Sonova USA Inc. or one or more of its affiliates (each a "Sonova Services Entity") shall provide repair services (whether covered under warranty or pursuant to the current repair services pricing), warehousing, storage, handling, delivery, and related services (the "Services") for the goods described (the "Goods") on the service/repair request form or similar document (“Request Form”) into which these Services Terms are incorporated on behalf of the hearing care professional identified on the Request Form ("Depositor") pursuant to these Services Terms, together with the quotations, terms, and conditions contained herein (collectively, the "Services Terms"). Sonova Services Entity shall provide the Services in one or more of its service facility(ies) in the United States, Mexico or another jurisdiction ("Service Facility"). If Sonova Services Entity provides additional services, including any special handling services set forth on the Request Form, it shall provide them (a) for the additional fees set forth in Section 7, and (b) solely as agent for Depositor, and not as a bailee or Service Facility.
Depositor's tender of Goods for Services is subject to these Services Terms, including Section 3, and Depositor agrees to and accepts these Services Terms by depositing the Goods with Sonova Services Entity. Sonova Services Entity may refuse to accept any goods if the goods tendered for Services do not conform to the description contained on the Request Form. If Sonova Services Entity accepts such Goods for Services, Depositor agrees to rates and charges as may be assigned and invoiced by Sonova Services Entity and to all other Services Terms of these Services Terms.
Depositor represents and warrants that it is the owner or has lawful possession of the Goods and all right and authority from the owner of the Goods to tender them to Sonova Services Entity for the provision of Services and thereafter direct the release and/or delivery of the Goods. Depositor shall (a) tender all Goods to the Service Facility properly marked and packed for storage and handling; and (b) provide Sonova Services Entity with information concerning the tendered Goods that is accurate, complete, and sufficient to allow Sonova Services Entity to comply with all laws and regulations concerning the repair, storage, handling, processing, and transportation of the Goods.For Goods shipped to the Service Facility, Depositor shall ensure that the bill of lading or other contract of carriage ("Transportation Contract") (a) identifies Depositor as the named consignee, in care of Sonova Services Entity, and (b) does not identify Sonova Services Entity as the consignee. If any Goods are shipped to the Service Facility naming Sonova Services Entity as named consignee on the Transportation Contract, Depositor shall promptly notify the carrier in writing that Service Facility is (x) the “in care of party” only and (y) does not have any beneficial title or interest in the Goods. Sonova Services Entity may refuse to accept any Goods tendered in violation of this provision, and shall not be liable for any loss or damage to, or mis-consignment of, such Goods. Depositor agrees to indemnify, defend, and hold Sonova Services Entity harmless from any costs, liabilities, actions, penalties, or expenses of any kinds associated with the improper declaration of Sonova Services Entity as consignee.
Depositor shall indemnify, defend, and hold harmless Sonova Services Entity and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including undercharges, rail demurrage, truck/intermodal detention or related charges and reasonable attorneys' fees, fees, and the costs of enforcing any right to indemnification under these Services Terms and the cost of pursuing any insurance providers, incurred by or awarded against Indemnified Party, relating to, arising out of or resulting from any claim of a third party (including but not limited to the end user owner of any Goods (“End User Owner”) arising out of or occurring in connection with the Services or from Sonova Services Entity's or Depositor's negligence, willful misconduct, or breach of these Services Terms (each, a "Service Facility Claim"). Depositor shall not enter into any settlement of a Service Facility Claim without Sonova Services Entity's or Indemnified Party's prior written consent.
Sonova Services Entity shall use all reasonable efforts to release the Goods to Depositor or its designee within a reasonable time after Sonova Services Entity's receipt of Depositor's written instructions to do so (each, a "Release Order"), provided that all charges have been paid in full. Sonova Services Entity may without liability rely on any information contained in any instructions or other communication from Depositor. A Release Order providing instructions to transfer Goods on the books of Sonova Services Entity to any other depositor of goods in the Service Facility will not be effective until such Release Order is delivered to and accepted by Sonova Services Entity. The depositor of record shall be responsible for all charges up to the time the actual transfer of the applicable Goods is made. For any Goods not under warranty, as between Sonova Services Entity and Depositor, Depositor shall be solely responsible for all freight and shipping charges relating to return of the Goods to Depositor.
Sonova Services Entity shall have a lien on the Goods and upon the proceeds from the sale thereof to secure Depositor's or End User Owner’s payment of all fees, charges, and expenses hereunder in connection with the transportation, preservation, and handling of the Goods. Sonova Services Entity may enforce this lien at any time, including by selling all or any part of the Goods in accordance with applicable law.
Depositor shall pay all fees and charges as specified on the Request Form, or if not so specified, within thirty (30) days from the date of invoice. Depositor shall make all payments hereunder in US dollars. Depositor shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated and compounded daily from the date due until paid in full. Depositor shall reimburse Sonova Services Entity for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. In addition to all other remedies available under these Services Terms or at law (which Sonova Services Entity does not waive by the exercise of any rights hereunder), Sonova Services Entity shall be entitled to suspend the release of any Goods or cease performance of any Services if Depositor fails to pay any amounts when due hereunder. In addition, Sonova Services Entity reserves the right to require payment in full of all amounts owed by Depositor in advance of the release of the related Goods. Depositor shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Sonova Services Entity, whether relating to Sonova Services Entity's breach, bankruptcy, or otherwise.
