The General Terms and Conditions of Sale (the “Terms”) set forth herein shall be applied to and govern all offers, orders and agreements for the sale of PRODUCTS (as hereinafter defined), made, accepted or entered into by ALLU to or with any PURCHASER.
These Terms prevail over any of PURCHASER’s general terms and conditions of purchase regardless whether or when PURCHASER has submitted its purchase order or such terms. Fulfillment of PURCHASER’s order does not constitute acceptance of any of PURCHASER’s terms and conditions and does not serve to modify or amend these Terms. By placing an order with ALLU or accepting an offer by ALLU, the PURCHASER agrees to these Terms as set forth below:
1.DEFINITIONS
“ALLU” shall mean Allu USA and/or any of its operating subsidiaries.
“PRODUCTS” or “PRODUCT” shall mean all products, equipment, goods and accessories sold by ALLU, including any manuals relating thereto.
“PURCHASER” shall mean any purchaser of PRODUCTS. “Agreement” shall mean any agreement for the sale of PRODUCTS, whether entered into by way of the PURCHASER’s order and ALLU’s acceptance thereof or any other method, including these Terms as an integral part thereof. Notwithstanding anything herein to the contrary, if an Agreement is in existence covering the sale of PRODUCTS covered hereby, the terms and conditions of said Agreement shall prevail to the extent they are inconsistent with these Terms.
“Delivery Point” shall mean [ALLU’s Plant].
“Nonconforming Products” means only the following: (i) product shipped is different than identified in PURCHASER’s purchase order; or (ii) product’s label or packaging incorrectly identifies its contents. “Start-Up” shall mean the first start-up of the PRODUCT, which shall be deemed to occur within thirty (30) days of delivery of the PRODUCT, if not otherwise agreed to in writing by a person duly authorized by ALLU.
“System” or “Systems” shall mean all computer control/controlled systems and thereto related software developed, owned and/or installed by ALLU to the PRODUCTS and included as an integral part of any PRODUCT.
2.PRODUCT INFORMATION.
All information and data contained in brochures, drawings, catalogues, price lists and other similar documents which are either provided by ALLU or are otherwise acquired by the PURCHASER and which relate to the PRODUCTS are for information purposes only, and are binding only to the extent that the contents of any such document are expressly incorporated in writing in the Agreement.
ALLU will provide the PURCHASER with the documentation and instructions necessary for the operation and maintenance of the PRODUCTS at the latest with the dispatch of the PRODUCTS.
ALLU reserves the right, but is not obliged, to modify the design and construction of PRODUCTS before delivery is made in order to incorporate improvements or to substitute material equal or superior to that originally specified. Any major changes in design however require the prior approval of the PURCHASER.
ALLU PRODUCTS are inspected, and where practical, submitted to standard tests at the ALLU works before dispatch.
Any performance figures provided by ALLU are based on prior experience and are as ALLU expects to obtain on test. ALLU will accept liability for subsequent failure to meet the figures only if ALLU has specifically warranted the performance figures in a written document signed by a duly authorized officer of ALLU.
ALLU makes no representation or warranty that any PRODUCTS have sufficient and suitable capacity and performance or are fit for any purpose of the PURCHASER, including any particular purpose which ALLU may have actual or constructive knowledge of.
If the PRODUCTS comprise parts or components or computer control systems (including related software) manufactured or supplied by any third party, ALLU does not warrant the capacity or performance thereof, and it shall not be liable for any failure of or damage caused to any PRODUCT by such component, unless the component has been accepted or tested by ALLU in advance to ascertain its suitability with the PRODUCT to achieve such performance or capacity as is normal in the experience of ALLU.
Unless otherwise agreed in writing, if special tests in the presence of the PURCHASER are required, these shall be made at the PURCHASER’s works and ALLU shall be entitled to make an additional charge for carrying out such tests. In the event of PURCHASER’s delay in attending such tests, after (7) seven days’ notice that the PRODUCTS are ready for tests, the tests will proceed in the PURCHASER’s absence and shall be deemed to have been made in the PURCHASER’s presence.
