Magretech Terms and Conditions of sale
1. OFFER; SCOPE.
These terms and conditions of sale (“Terms”) apply to all proposals, quotations, acknowledgments and/or invoices submitted by MagReTech, LLC or its designated subsidiaries or affiliates (“Seller”) to its customer or potential customer (“Buyer”) for the sale of goods and/or any services (“Products”), to all related purchase orders, order releases and/or similar documents received by Seller for the purchase of Products, and to all Products sold by Seller. Seller will not provide tolling services to Buyer in connection with the sale of Products to Buyer. SELLER’S PROPOSALS ARE EXPRESSLY MADE CONDITIONAL ON BUYER’S ASSENT TO THE ADDITIONAL OR DIFFERENT TERMS SET FORTH BELOW WHICH REPRESENT THE SOLE AND EXCLUSIVE TERMS AND CONDITIONS UPON WHICH SELLER
OFFERS TO SELL PRODUCTS TO BUYER. Seller’s proposals and quotations, including (a) these Terms; and (b) any documents (such as drawings or other specifications) expressly and to the extent incorporated by reference into Seller’s proposals or quotations, are referred to herein as the “Agreement.” The Agreement also includes any amendments made from time to time by the parties – but no portion of the Agreement (including without limitation these Terms) shall be amended, modified or rescinded, and no amendment, modification or rescission thereto will be binding upon Seller, unless such amendment, modification or rescission is agreed to in writing, makes express reference to amending the Agreement, and is signed by the President, CEO or CFO of Seller. Buyer’s acceptance of the Agreement is limited to acceptance of these Terms. Any proposal for additional or different terms or any attempt by Buyer to vary in any degree any of the Agreement in Buyer’s acceptance are hereby objected to and rejected by Seller. THE TERMS OF THIS AGREEMENT ARE EXCLUSIVE.
2. INVOICING AND PRICING.
Prices in written quotations or proposals prepared specifically for Buyer will be firm only for the time period set forth by Seller in its quotation or proposal and thereafter will be subject to change without notice; provided, however, in all cases even during the period when prices may be firm Seller may at any time impose upon Buyer and Buyer will pay in addition to the price an assessment by Seller for any tax, duty, surcharge, tarrif, other expense or cost increases incurred by Seller (including without limitation for all purposes herein any government assessments and/or material cost increases). Seller’s published prices, if any, are subject to change without notice.
Prices for Products shall be as quoted by Seller (Exworks Seller or Seller’s designated facility (Incoterms 2020)), or as otherwise mutually agreed in writing. All prices are in U.S. Dollars unless otherwise specified on Seller’s proposal, quote or invoice. Quoted prices are based on then current costs, including without limitation labor, materials and overhead. If, at any time after the date of quotation or proposal, Seller’s costs increase by any amount or if any surcharge, tarrif or other expense is incurred, then, in addition to the Product price quoted, Buyer will pay such additional costs and expenses. Invoices may be rendered separate for each shipment or provision of Products, including any early shipment, made by Seller. Any deliver of Products in installments will be considered a sepearate sale and may be invoiced as such. Payment terms will be as specified in Seller’s proposal, quote or invoice or on Buyer’s purchase order if accepted in writing by Seller; provided, however, in the event payment terms are not so established, payment terms are net 30 days following the shipment or provision of Products by Seller. The maximum interest rate permitted by applicable law shall be assessed for each day payment is overdue on an invoice. Seller may, at any time and in its sole discretion, limit or cancel the credit of Buyer as to time and amounts and as a consequence may demand payment in cash before delivery of Products. Buyer shall be liable for all costs of collection, suit, and reasonable attorney’s fees. Any tax, duty or related charge which Seller is required to pay to or collect
for a governmental authority with respect to the sale, use or delivery of Products shall be billed to Buyer as a separate item, in addition to the prices provided for herein, and paid by Buyer unless a valid blanket exemption certificate is timely furnished by Buyer to Seller. In the event Buyer requests changes to Products after the date of quotation, Seller may unilaterally increase prices to cover increased costs (plus reasonable overhead and profit) associated with such changes; provided, however, Seller shall be under no obligation to honor such changes. Where applicable, Seller may add to the price and Buyer agrees to pay for the price of additional Products or portions of Products made necessary by incomplete or inaccurate information supplied by the Buyer. Buyer shall be liable for the price of all Products substantially conforming to the Agreement, notwithstanding that Buyer may not have accepted or may have revoked acceptance of same. In no event shall Buyer be entitled to deduct, counterclaim, hold back or set off against the price of Products, or against any other amount owing under the Agreement or otherwise, any damages, liquidated damages, liens, claims or alleged claims arising out of the Agreement or any other transaction with Seller. Seller, in addition to all other rights and remedies available, shall have the right to stop delivery and any related work if Buyer is in arrears with payment.
