XL Specialized Trailers TERMS AND CONDITIONS FOR OFFER OF SALE.
The following Terms and Conditions of Sale shall govern the sale of all trailers, equipment, parts, accessories and other products (“Equipment”) from Bull Moose Heavy Haul, Inc. d/b/a XL Specialized Trailers (“SELLER” or “Seller”) to the buyer identified on the signature line below (the “BUYER” or “Buyer”). For purposes of these Terms and Conditions of Sale, a “Unit” or “Product” means one individual trailer or trailer component together with any related parts and accessories, pursuant to a quote from Seller. Buyer’s acceptance of the offer contained on any quote is expressly limited to the terms and conditions stated herein, and any acceptance by Buyer or document delivered by Buyer purporting to state additional or different terms shall have no effect.
1. Definitions. As used herein, the following terms have the meanings indicated.
Buyer: means any buyer receiving a Quote for Products from Seller.
Goods: means any trailer, tangible part, system or component to be supplied by the Seller.
Products: means the Trailers, Goods, Services and/or Software as described in a Quote provided by the Seller.
Quote: means the offer or proposal made by Seller to Buyer for the supply of Products.
Seller: means XL Specialized Trailers, including all divisions and businesses thereof.
Services: means any services to be supplied by the Seller.
Software: means any software related to the Products, whether embedded or separately downloaded.
Terms: means the terms and conditions of this Offer of Sale or any newer version of the same as published by Seller electronically at www.xlspecializedtrailer.com/about-xl/terms-conditions.
2. Terms. All sales of Products by Seller are contingent upon, and will be governed by, these Terms and, these Terms are incorporated into any Quote provided by Seller to any Buyer. Buyer’s order for any Products whether communicated to Seller verbally, in writing, by electronic date interface or other electronic commerce, shall constitute acceptance of these Terms. Seller objects to any contrary or additional terms or conditions of Buyer. Reference in Seller's order acknowledgement to Buyer's purchase order or purchase order number shall in no way constitute an acceptance of any of Buyer's terms of purchase. No modification to these Terms will be binding on Seller unless agreed to in writing and signed by an authorized representative of Seller.
3. Price; Payment; Modification. The Products set forth in Seller's Quote are offered for sale at the prices indicated in Seller’s Quote. Unless otherwise specifically stated in Seller’s Quote, prices are valid for fifteen (15) days and do not include any sales, use, or other taxes or duties. The final price is agreed to with signatures (or electronic approval) of the Signed Approval Drawings and communicated via Order Acknowledgement. Seller reserves the right to modify prices at any time to adjust for any raw material price fluctuations. Unless otherwise specified by Seller, all prices are EXW Seller's facility (INCOTERMS 2010). All sales are contingent upon credit approval and payment for all purchases is due thirty (30) days from the date of invoice (or such date as may be specified in the Quote). Unpaid invoices beyond the specified payment date incur interest at the rate of 2.0% per month or the maximum allowable rate under applicable law. The prices listed in a quote may be modified by a Change Order or by the imposition of a Surcharge, as set forth below. Modifications to a quote may be made only pursuant to a written change order signed by an authorized representative of the Seller and Buyer (a “Change Order”), which shall contain a description of the modifications and any corresponding change in price and applicable Change Order fees. If the Seller determines that modification of a quote is necessary to fulfill the buyer’s requirements, buyer must sign any Change Order deemed necessary by Seller as a condition of proceeding. If buyer refuses or fails to sign any Change Order within a reasonable period of time following Seller’s request, Seller may cancel a quote, with no further obligation of Seller, and Buyer shall pay to Seller, at Seller’s option, either Seller’s damages resulting from cancellation or the full amount of any deposit made by Buyer. Prices, charges and payment for all Equipment will be in U.S. Dollars and, in Seller’s sole judgment, shall be made by check, by wire transfer to Seller’s account or by ACH draft against Buyer’s account. Payment for each Unit is due per the terms established for the Buyer, unless otherwise agreed to in writing. Seller shall be entitled to set off any amounts owed to Seller by Buyer against any deposits made by Buyer. Seller has the right, at any time prior to Delivery, to require Buyer to pay a deposit in an amount determined by Seller.
