Terms and Conditions
1. Payment and Delivery
Purchaser shall pay for the Products listed on the first page of this Agreement pursuant to Purchaser's terms with Ivoclar. The Products will be delivered to Purchaser F.O.B.. Purchaser's loading dock. All transportation, insurance and other such charges shall be paid directly by Purchaser or, if arranged by Ivoclar, shall be for Purchaser's account and shall be added to and paid with the invoice. Purchaser agrees to pay the amount of any taxes resulting from this Agreement or any activities hereunder, exclusive of taxes based on net income of Ivoclar. Any personal property taxes, assessable on the Products after Delivery shall be borne by the Purchaser.
2. Risk of Loss
Risk of loss or damage to the Products shall pass to Purchase upon Delivery, regardless of whether the purchaser price has been paid in full. Unless otherwise advised, Ivoclar may obtain insurance for the full value of the Products shipped, or declare full value thereof to the carrier at the time of Delivery, and all such insurance costs shall be for Purchaser's account as set forth in paragraph 1. Confiscation or destruction of, or damage to, the Products shall not in any way affect the liability of Purchaser to pay the purchase price in full. Purchaser shall inspect the Products immediately upon receipt and shall promptly file claims with the carrier when there is evidence of shipping damage.
3. Limited Warranty
Ivoclar's sole warranty to Purchaser is that the Products sold hereunder will be substantially free of defects in material and workmanship, and the Products will substantially conform to Ivoclar's Products specifications. All Products will be deemed accepted upon Delivery unless Purchaser notifies Ivoclar in writing within ten (10) days of Delivery of any claimed defect.
Purchaser's SOLE REMEDY and Ivoclar's SOLE OBLIGATION to Purchaser or any third party hereunder is for Ivoclar to use diligent efforts to either repair nonconforming Products within a commercially reasonable time or to replace any of the Products so that they are in compliance with this Limited Warranty, or, in Ivoclar's sole discretion, to refund the purchase price of said nonconforming units upon return of the same to Ivoclar. If Purchaser is unable to describe the claimed nonconformity with sufficient specificity to enable Ivoclar to confirm it, then the nonconformity shall be deemed not to exist. If Purchaser, or any third party. modifies or attempts to modify any part of any of the Products, this Limited Warranty shall terminate immediately. This Limited Warranty is void if any nonconformity of any Product has resulted from accident, abuse, misuse, or misapplication.
This Limited Warranty is for Purchaser's exclusive benefit and is nontransferable. Ivoclar makes no warranties to any third parities whatsoever. Purchaser shall make no warranty on Ivoclar's behalf, and no employee of Ivoclar is authorized to permit Purchaser to do so. Purchaser conclusively agrees that under all circumstances this Limited Warranty fulfills its essential purpose. THIS LIMITED WARRANTY IS THE ONLY WARRANTY MADE BY IVOCLAR. THERE ARE NO OTHER WARRANTIES, WHETHER EXPRESSED OR IMPLIED. AND ALL WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE ARE EXPRESSLY EXCLUDED. THE REMEDIES STATED IN THE FOREGOING EXPRESS LIMITED WARRANTY
ARE THE PURCHASER'S EXCLUSIVE REMEDIES FOR DAMAGES AND ARE IN LIEU OF ALL LIABILITIES OR OBLIGATIONS OF IVOCLAR EXCEPT AS STATED HEREIN. NO ORAL OR WRITTEN ADVICE, ADVERTISEMENT OR INFORMATION PROVIDED BY IVOCLAR OR ANY OF ITS AGENTS OR EMPLOYEES SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS LIMITED WARRANTY. AND PURCHASER IS NOT ENTITLED TO RELY ON ANY SUCH ADVICE OR INFORMATION.
3. Use of products
If Purchaser desires to offer the Product(s) under Ivoclar's tradename and/or trademark, Purchaser shall obtain a Trademark/Servicemark License from Ivoclar and agree to abide by the terms thereof. Purchaser represents and warrants that the Products shall be used by Purchaser only for their intended commercial and business purposes and in accordance with any License quoted, and shall not be used or re-sold by Purchaser to any third party without the prior written consent of Ivoclar.