Buyer shall accept any tender of Products which substantially conform to the description of the Products set forth in the Agreement. Seller’s standard acceptance procedures conducted by Seller’s representative shall be the criteria for inspection and/or acceptance, unless other specific procedures have been specified in the Agreement. Buyer shall be deemed to have accepted drawings, specifications, technical documentation, samples, prototypes and Products unless Buyer gives Seller notice in writing stating with specificity all defects and nonconformities upon which Buyer will rely to support its rejection within five
(5) days after receipt of the item. Failure to so act shall constitute an irrevocable acceptance of the Products by the Buyer. ALL DEFECTS AND NON-CONFORMITIES WHICH ARE NOT SO SPECIFIED ARE WAIVED. If the Buyer rejects any tender of the Products or other items and if requested by Seller, Buyer shall return them to the Seller, pursuant to Seller’s directions. In the case of Buyer acceptance of non- conforming Products, Buyer shall immediately notify Seller whether or not Buyer will continue to accept similarly non-conforming Products and failure to do so shall constitute a waiver by Buyer of specification requirements for said Products. In any event, if any Products have been altered from their original state, Buyer shall be deemed to have accepted such Products. Buyer’s acceptance of Products tendered under this Agreement shall be final and irrevocable. No attempted revocation of acceptance shall be effective, and Buyer shall be limited to the remedies specifically provided in the Agreement. Seller may charge Buyer a restocking charge equal to twenty-five percent (25%) of the invoice price of returned Products. Returned Products must be returned to Seller in the original packaging and Buyer must first obtain a written consent from Seller to return the Products. Seller may offset the restocking charge against any amounts Seller owes to Buyer. No return from Buyer of Product will be accepted without Buyer first obtaining a Return Material Authorization (RMA) issued by Seller.
It is expressly understood that any technical advice furnished by Seller with respect to the production or use of its Products is given without charge, and Seller assumes no obligation or liability for the advice given or results obtained, all such advice being given or accepted at Buyer’s risk. Seller is not an engineering firm. Any issues, concerns, specifications or requirements for Buyer’s use of the Products is beyond Seller’s knowledge and Buyer agrees no reliance is given to any suggestion or advice given by Seller. Buyer represents that it has consulted with or had an opportunity to consult with engineers and any such other expert or specialist and has satisfied itself that the specifications required for the Products ordered are satisfactory for its use. Seller has not been provided with Buyer’s intended purpose and has made no advice, recommendation or representation that the Products specified are adequate for the purpose Buyer intends.
4. DELIVERY AND RETURNS.
The Agreement shall be a shipment contract, and the Products shall be delivered EXW Seller or Seller’s designated facility (Incoterms 2020), unless otherwise provided in the Agreement. Any claim by Buyer for shortages in any delivery must be in writing with satisfactory evidence delivered to Seller within thirty (30) days of receipt. Whether or not Seller prepays shipping charges, title to Products delivered hereunder and risk of loss thereon shall pass to Buyer on the earliest of (a) the date of payment by Buyer for such Products; and (b) when Seller or its agent delivers such Products to a common carrier or licensed trucker consigned to Buyer or its agent, but such shipment shall remain subject to Seller’s rights of stoppage in transit, rights of reclamation and other legal rights of Seller. Seller’s breach of the Agreement shall not affect the passing of the risk of loss to Buyer notwithstanding any provision of law to the contrary. Whether or not title has passed to Buyer, all risk of loss or damage to the Products or to materials, supplies, equipment or other items shall rest solely on Buyer upon the date of delivery of such items to Buyer or its carrier, including without limitation loss or damage due to vandalism or theft or while in transit. Carriers are responsible for Products lost or damaged in transit.
When a shipping/delivery date is specified by Seller, that date reflects Seller’s estimate for the probable time required for completion of Buyer’s order, based on Seller’s then-current workload, raw material and labor availability, engineering and manufacturing capacity and scheduling. All shipping dates are approximate and shall be computed from the date of entry of the order on Seller’s books. All shipping/delivery dates are further subject to Seller’s prompt receipt from Buyer of all drawings, information and approvals necessary to provide the Products and satisfaction of any other obligations and conditions under the Agreement. Seller shall not incur liability of any kind whatsoever for failure to ship on any particular date. Buyer shall pay all handling and other charges incidental to transportation of the Products.
