Terms and Conditions of Sale
CHEMEON SURFACE TECHNOLOGY LLC
Definitions; Interpretation. In addition to definitions provided elsewhere herein, the following definitions shall apply to these terms and conditions (“Terms”). “Seller” means CHEMEON Surface Technology, LLC; “Buyer” means a party who places an order with Seller for Purchases; “Carrier” means Buyer or the third party carrier engaged by Buyer, or on Buyer’s behalf, to deliver the Products to Buyer’s site; “Laws” means all applicable federal, state, and local laws, codes, rules, regulations, and orders of any governmental authority; “Purchases” means Products or Services, as applicable; “Products” means any and all goods sold by Seller to Buyer; “Services” means all services provided by Seller to Buyer; “Manufacturer” means the manufacturer of a Product; “Manufacturer’s Warranty” means the limited warranties furnished by the Manufacturer with respect to a Product manufactured by it; “Shipping Site” means Seller’s plant where the Products are received by the Carrier for transportation to Buyer’s site; “Specific Terms” means, as applicable, the specific terms set forth in an Order; “Order” means credit quotations, sales orders, and invoices of Seller related to Purchases, all of which shall be deemed to include these Terms. As used herein: (a) the singular includes the plural and vice versa, (b) the term “or” is not exclusive, (c) “include” or “including” means including, without limitation, (d) headings do not constitute a part of these Terms, (e) all references to money refers to United States currency, and (f) references to Seller and Buyer include their respective affiliates, successors, and assigns.
Acceptance; Conflicting Terms. Buyer shall be deemed to have irrevocably accepted the Terms upon the earliest of (a) executing an Order to which these Terms are attached or with respect to which these Terms are delivered, (b) placing an Order in writing or orally, (c) acceptance of the delivery of a Purchase, or (d) payment of any amount due for a Purchase. If additional or different terms or conditions (“Buyer’s Proposed Terms”) are contained in an order submitted by Buyer (including on Buyer’s forms), these Terms shall control regardless of when Buyer’s Proposed Terms are received by Seller unless Seller agrees in writing to a Buyer’s Proposed Term; otherwise, Seller rejects all Buyer’s Proposed Terms. If the parties have entered into another agreement identified in the Order (the “Other Agreement Terms”), the Terms and the Other Agreement Terms shall both be applicable where they are not inconsistent with each other; however, to the extent a conflict exists, the Other Agreement Terms shall control.
1. Applicability -
a. All sales of goods (“Products”) by CHEMEON Surface Technology LLC (the “Seller” / “Manufacturer”) are made subject to these Terms and Conditions of Sale and are expressly conditioned upon the Buyer's assent thereto. The Seller will not be bound by any variations from or additions to these terms and conditions of sale contained in any purchase order or other document submitted by the Buyer.
b. No variation from these Terms and Conditions of Sale shall be binding upon the Seller unless agreed to in writing by an authorized representative of the Seller. In addition to these Terms and Conditions of Sale, certain Products sold by Seller are sold in collaboration with distributors or resellers of such Products, and such Products are sold subject to their respective, distributor, reseller or seller/manufacturer Terms and Conditions of sale. Please contact Seller for further details.
2. Orders -Acceptance and Cancellation, Returns –
a. No order for Products placed by a buyer (“Buyer”) shall be binding on Seller unless and until accepted by Seller. Seller reserves the right to reject any order for any reason. Once submitted to Seller, an order may not be changed or cancelled by Buyer unless such change or cancellation is expressly agreed to in writing by an authorized representative of Seller.
b. CANCELLATION Seller may cancel this Agreement as well as any or all other outstanding transactions between Seller and Buyer at any time in the event that Buyer shall fail to perform or observe any term or condition hereof by giving Buyer ten (10) days written notice of cancellation.
c. Cancellation hereunder shall not prevent Seller from pursuing any other remedy available to Seller by law or from seeking all such damages to which Seller may be entitled.
d. Any such agreement to change or cancel an order may be conditioned upon Buyer paying a change or cancellation charge intended to compensate Seller for costs incurred, including, but not limited to, storage and shipping costs, costs of producing special order product, costs incurred in purchasing materials, change or cancellation costs imposed on Seller by its suppliers, shippers, disposal costs incurred in disposing of Products in accordance with law, and any other cost resulting from a change or cancellation of an order placed by Buyer.
e. If Seller is unable for any reason to fill Buyer's entire order for Products, Seller may allocate its supply among any or all Buyers on such basis as Seller deems convenient and practical, without liability for any failure of performance which may result from such determination.
f. Upon Buyer's receipt of Products, Buyer shall immediately inspect the same and shall notify Seller in writing within forty-eight hours (48 hours) of delivery of any claims for shortages, defects or damages. If Buyer shall fail to so notify Seller within said 48 hour period, such goods shall conclusively be deemed to conform to their respective specifications and to have been irrevocably accepted by Buyer. Seller shall not be liable to Buyer for any losses or damages resulting from a late delivery or from Seller's failure to perform due to any cause beyond Seller's reasonable control.
g. Conforming Products may not be returned for credit except with Seller's prior agreement, and then only in strict compliance with Seller's instructions. Any returned items may be subject to a restocking fee to be determined by Seller. Under no circumstances will Seller accept for return any customer special order products or any products that are in a non-saleable condition.
