Fronius USA LLC (“Seller”) / General terms and conditions of sale
1. Applicable Law and Jurisdiction.
These general terms and conditions of sale (“Terms and Conditions”) apply to all proposals and quotations submitted by Seller to a purchaser ("Buyer") of goods ("Goods") and/or services, including without limitation, assembly, installation, inspection, maintenance or repair of Goods (“Services”), to be provided hereunder, to all purchase orders received by Seller from Buyer, and to all Goods and Services sold by Seller to Buyer, except as otherwise specifically provided in a document signed by Seller. This sale of Goods and/or Services or any sale of Goods and/or Services resulting therefrom is governed only by these Terms and Conditions and those terms and conditions contained in other documents which are referred to herein or are attached hereto or in a document subsequently signed by Seller and referencing this sale of Goods and/or Services (all of which constitute the "Agreement"). The Agreement shall be governed, construed and enforced under the law of the State of Michigan including the Uniform Commercial Code in force on the initial date of the Agreement ("UCC"), except as provided herein. The U.N. Convention on the International Sales of Goods and Services shall not apply provided the parties’ choice of law is enforced. Any Services to be provided hereunder, whether or not they are otherwise ancillary to and part of a sale of Goods (as separate units), shall be considered ancillary to a sale of Goods and the UCC shall apply. The courts of Michigan shall have exclusive jurisdiction over the parties and the claims arising under or related to the Agreement. The parties stipulate to the exclusive jurisdiction, of the Livingston, Michigan Circuit Court arising under or in connection with this agreement. Any declaration of unenforceability of a provision hereof shall be as narrow as possible and shall not affect the enforceability of the other provisions of the Agreement.
2. Formation, Integration and Modification
(A) These Terms and Conditions supersede all previous proposals, quotations and agreements pertaining to the Goods and/or ServicesSeller's actions in reliance on Buyer's oral acceptance of a written or oral proposal or quotation, or Seller’s receipt and approval of a purchase order for Goods and/or Services from Buyer, will constitute a binding contract under the terms hereof. Such an Agreement or any order is subject to Seller's revocation or cancellation without liability until the sale of Goods and/or Services is acted on by Seller. Notice of such approval may be furnished to the Buyer in the form of an acknowledgment, shipment, or other form of express approval. (B) An order submitted by Buyer orally or in a purchase order or other writing (whether or not it contains terms or conditions modifying, adding to, or inconsistent with the Agreement), may be accepted, approved or filled by Seller, but the liabilities or obligations of Seller shall be determined solely by these Terms and Conditions, and (unless the Seller otherwise advises Buyer in writing) notice is hereby given that Seller objects to any such terms or conditions in Buyer's purchase order or other writing. Seller shall not be deemed to have in any way modified its liabilities or obligations under any Agreement by filling such order or by failing to object to Buyer's terms or conditions. (C) Any such Agreement is a final, complete and exclusive statement of the Agreement of the parties. No modifications, limitations, waivers or discharge of an Agreement or any of its terms shall bind Seller unless in writing and signed by Seller's authorized representative. Notwithstanding anything to the contrary in the Agreement, no modification, limitation, waiver or discharge of any provision of the Agreement shall affect the Buyer's liabilities to Seller accrued prior thereto. Seller may correct unilaterally any mathematical and typographical errors in an Agreement. A course of performance, course of dealing, or custom in the trade shall not constitute a modification or waiver by Seller of any right, liability or obligation. (D) The Agreement is only for the benefit of the parties, except all disclaimers and limitations applicable to Seller shall be for the benefit of Seller's agents, employees, contractors, and suppliers. If any provisions are determined to apply to third parties, all other provisions including limitations, waivers, and disclaimers shall also apply. (E) Goods and/or Services quoted to Buyer are subject to availability at the time of order. NOTE: THE SELLER IS WILLING TO NEGOTIATE WRITTEN CHANGES TO THE AGREEMENT, BUT RESERVES THE RIGHT TO MAKE AN ADJUSTMENT IN THE PRICE OF THE GOODS AND/OR SERVICES.
