Des-Case Terms & Conditions of Sale
1. DEFINITIONS.
1.1 The following defined terms are used in these Terms and Conditions of Sale: (a) The collective terms and conditions described in (a) and (b) of Section 2.1 are referred to as the “Agreement.” (b) The products that are the subject of a sale from Des-Case to Buyer are referred to as the “Products.” (c) The services quoted or sold by Des-Case to Buyer are referred to as the “Services.” (d) Items of tangible property on which Des-Case performs Services or that result from Services, (e.g., a bearing on which Des-Case performs repair Services) are referred to as “Service Items.” (e) The Des-Case Corporation or other Des-Case affiliate making the sale of Products or Services to Buyer is referred to as “Des-Case.” (f) The purchaser of the Products or Services is referred to as the “Buyer.”
2. AGREEMENT.
2.1 The terms and conditions that apply to and govern the sale of Products and Services by Des-Case to Buyer include and are limited exclusively to those contained in or expressly incorporated by (a) as applicable, Des-Case’s quotation, acknowledgement or invoice, or a separate written sales, pricing, or similar agreement signed by an authorized representative of Des-Case, and (b) these Terms and Conditions of Sale (and the Des-Case Special Warranty Period Schedule, where applicable), whether or not they are specifically referenced in or incorporated by Des-Case’s quotation, acknowledgement or invoice or the separate written and signed sales, pricing, or similar agreement. The terms and conditions of the quotation, acknowledgement, invoice or written and signed sales, pricing, or similar agreement are to be read, so far as possible, as being consistent with these Terms and Conditions of Sale, but any irreconcilable conflict is to be resolved in favor of the quotation, acknowledgement, invoice or separate written and signed sales, pricing, or similar agreement.
2.2 Des-Case objects to terms and conditions that are additional to or different from those that are a part of the Agreement, and no additional or different term will be part of the Agreement unless expressly made so in a writing signed by an authorized representative of Des-Case. The preceding sentence excludes from the Agreement, among other things, (a) terms and conditions appearing on or referenced in Buyer’s purchase order or other similar document, other than the specifics of the transaction (e.g., part number, quantity and price) that coincide with Des-Case’s quotation, acknowledgement, invoice or separate written and signed sales, pricing, or similar agreement, (b) Buyer’s standard terms and conditions of purchase, (c) Buyer’s quality policy and other supplier policies, and (d) Buyer’s web site or supplier e-commerce site, even though it may be necessary for Des-Case to click an “accept,” “agree,” or similar button on an electronic site as a means of accessing information about current or prospective orders or programs of supply.
2.3 No modification of the Agreement or waiver of any of its terms will be binding on Des-Case unless the modification or waiver is clearly expressed in writing and signed by an authorized representative of Des-Case. The preceding sentence excludes from the Agreement, among other things, purported modifications and waivers by oral agreement, course of performance, and usage of trade.
2.4 All orders, including new orders in the form of increases to existing orders, are subject to Des-Case’s acceptance. Des-Case will not be obligated to fulfill any request for Products or Services that Buyer is not also obligated to purchase. Buyer will be deemed to have accepted the Agreement by (a) assenting to the Agreement in writing, (b) placing an order for Products or Services, (c) accepting delivery or performance of all or any portion of the Products or Services, (d) paying for all or any portion of the Products or Services, or (e) taking any other action evidencing Buyer’s acceptance of the benefits of the Agreement. Des-Case reserves the right to reject orders for below Des-Case’s minimum order value of $150.00.
2.5 If Des-Case’s work on an order requires material from Buyer or a third party selected by Buyer, and Des-Case does not timely receive material that strictly conforms to Des-Case’s requirements, including with respect to chemical composition, physical properties and dimensions, Des-Case may delay performance of or cancel the order without liability, and Buyer shall compensate Seller for all Delay/Cancellation Costs (as defined in Section 9.1), including for costs incurred and time expended working on non-conforming material.
2.6 If the Agreement concerns Products for OE production, (a) the duration of Des-Case’s obligation to supply is limited to the time specified in a separate writing that is part of the Agreement or, if no time is specified, then for a reasonable time, and (b) Des-Case is not required to supply service parts.
