Terms & Conditions
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The provisions of this Agreement are severable and the invalidity, illegality, or unenforceability of any one or more of its provisions shall not affect the validity and enforceability of any other provisions. If any provision of this Agreement is declared to be invalid, illegal, or unenforceable the parties agree that the court of competent jurisdiction should substitute a valid and enforceable provision that, to the maximum extent possible in accordance with all applicable law, preserves the legal and economic positions of each party as intended in this Agreement.
Headings used in this Agreement are for reference purposes only and shall not be deemed a part of this Agreement. Buyer shall not assign or otherwise transfer, whether by contract, operation of law, or otherwise, this Agreement or any of the rights or duties set forth herein without the prior written consent of Sub U Systems, which consent may be withheld by Sub U Systems in its sole discretion. A waiver by Sub U Systems of any default by Buyer or of any of the terms and conditions shall not be deemed to be a continuing waiver or a waiver of any other default or of any other of these terms and conditions.
This Agreement shall be governed in all respects, including as to validity, interpretation, and effect by the laws of the State of New Jersey without giving effect to choice of law or conflict of laws provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous proposals, negotiations, understandings and agreement, whether oral or written, relating to the subject matter hereof. This Agreement shall not be released, discharged, waived, abandoned or modified, in whole or in part, except by a written instrument duly executed by both parties.
This Order is subject to all applicable U.S. laws and regulations relating to the export of the Product. Buyer shall not ship, transfer, export or use the Product in violation of applicable export laws, regulations or restrictions.
Buyer shall defend, indemnify and hold harmless Sub U Systems, its parents, subsidiaries and affiliates, and their respective directors officers, employees and representatives, from and against any and all claims, suits, losses, obligations, causes of action, damages, and expenses (including attorneys’ fees) relating to or arising out of any use of the Product by Buyer or its Customers.
Subject to these terms and conditions, Sub U Systems grants to Buyer a limited, personal, non-exclusive license (the “License”) for use only with the Product. This License may be transferred only upon transfer of the Product.
Cancellation of Orders
Sub U System products are custom-built, made-to-order, non-standard products. Orders are non-cancelable and non-refundable. Products may be returned in accordance with any applicable warranty. Any warranty that would ordinarily apply will not be affected by this agreement.
Sub U Systems warrants that, at the time of delivery, the Products furnished under this order will be free from defects in workmanship and material for a period of ninety (90) days unless a different period is otherwise expressly set forth in a proposal; provided that inspection by Sub U Systems confirms the existence of such defect. Any part alleged to be defective shall be returned to Sub U Systems for inspection, properly packed and all expenses prepaid by Buyer. Sub U Systems will not assume any expense or liability for modifications or repairs made by other than Sub U Systems, or their authorized agents. This warranty shall not apply to any part which has been damaged, subjected to misuse, or installed or operated not in accordance with Sub U Systems’ instructions.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BUYER’S SOLE AND EXCLUSIVE REMEDY UNDER THIS WARRANTY WILL BE LIMITED TO THE REPAIR OR REPLACEMENT, AT SUB U SYSTEMS’ OPTION, OF THE DEFECTIVE PART(S). THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND WARRANTIES ARISING FROM COURSE OF DEALING PERFORMANCE, OR CUSTOM AND USAGE IN THE TRADE. SUB U SYSTEMS SHALL HAVE NO OTHER LIABILITY UNDER ANY THEORY AT LAW, IN EQUITY, OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING INTELLECTUAL PROPERTY INFRINGEMENT AND NEGLIGENCE), AND STRICT LIABILITY, FOR ANY LOSS OR DAMAGES INCLUDING, BUT NOT LIMITED TO, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT, OR CONSEQUENTIAL DAMAGES (EVEN IF SUB U SYSTEMS HAS BEEN ADVISED OF SAME) INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, ANY ACTION AGAINST SUB U SYSTEMS MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE CLAIM AROSE.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SUB U SYSTEMS SHALL NOT BE LIABLE UNDER ANY THEORY AT LAW, IN EQUITY OR OTHERWISE FOR ANY SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES (EVEN IF SUB U SYSTEMS HAS BEEN ADVISED OF SAME) INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES. THE ENTIRE LIABILITY OF SUB U SYSTEMS FOR ANY CLAIM, LOSS, OR DAMAGES UNDER ANY THEORY AT LAW, IN EQUITY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, CONTRACT, TORT (INCLUDING INTELLECTUAL PROPERTY INFRINGEMENT AND NEGLIGENCE), AND STRICT LIABILITY, ARISING OUT OF THIS AGREEMENT OR ANY INDEMNIFICATION OBLIGATION THEREOF, THE PERFORMANCE OR BREACH THEREOF, OR THE SUBJECT MATTER THEREOF SHALL NOT, IN ANY EVENT, EXCEED THE SUM OF PAYMENTS ACTUALLY MADE BY BUYER TO SUB U SYSTEMS PURSUANT TO THIS AGREEMENT, ANY ACTION AGAINST SUB U SYSTEMS MUST BE BROUGHT WITHIN ONE (1) YEAR AFTER THE CLAIM AROSE.