3. Prices, Risk of Loss and Payment
(A) Prices contained in Seller's published price lists, if any, are subject to change without notice. Prices contained in individual written quotations or proposals are firm only for a period of thirty (30) days from the date of the quotation or proposal, after which Buyer should inquire of Seller as to their validity and request a written confirmation or revision. Prices do not include taxes and Buyer shall pay all applicable sales or other taxes levied with respect to Goods (and replacements), Services and the Agreement, unless exempt therefrom. Prices are always consistent with the price list on the day of delivery. They apply Ex Works (EXW [Incoterms 2010]), but exclusive of packaging, insurance, loading at the factory and taxes. Unless otherwise agreed by the parties, all prices are in U.S. dollars. Buyer shall pay all government fees levied on the installation and inspection of the Goods or performance of the Services. (B) With respect to Goods, the Agreement is for a shipment contract and the Goods shall be delivered F.O.B. Seller’s domestic facilities dock; packaging is non returnable. Whether or not Seller prepays shipping charges, risk of loss passes to Buyer upon tender of the Goods to a carrier. Seller is not responsible for prepaying transportation or insurance costs. Seller's breach of any Agreement shall not affect the passing of the risk of loss to Buyer notwithstanding any provision of law to the contrary. (C) Except as otherwise provided in the Agreement, Seller shall not be responsible for any freight, transportation, insurance, shipping, storage, handling, demurrage or similar charges arising out of the performance of this Agreement. If such charges are specifically included in the price of Goods and/or Services, any increase in rates effective after the date the price is quoted to the Buyer shall be added to the price. (D) Invoices may be rendered separately for each shipment (including any early shipment) of Goods made by Seller and for Services provided by Seller. Buyer shall pay all invoices net thirty (30) days after the date of the invoice. Buyer may deduct 2% of the cost of the Goods and/or Services, excluding taxes and transportation or shipping expenses if Seller receives payment within ten (10) days from the date of the invoice. Seller may change any payment term on seven (7) days written notice to Buyer. Buyer shall not withhold or set-off any payments owed to Seller for any reason. (E) Seller may unilaterally increase prices to cover increased costs (plus reasonable overhead and profit) required by changes requested by Buyer after the date of any quotation or proposal. (F) All amounts not paid to Seller when due shall incur a carrying charge of 1.5% per month to the extent allowed by law and otherwise at the highest written contract rate allowed by law. (G) All amounts due on installation or other event which requires the action or cooperation of Buyer which Buyer fails to supply timely shall become immediately due upon such failure. (H) All export and import duties, fees, permits, licenses, etc. for Goods and/or Services to be delivered or performed outside of the United States shall be the responsibility of the Buyer unless otherwise agreed.
4. Delivery
Shipping and/or performance dates are estimates based on Seller's present engineering and manufacturing capacity and scheduling, and may be revised by Seller upon receipt or scheduling of Buyer's order. All shipping and/or performance dates are approximate and shall be computed from the date of entry of the order on Seller's books. All shipping and/or performance dates are further subject to Seller's prompt receipt from Buyer of a written purchase order or acceptance, letter of credit, down payment, and any other conditions specified in the Agreement, and of all drawings, information and approvals necessary to provide the Goods and/or Services and to grant any credit proposed in the Agreement, as determined in Seller’s sole discretion.