3.VALIDITY OF OFFERS AND ORDERS
Any obligation or liability on ALLU’S part is subject to, and conditioned upon, the fulfillment by PURCHASER of all terms of payment and all other obligations of the PURCHASER towards ALLU under the Agreement.
Inclusion by the PURCHASER of any terms inconsistent with or in addition to the terms and conditions set forth in these Terms in any offer or order is not binding on ALLU and shall be regarded as a counter-offer subject to the express and written acceptance by a person duly authorized by ALLU.
Unless otherwise stated herein, agreed in writing or previously withdrawn, every offer is open for acceptance for 30 days from the date of submission to the PURCHASER. No order shall be binding on ALLU unless it is confirmed on behalf of ALLU in writing by a person duly authorized by ALLU.
Any order or acceptance of any offer shall include all order terms and sufficient detailed information to allow ALLU to complete delivery. If this information is not supplied in due time, ALLU shall be free to amend the prices quoted in the offer or order to cover any subsequently realized increase in cost. The information should be provided on the order entry and specification forms supplied by ALLU where practicable.
4. CANCELLATION OF ORDER OR RETURN OF PRODUCTS
Orders may not be cancelled or PRODUCTS returned other than with ALLU’s prior written consent. All costs and expenses incurred by ALLU up to the time of cancellation and all loss or damage by reason of such cancellation shall be reimbursed by PURCHASER to ALLU forthwith. ALLU reserves the right to charge PURCHASER for any costs incurred due to suspension or deferment of an order, however, always at least 15% of the purchase price of the cancelled order.
5.DELIVERY TERMS ETC
All references to trade terms shall be interpreted in accordance with Incoterms 2020, or any revised version thereof in force at the time of entering into the Agreement.
Unless otherwise agreed in writing by the parties, ALLU shall deliver the PRODUCTS FCA Delivery Point using ALLU’s standard methods for packaging and shipping such PRODUCTS. PURCHASER shall take delivery of the PRODUCTS within [14] days of ALLU’s written notice that the PRODUCTS have been delivered to the Delivery Point. PURCHASER shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the PRODUCTS at the Delivery Point. Unless otherwise agreed in writing by the parties, quoted or stipulated dates for delivery are estimates only and dispatch of an order shall not be subject to any expressed or implied time limit.
All sales shall include only those PRODUCTS, installation, training, work and services expressly specified in the Agreement and they must comply with all applicable import, export and Exchange Control regulations. For such purpose, the PURCHASER shall notify the applicable regulations to ALLU before delivery of any PRODUCTS so that ALLU can take the regulations into account when delivering the PRODUCTS and invoicing them in accordance with clause 11 below. ALLU shall be responsible for ensuring that protection from sea water is provided where necessary. An additional amount may be added to the purchase price for any additional packing requested by the PURCHASER. ALLU reserves the right to alter its said packing practice if deemed necessary because of the nature of a particular PRODUCT or any requirements of the PURCHASER.
6.DELIVERY
If for any reason PURCHASER fails to accept delivery of any of the PRODUCTS on the date fixed pursuant to ALLU’s notice that the
PRODUCTS have been delivered at the Delivery Point, or if ALLU is unable to deliver the PRODUCTS at the Delivery Point on such date because PURCHASER has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the PRODUCTS shall pass to PURCHASER; (ii) the PRODUCTS shall be deemed to have been delivered; and (iii) ALLU, at its option, may store the PRODUCTS until PURCHASER picks them up, whereupon PURCHASER shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
ALLU shall not be liable for any non-delivery of PRODUCTS (even if caused by ALLU’s negligence) unless PURCHASER gives written notice to ALLU of the non-delivery within [14] days of the date when the PRODUCTS would in the ordinary course of events have been received. Any liability of ALLU for non-delivery of the PRODUCTS shall be limited to replacing the PRODUCTS within a reasonable time or adjusting the invoice respecting such PRODUCTS to reflect the actual quantity delivered.
