Terms & Conditions
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7500 Mendelssohn Avenue N.Minneapolis, MN 55428 U.S.A.www.ametekmocon.com+1 763.493.6370 (Tel)+1 763.493.6358 (Fax) |
PLEASE READ THE FOLLOWING TERMS CAREFULLY, AS PURCHASING, LICENSING AND/OR USING THE RELATED PRODUCTS, SOFTWARE, OR SERVICES INDICATES AGREEMENT WITH, AND ACCEPTANCE, OF THESE TERMS.
Last Revised: 03/21/2022
THESE ARE THE CURRENT TERMS AND CONDITIONS OF SALE ("TERMS") OF MOCON, INC. AND/OR ITS AFFILIATES AND SUBSIDIARIES (COLLECTIVELY, “MOCON”), WHICH APPLY TO ANY SALE OF MOCON PRODUCTS, LICENSING OF ACCOMPANYING SOFTWARE, AND/OR THE PROVISION OF SERVICES (THE TERMS “PRODUCTS”, SOFTWARE” AND “SERVICES”, AS DEFINED BELOW). YOU, ON BEHALF OF YOURSELF AS AN INDIVIDUAL, YOUR EMPLOYER, OR ANOTHER ENTITY WHICH HAS NOT PREVIOUSLY ACCEPTED THESE TERMS (COLLECTIVELY, "CUSTOMER"), REPRESENT AND WARRANT THAT CUSTOMER HAS AUTHORITY TO ACCEPT, AND HAS READ, UNDERSTOOD AND AGREED TO, THESE TERMS. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, ANY DOWNLOAD, ACCEPTANCE OR USE BY CUSTOMER OF ANY MOCON PRODUCTS, SOFTWARE, AND/OR SERVICES SHALL CONSTITUTE AN IRREVOCABLE ACCEPTANCE OF THESE TERMS. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY THESE TERMS, THEN CUSTOMER SHALL PROMPTLY RETURN PRODUCTS, DELETE OR RETURN LICENSED SOFTWARE AND NOT USE ANY RELATED SERVICES.
1. SALE AND PURCHASE; LICENSE.
1.1. Products. MOCON agrees to sell to Customer, and Customer agrees to purchase, the system(s) ("System"), System parts ("Parts"), instruments (“Instruments”), and/or other options and accessories (collectively, the "Products" or “Product”) and/or Services (as defined in Section 1.3 (“Services”) below) that are set forth in any quotation, purchase order, order confirmation or order acknowledgement or any other written purchase agreement tendered to MOCON (each a “Quotation”, "Purchase Order", “Order Confirmation” or “Order Acknowledgement” respectively), any and all of which shall be governed by these Terms, notwithstanding any conflicting or additional provisions in any such Purchase Order or other Customer communication. No purported waiver or other modification of these Terms will be effective unless, and only to the extent, specified by an express waiver or modification signed by an executive officer of MOCON. All other proposed modifications or waivers (whether whole or partial) of these Terms are hereby objected to and rejected in all respects. The price for the Product(s) or Services shall be that defined in the Quotation or Order Confirmation or Order Acknowledgement and shall not be subject to any change, whether by operation of any price adjustment clauses in Customer’s terms, or otherwise.
1.2. Software and Documentation. If a Product includes the licensure of any MOCON-provided software, which term shall include program code together with applicable technical documentation, containing specifications, instructions, and/or other information accompanying such software or made available by MOCON from time to time (collectively "Software"), MOCON hereby grants to the Customer a non-exclusive, nontransferable, revocable, and limited license to use the Software for its internal purposes and solely in conjunction with the use of Product to which it relates. Customer acknowledges that the Software may also be subject to additional terms and conditions set forth in executable or electronic license agreements, which shall control and govern all such licensed Software use to the extent necessary to resolve any conflict with these Terms. Subject to the terms of such license agreements, all rights not expressly granted herein are reserved, and all other uses of the Software are subject to these Terms as well as the payment of any applicable Software license fees, including fees for specific Software functionalities, as identified by MOCON in writing.
