Clause No. 1: Remedy Disclaimers
Buyer agrees that its sole and exclusive remedy against Seller shall be limited
to the repair or replacement of nonconforming or defective goods, f.o.b.
Seller’s factory, provided Seller is promptly notified in writing of any defect.
Under no circumstances shall Buyer be entitled to make such a claim beyond one
year from the date of this agreement. This exclusive remedy shall not be deemed
to have failed its essential purpose so long as Seller is willing and able to
repair or replace the goods.
Clause No. 2: Liability Disclaimers
Seller shall not be liable for any loss, damage, or injury resulting from delay
in delivery or installation of the goods or for any failure to perform which is
due to circumstances beyond its control, including those arising from Y2k
problems. The maximum liability, if any, of Seller for all damages, including
without limitation, contract damages and damages for injuries to persons or
property, whether arising from Seller’s breach of this Agreement, breach of
warranty, negligence, strict liability, or other tort, is limited to an amount
not to exceed the purchase price of the goods at issue in the dispute. In no
event shall Seller be liable to Purchaser for any incidental, consequential or
special damages, including without limitation lost revenues and profits, even if
it has been advised of the possibility of such damages.
Clause No. 3: Integration Clauses
This Agreement, together with any affixed schedules or exhibits, constitutes the
entire understanding between the parties with respect to the subject matter of
this Agreement and supersedes any prior discussions, negotiations, agreements,
and understandings.
Clause No. 4: Choice of Law
This agreement shall be governed and controlled in all respects by the laws of
the State of Nevada, including as to interpretation, enforceability, validity,
and construction.
Clause No. 5: Choice of Forum
The parties submit to the jurisdiction and venue of the circuit court for the
County in which Seller’s principle business office is located or, if original
jurisdiction can be established, the United States District Court where Seller’s
principle business office is located with respect to any action arising,
directly or indirectly, out of this Agreement or the performance or breach of
this agreement. The parties stipulate that the venues referenced in this
Agreement are convenient.
Clause No. 6: Notice
All notices and other communications required or permitted under this Agreement
shall be in writing and shall be deemed given when delivered personally or by
registered or certified mail.
Clause No. 7: Wavier
Seller’s failure to exercise a right or remedy or Seller’s acceptance of a
partial or delinquent payment shall not operate as a wavier of any of Seller’s
rights or Buyer’s obligations under this Agreement and shall not constitute a
wavier of Seller’s right to declare an immediate or subsequent default.
Clause No. 8: Severability
Whenever possible, each provision of this Agreement shall be interpreted in such
a way as to be effective and valid under applicable law. If a provision is
prohibited by or is invalid under applicable law, it shall be in effective only
to the extent of such provision or invalidity, without invalidating the
remainder of such provision or the remaining provisions of this Agreement.
Clause No. 9: Amendments
The terms of this Agreement may not be varied or modified in any manner, except
in a subsequent writing executed by an authorized representative of both
parties.
Clause No. 10: Assignments
Seller may assign this Agreement as part of a merger, acquisition, or other
reorganization.
Clause No. 11: Remedies Cumulative
The remedies provided in this Agreement shall be cumulative, and the assertion
by a party of any right or remedy shall not preclude the assertion by such a
party or any other rights or the seeking of any other remedies.
Clause No. 12: Successors and Assigns
In the event of a proper assignment, this Agreement shall be binding upon and
inure to the benefit of the parties’ successors and assigns.
Clause No. 13: Risk of Loss
Risk of loss concerning the goods sold under this Agreement shall pass upon
shipment by Seller to Buyer. Nothing shall preclude Seller from insuring shipped
goods beyond the point of shipment, such insurance shall be solely for the
benefit of Seller.
Clause No. 14: Force Majeure
Seller shall not be deemed to be in default or otherwise responsible for delays
or failure in performance resulting from acts of God, acts of war or civil
disturbance, epidemics, governmental action or inaction, fires, earthquakes,
unavailability of labor, materials, power or communication, Y2k problems or
other causes beyond Seller’s reasonable control.
Clause No. 15: Arbitration
Any controversy or claim arising out of or related to this Agreement shall be
settled by binding arbitration in accordance with the Commercial Arbitration
Rules of the American Arbitration Association and the arbitration award may be
entered as a final judgment in any court of competent jurisdiction.
Clause No. 16: Third-Party Beneficiaries
This Agreement shall not confer any rights or remedies upon any third-party
other than the parties to this Agreement and their respective successors and
permitted assigns.
Clause No. 17: Attorney Fees
In the event of a dispute arising out of this Agreement, the prevailing party
shall be entitled to actual attorney’s fees and costs.