If delay in delivery is caused by Force Majeure Event as defined in clause 20 or by act or omission on the part of the PURCHASER including suspension due to late payment or anticipated nonperformance, the time for delivery shall be extended by a period which is reasonable having regard to all circumstances. This provision applies regardless of whether the reason for delay occurs before or after the agreed time for delivery.
7. STORAGE
If ALLU does not receive forwarding instructions sufficient to enable it to dispatch the PRODUCTS within fourteen (14) days after notification by ALLU that the PRODUCTS have been tested as provided in clause 2 hereof or that the PRODUCTS are ready for dispatch, PURCHASER shall take delivery of the PRODUCTS at ALLU’S plant without delay or arrange for appropriate storage of the PRODUCTS and the PRODUCTS shall after ALLU’S such notice or the PURCHASER’S taking of delivery or placing the PRODUCTS in storage, whichever is the earliest, be at PURCHASER’s sole risk. ALLU is prepared, however, if its storage facilities permit, to store the PRODUCTS at PURCHASER’s sole risk making a charge for such storage until the PRODUCTS are dispatched. Such charge shall be calculated as agreed from case to case and be in addition to the agreed purchase price of the PRODUCTS. Payment of the purchase price and the additional charge shall be due for the PRODUCTS as if dispatched at the time agreed in the Agreement. Any charges for storage or demurrage after dispatch must be paid by PURCHASER.
8.RETENTION OF TITLE AND RISK OF LOSS
ALLU RETAINS OWNERSHIP OF, TITLE TO, AND THE RIGHT TO REPOSSESS AND/OR DISPOSE OF ANY PRODUCTS SOLD TO THE PURCHASER UNTIL THE PURCHASE PRICE OF THE PRODUCTS AND ANY OTHER AMOUNTS DUE TO ALLU FOR THE PRODUCTS ARE PAID FOR IN FULL to the extent that such retention of property is valid under the applicable law. If required by ALLU, the PURCHASER shall provide insurance for ALLU’s benefit to protect ALLU’s interest against loss or damage until all amounts due have been paid in full. Ownership of and title to the PRODUCTS (exclusive of Systems relating thereto) shall pass to PURCHASER when ALLU has received the above sums in full.
In the event that retention of title is not valid under the applicable law, ALLU reserves a purchase money security interest in the PRODUCTS sold until the purchase price and any other amounts due in connection with the PRODUCTS are paid in full.
Unless otherwise agreed, the risk of loss of the PRODUCTS shall pass to the PURCHASER at the agreed delivery time in accordance with the agreed terms of delivery. If not otherwise agreed all deliveries shall be FCA.
If, in the case of delivery agreed to be FCA, ALLU, at the request of the PURCHASER, undertakes to send the PRODUCT on PURCHASER’s behalf to its destination, the risk for the PRODUCTS shall pass not later than when the PRODUCT is handed over to the first carrier.
PURCHASER shall not encumber or permit others to encumber the PRODUCTS in any manner.
In the event legal action is necessary to enforce any of PURCHASER’s obligations under any Agreement, ALLU shall be entitled to recover court costs and reasonable attorney’s fees from the PURCHASER.
9. INSPECTION AND REJECTION OF NONCONFORMING PRODUCTS
PURCHASER will be deemed to have accepted the PRODUCTS unless it notifies ALLU in writing of any Nonconforming Products within fourteen (14) days of receipt or taking into use of the PRODUCTS and furnishes such written evidence or other documentation as reasonably required by ALLU.