Unless permitted by the Agreement or authorized by Seller in writing, if Buyer cancels shipment of any Products ordered by Buyer, 100% of the invoice charges shall apply and be assessed against Buyer. If shipment of any Products or other performance by Seller is delayed at the request of or due to the fault of the Buyer, the Seller may at its option hold the Products at the place of manufacture at the risk and expense of the Buyer from the time the Products are ready for shipment. In the event of any such delay to shipment, full and final payment for Product shall be due and payable thirty (30) days after the Buyer is notified that the Product is ready for shipment and an invoice issued for such Products. If the Seller is unwilling to accommodate the Buyer by holding such Product, then Buyer agrees to accept shipment immediately. Delivery rescheduled at Buyer’s request, if agreed to by Seller, is subject to an additional charge of 25% of the selling price if rescheduled within ten (10) days immediately preceding the then-current scheduled delivery date, which will be invoiced at the time of shipment.
5. LIMITED EXPRESS WARRANTY; LIMITED REMEDIES.
Seller warrants to Buyer only, subject to the limitations and disclaimers of this Agreement, that
(a) such Products shall upon delivery to Buyer conform to Buyer’s specifications to the extent accepted in writing by Seller and to the certificate of analysis and packing slip provided by Seller for the Products delivered; and
(b) such Products are furnished free and clear of any liens of third parties created by Seller.
Seller retains the right to change the dimensions, composition, design, performance, color and appearance of the Products without liability if, in its judgment, the change is non-material. Seller shall not be liable for any value added services such as inspections or tests.
The foregoing warranties are conditioned upon (i) compliance with instructions furnished by Seller from time to time, if any; and (ii) the Products not having been subjected to misuse, neglect, or accident, or to alteration, modification, or improper testing, handling, use, soldering, or other act or omissions in any respect which, in the judgment of Seller, adversely affects the Products. The foregoing warrantties shall not cover defects arising from any materials, documentation or specifications, either received or generated from Buyer, which are found to be incorrect due to incompleteness, incorrect revision level, ambiguity, or any other reason.
Seller’s sole obligation to Buyer hereunder, and the sole and exclusive remedy of Buyer for breach of warranty, shall be, at Seller’s discretion, to replace the nonconforming Product or issue Buyer credit for the purchase price of the nonconforming Product, where within thirty (30) days of delivery of the Products: (1) Seller has received written notice from Buyer of any nonconformity; (2) after Seller’s written authorization to do so Buyer has returned the nonconforming Product to Seller’s, freight prepaid; and (3) Seller has determined that the Product is nonconforming and that such nonconformity is not a result of failure to satsify the conditions set forth in this Section 5.
6. LIMITATION OF WARRANTY; LIMITATION OF LIABILITY; REMEDIES; INDEMNIFCATION.
THE FOREGOING LIMITED WARRANTIES AND REMEDIES ARE EXCLUSIVE AND ARE MADE EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR USE AND NONINFRINGEMENT. SELLER NEITHER ASSUMES NOR AUTHORIZES ANY OTHER PERSON TO ASSUME FOR SELLER ANY OTHER WARRANTY OR LIABILITY IN CONNECTION WITH THE SALE OR USE OF PRODUCTS AND SELLER MAKES NO WARRANTY WHATSOEVER FOR PRODUCTS NOT MANUFACTURED BY SELLER. SELLER SHALL NOT BE LIABLE FOR DAMAGES DUE TO DELAYS IN DELIVERIES OR USE. NOTWITHSTANDING ANYTHING SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SELLER BE RESPONSIBLE OR LIABLE TO BUYER, TO BUYER’S CUSTOMERS, OR TO ANY OTHER PERSON OR ENTITY, FOR ANY INCIDENTAL, CONSEQUENTIAL (INCLUDING BUT NOT LIMITED TO LOSS OF BUSINESS, LOSS OF PROFITS OR GOODWILL, BUSINESS INTERRUPTION AND THE LIKE), EXEMPLARY, INDIRECT, SPECIAL, CONTINGENT OR PUNITIVE DAMAGES OF ANY KIND, WHETHER ARISING FROM OR RELATING TO THE PRODUCTS, THE CONDUCT OF BUSINESS UNDER OR BREACH OF THE AGREEMENT, REGARDLESS OF WHETHER THE CLAIM SOUGHT IS BASED ON CONTRACT (FOR EXAMPLE, IN CONNECTION WITH ANY BREACH OF WARRANTY OR OTHER BREACH OF SELLER’S OBLIGATIONS UNDER THIS AGREEMENT), TORT, NEGLIGENCE, STRICT LIABILITY, STATUTE, REGULATION, OR ANY OTHER LEGAL THEORY, LAW OR OTHERWISE. SELLER’S AGGREGATE LIABILITY FOR ANY DAMAGES OR CLAIMS ARISING OUT OF OR RELATING IN ANY WAY TO THIS AGREEMENT OR ANY PRODUCTS SUPPLIED OR TO BE SUPPLIED UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED FOR ALL SUCH MATTERS THE AMOUNT BUYER PAID FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM OR DAMAGES. THE REMEDIES SET FORTH IN THIS