4. Surcharge. Prior to commencement of the manufacturing process, Seller may impose an additional charge on the price of the Equipment stated in a Quote, to account for increases in the price of raw materials or component parts, or other input costs, which may have occurred between the time a Quote was prepared and Seller’s commencement of the manufacturing process (a “Surcharge”).
5. Warranty: Warranty is only valid with a Registered Trailer.
XL Specialized Trailers Limited Warranty Policy (S-500)
New trailers manufactured by XL Specialized Trailers are warranted to be free from defects in materials or workmanship for the time periods specified below, subject to the limitations as specified below. Covered equipment will be repaired or replaced, at XL’s option, provided that such equipment is returned, at the customer’s expense, to XL’s plant or a repair facility pre-approved by XL. This warranty applies to all units invoiced on and after January 1, 2021 as follows:
5-Year Structural Coverage
XL’s 5 year structural warranty (excluding BD, T-Series, Side Dump and Trunnion Suspension trailers) covers the (2) main inner structural beams running front to rear across the length of the trailer, plus the cross members and outer rails of the main load bearing deck. The warranty is as follows:
5 Years – 100% Structural Coverage
3-Year Paint Coverage
XL’s 3 year paint warranty covers peeling or delamination and cracking or checking of the paint. This excludes the following:
- Paint deterioration, scratching or chipping on surfaces caused by normal wear and tear, abuse, improper care, abrasive polishes, cleaning agents, heavy-duty pressure washing, accidents or acts of nature.
- Paint over Galvanizing is excluded from warranty coverage.
1-Year Parts Coverage
a. Axles and suspension (excludes shocks, airbags)
b. Landing gear assemblies
c. XL manufactured components (which include, but are not limited to wheel covers, flip ramps and pullout lights)
d. Air, electrical and hydraulic components (which include, but are not limited to shocks, seals, caps, hubs, drums, decking and tarp systems)
*For parts, we request the defective part be shipped back to XL prior to warranty coverage.
2-Year Structural Coverage for Side Dump & Trunnion Suspension Trailers
XL’s 2 year structural warranty on Side Dump trailers and Trunnion Suspension trailers (including but not limited to MGX) covers the main structural members running from front to rear along the length of the trailer. This includes main load bearing beams, tub assembly, and crossmembers. The warranty is as follows:
2 Years – 100% Structural Coverage
1-Year Structural Coverage for BD & T-Series Trailers
XL’s 1 year structural warranty on BD (Bellydump) and T-Series (T, TT, SDT) trailers covers the main structural beams running front to rear across the length of the trailer which includes cross members and outer rails of the main load bearing deck. The warranty is as follows:
1st Year – 100% Structural Coverage
5-Year Galvanizing Coverage
XL’s 5 year galvanizing warranty protects all hot dip galvanized (HDG) structural members from corrosion in accordance with ASTM A-123. This excludes the following:
a. Any components mounted to a galvanized trailer not HDG coated (ie. Suspension, axles, etc.)
b. The breaking or flaking of zinc coating that does not affect protection from corrosion
c. Scratching and chipping of the zinc on surfaces due to normal wear or abuse
XL Specialized Trailers Limited Warranty Policy Conditions
I. THE EXPRESS WARRANTY CONTAINED WITHIN THIS DOCUMENT IS THE ONLY WARRANTY FROM XL SPECIALIZED TRAILERS. XL MAKES NO OTHER WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. ALL OTHER WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE SPECIFICALLY EXCLUDED AND DISCLAIMED.
II. XL limited warranty coverage begins on the earlier of (1) the date the dealer sells the trailer to the customer, or (2) 6 months after the date XL invoices the trailer to the dealer, or (3) dealer sells the trailer providing the Quarterly PM Schedule is completed by the dealer and documented by XL.
III. Once the warranty period begins it cannot be stopped or interrupted.
IV. This warranty extends only to the First User and is non-transferable.
V. All decisions regarding whether to repair or replace a trailer, or any part thereof, will be made at XL’s sole discretion.