If PURCHASER timely notifies ALLU of any Nonconforming Products, ALLU shall, in its sole discretion, (i) replace such Nonconforming Products with conforming PRODUCTS, or (ii) credit or refund the Price for such Nonconforming Products, together with any reasonable shipping and handling expenses incurred by PURCHASER in connection therewith. PURCHASER shall ship, at its expense and risk of loss, the Nonconforming Products to ALLU’s facility located at [Delivery Point]. If ALLU exercises its option to replace Nonconforming Products, ALLU shall, after receiving PURCHASER’s shipment of Nonconforming Products, ship to PURCHASER, at PURCHASER’s expense and risk of loss, the replaced PRODUCTS to the Delivery Point.
PURCHASER acknowledges and agrees that the remedies set forth in herein are PURCHASER’s exclusive remedies for the delivery of Nonconforming Products. Except as provided under this clause, all sales of PRODUCTS to PURCHASER are made on a one-way basis and PURCHASER has no right to return PRODUCTS purchased under this Agreement to ALLU.
10. PRICE AND PAYMENT
Unless otherwise agreed, all quoted prices are for delivery FCA Delivery Point. If other delivery terms are agreed upon, ALLU reserves the right to increase the price quotation to cover any additional costs.
Unless otherwise agreed, all prices charged by ALLU are strictly net. Prices do not include any federal, provincial, state or local sales, use, excise or any other similar taxes, duties and charges of any kind. PURCHASER shall be responsible for all such charges, costs and taxes; provided, that, PURCHASER shall not be responsible for any taxes imposed on, or with respect to, ALLU’s income, revenues, gross receipts, personnel or real or personal property or other assets. The PURCHASER shall also always pay all import, customs and other duties, taxes and fees as well as the costs of carrying out customs formalities payable upon importation.
If after the conclusion of any Agreement ALLU shall incur additional costs (including but not limited to taxes, duties, charges and other similar payments) by reason of any change in law or its interpretation or due to a requirement or order of any authority or on account of any similar reason, such additional costs shall be charged to the PURCHASER in such a manner as ALLU sees fit, so that ALLU receives the same amount for the PRODUCTS as it would have received had no such additional amounts become payable.
11. PAYMENT TERMS
Payment for all PRODUCTS with a destination in the country of manufacturer shall be made within thirty (30) days after the date of dispatch. PURCHASER shall make all such payments by [wire transfer/check/[OTHER PAYMENT METHOD]] and in US dollars.
All export PRODUCTS shall be paid for in cash in the agreed currency upon the presentation of shipping documents, or the PRODUCTS shall
be secured by the PURCHASER’s Irrevocable Letter of Credit in favor of ALLU or its designee. This Letter of Credit must be acceptable in
content to ALLU, consistent with the terms of the Agreement, be irrevocable, and be issued by or secured by a major bank acceptable to ALLU. All bank charges and reimbursement commissions, including confirmation commission are to be paid by the PURCHASER.
PURCHASER shall not withhold payment of any amounts due and payable by reason of any deductions, set-off of any claim or dispute with ALLU, whether relating to ALLU’s breach, bankruptcy or otherwise. If PURCHASER is in default in any payment, ALLU may declare all payments for PRODUCTS delivered immediately due and payable with the maximum legal interest thereon from the due date of the payment, stop all further deliveries and suspend all ALLU’s further performance of the Agreement until payments are brought current, require return of the shipment at the PURCHASER’s expense and/or require advance payment for future shipments.
Interest on overdue payments shall be the maximum legal interest rate from the due date, calculated daily and compounded monthly. PURCHASER shall reimburse ALLU for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
In addition to all other remedies available under these Terms or at law (which ALLU does not waive by the exercise of any rights hereunder), if PURCHASER fails to pay any amounts when due hereunder and such failure continues for [30] days following written notice thereof,
then ALLU shall be entitled to, at its sole option and discretion, either suspend the delivery of any PRODUCTS or terminate the Agreement.
