Terms and Conditions of Sale
EAST\44198159.2
KMT Waterjet Systems Inc. (LD-101) 07/2009
Correction by the Company of nonconformities whether patent
or latent, in the manner and for the period of time provided above,
shall constitute fulfillment of all liabilities of the Company for such
nonconformities, whether based on contract warranty, negligence,
indemnity, strict liability or otherwise with respect to or arising out
of such Equipment.
The Purchaser shall not operate Equipment which is
considered to be defective, without first notifying the Company in
writing of its intention to do so. Any such use of Equipment will
be at the Purchaser's sole risk and liability.
9. Limitation of Liability
THE REMEDIES OF THE PURCHASER SET FORTH
HEREIN ARE EXCLUSIVE, AND THE TOTAL LIABILITY OF
THE COMPANY WITH RESPECT TO THIS CONTRACT OR
THE EQUIPMENT AND SERVICES FURNISHED
HEREUNDER. IN CONNECTION WITH THE PERFORMANCE
OR BREACH THEREOF, OR FROM THE MANUFACTURE,
SALE, DELIVERY, INSTALLATION, REPAIR OR
TECHNICAL DIRECTION COVERED BY OR FURNISHED
UNDER THIS CONTRACT, WHETHER BASED ON
CONTRACT WARRANTY, NEGLIGENCE, INDEMNITY,
STRICT LIABILITY OR OTHERWISE, SHALL NOT EXCEED
THE PURCHASE PRICE OF THE UNIT OF EQUIPMENT
UPON WHICH SUCH LIABILITY IS BASED.
THE COMPANY AND ITS SUPPLIERS SHALL IN NO
EVENT BE LIABLE TO THE PURCHASER, ANY
SUCCESSORS IN INTEREST OR ANY BENEFICIARY OR
ASSIGNEE OF THIS CONTRACT FOR ANY
CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR
PUNITIVE DAMAGES ARISING OUT OF THIS CONTRACT
OR ANY BREACH THEREOF, OR ANY DEFECT IN, OR
FAILURE OF, OR MALFUNCTION OF THE EQUIPMENT
HEREUNDER, WHETHER BASED UPON LOSS OF USE,
LOST PROFITS OR REVENUE, INTEREST, LOST
GOODWILL, WORK STOPPAGE, IMPAIRMENT OF OTHER
GOODS, LOSS BY REASON OF SHUTDOWN OR NON-
OPERATION, INCREASED EXPENSES OF OPERATION,
COST OF PURCHASE OF REPLACEMENT POWER OR
CLAIMS OF PURCHASER OR CUSTOMERS OF PURCHASER
FOR SERVICE INTERRUPTION WHETHER OR NOT SUCH
LOSS OR DAMAGE IS BASED ON CONTRACT,
WARRANTY, NEGLIGENCE, INDEMNITY, STRICT
LIABILITY OR OTHERWISE.
10. Nuclear Liability
In the event that the Equipment sold hereunder is to be used in
a nuclear facility, the Purchaser shall, prior to such use, arrange for
insurance or governmental indemnity protecting the Company
against liability and hereby releases and agrees to indemnify the
Company and its suppliers for any nuclear damage, including loss
of use, in any manner arising out of a nuclear incident, whether
alleged to be due, in whole or in part to the negligence or otherwise
of the Company or its suppliers.
11. Governing Law
The rights and obligations of the parties shall be governed by
the laws of the State of Delaware excluding any conflicts of law
provisions. The United Nations Convention on Contracts for the
International Sale of Goods shall not apply to this agreement.
12. Export Control
The Company’s products are U.S. origin items and subject to
U.S. export control laws, including the Export Administration
Regulations. Customer agrees that it will comply with U.S. export
control laws and will not export, re-export, transfer, re-transfer,
sell, re-sell, otherwise divert Company products contrary to U.S.
law. Customer further agrees that it will obtain all required export
licenses.
13. Execution
The Company shall not be bound by any contract or any
modification thereto until approved in writing by an officer of the
Company. The contract, when so approved shall supersede all
previous communications, either oral or written.
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