1.3. Services. From time to time, MOCON agrees to offer and provide testing services or services related to the Products ("Services") that are identified in a Purchase Order, and Customer agrees that such services are offered and provided at all times subject to, and in accordance with, these Terms. Notwithstanding the foregoing, certain Services, including testing, support and maintenance services, may be offered under, and made subject to, additional terms or conditions in a separate agreement (the "Services Agreement"), which, on full execution, shall control and govern to the extent necessary to resolve any conflict with these Terms.
1.4. Restrictions on Use. Customer agrees that it shall not directly or indirectly: (i) modify, enhance, adapt, translate, make improvements to, create derivative works based upon, disassemble, decompile, reverse engineer, reduce to any human or machine perceivable form, or circumvent any technological measure that controls access to or permits derivation of the source code of, the Software or any part thereof; (ii) reverse engineer the Products, any part thereof, or any composition made using the Products; (iii) rent, lease, sell, transfer, assign, or sublicense the rights granted hereunder, except in connection with the rental, lease, sale or transfer of the entire System; (iv) copy any part of the Software except for one (1) complete copy thereof for archival and/or back-up purposes, or as otherwise expressly authorized by MOCON in writing; (v) change, distort, or delete any patent, copyright or other proprietary notices which appear in writing on or in a Product (or in any copies of Software); (vi) make or permit use of any trademark, trade name, service mark or other commercial symbol of MOCON without its prior written consent; (vii) operate or make use of the Products in any way violative of applicable laws and regulations; and/or (viii) take or permit any other action which could impair MOCON' rights, or damage the image or reputation of quality inherent in the Products, MOCON' business, reputation, Intellectual Property (defined below) or other valuable assets or rights. In the event Customer rents, leases, sells or otherwise transfers the Products to a third party, Customer agrees that it will require such third party to be bound by Sections 1.2 (Software and Documentation), 1.4 (Restrictions on Use), and 8 (Proprietary Rights) hereof as a condition of such rental, lease, sale or other transfer.
2. PRICES, PAYMENT AND TAXES.
2.1. Cancellation Rights and Procedures. Customer may cancel or modify a pending Purchase Order only by giving written notice thereof to MOCON on the first to occur of: a) ten (10) business days after submission of the Purchase Order to MOCON, or b) shipment of the Product by MOCON. Thereafter, Customer may not cancel or change any Purchase Order without MOCON' prior written consent. MOCON has the right to accept or reject any Purchase Order, for any reason, in its sole discretion, at any time.
2.2. Payments and Credit. Except as provided for in Section 2.2(a) hereof, MOCON’S prices are firm for the period of time set forth in the Quotation, or where no time period is so stated, for a period of thirty (30) days from the date of quotation.
2.2(a) All prices are subject to change without notice in the event of any changes in cost of materials or labor, specifications, quantities, delivery schedules, customs duties, other factors beyond MOCON’s control, or in the event of delays caused by instructions of the Customer, or failure of the Customer to give MOCON adequate information. Further, prices payable by the Customer shall be subject to immediate increase, should MOCON as a result of governmental action or regulation including, without limitation, those contemplated by an investigation under Section 232 of the Trade Expansion Act of 1962 (19 U.S.C. §1862) or those contemplated by an investigation under Section 301 of the Trade Act of 1974 (19 U.S.C. §2411), incur additional duties, tariffs or restrictions on products sold hereunder, or on the raw materials that are used in making such products. In no event shall prices include any amounts imposed on the Customer in connection with Customer’s purchases from MOCON, such as taxes, including but not limited to Value Added Tax (VAT) or excise taxes, duties, tariffs, or any other costs assessed against the Customer by a governmental authority. Without limiting the foregoing, all prices are subject to adjustment without notice at any time prior to shipment in the event that the prices or costs related to any component, materials, parts, or commodities utilized in the Products or Services have increased following the acceptance of any Order for any Products or Services (a “Component Adjustment”). Any Component Adjustment, as determined by MOCON, shall be reflected in the invoice for Products or Services that is transmitted from MOCON to Customer in accordance with the terms and conditions hereof. Without limiting the foregoing, all prices are subject to adjustment without notice at any time prior to shipment due to increases in inflation occurring following the acceptance of any Order for any Products or Services (an “Inflation Adjustment”). The Inflation Adjustment for any Products or Services shall be made by multiplying (a) the ratio obtained by dividing the (i) Consumer Price Index (CPI) in place at the time of invoice by (ii) the Consumer Price Index (CPI) in effect at the time of acceptance of an Order time (b) the price or cost for any applicable Products/Services as set forth in the Order. Any Inflation Adjustment, as determined by MOCON, shall be reflected in the invoice for Products or Services transmitted from MOCON to Customer in accordance with the terms and conditions hereof.