12. ADDITIONAL CHARGES
In the event of suspension of work on PURCHASER’s instructions or through PURCHASER not having given ALLU adequate instructions, the price of the PRODUCTS shall be increased to cover any extra expense incurred by ALLU.
Any work carried out by ALLU after the expiry for any reason whatsoever of ALLU’s applicable warranty shall be charged to the PURCHASER in accordance with ALLU’s list of charges current at the time.
13. LIMITED WARRANTY
ALLU Standard Warranty Terms shall apply to all deliveries of the PRODUCTS.
EXCEPT FOR THE WARRANTY SET FORTH IN THE ALLU STANDARD WARRANTY TERMS, ALLU MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the PRODUCTS. Third Party Products are not covered by the ALLU Standard Warranty Terms. For the avoidance of doubt, ALLU MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
In order to be able to avail himself of the rights under this clause, the PURCHASER shall inspect the PRODUCTS and notify ALLU in writing of the inspection and possible defects in material or design without delay and not later than (14) fourteen days from receipt of the PRODUCTS. The PURCHASER shall ensure that ALLU shall have the opportunity to verify that the PRODUCTS are duly covered by ALLU’s warranty and to inspect and remedy any alleged defects.
ALLU’S above mentioned warranty shall expire and become void immediately, if the PURCHASER or any other purchaser or user of the PRODUCTS removes or tampers with or adds any parts or components of or to the PRODUCTS or replaces the original parts or components of the PRODUCTS with any other parts or components, irrespective of whether these are manufactured or supplied by ALLU or another party, or modifies the PRODUCTS in any way, unless ALLU’s prior written approval therefore is obtained.
ALLU’s warranty shall also expire and become void immediately, if any System is removed from the relevant PRODUCT, or the System or related software are modified or otherwise tampered with as referred to under clause 17 below, or used for any other purpose or in any other manner than that specified in the Agreement.
In the event that ALLU’s warranty expires due to the reasons set forth above, ALLU shall no longer be obligated to repair, service or maintain the PRODUCTS or Systems in accordance with the relevant warranty. ALLU may, however, if it sees fit, carry out such maintenance and repair work as it deems necessary also thereafter and is entitled to receive payment for such work in accordance with its usual charges.
In the event that the PURCHASER wishes to return any PRODUCTS or any parts of the PRODUCTS to ALLU because of defects in the PRODUCTS or parts, or due to the PRODUCTS or parts having been damaged, the PURCHASER shall notify ALLU of such intention without delay. No PRODUCTS or parts may be returned by the PURCHASER to ALLU without ALLU’s prior written consent, and ALLU will not accept any liability for costs incurred by the PURCHASER in connection with returning PRODUCTS or parts, or otherwise, without such consent.
Warranty claims worth under USD fifty (50) are not considered by ALLU representative.
THE REMEDIES SET FORTH IN THE ALLU STANDARD WARRANTY TERMS SHALL BE THE PURCHASER’S SOLE AND EXCLUSIVE REMEDY AND ALLU’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH THEREIN.
14. LIMITATION OF ALLU’S LIABILITY
PURCHASER shall be solely responsible for providing accurate information to ALLU on the intended use of the PRODUCTS and on the environment and conditions in which the PRODUCTS will be used. The PURCHASER shall also be responsible for complying with the
requirements of local authorities. Accordingly, ALLU shall not be liable for any costs, loss or damage that may arise due to such information not being correct or due to the PURCHASER using the PRODUCTS in another manner or operating them in other conditions than those that it has notified to ALLU.
PURCHASER acknowledges that ALLU has no control over and is not responsible for the manner in which any PRODUCT is used or otherwise dealt with by the PURCHASER or any subsequent purchaser or user. Accordingly, ALLU shall not be liable for any personal injury or damage to property caused by the PRODUCTS or resulting directly or indirectly from the installation, maintenance, use or operation of the PRODUCTS, or the failure of the PRODUCTS to comply with any applicable safety laws or regulations after delivery to the PURCHASER. Nor shall ALLU be liable for any damage to products manufactured by the PURCHASER, or to products of which the PURCHASER’s products form a part unless otherwise separately agreed in writing between ALLU and the PURCHASER.
