General
These terms and conditions of sale ("T&C") shall govern the sale of all products (the "Products") from Mitsubishi Electric Power Products, Inc. ("MEPPI") to the purchaser ("Customer"). These T&C supersede all different or additional terms submitted by Customer, whether in any order, contract or other document, and such different or additional terms and conditions are hereby rejected and shall have no force and effect. The sale of the Products is expressly conditioned upon Customer's assent to these T&C. Customer shall be deemed to have expressly accepted these T&C if Customer expressly so agrees in writing or accepts any shipment of Products subsequent to receipt of these T&C. Failure of MEPPI to object to provisions contained in any order or other writing of Customer shall not be construed as a waiver of these T&C or acceptance of any terms and conditions of Customer. No sales or other independent representative of MEPPI shall have any authority to vary these T&C in any respect or to agree to any different or additional terms and conditions.
Delivery, Risk of Loss and Title
Risk of loss shall pass to the Customer, F.O.B. Shipment Point. Notwithstanding any request by Customer, MEPPI shall, without incurring any liability, exercise its own discretion in selecting the method of shipment and the carrier. MEPPI shall retain title to all Products and parts sold to Customer until fully paid for by Customer. In furtherance of the foregoing, Customer hereby grants to MEPPI a security interest in the Products and parts purchased by Customer from MEPPI and all proceeds thereof to secure the performance of all obligations of whatever kind or nature due by Customer to MEPPI under these T&C. Customer authorizes MEPPI to file such financing statement(s), including any necessary or required amendments thereto, describing the Products and parts as MEPPI shall deem necessary to confirm, perfect and maintain its retained ownership thereof or the security interest granted under these T&C.
Limited Warranty
Products sold by MEPPI are warranted to conform to the specifications therefor at the time of delivery to Customer and remain free from defects in workmanship and material for the period specified on the written warranty that accompanies the Products. MEPPI will include a copy of its limited warranty with each Product packaging. Customer shall not remove MEPPI's limited warranty from any Product packaging. Customer shall have no right to make any warranties on behalf of MEPPI with respect to the Products. Customer shall be solely responsible for any and all warranties, claims, representations or other statements made by Customer to any end user or other third party with respect to the Products and for any repair, service or replacement of any Products pursuant to any warranty provided by Customer. Any Product or components thereof which, in MEPPI's judgment, fails to meet its limited warranty shall be repaired or replaced, at MEPPI's option, by MEPPI at no charge to Customer. MEPPI's obligation shall be limited solely to repair or replacement of the Products or components thereof. Such obligation shall be conditioned upon receipt by MEPPI of notice of any alleged nonconformance to specifications within 30 days after delivery to Customer and of any alleged defect in material or workmanship within 30 days after discovery. Products which MEPPI consents or directs in writing to be returned shall be returned to MEPPI, freight prepaid, F.O.B. MEPPI's warehouse, or other US location designated by MEPPI in accordance with MEPPI's standard return policy. THE FOREGOING WARRANTY IS EXCLUSIVE AND MEPPI MAKES NO OTHER WARRANTIES OF ANY KIND WHATSOEVER TO CUSTOMER OR ANY THIRD PARTY WITH RESPECT TO THE PRODUCTS AND HEREBY EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE AND ALL WARRANTIES ARISING FROM COURSE OF DEALING OR USAGE OF TRADE. MEPPI SHALL HAVE NO RESPONSIBILITY FOR ANY PARTICULAR APPLICATION MADE OF ANY PRODUCT.
Regulatory Laws and Standards
MEPPI makes no promise or representation that the Products will conform to any federal, state or local laws, ordinances, regulations, codes or standards, except as particularly specified and agreed upon in writing by a duly authorized officer of MEPPI. Prices do not include the cost of any inspection or permits.
Intellectual Property
Subject to the conditions set forth in this section, MEPPI shall, at its own expense, defend or, at its option, settle any claim, suit or proceeding brought against Customer alleging that the Products or any part thereof furnished by MEPPI infringes any US patent, copyright or trademark. MEPPI shall pay, subject to the limitations of this section, all damages and costs awarded in such claim, suit or proceeding. MEPPI's obligations under this section shall be effective only if Customer shall have made all payments due MEPPI and gives MEPPI prompt notice and full authority, information and assistance for the defense of such claim, suit or proceeding. If a Product or any part thereof becomes the subject of such claim, suit or proceeding, MEPPI may at any time thereafter, at its option and expense: (1) procure for Customer the right to continue use of such Product or part thereof; (2) replace such Product with a non-infringing product or part; (3) modify such Product to eliminate the alleged infringement; or (4) accept the return of such Product and give Customer a full refund of the price of the affected Products in lieu of any other obligations or responsibilities. MEPPI shall have no liability for any infringement arising out of; (i) the combination of any Product with any other product whether or not furnished to Customer by MEPPI; (ii) the modification of any Product unless such modification was made by MEPPI; or (iii) any information, data, service or application assistance furnished to Customer by MEPPI. MEPPI shall not be liable for any costs or expenses incurred without MEPPI's written authorization, including settlement of any such claim, proceeding or suit. The foregoing states the entire responsibility of MEPPI and the exclusive remedy of Customer, with respect to any alleged intellectual property right infringement or violation by a Product. No sale under these T&C shall convey any license by implication, estoppel or otherwise under any proprietary or patent right of MEPPI.
