Page 2 - Terms

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Terms and Conditions
Datasheets available at marathonsp.com
others than Marathon or Marathon’s authorized service
agencies, or to equipment which was subjected to
abuse, negligence, misuse, misapplication, accident,
damages by circumstances beyond Marathon’s control,
to improper installation (if by others than Marathon),
operation, maintenance or storage, or to other than
normal use or service, and (iii) apply to equipment
or components not manufactured by Marathon. With
respect to equipment or components not manufactured
by Marathon, Marathon’s warranty obligations shall
in all respects conform and be limited to the warranty
actually extended to Marathon by its suppliers but in
no event shall Marathon’s obligations be greater than
those provided under Marathon’s warranty set forth in
this Section 10.
THE FOREGOING WARRANTIES ARE IN LIEU
OF ALL OTHER EXPRESS AND IMPLIED
WARRANTIES (EXCEPT TITLE), INCLUDING,
WITHOUT LIMITATION, THE IMPLIED WARRANTIES
OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE. NO EMPLOYEE,
REPRESENTATIVE, OR AGENT OF MARATHON
OTHER THAN AN OFFICER OF MARATHON
IS AUTHORIZED TO ALTER OR MODIFY ANY
PROVISION OF THIS SECTION 10 OR TO MAKE ANY
GUARANTEE, WARRANTY, OR REPRESENTATION,
EXPRESS OR IMPLIED, ORALLY OR IN WRITING,
WHICH IS CONTRARY TO THE FOREGOING.
Any
description of the equipment, whether in writing or made
orally by Marathon or Marathon’s agent, specifica-
tions, samples, models, bulletins, drawings, diagrams,
engineering sheets or similar materials used in
connection with Buyer’s order are for the sole purpose
of identifying the equipment and shall not be construed
as an express warranty. Any suggestions by Marathon
or Marathon’s agents regarding use, application or
suitability of the equipment shall not be construed as
an express warranty unless confirmed to be such in
writing by Marathon’s authorized officer at Marathon’s
home office.
11. LIMITATIONS OF LIABILITY;
CONSEQUENTIAL DAMAGES
Nuclear Use Disclaimer
- Equipment sold by
Marathon is not intended for use in connection with
any nuclear facility or activity. If so used Marathon
disclaims all liability for any nuclear damage, injury
or contamination, and Buyer shall indemnify and hold
Marathon, its officers, agents, employees, successors,
assigns, and customers harmless from and against
any and all losses, damages or expenses of whatever
form or nature (including attorneys’ fees and other costs
of defending any action) which they or any of them
may sustain or incur whether as a result of breach of
contract, warranty, tort (including negligence) or
otherwise, by reason of such use.
Consequential Damage Disclaimer
- Marathon’s
liability with respect to equipment proved to its
satisfaction to be detective within the warranty period
shall be limited to repair, replacement or refund as
provided in Section 10 hereof and in no event shall
Marathon’s liability exceed the purchase price of the
equipment involved. Marathon shall not be subject to
any other obligations or liabilities, whether arising out of
breach of contract, warranty, tort (including negligence)
or other theories of law, with respect to equipment sold
or services rendered by Marathon, or any undertak-
ings, acts or omissions relating thereto. Without limiting
the generality of the foregoing, Marathon specifically
disclaims any liability for property or personal inju-
ry damages, penalties, special or punitive damages,
damages for lost profits or revenues, loss of use
of equipment or any associated equipment, cost of
capital, cost of substitute products, facilities or services,
down-time, shut-down, or slow-down costs, or for any
other types of economic loss, and for claims of Buyer’s
customers for any such damages.
MARATHON SHALL NOT BE LIABLE FOR AND
DISCLAIMS ALL CONSEQUENTIAL, INCIDENTAL
AND CONTINGENT DAMAGES WHATSOEVER.
EVEN IF THE REPAIR OR REPLACEMENT REMEDY
SHALL BE DEEMED TO HAVE FAILED OF ITS
ESSENTIAL PURPOSE UNDER SECTION 2-719 OF
THE UNIFORM COMMERCIAL CODE, MARATHON
SHALL HAVE NO LIABILITY TO BUYER FOR
CONSEQUENTIAL DAMAGES, SUCH AS LOST
PROFITS, LOST REVENUE, DAMAGE TO OTHER
EQUIPMENT OR LIABILITY OR INJURY TO A THIRD
PARTY.
12. INDEMNIFICATION BY BUYER
Buyer shall indemnify, hold harmless, and defend
Marathon and Marathon’s employees and agents from
and against any and all damages, liability, claims,
losses, and expenses (including reasonable attorneys’
fees, court costs, and out-of-pocket expenses) arising
out of or resulting in any way from claims by custom-
ers of Buyer or third parties against Marathon alleging
a breach of contract or warranty by Marathon to the
extent that such damages, liability, claims, losses, and
expenses which may be payable by Marathon to Buyer
pursuant to and as limited by Marathon’s warranty and
damage obligations as contained in Sections 10 and 11
hereof so as to effectively limit Marathon’s obligations to
customers of Buyer or third parties to those set forth in
Sections 10 and 11 hereof.