3. Shipment, Handling and Delivery -
a. All sales are made FOB Seller's shipping point. Shipping and handling charges will be added to the quoted price for the Products. Seller will bill actual shipping charges plus appropriate handling, insurance, and hazardous materials and temperature-controlled vehicle surcharges (where applicable). Delivery of the Products to the carrier at Seller's shipping point shall constitute Seller's sole shipping obligation and Buyer shall thereafter bear all risks of loss or damage in transit. Unless Buyer specifies mode of shipment, Seller will determine the method of shipment and choice of carrier.
b. Shipment dates are based upon Seller's best judgment, are subject to production limitations and factory schedules, and hence are not guaranteed. Seller shall attempt to notify Buyer of anticipated delivery delays, but Seller shall not be in default due to any such delays.
c. Buyer is solely responsible for notifying the carrier as to any damage to or loss in transit of goods. Buyer shall fully inspect all Products upon delivery and note on the shipping ticket any nonconformity. If a nonconformity relates to incorrect Products being shipped or damaged Products, Buyer shall notify Seller thereof within 48 hours after delivery, and follow Seller’s instructions for replacement.
d. Seller shall not accept claims for shortages unless such claims are received by Seller in writing within forty-eight (48) hours after delivery of goods to Buyer and are accompanied by a reference to Seller's shipping slip number. Seller shall be given a reasonable opportunity to inspect any shipment claimed by Buyer to contain a shortage. Use of goods by Buyer prior to such inspection by Seller shall constitute acceptance of the goods and a waiver of all claims by Buyer.
Excusable Delays. If Seller shall be rendered wholly or partly unable to carry out its obligations under these Terms by reason of an event beyond its reasonable control, including acts of God, labor troubles, production or engineering difficulties, terrorism, war, government acts, or inability to obtain the Products, then the performance of such obligations, insofar as they are affected by such cause, shall be excused during the continuance of the inability so caused.
4. Pricing, Terms of Payment – All prices are shown in the currency of Seller's shipping location and are subject to change without notice.
Prices; Payment Terms; Security Interest. Prices for Purchases:
a. Shall be the purchase price set forth in an Order, plus additional charges and less deductions set forth therein.
b. Do not include transportation, or insurance unless otherwise agreed.
c. Exclude all federal, state, and local taxes, all of which shall be paid by Buyer. Payment shall be made as set forth in the Specific Terms, and if the payment terms are not specified, payment in full shall be made upon receipt of the invoice. Buyer shall have no rights of set-off or other retainage of any kind. Seller may require Buyer to pay the purchase price, or to provide adequate security for payment, prior to delivery of the Purchases. If Seller makes a delivery of any Products before Buyer’s payment in full of the price therefor, then Buyer grants to Seller a purchase money security interest in the Products and authorizes Seller to file Uniform Commercial Code financing statements, amendments, and continuation statements or filings in connection therewith and to take all other actions Seller deems necessary or desirable to perfect, maintain, protect, and foreclose on the security interest granted herein.
d. Unless other pricing arrangements are set forth on the face hereof, all orders shall be priced in accordance with Seller's prices in effect on the date of shipment. Seller reserves the right to revise any price previously quoted without notice to Buyer at any time prior to acceptance by Buyer.
e. Except as set forth on the face hereof, Seller's price does not include any tax or other charge now or hereafter imposed by law or regulation, domestic or foreign, upon any services or any goods or on the production, manufacture, sale, transportation, disposal or delivery thereof. Accordingly, in addition to the price specified herein, Buyer shall pay the amount of any such tax or other charge applicable to this transaction, or, in lieu thereof, Buyer shall provide Seller with appropriate evidence of exemption thereof from the proper governmental authority.
f. Upon approval, credit terms are net 30 days from the invoice date. Past due balances are subject to 1.5% service charge per month (18% per year) after 30 days. If for any reason Seller determines that it has concerns about the financial condition of Buyer, the Buyer's payment history or any other condition that in the Seller's opinion is grounds for refusing to sell to Buyer on credit, Seller may, without notice to Buyer cancel an order, change the payment terms or insist upon pre-payment of any order prior to shipment, or may delay the delivery of the Products until Buyer makes accommodations acceptable to the Seller. In the event Buyer defaults in the payment of the purchase price of any order, Buyer agrees that it will also be responsible to pay all costs, including attorney's fees and other expenses of collection resulting from any such default by Buyer. Buyer shall not allow the creation of any lien or security interest on any Products until Seller’s delivery of the Products and Buyer’s payment in full of the price for the Products
Uses, Warranties, Liabilities And Safety
5. Uses -
a. The Products are intended for metal finishing purposes only, and unless otherwise stated on Product labels or in other literature furnished to the Buyer by Seller, are not to be used for any other purposes, including but not limited to use as or as components in drugs, for human or animal use, or in medical devices, cosmetics, food additives, household chemicals, agricultural or horticultural products, pesticides, or for commercial purposes. Buyer acknowledges that the Products have not been tested by the Seller for safety or efficacy in any particular application unless otherwise stated in Seller's written materials Technical Data Sheet and Safety Data Sheet (TDS/SDS) which are made available to Buyer via www.chemeon.com.
