(b) Buyer may ship Products returned under warranty to vosla’s designated facility only in conformance with vosla then current return material authorization policy. Where a warranty claim is justified, vosla will pay for freight expenses. Buyer shall pay for returned Products that are not found to be defective or non-conforming together with the freight, testing and handling costs associated therewith.
(c) Notwithstanding the foregoing, vosla shall have no obligations under warranty if the alleged defect or non-conformance is found to have occurred as a result of environmental or stress testing, misuse, use other than as set forth in the user manual, neglect, improper installation or accident, or as a result of improper repair, alteration, modification, storage, transportation or improper handling or if the usability is impaired only slightly.
(d) vosla does not give any warranty of fitness for a particular purpose, merchantabili-ty, or non-infringement of intellectual property rights.
(e) Warranty claims are subject to limitation 12 months after delivery. This does not apply if the Act pursuant to §§ 438 para 1 no 2 (buildings and building matters), 479 para 1 (right of recourse) and 634a para 1 no 2 (building defects) of the German Civil Code prescribes longer periods.
(f) Exceeding claims or claims and rights of the Buyer in connection with defective or non-conforming Products other than regulated in this Section 8 shall be excluded.
9. INTELLECTUAL PROPERTY RIGHTS INDEMNITY
(a) vosla, at its sole expense, shall: (i) defend any legal proceeding brought by a third party against Buyer to the extent that the proceeding includes a claim that any Product as furnished by vosla under an Agreement directly infringes the claimant’s patent, copyright, trademark, or trade secret; and (ii) hold Buyer harmless against damages and costs awarded by final judgment in such proceeding to the extent directly and solely attributable to such infringement.
(b) vosla shall have no obligation or liability to Buyer under Section 9 (a) (1) if vosla is not: (i) promptly notified in writing of any such claim; (ii) given the sole right to control and direct the investigation, preparation, defense and settlement of such claim, including the selection of counsel; and (iii) given full reasonable assistance and cooperation by Buyer in such investigation, preparation, settlement and defense; (2) if the claim is made after a period of 1 year from the date of delivery of the Product.
(c) If any Product is, or in vosla’s opinion is likely to become, the subject of a claim of infringement as referred to under 9 (a) above, vosla shall have the right, without obligation and at its sole option, to: (i) procure for Buyer the right to continue to use or sell the Product; (ii) provide replacement Product, or (iii) modify the Product in such a way as to make the modified Product non-infringing; or (iv) terminate any Agreement to the extent related to such Product.
(d) Subject to the exclusions and limitations set forth in Section 10 of the Terms and Conditions, the foregoing states vosla’s entire liability and obligation to Buyer and Buyer’s sole remedy with respect to any actual or alleged infringement of any intellec-tual property rights or any other proprietary rights of any kind.
10. LIMITATION OF LIABILITY
(a) Any claims for damages, compensation and/or reimbursement of expenses or costs of the Buyer (hereinafter referred to as “Claims for Damages”), regardless of the legal grounds and especially due to a breach of contract, warranty, delay, tort and/or infringement of duties arising in connection with the Agreement, shall be excluded. In case of failure of delivery or delay, any Claims for Damages shall be excluded even if Buyer had set a deadline that has expired.
(a) (b) The exclusions set forth above shall not apply in the event of mandatory liability, including but not limited to liability under the Product Liability Act (“Produkthaftungsge-setz”), in cases of gross negligence or intent, injury to life, body or health, or breach of contractual obligations material to the contract (“wesentliche Vertragspflichten”). However, Claims for Damages due to breach of material contractual obligations shall be limited to the foreseeable damage which is typical for the contracts, unless caused by gross negligence or intent or based on liability for injury of life, body or health. The foregoing provisions shall not imply any change in the burden of proof to Buyer’s disadvantage.
(c) To the extent that Buyer is entitled to Claims for Damages according to this Section 10, any such Claim for Damages shall be subject to limitation of time pursuant to the limitation of time period set out in Section 8 (e). In the event of Claims for Damages based on the Product Liability Act, the statutory provisions governing the limitations of time period shall apply.
Buyer acknowledges that all technical, commercial and financial data disclosed to Buyer by vosla and/or its affiliates is the confidential information of vosla and/or its affiliates. Buyer shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the parties and in conformance with the purchase transaction contemplated herein.