AGREEMENT ARE THE SOLE AND EXCLUSIVE REMEDIES AVAILABLE TO BUYER AND ALL
OTHER REMEDIES ARE EXPRESSLY DISCLAIMED AND WAIVED. The limitations set forth in the Agreement apply regardless of whether such damages were foreseeable or a party has been advised of the possiblity of such damages and nowithstanding the failure of any agreed or other remedy of its essential purpose. Further, Buyer expressly waives any causes of action or theories of liability including, but not limited to, those arising under contract, tort, strict liability, product liability, statutes or otherwise, except as specifically provided by the UCC as modified and limited herein. Buyer further waives any right of implied contractual or common law indemnity against Seller for any claim, including, but not limited to, liability for claims for damages to person or property arising out of the use of Products sold to Buyer under this Agreement.
Buyer shall indemnify, defend and hold harmless Seller, and and Seller’s parent, subsidiary and affiliate companies, and their respective shareholders, officers, directors, employees, representatives, agents, successors and assigns from and against any and all third party claims, damages and expenses (including reasonable attorney fees) under theories of tort, product liability, negligence (ordinary or gross), warranty, contract, infringement, misappropriation, statute or otherwise arising out of the use, storage, sale, processing or other disposition of the Products, supplies or materials used in connection with the Products or parts manufactured with the Products if (a) the action or inaction of Buyer or its employees, customers or agents, or Buyer’s requested, furnished, accepted or approved specifications or design, were a material or proximate cause of injuries or damages giving rise to claims against Seller; and/or (b) the claim asserted is inconsistent with the limitation of warranties, limitation of liability, and/or limitation of remedies provisions set forth in thieAgreement.
Buyer acknowledges and agrees that Seller has set its prices and entered into each transaction in reliance upon the disclaimers of warranty and the limitations of remedies and liabilities set forth in the Agreement, and that the same reflect risk allocation between the parties forming an essential basis of the bargain between them.
7. CANCELLATION AND BREACH.
If Buyer fails, with or without cause, to furnish Seller with instructions for, or refuses to accept deliveries of, any of the Products sold under the Agreement, or is otherwise in default under or repudiates all or any part of the Agreement or any other agreement with Seller, or advises Seller that it will default in the performance of any of its obligations, or fails to pay when due any invoice under the Agreement or any other agreement with Seller, or if any action is started by or against Buyer seeking the appointment of a trustee or receiver or the entry of an order for debtor’s relief for Buyer, then, in addition to any and all remedies allowed by law, Seller may, without notice: (a) bill and declare due and payable amounts for all undelivered Products, work in process and raw material under the Agreement and/or any other agreement between Seller and Buyer; (b) cease performance of its obligations and defer shipment under the Agreement and/or any other agreement between Buyer and Seller until such default, breach or repudiation is removed;
(c) cancel any undelivered portions of the Products and/or any other agreement with Buyer in whole or in part; and/or (d) recover Products in transit or delivered, retrieve delivered Products, repossess all Products which may be stored by Seller for Buyer’s account and otherwise enforce its remedies for Buyer’s default. Buyer shall remain liable for all damages suffered or incurred by Seller in any such circumstances, including, without limitation, for work in process and raw material. Seller shall be awarded incidental damages including, without limitation, reasonable profits and costs such as actual reasonable attorney fees in any proceeding to enforce its remedies in which it obtains relief for damages or injunctive relief. All rights granted to Seller in the Agreement and by law are cumulative, provided Seller shall be entitled to
only a single full recovery. Seller shall not be lilable for any action taken pursuant to a good faith exercise of any of its rights under the Agreemetn or law.
