firm, organization, or entity. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and permitted assigns.
28. Language. This Agreement is drafted in English. If this Agreement or any related document is translated into any language other than English, the English-language version shall control in the event of any conflict, inconsistency, ambiguity, or dispute.
29. Severability. If any term of this Agreement is invalid or unenforceable under any statute, regulation, ordinance, executive order, or other rule of law, such term shall be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with such statute, regulation, ordinance, order, or rule, and the remaining provisions of this Agreement shall remain in full force and effect.
30. Waiver. No waiver by Seller of any breach, default, right, or remedy shall be effective unless in writing signed by Seller. No waiver shall constitute a waiver of any other or subsequent breach, default, right, or remedy. Seller’s failure or delay in exercising any right or remedy shall not operate as a waiver.
31. Survival. All provisions that by their nature should survive shall survive expiration, termination, cancellation, delivery, acceptance, and payment, including provisions relating to payment, taxes, title and security interests, warranty limitations, disclaimers, indemnity, limitation of liability, confidentiality, intellectual property, compliance, governing law, forum, dispute resolution, claim limitations, and remedies.
32. Counterparts and Electronic Signatures. This Agreement may be executed in any number of separate counterparts, each of which shall be deemed to be an original, but which together shall constitute one and the same instrument. Electronic signatures, electronic acceptance, and electronically transmitted signatures shall have the same legal effect as original signatures.