TERMS AND CONDITIONS OF SALE
MOMi Terms and Conditions of Sale
The sale of any services and products ordered by the Customer is expressly conditioned upon the terms and conditions contained or referred to herein. Any additional or different terms and conditions set forth in the Customer’s purchase order or similar communication are objected to and will not be binding upon Manufacturing Operations Management Institute LLC (herein called MOMi) unless specifically assented to in writing by MOMi authorized representative. Authorization by the Customer, whether written or oral, to furnish services and incidental products will constitute acceptance of these terms and conditions.
1.1. MOMi warrants to the Customer that MOMi products and services sold will be free from defects in material, workmanship and title and will conform to any mutually agreed upon specifications. If any failure to meet this warranty (excluding any defects in title) appears within one (1) year from the data of shipment of the products or ninety (90) days from completion of the services, as applicable, MOMi will correct any such failure by re-performing any defective portion of the services furnished, and, with respect to products, at its, (i) by repairing any defective or damaged part or parts of the products, or (ii) by making available, F.O.B. Customer’s plant or other point of shipment, any necessary repaired or replacement parts. If re-performance is not practicable, MOMi will furnish without charge services in an amount essentially equal to those which, in MOMi’s sole judgment, would have been required for re-performance.
The warranties and remedies set forth herein are conditioned upon: (i) proper storage, installation, use and maintenance, and conformance with any applicable recommendations of MOMi; and (ii) Customer promptly notifying MOMi of any defects and, if required, promptly making the product available for correction.
1.2. MOMi warrants non-MOMi manufactured products only to the extent that the manufacturer’s warranty allows MOMi to transfer such manufacturer’s warranty to Customer. MOMi will pass through to Customer any such warranties. Customer’s sole remedy for breach of such warranty shall be the remedy offered by and available from the manufacturer, if any. MOMi shall have no liability, whether in contract, tort, negligence, or otherwise, to Customer with respect to non-MOMi manufactured products.
1.3. The preceding paragraphs set forth the exclusive remedy for all claims (except as to title) based on failure of, or defect in, products or services sold hereunder, whether the failure or defect arises before or during the warranty period, and whether a claim, however instituted, is based on contract, indemnity, warranty, tort (including negligence), strict liability otherwise. Upon the expiration of the warranty period, all such liability shall terminate. The foregoing warranty is exclusive and is in lieu of all other warranties whether written, oral, implied or statutory. Except as set forth in section 2 below or in any statement of warranties are exclusive and in lieu of all other warranties, whether written, oral, implied or statutory. No implied warranty of merchantability or fitness for particular purpose shall apply. MOMi does not warrant any products or services of others, which customer has designated.
2.1. MOMi warrants that any MOMi products sold hereunder, and any part thereof, shall be free of any rightful claim of any third party for infringement of any patent. If promptly notified in writing and given authority, information and assistance, MOMi shall defend, or may settle, at its expense, any suit or proceeding against the Customer based on a claimed infringement which would result in a breach of this warranty, and MOMi shall pay all damages and costs awarded therein against the Customer due to such breach. In case any products are in such suit held to constitute such an infringement and the use for the purpose intended of said products is enjoined, MOMi shall, at its expense and option, either procure for the Customer the right to continue using said products, or replacing same with non-infringing products, or modify same so they become non-infringing, or remove the products and refund the purchase price (less reasonable depreciation for any period of use) and any transportation costs separately paid by the Customer. The foregoing states the entire liability of MOMi for patent infringement.
2.2. The preceding paragraph shall not apply to any products specified by the Customer and not of MOMi manufacture, or manufactured to the Customer’s design, or to the use of any products furnished hereunder in conjunction with any other products in a combination not furnished by MOMi as part of the transaction. As to any products, or use in such combination, MOMi assumes no liability whatsoever for patent infringement and the Customer will hold MOMi harmless against any infringement claim arising there from.
3. EXCUSABLE DELAYS
3.1. MOMi shall not be liable for delay due to: (i) causes beyond its reasonable control, or (ii) acts of God, acts of the Customer, prerequisite work by others, acts of civil or military authority, government priorities, fires, strikes or other labour disturbances, floods, epidemics, war, riot, delays in transportation or car shortages, or (iii) inability to obtain or delay in obtaining, due to causes beyond its reasonable control, suitable labour, materials, or facilities. In the event of any such delay, the time or performance shall be extended for a period equal to the time lost by reason of the delay.
3.2. In the event MOMi is delayed by acts of the Customer or by prerequisite work by other contractors or suppliers of the Customer, MOMi shall be entitled to an equitable price adjustment in addition to extension of the time of performance.
4. SALES AND SIMILAR TAXES
4.1. In addition to any price specified herein, the Customer shall pay, or reimburse MOMi for, the gross amount of any present or future sales, use, excise, value-added or other similar tax applicable to the price, sale or furnishing of any services or products hereunder, or to their use by MOMi or the Customer, or the Customer shall provide MOMi with evidence of exemption acceptable to the taxing authorities.
