Page 75 - FluoropolymerHoseCatalog5162F

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Catalog Number 5162E
special tooling shall be and remain Seller’s property
notwithstanding payment of any charges by Buyer. In no event
will Buyer acquire any interest in apparatus belonging to Seller
which is utilized in the manufacture of the Products, even if
such apparatus has been specially converted or adapted for
such manufacture and notwithstanding any charges paid by
Buyer. Unless otherwise agreed, Seller shall have the right to
alter, discard or otherwise dispose of any special tooling or
other property in its sole discretion at any time.
11. Buyer’s Obligation; Rights of Seller. To secure payment
of all sums due or otherwise, Seller shall retain a security
interest in the goods delivered and this agreement shall
be deemed a Security Agreement under the Uniform
Commercial Code. Buyer authorizes Seller as its attorney
to execute and fle on Buyer’s behalf all documents Seller
deems necessary to perfect its security interest. Seller shall
have a security interest in, and lien upon, any property of
Buyer in Seller’s possession as security for the payment of
any amounts owed to Seller by Buyer.
12. Improper use and Indemnity. Buyer shall indemnify,
defend, and hold Seller harmless from any claim, liability,
damages, lawsuits, and costs (including attorney fees),
whether for personal injury, property damage, patent,
trademark or copyright infringement or any other claim,
brought by or incurred by Buyer, Buyer’s employees, or any
other person, arising out of: (a) improper selection, improper
application or other misuse of Products purchased by Buyer
from Seller; (b) any act or omission, negligent or otherwise,
of Buyer; (c) Seller’s use of patterns, plans, drawings, or
specifcations furnished by Buyer to manufacture Product; or
(d) Buyer’s failure to comply with these terms and conditions.
Seller shall not indemnify Buyer under any circumstance
except as otherwise provided.
13. Cancellations and Changes. Orders shall not be subject
to cancellation or change by Buyer for any reason, except with
Seller’s written consent and upon terms that will indemnify,
defend and hold Seller harmless against all direct, incidental
and consequential loss or damage. Seller may change
product features, specifcations, designs and availability with
notice to Buyer.
14. Limitation on Assignment. Buyer may not assign its
rights or obligations under this agreement without the prior
written consent of Seller.
15. Entire Agreement. This agreement contains the entire
agreement between the Buyer and Seller and constitutes
the fnal, complete and exclusive expression of the terms
of the agreement. All prior or contemporaneous written or
oral agreements or negotiations with respect to the subject
matter are herein merged.
16. Waiver and Severability. Failure to enforce any provision
of this agreement will not waive that provision nor will any
such failure prejudice Seller’s right to enforce that provision
in the future. Invalidation of any provision of this agreement
by legislation or other rule of law shall not invalidate any
other provision herein. The remaining provisions of this
agreement will remain in full force and effect.
17. Termination. This agreement may be terminated by
Seller for any reason and at any time by giving Buyer thirty
(30) days written notice of termination. In addition, Seller may
by written notice immediately terminate this agreement for
the following: (a) Buyer commits a breach of any provision of
this agreement (b) the appointment of a trustee, receiver or
custodian for all or any part of Buyer’s property (c) the fling of
a petition for relief in bankruptcy of the other Party on its own
behalf, or by a third party (d) an assignment for the beneft of
creditors, or (e) the dissolution or liquidation of the Buyer.
18. Governing Law. This agreement and the sale and
delivery of all Products hereunder shall be deemed to have
taken place in and shall be governed and construed in
accordance with the laws of the State of Ohio, as applicable to
contracts executed and wholly performed therein and without
regard to conficts of laws principles. Buyer irrevocably
agrees and consents to the exclusive jurisdiction and venue
of the courts of Cuyahoga County, Ohio with respect to any
dispute, controversy or claim arising out of or relating to this
agreement. Disputes between the parties shall not be settled
by arbitration unless, after a dispute has arisen, both parties
expressly agree in writing to arbitrate the dispute.
19. Indemnity for Infringement of Intellectual Property Rights.
Seller shall have no liability for infringement of any patents,
trademarks, copyrights, trade dress, trade secrets or similar
rights except as provided in this Section. Seller will defend
and indemnify Buyer against allegations of infringement of
U.S. patents, U.S. trademarks, copyrights, trade dress and
trade secrets (“Intellectual Property Rights”). Seller will
defend at its expense and will pay the cost of any settlement
or damages awarded in an action brought against Buyer
based on an allegation that a Product sold pursuant to this
Agreement infringes the Intellectual Property Rights of
a third party. Seller’s obligation to defend and indemnify
Buyer is contingent on Buyer notifying Seller within ten
(10) days after Buyer becomes aware of such allegations of
infringement, and Seller having sole control over the defense
of any allegations or actions including all negotiations
for settlement or compromise. If a Product is subject to a
claim that it infringes the Intellectual Property Rights of
a third party, Seller may, at its sole expense and option,
procure for Buyer the right to continue using the Product,
replace or modify the Product so as to make it noninfringing,
or offer to accept return of the Product and return the
purchase price less a reasonable allowance for depreciation.
Notwithstanding the foregoing, Seller shall have no liability
for claims of infringement based on information provided
by Buyer, or directed to Products delivered hereunder for
which the designs are specifed in whole or part by Buyer, or
infringements resulting from the modifcation, combination or
use in a system of any Product sold hereunder. The foregoing
provisions of this Section shall constitute Seller’s sole and
exclusive liability and Buyer’s sole and exclusive remedy for
infringement of Intellectual Property Rights.
20. Taxes. Unless otherwise indicated, all prices and charges
are exclusive of excise, sales, use, property, occupational or
like taxes which may be imposed by any taxing authority upon
the manufacture, sale or delivery of Products.
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