VI. All structural related warranty claims must be accompanied by most recent 3rd party scale tickets to demonstrate weight requirements being followed.
VII. XL shall have no liability under this warranty for damages resulting from an accident or a collision, or for products that were subject to abuse, alteration, misuse or extraordinary usage of any kind, or:
- Operation at speeds exceeding the capabilities of the trailer.
- Use not in conformity with the instructions and warnings in the Operator’s Manual for the trailer.
- Loading a trailer beyond the rated capacity specified by XL on the vehicle identification plate, including exceeding the guidelines for concentrated load ratings.
- Natural calamity, theft, vandalism and improper site conditions
- Any other improper storage, maintenance, repair, or use of the trailer is illegal
- Rework which is a result of any of the above.
- Dragging the trailer such that it touches the ground while in operation will cause enough friction and heat to melt steel, which in turn will decrease structural integrity, which in turn will void this warranty.
VII. XL’s warranty does not cover:
a. Components that may normally be expected to be replaced during the warranty period. Such components include, but are not limited to; tires, light bulbs, brake linings, brake drums, air hoses, air lines and exposed electrical wiring.
b. Normal maintenance time, including but not limited to; normal installation of kits, tightening bolts, loose fittings, hoses and air lines.
c. Equipment that has been repaired, replaced or altered by someone other than XL or an authorized representative of XL, without expressed written consent from XL.
d. Parts, accessories, and components manufactured or supplied by someone other than XL, including, but not limited to; tires, axles, suspensions, wheel hubs, rims, brake linings, and landing gear.
VIII. XL’s liability with respect to any claim or loss arising out of the manufacture, sale or use of any of its products, whether resulting from an act or omission by XL, whether XL was negligent or not, and whether the claim arises in contract, tort, or otherwise, is limited to the purchase price paid for the product at issue, or, at XL’s discretion, the cost to repair the product. In no event shall XL be liable for any bodily injury, death, or property damage arising out of or in any way related to the manufacture, sale, or use of any of its products. XL is not responsible for any financial losses or expenses incurred due to an inability to use a trailer, including, but not limited to, lodging expenses, fuel costs, towing charges, loss or spoilage of cargo, damage to cargo, storage fees, lost revenues, lost profits, or any other resulting expenses or damages. IN NO EVENT SHALL XL BE LIABLE FOR ANY INCIDENTIAL, CONSEQUENTIAL OR SPECIAL DAMAGES, LOSSES OR EXPENSES.
IX. XL’s warranty applies only if the party seeking warranty coverage follows and complies with the Warranty Claim Submission Procedures and Instructions (S-501).
DISCLAIMER OF WARRANTY: THIS WARRANTY IS THE SOLE AND ENTIRE WARRANTY PERTAINING TO PRODUCTS. SELLER DISCLAIMS ALL OTHER WARRANTIES. SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR THAT THE EQUIPMENT WILL BE FIT FOR ANY PARTICULAR PURPOSE. SELLER’S SOLE LIABILITY WITH RESPECT TO ANY EQUIPMENT WILL BE TO, AT SELLER’S OPTION, FURNISH REPLACEMENT PARTS AND SPECIFIED LABOR TO THE EXTENT REQUIRED BY SELLER’S THEN-APPLICABLE WRITTEN WARRANTY FOR THE APPLICABLE EQUIPMENT. IN NO EVENT WILL SELLER BE LIABLE FOR ANY OTHER DIRECT, INDIRECT OR CONSEQUENTIAL INJURY, LOSS, DAMAGE OR EXPENSE, INCLUDING, WITHOUT LIMITATION, LOSS OF USE, INCOME, PROFIT OR PRODUCTION, INCREASED COST OF OPERATION, SPOILAGE OF OR DAMAGE TO MATERIAL(S), ARISING IN CONNECTION WITH THE SALE, INSTALLATION, USE OF, (OR THE INABILITY TO USE) OR REPAIR OR REPLACEMENT OF THE EQUIPMENT, NOR PUNITIVE DAMAGES OF ANY KIND. Any operation or use of Equipment expressly prohibited in the operating instructions furnished with the Equipment, any adjustment or assembly procedures not recommended or authorized in the operating or service instructions or any use non-approved replacement parts shall void all warranties.
