General conditions of delivery of Hoshizaki Europe B.V. – continued long as one or more invoices remain outstanding, to provide security for the payment thereof at the first request of Hoshizaki in the form desired by Hoshizaki. 6.4. If the buyer fails to comply fully with his payment obligations to Hoshizaki or if Hoshizaki has good reason to fear that he shall fail to meet this obligation, then Hoshizaki is entitled at any time and without judicial intervention to retrieve the Products or otherwise to gain access to the Products. Hoshizaki is entitled at any time, in order to gain access to the Products, to enter the space in which the Products are located or can be reasonably considered to be located. The costs of recovery shall be borne by the buyer. 6.5. If buyer fails to return Products, the buyer shall owe to Hoshizaki a fine in the amount of EUR 1,000 a day, payable on demand. 6.6. If buyer does not accept the product upon receipt and therefore intends to return the product, then a formal approval from Hoshizaki is required at first. Charges to the buyer may apply when returning the goods. Custom built products are not returnable Article 7. FORCE MAJEURE 7.1. Hoshizaki is not liable for any failure or any delay to implement an Agreement if: 7.1.1. the failure or the delay is the result of interruptions in the production process of the Products; or 7.1.2. the failure or the delay is the result of Force Majeure as defined hereinafter or in the law. 7.2. If a failure or delay arises as referred to above, the implementation of the relevant part or the relevant parts of the Agreement shall be suspended as long as the failure in question continues, yet this will not constitute any responsibility or liability for Hoshizaki towards the buyer in respect of any damage or loss ensuing therefrom. 7.3. The term ”Force Majeure” refers to circumstances or events – whether or not they could be foreseen at the time the Agreement was concluded – which, in all reasonableness, diminish the influence of Hoshizaki and, as a result of which, it cannot reasonably be required to fulfil its obligations. This definition also extends to Force Majeure and/or failure on the part of the suppliers of Hoshizaki. 7.4. If the situation of Force Majeure continues for a period of three (3) successive months (or if Hoshizaki reasonably expects that the delay shall continue over a period of three (3) successive months), then Hoshizaki has the right to dissolve the Agreement entirely or partially, without this constituting any liability towards the buyer. 7.5. If, when a situation of Force Majeure arises, Hoshizaki has already fulfilled some of its obligations ensuing from the Agreement, then Hoshizaki is entitled to invoice for the actions already performed separately and the buyer is required to pay this invoice as though it concerned a separate transaction. Article 8. Guarantee 8.1. Hoshizaki guarantees (parts only, no labour), under normal use in accordance with the accompanying user’s manual, that at the time of delivery to the buyer and for 2 years on Hoshizaki Ice Machines and 3 years on Gram Reach-in pro- ducts from the delivery date (or another period that the parties might have agreed to in writing) the Products shall be free from material defects and manufacturing defects and to an essential degree shall meet the specifications of Hoshizaki for the Product concerned or, if applicable, other specifications to which Hoshizaki has consented in writing. When having to change a defective part within 3 years from the date of delivery (only valid for Gram reach-in products), we offer a replacement part free of charge (spare-parts only – no labour). The defective part has to be collected and we have to decide whether the part has to be sent back to us for investigation. 8.2. The only and exclusive obligation of Hoshizaki and the only and exclusive right of the buyer in connection with claims ensuing from the applicable guarantee is limited, at the discretion of Hoshizaki, either to the replacement or repair by Hoshizaki (or by a distributor/dealer appointed by it or a recognized and qualified maintenance service) of a defective Product or a Product that does not meet the specifications, or to the reimbursement of the purchase price of the Product. Hoshizaki shall be granted a reasonable period of time for the repair, replacement or allocation of a reimbursement. The Products that do not meet the specifications or defective Products shall become the property of Hoshizaki as soon as they are replaced or reimbursement has been awarded for such. 8.3. Notwithstanding the previous article, Hoshizaki has no obligations on the basis of the guarantee if it is found that the asserted defect or the non-fulfilment of the specifications can be ascribed to power failures or the incorrect connection of the Product to the electricity grid, the incorrect connection of or defects in the water supply or drainage to and from the Product, respectively, tests conducted under circumstances of special use, incorrect use, use in another manner than is described in the user’s manual, insufficient care, faulty installation or an accident, or to faulty repair, adaptations or changes or storage, or incorrect transport, or incorrect handling, cleaning or maintenance of the Product. 