5. Delay of Shipment or Performance Excused for Various Reasons
(A) If shipment or performance of any Goods and/or Services is delayed at the request of or due to the fault of the Buyer, the Seller may, at its option, withhold the Goods or Services at the risk and expense of the Buyer from the time such Goods are ready for shipment and/or such Services are ready for performance. In the event of any such delay, full and final payment for any Goods and/or Services shall be due and payable thirty (30) days after the Buyer is notified that the Goods are ready for shipment and/or the Services are ready for performance. If Seller is unwilling to accommodate the Buyer by holding any Goods, the Buyer shall accept shipment immediately. (B) In addition, the Seller shall not be in default because of its delay or failure to deliver or perform resulting, in whole or in part, from: (i) any foreign or domestic embargoes, seizures, acts of God, insurrections, war, or the adoption or enactment of any law, ordinance, regulation, ruling or order; (ii) the lack of usual means or transportation, fires, floods, explosions, strikes or any other accidents, contingencies, or events, at the Seller's or its supplier's plant or elsewhere (whether or not beyond the Seller's control) which directly or indirectly interfere with, or render substantially more burdensome, Seller's production, or delivery of Goods, or performance of Services; or (iii) delays caused by Buyer. In the event that one or more deliveries or performance hereunder is delayed by any reason provided in this Section for a period of thirty (30) days, Seller may, at its option, terminate the Agreement as to the applicable Goods and/or Services or waive such delay and establish a new delivery or performance schedule.
6. Inspection, Testing and Rejection
(A) If any Agreement expressly provides for Buyer's inspection and/or acceptance of the Goods and/or Services, Seller's standard test procedures conducted by Seller's representative shall be the criteria for inspection and/or acceptance, unless other specific procedures have been specified in the Agreement explicitly and agreed to by Seller. (B) All drawings, specifications, technical documentation, samples, prototypes, Goods and Services shall be deemed approved and/or accepted by Buyer if Buyer does not provide a written objection and/or rejection to Seller within seven (7) days of receipt of Goods or performance of Services, or other reasonable time established by Seller. Any objection and/or rejection by the Buyer must be in writing to the Seller and state with specificity all defects and non -conformities upon which Buyer will rely to support its rejection. ALL DEFECTS AND NON-CONFORMITIES WHICH ARE NOT SO SPECIFIED ARE WAIVED. (C) If the Agreement requires, or Seller requests in writing, inspection or testing prior to shipment of any Goods, upon notification by Seller that the Goods are ready for inspection or testing, the Buyer shall provide at the place designated by Seller, at its own expense, one or more qualified and authorized representatives to inspect and/or test the Goods, check them for general compliance with the Agreement, and authorize shipment. If Buyer fails to do so within seven (7) days of notification by Seller, then the Seller may, in its own discretion, determine that Buyer has waived the right of inspection, testing and/or acceptance prior to shipment and ship the Goods. Correction of defects or non-conformities, which would likely have been discovered by Buyer's inspection and/or testing and would be covered by Seller's warranty, will be at the Buyer's expense. (D) Buyer shall provide, at its cost and risk of loss, all materials, fixtures, equipment, tooling and other items necessary for any inspection and/or testing required by the Agreement or requested by Seller. If the Buyer fails to supply such items within the time required, Seller may supply them at Buyer's expense or test by such means as available to Seller. Materials, fixtures, equipment, tooling and other items furnished by Buyer for testing and/or inspection will be returned to Buyer at Buyer's cost, unless Buyer authorizes their disposal.
7. Installation
(A) Unless otherwise agreed, all Goods shall be assembled, installed, maintained, operated, inspected and repaired by and at the expense of the Buyer. Seller may furnish, upon request and without additional cost or liability to Seller, written instructions for assembling, installing, maintaining, and operating the Goods. At Buyer's request and cost, Seller may furnish personnel and equipment to assist in the installation and/or startup of the Goods or to provide other such Services. Buyer shall pay Seller its prevailing per diem rates for such personnel and equipment plus reasonable transportation, food, lodging and other travel expenses. Buyer shall have competent supervisory, maintenance and operating personnel present when Seller's personnel are performing such Services. Unless otherwise agreed, Buyer shall provide Seller, at no cost, with equipment and auxiliary materials (e.g., winches, rails, electricity, etc.) necessary to install the Goods. (B) Buyer assumes all risk of using the Goods and/or having Services performed in its location and in connection with other equipment. Seller has no responsibility to determine the adequacy of the foundation, the utilities, the skills of Buyer's staff, or other matters.