2.2(b) Customer shall pay for the Products, Software and/or Services in cash as and within the time frames or on or before the date(s) specified in the Quotation or Purchase Order, and is not entitled to and shall not suspend payments, set off or otherwise deduct from any amounts invoiced by MOCON. No rights to purchase Products on credit are conferred herein, and any extension, modification or withdrawal of credit and credit terms are reserved solely to MOCON in its discretion. Except as otherwise agreed in the Purchase order, all payments are due in U.S. dollars. Customer represents and warrants to MOCON that any and all information provided to MOCON for the purpose of encouraging MOCON to extend credit is true and accurate, including any such information provided to MOCON by reference Customer’s website or otherwise.
2.3. Remedies. In the event Customer is in default in the payment of any sum invoiced by MOCON, then, without prejudice to MOCON' other rights and remedies: (a) all outstanding sums shall immediately become due and payable to MOCON, notwithstanding any credit terms previously granted by MOCON to the Customer; (b) MOCON may delay or suspend delivery of Products, Software and/or Services hereunder, or cancel any existing, pending or new orders and/or agreements with the Customer; (c) MOCON may retain any amount already paid to it by Customer; and (d) MOCON may recover its reasonable attorney's fees and other expenses incurred in enforcing its rights and remedies hereunder. Any amounts not paid by Customer when due shall bear interest at the rate of one and one-half percent (1.5%) per month or the highest legal rate of interest (whichever is lower).
2.4. Taxes. All prices are exclusive of, and Customer shall pay, all applicable sales, use and other taxes or duties imposed, or otherwise due, on the sale, purchase or license of the Products, Software and/or Services, except for those taxes imposed upon MOCON' net income.
3. TITLE, DELIVERY AND RISK OF LOSS.
3.1. Transfer Terms. Delivery is made available FCA (Incoterms 2010) at MOCON's designated facility, with respect to shipping costs, risk of loss and title transfer, except that no title transfer shall ever occur for any licensed Software associated with any Product sale. Notwithstanding delivery and the passage of risk and whether or not credit is extended for any Product purchase, the following shall apply:
3.1.1. If the applicable law (as determined according to Section 16 (Jurisdiction) below) so permits, property in and title to Products shall remain with MOCON, and shall not pass to Customer, until MOCON has received payment of the full price and license fees (if applicable) for (a) all Products, Software and/or Services that are the subject of these Terms, and (b) all other goods and/or services supplied by MOCON to Customer under any contract whatsoever. Payment of the full price and license fees shall include without limitation, the amount of any interest or other sum payable under the terms of this and all other contracts between MOCON and Customer. Moreover, Customer shall keep the Products identified as retained until such retention lapses.
3.1.2. If the applicable law does not permit the arrangement described in Section 3.1.1 above, MOCON hereby reserves in the Products (as well as all proceeds resulting from any sale thereof), and Customer grants and agrees that the Products shall remain fully subject to, a first priority purchase money security interest, until MOCON has received payment of the full price and license fees (if applicable) for all the items listed in paragraphs (a) and (b) of Section 3.1.1. Payment of the full price and license fees shall include without limitation, the amount of any interest or other sum payable under the terms of this and all other contracts between MOCON and Customer. Moreover, Customer hereby covenants that (i) no hindrance to its granting of the above security interest exists in any of its third party contracts; or (ii) in the event such a hindrance does exist, Customer shall assist MOCON in exercising, and shall take all actions necessary to protect and maintain such security interest.