IN NO EVENT SHALL ALLU BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY PURCHASER OR COULD HAVE BEEN REASONABLY FORESEEN BY PURCHASER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT SHALL ALLU’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO ALLU FOR THE PRODUCTS SOLD HEREUNDER.
15. PURCHASER OBLIGATIONS
The PURCHASER shall, upon the request of ALLU, assist to the best of its ability in obtaining information concerning the local laws and regulations of the PURCHASER’s jurisdiction applicable to the PRODUCTS, and any related taxes and payments.
The PURCHASER shall be fully responsible for ensuring that all warning labels required by the jurisdiction where the PRODUCTS are used are affixed and that all applicable safety and operation procedures are followed. The PURCHASER shall also be responsible for ensuring that the personnel operating the PRODUCTS is properly trained to operate the PRODUCTS and aware of all the necessary safety instructions and that all necessary warning labels are continuously adhered to.
The PURCHASER shall indemnify, defend, and hold ALLU harmless against any claims by any third parties (including but not limited to the PURCHASER’S employees, agents, distributors and other representatives) and shall reimburse to ALLU any and all sums that ALLU may be obligated to pay on the basis of such claims, whether for personal injury or damage to property caused by the PRODUCTS while the PRODUCTS are in the possession of the PURCHASER or due to any breach of its obligations hereunder or PURCHAER’s acts or omissions.
16. INTELLECTUAL PROPERTY
ALLU is and will remain the sole owner of all the intellectual property rights relating to the PRODUCTS and any intellectual property rights created in connection with the performance of any Agreement. Upon Order Acceptance and, subject to the full payment of the price for the PRODUCTS ALLU grants to the PURCHASER a non-exclusive, non-transferable, non-assignable, non-sub-licensable licence to use ALLU’s intellectual property rights residing in or provided with the PRODUCTS to the extent necessary for installing, operating and maintaining the PRODUCTS. Unless otherwise specified in writing, this limited license shall continue unless terminated pursuant to these Terms. The PURCHASER may not reproduce, modify, adapt, alter, translate, reverse engineer or create derivative works from any PRODUCTS in all or in part, without ALLU’s prior written consent.
ALLU assumes no duty to indemnify the PURCHASER for any infringement of patents, trademarks, registered designs, copyright or any other intellectual property.
ALLU reserves the right to conduct any litigation that may ensue and all negotiations for the settlement of any claim relating to any intellectual property right relating to the PRODUCTS.
17. SOFTWARE AND COMPUTER CONTROL (LED) SYSTEMS
Where the sale of any PRODUCT comprises also Systems, of which ALLU is the copyright holder, the PURCHASER shall only be granted the right to use the relevant System in accordance with the terms set forth in these Conditions and in the Agreement, while title to and any and all rights relating to the System shall remain vested in ALLU.
The PURCHASER must not, without the prior written consent of ALLU, modify any System or remove it from the PRODUCT, make copies of the relevant software or sell, transfer or otherwise dispose of or distribute the System or use it for any other purpose or in any other manner than that defined in the Agreement. The PURCHASER shall ensure that also its agents, employees or other representatives comply with this provision. ALLU shall be entitled to verify at its discretion that the PURCHASER complies with the above at any given time and the PURCHASER agrees to allow the representatives of ALLU to carry out such inspections as they see fit for such purpose.
In case of the PURCHASER’s or its agent’s, employee’s or other representative’s breach of or failure to comply with the provisions concerning the Systems, ALLU shall not be liable for any personal injury or damage to property, nor any direct, indirect or consequential damage or loss that may be caused to the PURCHASER or any third party as a result of such breach or failure or by the PRODUCT or its use.
