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Standard Terms
ACCEPTANCE: The following Standard Terms and Conditions are applicable to all quotations and orders between AbTech Industries, Inc. ("AbTech") and any buyer (“Buyer”) of any products of AbTech (“Products”) and are the only terms and conditions, oral or written, applying to the sale of Products to Buyer except for (1) additional terms consistent with these Standard Terms and Conditions on prices, quantities, delivery schedules, and the identification of the Products as set forth in an order form issued by AbTech ("AbTech Order Form") and (2) any terms and conditions in a written agreement between Buyer and AbTech which incorporate or reference these Standard Terms and Conditions. AbTech hereby objects to and rejects any other terms or conditions appearing on, incorporated by reference in or attached to any purchase order, acceptance, acknowledgement, invoice, transmittal or other document other than an AbTech Order Form. AbTech’s failure to object to any provision contained in a document or communication from Buyer shall not be a waiver of these Standard Terms and Conditions or any AbTech Order Form. All proposals, negotiations, representations, quotations or agreements, if any, written or oral, regarding the sale of any Products and made prior to or contemporaneous with the date of these Standard Terms and Conditions are merged herein. Acceptance of these Standard Terms and Conditions and any AbTech Order Form, both or either of which may be delivered to Buyer in electronic form by AbTech shall be deemed to have occurred upon the earlier of (i) executing or accepting these Standard Terms and Conditions, (ii) executing or accepting any AbTech Order Form, (iii) when Buyer is aware that AbTech has commenced performance thereunder or (iv) taking delivery of any Products. Accepted AbTech Order Forms may not be modified, cancelled or rescheduled without AbTech’s written consent and are subject to modification, cancellation or reschedule charges determined by AbTech.
PRICES AND PAYMENT TERMS: The prices for the Products are as set forth in an applicable AbTech Order Form. All pricing is in US dollars. Any acceptance or issuance by AbTech of a AbTech Order Form does not provide Buyer with any price protection on Products that would be shipped more than 30 days after the date of the AbTech Order Form. AbTech requires prepayment for Products prior to shipment unless AbTech has issued a written approval of credit in which case payments must be made and received by AbTech no later than 30 days from the date of shipment of Product. If AbTech does not receive full payment by the due date, a late fee will be applied at a rate of 1.5% of the original balance per month. Prices exclude any tax or duty now or hereafter imposed upon the production, transportation, export, import, storage, delivery, sale, or use of Products. Any changes to any order patterns, payment terms, or other matters in an AbTech Order Form may result in AbTech modifying pricing on the applicable Products. Without waiving any other rights or remedies available to AbTech under applicable law or otherwise, AbTech may, at its option, defer shipment or deliveries of Products until all past-due accounts of Buyer to AbTech have been satisfied in full. Buyer shall pay AbTech any and all governmental taxes, charges or duties of every kind (excluding any tax based upon AbTech’s income) that AbTech may be required to pay with respect to the production, transportation, export, import, storage, delivery, purchase, sale or use of the Products. Buyer shall provide AbTech, on request, with properly completed exemption certificates for any tax or duty from which Buyer claims an exemption. Buyer agrees to reimburse AbTech for any reasonable fees and expenses (including, without limitation, attorneys fees) incurred by AbTech to collect any amounts due to AbTech.
SHIPMENT; RISK OF LOSS AND INSPECTION: Shipment dates are approximate only. Unless different delivery terms are specified in an AbTech Order Form, title and risk of loss shall pass to Buyer EXW (AbTech facility) Incoterms 2010. Buyer may inspect the Products, or provide for inspection, at the point of shipment. Buyer shall inspect the Products for any defects immediately upon receipt.
DISCLAIMER OF WARRANTY. THE PRODUCTS ARE SOLD STRICTLY "AS IS" AND ABTECH MAKES NO WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, INDUSTRY STANDARD OR STATUTORY, AS TO THE PRODUCTS SOLD HEREUNDER OR ANY MATTER WHATSOEVER. IN PARTICULAR, ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT ARE EXPRESSLY EXCLUDED.