8. CONFIDENTIAL INFORMATION.
Unless otherwise agreed, Buyer acknowledges that any information disclosed to Seller is subject only to Buyer’s patent rights, without any other restrictions on Seller’s use, including reproduction, modification, disclosure or distribution of the information. Buyer agrees not to label any such information with a notice asserting that the information is proprietary or confidential to Buyer. In addition, Buyer agrees not to assert any claim (other than a claim for patent infringement) against Seller, Seller’s customers, or their respectives suppliers, with respect to any information that Buyer has disclosed or may disclose to Seller in connection with the Products.
Buyer shall consider and treat all Information (as defined below) as confidential and shall not disclose any Information to any other person, or use any Information itself for any purpose other than pursuant to and as required by this Agreement, without Seller’s prior written consent. Seller retains all rights with respect to the Information, and Buyer shall not acquire, nor attempt to obtain, any patent, trademark, copyright, license or other rights in respect of the Information. Buyer shall not allow any Information to be reproduced, communicated or in any way used, in whole or in part, in connection with services or goods furnished to others, without Seller’s prior written consent. For the purposes of this Agreement, “Information” means all drawings, reproductions, specifications, designs, engineering instructions, photographs, reproducible copy, parts lists, plans, reports, working papers, computations and other information furnished by Seller and shall include all terms and conditions and any other information relating to the Agreement. Any invention or other information, whether patentable or not, developed by Seller in the performance of the Agreement shall remain the property of Seller. Seller shall be under no obligation to refrain from using in its business any of Seller’s proprietary information disclosed to Buyer under the Agreement.
9. FORCE MAJEURE.
Neither party will be liable for any delay in performance or for failing to perform under the Agreement or damages arising therefrom to the extent the delay or failure is caused by an event or occurrence beyond the reasonable control of the party and without its fault or negligence (referred to as a “Force Majeure”), including without limitation acts of God or of a public enemy or any state or political subdivision or any department or regulatory agency, acts of any person engaged in subversive activity, terrorism or sabotage, rebellion, revolution, insurrection, or military or usurped power, civil war, fire, flood, hurricanes, explosion, epidemic or pandemic, plague, outbreaks of infectious disease, strike, labor disputes or freight embargoes, the inability to obtain power, unavailability of suitable and sufficient labor, Seller’s capacity or technical or yield failures or a material change in the cost or availability to Seller of materials or components for any reason. If a Force Majeure occurs, performance of the Agreement may be suspended by the affected party upon written notice to the other party. If the Force Majeure lasts for more than ninety (90) days, the party not invoking the Force Majeure can terminate the Agreement by giving written notice following such ninety
(90) day period and the termination may be effective upon such notice or later time as set forth in the notice. Both parties will use their respective commercially reasonable efforts to mitigate the effects of and cure any Force Majeure to the extent that it is reasonably possible to do so. Such reasonable efforts do not include paying expedited freight charges or surcharges. Buyer can obtain replacement products from an alternative source during the period of the Force Majeure; provided, however, Buyer has no rights to use Seller’s intellectual property in connection with obtaining replacement products. A Force Majeure does not excuse any payment obligations of either party under this Agreement.
Notwithstanding anything herein to the contrary, Buyer acknowledges that the severe acute respiratory syndrome coronavirus 2 and coronavirus disease (COVID-19) and any prior or subsequent developments related to COVID-19 or potential variations of COVID-19 (whether occurring before or after the date of an order) may give rise to a force majeure condition after the date of the order. The timing of any such COVID- 19 developments will not foreclose or prevent Seller from relying upon the defense of impracticability, impossibility or force majeure.
10. TIME PERIOD FOR BUYER CLAIM.
Any proceeding by Buyer for breach of the Agreement or any other right against Seller arising from or in conneciton with payment by Buyer or the Agreement cannot be filed or maintained unless: (a) it is commenced within one (1) year after the cause for action has accrued; (b) Buyer has given timely written notice to Seller of its claim as provided in this Agreement; and (c) Buyer deposits any unpaid portion of the purchase price for Products with the tribunal pending final adjudication. An action shall accrue no later than shipment or provision of the Products.
Buyer shall not assign the Agreement or any interest therein or any rights thereunder without the prior written consent of Seller, and any purported assignment without such consent shall be void.
To the extent any express terms set forth in Seller’s quotation or proposal to which these Terms are attached or in which they are incorporated by reference or to which they apply are inconsistent with these Terms, the express terms set forth in Seller’s quotation shall control (to the extent, and only to the extent, of such inconsistency).