3.2. Delivery. MOCON will attempt to cooperate with Customer's requested delivery dates or other related delivery requests, but cannot and does not warrant quoted shipment or delivery dates or time frames, and may fulfill ordered items by partial and incremental shipments, if Customer so agrees. Customer acknowledges and agrees that all costs and obligations associated with shipment and delivery of Products shall be borne solely by Customer; that any insurance desired therefor shall be Customer's sole obligation and expense; and that in no event shall MOCON be liable for any direct or indirect damage or loss that the Customer may incur resulting from any delivery failure or delay. The Products and licensed Software shall be deemed to be accepted by Customer unless Customer notifies MOCON in writing within ten (10) calendar days following the date of delivery of any alleged Product defect or other Purchase Order discrepancies. The Products and licensed Software shall be deemed to be accepted in all respects, including the quantity specified on the bill of lading or commercial invoice and the condition of the Products and licensed Software. Such acceptance will operate as a full and complete bar to claims against MOCON, if no such notice is received.
4. STARTUP AND TRAINING.
Products shall be started up by Customer and used at any time following delivery. Solely, in the event that the Quotation provides for startup and training to be done by MOCON, MOCON (or its authorized technical representative) will initiate the startup and training of those Products (including Software) or Parts designated as such by MOCON, or its authorized technical representative (such Products or Parts, "MOCON Started Products/Parts"), at Customer's designated facility. In such circumstance only, prior to such startup and training, Customer, at its expense, shall complete all applicable Product site preparations for startup and training, as specified by the Quotation or applicable Product documentation and as required by applicable law, including, without limitation, all health and safety laws, and shall thereafter provide such other assistance, services and facilities as may be requested by MOCON (or its authorized technical representative) to complete such start up and training. Where applicable and required by MOCON, MOCON (or its authorized technical representative) will perform a standard test of the Products.
5. TRAINING.
In consideration for Customer's payment of charges due (unless otherwise specified in the Purchase Order acceptance), MOCON may make available to qualified personnel of Customer basic training in the use and operation of the Products according to the terms of the Quotation. MOCON may also offer and provide such training services from time to time, in its sole discretion, at a price to be determined and agreed upon at such time.
6. PRODUCT WARRANTY.
6.1. Limited Warranty and Warranty Period. The terms and conditions of MOCON’s standard warranty shall apply exclusively, to the extent permitted by applicable law.
6.2. Exclusion of Warranties. MOCON' limited warranty obligations hereunder shall terminate and shall not apply in any case where any alleged Product failure or other breach of warranty was necessitated or caused in whole or in part by: (i) catastrophe, fault or negligence of the Customer; (ii) operation or use of the Products in violation of applicable laws or regulations; (iii) improper or unauthorized use including, ; (iv) modification or repair other than by MOCON or its authorized technical representatives; (v) removal of the Products from the original site of delivery and start up or country of delivery and start up, unless otherwise expressly authorized by MOCON in writing; (vii) unusual stress; (vi) power failure; (vii) deviation from MOCON'S recommended maintenance procedures; or (viii) failure to maintain the prescribed environmental or other conditions at the operating site or any other failure to comply with applicable Product instructions and/or documentation.
6.3. WARRANTY DISCLAIMER. THE WARRANTIES SET FORTH IN THIS SECTION 6 AND IN THE MOCON STANDARD PRODUCT WARRANTY (PRODUCT WARRANTY) ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY (INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT). MOCON DISCLAIMS THAT THE OPERATION OF SOFTWARE WILL BE UNINTERRUPTED OR ERROR FREE, OR THAT THE FUNCTIONS THEREIN WILL MEET OR SATISFY THE CUSTOMER (OR USER'S) REQUIREMENTS OR INTENDED USE. THE REMEDIES PROVIDED IN SECTION 6.2 (LIMITED WARRANTY REMEDIES) SHALL BE CUSTOMER'S SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OF MOCON TO CONFORM WITH SUCH LIMITED WARRANTY, AND CUSTOMER SHALL HAVE NO CLAIM, EXCEPT AS AFORESAID, AGAINST MOCON OR ANY OTHER MANUFACTURER, SUPPLIER OR LICENSOR OF THE PRODUCTS, SOFTWARE OR RELATED SERVICES, WHETHER BASED IN CONTRACT, TORT, PRODUCT OR OTHER STRICT LIABILITY, TRADE PRACTICES, OR OTHERWISE. REPAIR OR REPLACEMENT OR REFUND (AS ELECTED BY MOCON) IN THE MANNER PROVIDED ABOVE SHALL CONSTITUTE FULFILLMENT OF ALL LIABILITIES OF MOCON WITH RESPECT TO ITS LIMITED WARRANTY, AS WELL AS FOR ANY CLAIMS BASED ON OR RELATING TO THE QUALITY AND PERFORMANCE OF THE PRODUCTS. CUSTOMER IS SOLELY RESPONSIBLE IN ALL CASES FOR SELECTION OF THE PRODUCT(S), SOFTWARE AND SERVICES TO ACHIEVE CUSTOMER'S INTENDED RESULTS OR FOR CUSTOMER'S PARTICULAR APPLICATIONS.
