and at the rate selected by Buyer when subscribing. In the event of early cancellation of a subscription, Buyer agrees thatSeller shall be entitled to retain as liquidated damages, and not as a penalty, any fees paid in advance, which the partiesagree reasonably approximate Seller’s actual damages. If Buyer moves the Equipment outside the approved region, Sellermay at its option charge Buyer additional fees or deactivate the Telematics Services. Buyer acknowledges that theTelematics Services are subject to limitations that are imposed by or affect the Teleservice Providers such as area coverage,network capacity, reception, interference with communication signals and other problems which may impede or preventprovision of Telematics Services. These may also include hills, tall buildings, tunnels, weather, systems design, damage toor destruction of telematics systems, accidents or congestion. Seller is not responsible for any of the foregoing conditions.Under no circumstances shall Seller be liable for the failure of a Teleservice Provider to perform. In addition, Seller shallnot be liable for delays or failures in performance or service interruptions due to circumstances beyond its control. Buyerunderstands that Seller and its Teleservice Providers cannot guarantee the security of wireless transmissions, and will notbe liable for any lack of or breach of security in such wireless transmissions while providing services under this Agreement.SELLER’S MAXIMUM LIABILITY UNDER ANY THEORY (INCLUDING TORT, BREACH OF CONTRACT OR PRODUCTLIABILITY) IS LIMITED TO THE AGGREGATE FEES TO BE PAID UNDER THIS AGREEMENT FOR THE CALENDARYEAR IN WHICH THE INCIDENT CAUSING DAMAGE OCCURS.21. Construction and Severability. These Terms and Conditions of Sale constitute the entire agreement between theparties regarding the subject matter hereof and shall be construed and enforced in accordance with the laws of Delaware.The United Nations Convention on Contracts for the International Sale of Goods (1980) (CISG) shall not apply. The invalidityor unenforceability of any provisions of this agreement shall not affect any other provision and this agreement shall beconstrued in all respects as if such invalid or unenforceable provision were omitted. In the event of any conflict between theEnglish version of this agreement and its translated version, the English version shall control.22. Jurisdiction. (a) Sales in the U.S. and Canada. The parties agree that the proper and exclusive forum and venue in alllegal actions brought to enforce or construe any of the provisions of this agreement shall be in the United States DistrictCourt, District of Delaware or, if federal jurisdiction is lacking in such legal action, in the Superior Court for New CastleCounty. (b) Sales Outside the U.S. The parties agree that the proper and exclusive forum and venue in all legal actionsbrought to enforce or construe any of the provisions of this Agreement shall be in the courts of London, England.23. No Assignment. No rights arising under this agreement may be assigned by Buyer unless expressly agreed to in writingby Seller.24. No Set-off. Buyer shall have no right to set-off any amounts it may owe Seller against amounts Seller may owe Buyerunder this or any other agreement between Buyer and Seller.25. Miscellaneous. Buyer represents that: (i) it is solvent and has the financial ability to pay for the Products purchasedhereunder, and (ii) it has all requisite right, power and authority to perform its obligations under this agreement.5 – Terex Parts Terms and Conditions of Sale (1April2019)
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