6. Claims; Commencement of Actions. Buyer shall promptly inspect all Products upon receipt. No claims for shortages will be allowed unless reported to the Seller within then (10) days of delivery. Buyer shall notify Seller of any alleged breach of warranty within ten (10) days after the date the non-conformance is or should have been discovered by Buyer. Any claim or action against Seller based upon breach of contract or any other theory, including tort, negligence, or otherwise must be commenced within twelve (12) months from the date of the alleged breach or other alleged event, without regard to the date of discovery.
7. LIMITATION OF LIABILITY. IN THE EVENT OF A BREACH OF WARRANTY, SELLER WILL, AT ITS OPTION, REPAIR OR REPLACE THE NON-CONFORMING PRODUCT, RE-PERFORM THE SERVICES, OR REFUND THE PURCHASE PRICE PAID WITHIN A REASONABLE PERIOD OF TIME. IN NO EVENT IS SELLER LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR AS THE RESULT OF, THE SALE, DELIVERY, NONDELIVERY, SERVICING, NON-COMPLETION OF SERVICES, USE, LOSS OF USE OF, OR INABILITY TO USE THE PRODUCTS OR ANY PART THEREOF, LOSS OF DATA, IDENTITY, PRIVACY, OR CONFIDENTIALITY, OR FOR ANY CHARGES OR EXPENSES OF ANY NATURE INCURRED WITHOUT SELLER'S WRITTEN CONSENT, WHETHER BASED IN CONTRACT, TORT OR OTHER LEGAL THEORY. IN NO EVENT SHALL SELLER'S LIABILITY UNDER ANY CLAIM MADE BY BUYER EXCEED THE PURCHASE PRICE PAID FOR THE PRODUCTS.
8. Loss to Buyer's Property. Any designs, tools, patterns, materials, drawings, confidential information or equipment furnished by Buyer or any other items which are or become Buyer's property, will be considered obsolete and may be destroyed by Seller after one year has elapsed without Buyer ordering the Products manufactured using such property. Seller shall not be responsible for any loss or damage to such property while it is in Seller's possession or control.
9. Special Tooling. Special Tooling includes but is not limited to tooling, jigs, fixtures and associated manufacturing equipment acquired or necessary to manufacture Products. A tooling charge may be imposed for any Special Tooling. Such Special Tooling shall be and remain Seller's property not withstanding payment of any charges by Buyer. In no event will Buyer acquire any interest in Special Tooling belonging to Seller that is utilized in the manufacture of the Products, even if such Special Tooling has been specially converted or adapted for such manufacture and notwithstanding any charges paid by Buyer. Unless otherwise agreed, Seller has the right to alter, discard or otherwise dispose of any Special Tooling or other property in its sole discretion at any time.
10. User Responsibility. The Buyer through its own analysis and testing, is solely responsible for making the final selection of the Products and assuring that all performance, endurance, maintenance, safety and warning requirements of the application of the Products are met. The Buyer must analyze all aspects of the application and follow applicable industry standards, specifications, and other technical information provided with the Product. If Seller provides Product options based upon data or specifications provided by the Buyer, the Buyer is responsible for determining that such data and specifications are suitable and sufficient for all applications and reasonably foreseeable uses of the Products. In the event the Buyer is not the end-user, Buyer will ensure such end-user complies with this paragraph.