6.4. Product Discontinuation. MOCON shall provide: (i) reasonable inventories of Parts for broken or defective Systems for the greater of (A) a twelve (12) month period after the date MOCON discontinues the sale and supply of such Systems ("Discontinuance Date(s)"); or (B) such period as is otherwise required by applicable laws and regulations; and (ii) support and maintenance services for discontinued Systems and Software.
7. LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW:
7.1. LIMITATION OF DIRECT DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, INCLUDING WITHOUT LIMITATION MOCON' INDEMNIFICATION LIABILITY UNDER SECTION 10 (INDEMNITY), IN NO EVENT SHALL MOCON, OR ITS AFFILIATES, MANUFACTURERS, SUPPLIERS OR LICENSORS (AS THIRD PARTY BENEFICIARIES) BE LIABLE FOR DIRECT DAMAGES OR OTHER LOSSES OR LIABILITIES DIRECTLY RELATING TO THE PRODUCTS, SOFTWARE OR SERVICES OR OTHERWISE ARISING OUT OF, RELATED TO, OR IN ANY WAY CONNECTED WITH THE START UP, OPERATION OR OTHER USE OF PRODUCTS OR THE PROVISION OF SERVICES, IF AND TO THE EXTENT SUCH DIRECT DAMAGES OR LOSSES EXCEED THE ACTUAL AMOUNT PAID BY CUSTOMER FOR THE SPECIFIC PRODUCT(S) OR RELATED SERVICES THAT DIRECTLY GAVE RISE TO THE DAMAGES OR OTHER LOSSES OR LIABILITIES CLAIMED (PROVIDED THAT FOR ANY SERVICES, THE AMOUNT SHALL BE LIMITED TO THE AMOUNT PAID FOR SAID SERVICES DURING THE TWELVE (12) MONTHS PRIOR TO BRINGING THE CLAIM), REGARDLESS OF THE FORM OF ACTION, WHETHER BASED IN CONTRACT, EXPRESS OR IMPLIED WARRANTY, TORT, PRODUCT OR OTHER STRICT LIABILITY, TRADE PRACTICES, OR OTHERWISE, AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
7.2. EXCLUSION OF CERTAIN DAMAGES. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL MOCON OR ITS AFFILIATES, MANUFACTURERS, SUPPLIERS OR LICENSORS (AS THIRD PARTY BENEFICIARIES) BE LIABLE FOR ANY LOSS OF REVENUE, LOSS OF ACTUAL OR ANTICIPATED PROFITS, LOSS OF CONTRACTS, LOSS OF THE USE OF MONEY, LOSS OF ANTICIPATED SAVINGS, LOSS OF BUSINESS, LOSS OF OPPORTUNITY, LOSS OF GOOD WILL, LOSS OF REPUTATION, LOSS OF, DAMAGE TO OR CORRUPTION OF DATA; OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, RELIANCE, EXEMPLARY, PUNITIVE, OR OTHER SIMILAR DAMAGES OF ANY KIND, WHETHER FORESEEABLE OR UNFORESEEABLE, EVEN IF IT IS MADE AWARE OF THE POSSIBILITY OF SUCH DAMAGES, AND WHETHER BASED IN CONTRACT, EXPRESS OR IMPLIED WARRANTY, TORT, PRODUCT OR OTHER STRICT LIABILITY, TRADE PRACTICES, OR OTHERWISE, AND REGARDLESS OF WHETHER ANY REMEDY SET FORTH HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
7.3. Limitation of Actions. Any action against MOCON relating to any alleged breach of warranty or any other alleged Product failure, must be brought within twelve (12) months after the cause(s) of action accrue(s).
