The following Waiver and Indemnity Agreement (“Agreement”) is made between NOMOQ AG, a company incorporated and registered under the laws of Switzerland with its registered office and business address at Dreikönigstrasse 51, 8002 Zürich, Switzerland, including its affiliated companies, hereinafter “NOMOQ“, and the legal entity who has bought, or agreed to buy, the Goods, hereinafter “Buyer”.
Whereas
- Buyer has agreed to the General Terms and Conditions, which govern the supply of cans (“Goods”) by NOMOQ to Buyer. This Agreement serves to amend, supplement, or vary the General Terms and Conditions, as further described herein.
- With reference to clause 6.2 of the General Terms and Conditions, the Buyer has decided not to proceed with NOMOQ’s testing procedures to test the compatibility and coactions of the Goods with its filling product ("Filling Product"). Despite the advice of NOMOQ and the test results, Buyer has chosen to use the Goods for filling with the Filling Product. Buyer acknowledges that by using the Goods for filling with the Filling Product, NOMOQ does not give any warranty in respect of the Goods and disclaims all liabilities and indemnities whatsoever and howsoever arising in respect of the Goods notwithstanding the General Terms and Conditions. In addition, Buyer acknowledges that using the Goods for the Filling Product may lead to non-compliance with food safety laws and requirements.
Waiver and Indemnity
3. In view of the above, the parties have therefore now agreed that NOMOQ will make delivery of the Goods on the following basis:
3.1. Buyer waives hereby unconditionally and irrevocably its right to any and all of its rights, actions, claims (including negligence) or otherwise against NOMOQ for any losses or damages ("Losses") resulting from any and all product contamination, incompatibility or coactions between the Goods and the Filling Product following Buyer filling the Goods with the Filling Product.
3.2. Buyer will indemnify and hold harmless NOMOQ for all Losses, including (but not limited to) claims raised by third parties against NOMOQ, relating to all product contamination, incompatibility or coactions between the Goods and the Filling Product following the filling of the Goods with the Filling Product.
3.3. Buyer warrants and represents that it shall not use the Goods in a manner which may place NOMOQ and/or its affiliates in breach of any laws, including any laws which may give rise to criminal liability; and
3.4. In the event that any actions or claims are caused:
(i) not as a result of product contamination or the coactions between the Goods and the Filling Product; or
(ii) by NOMOQ's gross negligence,
paragraphs 3.1 and 3.2 above shall not apply.
4. Save as amended, supplemented or varied by the terms of this Agreement, the General Terms and Conditions shall remain in full force and effect. If there are any conflicts between the provisions of the General Terms and Conditions and this Agreement, the terms of this Agreement shall prevail.
5. This Agreement shall be governed by the laws of Switzerland and the parties irrevocably submit to the exclusive jurisdiction of the courts of Zurich, Canton Zurich, Switzerland in relation to any disputes that arise as a result of, or in connection with, this Agreement.
® NOMOQ is a registered trademark of NOMOQ AG.
Last updated August 2023