11. Use of Products, Indemnity by Buyer. Buyer shall comply with all instructions, guides and specifications provided by Seller with the Products. Unauthorized Uses. If Buyer uses or resells the Products for any uses prohibited in Seller’s instructions, guides or specifications, or Buyer otherwise fails to comply with Seller’s instructions, guides and specifications, Buyer acknowledges that any such use, resale, or non-compliance is at Buyer's sole risk. Buyer shall indemnify, defend, and hold Seller harmless from any losses, claims, liabilities, damages, lawsuits, judgments and costs (including attorney fees and defense costs), whether for personal injury, property damage, intellectual property infringement or any other claim, brought by or incurred by Buyer, Buyer’s employees, or any other person, arising out of: (a) improper selection, application, design, specification or other misuse of Products provided by Seller; (b) any act or omission, negligent or otherwise, of Buyer; (c) Seller’s use of patterns, tooling, equipment, plans, drawings, designs or specifications or other information or things furnished by Buyer; (d) damage to the Products from an external cause, repair or attempted repair by anyone other than Seller, failure to follow instructions, guides and specifications provided by Seller, use with goods not provided by Seller, or opening, modifying, deconstructing or tampering with the Products for any reason; or (e) Buyer’s failure to comply with these Terms. Seller shall not indemnify Buyer under any circumstance except as otherwise provided in these Terms.
12. Cancellations and Changes. Buyer may not cancel or modify any order for any reason, except with Seller's written consent and upon terms that will indemnify, defend and hold Seller harmless against all direct, incidental and consequential loss or damage. Seller, at any time, may change Product features, specifications, designs and availability. No sooner than 180 days and no later than 15 days prior to the commencement of the manufacturing process to fulfill Buyer’s order, Seller shall send Buyer a written confirmation of Buyer’s order (an “Order Acknowledgement"), which states the amount of any Raw Material Surcharge imposed by Seller, as well as a product line drawing (an “Approval Drawing”). If Buyer wishes to proceed with its order, as described in the Order Acknowledgement and Approval Drawing, Buyer must return to Seller a copy of the Order Acknowledgement and Approval Drawing executed by an authorized representative of Buyer within ten (10) business days. If Buyer does not return an executed copy of the Order Acknowledgement to Seller and the Approval Drawing within ten (10) days, Seller may cancel a Quote, without penalty. Either party may cancel a quote, without penalty, at any time prior to the execution by Buyer of an Order Acknowledgement. Buyer may cancel its order after signing an Order Acknowledgement, but in such event Buyer must pay Seller a cancellation charge in amount not to exceed 20% of the full amount of the order. Once Buyer has signed an Order Acknowledgement and Seller has commenced the manufacturing process for the order, Buyer may not cancel its order. Seller may condition its consent to any cancellation on payment by Buyer of the greatest of: (a) the full amount of Seller’s damages from cancellation, (b) the full amount of any deposit made by Buyer, or (c) a cancellation charge of up to 20% of the amount of the order. Any attempt by Buyer to cancel its order without Seller’s consent after the commencement of the manufacturing process shall be deemed an anticipatory breach of contract by Buyer. For purposes of these terms and conditions, the “engineering process” is deemed to include, without limitation, the preparation by Seller of detailed drawings or development of bills of material. The “manufacturing process” is deemed to include, without limitation, cutting of metal into shapes, welding, or subsequent assembly processes performed by or for Seller.
13. Shipment; Delivery; Title and Risk of Loss. All delivery dates are approximate. Seller is not responsible for damages resulting from any delay. Regardless of the manner of shipment, delivery occurs and title and risk of loss or damage pass to Buyer, upon completion of the trailer and invoicing of the Products at Seller's facility. Unless otherwise agreed, Seller may exercise its judgment in choosing the carrier and means of delivery. No deferment of shipment at Buyers' request beyond the respective indicated shipping date will be made except on terms that will indemnify, defend and hold Seller harmless against all loss and additional expense. Buyer shall be responsible for any additional shipping charges incurred by Seller due to Buyer’s acts or omissions. Delivery of each Unit to Buyer shall be deemed completed when Seller notifies Buyer that the manufacturing process for any Unit has been completed and the Unit is available for pickup at Seller’s facility in Manchester, Iowa or other facility designated by Seller (“Delivery”). Notice may be in the form of electronic mail, U.S. mail (postage prepaid), or by express delivery service. Risk of loss and title for each Unit (regardless of whether the Unit is part of a larger order of Equipment) shall pass to Buyer upon Invoicing. Unless otherwise agreed in a Quote or any Change Order, Buyer shall be responsible to pick up and arrange all inland and international transportation from the place of Delivery, and Buyer shall bear all transportation charges, customs duties, customs clearance charges and taxes. Buyer must pick up all delivered Units within 30 days of Seller’s notice of Delivery or, alternatively, make arrangements to store such Units at Seller’s facilities, during which time risk of loss will remain with Buyer. Notwithstanding the timing of Delivery or the transfer of title or risk of loss, Seller shall not be required to issue a manufacturer’s statement of origin (or other similar documentation) for any Unit until Seller has been paid in full for that Unit.