2.7 If Buyer is purchasing the Products or Services for a government contract or sub-contract, Buyer shall promptly notify Des-Case of that fact and of any contract clauses that Buyer is obligated by law to include in its contracts for acquiring the Products or Services. No government contract clause will be included in the Agreement unless agreed to in a writing signed by an authorized representative of Des-Case.
3. PRICES AND TAXES.
3.1 No price quotation will remain effective for more than 30 days, unless the quotation expressly provides otherwise.
3.2 Unless otherwise provided in a writing that is a part of the Agreement, the price for Products will be Des-Case’s catalog price or book price in effect on the Shipment Date. (The “Shipment Date” is the date upon which Des-Case has completed the applicable order and made the Products available for shipment, regardless of the applicable Incoterms 2020 delivery term.)
3.3 If the Agreement concerns Products for OE production, the price applies only to Products used by Buyer in OE production, and Des-Case may charge a different price for the same Products used for service parts, spares, and the like.
3.4 The price does not include taxes, duties, fees, assessments or other charges imposed by any governmental authority on the manufacture, sale, purchase, transportation, export or import of the Products or performance of the Services, all of which will be the responsibility of and paid by Buyer or, if required to be paid by Des-Case, then reimbursed to Des-Case by Buyer.
3.5 The price is based on Des-Case’s standard packaging for domestic U.S. shipments. Additional charges will apply for packaging for export shipments and for other special shipping or packaging requirements requested by Buyer. Buyer is responsible for the costs of purchasing reusable packaging and for the logistics and transportation costs associated with the return of reusable packaging.
3.6 Prices are based on and assume Buyer’s compliance with all of the terms and conditions of the Agreement, including, if applicable, a promise by Buyer to purchase a particular mix of Products or Services, a certain quantity of Products or Services, or a certain percentage of Buyer’s requirements for the Products and Services. The price for Services is based on and assumes the accuracy of all representations (formal and informal) made by Buyer concerning the circumstances and conditions in which and the material on which the Services will be performed. Des-Case may adjust prices if any of the forgoing assumptions proves incorrect.
3.7 Des-Case may pass through to Buyer, and Buyer shall accept, any price increase imposed by a supplier or sub-vendor that Buyer requires Des-Case to use. Except to the extent Buyer and Des-Case have otherwise explicitly agreed in a separate signed writing, Des-Case may at any time adjust prices based on or apply a surcharge reflecting changes to energy costs, material costs, labor costs, tariffs, and exchange rates.
4. PAYMENT.
4.1 Upon credit approval, all domestic accounts are due withing 30 days of the invoice date. All international customers will be required to pre-pay for orders until extension of credit is granted. Extension of credit terms will be considered after a period of satisfactory performance under the pre-pay arrangements. Payments must be made in the quoted currency or, if that is not determinable, then the local currency of the applicable Des-Case billing center. Buyer shall pay Des-Case’s invoices without discount, setoff or reduction for any reason, including asserted warranty claims or other claims of non-performance by Des-Case.
4.2 Des-Case may modify the payment terms in response to Des-Case’s reasonable doubts as to Buyer’s creditworthiness, evidence of which could include a default under any of Buyer’s major financing agreements, Buyer’s inability to obtain financing, and a reduction in Buyer’s credit rating by a major rating agency. The changes Des-Case may make include shortening the payment period or requiring advance payment. Des-Case shall notify Buyer in writing of any such changes, and the changes may be made retroactive to include amounts then accrued but unpaid.
4.3 If Buyer fails to make a payment when due or if Des-Case reasonably deems itself to be insecure in respect of Buyer’s ability to satisfy its payment obligations under the Agreement, Des-Case may, in addition to the actions described in Section 4.2, take one or more of the following actions: (a) cancel any outstanding orders, (b) withhold further deliveries of Products and performance of Services, and (c) declare all unpaid amounts for Products previously delivered and Services previously performed immediately due and payable. Buyer shall reimburse Des-Case for all costs of collection, including reasonable attorneys’ fees, incurred as a result of Buyer’s failure to make payments when due. The foregoing remedies are in addition to Des-Case’s other rights and remedies under the Agreement and under applicable law, including Section 2 609 of the Uniform Commercial Code.