12. EXPORT/IMPORT CONTROLS
If the delivery of Products under the Agreement is subject to the granting of an export or import license by a government and/or any governmental authority under any applicable law or regulation, or otherwise restricted or prohibited due to export or import control laws or regulations, vosla may suspend its obligations and Buyer’s rights regarding such delivery until such license is granted or for the duration of such restric-tion and/or prohibition, respectively, and vosla may even terminate or cancel the Agreement, without incurring any liability towards Buyer.
Furthermore, if an end-user statement is required, vosla shall inform Buyer immediate-ly thereof and Buyer shall provide vosla with such document upon vosla’s first written request; if an import license is required, Buyer shall inform vosla immediately thereof and Buyer shall provide vosla with such document as soon as it is available.
By accepting vosla’s offer, entering into any Agreement and/or accepting any Prod-ucts, Buyer agrees that it will not deal with the Products and/or documentation related thereto in violation of any applicable export or import control laws and regulations.
13. DATA PROTECTION/SCHUFA
Personal data of Buyer will be treated in compliance with the effective provisions of the laws on data protection. vosla is the controller. vosla or any other service provider commissioned by vosla will store and process personal data, particularly address and order data, for the execution of the business transactions. Storage and processing will only take place insofar as it is necessary for the execution of the business transactions.
Buyer agrees to that vosla provides the SCHUFA Holding AG (Postfach 5640 Hannov-er) and other credit agencies with data to perform solvency check and credit assess-ment. vosla will use data Buyer has given in the course of initiation and execution of business transactions. Buyer may revoke its consent with effect for the future. Philips may provide to the SCHUFA information and data concerning Buyer’s behavior that is not according to the contract. vosla will transfer such data only if such a transfer is admissible after balancing all relevant interests. The SCHUFA storages and transfers data for solvency checks and credit assessments within the EU: Buyer can require information from the SCHUFA about all stored date concerning Buyer.
14. ASSIGNMENT AND SETOFF
Buyer shall not assign any rights or obligations under the Agreement without the prior written consent of vosla. Buyer shall have no right to withhold or reduce any payments or to offset existing and future claims against any payments due for Products sold under the Agreement or under any other agreement that Buyer may have with vosla or any of its affiliates may have and agrees to pay the amounts hereunder regardless of any claimed offset which may be asserted by Buyer or on its behalf. However, Buyer shall have the right to offset claims that are undisputed by vosla or which have been established through a non-appealable judgment.
15. GOVERNING LAW AND JURISDICTION
All offers, confirmations and Agreements are governed by and construed in accordance with the laws of Germany. All disputes arising out of or in connection with any Agreement shall first be attempted by Buyer and vosla to be settled through consultation and negotiation in good faith in a spirit of mutual cooperation. All disputes which cannot be resolved amicably shall be submitted to the exclusive jurisdiction of the courts of Plauen (Germany), provided that vosla shall always be permitted to bring any action or proceedings against Buyer in any other court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any offer, confirmation or Agreement. Nothing in this Section 14 shall be construed or interpreted as a limitation on either vosla’s or Buyer’s right under applicable law for injunctive or other equitable relief or to take any action to safeguard its possibility to have recourse on the other party.
16. BREACH AND TERMINATION
Without prejudice to any rights or remedies vosla may have under the Agreement or at law, vosla may, by written notice to Buyer, cancel or terminate with immediate effect the Agreement or any part thereof without any liability whatsoever, if:
(a) Buyer violates or breaches any of the provisions of the Agreement;
(b) any proceedings in insolvency, bankruptcy (including reorganization) liquidation or winding up are instituted against Buyer, whether filed or instituted by Buyer, voluntary or involuntary, a trustee or receiver is appointed over Buyer, or any assignment is made for the benefit of creditors of Buyer.
Upon occurrence of any of the events referred to above, all payments to be made by Buyer under the Agreement shall become immediately due and payable.
In the event of cancellation, termination or expiration of an Agreement the terms and conditions destined to survive such cancellation, termination or expiration shall so survive.
(a) In the event that any provision(s) of these Terms and Conditions shall be held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action shall not negate the validity or enforceability of any other provisions thereof. In the event that any provision of these Terms and Conditions shall finally be determined to be unlawful or unenforceable, such provision shall be deemed severed from these Terms and Conditions, but every other provision shall remain in full force and effect, and in substitution for any such provision held unlawful or unenforceable, there shall be substituted a provision of similar import reflecting the original intent of the clause to the extent permissible under applicable law.
(b) The failure on the part of either party to exercise, or any delay in exercising, any right or remedy arising from the Agreement shall not operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy arising there from preclude any other or future exercise thereof or the exercise of any other right or remedy arising from the Agreement or from any related document or by law.