14. Security Interest. Seller shall be granted a security interest in each Unit sold to Buyer. The security interest in each Unit shall secure the amount Buyer owes for the purchase price of that Unit and, in addition, all other obligations of Buyer to Seller, including all attorneys’ fees incurred by Seller in the enforcement of a Quote or these Terms and Conditions. Seller is authorized to make any filings or take any other actions necessary to perfect or enforce its security interest, including notification to other parties that may have an interest in the Units. In order to protect Seller’s security interest, Buyer will properly store and care for each Unit and its components, repair parts and accessories and keep the same insured from the moment of Delivery under a fire and extended coverage policy to the extent of the Equipment’s fair insurable value or Buyer’s total indebtedness to Seller, whichever is less.
15. Limitation on Assignment. Buyer may not assign its rights or obligations without the prior written consent of Seller.
16. Force Majeure. Seller does not assume the risk and is not liable for delay or failure to perform any of Seller’s obligations by reason of events or circumstances beyond its reasonable control (“Events of Force Majeure”). Events of Force Majeure shall include without limitation: accidents, strikes or labor disputes, acts of any government or government agency, acts of nature, delays or failures in delivery from carriers or suppliers, shortages of materials, or any other cause beyond Seller’s reasonable control.
17. Waiver and Severability. Failure to enforce any provision of these Terms will not invalidate that provision; nor will any such failure prejudice Seller’s right to enforce that provision in the future. Invalidation of any provision of these Terms by legislation or other rule of law shall not invalidate any other provision herein and, the remaining provisions will remain in full force and effect.
18. Termination. Seller may terminate any agreement governed by or arising from these Terms for any reason and at any time by giving Buyer thirty (30) days prior written notice. Seller may immediately terminate, in writing, if Buyer: (a) breaches any provision of these Terms (b) appoints a trustee, receiver or custodian for all or any part of Buyer’s property (c) files a petition for relief in bankruptcy on its own behalf, or one if filed by a third party (d) makes an assignment for the benefit of creditors; or (e) dissolves its business or liquidates all or a majority of its assets.
19. Ownership of Software. Seller retains ownership of all Software supplied to Buyer hereunder. In no event shall Buyer obtain any greater right in and to the Software than a right in the nature of a license limited to the use thereof and subject to compliance with any other terms provided with the Software.
20. Taxes. Buyer will be solely responsible for the payment of, and will indemnify and hold Seller and Seller’s affiliates harmless from, any and all tax liability arising out of the sale, use, storage, consumption or delivery of Equipment by Buyer.
21. Venue. Any cause of action, claim, suit or demand allegedly arising from or related to the terms of these Terms and Conditions or the relationship of the parties must be brought in the United States District Court for the Northern District of Iowa, if a basis for federal court jurisdiction is present and, otherwise, in the District Court of the State of Iowa for Delaware County. Both parties hereto irrevocably submit themselves to, and consent to, the jurisdiction of such courts.
22. Limitation of Damages. Buyer and Seller each waive, to the fullest extent permitted by law, any claim for punitive or exemplary damages against the other and agree that in the event of any dispute between them, each will be limited to the recovery of actual damages sustained. Buyer waives, to the fullest extent permitted by law, any claim for any direct, indirect or consequential injury, loss, damage or expense, including, without limitation, loss of use, income, profit or production, increased cost of operation or spoilage of or damage to material(s), arising in connection with these Terms and Conditions, any Quote, the Equipment or the relationship of the parties.
