Any course of dealing between the parties to the contrary notwithstanding, any claim by receiving Party shall be deemed waived unless presented in writing to delivering Party no more than ninety (90) days from date of receipt of the product to which such claim relates.
Unless otherwise stated, receiving Party assumes all risk and liability for loss, damage, or injury to the person or property of receiving Party or other arising out of use or possession of any product received hereunder.
INDEMNIFICATION
THE RECEIVING PARTY WILL INDEMNIFY, DEFEND, AND SAVE HARMLESS THE DELIVERING PARTY, ITS AFFILIATES, AND ITS AND THEIR OFFICERS, EMPLOYEES, AND AGENTS FROM AND AGAINST ALL SUITS, ACTIONS, LOSSES,
LIABILITIES, DAMAGES, AND CLAIMS, BROUGHT BY THIRD PARTIES, OF ANY CHARACTER, TYPE, OR DESCRIPTION, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL REASONABLE EXPENSES OF LITIGATION,
COURT COSTS, AND REASONABLE ATTORNEYS’ FEES (WHETHER FOR PERSONAL INJURY, DEATH, DISEASE, PROPERTY DAMAGE, INCLUDING, BUT NOT LIMITED TO, ENVIRONMENTAL CONTAMINATION, OR OTHERWISE), ARISING OUT OF, OR OCCASIONED BY, THE LOADING, TRANSPORTATION, UNLOADING, STORAGE, HANDLING, OR USE, EITHER SINGLY OR IN COMBINATION WITH OTHER SUBSTANCES, OF PRODUCT AFTER TITLE AND RISK OF LOSS TRANSFERS TO THE RECEIVING PARTY.
THE DELIVERING PARTY WILL INDEMNIFY, DEFEND, AND SAVE HARMLESS THE RECEIVING PARTY, ITS AFFILIATES, AND ITS AND THEIR OFFICERS, EMPLOYEES, AND AGENTS FROM AND AGAINST ALL SUITS, ACTIONS, LOSSES, LIABILITIES, DAMAGES, AND CLAIMS OF ANY CHARACTER, TYPE, OR DESCRIPTION, INCLUDING, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL EXPENSES OF LITIGATION, COURT COSTS, AND ATTORNEYS’ FEES (WHETHER FOR PERSONAL INJURY, DEATH, DISEASE, PROPERTY DAMAGE, INCLUDING, BUT NOT LIMITED TO, ENVIRONMENTAL CONTAMINATION, OR OTHERWISE), ARISING OUT OF, OR OCCASIONED BY, THE LOADING, TRANSPORTATION, UNLOADING, STORAGE, HANDLING, OR USE, EITHER SINGLY OR IN COMBINATION WITH OTHER SUBSTANCES, OF PRODUCT PRIOR TO TITLE AND RISK OF LOSS TRANSFERS TO THE RECEIVING PARTY.
IN INSTANCES WHERE BOTH PARTIES ARE TO SOME DEGREE RESPONSIBLE FOR A CLAIM(S) DESCRIBED IN THIS SECTION, THE PARTIES WILL INDEMNIFY EACH OTHER TO THE EXTENT OF THEIR PROPORTIONATE RESPONSIBILITY FOR SUCH CLAIM(S).
DEFAULT
Either Party may defer shipments or terminate this Exchange Agreement if the other Party fails to deliver Product or pay any invoice in accordance with the terms of this Agreement, after providing notice to the other Party. No Party’s obligation to perform will be limited by any previous waiver by a Party.
FORCE MAJEURE
Neither Party shall be in breach of this Agreement or otherwise be liable to the other Party for its failure to fulfill any term of this Agreement, other than the obligation to pay any sum when due, if and to the extent that such fulfillment has been delayed, hindered, curtailed or prevented by a “Force Majeure Event”, meaning any circumstance or event outside the Party’s reasonable control or any of the following: (a) any act of God, fire, explosion, landslide or earthquake; or (b) any storm, hurricane, flood, tidal wave or other adverse weather condition; or (c) any war (whether declared or not), revolution, act of civil or military authority, riot, blockade, embargo, trade sanction, terrorism, sabotage, or civil commotion; or (d) any epidemic or quarantine restriction; or (e) any strike, lock-out or labor dispute from whatever cause (whether or not receiving Party, receiving Party’s supplier, delivering Party or delivering Party’s supplier, as the case may be, is a
Party thereto or might be able to influence or procure the settlement thereof); or (f) any compliance with any law, regulation or ordinance or with any order, demand or request of any international, national, local or other port, transportation or governmental authority or agency or any body or person purporting to be or to act for such authority or agency or any corporation directly or indirectly controlled by any of them; or
(g) any unavailability of or interference with the usual means of transporting Product; or (h) any unplanned shutdown or shutdown in anticipation of a breakdown or malfunction affecting the plant; or (i) any Party’s inability to acquire from its usual supply source(s) for this Agreement or on terms it deems reasonable Product or any material, labor, service, utility or facility necessary for manufacturing the Product. If, because of such circumstances, there should be a shortage of Product from any of the excused Party’s sources, the excused Party will not be obligated to purchase Product in order to perform this Agreement and if the excused Party is the delivering Party it may apportion its available Product among all its customers and its own internal uses in such manner as the excused Party finds fair and reasonable; provided, however, that it will not be obligated to apportion or otherwise make available to the receiving Party Product which the excused Party obtains by purchase or exchange for their own internal uses. Any quantity of Product consequently not delivered will be deducted from any applicable remaining quantity obligation under this Agreement unless the Parties agree otherwise in writing. It is agreed that upon the affected Party giving notice and full particulars of such excuse by telephone (confirmed in writing), facsimile, or other writing to the other Party as soon as possible after the occurrence of the cause relied upon, then the obligations of the Party claiming excuse shall be suspended to the extent that such Party is rendered unable to perform (other than the obligation to pay all amounts due as of the date of such excuse), and shall remain suspended during the continuance of any inability so caused; however, the other Party may (i) suspend its delivery of Product during such period of suspension(s) and (ii) terminate this Agreement if the period of suspension(s) lasts more than three (3) months in the aggregate. Upon any such termination, the Parties are required to balance the Product quantities by delivery of