5. SHIPMENT AND DELIVERY; RETURNS.
5.1 Indicated or “promised” Delivery Dates, Shipment Dates and Completion Dates are estimates and assume, among other things, timely receipt from Buyer and others of any necessary information, conforming raw materials, and tooling, and of any required advance payment. Des-Case’s failure to meet an indicated Delivery Date or Completion Date will not constitute a breach of the Agreement. (The “Delivery Date” is the date upon which Des-Case has satisfied the applicable Incoterms 2020 delivery obligation. The “Completion Date” is the date upon which Des-Case has substantially completed performing the Services that are subject of an order.) Des-Case will be excused from any performance obligation to the extent Des-Case’s performance is hindered, prevented or delayed by a cause or event beyond its reasonable control, including an act of God, action of governmental authorities (valid or invalid), fire, flood, windstorm, explosion, riot, natural disaster, disease, epidemic, war, sabotage, labor problems (including lockouts, strikes, slowdowns), failure of or inability to obtain power, material, labor, equipment or transportation, and a court or administrative injunction or order. If Des-Case’s production or delivery is delayed, Des-Case may allocate production and delivery among its customers in a manner it deems reasonable.
5.2 The delivery term for Products and Service Items is Ex Works (EXW) the designated Des-Case authorized facility (Incoterms 2020). Risk of loss to Products, Service Items and other items shipped by Des-Case will transfer upon the Delivery Date.
5.3 Unless otherwise provided in the Agreement, Des-Case may select the shipping method and carrier. Des-Case will not be liable for, and Buyer shall not assert against Des-Case or deduct from amounts owing to Des-Case, claims for delay, breakage, loss or damage occurring after Des-Case has satisfied its delivery obligations. Buyer shall instead make all claims for any such loss or damage directly to the transportation carrier or insurer, as appropriate.
5.4 Buyer is not entitled to reject or refuse to accept Products or Services unless they do not conform to the limited warranty provided in Section 7.1. Buyer shall, within 10 days following receipt of Products or Service Items, or completion of Services, as applicable, inspect the Products, Services and Service Items and notify Des-Case in writing of any nonconformity with the limited warranty, failing which Buyer will be deemed to have waived any nonconformity that was or could have been identified from such an inspection.
5.5 Buyer may request a return for Products that do not meet the requirements of Section 5.4 above. Approval for returns is at Des-Case’s sole discretion. The following conditions apply to returned products. These items must pass a quality inspection, upon arrival at Des-Case, to be considered for a refund.
1. Item(s) must be authorized and returned in the timeframe defined below, and items must be returned in new, clean and unused condition in the original packaging.
a. Breathers, Breather Accessories, Condition Monitoring Sensors & Accessories must be returned within ninety (90) days of delivery date
b. Filtration, Transfer & Storage Systems & Accessories, Adapter Kits, Visual Oil Analysis, Oil Transfer Containers and Filter Elements must be returned within one (1) year of delivery date
2. A restock fee will apply as outlined below:
a. 30% restocking fee will apply for returns of Filtration, Transfer & Storage Systems & Accessories, Adapter Kits and Oil Transfer Containers
b. 20% restocking fee will apply for Rebuildable Steel Breathers, Filter Elements and Condition Monitoring Sensors & Accessories
c. 10% restocking fee will apply for all other Breathers & Accessories, Visual Oil Analysis, and accessories
3. Engineered solutions and products outside of standard configurations will not be approved for refundable restocking.
Shipping costs and processing will be the responsibility of the Buyer and Des-Case will not be responsible for returned merchandise lost in transit.
5.6 Buyer may request an “Expedite Order”, which shall be defined as an order with a delivery/completion date less than published or confirmed lead time. Expedite Orders shall be reviewed and approved or rejected by Des-Case in its sole discretion. Same-day shipment of Product will be made only in extreme emergencies. If same-day shipment is required, it will be evaluated on order-by-order basis. Expedite Orders are subject to a rush fee of either $150.00 or 15% of the total order cost, whichever is greater. Des-Case reserves the right to change this fee from time to time at the sole discretion of Des-Case without notice to the Buyer. All expediting requests must include the required details, including full model code, quantity required, customer, date needed, and reason, and be made to the Customer Service Representative(s), via telephone or e-mail.