8. PROPRIETARY RIGHTS.
8.1. Customer acknowledges that MOCON is the sole owner or licensee of all Intellectual Property and trade secrets that relate to the Products and the use thereof. No right or license in Intellectual Property is granted to Customer by implication, estoppel or otherwise, unless, and only to the extent, expressly set forth herein or in other written documentation provided by MOCON. Except as required by law or as expressly set forth in other written documentation provided by MOCON, (a) Intellectual Property directed to all or part of a Product is licensed only upon purchase of the Product from MOCON or its approved reseller and only for use of the specific Product so purchased; (b) Intellectual Property directed to a combination of Products (such as a System and Consumables) is licensed only upon purchase of the entire combination from MOCON or its approved reseller and only for use of the combination of specific Products so purchased; (c) Intellectual Property directed to a method of using a Product is licensed only upon purchase of the Product from MOCON or its approved reseller that necessarily performs the method and only for use in connection with the specific Product so purchased; and (d) Intellectual Property directed to a method of using a combination of Products (such as a System with Consumables or combinations of Consumables) is licensed only upon purchase of the entire combination from MOCON or its approved reseller that collectively necessarily perform the method and only for use in connection with the combination of specific Products so purchased. As used herein, "Intellectual Property" shall mean any and all MOCON copyrights, patents, trademarks, trade names, logos, Software, documentation, technical and manufacturing techniques, concepts, methods, designs, specifications and other proprietary information relating to the Products. Notwithstanding any other provision of these Terms, any use herein of the terms "sale" or "purchase" or a similar term in connection with the Software shall only mean a license of such Software in accordance with these Terms.
9. CONFIDENTIALITY.
Customer agrees to hold all confidential or proprietary information (including, without limitation, technology, software, ideas, know-how, processes, specifications, technical data, configurations, algorithms and trade secrets) which is disclosed by MOCON (collectively, "Confidential Information") in strictest confidence, and agrees not to use any Confidential Information for any purpose outside the purchase, sale and use of Products, and not to disclose the Confidential Information to any third party, except to those employees of Customer who are bound by written restrictions at least as protective of MOCON' Confidential Information as those provided herein, and who must be given access to the Confidential Information solely to use the Products in accordance with these Terms. Upon execution of a non-disclosure agreement satisfactory to MOCON, its Confidential Information may also be disclosed to Customer's consultants who have been retained to perform services in connection with the Products, provided that Customer shall remain liable for any breach of such agreement, or damage or loss incurred as a result of such breach, by any such consultants.
10. INDEMNITY.
10.1. Subject to the restrictions identified below, MOCON shall assume responsibility for any suit or proceeding brought against Customer which is based on a third party claim that an unaltered Product (including its Software) or any Part thereof, furnished pursuant to these Terms infringes upon the third party's registered copyright, trademark or patent; provided, however, that MOCON shall: (i) be given immediate notice in writing of the assertion of any such claim and of the threat or institution of any such suit or proceeding; (ii) have sole authority to investigate, defend and/or settle the claim, suit or proceeding; and (iii) be given any such assistance as required for the investigation, preparation, defense and settlement of the claim, suit or proceeding, subject to reimbursement by MOCON of Customer's reasonable out-of-pocket expenses. Without derogating from the foregoing obligation, if MOCON believes that any Product (including its Software) may infringe, then MOCON, at its election, may: (a) substitute or modify such Product which is alleged or determined to infringe so that it becomes non-infringing, while providing substantially similar performance; (b) obtain license rights for the continued use of the Product by Customer (at no additional cost to Customer); and/or (c) refund to Customer the purchase price paid for the infringing Product. This Section 10.1, states Customer's entire remedy, and MOCON'S entire liability subject to the limitations on liability set out in Section 7.1 (Limitation of Direct Damages), for any such infringement or claim thereof, and shall control over any other conflicting or inconsistent provision in these Terms. Without the prior written consent of MOCON, Customer shall not incur any cost or expense in connection with such claim, suit or proceeding or make any admission, or enter into any agreement, in connection therewith. MOCON shall have no liability or obligation under this Section 10.1 for any infringement or claim thereof to the extent it is based upon: (A) any method of using a Product (other than methods inherent in, and necessary for, the operation of, the Product as supplied); (B) the use of any Product which has been modified by Customer or any third party without obtaining MOCON' prior written authorization; (C) the result of MOCON' compliance with any of Customer's requested designs or specifications; (D) circumstances giving rise to one or more warranty exclusions under Section 6.3 (Exclusion of Warranties) above; and/or (G) Customer's continued use of any Product after receipt of notice of infringement (collectively, "Exclusions").