5. PAYMENTS AND FINANCIAL CONDITION
5.1. Except to the extent otherwise specified by MOMi in its quotation, pro rata payments shall become due without setoff as shipments are made. If MOMi consents to delay shipments after completion of any products, payment shall become due on the data when MOMi is prepared to make shipment. In the event of any such delay, title shall pass and products shall be held Customer’s risk and expense. Unless otherwise stated in writing, payment terms are net thirty (30) days. All payments shall be made without set-off for claims arising out of other sales by MOMi.
5.2. If the financial condition of the Customer at any time does not, in the judgment of MOMi, justify continued performance on the terms of payment previously agreed upon, MOMi may require full or partial payment in advance or shall be entitled to terminate the contract and receive termination charges. In the event of bankruptcy or insolvency of the Customer or in the event any proceeding is brought against the Customer, voluntarily or involuntarily, under the bankruptcy or insolvency laws, MOMi shall be entitled to terminate the agreement at any time during the period allowed for filing claims against the estate and shall be entitled to payment for its termination charges.
6. LIMITATIONS OF LIABILITY
6.1. MOMi liability on all claims of any kind, whether based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, for all losses or damages arising out of, connected with, or resulting from this agreement, or these terms and conditions, or from the performance or breach thereof, or from any
products or services covered by or furnished under the contract or any extension or expansion thereof (including remedial warranty efforts), shall in no case exceed the contract price of this agreement. Except as to title to any products furnished, all such liability shall terminate upon the expiration of the warranty period specified in section 1 above.
6.2. In no event, whether based on contract, indemnity, warranty, tort (including negligence), strict liability or otherwise, shall MOMi, its employees and suppliers be liable for special, incidental, exemplary or consequential damages including, but not limited to, loss of profits or revenue, loss of use of any property, cost of capital, cost of purchased power, cost of substitute equipment, facilities or services, downtime costs, or claims or customers of the customer for such damages and the customer will indemnify MOMi, its employees and suppliers against any such claims from the customers’ customers. If the products or services being provided by MOMi will be furnished by the customer to a third party by contract or relate to a contract between the customer and a third party, the customer shall obtain from such third party a provision affording MOMi and its suppliers the protection or this and the preceding paragraph 6.1.
6.3. The products to be licensed or sold hereunder are not intended for use in any nuclear, chemical or weapons production facility or activity, or other activity where failure of the products could lead directly to death, personal injury or severe physical or environmental damage. If so used, MOMi disclaims all liability for any damages arising as a result of the hazardous nature of the business in question, including but not limited to nuclear, chemical or environmental damage, injury or contamination, and Customer shall indemnify, hold harmless and defend MOMi, its officers, directors,
employees and agents against all such liability, whether based on contract, warranty, tort (including negligence), or any other legal theory, regardless of whether MOMi had knowledge of the possibility of such damages.
6.4. If MOMi furnishes the Customer with advice or assistance concerning any products or systems which is not required pursuant to the agreement, the furnishing of such advice or assistance will not subject MOMi to any liability, whether in contract, indemnity, warranty, tort (including negligence), strict liability or otherwise.
7.1. Delivery of products will be made F.O.B. at the point of shipment to the Customer.
8.1. MOMi reserves the right to subcontract any of the work to one or more subcontractors.
8.2. The delegation or assignment by Customer of any or all its duties or rights hereunder without MOMi prior written consent shall be void.
8.3. Any information, suggestions or ideas transmitted by the Customer to MOMi, its agents, employees or subcontractors are not to be regarded as secret or submitted in confidence except as may be otherwise provided in a writing signed by a duty authorized representative of MOMi.
8.4. Software furnished shall be provided pursuant to MOMi applicable software license agreement, the terms and conditions of which shall take precedence over these Conditions of Sale with respect to the provision of such software.
9.1. Customer shall not export (or re-export), directly or indirectly, the products supplied hereunder or any portion thereof, without first obtaining MOMi written consent and any required license.
10. COMPLETE AGREEMENT
10.1. This Agreement, along with these terms and conditions and any other terms and conditions or documents referenced in said agreement, contains the complete agreement between the parties, and no modification, amendment, revision, waiver or other change will be binding on MOMi unless assented to in writing by MOMi authorized representative. Any oral or written representation, warranty, course of dealing or trade usage not contained or referenced herein will not be binding on MOMi. The invalidity, in whole or part, of any of the foregoing sections or paragraphs of the contract will not affect the remainder of such article or paragraph or any article or paragraph of the contract.
10.2. This Agreement shall be governed by the laws of The Netherlands, without regard to its conflict of law provisions. The provisions of the United Nations Convention on the International Sale of Goods shall not apply to this Agreement.