6. PROPERTY; FACILITIES.
6.1 Buyer is to be considered the owner of all tooling, dies and similar items (a) that Buyer owns and places in Des-Case’s possession for the purpose of manufacturing the Products or providing the Services, or (b) that Buyer pays for as separate items on an order if Buyer and Des-Case specifically agree in writing that the tooling, dies or similar items will be owned by Buyer (“Buyer Tooling”). Buyer is responsible for paying for any necessary replacements of and repairs to the Buyer Tooling.
6.2 Des-Case assumes no obligation or liability with respect to the Buyer Tooling or any other property of Buyer to which Des-Case is not taking title, including tangible personal property of Buyer upon which Des-Case will be performing Services (“Buyer Property”) other than to exercise reasonable care. Des-Case is not obligated to segregate, label, protect, insure or take any other specific action with respect to managing and safeguarding Buyer Tooling or Buyer Property. Buyer accepts all risk of loss and damage to the Buyer Tooling and Buyer Property, except for loss or damage caused exclusively by Des-Case’s negligence, and Buyer waives all rights of subrogation for itself and its insurers with respect to any such loss and damage. Buyer hereby grants to Des-Case a security interest in the Buyer Tooling and Buyer Property to secure all amounts owed by Buyer to Des-Case. Buyer consents to Des-Case filing any documentation, including UCC financing statements, useful to perfecting the security interest.
6.3 Des-Case is to be considered the owner of all tooling, dies and similar items used by Des-Case in connection with the Products and Services, other than the Buyer Tooling (“Des-Case Tooling”). Buyer acquires no interest in the Des-Case Tooling, notwithstanding any charges, amortizations or other costs included in the pricing or otherwise paid by Buyer in relation to the Des-Case Tooling.
6.4 Des-Case may use the Des-Case Tooling without restriction in any of its business operations, including in the manufacture of service parts for the Products and the manufacture of products and provision of services for other customers. Des-Case may retain the Des-Case Tooling at the conclusion of the commercial relationship between Des-Case and Buyer with respect to the affected Products or Services.
6.5 Buyer shall provide suitable space, facilities, equipment and materials for any Services or other work to be performed by Des-Case at a location controlled by Buyer. The space, facilities and equipment must be suitable for the safe execution of the Services or other work.
7. LIMITED WARRANTY.
7.1 Des-Case warrants to Buyer that the Products (a) will conform to any specifications explicitly identified on the face of Des-Case’s quotation or acknowledgement or set forth explicitly in another document that is a part of the Agreement, and (b) will be free of defects in material and workmanship that would be discovered by following Des-Case’s standards of manufacture and inspection at the time of manufacture. Des-Case warrants to Buyer that the Services will be performed in a good and workmanlike manner in accordance with any specifications explicitly identified on the face of Des-Case’s quotation or acknowledgement or set forth explicitly in another document that is part of the Agreement. This limited warranty shall be in effect for the following periods based upon product type: (a) desiccant breathers: one hundred twenty (120) days from the date of delivery, b) engineered solutions: the earlier of twelve (12) months from the date of the initial installation of such Products or eighteen (18) months from the date of delivery, or as otherwise quoted in writing, c) All other non-engineered solutions: twelve (12) months from the date of delivery. THE FOREGOING LIMITED WARRANTY IS IN LIEU OF, AND DES-CASE DISCLAIMS, ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING WARRANTIES OF DESIGN, PERFORMANCE OR PRODUCT LIFE, WARRANTIES OF COMPLIANCE WITH BUYER’S QUALITY MANUALS, QUALITY POLICIES, INSPECTION PROTOCOLS AND OTHER POLICIES AND REQUIREMENTS, AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Without limiting the generality of the preceding sentence, Buyer is solely responsible for validating the suitability of Product designs and Product selections for Buyer’s intended use or application(s). Buyer shall indemnify, defend and hold Des-Case harmless from any claims arising out of or in connection with Buyer’s selection of a Product that is not suitable for Buyer’s intended use or application(s).
