- Taxes, Shipping. The Purchase Price specified on the first page of this Agreement does not include any (a) taxes payable on such price, or on the transfer, sale or use of the Product, or (b) shipping or other transportation charges, all shipments being made F.O.B. Seller’s facility. The Buyer shall pay all insurance, taxes, shipping charges, storage charges, and other costs or expenses relating to its receipt, transfer, sale and use of the Product. In the event Buyer’s account becomes past due, or is otherwise deemed insecure, Seller may, in its sole discretion, suspend, interrupt or disconnect activities under this Agreement. In the event of such suspension, interruption or disconnection, Buyer may be required to post a deposit or such other security, as Seller deems necessary in order to resume activities under this Agreement. In the event that a billing dispute should arise, Buyer must notify Seller in writing no later than 10 days after receipt of invoice. Buyer will be required to state in detail the nature of the claim, the amount in question and provide supporting documentation. Upon receipt of claim, Seller will investigate the claim and respond in writing no later than 45 days after receipt of the claim.
- Shipment Risk of Loss. Seller will ship the Products F.O.B. Haifa , Israel (“Seller’s Facility”). Risk of loss, damage or destruction of or to any Product(s) passes to Buyer upon delivery of the Product to Seller’s Facility.
- Confidentiality. Except as otherwise permitted in this Agreement, as required to enforce the terms of this Agreement, or otherwise authorized by Seller, Buyer agrees to treat any Product Technology as confidential, and to use it only as required in the use of the Product by Buyer, and not to disclose it to any third party. If Buyer is required to produce any such information by order of any government agency or regulatory body, subpoena or by law, its release of the required information will not constitute a violation of this provision, provided it provides the Seller with prompt notice of the requirement and cooperates, at no cost to it, in efforts to protect the information. Notwithstanding the foregoing, the confidentiality obligations set forth in this section shall not apply to any information which (i) is publicly available without breach of this Agreement, (ii) is independently developed by the Buyer outside the scope of this Agreement and without reference to or use of the Product Technology, or (iii) is rightfully obtained by the recipient party from third parties which are not obligated to protect its confidentiality
- Exportation and Other Regulations. Buyer will at all times comply with any and all applicable export rules, regulations and laws governing the importation or export of the Product.
- Warranties. SELLER WARRANTS TO THE BUYER THAT FOR A PERIOD OF ONE YEAR FROM SELLER’S SHIPMENT, THE PRODUCT WILL CONFORM WITH THE PRODUCT’S PUBLISHED SPECIFICATIONS FURNISHED WITH THE PRODUCTS. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. THIS WARRANTY SHALL BE VOID IF THE PRODUCT HAS BEEN TAMPERED WITH, MODIFIED, ABUSED, NEGLECTED, OR IMPROPERLY USED, OR DAMAGED FOR REASONS BEYOND SELLER’S CONTROL, SUCH AS ELECTRICAL POWER FLUCTUATIONS OR FAILURES, AND NATURAL DISASTERS. SELLER IS NOT RESPONSIBLE FOR USE OF THE PRODUCT IN COMBINATION WITH OTHER GOODS NOT PROVIDED OR AUTHORIZED BY SELLER.
- Default, Remedies. Buyer shall be in default under this Agreement upon the failure of Buyer to observe or perform any of Buyer’s agreements herein contained. In the event of default by the Buyer, Seller shall be entitled to collect from Buyer all costs, fees and expenses incurred to enforce its rights hereunder, including, without limitation, court costs, costs of arbitration, legal fees, and fees paid to other professionals or agencies. THE SELLER’S OBLIGATIONS, AND BUYER’S EXCLUSIVE REMEDY UNDER THIS AGREEMENT SHALL BE THE REPAIR OR REPLACEMENT OF A PRODUCT WHICH DOES NOT MEET THE WARRANTIES. SELLER WILL MAKE SUCH REPAIR OR REPLACEMENT AS ARE NECESSARY TO BRING THE AFFECTED PRODUCT IN CONFORMANCE WITH THE SELLER’S PUBLISHED SPECIFICATIONS FURNISHED WITH THE PRODUCTS, PROVIDED BUYER PROMPTLY NOTIFIES SELLER OF THE FAILURE IN WRITING WITHIN THE WARRANTY PERIOD, AND THE DEFECTIVE PRODUCT IS RETURNED TO SELLER WITH TRANSPORTATION CHARGES PREPAID BY BUYER, AND SELLER’S EXAMINATION OF SUCH PRODUCTS SHALL DISCLOSE TO ITS SATISFACTION THAT SAID DEFECTS EXISTS, AND SELLER MUST BE ABLE TO REPRODUCE SUCH DEFECT IN THE PRODUCT.
