| 1. Agreement. These Terms and Conditions (including the related [sale order] [invoice] [confirmation] issued by the Seller) (the "Seller's Order") together contain the entire agreement of the parties relating to its subject matter, are referred to as the "Agreement" and supersede all previous agreements, negotiations and proposals between the parties relating to the subject matter. If Buyer has any objections to any provisions of this Agreement, such objections must be made in writing within five (5) days after receipt hereof, and failure to make such objections will constitute a waiver of any such objections. Any acceptance, confirmation, purchase order or the like sent by Buyer with respect to this sale which states additional or differing terms from this Agreement will be operative as an acceptance of all terms and conditions hereof, and all such additional or differing terms sent by Buyer will be deemed proposals for material modifications hereof, to which notice of objection is hereby given, and they will not become part of any contract between the parties without Seller's express written assent.
2. Pricing. Unless otherwise provided on the Seller's Order, the pricing for the goods and services covered by this Agreement (collectively, the "Goods") set forth herein represents the purchase price for the Goods only and is quoted exclusive of taxes, storage, insurance and shipping.
3. Delivery; Risk of Loss and Title. The Goods will be delivered to the delivery point indicated on the Seller's Order but if no delivery point is specified, then the Goods will be delivered F.O.B. Seller's facility indicated in the Seller's Order. In either event, Buyer will be responsible for making appropriate shipping arrangements, and Buyer will provide sufficient notice and details of such arrangements to allow Seller to prepare the Goods for delivery. Unless otherwise indicated in the Seller's Order, all delivery dates specified in this Agreement are estimates only and time is not of the essence in Seller's performance of this Agreement.Risk of loss of the Goods will remain with Seller and not pass to Buyer until delivery. If retention of title clauses are effective to retain title in Seller under applicable law, title to the Goods will not pass to Buyer until Seller has received payment in full of the purchase price for the Goods; if not, title to the Goods will pass to Buyer at the time of delivery.
4. Payment. Unless otherwise provided in the Seller's Order, payment will be made in Euro (or other currency indicated in the Seller's Order). Payment terms will be as specified in Seller order confirmation and Seller's invoice. To the extent that Buyer fails to make payment for the Goods as hereinbefore specified, or if for any reason Seller deems itself insecure as to payment of all or any part of the purchase price for the Goods, Seller may demand that Buyer make full or partial payment in advance, accept bills of exchange, open for Seller's benefit documentary letters of credit, obtain for Seller's benefit bank guarantees, or provide other satisfactory security or guarantees that payment will be promptly made when due.
5. Warranties. Seller warrants that the Goods and Seller's performance under this Agreement will: (a) comply with Buyer's requirements and specifications indicated in the Seller's Order; (b) be free and clear of all security interests, liens, charges or encumbrances of any nature; and (c) not infringe the intellectual property rights of any third party, including trade secret, trademark, copyright and patent rights. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ALL OF WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BY SELLER, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE. IN NO EVENT WILL SELLER BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY KIND, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE.
7. Confidentiality. Buyer will not disclose to third parties, nor use for any purposes other than its performance of this Agreement, any of Seller's trade secrets or proprietary information, including Seller's specifications, formulas or financial or business information and plans, including (without limitation) the terms of this Agreement. The terms of any separate confidentiality agreement entered into by Seller and Buyer will remain in full force and effect.
8. Termination or Modification for Convenience. Seller reserves the right to terminate this Agreement or any part hereof or to allocate its supply of the Goods among Buyer and its other buyers at any time for its sole convenience, in each case upon written notice to Buyer. IN NO EVENT WILL SELLER BE LIABLE FOR ANTICIPATED PROFITS OR FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES, NOR WILL SELLER BE LIABLE FOR ANY PENALTIES OF ANY DESCRIPTION.
9. Termination for Cause. Seller may terminate all or part of this Agreement upon the occurrence of any of the following: (a) material breach of any term of this Agreement by Buyer, including, but not limited to, untimely payments of any amounts due hereunder; (b) filing by or against Buyer of any insolvency or bankruptcy proceedings for reorganization, receivership or dissolution; or (c) any material adverse change in the financial condition of Buyer which Seller, in good faith, believes to impair the likelihood that Seller will receive timely and full performance under this Agreement.
10. Indemnification. Buyer will indemnify and save and hold Seller harmless from and against any and all damages, losses, claims, liabilities, or demands resulting from Buyer's: (a) breach of this Agreement; (b) negligence, gross negligence, or intentional misconduct; or (c) misuse of the Goods.
11. Force Majeure. Any failure or delay by either party in performing its obligations under this Agreement if such failure or delay is due to causes beyond its reasonable control, including, without limitation, Acts of God, governmental acts or omissions, labor strikes, lockouts or other disturbances, war, acts of terrorism, riot or difficulties in procuring labor or materials. Orders cannot be cancelled by the buyer due to the above mentioned forces; also orders which are customer designed for Buyer or are already in transit cannot be cancelled.
12. Waiver. The waiver of any term, condition or provision of this Agreement will not be construed to be a waiver or any other such term, condition or provision, nor will such waiver be deemed a waiver of a subsequent breach of the same term, condition or provision.
13. Severability. The parties believe that the provisions of this Agreement are no broader in scope and duration than is necessary to protect the legitimate interests of the parties being protected in this Agreement, and therefore it is the intent of the parties that such provisions be enforced to the fullest extent permissible under applicable law. If a court of competent jurisdiction declares any provision of this Agreement illegal, invalid or otherwise unenforceable, such provision will be deemed severed to the extent or scope of the illegality, invalidity or unenforceability. If it remains possible after such severance for the remaining provisions of this Agreement to achieve the essential intent of the parties, such remaining provisions will be deemed to remain in full force and effect.
14. Choice of Law; Dispute Resolution. This Agreement will be governed in all respects by the laws of the Netherlands, excluding its choice of law principles. [The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.] Any dispute arising between the parties out of or in connection with this Agreement will be finally resolved in state or federal court in the Netherlands. Each party consents to personal jurisdiction in the state and federal courts of the Netherlands for the limited purposes of this paragraph, and agrees that personal jurisdiction in any such court will be deemed proper
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