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or ship the defective goods to High Voltage’s factory, Purchaser, at its own
cost and expense, shall provide the facilities for such work as needed to
inspect and evaluate and possibly repair/replace the goods. If inspection
discloses that the defect is not one for which High Voltage is liable, then
Purchaser shall promptly reimburse High Voltage for all expenses incurred.
iii.
Upon receipt of the defective goods, or following access to the same,
High Voltage shall inspect and evaluate the goods and determine the
validity of Purchaser’s claim.
iv.
The validity of any warranty claim, Purchaser’s compliance with the
Limited Warranty and Limited Warranty Claim Procedure, and the
obligation to replace, repair, or issue credit for any goods are solely and
exclusively to be determined by High Voltage and any determination shall
be final and binding.
d.
THIS WARRANTY IS EXPRESSLY IN LIEU OF ALL OTHER
WARRANTIES, STATUTORY OR EXPRESSED OR IMPLIED ON THE
PART OF HIGH VOLTAGE, INCLUDING THE WARRANTIES OF
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE,
AND NON-INFRINGEMENT; FURTHERMORE, HIGH VOLTAGE
MAKES NO WARRANTY REGARDING NON-INTERRUPTION OF
USE OR SOFTWARE FREEDOM FROM BUGS. HIGH VOLTAGE
NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON,
FIRM, OR CORPORATION TO ASSUME ANY LIABILITY OR
OBLIGATION IN CONNECTION WITH THIS SALE OR LIMITED
WARRANTY ON HIGH VOLTAGE’S BEHALF AND PURCHASER
ACKNOWLEDGES THAT NO REPRESENTATION EXCEPT THOSE
MADE HEREIN HAS BEEN MADE TO PURCHASER.
10.
RETURNS.
No goods may be returned to High Voltage without High
Voltage’s prior written permission, which permission may be withheld by
High Voltage in its sole discretion. Any request for return authorization
must be in writing and include, as applicable, model number, serial number,
part number, reason for return, alleged defect, and apparent cause of alleged
defect. Except as specifically provided in Section 9 Limited Warranty, if
High Voltage consents to return of goods: (a) all return shipments are to be
via prepaid freight and with all other charges prepaid, (b) if goods are
returned to High Voltage within sixty (60) days from the date of original
shipment for reasons other than an error by High Voltage in filling the
Purchaser’s order, Purchaser shall only be entitled to receive a credit in an
amount equal to the payment received by High Voltage for the goods minus
(i) handling charges, and (ii) a restocking fee determined solely by High
Voltage which shall not exceed twenty five percent (25%) of the invoiced
amount, and (c) if goods are returned to High Voltage after sixty (60) days
from the date of original shipment for reasons other than an error by High
Voltage in filling the Purchaser’s order, Purchaser shall only be entitled to
receive a credit in the amount equal to the payment received by High
Voltage for the goods minus (x) a handling fee, and (y) a restocking fee in
excess of twenty five percent (25%) which shall be determined by High
Voltage.
11.
SECURITY INTEREST.
In order to induce High Voltage to ship
goods without full payment, Purchaser grants a security interest to High
Voltage in any and all of Purchaser’s right, title and interest in the goods,
and Purchaser agrees to comply with any reasonable request of High
Voltage to perfect such security interest. Purchaser hereby further
authorizes High Voltage to perfect High Voltage’s security interest in said
goods and consents to filing one or more financing statements without the
signature of Purchaser.
12.
ARBITRATION.
Any controversy arising out of or relating to this
document, or any breach thereof, including, without limitation, any claim
that this document is voidable or void, shall be submitted to final and
binding arbitration before, and in accordance with, the Commercial Rules of
the American Arbitration Association then in effect, and judgment upon the
award may be entered in any court have jurisdiction thereof; provided,
however, that this clause shall not be construed to limit any rights which
High Voltage may have to apply to any court of competent jurisdiction for
equitable, injunctive or provisional relief. This arbitration provision shall be
deemed self-executing, and in the event that either party fails to appear at
any properly noticed arbitration proceeding, an award may be entered
against such party notwithstanding said failure to appear. Such arbitration
shall be conducted before a single arbitrator under the aegis of the American
Arbitration Association in Columbia County, State of New York. The
arbitrator shall have the authority to award expenses to the successful party.
13.
LIMITATION OF LIABILITY.
TO THE MAXIMUM EXTENT
PERMITTED UNDER APPLICABLE LAW, AND
NOTWITHSTANDING ANYTHING ELSE IN THIS DOCUMENT OR
OTHERWISE, INCLUDING THAT HIGH VOLTAGE WAS WARNED
THAT DAMAGES WOULD OCCUR OR WERE LIKELY TO OCCUR,
HIGH VOLTAGE SHALL NOT BE LIABLE WITH RESPECT TO ANY
SUBJECT MATTER OF THIS DOCUMENT UNDER ANY CONTRACT,
NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR
EQUITABLE THEORY FOR (i) ANY AMOUNTS IN EXCESS IN THE
AMOUNT PAID TO HIGH VOLTAGE FOR THE PARTICULAR
GOODS OR PART THEREOF WHICH GAVE RISE TO THE
APPLICABLE CAUSE OF ACTION OR CLAIM, OR (ii) ANY
INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, LOST
PROFITS OR LOST OR CORRUPTED DATA, OR (iii) COST OF
PROCUREMENT OF SUBSTITUTE GOODS, SOFTWARE,
TECHNOLOGY OR SERVICES. HIGH VOLTAGE SHALL HAVE NO
LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS
BEYOND ITS REASONABLE CONTROL.
14.
SEVERABILITY.
These Terms and Conditions and Limited
Warranty are the entire understanding between Purchaser and High Voltage
with respect to the subect matter hereof and supersede all prior agreements,
dealings and negotiations. No modification, alteration or amendment shall
be effective unless made in writing and signed by a duly authorized
representative of High Voltage. No waiver of any breach hereof shall be
held to be a waiver of any other or subsequent breach. Nothing contained in
this document shall be construed as requiring the commission of any act
contrary to law. Whenever there is any conflict between any provision of
this document and any present or future statute, ordinance or regulation
contrary to which the parties have no legal right to contract, the latter shall
prevail, but in such event the provision of this document thus affected shall
be curtailed and limited only to the extent necessary to bring it within the
requirements of the law. In the event that any part, article, section,
paragraph, sentence or clause of this document shall be held to be indefinite,
invalid or otherwise unenforceable, the entire document shall not fail on
account thereof, and the balance of the document shall continue in full force
and effect. If any arbitration tribunal or court of competent jurisdiction
deems any provision hereof (other than for the payment of money)
unreasonable, said arbitration tribunal or court may declare a reasonable
modification thereof, and this document shall be valid and enforceable, and
the parties hereto agree to be bound by and perform the same as thus
modified.
15.
BASIS OF BARGAIN
. Each party recognizes and agrees that the
warranty disclaimers and liability and remedy limitations in this document
are material, bargained for bases of their agreement and that they have been
taken into account and reflected in determining the respective obligations of
the parties.
[End]
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