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TERMS & CONDITIONS
Terms-3
Price Book 70A
Effective July 28, 2008
(c)(i) In the event that certain Service warranties are not attached to this Agreement or
separately furnished, Company warrants only to Customer that the Services will be free
from defects in material and workmanship for a period of 6 moths from the date of
completion of the particular items of Service. Company’s sole obligation under this
warranty is limited to repairing or reperformance, at its option, of the Service; provided
however, if repair or reperformance is either impractical or impossible, the Company
will refund to Customer that portion of the price paid to the Company for the defective
item of Service. This warranty only applies if the company is given written notice of the
defect or nonconformance by the Customer within 30 days of discovery. (ii) The
provisions of this limited Service warranty does not apply to any defects or issues with
the design or performance of equipment or products not manufactured by Company, nor
does it apply to any code compliance or permit requirements for the assembly, installa-
tion, erection, or construction of any goods.
(d) NO OTHER WARRANTIES, EXPRESS OR IMPLIED, ARE MADE WITH
RESPECT TO THE PRODUCTS OR SERVICES INCLUDING, BUT NOT
LIMITED TO, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE.
(e) The following costs and expenses are not covered by the provisions of these limited
w
arranties: (i) labor costs for the removal and reinstallation of Products or other
manufacturer’s products; (ii) shipping and freight expenses required to return Products
to Company; (iii) normal maintenance; and (iv) economic losses. In addition, the
provisions of this warranty are not applicable to anything other than defects in
Company’s material (products only) or workmanship.
10. CUSTOMER'S REMEDIES. THE CUSTOMER'S EXCLUSIVE AND SOLE
REMEDY ON ACCOUNT OF, OR IN RESPECT OF, THE FURNISHING OF
PRODUCTS OR SERVICES THAT DO NOT CONFORM TO THIS AGREE-
MENT WILL BE TO (A) SECURE REPAIR OR REPLACEMENT OF THE
PRODUCTS; OR (B) SECURE REPAIR OR REPERFORMANCE OF THE
SERVICES OR TO OBTAIN A REFUND OF THE PRICE PAID FOR THE
DEFECTIVE SERVICE, ALL AT COMPANY’S OPTION. IN NO EVENT WILL
THE COMPANY'S MAXIMUM LIABILITY EXCEED THE SELLING PRICE
FOR THE PRODUCTS OR ITEM OF SERVICE.
11. LIMIT
ATION OF LIABILITY. IN NO EVENT WILL COMPANY BE
LIABLE FOR INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, OR
PUNITIVE DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF USE
OF THE PRODUCTS, SERVICE INTERRUPTION, LOSS OF PROFITS, LOSS
OF REVENUE, INTEREST, LOST GOODWILL, WORK STOPPAGE,
IMPAIRMENT OF OTHER GOODS, LOSS BY REASON OF SHUTDOWN OR
NON-OPERATION, INCREASED EXPENSES OF OPERATION, OR CLAIMS
OF CUSTOMER'S CUSTOMERS, WHETHER BASED ON CONTRACT,
WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO, STRICT
LIABILITY OR NEGLIGENCE), PATENT INFRINGEMENT, OR OTHER-
WISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12. STATUTE OF LIMITATIONS. NO ACTION ARISING OUT OF ANY
CLAIMED BREACH OF THIS AGREEMENT BY COMPANY MAY BE
BROUGHT BY CUSTOMER MORE THAN ONE (1) YEAR AFTER THE
CAUSE OF ACTION HAS ARISEN.
13. CONSUMER PR
ODUCTS
.
With respect to “consumer products” as defined under
the Magnuson-Moss Warranty Act (“MMWA”), the following statements are made. (a)
Some states do not allow limitations on how long an implied warranty lasts, so the
above limitation may not apply to you. IF ANY IMPLIED WARRANTY IS
PROVIDED UNDER THE MMWA, IT IS LIMITED TO THE DURATION OF
THE WARRANTY PROVIDED IN SECTION 9 ABOVE. (b) Some states do not
allo
w the exclusion or limitation of incidental or consequential damages, so the above
limitation or exclusion may not apply to you. (c) This warranty gives you specific legal
rights and you may also have other rights which vary from state to state.
14. FORCE MAJEURE.
Any delay or failure of Company to perform its obligations
hereunder will be excused to the extent that it is caused by an event or occurrence
beyond its control such as, by way of example and not by way of limitation, acts of
God, actions by any governmental authority (whether valid or invalid), governmental
laws and regulations not presently in effect, fires, floods, windstorms, explosions, riots,
natural disasters, wars, sabotage, accidents, labor problems (including, but not limited to,
lockouts, strikes, and slowdowns) at Company's facility, its source plant or their
suppliers, inability to obtain power, material, labor equipment, or transportation, or court
injunction or order. The delivery date will be extended for a time equal to that of the
delay and the schedule for Company’s performance will be deemed adjusted in the
individual order(s) to that effect.
15. ENTIRE
A
GREEMENT AND
AMENDMENT
. This Agreement, together with
any attachments or supplements specifically referenced in this Agreement, constitutes
the entire agreement between the parties hereto and supersedes all previous
communications, representations, or agreements, either oral or written, between the
parties hereto with respect to the subject matter hereof. No agreement or understanding
varying or expanding this Agreement will be binding upon either party hereto unless it is
in writing and signed by a duly authorized representative thereof.