7.2 The limited warranty in Section 7.1 will be void upon any action inconsistent with the proper use and handling of the Products, Service Items or other results of Services, including (a) improper handling, transportation, storage, adjustment, modification or repair (including any modification, addition, or repair made during the applicable warranty period by anyone other than Des-Case), (b) accident, abuse or improper use (including loading beyond the specified maximum, operation above specified rating or rated capacity, or operation at extreme conditions), and (c) improper selection, sizing, alignment, installation, lubrication, tensioning, protection or maintenance.
7.3 The limited warranty in Section 7.1 will be void upon resale of the Products by any person to any unauthorized reseller. Des-Case is not obligated to provide any warranty, technical or service support to Buyer (or any other person) for any Products once they have been resold through unauthorized sales channels.
7.4 The limited warranty in Section 7.1 does not apply to Products supplied for testing and evaluation (“prototype parts”). Prototype parts are supplied “AS IS” without warranty of any kind. Des-Case will have no liability for any claims related to prototype parts, and Buyer shall indemnify, defend and hold Des-Case harmless from any such claims. Des-Case makes no warranty to those persons defined as consumers in the Magnuson-Moss Warranty – Federal Trade Commission Improvement Act. Des-Case does not warrant that the operation or use by Buyer of the Products or Services in its applications will comply with the requirements of any safety code or regulation, or with any environmental or other law or regulation.
8. EXCLUSIVE REMEDY; LIMITATION OF LIABILITY.
8.1 If a Product does not meet the limited warranty described in Section 7.1, Buyer’s sole and exclusive remedy will be, at Des-Case’s choice, repair or replacement of the nonconforming Product (EXW the designated Des-Case facility) or a credit of a fair amount not to exceed the price paid for the nonconforming Product. If an item of Services does not meet the limited warranty described in Section 7.1, Buyer’s sole and exclusive remedy will be, at Des-Case’s choice, for Des-Case to re-perform the nonconforming portions of the Services or issue a credit of a fair amount not to exceed the price paid with respect to the nonconforming portions of the Services. To be entitled to the exclusive remedy, Buyer must (a) submit the warranty claim to Des-Case within fourteen (14) days following the expiration date of the applicable warranty period, as applicable (but no later than six weeks following the first discovery of a possible nonconformity), (b) return to Des-Case (DDP the designated Des-Case facility) 100% or, if agreed by Des-Case, a lesser but still statistically relevant percentage of the Products or Service Items claimed to be defective, and (c) provide reasonable evidence in support of the warranty claim, including, if requested by Des-Case, results of diagnostic tests, evaluations and investigations performed by Buyer or Buyer’s customer. The warranty claims limitation period for repaired or replaced Products and re-performed Services will expire at the same time as the original warranty claims limitation period.
8.2 The remedy described in Section 8.1 is Buyer’s sole and exclusive remedy for a breach of the limited warranty and for any other claim relating to the Products and Services, regardless of the basis of Buyer’s claim, whether it is in contract, tort, express or implied warranty, negligence, strict liability or otherwise, and regardless whether any damages were caused by Des-Case’s negligence or by any defect in the Products or Services. Without limiting the generality of the preceding sentence, Des-Case will not be liable for, and Buyer shall not assert, any of the following, whether or not due to Des-Case’s negligence or due to a defect in the Products or Services, and regardless whether the basis is product warranty, delayed or incomplete delivery, negligence or any other cause: (a) consequential, incidental, indirect, special and punitive damages; (b) the cost of removing and reinstalling Products or Service Items, sending Products or Service Items to Des-Case for warranty inspection, and any other work performed on the Products or Service Items; (c) damage to or the cost of making adjustments or repairs to any mechanism, equipment or machinery in which the Products, Service Items or other items that were the subject of Services were installed; (d) loss of profits or revenue, loss of use, line shut-down, cost of capital, and cost of substituted product, facilities or services; and (e) claims of Buyer’s customers or other third parties for damages or penalties, whether or not Buyer is legally obligated to pay them. Des-Case’s maximum liability for all claims and losses relating to the Products and Services shall be the price confirmed by Des-Case for the individual Product or Service giving rise to the claim or loss. The foregoing disclaimers and exclusions will apply even if the exclusive remedy described in Section 8.1 fails its essential purpose.