The PURCHASER shall fully indemnify and hold ALLU harmless against any claims, losses or damage that ALLU may incur as a consequence of the PURCHASER’s said breach or failure. As the amount of damage incurred by ALLU due to such a breach or failure may be extremely difficult to determine, the remedy available to ALLU therefore shall be either liquidated damages payable by the PURCHASER in the minimum amount of USD 150,000 or its equivalent in another currency to be separately agreed, or if ALLU shall be able to prove that the amount of the actual damage suffered by it is higher, the PURCHASER shall pay to ALLU the amount of the damage in full.
18. CONFIDENTIAL INFORMATION
All non-public, confidential or proprietary information of ALLU, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, information and documents relating to Systems, disclosed by ALLU to PURCHASER, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by ALLU in writing. Upon ALLU’s request, PURCHASER shall promptly return all documents and other materials received from ALLU. ALLU shall be entitled to injunctive relief for any violation of this clause. This clause does not apply to information that is: (a) in the public domain; (b) known to PURCHASER at the time of disclosure; or (c) rightfully obtained by ALLU on a non-confidential basis from a third party.
19. COMPLIANCE WITH LAWS
PURCHASER shall comply with all applicable laws, regulations and ordinances. PURCHASER shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. PURCHASER shall comply with all export and import laws of all countries involved in the sale of the PRODUCTS under this Agreement or any resale of the PRODUCTS by PURCHASER. PURCHASER assumes all responsibility for shipments of PRODUCTS requiring any government import clearance. ALLU may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on PRODUCTS.
20. FORCE MAJEURE
PURCHASER shall, upon the request of ALLU, assist to the best of its ability in obtaining information concerning the local laws and regulations of the PURCHASER’s jurisdiction applicable to the PRODUCTS, and any related taxes and payments, wars, riots, hostilities, public disorder, strikes, lockouts or other industrial disputes, pandemics, epidemics, fires, floods, acts of God, governmental restrictions and actions such as expropriations, requisitions, confiscations, import and export embargoes and currency restrictions, inter alia, acts or orders of any court or other authority of competent jurisdiction, shortage of water, power, labor, transport facilities or necessary materials or supplies, default or failure of carriers, breakdown or loss of production, or any other circumstances beyond the reasonable control of either party (a “Force Majeure Event”); provided that, if the Force Majeure Event continues for a continuous period in excess of 180 days, PURCHASER shall be entitled to give notice in writing to ALLU to terminate this Agreement.
21. ARBITRATION AND APPLICABLE LAW
These Terms and the Agreement shall be governed by and interpreted and construed in accordance with the laws of the State of New Jersey.
Any disputes arising from or relating to these Terms, the Agreement, or the performance of the parties’ obligations thereunder, shall be finally settled in accordance with the Rules of Conciliation and Arbitration of the International Chamber of Commerce by one arbitrator, appointed in accordance with said rules, supplemented as necessary by the procedural rules of the law of the country of the ALLU entity, which has entered into the Agreement. Unless otherwise agreed the proceedings shall be conducted in the English language.
Notwithstanding the above, the PURCHASER and ALLU agree that all monetary claims not exceeding one hundred thousand U.S. Dollars (USD 100,000) shall be instituted in the state or federal courts of the United States of America or the courts of the State of New Jersey in each case located in the City of East Brunswick, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
The United Nations Convention on Contracts for the International Sale of Goods is expressly disclaimed by the parties with respect to these Terms, the Agreement and the transactions contemplated hereby and thereby.
22. MISELLANEOUS
PURCHASER shall not assign any of its rights or delegate any of its obligations under these Terms without the prior written consent of ALLU. Any purported assignment or delegation in violation of this clause is null and void. No assignment or delegation relieves PURCHASER of any of its obligations under these Terms.
The relationship between the parties is that of independent contractors. Nothing contained in these Terms shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
These Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
If any term or provision of these Terms is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.