13. NOTICE; GOVERNING LAW AND JURISDICTION.
Any notice, demand, or communication in connection with the Agreement will be in writing and deemed to have been duly served if such notice is sent to the Buyer identified in Buyer’s order. This Agreement and any claims relating to the Products will be construed according to and governed by the laws of the State of Ohio and the United States of America, excluding the provisions of the United Nations Convention on Purchase Orders or Contracts for the International Sale of Goods, as amended, and any choice of law provisions that require application of any other law. Subject to Section 14 regarding arbitration, (a) any litigation on contractual claims arising from this Agreement may be brought by Seller in any court(s) having jurisdiction over Buyer or, at Seller’s option, in court(s) having jurisdiction over Seller’s headquarters and/or in the Ohio state courts or the United States District Court for the Northern or Southern District of Ohio, in which event Buyer consents to jurisdiction and service of process in accordance with applicable procedures; and (b) any actions or proceedings by Buyer against Seller shall be brought by Buyer only in the Ohio state courts or the United States District Court for the Northern or Southern District of Ohio. Buyer and Seller hereby consent to such jurisdictions and service of process in accordance with applicable procedures.
The arbitration provisions of this Section 14 will be governed by the United States Federal Arbitration Act. At Seller’s option, exercised by written notice any time before or within 30 days following the service of process in a legal action, any dispute regarding the Products, this Agreement, any of Buyer’s orders, the validity of this Agreement or Buyer’s orders, or any other matter between the parties (other than requests for injunctive relief) will be resolved by binding arbitration, conducted in the English language, as follows:
(a) the arbitration will be conducted under the commercial arbitration rules of the American Arbitration Association (AAA) and under Rules 26 through 37 of the U.S. Federal Rules of Civil Procedure; (b) if the parties cannot agree on a location within thirty (30) days of either party’s request for arbitration, the arbitration will be conducted in Bellevue, Ohio; and (c) the sole arbitrator will be selected from an AAA list using the AAA-recommended selection method. Each party will bear equally the costs and expenses of AAA and the arbitrator, and each party will bear its own costs and expenses — provided, however, (i) that the failure by one party to pay its share of the arbitration fees constitutes a waiver of such party’s claim or defense in the arbitration; and (ii) that the arbitrator may award attorneys’ fees and costs to the substantially prevailing party. In no event will any party be awarded punitive or exemplary damages. All arbitration proceedings shall be confidential, except to the extent that disclosure is necessary to enforce an arbitration award in a court of competent jurisdiction. The arbitration award shall be final and binding upon the parties, and enforceable in any court of competent jurisdiction.
15. JURY TRIAL WAIVER.
BUYER AND SELLER ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH OF BUYER AND SELLER, AFTER CONSULTING (OR HAVING THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS CHOICE, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT, THESE TERMS, ANY OF BUYER’S ORDERS OR ANY OTHER DOCUMENT PERTAINING THERETO.
The Agreement is the complete and exclusive statement of the agreement of the parties and supersedes all prior agreements and understandings between them relating to the subject matter hereunder. No waiver of any provision of the Agreement shall be effective unless made in writing. No waiver of any provision of the Agreement or breach thereof shall constitute a waiver of future compliance, a waiver of any subsequent breach or a waiver of any other provision. Section headings are for convenience only and shall not be considered in the interpretation of the Agreement. Orders submitted in any Buyer’s purchase order or other writing (whether or not it contains terms or conditions modifying, adding to, repugnant to, or inconsistent with the Agreement), may be accepted, approved, or filled by Seller, but any resulting contract and the liabilities or obligations of Seller shall be determined solely by the Agreement, and (unless Seller otherwise advises Buyer in writing signed by the President, CEO or CFO of Seller) notice is hereby given that Seller objects to any such terms or conditions in Buyer’s purchase order or other writing. Seller shall not be deemed to have in any way enlarged or modified its liabilities or obligations under the Agreement by filling such purchase orders or by failing to further object to Buyer’s terms or conditions. The provisions of the Agreement are severable and if any one or more such provisions are judicially determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions or portions of the Agreement shall
nevertheless be binding on and be enforceable by and between the parties.The prevailing party in any legal action brought by one party against the other shall be entitled, in addition to any other rights and remedies it may have, to reimbursement of its expenses incurred thereby, including court costs and reasonable attorney’s fees. Any interpretation of the Agreement shall be construed consistently by and against both parties, and shall not be construed against the draftsperson hereof. Buyer and Seller acknowledge that they are merchants in respect to the Products, they have had an opportunity to review the Agreement, and the provisions of the Agreement are reasonable when considered as a whole.