8.3 An action by Buyer to enforce a warranty claim, whether by court action, arbitration or other proceeding, will be barred unless commenced within one year following Des-Case’s notification to the customer of Des-Case’s determination (for example, on the validity of the warranty claim or the availability or scope of the remedy) upon which Buyer’s claim is based.
9. DELAYS, CHANGES AND CANCELLATIONS.
9.1 “Delay/Cancellation Costs” include all labor, materials, overhead, general and administrative costs, restocking charges, surcharges levied on material by outside suppliers, sub-vendor cancellation charges, excess inventory charges, value of storage space, inventory tax charges, banking and finance charges, scrapping and disposal fees, and other harm, costs and charges incurred directly or indirectly by Des-Case in connection with a requested delay or cancellation of an order for Products or Services. An “Order” includes a purchase order for a specific quantity and a release under a blanket purchase order. When Des-Case and Buyer operate on a rolling forecast basis, an “Order” includes the quantity of Products or Services scheduled for delivery or performance within the firm order period agreed to between Des-Case and Buyer or, if Buyer and Des-Case have not agreed to a specific firm order period, then Des-Case’s published or announced firm order period (https://www.descase.com/terms-and-conditions-of-sale)
9.2 Buyer is not entitled, without Des-Case’s prior written consent, which may be withheld or conditioned in Des-Case’s sole discretion, to delay a delivery of Products or performance of Services for all or any part of an Order. Des-Case may treat as a cancellation subject to Section 9.3 any proposed delay greater than 60 days. If Des-Case consents to the delay, Buyer shall pay a delay charge in an amount determined in Des-Case’s sole discretion to reflect all applicable Delay/Cancellation Costs, including, at a minimum, a storage charge, inventory carrying costs, financing costs associated with the finished Products, work in process and raw materials, and costs of inactive labor, from the original request date until the time of delivery or performance.
9.3 Buyer is not entitled, without Des-Case’s prior written consent, which may be withheld or conditioned in Des-Case’s sole discretion, to cancel all or any part of an Order. If Des-Case consents to the cancellation, Buyer shall pay a cancellation charge in an amount determined in Des-Case’s sole discretion to reflect all applicable Delay/Cancellation Costs plus a reasonable and equitable profit for Des-Case. Upon payment of the cancellation charge, Buyer will be entitled to all un-disposed raw materials, work in process and finished Products, shipped at Buyer’s expense.
9.4 If, having awarded a production program to Des-Case, Buyer or Buyer’s customer delays or cancels the program prior to launch, cancels the program prior to the end of the originally contemplated duration, or resources the program to another supplier of the Products, then, in addition to any amounts owing under Section 9.2 or Section 9.3 and any price increase resulting from the application of Section 9.5, Buyer shall reimburse Des-Case for the loss of value of the program to Des-Case and Des-Case’s unrecoverable or increased investment costs, including the costs associated with capital equipment, tooling paid for by Des-Case, engineering costs and obsolete material. Des-Case may treat as a cancellation any program delay greater than three months.
9.5 Buyer is not entitled, without Des-Case’s prior written consent, which may be granted or withheld in Des-Case’s sole discretion, to make any changes to the design, material specifications, quality requirements, approved raw material suppliers or any other aspect of the Products or Services or their manufacture, performance or delivery. If Des-Case consents to the change, Des-Case may condition its consent on Buyer’s agreement to price adjustments and other compensating payments satisfactory to Des-Case. In addition to all other remedies available to it under applicable law, Des-Case may refuse to comply with any change to which Des-Case has not given its prior written consent and, if the Buyer proceeds with the change, may treat the change as a cancellation governed by Section 9.3.
9.6 Unless Des-Case has agreed otherwise with Buyer in writing, Des-Case may, at any time and without notice to Buyer, substitute or make changes to the design, materials, processes, manufacturing locations, suppliers, or any other aspect of the Products and Services which do not, in the reasonable opinion of Des-Case, affect form, fit or function.
10. RESALE OF PRODUCTS. Buyer may not resell any Products purchased from Des-Case unless Buyer is an authorized distributor of Des-Case’s products or Des-Case has consented in advance in writing to Buyer reselling Products as service parts.