LIMITATIONS OF LIABILITIES. NEITHER ABTECH, ITS AFFILIATES NOR THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUPPLIERS, RESELLERS OR REPRESENTATIVES SHALL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES OR COSTS INCURRED AS A RESULT OF LOSS OF SAVINGS, LOSS OF PROFITS, OR LOSS OF GOODWILL, WHETHER FORESEEABLE OR UNFORESEEABLE, THAT MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS EVEN IF ABTECH HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES OCCURING. REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE.
ANY LIABILITY OF ABTECH, ITS AFFILIATES AND THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUPPLIERS, RESELLERS AND REPRESENTATIVES FOR DAMAGES FOR ANY CLAIM OF ANY KIND WHATSOEVER UNDER THIS AGREEMENT WITH RESPECT TO THE PRODUCTS (REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED IN CONTRACT, TORT, WARRANTY, NEGLIGENCE, STRICT LIABILITY, PRODUCTS LIABILITY OR OTHERWISE) SHALL NOT BE GREATER THAN THE ACTUAL FEES PAID TO LICENSOR FOR THE PRODUCTS WITH RESPECT TO WHICH SUCH CLAIM IS MADE.
UNDER NO CIRCUMSTANCES SHALL ABTECH, ITS AFFILIATES OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUPPLIERS, RESELLERS AND REPRESENTATIVES BE LIABLE FOR ANY DAMAGES THAT MAY ARISE OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS IN AN AMOUNT IN THE AGGREGATE FOR ANY AND ALL CLAIMS IN EXCESS OF THE AMOUNT OF SUMS ACTUALLY PAID BY BUYER TO ABTECH HEREUNDER IN THE MOST RECENT TWELVE (12) MONTH PERIOD.
NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, IN NO EVENT SHALL ABTECH, ITS AFFILIATES OR THEIR OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS, SUPPLIERS, RESELLERS OR REPRESENTATIVES BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY INJURY, LOSS OR DAMAGES OF ANY KIND OF NATURE THAT ARISES OUT OF RESULT FROM THE USE OF THE PRODUCTS.
INDEMNITY AND RELEASE: Buyer agrees to protect, defend, hold harmless and indemnify AbTech, its affiliates, and their officers, directors, employees, shareholders, agents, suppliers, resellers and representatives (the "AbTech Indemnified Parties") from and against all losses, claims, damages, judgments, awards or liabilities (or actions with respect thereto, including, without limitation, actions brought under the doctrine of strict liability), costs and expenses (including, without limitation, court costs and legal fees) of any nature whatsoever (including, without limitation, for personal injury, illness, death, and property damage) arising out of or resulting from (i) any breach by Buyer of this Agreement; (ii) any negligence or misconduct of Buyer; or (iii) the use of the Products. Any legal counsel selected by Buyer shall be reasonably acceptable to AbTech. AbTech shall have the right to employ separate counsel at its expense, to assist in the handling of any indemnified claim. In such an event, Buyer and its counsel shall consult with AbTech and its counsel with respect to the status of the claims and any related litigation or proceedings. Buyer shall not settle any indemnification claim on behalf of AbTech or any of the other AbTech Indemnified Parties without the prior written consent of AbTech.
Buyer further releases each of the AbTech Indemnified Parties from liability for any and all damages whatsoever to property of any kind owned by, in the possession of or leased by Buyer and those persons and entities Buyer has the ability to bind by contract.
Buyer's release, defense, indemnity and hold harmless obligations will apply even if the liability and claims are caused by the sole, concurrent, active or passive negligence, fault or strict liability of one or more of the AbTech Indemnified Parties, or any defect in the Products, data, or services furnished by any AbTech Indemnified Party, whether in the design, manufacture, maintenance or marketing thereof or from a failure to warn of such defect. Buyer's release, defense, indemnity and hold harmless obligations apply whether the personal injury, illness, death, property damaged or loss is suffered by one or more of the AbTech Indemnified Parties, Buyer or any other person or entity and Buyer will support such obligations assumed herein with liability insurance to the maximum extent allowed by applicable law.
