|
DFS Proprietary and Confidential
<br />Rev. February 13, 2020
<br />Page | 9
<br />14.3 All Seller liability will end upon expiration of the applicable warranty period, provided that Buyer may
<br />continue to enforce a claim for which it has given notice prior to that date by commencing an action or
<br />arbitration, as applicable under this Contract, before expiration of any statute of limitations or other
<br />legal time limitation but in no event later than one year after expiration of such warranty period.
<br />14.4 Seller will not be liable for advice or assistance that is not required for the work scope under this
<br />Contract.
<br />14.5 If Buyer is supplying Products or Services to a third party, or using Products or Services at a facility
<br />owned by a third party, Buyer shall either (a) indemnify and defend Seller from and against any and all
<br />claims by, and liability to, any such third party in excess of the limitations set forth in this Article 14; or
<br />(b) require that the third party agree, for the benefit of and enforceable by Seller, to be bound by all
<br />the limitations included in this Article 14.
<br />14.6 For purposes of this Article 14, the term “Seller” means Seller, its affiliates, subcontractors, and
<br />suppliers of any tier, and their respective employees. The limitations in this Article 14 will apply
<br />regardless of whether a claim is based in contract, warranty, indemnity, tort/extra-contractual liability
<br />(including negligence), strict liability or otherwise, and will prevail over any conflicting terms, except to
<br />the extent that such terms further restrict Seller’s liability.
<br />15.Governing Law and Dispute Resolution
<br />15.1 This Contract will be governed by and construed in accordance with the laws of (a) the State of
<br />Washington if Buyer’s place of business is in the U.S., Canada or Mexico; or (b) England and Wales if
<br />the Buyer’s place of business is outside the U.S., Canada or Mexico in either case without giving effect
<br />to any choice of law rules that would cause the application of laws of any other jurisdiction (the
<br />“Governing Law”). If the Contract includes the sale of Products and the Buyer is outside the Seller’s
<br />country, the United Nations Convention on Contracts for the International Sale of Goods will apply.
<br />15.2 All disputes arising in connection with this Contract, including any question regarding its existence or
<br />validity, shall be resolved in accordance with this Article 15. If a dispute is not resolved by negotiations,
<br />either party may, by giving written notice, refer the dispute to a meeting of appropriate higher
<br />management, to be held within 20 business days after the giving of notice. If the dispute is not resolved
<br />within 30 business days after the giving of notice, or such later date as may be mutually agreed, either
<br />party may commence arbitration or court proceedings, depending upon the location of the Buyer, in
<br />accordance with the following: (a) if Buyer’s pertinent place of business is in the U.S., Canada or
<br />Mexico legal action may be commenced either in federal court with jurisdiction applicable to, or state
<br />court located in, either Washington or (b) if Buyer’s pertinent place of business is outside the U.S.,
<br />Canada or Mexico the dispute shall be submitted to and finally resolved by arbitration under the Rules
<br />of Arbitration of the International Chamber of Commerce (“ICC”). The parties shall select a single
<br />arbitrator in accordance with the ICC rules, unless the amount in dispute exceeds the equivalent of
<br />U.S. $5,000,000, in which event the dispute will be adjudicated by three arbitrators. In such cases,
<br />each party shall appoint one arbitrator, and those two shall appoint the third within 30 days, with the
<br />third’s being deemed the Chair. The seat, or legal place of arbitration, will be London, England, and
<br />the arbitration will be conducted in English. In reaching their decision, the arbitrators shall give full
<br />force and effect to the intent of the parties as expressed in the Contract, and if a solution is not found
<br />in the Contract, shall apply the governing law of the Contract. The decision of the arbitrator(s) will be
<br />final and binding upon both parties, and neither party shall seek recourse to a law court or other
<br />authority to appeal for revisions of the decision.
<br />15.3 Notwithstanding the foregoing, each party will have the right at any time, at its option and where legally
<br />available, to immediately commence an action or proceeding in a court of competent jurisdiction,
<br />subject to the terms of this Contract, to seek a restraining order, injunction, or similar order to enforce
<br />the confidentiality provisions set forth in Article 6 or to seek interim or conservatory measures.
<br />Monetary damages will be available only in accordance with Section 15.2.
<br />16.Inspection and Factory Tests
<br />Terms and Conditions of Sale – Products & Services
|