16. TERMINATION. (a) This Agreement may be terminated by either party by giving
30 days' written notice to the other party in the event of failure by such other party to
fulfill any of its obligations hereunder. However, if during the period of such notice,
such other party remedies such failure, this Agreement will continue with the same force
and effect as if such notice had not been given. (b) This Agreement may be terminated
upon the written mutual consent of the parties. (c) Either party may immediately termi-
nate this Agreement by giving written notice to the other party in the event of the
happening of any of the following or any other comparable event: (i) insolvency of the
other party; (ii) filing of a petition in bankruptcy by or against the other party; (iii)
appointment of a receiver or trustee for the other party; or (iv) execution of an
assignment for the benefit of creditors by the other party, all of which will allow
Company to demand reclamation of all affected orders. (d) Except as provided in this
section 16, Customer may not terminate this Agreement, in whole or in part, unless
Company’s prior written consent is obtained and Customer agrees to pay all of
Company’s cancellation charges.
17. GO
VERNING LAW; VENUE; AND EXPENSES. (a) This Agreement and any
disputes or controversies arising hereunder will be governed by and construed according
to the internal laws of the State of Indiana, United States of America, without regard to
its conflict of law principles, and not including the United Nations Convention on
Contracts for the International Sale of Goods. (b) Jurisdiction and venue with respect to
any action, proceeding, or suit in connection with this Agreement will reside in the
courts of the State of Indiana. (c) Customer agrees to pay for all expenses (including
attorney’s fees) incurred by Company in enforcing the obligations of Customer under
this Agreement.
18. COMPLIANCE
WITH LAWS, EXPORT CONTROLS, CERTIFICATIONS,
AND NUCLEAR LIABILITY. (a) This Agreement is be subject to, and Company and
Customer will comply with, all laws and export controls, regulations, rules, orders,
licenses, requirements, and governmental requests now or hereafter in effect in the
United States of America that pertain to the Products or the initial sale of the Products or
that pertain to Services. Provided however, Company is not responsible for obtaining
or maintaining any permits for the performance of Services or the verification or com-
pliance with any code requirements relative to the performance of Services. To the
extent any sale of Products or Services pursuant to this Agreement may require approval
of the U.S. Government, Company’s obligations under this Agreement are conditioned
upon the grant of such approval and upon compliance by Customer with any restrictions
imposed by the U.S. Government in connection with such approval. (b) Certain Products
are noted by Company as tested by independent laboratories for compliance with UL
and/or ANSI standards. Any and all modifications or alterations to such Products will
void such certification, and Company is not liable to Customer to certify any modified
or altered Product. (c) In the event the Products are to be used in a nuclear facility, the
Customer shall, prior to such use, arrange for insurance or governmental indemnity pro-
tecting Company against liability. The Customer hereby releases and agrees to indemni-
fy Company and its suppliers for any nuclear damage including, but not limited to, loss
of use, in any manner arising out of the nuclear incident, whether alleged to be due, in
whole or in part by Company or its suppliers.
19. NO INDUCEMENTS. The parties hereto represent to each other and each agrees
that, neither it nor any person acting on its behalf has, in contravention of any applicable
law, given or offered to give, or will give or offer to give, any sum of money or other
material consideration to any person, directly or indirectly, as an inducement to obtain
business hereunder or to influence the granting of licenses or other governmental
permissions to enter into this Agreement or perform obligations hereunder.
20. SEVERABILITY. If any provision of this Agreement is held to be invalid, illegal,
or unenforceable under any statute, regulation, ordinance, executive order, or other rule
of law, that provision will be deemed severed to the extent necessary to comply with
such statute, regulation, ordinance, order, or rule. In the event such provision is deemed
severed, the parties will negotiate in good faith to arrive at an alternative arrangement
approximating the original business objective of the parties. The remaining terms and
conditions of this Agreement will remain in effect.
21. NO IMPLIED WAIVER. The failure of either party at any time to require
performance by the other party of any provision of this Agreement will in no way affect
the right to require such performance at any time thereafter, nor will the waiver of
either party of a breach of any provision of this Agreement constitute a waiver of any
succeeding breach of the same or any other provision.
22. MISCELLANEOUS
. (a) This Agreement does not constitute either party the agent
or legal representative of the other party. Neither party is authorized to create any
obligation on behalf of the other party including, but not limited to, the obligation for
payment of any service or warranty obligation hereunder. (b) Neither this Agreement nor
any right or obligation hereunder may be transferred or assigned by either party without
the prior written approval of the other party, except that Company can transfer or assign
this Agreement or any right or obligation (including, but not limited to the right to
receive payments for any orders) to Ingersoll-Rand Company or an
Ingersoll-Rand Company entity without first obtaining Customer’s consent. (c) The
rights and remedies herein reserved to Company will be cumulative and additional to
any other or further rights and remedies provided at law or equity. (d) Customer does
not have the right to setoff or to back charge against any amounts which become
payable to Company under this Agreement or otherwise. (e) The official text of this
Agreement is in the English language. If this Agreement is translated into another
language, the English text will govern any question with respect to interpretation. (f) The
headings in this Agreement are for convenience of reference only and do not affect the
meaning of this Agreement in any manner.
23. DEFINITIONS. (a) “Agreement” means Ingersoll-Rand Company, Security
Technologies Sector Terms and Conditions of Sale and Service. (b) “Company” means
Ingersoll-Rand Company, Security Technologies Sector. (c) “Customer” means the
Buyer. (d) “Buyer” means the purchaser of products or Services from Company. (e)
“U.S.” means United States of America.