Sonova Services Entity shall not be liable for any loss or damage to the Goods tendered, stored, or handled, however caused, unless such loss or damage resulted from the failure by Sonova Services Entity to exercise the level of care with regard to the Goods that a reasonably careful person would have exercised under the circumstances. Sonova Services Entity is not liable for damages which could not have been avoided by the exercise of such care. Any presumption of conversion under applicable law shall not apply to a loss with respect to any Goods, and a claim for conversion must be established through evidence that Sonova Services Entity converted the Goods to its own use. Depositor shall permit Sonova Services Entity to inspect any damaged Goods for which a claim is submitted hereunder. Sonova Services Entity shall not be liable for any breach of this Section 8 unless: (a) Depositor or End User Owner gives written notice to Sonova Services Entity of any claim within 10 days after release of the Goods by Sonova Services Entity or (b) Depositor is notified by Sonova Services Entity that loss or damage to part or all of the Goods has occurred as the case may be, reasonably described. No lawsuit or other action may be maintained by Depositor against Sonova Services Entity for loss or damage to the Goods unless a timely written claim has been given by Depositor as provided in the previous sentence and unless such lawsuit or other action is commenced no later than the earlier of: (x) 3 months after the date of delivery of the Goods to Depositor or its nominee by Sonova Services Entity or (y) 3 months after Depositor is notified by Sonova Services Entity that loss or damage to part or all of the Goods has occurred.
IN NO EVENT SHALL SONOVA SERVICES ENTITY'S LIABILITY UNDER THIS SECTION 8 EXCEED (A) THE ACTUAL COST TO REPAIR, RESTORE, AND/OR REPLACE ANY DAMAGED GOODS, OR (B) $1,000 PER UNIT FOR ANY DAMAGED GOODS, WHICHEVER IS LESS. THE REMEDIES SET FORTH IN THIS SECTION 8 SHALL BE DEPOSITOR'S SOLE AND EXCLUSIVE REMEDY AND SONOVA SERVICES ENTITY'S ENTIRE LIABILITY FOR ANY BREACH OF SONOVA SERVICES ENTITY'S OBLIGATIONS SET FORTH IN THIS SECTION 8.
IN NO EVENT SHALL SONOVA SERVICES ENTITY BE RESPONSIBLE OR LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, OR SPECIAL DAMAGES OF ANY TYPE OR NATURE WHATSOEVER AND HOWEVER ARISING, INCLUDING, WITHOUT LIMITATION, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF ANY PROVISION OF THESE SERVICES TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY DEPOSITOR OR COULD HAVE BEEN REASONABLY FORESEEN BY DEPOSITOR, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SONOVA SERVICES ENTITY'S AGGREGATE LIABILITY UNDER THESE SERVICES TERMS INCLUDING, BUT NOT LIMITED TO, SONOVA SERVICES ENTITY'S LIABILITY UNDER SECTION 8 OF THESE SERVICES TERMS, EXCEED [[NUMBER] TIMES] THE TOTAL OF THE AMOUNTS PAID TO SONOVA SERVICES ENTITY FOR THE SERVICES RENDERED HEREUNDER.
In the case of loss or damage to Goods for which Sonova Services Entity is not liable, Depositor shall be responsible for all charges incurred in removing and disposing of such Goods, including any environmental clean-up and remediation costs related to such Goods and their removal and disposal.
In addition to any remedies that may be provided under these Services Terms, Sonova Services Entity may terminate a Request Form and any Services pursuant to such Request Form with immediate effect upon written notice to Depositor, if: (a) Depositor fails to pay any amount when due under the Request Form or these Services Terms; (b) Depositor has not otherwise performed or complied with its obligations under any of the provisions contained in these Services Terms, in whole or in part; (c) Depositor becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors; or (d) the Goods are a hazard to other property within the Service Facility or to the Service Facility itself or to persons as a result of the quality or condition of the Goods of which Sonova Services Entity had no notice at the time of deposit.
If a Request Form is terminated for any reason, Depositor shall promptly arrange the removal of all Goods from the Service Facility, subject to payment of all outstanding fees and charges due hereunder by Depositor or End User Owner.
No waiver by Sonova Services Entity of any of the provisions of a Request Form or these Services Terms is effective unless explicitly set forth in writing and signed by Sonova Services Entity. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Services Terms operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
No party shall be liable or responsible to the other party, or be deemed to have defaulted under or breached a Request Order or these Services Terms, for any failure or delay in fulfilling or performing any term (except for any obligations of Depositor to make payments to Sonova Services Entity hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, epidemic or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of the Request Form; (f) national or regional emergency;[(g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of Service Facility or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within two business days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal or resolution of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of 30 consecutive days following written notice given by it under this Section 12, either party may thereafter terminate the applicable Request Form upon written notice.
Except as specified in the next sentence, these Services Terms are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these terms. Notwithstanding the foregoing, all rights of Depositor shall extend to End User Owner and all limitations upon, and exceptions and defenses to, liability granted to Sonova Services Entity shall be automatically extended to all parent, subsidiary, and affiliated entities and all subcontractors of Sonova Services Entity.
All matters arising out of or relating to these Services Terms shall be governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision. Any legal suit, action, or proceeding arising out of or relating to these Services Terms shall be instituted in the federal courts of the United States of America or the courts of the State of Illinois in each case located in the County of DuPage, Illinois. Each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
These Services Terms, together with any current Rate Sheet and Request Form in connection with these Services Terms, constitutes the sole and entire agreement of the parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.