HHD Series Heavy Duty Hydraulic Cylinders

60 Terms & Conditions Specifications and prices are subject to change without notice or incurring obligations. FABCO-AIR, Inc., 3716 N.E. 49th Avenue, Gainesville, FL 32609 • www.fabco-air.com PROPERTY AND PATENT RIGHTS 1. Seller retains for itself any and all property rights in and to all designs, inventions and improvements pertaining to any Goods designed in connection with the quotation and to all patents, trademarks, copyrights and related industrial property rights arising out of the work done in connection therewith. Buyer expressly agrees that it will not assert any rights to property rights retained herein by Seller. 2. Seller will indemnify and hold harmless Buyer from any and all costs, expenses and damages resulting from any suit based on any claim of infringement of a United States patent by reason of its use (in the manner contemplated by Seller) of the Goods, or any part thereof, furnished under this quotation, provided that Buyer: (i) promptly notifies in writing Seller of any such claim or the institution of any such suit; (ii) fully cooperates with Seller in connection with the defense thereof; and (iii) allows, without condition, Seller to have the full and exclusive right to defend any such suit to the extent any of the Goods furnished under the quotation is involved therein. In the event of any such claim or suit, Seller shall have the right to modify or replace the Goods involved in any claim of infringement or to remove such Goods and refund to Buyer the purchase price thereof less fifteen (15) percent to each full year from the date of shipment of the Goods. NOTWITHSTANDING THE FOREGOING, SELLER’S CUMULATIVE LIABILITY FOR INDEMNIFICATION UNDER THIS PARAGRAPH SHALL NOT EXCEED THE PURCHASE PRICE FOR THE GOODS INVOLVED IN ANY SUCH CLAIM OF INFRINGEMENT. This Paragraph shall not apply to (i) any foreign patents; (ii) any process in which the Goods are used; (iii) any product made by Buyer; or (iv) any claims or suits involving solely goods not manufactured or designed by Seller harmless from any liability arising out of any infringement of any patent in the manufacture, sale or use of any goods or parts thereof manufactured by Seller to Buyer’s design specifications. RESERVATION OF RIGHTS IN RESPECT TO SELLER’S OTHER PRODUCTS Seller reserves the right to make improvements and changes in design of the Goods it offers for sale without any obligation to make such changes or improvements upon the Goods that are the subject of this quotation or Goods previously manufactured and sold by it. CHANGES Buyer accepts the limited capabilities of the Goods, their materials and components upon approving the design of the Goods. Buyer shall bear the cost of all subsequent changes to the design, materials and/or components of the Goods subsequent to approving the design. Buyer shall request all such changes by change order, and pay the cost of the change, in full, within 30 days of submitting the change order. LIMITATION OF ACTIONS Buyer agrees that, any action to recover for any loss or damage under any theory of liability, in any way related to this quotation or from the performance or breach thereof, or from the design, manufacture, sale, delivery, resale, installation, technical direction of installation, inspection, repair, operation or use of any Goods covered by or furnished under this quotation must be commenced within one year after the cause of action accrues to Buyer, unless otherwise extended by Seller in writing. It is expressly agreed that there are no warranties of future performance pertaining to the Goods that are the subject of this quotation that would extend beyond such one year period of limitation. CANCELLATION 1. In the event Buyer requests Seller to stop work or cancel its purchase order based on this quotation, the order or any part thereof, cancellation charges shall be paid to Seller as follows: Any and all work that is complete or scheduled for completion within thirty (30) days of the date of notification in writing to stop work or to cancel, shall be invoiced and paid in full. 2. For work in process, other than covered by item 1, and any materials and supplies procured or for which definite commitments have been made by Seller in connection with Buyer’s order, Buyer shall pay the actual costs and overhead expenses determined in accordance with good accounting practices, plus 15 percent. 3. An amount equal to 15 percent of the difference between the cancellation charge as computed in item 2 and the full purchase price of the Goods will be charged as compensation for business irretrievably lost as a result of accepting a purchase order based on this quotation and having such purchase order cancelled by Buyer. 4. Buyer shall promptly instruct Seller as to the disposition of the Goods and the latter shall, if requested, hold the Goods for Buyer’s account. All costs of storage, insurance, handling, boxing or other costs in connection therewith shall be borne by Buyer. APPLICABLE LAW These Terms and Conditions, quotation and the rights, obligations and liabilities of the parties, shall be construed pursuant to the laws of the State of Florida. COMPLETE AGREEMENT 1. Any orders received by Seller in response to this quotation shall not be binding or firm orders until approved by Seller. This quotation, when accepted by Buyer in accordance with the Acceptance paragraph hereof, and when Seller’s acknowledgement of receipt of acceptance is given to Buyer, shall constitute the entire agreement between the parties relating to this quotation and the Goods provided pursuant thereto, shall supersede all previous communications or understandings between Buyer and Seller with respect to the subject matter hereof and no alteration or addition to this quotation shall be binding on Seller unless it is in writing and signed by a duly authorized officer of Seller. 2. The parties hereto agree that if any clause is held unenforceable by a court of competent jurisdiction, the balance of the contract shall remain in full force and effect. WAIVER OF TERMS AND CONDITIONS Failure or delay of Seller to insist upon strict performance of any of the Terms and conditions of this quotation or to exercise any rights or remedies Provided herein or by law, shall not release Buyer from any of the obligations of this quotation and shall not be deemed a waiver of any right of Seller to insist upon strict performance hereof or of any rights or remedy of Seller as to any prior or subsequent default hereunder. Rev 10/16 12-7-16