Product Catalog US-TANK-Parts-Direct-66 - Flipbook - Page 113
12. INDEMNITY (INCLUDING FOR NEGLIGENCE): TO THE MAXIMUM EXTENT PERMITTED BY LAW, BUYER HEREBY AGREES TO
INDEMNIFY, DEFEND, AND HOLD HARMLESS SELLER FROM AND AGAINST ANY AND ALL LOSSES, DAMAGES, INJURIES, CLAIMS,
CAUSES OF ACTION, LIABILITIES, DEMANDS AND EXPENSES (INCLUDING REASONABLE ATTORNEY FEES AND OTHER LEGAL EXPENSES) OF WHATSOEVER KIND AND NATURE, INCLUDING WITHOUT LIMITATION THOSE ARISING FROM INJURY TO, OR ILLNESS
OR DEATH OF ANY PERSON AND FOR ALL DAMAGE TO, LOSS OR DESTRUCTION OF PROPERTY, (COLLECTIVELY, “LOSSES”), RELATED TO OR ARISING OUT OF THIS AGREEMENT OR THE DELIVERY, INSTALLATION, USE, OPERATION OR CONSUMPTION OF
PRODUCTS, ANY BREACH OF WARRANTY OR THE FAILURE OF EITHER PARTY TO FULLY PERFORM THIS AGREEMENT, INCLUDING
WITHOUT LIMITATION ANY SUCH LOSSES ARISING IN OR FROM CONTRACT, TORT, STRICT LIABILITY, OR PRODUCT LIABILITY
OR CAUSED OR OCCASIONED BY ANY NEGLIGENT ACT OR OMISSION OF SELLER, WHETHER SOLE, JOINT OR CONCURRENT.
This Indemnity Provision is a material part of this Agreement, supported by and in consideration of a reduction in the purchase price.
In this Indemnity Provision, “Seller” means Seller, its parent, subsidiaries, affiliates, directors, officers, agents, representatives, employees, subcontractors, invitees and licensees.
13. DEFAULT: On any material breach of this Agreement by Buyer, including without limitation any failure of Buyer to make payments
when due, each such being an event of default, Seller will be entitled to terminate this Agreement, to all remedies provided by law
or equity, including without limitation its direct damages measured by lost profits as a volume seller. Any non-refundable down
payment required by this Agreement is less than the amount of Seller’s damages in the event Buyer breaches its obligation to take
delivery of Goods when tendered or to pay in full any amounts due.
14. LIMITATION OF LIABILITY: TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL HAVE ANY LIABILITY TO
THE OTHER FOR ANY INCIDENTAL, RESERVOIR, POLLUTION, SPECIAL, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES,
INCLUDING WITHOUT LIMITATION LOSS OF USE, REVENUES, PROFITS OR OTHER OPPORTUNITIES, ARISING FROM THE PURCHASE OR SALE OF PRODUCTS, THE USE, OPERATION OR CONSUMPTION OF PRODUCTS, ANY BREACH OF WARRANTY OR THE
FAILURE OF EITHER PARTY TO FULLY PERFORM THIS AGREEMENT, EVEN IF A PARTY WAS AWARE OF THE POSSIBILITY OF THE
OTHER PARTY SUSTAINING SUCH DAMAGES, AND EVEN IF THE REMEDY PROVIDED HEREIN FOR A BREACH FAILS OF ITS ESSENTIAL PURPOSE OR A BREACH IS TOTAL AND FUNDAMENTAL, AND EACH PARTY WAIVES THE APPLICATION OF ANY DECEPTIVE
TRADE PRACTICES OR CONSUMER PROTECTION LAW. SELLER’S MAXIMUM LIABILITY FOR ANY CLAIM BY BUYER SHALL NOT
EXCEED THE PURCHASE PRICE OF THE PRODUCTS ON WHICH THE CLAIM IS BASED.
15. EXPORTS: Seller reserves the right to rescind this Agreement, without any liability of Seller to Buyer, if at any time it reasonably
believes that Products are intended to or will be shipped, exported or re-exported, directly or indirectly, to any country, person or
other entity in contravention of any laws, regulations or administrative orders of the United States or any other jurisdiction to which
Seller is subject (a “Contravening Export”). Any actual intention or attempt on the part of the Buyer to effect a Contravening Export
will constitute a material breach of this Agreement. Buyer is required to identify the end use, end user, and country of final destination for Products included in this Agreement. Buyer warrants that, with respect to transactions related to this Agreement, it has not
committed, and will not commit, any violation of the US Foreign Corrupt Practices Act or any other anti-corruption statute.
16. ASSIGNMENT: Neither Party may assign any of its rights or delegate any of its duties under this Agreement, voluntarily or involuntarily, by merger, consolidation, dissolution, operation of law or any other manner without the express written consent of the other,
which shall not be unreasonably withheld but without which any attempted or purported assignment or delegation is void. This
Agreement binds and benefits both Parties and their respective permitted successors and assigns but does not confer any rights or
remedies on any other person.
17. WAIVER: The waiver by Seller of any breach of the provisions of this Agreement shall not be deemed to be a waiver of any subsequent breach of a like or different nature. The failure by Seller to enforce any provision of this Agreement shall not be deemed a
waiver of that provision.
18. DISPUTE RESOLUTION: TO THE EXTENT PERMITTED BY LAW, THE PARTIES KNOWINGLY, VOLUNTARILY AND INTENTIONALLY
WAIVE THEIR RIGHT TO A TRIAL BY JURY IN ANY ACTION, LEGAL PROCEEDING OR COUNTERCLAIM, WHETHER SOUNDING IN
CONTRACT, TORT OR OTHERWISE, ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS IT CONTEMPLATES.
19. INTERPRETATION AND VENUE: The Parties waive the application of the Convention on Contracts for the International Sales of
Goods to this Agreement. The laws of the State of Texas (without giving effect to its conflict of laws principles) govern all matters
arising out of or relating to this Agreement, including without limitation, its validity, interpretation, construction, performance and
enforcement. Venue for any action arising out of or relating to this Agreement shall be in Harris County, Texas; and the Parties waive
any claim of an inconvenient forum. Section headings are provided for convenience only.
20. SURVIVAL:The warranty, indemnity, limitation of liability, dispute resolution and interpretation and venue provisions herein survive the termination of this Agreement.
21. ENTIRE AGREEMENT: This Agreement contains the entire agreement of the Parties and incorporates any prior agreements or
understandings, whether written or oral, to the extent the Parties intend such to be incorporated. No writing henceforth exchanged
between the Parties will be effective to amend or supplement this Agreement, except that such writing expressly refers to this
Agreement and is signed by both Parties.
Phone: 713-300-5161 | tankpartsdirect.com | sales@tankpartsdirect.com
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