8. Software License
The Seller grants the Buyer, for its internal use only, a nonexclusive, perpetual license ("License") to all user manuals, software programs, firmware, and storage media ("Software") provided by the Seller in conjunction with the Goods with which the Software is provided, for the sole purpose of the operation of the Goods. This License terminates automatically if Buyer is in default of any of its obligations under the Agreement. The Software may be provided in machine readable object code only. Buyer may make and keep one copy of the object code, if provided by Seller, for backup purposes. When making a copy, the Buyer shall reproduce all of Seller's copyright or patent notices in all forms originally included in the Software. Buyer shall not make any effort to obtain or reproduce the Software's source code. Title and all ownership rights to the Software remain with the Seller. The Software is the proprietary information and trade secret of the Seller, whether or not any portion thereof is or may be validly copyrighted or patented. The License may not be assigned nor transferred by Buyer, except as a part of a transfer of the Goods, without the written consent of Seller which may be withheld. Buyer shall maintain the confidential nature of the Software and related materials and protect them against disclosure or improper use. Buyer shall pay all taxes on the Software or use of the Software, however designated or levied, except those based on Seller's net income. These provisions take precedence over any government procurement policy, regulation, or contract clause relating to rights in computer software. All disclaimers and limitations applicable to the Goods apply to the License and Software.
9. General Warranties
(A) Seller warrants to Buyer only, that the portions of Goods manufactured by Seller shall be free from manufacturing defects in materials and workmanship which are discovered within the warranty period, subject to the disclaimers and limitations of the Agreement. Notwithstanding any differing warranty period that Seller may give as to Goods, the warranty period as to Services, measured from the date of invoice for the Services, or from the date of the Services if the original invoice cannot be provided, shall be ninety (90) days. This is not a warranty of performance, but a limited warranty as to the condition of the Goods at the beginning of the warranty period. Because the Goods may be subject to a wide variety of uses, installations, maintenance, operation and cleaning, the warranty is only against defects and not against any other failures such as, but not limited to, those due to wear and tear, or alteration by third parties. (B) Seller warrants to Buyer that the Goods will be as described in the Agreement in all material respects, subject to the limitations stated herein and Seller's published and internal standards; however, Seller retains the right to change the dimensions, composition, design, performance, color and appearance of the Goods without liability if, in its judgment, the change is non -material. Seller may, in its discretion, also rely on any generally accepted industry standards. Seller does not give any guarantee for normal deviations of measure, weight or quality or those tolerated by the Austrian (ÖNORM), EN or DIN standards; likewise, Seller does not assume any guarantee for any information concerning the prospective suitability for the customer of the item delivered, or otherwise for any other specific purpose. (C) Seller's warranties shall apply only if the Goods: (i) have been assembled, installed, maintained, operated, inspected and repaired in conformity with instructions furnished by Seller from time to time, if any; (ii) have been subjected to normal use for the purpose for which Goods were designed; (iii) have not been subjected to misuse, negligence, or accident; (iv) have not been altered, modified or repaired by persons other than Seller in any respect which, in the judgment of Seller, adversely affects the condition or operation of the Goods; and (v) are not used by a third party.
10. Patent Warranties
Seller shall defend and indemnify Buyer from any claim which asserts that the Goods or their inherent methods of operation, intrinsically, infringe any United States patent, except as to a claim based on Buyer's use of the Goods as a step in an overall process or as an element in an overall combination. Seller's obligation shall not apply to a claim based on Goods or portions thereof specified, designed, or manufactured by Buyer. Buyer shall notify Seller promptly of any assertions of patent infringement and provide Seller with assistance and information requested by Seller, or Seller shall have no further obligation to defend or indemnify. Seller shall defend with its counsel or other counsel of its choice and shall have the sole right, without consultation with Buyer, to take all action Seller deems appropriate to prosecute or settle such claims. Seller's exclusive obligation to indemnify as to Goods declared to infringe is limited to the acquisition of a license, the replacement of Goods with non-infringing goods, the modification of the Goods so that they are non-infringing, or the return of the purchase price and shipping costs in exchange for the Goods, as Seller may elect. This section states the Seller's entire and exclusive obligation regarding patent infringement.