13. PATENT INDEMNIFICATION
Marathon will at its own expense, defend or set-
tle any suits that may be instituted against Buyer
for alleged infringement by the equipment of any
United States patent, provided that (a) such alleged
infringements consists of the use of the equipment for
any of the purposes for which such equipment was
sold, (b) Buyer shall have made all payments for such
equipment then due hereunder, (c) Buyer shall give
Marathon immediate notice in writing of any such suit
and transmit to Marathon immediately upon receipt all
processes and papers served upon Buyer, and (d) Buyer
shall permit Marathon through its counsel, either in the
name of Buyer or in the name of Marathon, to defend
such suit(s) and give all needed information, assistance
and authority to enable Marathon to do so.
In case of a final award of damages in any such
suit, Marathon will pay such award but will not be
responsible for any compromise or settlement made
without its written consent. In case the equipment itself
is in such suit held to infringe any valid patent issued in
the United States and its use enjoined, or in the event
of a settlement or compromise approved by Marathon
which shall preclude future use of the equipment sold
to Buyer hereunder, Marathon shall, at its own expense
and, at its sole option, either (a) procure rights to
continue using such equipment, (b) modify the
equipment to render it noninfringing, (c) replace
the equipment with noninfringing equipment, or (d)
refund the purchase price paid by Buyer for the equip-
ment after return of the equipment to Marathon.
Notwithstanding the foregoing, Marathon shall not be
held responsible for infringements of combination or
process patents covering the use of equipment in
combination with other goods or materials not furnished
by Marathon.
The foregoing states the entire liability of Marathon
for patent infringement and
IN NO EVENT SHALL
MARATHON BE LIABLE FOR CONSEQUENTIAL
OR INCIDENTAL DAMAGES ATTRIBUTABLE TO
AN INFRINGEMENT
nor for infringement based on the
use of the equipment for a purpose other than that for
which sold by Marathon. As to any equipment furnished
by Marathon to Buyer manufactured in accordance with
designs proposed or furnished by Buyer or any claim of
contributory infringement resulting from the use or resale
by Buyer of equipment sold hereunder, Buyer shall
indemnify Marathon against any award made against
Marathon for any patent, trademark or copyright infringe-
ments, including attorneys’ fees and defense costs.
14. SECURITY AGREEMENT AND FINANCING
STATEMENTS
To secure payment of the purchase price and of all
monies which may be due hereunder, and performance
of all of Buyer’s obligations hereunder, Buyer hereby
grants to Marathon a security interest in all equipment
sold by Marathon, and agrees to execute such other
Security Agreements and Financing Statements as
Marathon may reasonably request.
15. INSURANCE
Until payment in full of the purchase price, Buyer
shall maintain insurance covering all equipment sold by
Marathon to Buyer in such amounts and against such
risks as is customary by companies engaged in the same
or similar business and similarly located, and shall, upon
Marathon’s request, furnish evidence of such insurance
satisfactory to Marathon.
16. DRAWINGS: OTHER DESIGN DATA
All specifications, drawings, design, data,
information, ideas, methods, patterns and/or inventions
made, conceived, developed or acquired by Marathon in
connection with procuring and/or executing Buyer’s order
will vest in and inure to Marathon’s sole benefit notwith-
standing any changes therefor which may have been or
may be imposed by Marathon.
Buyer shall not give, loan, exhibit, sell or transfer
to any person not then employed by Buyer and autho-
rized to receive such information, or to any organiza-
tion or entity, any drawing, photograph, or specification
furnished by Marathon or reproduction thereof which
may enable such person, organization or entity to
furnish similar goods or parts therefor.
17. RETURN OF EQUIPMENT
No equipment or part shall be returned to Marathon
without written authorization and shipping instructions first
having been obtained from Marathon.
18. ASSIGNMENT
None of the Buyer’s rights under any order shall be
assigned by the Buyer to any other person, whether by
operation of law or otherwise, without Marathon’s prior
written approval. Marathon may, without the necessity of
obtaining Buyer’s prior written consent, subcontract the
production of all or any portion of the equipment.
19. CANCELLATION
No order submitted to Marathon may be cancelled
by Buyer without the prior written consent of Marathon,
which consent will at all times be conditioned on Buyer’s
agreement to pay Marathon’s cancellation charge. For fin-
ished equipment which in Marathon’s judgment is readily
resalable to others, the cancellation charge shall be 15%
of the invoice price of the equipment. For all other cancel-
lations the cancellation charge shall amount to all costs
and expenses incurred by Marathon and arising out of or
in connection with the Buyer’s order, net of recoverability,
but in no event less than 10% of the invoice price of the
equipment or more than the invoice price.
20. GENERAL
Governing Law
- These Terms and Conditions,
and the contract of sale between Marathon and Buyer,
shall be governed by and construed in accordance
with the internal laws of the State of Ohio. Marathon
and Buyer hereby agree that any legal action deemed
necessary by either party hereto shall be brought in
the Circuit Court in and for Wood County, Ohio and
hereby consent to the personal jurisdiction of such court
in any such action over the parties hereto. The rights and
obligations of Marathon and Buyer shall not be
governed by the provisions of the United Nations
Convention on Contracts for the International Sales of
Goods.
Attorneys’ Fees -
Buyer agrees to pay all of
Seller’s costs and expenses of collection and related
litigation, including but not limited to attorneys’ fees and
costs.
Salvatory Clause
- The invalidity, in whole or in part,
of any of the provisions of these Terms and Conditions,
shall not affect the enforceability of any of the other provi-
sions thereof.
Applicability
- The Terms and Conditions as
stated herein are applicable as of the date of this
printing and until such time as changed by Marathon.
Revised, January 2003