23. Attorneys’ Fees. The prevailing party in any action or proceeding arising under, out of, in connection with, or in relation to these Terms and Conditions, any Quote, the Equipment or the relationship of the parties will be entitled to recover its reasonable attorneys’ fees, expert witness fees and out-of-pocket costs.
24. Indemnity for Infringement of Intellectual Property Rights. Seller is not liable for infringement of any patents, trademarks, copyrights, trade dress, trade secrets or similar rights (“Intellectual Property Rights”) except as provided in this Section. Seller will defend at its expense and will pay the cost of any settlement or damages awarded in an action brought against Buyer based on a third party claim that one or more of the Products sold hereunder infringes the Intellectual Property Rights of a third party in the country of delivery of the Products by the Seller to the Buyer. Seller's obligation to defend and indemnify Buyer is contingent on Buyer notifying Seller within ten (10) days after Buyer becomes aware of any such claim, and Seller having sole control over the defense of the claim including all negotiations for settlement or compromise. If one or more Products sold hereunder is subject to such a claim, Seller may, at its sole expense and option, procure for Buyer the right to continue using the Products, replace or modify the Products so as to render them non-infringing, or offer to accept return of the Products and refund the purchase price less a reasonable allowance for depreciation. Seller has no obligation or liability for any claim of infringement: (i) arising from information provided by Buyer; or (ii) directed to any Products provided hereunder for which the designs are specified in whole or part by Buyer; or (iii) resulting from the modification, combination or use in a system of any Products provided hereunder. The foregoing provisions of this Section constitute Seller's sole and exclusive liability and Buyer's sole and exclusive remedy for such claims of infringement of Intellectual Property Rights.
25. Governing Law. These Terms and the sale and delivery of all Products are deemed to have taken place in, and shall be governed and construed in accordance with, the laws of the State of Iowa, as applicable to contracts executed and wholly performed therein and without regard to conflicts of laws principles. Buyer irrevocably agrees and consents to the exclusive jurisdiction and venue of the courts of Delaware County, Iowa with respect to any dispute, controversy or claim arising out of or relating to the sale and delivery of the Products.
26. Entire Agreement. These Terms, along with the terms set forth in the main body of any Quote, forms the entire agreement between the Buyer and Seller and constitutes the final, complete and exclusive expression of the terms of sale. In the event of a conflict between any term set forth in the main body of a Quote and these Terms, the terms set forth in the main body of the Quote shall prevail. All prior or contemporaneous written or oral agreements or negotiations with respect to the subject matter shall have no effect. These Terms may not be modified unless in writing and signed by an authorized representative of Seller.
27. Compliance with Laws. Buyer agrees to comply with all applicable laws, regulations, and industry and professional standards, including those of the United States of America, and the country or countries in which Buyer may operate, including without limitation the U.S. Foreign Corrupt Practices Act (“FCPA”), the U.S. Anti-Kickback Act (“AntiKickback Act”), U.S. and E.U. export control and sanctions laws (“Export Laws”), the U.S. Food Drug and Cosmetic Act (“FDCA”), and the rules and regulations promulgated by the U.S. Food and Drug Administration (“FDA”), each as currently amended. Buyer agrees to indemnify, defend, and hold harmless Seller from the consequences of any violation of such laws, regulations and standards by Buyer, its employees or agents. Buyer acknowledges that it is familiar with all applicable provisions of the FCPA, the Anti-Kickback Act, Export Laws, the FDCA and the FDA and certifies that Buyer will adhere to the requirements thereof and not take any action that would make Seller violate such requirements. Buyer represents and agrees that Buyer will not make any payment or give anything of value, directly or indirectly, to any governmental official, foreign political party or official thereof, candidate for foreign political office, or commercial entity or person, for any improper purpose, including the purpose of influencing such person to purchase Products or otherwise benefit the business of Seller. Buyer further represents and agrees that it will not receive, use, service, transfer or ship any Product from Seller in a manner or for a purpose that violates Export Laws or would cause Seller to be in violation of Export Laws.