Page 10/58IOM BiRotor Plus R27
6. LIMITATION OF REMEDY AND LIABILITY:
Brodie shall not be liable for damages caused
in delay in performance. The sole and exclusive
remedy for breach of warranty hereunder shall be
limited to repair, correction, replacement or refund
of purchase price under the limited warranty
clause in section 5. In no event, regardless of
the form of the claim or cause of action (whether
based in contract, infringement, negligence, strict
liability, other tort or otherwise), shall Brodie’s
liability to buyer and/or its customers exceed the
price to buyer of the specific goods manufactured
or services provided by Brodie giving rise to the
claim or cause of action. Buyer agrees that in
no event shall Brodie’s liability to buyer and/
or its customers extend to include incidental,
consequential or punitive damages. The term
“consequential damages” shall include, but not be
limited to, loss of anticipated profits, loss of use,
loss of revenue and cost of capital.
7. PATENTS: Subject to the limitations contained
in Section 6, Seller shall defend any suits brought
against Buyer based on a claim that use of the
Goods manufactured by Seller constitutes an
infringement of a valid patent of the United States,
and shall pay any damages awarded therein
against Buyer, provided that Buyer: promptly
notifies Seller in writing of the filing of such suit
or the threat thereof; permits Seller to control
completely the defense or compromise of such
claim of infringement; and provides all reasonable
assistance and cooperation requested by Seller
for the defense of such suit. In the event that only
the Goods manufactured by Seller are held to be
infringing in such suit and their use is enjoined,
Seller shall, at its sole option and expense, provide
a commercially reasonable alternative, including,
but not limited to, procuring for Buyer the right
to continue using the Goods, replacing them with
a non-infringing product or modifying them so
they become non-infringing. Buyer agrees that
Seller shall not be liable for infringement, and
that Buyer shall fully indemnify Seller therefore,
if infringement is based upon the use of Goods
in connection with Goods not manufactured by
Seller or in a manner for which the Goods were
not designed by the Seller or if the Goods were
not designed by the Seller or if the Goods were
designed by the Buyer or were modified by or for
the Buyer in a manner to cause them to become
infringing.
8. INSTALLATION: Buyer shall be responsible
for receiving, storing, installing, starting up and
maintaining all Goods. Seller shall provide a
quotation for services to assist Buyer in these
functions if requested.
9. TAXES: Any tax or governmental charge
payable by the Seller because of the manufacture,
sale or delivery of the Goods, or provision of
Services, may at Seller’s option be added to the
price herein specified. The foregoing shall not
apply to taxes based upon Seller’s net income.
10. TERMS OF SHIPMENT AND PAYMENT: Subject
to the approval of Seller’s Credit Department,
shipping terms are F.O.B. Brodie Factory, FCA
Brodie Factory, or EXWORKS Brodie Factory.
Payment terms are subject to the approval of
Seller’s Credit Department and may vary based on
Buyer’s creditworthiness. Payment is expected, in
U.S. currency, as per the prearranged agreement
between the Buyer and Seller stated on the sales
order. In the absence of such agreement, payment,
in U.S. currency, is due Net30 days from the
date of invoice. If any payment owed to Seller
hereunder is not paid when due, it shall bear
interest, at a rate to be determined by Seller which
shall not exceed the maximum rate permitted
by law, from the date on which it is due until it is
received. Seller shall have the right, among other
remedies, either to terminate the Agreement or
to suspend further deliveries under this and/or
other agreements with Buyer in the event Buyer
fails to make any payment hereunder when due.
Buyer shall be liable for all expenses incurred
for collection of past due amounts, including
attorneys’ fees.
11. STORAGE FEES
1. Per diem charges are applicable when equipment
is held beyond the acknowledged ready for
shipment date.
Per diem storage charges will be assessed on each
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