11. Disclaimer and Limitation of Express Warranties
There are no express warranties other than those contained in the Agreement. Any representations as to performance and other matters, except as contained in the Agreement, do not constitute a warranty. Whether or not the Goods and/or Services are to be used exclusively by Buyer, there shall be no third party beneficiaries to the express warranties contained herein. Seller does not warrant that any portion of the Goods or Services not furnished by Seller (whether or not specified by Buyer), but Seller shall assign to Buyer upon request all assignable warranties of Seller's suppliers related to such Goods or Services. All descriptions, shipping specifications and illustrations of the Goods, Services or the Seller and its quality and other systems and capabilities in catalogues, brochures and price lists or otherwise provided by the Seller are intended for general guidance only and the Seller is not responsible for any errors or omissions therein or for any loss or damage resulting from reliance thereon. Seller does not warrant that it or the Goods or Services are in compliance with any entity, organization or industry standards, guidelines, or procedures unless specifically contained in the Agreement. Seller does not warrant any damage to Goods caused by atmospheric discharge, over-voltage or chemical influences.
12. Disclaimer of Implied Warranties.
THE SELLER DISCLAIMS ALL IMPLIED WARRANTIES (OTHER THAN GOOD TITLE) INCLUDING BUT NOT LIMITED TO THOSE OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, ADEQUATE PERFORMANCE, AND NON-INFRINGEMENT. BUYER AFFIRMS THAT IT HAS NOT RELIED UPON THE SELLER'S SKILL OR JUDGMENT TO SELECT OR FURNISH GOODS OR SERVICES FOR ANY PARTICULAR PURPOSE BEYOND THE SPECIFIC EXPRESS WARRANTIES IN THIS AGREEMENT. SELLER DOES NOT WARRANT THE GOODS OR SERVICES WILL COMPLY WITH THE REQUIREMENTS OF ANY SAFETY OR ENVIRONMENTAL CODE OR REGULATION OF ANY FEDERAL, STATE, MUNICIPALITY OR OTHER JURISDICTION BEYOND THE SPECIFIC EXPRESS WARRANTIES IN THIS AGREEMENT.
13. Remedy and Limitation of Seller's Liability
(A) Defective or non-conforming Goods or parts thereof discovered during the warranty period shall be repaired, or replaced by Seller without any additional charge and shipped to Buyer, F.O.B. Seller’s domestic facilities dock, for reinstallation by Buyer at its cost, subject to the terms hereof. The warranty obligation of Seller is limited to the repair or replacement at Seller's place of business of any part of the Goods which Seller shall determine upon examination to be defective or not in conformity with the express warranties contained herein and which Buyer shall, within the warranty period, return to Seller, with transportation charges prepaid by Buyer. In lieu of repair or replacement, if Seller elects, Seller may, upon return of such Goods and making a determination of non -conformity or defect, keep the Goods and refund the purchase price to Buyer. Buyer's remedies shall be limited (even in the event of Seller's default of its warranty obligations) exclusively to those provided in this section. UNDER NO CIRCUMSTANCES SHALL SELLER BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES. Buyer waives any causes of action or theories of liability including, but not limited to, those arising under contract, tort, strict liability, product liability, statutes, or otherwise, except as specifically prohibited by the UCC as modified and limited herein. The replacement or repair of Goods by the Seller does not give rise to any new warranty except the warranty period provided for herein shall be extended by the length of any period from the date the defective or non -conforming Goods are determined to be defective or non-conforming by the Seller until the date repaired or replacement Goods are delivered to Buyer. Any legal inability to limit or restrict the right of the Buyer or a third party to such damages shall not affect the right of Seller to indemnification hereunder, and under no circumstance shall Buyer recover more than the purchase price for the applicable Goods. (B) Buyer must contact Seller requesting warranty coverage plus a return authorization number and other instructions for the return of Goods to Seller. If requested by Seller, Buyer shall issue a new purchase order or amendment to Seller for replacement parts, subject to Seller issuing a credit memo if Buyer’s claim for warranty coverage is approved. Buyer must comply with Seller’s return instructions (including return of the Goods) within thirty (30) days or the claim shall be deemed conclusively to have been abandoned. Buyer is responsible for properly tagging, identifying, and packing returned Goods. Goods returned without compliance with the above procedures shall be returned to the Buyer at Buyer’s cost.
