perlick.com • [email protected] • 800.558.5592 98 QB\60534913.4 Last Updated February 15, 2021 6. SHIPMENT; RISK OF LOSS. Unless otherwise specified in this Agreement, all shipments are F.O.B. Origin. Risk of loss will pass to Buyer at the time an Offering is loaded and the carrier signs the bill of lading or departs any Seller or partner shipping dock. All shipments shall be governed by Seller’s Damage and Claims Policy in effect at the time of such shipment. Seller assumes no responsibility in connection with the shipment of the Offerings to Buyer. Title to goods that comprise the Offerings will remain with Seller until Seller receives full payment therefor. Shipping dates on any purchase order or material release order are estimates only. Seller will use reasonable efforts to meet the estimated shipping date, subject to Buyer’s prompt provision of all necessary, complete and correct specifications, information and data, but Seller may not be held responsible for failure to meet such estimated date. If Buyer requires special production service for unusual shipments, an additional charge may be imposed, as agreed upon by the parties. With respect to any goods included in the Offerings, if Seller delivers up to ten percent (10%) more or less than the quantity ordered by Buyer, Buyer shall accept such delivery and pay for such excess quantities. 7. CERTAIN BUYER OBLIGATIONS. Buyer shall (a) cooperate with Seller in all matters relating to the Offerings and provide access to Buyer’s premises, and to such office accommodations and other facilities as Seller requests for the purpose of performing or delivering any of the Offerings; (b) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that Seller deems necessary in order to complete and provide the Offerings in accordance with this Agreement; and (c) provide in a timely manner such customer materials or information that Seller requests in order to complete and provide the Offerings, and Buyer shall ensure that such customer materials and information are complete and accurate in all respects. 8. COMPLIANCE WITH LAWS. Buyer shall comply with all applicable federal, state and local laws, regulations, orders, and ordinances. Buyer represents and warrants that Buyer is and shall at all times remain in compliance with all laws administered by the U.S. Treasury Office of Foreign Assets Control or any other governmental entity imposing economic sanctions and trade embargoes (“Economic Sanctions Laws”) against designated countries, entities, and persons (“Embargoed Targets”). Buyer is not an Embargoed Target or subject to any Economic Sanctions Law, and Buyer shall not (a) directly or indirectly export, re-export, transship, or otherwise deliver Offerings or any portion of Offerings to an Embargoed Target, or (b) broker, finance, or otherwise facilitate any transaction in violation of any Economic Sanctions Law. 9. PRODUCT RECALLS. Seller shall reimburse Buyer for the reasonable and documented out-of-pocket costs and expenses incurred by Buyer in connection with any recall, repair, replacement or refund program which is caused by Seller’s gross negligence, intentional misconduct, or breach of the limited warranties set forth in Section 10, and which is (a) deemed necessary by Seller and Buyer or (b) is mandated by an order of a governmental agency to correct a manufacturing defect affecting the safety of the Offerings sold after notification by either party to such governmental agency; provided, that Seller shall not be responsible for reimbursing Buyer for any costs and expenses incurred by Buyer if such recall, repair, replacement or refund program relates to any deficiency or deviation, material part change, or part, sub-systems, software, product, packaging or service designs, trade dress, appearance or features in the Offerings provided or specified by Buyer. In the event a recall, repair, replacement or refund program is required, (i) Buyer shall fully cooperate with Seller, at Seller’s request, in the implementation and administration of any program of recall, repair, replacement or refund, and (ii) Buyer shall furnish to Seller such records regarding any program of recall, repair, replacement or refund as Seller shall reasonably request. Buyer shall notify Seller in a timely manner of any condition known to it that may affect the safety of the Offerings, and Buyer shall consult with Seller about any such condition prior to notifying any governmental agency. In no event shall reimbursement under this Section of reasonable and documented out- of-pocket costs include any amounts for lost profits or business goodwill or any other special, consequential, punitive or indirect damages. Nothing in this Agreement shall constitute a waiver or limitation by Seller of any constitutional, statutory, or other right to administrative or judicial review of any request, demand, or order of any governmental agency or body. 10. LIMITED WARRANTY. Seller warrants that at the time of shipment of goods or performance of services the Offerings will be free from material defects in materials and workmanship. The warranty expressly provided herein may only be asserted by Buyer and may not be asserted by Buyer’s customers or other users or beneficiaries of the Offerings. THIS LIMITED WARRANTY IS EXCLUSIVE AND IS IN LIEU OF ANY OTHER WARRANTY. OTHER THAN THE FOREGOING WARRANTY, SELLER HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE OFFERINGS (WHETHER GOODS OR SERVICES) INCLUDING ANY WARRANTY OF FITNESS FOR PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, AND AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. NO PERSON IS AUTHORIZED TO GIVE ANY OTHER WARRANTIES ON BEHALF OF SELLER OTHER THAN THOSE EXPRESSLY STATED HEREIN. Products manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with the Offerings. Third Party Products are not covered by the limited warranty set forth in this Section. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, OR AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. 11. LIMITATION OF REMEDIES AND DAMAGES. All claims for shipping error or freight damage must be in writing and must be made in accordance with Seller’s Damage and Claims Policy in effect at the time of such shipment, and must specify the quantity and condition of the Offering that was received by Buyer; failure to make any such claims within such time will be deemed to constitute Buyer’s irrevocable waiver of any such claims. Seller reserves the right to accept or reject any such claim in whole or in part. If Buyer believes that any goods delivered as part of the Offerings are defective, Buyer shall notify Seller of the same in writing within thirty (30) days of Buyer’s receipt thereof, and Buyer shall, at Buyer’s sole cost and expense, return such Offerings to Seller within ten (10) days of Seller’s written return material authorization (“RMA”) for such return. Buyer may not return any Offerings without Seller’s express written preauthorization in an RMA. Seller’s liability and Buyer’s sole and exclusive remedy hereunder will be limited to repair, replacement, or credit, at Seller’s option, with respect to any Offerings that Seller determines in its sole discretion is actually defective. Seller will not be liable for a breach of warranty if (a) the defect arises because Buyer fails to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use, or maintenance of the Offering, (b) Buyer alters or repairs the Offering without the prior written consent of Seller, or (c) the Offering becomes defective or inoperative due to normal use, accident, misapplication, abuse, or misuse. SELLER WILL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION TERMS AND CONDITIONS