8.4. The explicit guarantee as specified in the previous articles applies directly for the buyer and not for his customers, agents or representatives and supplants all other guarantees of an explicit or implicit nature, including but not limited to any implicit guarantees with respect to the suitability for a certain goal, saleability, or the absence of any infringement of intellectual property rights. All other guarantees are hereby rejected specifically by Hoshizaki. 8.5. In compliance with the exclusions and limitations stipulated in Article 9 of the present General Conditions of Delivery, the previous is an account of the complete liability of Hoshizaki in respect of defective Products or Products that do not meet the specifications. Article 9. Liability 9.1. Hoshizaki is not liable for lost profit, lost savings, the loss of reputation, loss of goodwill, damages of an indirect, incidental or exceptional nature, or damages imposed as a fine or in connection to consequential loss ensuing from or relating to the Agreement or the sale of Products by Hoshizaki or the use thereof, irrespective of whether these damages are based on unlawful action, guarantee, contractual relationship or any other legal grounds, and even if Hoshizaki is informed of or is aware of the possibility of such damages (compensation). 9.2. The total and cumulative liability of Hoshizaki towards the buyer in the context of any Agreement is limited to an amount equal to the amount that is connected to the Agreement concerned. The total amount for which Hoshizaki can be held liable on the basis of the previous sentence shall never be more than the amount that is paid out under the liability insurance of Hoshizaki. 9.3. Any claim of the buyer for damages should be submitted by him within ninety (90) days after the date of the event which is the basis of the claim, while any legal proceedings related to such a claim should be instituted within one (1) year after the date of the claim. Claims that are submitted that do not comply which this provision are invalid. 9.4. The limitations and exclusions stipulated in this article apply only in so far as this is permitted by law. Article 10. Intellectual Property Rights 10.1. With the sale of a Product by Hoshizaki to the buy- er, a non-exclusive and non-transferable limited licence is granted to the buyer, on the basis of the relevant intellectual property rights of Hoshizaki and/or the companies and legal entities affiliated with it in the licence area, to use and to resell the Products sold by Hoshizaki to the buyer. All intellectual property rights of Hoshizaki and/or the companies and legal entities affiliated with it or rights of Hoshizaki derived from them with respect to the Products or parts of them and with respect to the packaging or other material that is delivered with the Products shall fully remain the exclusive property of Hoshizaki. 10.2. Hoshizaki shall, at its own cost: (i) conduct the legal defence if a third party institutes legal proceedings against the buyer, in so far as these legal proceedings involve a claim asserting that any Product delivered by Hoshizaki in the context of an Agreement directly infringes upon the patent, copyright, trade mark or corporate secret of the plaintiff; and (ii) indemnify the buyer against the payment of damages and costs that are imposed in the final judgement in such legal proceedings, in so far as this judgement can be directly and exclusively ascribed to the infringement in question. 10.3. By virtue of Article 10.2, Hoshizaki bears no obligation or liability towards the buyer if (1) Hoshizaki is not: (i) informed immediately in writing of a claim as referred to in this connection; (ii) given the exclusive right to take control of and organise the research, the preparations, the defence and the settlement in the context of such a claim, including the selection of legal counsel; and (iii) within the limits of reasonableness, is not given full support and cooperation on the part of the buyer in the context of the research, the preparations, the defence and the settlement as mentioned above; or if (2) the action is instituted after the expiry of a period of three (3) years after the date of delivery of the Product. 10.4. If, in respect of a Product, legal action is instituted citing infringement as referred to in the previous Article 10.2, or if, in the opinion of Hoshizaki, it can be expected that this will occur, then Hoshizaki has the right, without obligation and entirely of its own choice: (i) to obtain the right for the buyer to continue with the use and the sale of the Product; (ii) to ensure the replacement of the Product, or (iii) to adapt the Product in such a manner that, in its new form, the Product no longer makes any infringement; or (iv) to terminate an Agreement in
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