|
successors or assigns caused or contributed thereto. If Buyer fails to fulfill any of its obligations under this paragraph or this agreement,
<br />Buyer agrees to pay Seller all costs, expenses and attorney's fees incurred by Seller to establish or enforce Seller's rights. The
<br />provisions of this paragraph are in addition to any other rights or obligations set forth in this agreement.
<br />19. Installation. Unless otherwise expressly agreed in writing, Buyer shall be solely responsible for the installation and erection of the
<br />Products purchased. Although Seller may in some cases provide a serviceman, data and drawings to aid Buyer with installation or start-
<br />up, Seller assumes no responsibility for proper installation or support of any Products when installed and disclaims any express or
<br />implied warranties with respect to such installation and support. Notwithstanding whether data and drawings are provided or a
<br />serviceman aids in the installation, Buyer shall indemnify and hold Seller harmless and at Seller's request, defend Seller from all claims,
<br />demands or legal proceedings (including the costs, expenses and reasonable attorney's fees incurred in connection with the defense of
<br />any such matter) which may be made or brought against Seller in connection with damage or personal injury arising out of said
<br />installation or start-up.
<br />20. Force Majeure. Seller shall not be liable to Buyer or be deemed to be in breach of this agreement by reason of any delay in
<br />performing, or any failure to perform, any of Seller’s obligations in relation to the Products if the delay or failure was due to any cause
<br />beyond the reasonable control of Seller including (without limitation) strike, lockout, riot, civil commotion, fire, accident, explosion,
<br />tempest, act of God, war, epidemic, stoppage of transport, terrorist activity, supply shortage or changes in government, governmental
<br />agency, laws, regulations or administrative practices.
<br />21. Anti-Corruption; Export Controls; No Boycotts. Buyer agrees that it shall, and that any party retained or paid by the Buyer
<br />(“Retained Party”) shall, comply with all applicable laws including, but not limited to, laws prohibiting public corruption and commercial
<br />bribery. Buyer further agrees that it shall, and that any Retained Party shall, comply with all applicable export controls, economic
<br />sanctions, embargoes and regulations regarding the export, re-export, shipment, distribution and/or sale of Products, technology,
<br />information or warranty related services. Buyer further agrees that it shall not, and any Retained Party shall not, export or re-export
<br />Products, technology, information or warranty related services directly or with its knowledge indirectly into Iran, Sudan, Cuba, Syria,
<br />North Korea, the Crimea Region of the Ukraine or Russia without Buyer first obtaining written approval from Seller. Failure to comply
<br />strictly with this section and all applicable laws, regulations and licensing/approval requirements shall be grounds for immediate
<br />termination of this agreement by Seller. Notwithstanding anything to the contrary contained in any agreement between the Buyer and
<br />Seller or in any other document or agreement relating to the Products sold hereunder, Seller will not comply with requests related to the
<br />boycott of any country or other jurisdiction, except to the extent such boycott is required by or otherwise not inconsistent with United
<br />States law.
<br />22. Telematics. If a telematics system is included with the Equipment, the telematics system is administered by a third party
<br />(“Teleservice Provider”) and collects a range of operational data about the Equipment including, but not limited to, usage, performance
<br />and reliability. Buyer consents to Seller’s obtaining such data from the Teleservice Provider for warranty, product improvement,
<br />marketing and customer support purposes and to Seller’s management and reporting of data (personal and non-personal) about the
<br />Equipment including, but not limited to, fuel consumption, up/down times, operation, defects, parts replacement, movement and
<br />location. Buyer shall, to the extent required by applicable law, obtain consent from its customers and/or any third party for Seller and/or
<br />third parties to provide teleservices and data to Buyer. Buyer shall comply with all applicable laws relating to the provision of
<br />teleservices. Buyer agrees to be bound by the current version of the Terex Telematics Terms of Use at https://www.terex.com/en/
<br />products/telematics-tou.
<br />23. Construction and Severability. These Terms and Conditions of Sale constitute the entire agreement between the parties
<br />regarding the subject matter hereof and shall be construed and enforced in accordance with the laws of Delaware. The United Nations
<br />Convention on Contracts for the International Sale of Goods (1980) (CISG) shall not apply. The invalidity or unenforceability of any
<br />provisions of this agreement shall not affect any other provision and this agreement shall be construed in all respects as if such invalid
<br />or unenforceable provision were omitted.
<br />24. Jurisdiction. The parties agree that the proper and exclusive forum and venue in all legal actions brought to enforce or construe
<br />any provisions herein shall be in United States District Court, District of Delaware or, if federal jurisdiction is lacking in such action, in
<br />New Castle County Superior Court in Delaware.
<br />25. No Assignment. No rights arising under this agreement may be assigned by the Buyer unless expressly agreed to in writing by the
<br />Seller.
<br />26. No Set-off. Buyer shall have no right to set-off any amounts it may owe Seller against amounts Seller may owe Buyer under this or
<br />any other agreement between Buyer and Seller.
<br />27. Miscellaneous. Buyer represents that: (i) it is solvent and has the financial ability to pay for the Equipment and Parts purchased
<br />hereunder and (ii) it has all requisite right, power and authority to perform its obligations under this agreement.
<br />
<br />Buyer’s Initials: ________________
<br />5 - Terex USA, LLC dba Terex Utilities, Terms and Conditions of Sale, U.S. and Canada (except Quebec), Rev. 1 June 2023
|