R E F EREN CE www.hubbell.com/burndy | O-51 secret. Notwithstanding the foregoing, Seller shall have no liability to the extent any such Claims are caused by either (i) the negligence or willful misconduct of Buyer or third party, (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product would not itself be infringing, (iv) Seller’s compliance with Buyer’s designs, specifications or instructions, (v) use of the Product in an application or environment for which it was not designed or (vi) service, installation or modification of any Product except by Seller. Buyer shall provide Seller prompt written notice of any Claims and Seller shall have the right to assume exclusive control of the defense of such claim or, at the option of the Seller, to settle the same. Buyer agrees to cooperate reasonably with Seller in connection with the performance by Seller of its obligations in this Section. Notwithstanding the above, Seller’s infringement related indemnification obligations shall be extinguished and relieved if Seller, at its discretion and at its own expense (a) procures for Buyer the right, at no additional expense to Buyer, to continue using the Product; (b) replaces or modifies the Product so that it becomes non-infringing, provided the modification or replacement does not adversely affect the specifications of the Product or (c) if neither of the preceding is reasonably practicable, refund the purchase price for the Product. THE FOREGOING INDEMNIFICATION PROVISION STATES SELLER’S ENTIRE LIABILITY TO BUYER FOR THE CLAIMS DESCRIBED HEREIN. By Buyer. Buyer shall indemnify, defend and hold harmless Seller from and against any and all Claims to the extent arising from or in connection with (i) the negligence or willful misconduct of Buyer; (ii) use of a Product in combination with equipment or software not supplied by Seller where the Product itself would not be infringing; (iii) Seller’s compliance with designs, specifications or instructions supplied to Seller by Buyer; (iv) use of a Product in an application or environment for which it was not designed; or (v) modifications of a Product by anyone other than Seller. 15. Limitation of Liability. Notwithstanding anything to the contrary contained herein, Seller’s aggregate liability for any claim of any kind shall not exceed the price paid by Buyer for the products giving rise to such claim. IN NO EVENT SHALL SELLER BE LIABLE FOR SPECIAL, INCIDENTA L, LIQUIDATED, OR CONSEQUENTIAL DAMAGES HOWSOEVER ARISING OUT OF SELLER’S PERFORMANCE (OR NON- PERFORMANCE) OF THE CONTRACT AND NOTWITHSTANDING WHETHER BUYER MAY HAVE BEEN ADVISED OR IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 16. Compliance with Laws. Export Laws. Seller agrees to observe and comply with all applicable federal, state and local laws, rules, regulations, including but not limited to all applicable laws, regulations, laws, treaties, and agreements relating to the export, re-export, and import of any Product or part of Product. Buyer shall not, without first obtaining any required license to do so from the appropriate U.S. government agency; (i) export or re-export any Product or part of a Product, or (ii) export, re-export, distribute or supply any Product or part of a Product to any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by the U.S. government. At Seller’s request, Buyer will provide information on the end user and end use of any Product or part thereof exported or to be exported by Buyer. Buyer shall cooperate fully with Seller in any audit or inspection related to applicable export or import control laws or regulations, and shall indemnify and hold Seller harmless from, or in connection with, any violation of this section by Buyer or its employees, consultants, or agents. 17. Miscellaneous. (a) Any legal claim shall be controlled under the laws of the state of the Seller’s primary place of business. Seller and Buyer agree to accept and be bound by the exclusive jurisdiction of the federal and state courts thereof. The application to this Agreement of the U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded. (b) In the event that any one or more provisions contained in these terms shall be held by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions contained herein shall remain in full force and effect. (c) Seller’s failure to enforce or waiver of a breach of any provision contained herein shall not constitute a waiver of any other breach or of such provision. (d) Any notice or communication required or permitted hereunder shall be in writing and shall be deemed received when personally delivered or three (3) business days after being sent by certified mail, postage prepaid, to a party at the address specified herein or at such other address as either party may from time to time designate to the other. (e) Buyer may not assign or delegate any rights or obligations without Seller’s prior written consent. (f) Seller reserves the right to place a Lien and notifications of liens should Seller not be paid for equipment provided hereunder. (g) Buyer agrees that all pricing, discounts, data, design and technical information, operations/maintenance manuals, testing procedures, drawings, schematics and any other information regarding the Products or Seller’s processes provided by Seller to Buyer are the confidential and proprietary information of Seller. Buyer agrees to (a) keep such information confidential and not disclose such information to any third party, and (b) use such information solely for Buyer’s internal purposes and in connection with the Products supplied hereunder. Nothing herein shall restrict the use of information available to the general public. BURNDY Standard Terms and Conditions of Sale Rev. 12/01/2018 A Hubbell brand