14. Parts, Service and Training Performed by Seller
All warranty and non-warranty Goods, Services and Software, if any, provided by the Seller or its agents and contractors (including those provided under purchase orders subsequent to the Agreement) related to the Goods and/or Services are subject to all limitations and disclaimers of warranties and remedies provided in the Agreement. The Seller is not under any duty to inspect the Goods and/or Services for any defects or any improper use or modification of the Goods and/or Services nor to correct or advise the Buyer of any such condition, use or modification, which is observed. Any notification which may be given is voluntary and subject to all limitations and disclaimers in the Agreement.
15. User's Responsibility for Safety
(A) It is Buyer's or other user's responsibility to provide all proper dies, devices, tools, training, and means that may be necessary to effectively protect all personnel from serious bodily injury which otherwise may result from the method of particular installation, use, operation, setup, or service of the Goods. Manuals furnished by Seller, American National Standards Institute (ANSI) Safety Standards, Occupational Safety and Health Administration (OSHA) and similar state regulations, and other sources should be used by Buyer to insure the safe use of the Goods and/or Services. (B) Seller believes that the Goods and/or Services will be in substantial compliance with the general requirements of federal OSHA regulations directly associated with operator safety and noise level control. The technical detail of the complete OSHA regulations and many additional references to other standards render it impracticable to provide complete compliance unless Buyer requests compliance with specific sections or paragraphs of OSHA or other standards and such standards are included in Seller's proposal or quotation. Because of changes which occur in OSHA, state codes, local codes and user safety programs, Seller must be advised by Buyer or other users if they desire specific modifications in the Goods and/or Services required for compliance. A proposal or quotation will be submitted for such requested modifications. (C) Goods designed and manufactured by Seller are capable of being used in a safe manner, but Seller cannot guarantee their safety under all circumstances. BUYER MUST INSTALL AND USE THE GOODS IN A SAFE AND LAWFUL MANNER IN COMPLIANCE WITH APPLICABLE HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS AND LAWS AND GENERAL INDUSTRY STANDARDS OF REASONABLE CARE.
16. Indemnification
(A) Buyer shall indemnify the Seller from any and all third party claims, damages, and expenses (including reasonable attorney fees) under theories of tort, product liability, negligence (ordinary or gross), warranty, contract, statute, or otherwise arising out of the use, storage, sale, processing or other disposition of the Goods, Services, supplies or materials used in connection with the Goods and/or Services, or parts manufactured with the Goods, if the action or inaction of the Buyer or its employees, customers or agents, or the Buyer's design specifications, were a material or proximate cause of injuries or damages giving rise to claims against the Seller. (B) Buyer shall use and shall require its employees to use all safety devices and guards furnished with or intended to be used with the Goods, and to follow proper safe operating procedures in accordance with general industry standards and as set forth in manuals and instruction information furnished by Seller. If Buyer fails to comply with the obligations set forth in this section, Buyer shall indemnify and hold Seller harmless from any liability or obligation incurred by Seller to persons injured directly or indirectly in connection with the Goods and/or Services and all warranties of Seller shall become automatically void. Buyer shall notify Seller promptly, and in any event within thirty (30) days, of any accident or malfunction involving Goods and/or Services which results in personal injury or damage to property and shall cooperate fully with Seller in investigating to determine the cause of such accident or malfunction, including allowing Seller access to the Goods and Buyer's reports regarding the Goods and/or Services for Seller's inspection. If Buyer fails to give such notice to Seller and so cooperate, Buyer shall indemnify Seller from any claims arising from such accident or malfunction.