10.2. Customer shall defend, indemnify, and hold harmless MOCON and its affiliates, and their employees, officers, and directors, against any claim, suit or proceeding arising out of or relating to any Exclusions; provided that Customer shall not settle any claim or enter into any agreement that affects MOCON' rights or interests without MOCON' prior written consent; and that if Customer does not diligently defend against such claim, suit, or proceeding, MOCON shall be entitled to obtain its own legal counsel to direct the defense thereof at Customer's sole cost and expense.
11. INSURANCE.
Customer will obtain and maintain adequate liability insurance on the Products.
12. EXPORT COMPLIANCE.
Customer shall comply with all applicable laws, rules, and regulations with respect to, but not limited to, the use of the Product. In addition, Customer expressly agrees to abide by all applicable foreign trade/export restrictions or similar rules as stated herein or referred to herein. Customer shall not transfer, export or re-export any Product (including any Software, Part, or consumable) or any related technology except in full compliance with all applicable export controls administered by the United States of America, as well as any applicable import and use restrictions, which laws, regulations, controls and restrictions may change from time to time. Without limiting the generality of the foregoing, Customer shall not transfer, export or re-export such items to anyone on the U.S. Treasury Department's list of Specially Designated Nationals; the U.S. Commerce Department's Denied Persons List or Entity List; or any lists maintained by the U.S. Office of Foreign Assets Control and the U.S. Department of Homeland Security, which lists may be revised from time to time, or for any prohibited use, as defined under the US Export Control Regulations, such as for a use in chemical or biological weapons, sensitive nuclear end uses, missiles, etc. Customer represents it is not located in, under control of, or a national or resident of any country on any such list. Customer shall be solely responsible for determining compliance and obtaining all required approvals to facilitate the export of any products or technologies, including outside of the U.S. and MOCON shall be under no obligation to notify Customer of any changes or updates to any laws, regulations, controls, restrictions or lists contemplated hereby. Customer shall immediately inform MOCON of any trade/export restrictions, whether they are of, U.S. or other origin, which may impact MOCONS' compliance with internationally respected legislation, rules, protocols, advice or recommendations relating to trade/export restrictions. For clarity, in the event of any conflict between legislation of local origin and of U.S. origin, legislation of U.S. origin will prevail unless prohibited by mandatory legislation of local origin.
13. US GOVERNMENT USE.
If Customer is part of an agency, department, or other entity of the United States Government ("Government"), the use, duplication, reproduction, release, modification, disclosure or transfer of the Product or Software is further restricted in accordance with the Federal Acquisition Regulations as applied to civilian agencies, and the Defense Federal Acquisition Regulation Supplement as applied to defense and military agencies, for "commercial items," "commercial computer software" and "commercial computer software documentation." In accordance with such provisions, any use thereof by the Government shall be governed solely by these Terms.
14. NOTICES.
All notices and communications between the parties shall be in writing and addressed and sent by: (i) email where delivery is verifiable by automated receipt; (ii) facsimile, where delivery is verifiable by automated delivery receipt; or (c) by national or international overnight courier service where delivery receipt is provided to the addresses set forth in the Purchase Order, or to such other replacement addresses as may be provided from time to time by each party by written notice given in accordance with this Section 14. Any notice to MOCON shall be to the attention of CEO or other authorized contact identified in the applicable Purchase Order acknowledgment. Notice shall be deemed to have been duly received by a party as of the date such notice was delivered in accordance with any of the methods prescribed herein.