11. TRACEABILITY. Des-Case is under no obligation to provide traceability on Products or Service Items unless expressly agreed in advance in writing by Des-Case.
12. BUSINESS CONDUCT. Buyer represents and warrants that it has not engaged in and will not engage in any unlawful or unethical conduct (such as making or offering to make any improper or illegal payment or gift to an employee or official of a government, political party or political candidate, government-owned or controlled company or public international organization) to promote Des-Case’s products or services or to promote or facilitate the business interests of Des-Case.
13. INTELLECTUAL PROPERTY. Nothing in the Agreement is to be construed as a grant or assignment of any license or other right to Buyer of any of Des-Case’s or its affiliates’ intellectual property rights, whether patent, trademark, trade secret, copyright or otherwise. All improvements and developments related to the Products or Services arising out of the efforts of Des-Case and Buyer will be owned exclusively by Des-Case, and Buyer shall reasonably cooperate with Des-Case in confirming that result. Buyer shall indemnify, defend and hold Des-Case harmless from all loss and liability resulting from or related to claims that design elements for the Products or Services that were provided by Buyer or trademark or other markings instructed by Buyer to be affixed to the Products or Services infringe the intellectual property rights of third parties.
14. CONFIDENTIAL INFORMATION. With respect to confidential information concerning the Products, the Services and the transactions subject to the Agreement that Buyer comes to know either through disclosure from Des-Case or otherwise, Buyer (a) shall not disclose the information to any third party, (b) shall not use the information for any purpose other than evaluation and use of the Products, and (c) acquires no ownership, license or other interest in the information.
15. INTERNATIONAL TRADE COMPLIANCE. Buyer shall comply with all applicable customs, import control, export control, and sanctions laws, regulations, and orders, including but not limited to (i) the International Traffic in Arms Regulations (“ITAR,” 22 CFR Parts 120-130); (ii) the Export Administration Regulations (“EAR,” 15 CFR Parts 730-774); (iii) the Office of Foreign Assets Control’s regulations (“OFAC Regulations” 31 CFR 500-598); and (iv) applicable non-US customs, import control, export control, and sanctions laws, regulations, and orders (collectively, “ITC Laws”). Buyer shall not, and shall not cause Des-Case to, directly or indirectly, export, re-export, transfer, or otherwise divert any Products, Services, or Service Items supplied by Des-Case: (i) to any person or entity unless the export, re-export, or transfer is authorized in accordance with all applicable ITC Laws; (ii) to or for use by any party prohibited from receiving such items under applicable ITC laws; and/or (iii) for any end use prohibited under applicable ITC laws. Buyer represents and warrants that it is not (A) organized, incorporated or resident in jurisdictions sanctioned under ITC Laws; (B) on any list of restricted parties under ITC Laws; or (C) owned 50% or more or controlled by parties described in (A) or (B). Buyer shall indemnify, defend, and hold Des-Case harmless from and against all loss and liability that Des-Case incurs in connection with a breach of this Section 15.
16. MISCELLANEOUS.
16.1 The words “include” and “including” are to be construed as if they were followed by “without limitation,” unless the accompanying text or the context clearly requires otherwise.
16.2 No party may assign its rights or obligations under the Agreement without the other party’s prior written consent, and any attempt to do so will be ineffective, except that Des-Case may, without Buyer’s consent, assign and delegate its rights and obligations under the Agreement to one or more affiliates or to a third party in connection with a divestiture of the business with which the Agreement is associated. A corporate reorganization that does not result in a change of control or beneficial ownership with respect to the party’s ultimate parent entity is not to be deemed an assignment.
16.3 The laws of the State of Ohio, U.S.A., govern all matters arising out of the Agreement, excluding choice of laws principles. Both parties consent to the jurisdiction of the state and federal courts having authority over the territory of Stark County, Ohio, for the resolution of any dispute arising under the Agreement or the purchase or use of Products or Services; and that consent is to the exclusive jurisdiction of those courts unless Buyer is from a jurisdiction that does not recognize for enforcement judgments issued by those courts. The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.
16.4 Des-Case’s rights and remedies set forth in the Agreement are in addition to all legal and equitable rights and remedies available to Des-Case.