4.Limitation on Ivoclar's Liability
IN NO EVENT SHALL IVOCLAR OR ITS REPRESENTATIVES BE LIABLE TO PURCHASER OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES. LOST PROFITS, LOST SALES OR BUSINESS, EXPENDITURES, OR ANY GOOD WILL REGARDLESS OF THE LEGAL FORM OR BASIS FOR SUCH DAMAGES, IRRESPECTIVE OF WHETHER IVOCLAR HAS BEEN INFORMED OF, KNEW OF, OR SHOULD HAVE KNOWN OF THE LIKELIHOOD OF SUCH DAMAGES. IF ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY, DISCLAIMERS, AND EXCLUSIONS OF WARRANTY AND DAMAGES SET FORTH HEREIN SHALL REMAIN IN EFFECT. PURCHASER AGREES THAT IN NO EVENT SHALL IVOCLAR'S LIABILITY EXCEED THE PURCHASE PRICE PAID BY PURCHASER TO IVOCLAR WITH RESPECT TO THE PRODUCT UNITS AT ISSUE, THIS LIMITATION APPLIES TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT. BREACH OF WARRANTY, NEGLIGENCE, STRICT LIABILITY MISREPRESENTATION, AND OTHER TORTS. SOME STATES DO NOT ALLOW LIMITATIONS OR EXCLUSIONS OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES OR IMPLIED WARRANTIES SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY.
Purchaser shall be fully responsible for use of the Products obtained hereby and the results thereof, and for the condition. quality, sale, transfer, conveyance and/or disposal of any useful products, waste products or other consequences resulting from said use. Purchaser shall indemnify, defend and hold Ivoclar harmless from and against all claims, demands, suits, proceedings, losses, damages, costs, judgments, settlements, and liabilities, including without limitation, claims of third parties, regardless of form or legal basis, whether based in tort, contract, strict liability or otherwise, arising from or in connection with any breach of this Agreement or any actions involving sale or use of Products purchased hereunder. Such indemnification shall include the payment of all reasonable attorneys' fees and other costs and expense incurred by Ivoclar in defending and settling any such claim.
7. Remedies Upon Default
Failure of Purchaser to perform any or all of its obligations hereunder, including without limitation, payment in full for the purchase price of the Products, shall constitute a default hereunder and shall, in addition to any other available remedies, entitle Ivoclar to immediately cancel any License which accompanies sale of the Products.
Even if Purchaser uses its own form to order or acknowledge an order for Products, such order will nevertheless be governed by the terms of this Agreement, and any provisions which are different from or in addition to the provisions of this Agreement shall be of no force or effect. Ivoclar's acceptance of such order is expressly made conditional on Purchaser's assent to the terms of this Agreement.
This document represents the entire agreement with respect to the subject matter covered herein, and may only be amended by a writing, duly executed by an officer of Ivoclar. In the absence of such an amendment, commencement of performance by Ivoclar shall be for lvoclar's convenience only and shall not be deemed acceptance of any proposed amendment by Purchaser.
This Agreement shall be governed by and construed in accordance with the laws of the State of New York; venue and jurisdiction are agreed proper and valid in Erie County, New York. If any provision of this Agreement is deemed to be invalid or unenforceable in whole or in part, such provisions, to the extent that it is invalid or unenforceable, shall be deemed struck from the Agreement and shall not affect the validity or enforceability of the other provision hereof. Purchaser shall be responsible to pay all of Ivoclar's reasonable costs of collection and other enforcement, expenses relating to this Agreement, including attorney fees and court costs. Ivoclar shall not be liable for any failure or delay in performing any of its obligations hereunder if such failure or delay is due to any cause beyond the reasonable control of Ivoclar, including, but not limited to, Acts of God, war, insurrection, fire, flood, accident. labor strikes, work stoppage or slowdown, or inability to obtain raw materials, supplies, power or equipment.
If the financial responsibility of Purchaser becomes unreasonably impaired or unsatisfactory to Ivoclar, in its sole opinion, Ivoclar may require advance cash payment or security reasonably satisfactory to Ivoclar as a condition of sale and shipments may be withheld until such payment or security is received. PURCHASER ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT AND UNDERSTANDS AND AGREES TO ALL TERMS AND CONDITIONS STATED HEREIN, INCLUDING THE LIMITED WARRANTY AND LIMITATIONS OF LIABILITY.