17. Cancellation and Breach
(A) Buyer may cancel its order for the Goods and/or Services prior to their completion by immediate payment to Seller of Seller's cost of manufacture or performance and liquidated damages (including labor, engineering, materials, equipment, time, and overhead) computed using Seller's standard internal costing procedures, plus 15% of the sale price of the Goods and/or Services. Such liquidated damages are designed to compensate Seller for its time and effort and are not a penalty. Cost of manufacture or performance shall include all materials or services which Seller has ordered and which cannot be canceled and all costs incurred in canceling material and service orders which can be canceled. Seller may retain without cost all materials and partially completed Goods and/or Services on canceled orders. The parties acknowledge the great difficulty of proving damages for the cancellation of the Goods and/or Services and the reasonableness of this liquidated damages provision. (B) If Buyer defaults in the performance of its obligations, if Buyer advises Seller that it will default in the performance of its obligations, or if any action is started by or against Buyer seeking the appointment of a trustee or receiver or the entry of an order for debtor's relief for Buyer, the Seller may cease performance of its obligations, recover Goods in transit or delivered, disable delivered Goods and/or Services, and otherwise enforce its remedies for Buyer's default. (C) Seller shall be awarded incidental damages and costs (such as actual reasonable attorney fees) in any proceeding to enforce its remedies in which it obtains relief or damages.
18. Security Interest, Power of Attorney
The Buyer hereby grants a security interest to the Seller in all Goods and documents related thereto and proceeds and products therefrom to secure all obligations of the Buyer to the Seller, whether or not arising under the Agreement. Buyer shall sign financing statements evidencing the security interest as reasonably requested by Seller, or Seller may file a copy of the Agreement or portion thereof as a financing statement. Buyer grants Seller an irrevocable power of attorney to sign Buyer's name to a financing statement if necessary or convenient to perfect Seller's security interest. The Goods shall be and remain strictly personal property and retain their character as such, no matter whether on permanent foundation or in whatever manner affixed or attached to a building or structure, or for whatever purpose the Goods may be used. Buyer shall not sell, exchange, transfer, convey, mortgage, pledge, hypothecate, or grant a security interest in any Goods which are the subject to the Agreement if payment therefore shall not have been made in full to Seller.
19. Proprietary Information
(A) Buyer acknowledges that any information disclosed to Seller has not and will not be confidential or a trade secret unless clearly and conspicuously noted on the disclosure, or in some other writing delivered to Seller at or prior to the time of the disclosure. Otherwise, Seller shall be under no obligation to refrain from using in its business any information, manufacturing processes or unpatented disclosures which may pass to it from the Buyer in the performance of the Agreement. (B) All proposals, plans and other information furnished by the Seller in bidding, negotiating and performing the Agreement, are confidential and the property of Seller and shall not be shown or disclosed to any third party or used by Buyer except as may be necessary for the selection or use of the Goods and/or Services and the performance of the Agreement. (C) Any design, invention or other information developed by Seller in the performance of the Agreement shall remain the property of Seller. (D) Seller is not obligated to furnish detailed or shop working drawings, engineering calculations, computer programs, or other information for any Goods and/or Services or part thereof.
20. Solvency of Buyer
Buyer represents that it is solvent and able to pay the price for the Goods and/or Services, and that all financial and business information given to Seller is correct. If Buyer becomes insolvent before delivery of the Goods and/or Services, it shall notify Seller. Acceptance of delivery or performance shall be a reaffirmation at delivery of Buyer's solvency, and that there has not been a material adverse change in such information.
21. U.S. Government Regulations
The Buyer shall not engage in any transaction with respect to the Goods and/or Services which violates any statute or regulation of the United States of America.
22. Time for Bringing Action
Any proceeding by the Buyer for breach of the Agreement or any other right against Seller arising from or in connection with the Agreement cannot be filed nor maintained unless: (i) it is commenced within one (1) year after the cause for action has accrued; (ii) Buyer has given timely written notice to Seller of its claim as provided herein; and (iii) Buyer deposits the unpaid portion of the purchase price with the applicable tribunal pending final adjudication.
23. Assignment
No right or interest in the Agreement may be assigned by the Buyer without the prior written consent of the Seller. Any assignment attempted by Buyer shall be void and ineffective for all purposes unless made in conformity with this section.