15. ENTIRE AGREEMENT
These Terms: (i) constitute the entire agreement and understanding between the parties regarding the terms of each Product sale, and supersede all prior and contemporaneous representations, promises, statements, agreements and understandings, written or oral, regarding the subject matter hereof; and (ii) may only be modified and/or waived by a written agreement executed by both parties. Notwithstanding the foregoing, these Terms may be modified by MOCON from time to time and in its discretion, by delivery of replacement Terms to Customer, and by posting such then-current Terms at this website.
16. JURISDICTION.
For Customers in the US and Canada: (i) these Terms shall be governed by and construed under the internal laws of the State of Minnesota, USA, without reference to its choice of law rules; and (ii) Customer irrevocably consents to the exclusive jurisdiction and venue of the applicable federal or state courts located in Hennepin County, Minnesota, and agrees to file any action brought by it hereunder only in the competent federal and/or state courts located in such county. With respect to both the above jurisdiction rule, Customer hereby agrees to the exclusivity of such applicable jurisdictions and irrevocably waives any personal, subject matter, inconvenient forum or other objections thereto. Notwithstanding the foregoing, Customer also hereby consents to the jurisdiction of any court(s) of competent jurisdiction in which MOCON seeks equitable or injunctive relief for the breach of any of these Terms and in all cases waives any applicable right to a jury trial. Customer shall be liable for all costs incurred by MOCON (including attorneys' fees or other costs) in connection with the collection of any past due amounts owed by Customer. The United Nations Convention for the Sale of Goods shall not apply to any transaction hereunder.
17. INVOICE FRAUD PREVENTION.
Given the increased risk of invoice fraud, Customer should treat any notification to change details of MOCON’s bank account with suspicion. MOCON will not inform or instruct Customer to make remittance or money transfers to any other beneficiary, address or bank account via email. Always verify a request to update records or change bank account information BEFORE implementing a change or completing the payment. Verify any requested changes by speaking to a known MOCON representative.
18. GENERAL.
The parties hereto are independent contractors and nothing herein shall be construed as creating a partnership or granting the right to bind the other. Customer may not assign or transfer these Terms or the rights granted hereunder, except with MOCON' prior written consent. Subject to the foregoing, Customer's rights or obligations under these Terms shall be binding upon and inure to the benefit of each party's respective permitted successors and assigns. Designated third-party beneficiaries may also enforce the Terms relating to their rights. MOCON reserves the rights to terminate and revoke these Terms and terminate its relationship with Customer at any time following Customer's breach of any of these Terms, and such termination shall be effective immediately upon written notice thereof to Customer. Upon termination for any reason, Customer shall immediately cease use of any Software not embedded within the Systems, delete or destroy all copies in its possession, including that which may have been provided to contractors or consultants, and execute and deliver to MOCON a certification evidencing same. The unenforceability of any provision of these Terms adjudged by any court of competent jurisdiction shall in no way affect the enforceability of any other provision hereof, which shall remain in full force and effect. Any failure by either party to exercise any right or remedy under the Terms does not constitute a waiver, or signify acceptance, of the event giving rise to such right or remedy. Any waiver or other alleged modification or amendment by MOCON of any provision of these Terms must be in writing and signed by an authorized officer of MOCON to be valid. Provisions which by their nature should survive termination of the parties' business relationship and any agreements between or among them, including, but not limited to, Sections 1.4 (Restrictions on Use), 2 (Payment and Taxes), 3.1 (Transfer Terms), 6.2 (Exclusion of Warranties), 6.3 (Warranty Disclaimer), 7 (Limitation of Liability), 8 (Proprietary Rights), 9 (Confidentiality), and 12 (Export Compliance) through 18 (General) shall survive indefinitely. To the extent that these Terms are accepted electronically, Customer hereby waives any applicable rights to require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent not prohibited under applicable law.