- DISCLAIMERS. EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY STATED HEREIN, SELLER MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE WHATSOEVER, EXPRESSED OR IMPLIED, ORAL OR IN WRITING. ANY LOSS, DAMAGE OR EXPENSE DIRECTLY OR INDIRECTLY ARISING FROM BUYER’S, ITS AGENTS’ OR ANY CUSTOMER’S INSPECTION, DELIVERY, PICK-UP, PURCHASE SHALL BE THE SOLE RESPONSIBILITY OF BUYER.
- Limitation of Liabilities. In no event shall Seller be liable for loss of profit, indirect, special, incidental, or consequential damages arising out of any breach of this Agreement or obligations under this Agreement. Seller shall not be liable for any damages caused by delay in delivery, installation, or furnishing of the Product. Seller’s liability under this Agreement shall in no event exceed the per unit Purchase Price under this Agreement for the Product that is the subject of any claim.
- Force Majeure. Seller shall not be liable for any delay or interruptions in performance under this Agreement, which is caused by any condition that is beyond the control of the Seller, including, without limitation, strikes, riots, acts of terrorism, acts of God, and unavailability of materials and goods used in the Products.
- Assignment. Buyer may assign this Agreement only with the written consent of the Seller, and any assignment without such consent shall be void. Subject to the foregoing, this Agreement shall be binding an inure to the benefit of permitted successors and assigns.
- Retention of Title. The Products shall remain the property of the Seller until Buyer’s complete payment of the Purchase Price, or as otherwise agreed. Notwithstanding the foregoing, Buyer does not acquire any property or proprietary rights in software, technical data, know-how, processes, algorithms, code, users manuals, documentation, or applications incorporated, embedded, included or otherwise provided in or with the Product (referred to herein as “Product Technology”), other than the right to use the Product Technology with the hardware. The Seller remains the exclusive owner of any intellectual or industrial property rights relating to the Product Technology and any and all trademarks represented by Seller’s company name, logos, and product names. The Product Technology is protected by patent copyright and trade secret laws. Buyer shall not copy or duplicate, remanufacture, translate, reverse engineer, decompile, or disassemble, nor shall Buyer permit any other person, including customers, end users, to copy or duplicate, remanufacture, translate, reverse engineer, decompile, or disassemble, all or any part of the Product or other Product Technology, in any manner .Buyer acknowledges and agrees that Seller will suffer irreparable harm which is not easily measured in monetary terms if Buyer violates the terms of this Agreement, and Buyer agrees that, in addition to all remedies (monetary and non-monetary) available to Seller, Seller shall be entitled to seek and receive temporary and permanent injunctive or similar equitable relief to immediately cause Buyer or any customer of Buyer to cease the conduct that violates this Agreement. Buyer agrees that it will not object to the granting of such relief, will not attempt to assert an affirmative or other defense, and will fully cooperate with Seller. The parties agree any such relief shall be granted without the posting of a bond or other monetary requirement by Seller.
- General. (a) If any provision of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired thereby. (b) The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any right hereunder. (c) This Agreement and these Terms and Conditions constitute the final written expression of the terms of agreement between the parties hereto, and supersede and replace all prior or collateral agreements, discussions, and/or understandings, whether written or oral, between the parties hereto. (d) This Agreement may only be amended in writing signed by all parties hereto and any condition to a party’s obligations hereunder may only be waived in writing by such party. (e) Buyer hereby consents to the exclusive jurisdiction of, and venue, in the state in which Seller is located as set forth in the first page of this Agreement. If requested by Seller, Buyer also agrees to binding arbitration in such jurisdiction to settle any disputes, such arbitration to be governed by the rules then in effect for the Israeli Institute of Commercial Arbitration. (f) This Agreement may be executed in counterparts, all of which together shall constitute the same instrument. (g) This Agreement and the performance hereunder shall be governed by the law of the State of Israel, (h) Any reference made to trade terms (such as F.O.B. or “Free on Board”) is deemed to be made to the relevant term of Incoterms published by the International Chamber of Commerce. Any reference made to a publication of the International Chamber of Commerce is deemed to be made to the version current at the date of conclusion of the Agreement. (i) The invalidity or unenforceability of any term of this Agreement shall not affect the validity and enforceability of the remainder of this Agreement, or any of its other terms, and such other terms shall be construed as though such invalid or unenforceable term was not included herein.