Limitation of Liability
NEITHER MEPPI NOR ANY OF ITS CONTRACTORS AND SUPPLIERS OF ANY TIER SHALL BE LIABLE IN CONTRACT, IN TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY) OR OTHERWISE FOR DAMAGE OR LOSS OF OTHER PROPERTY OR EQUIPMENT, LOSS OF PROFITS OR REVENUE, LOSS OF USE OF EQUIPMENT, COST OF CAPITAL, COST OF REPLACEMENT TEMPORARY EQUIPMENT (INCLUDING ADDITIONAL EXPENSES INCURRED IN USING EXISTING FACILITIES), CLAIMS OF CUSTOMER'S END-USERS, LOST GOODWILL, LOST RESALE PROFITS OR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND OR NATURE WHATSOEVER. The remedies of Customer set forth in these T&C are exclusive, and the total cumulative liability of MEPPI with respect to any order or anything done in connection therewith such as the performance or breach thereof, or from the manufacture, sale, delivery, resale, or use of any Product, whether in contract, in tort (including negligence or strict liability) or otherwise shall in no event exceed the price of the Product on which such liability is based.
Product Liability Insurance
Product liability insurance written by an insurance company licensed to do business in the United States in the amount not less than $2,000,000 combined single limit is maintained with respect to the Products. Except to the extent of the applicable coverage under such product liability insurance, Customer shall have no claim or right against MEPPI with respect
to any suit or claims against Customer by any third persons resulting from the occurrence of an event within the scope of the coverage of such insurance (without reference to the dollar amount of coverage), and MEPPI shall bear no responsibility or liability to Customer with respect to any such suits or claims by any third persons or any liabilities, expenses or damages incurred or suffered by Customer as a result thereof.
Governing Law; Jurisdiction
These T&C shall not be governed by, and the parties hereby disclaim the effect of, the United Nations Convention on Contracts for the International Sale of Goods, as amended, the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended, and the Uniform Computer Information Transactions Act. The sale of Products by MEPPI to Customer and these T&C shall be governed by and interpreted in accordance with the law of the Commonwealth of Pennsylvania without regard to the principles of conflicts of law, provided that any question regarding copyright, trademark, patent or intellectual property or trade secret matters shall be determined in accordance with federal law. Any litigation arising in connection with the sale of Products to Customer shall be brought exclusively in a court of competent jurisdiction in the Commonwealth of Pennsylvania, and the parties hereby consent to the jurisdiction of such court.
Export Controls
MEPPI is selling the Products to Customer for resale and use within the United States. If Customer chooses to export any Product (or any technology related thereto), Customer shall be responsible for complying with all applicable US export laws and regulations and all amendments, modifications or additions thereto, including the United States Export Administration Act, as amended, the Export Administration Regulations, as amended, and all laws and regulations related to re-export. Customer shall indemnify and hold MEPPI harmless from all liabilities, damages, costs and expenses arising from or connected with any breach of Customer's obligations under this section.
No-Waiver
No waiver of, or the failure of MEPPI to require strict compliance with or enforce any provision of these T&C shall be deemed to be a waiver of MEPPI's right to insist upon strict compliance or to enforce any or all provisions of these T&C. No waiver by MEPPI of any breach or default of these T&C shall constitute a waiver of any other or subsequent breach or default. No waiver shall be binding unless executed in writing.
Non-Assignment
Customer may not assign any of its rights or interest under these T&C of sale without the prior written consent of MEPPI, such consent shall not be unreasonably withheld, and any such attempted assignment shall be void.
Termination MEPPI
may terminate any obligation to Customer with respect to the sale of Products as set forth in these T&C immediately by notice to Customer if: (a) Customer shall fail to make any payment on the date due or to accept delivery of any shipment; (b) Customer shall make an assignment for the benefit of creditors; (c) Customer shall admit in writing inability to pay its debts as they mature; (d) a trustee or receiver or all or a substantial part of Customer's assets shall be appointed by any court; (e) any bankruptcy or reorganization proceedings shall be instituted by or against Customer; (f) Customer becomes insolvent or unable to pay its debts as they mature; or (g) MEPPI has reasonable basis for insecurity with respect to Customer's performance of its obligations to MEPPI, and Customer fails to provide to MEPPI adequate assurance of Customer's performance within 10 days of MEPPI's demand for assurance. MEPPI may also terminate any such obligation to Customer on 30 days notice for failure of Customer to comply with any other of its obligations contained in these T&C of sale; provided that such failure shall not have been corrected during such 30-day period.
Confidentiality
"Confidential Information" shall mean any information or materials which Customer receives from MEPPI in connection with these T&C and which is marked "Confidential" or "Proprietary" or is of such a nature as should reasonably be expected to be confidential or proprietary. Customer shall have a duty of confidentiality with respect to the Confidential Information. Except as expressly provided in these T&C, Customer shall not disclose and shall take all necessary or appropriate efforts to prevent the inadvertent disclosure of the Confidential Information to any third party. Customer shall use the Confidential Information only in connection with the purchase of the Products under these T&C. Customer shall have no duty of confidentiality with respect to any information Customer receives in connection with these T&C and which: (1) at the time of its disclosure, is in the public domain; (2) is independently developed by Customer; (3) is expressly approved for release by MEPPI; or (4) is required to be disclosed by law or an order of any court or other governmental authority with proper jurisdiction, provided Customer promptly notifies MEPPI before disclosing such information so as to permit MEPPI a reasonable opportunity to secure a protective order. Customer's duty of confidentiality under this Section shall continue for a period of there years after any termination or cancellation of the order to which these T&C relate.
Entire Agreement
These T&C contain all of the terms and conditions governing the sale of the Products as set forth in these T&C and may not be modified or amended except by an agreement duly executed by the parties.
Headings
The headings contained in these T&C are included for convenience only and shall not be considered in any question of construction or interpretation of these T&C.
Severability
If any provision of these T&C shall be adjudged by any court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, such adjudication shall not affect or modify any other provision of this agreement but the effect shall be confined to the provision as to which such adjudication is made.
