Master Emaco S 488

Return, Warranty & Liability 

1.1    MBS warrants that it shall supply the Products, at the point and time of delivery:   (a)           free of any defects as to title;   (b)           in quantity not more than 10 per cent (± 10%) variance to that stated in MBS’s written acceptance (“Specified Quantity”); and   (c)           in compliance with the Specification. The Parties agree that there are no further obligations on the part of MBS and the Parties make no further agreements concerning the contractual quality of the Product; Retailer shall bear the risk of using Product.   

1.2    MBS’s warranties under this Article 11.1 shall be valid and available on the condition that:   (a)   Retailer has not mishandled, misused, damaged or modified the Products;   (b)  Retailer inspects or cause its customers to inspect the Products immediately following receipt and shall give written notice to MBS of any matter or thing by reason whereof Retailer alleges that Products or part thereof (as the case may be) do not conform with the Specification or Specified Quantity; and   (c)   Retailer notifies MBS of any such non-conformity (i) immediately, where the lack of conformity or defect is apparent upon reasonable inspection, or (ii) no later than thirty (30) days after receipt of the Products in any other case. If Retailer fails to give such written notice, Products shall be deemed to be in all respects in accordance with the respective order and Retailer shall be bound to accept and shall pay for the same accordingly.   

1.3    MBS will and have the right, at its sole discretion:   (a) in the case of short delivery, deliver missing quantities at its cost;   (b) in the case of Products not conforming to Specification, replace such Products at its cost;   (c)  accept return only where shelf life remain for 1.5 months at the time of arrival at warehouse premises and MBS will replace the product accordingly.   (d) in the case of defects as to title of the Products resulting in a claim or action against Retailer, defend any such claim or action at its cost, provided that:   (i)    Retailer shall have promptly notified MBS upon becoming aware of such claim or action and co-operates fully with MBS in the defence of such claim or action; and   (ii)   MBS is in full control of any proceeding or negotiations in connection with the claim or action, and Retailer does not settle, admit to, or compromise the defence of, such claim or action.   

1.4    Without prejudice to Article 1.3, BASF shall have the right, at its sole discretion and expense, to:   (a)  in the case of Articles 1.3 (a) and (b), waive making further deliveries of Products, if the supplementary or replacing delivery is still not in conformance to the Specification or the Specified Quantity. In such event, MBS shall (i) grant Retailer an adequate price reduction; (ii) reimburse Retailer the purchase price of the Products related to the claim (“Claimed Amount”), against return of the respective quantity of non-conforming Products (if applicable); or (iii) issue a credit note to Retailer in the amount of the Claimed Amount, if payment has not been made;   (b)       in the case of Article 1.3(c), (i) replace the infringing Products with non-infringing Products which conform to the Specification; (ii) modify the infringing Products so that they become non-infringing; (iii) procure a license to use such infringing Products; or (iv) undertake any commercially reasonable combination of the above. If the aforementioned remedies are not available, MBS shall pay Retailer a pro-rata portion of the amount Retailer paid for the infringing Products, for the portion of such defective Products not used and returned to MBS.   

1.5    Articles 1.1 to 1.4 inclusive shall set out MBS’s entire liability with respect to the Products and MBS’s liability shall be in lieu and to the exclusion of all other warranties, conditions, terms and liabilities, whether express or implied, statutory or otherwise, in respect of the manner of dealing with, quality, fitness for any particular purpose, manner of use, of the Products, whether express or implied by law or otherwise howsoever, except any liability (i) for death and personal injury, or (ii) based on its gross negligence or wilful act, or (iii) implied by law which by law cannot be excluded.   

1.6    MBS and MBCC Group’s aggregated cumulated liability (if any) whether in contract, tort or otherwise in respect of (i) any defect of the Products, or (ii) for any breach of this Agreement, or (iii) of any other duty or obligation with respect to Distributor in connection herewith shall be further limited in the aggregate to the purchase price of the respective quantity of the Products in question. In no circumstances shall MBS and/or MBCC Group be liable for any loss of profit, revenue, indirect or consequential damage whatsoever.   

1.7    All defect and liability claims howsoever arising under this Agreement, including arising from deliveries of Products, are subject to a limitation period of one (1) year from statutory commencement of the limitation period, or where the foregoing is not permissible under the relevant law, for the shortest period permitted thereunder. The running of the limitation period shall not be suspended or interrupted due to the Parties’ negotiation of the claim or the claim’s circumstances, unless otherwise agreed in writing.   

1.8    The limitation of liability as set out in this Article 11 shall not apply to claims for death or personal injury or for which liability cannot be limited by law.   

1.9    Retailer shall report or cause its customers to report any transportation damages and request compensation immediately to the carrier within the special time-limits provided therefor.

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