PRODUCT RETURNS: No Product shall be returned without AbTech's express consent and the issuance of a return merchandise authorization number and return instructions per AbTech’s customer return policy. In the event of an agreement by AbTech to a return, Buyer agrees that Products must be unused, undamaged and in new condition and are subject to payment by Buyer of a 15% restocking fee. Custom designed, custom engineered or special order Products are not returnable. All returned Products must be shipped prepaid to AbTech. AbTech will not accept collect shipment returns.
CONFIDENTIALITY: Buyer shall hold in confidence information regarding AbTech's products and shall not disclose such information to any third party without obtaining the prior written approval of AbTech.
USE AND DISPOSAL: Buyer shall have the sole and exclusive responsibility to use the Products and dispose of all spent Products in accordance with all applicable laws, rules and regulations, including, without limitation, those relating to the environment.
REVISIONS: All prices, terms and conditions are subject to change without notice.
FORCE MAJEURE: AbTech shall not be responsible for any loss, damage, delay or nonperformance due directly or indirectly to any event, circumstance or cause beyond its control, including, without limitation, labor disputes, strikes, power failures, Governmental acts or regulations, acts of war, civil disturbances or riots, terrorism, epidemics, weather, fire, earthquakes, acts of God and difficulties in obtaining necessary labor, materials, manufacturing facilities or transportation due to such causes. AbTech further reserves the right to allocate inventories and current production and to substitute suitable materials when, in its opinion, circumstances warrant such allocation or substitution.
MISCELLANEOUS: These Terms and Conditions do not constitute an agency relationship between the parties and neither party shall hold itself out to be the legal representative, agent, or employee of the other party for any purpose whatsoever. Neither these Terms and Conditions nor any AbTech Order Form, nor any term or provision hereof or thereof may be modified, amended, or waived by Buyer, except by a writing duly executed by AbTech. These Standard Terms and Conditions and any AbTech Order Form shall be binding upon and inure to the benefit of AbTech and Buyer and each of their respective successors and permitted assigns. Buyer shall not assign or delegate its rights or responsibilities under these Standard Terms and Conditions or applicable AbTech Order Form, or any portion thereof, without the prior written consent of AbTech. If any provision of these Standard Terms and Conditions or any AbTech Order Form shall be held invalid or unenforceable, such provision shall be deemed deleted from these Standard Terms and Conditions or any AbTech Order Form and replaced by a valid and enforceable provision which, so far as possible, achieves the same economic and other benefits for the parties as the severed provision was intended to achieve, and the remaining provisions of these Standard Terms and Conditions and any applicable AbTech Order Form shall continue in full force and effect. These Standard Terms and Conditions together with any AbTech Order Forms represent the entire integrated contract of the parties with respect to the terms of purchase and sale of the Products, and supersedes all previous agreements and understandings between the parties with respect to the subject matter of these Terms and Conditions, and may not be modified except by an instrument in writing signed by the duly authorized representatives of the parties. These Terms and Conditions and all AbTech Order Forms shall be governed by, construed and interpreted in accordance with the laws of the State of Delaware, without reference to the conflicts of laws principles thereof. Any claim, action, suit or other proceeding initiated under or in connection with these Terms and Conditions or any AbTech Order Form may be asserted, brought, prosecuted and maintained only in any federal or state court in the State of Delaware having jurisdiction over the subject matter thereof, and the parties hereto hereby waive any and all right to object to the laying of venue in any such court and to any right to claim that any such court may be an inconvenient forum. The parties hereto submit themselves to the jurisdiction of each such court and agree that service of process on them in any such action, suit or proceeding may be affected by the means by which notices are to be given to it under these Terms and Conditions.