b. INDEMNIFICATION Buyer assumes all risk and liability for loss, damages or injury to persons or to the property of the Buyer or others arising out of the use or presence of the goods purchased hereunder. Buyer agrees to indemnify and hold harmless Seller against any liability, damages, losses, costs, and expenses in connection with any suit or claim, including but not limited to, any loss of use, loss of profits, damages or injuries to person or property arising out of or relating to any use of goods purchased by Buyer herein, whether such claim is made by Buyer, Buyer's customers, or other third parties.
6. Seller's Warranty -
a. Seller warrants that the Products, at the time of delivery to Buyer, shall conform to the specifications for such Products as are set forth in the TDS and SDS Seller's website, or any other written material furnished to Buyer by Seller. THIS WARRANTY IS EXCLUSIVE, AND SELLER MAKES NO OTHER EXPRESS OR IMPLIED WARRANTIES OR REPRESENTATIONS CONCERNING THE PRODUCTS (WHETHER IMPLIED BY STATUTE OR OTHERWISE) AND SPECIFICALLY EXCLUDES SUCH WARRANTIES AND REPRESENTATIONS TO THE FULLEST EXTENT PERMITTED BY LAW. SELLER SPECIFICALLY MAKES NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. SELLER SHALL NOT BE RESPONSIBLE FOR ANY LOSS OR DAMAGE ARISING FROM THE FAILURE OF ANY PRODUCT TO BE SUITABLE FOR ANY PURPOSE WHATSOEVER.
b. Seller also warrants:
The goods delivered hereunder shall at the time of delivery conform to the specifications set forth herein, or if no specifications are set forth, Seller's standard specifications for the goods and that services will be performed in a workman like manner and conform to the standard in the industry generally.
c. Patent disclaimer -
Seller makes no warranty or representation that the use or sale of the Products, whether alone or in combination with other products, will not infringe the claims of any letters patent, trademarks, registered designs or other proprietary rights of any party and Buyer assumes all risks associated therewith.
7. Limitation of Damages -
a. Seller shall not be liable to Buyer for any special, exemplary, indirect, or consequential damages of any type, including loss of profits, arising out of, resulting from a breach of Seller’s obligations hereunder, whether arising out of contract, negligence, strict liability, or otherwise. Seller’s total liability hereunder for all claims shall not exceed the amount paid to Seller by Buyer for the applicable Purchases. Notwithstanding anything else herein contained, in no event shall the aggregate liabilities of Seller to Buyer arising out of or relating to any transaction between them exceed the purchase price paid by Buyer to Seller for the Products at issue. SELLER SHALL NOT IN ANY EVENT BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES OF ANY KIND RESULTING FROM ANY USE OR FAILURE OF THE PRODUCTS, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE INCLUDING, WITHOUT LIMITATION, LIABILITY FOR LOSS OF USE, LOSS OF WORK IN PROGRESS, DOWN TIME, LOSS OF REVENUE OR PROFITS, FAILURE TO REALIZE ANTICIPATED SAVINGS, LOSS OF BUYER PROPERTY OR ANY LIABILITY OF BUYER TO A THIRD PARTY, OR FOR ANY LABOR OR ANY OTHER EXPENSE, DAMAGE OR LOSS OCCASIONED BY SUCH PRODUCT INCLUDING PERSONAL INJURY OR PROPERTY DAMAGE UNLESS SUCH PERSONAL INJURY OR PROPERTY DAMAGE IS CAUSED BY SELLER'S GROSS NEGLIGENCE.
b. In no event shall Seller be liable for: l) goods damaged in shipment or otherwise without fault of Seller; 2) defects in goods due to negligence (other than that of Seller), accident, abuse, improper care or storage, abnormal condition of temperature or moisture; 3) damage to goods which have been tampered with or altered in any way other than by Seller; or 4) expenses incurred by Buyer in attempting to correct any defects in or nonconformance of goods.
c. Warranty shall not cover noncompliance with the specifications that results from (a) use of Products in other than their normal and customary manner or not in compliance with the instruction materials provided by Seller, including but not limited to the Technical Data Sheets (“TDS”) and Safety Data Sheets (“SDS”) applicable to the Products, (b) neglect, abuse, or misuse, (c) improper handling, operation, transport, storage, or environmental conditions, (d) unauthorized alterations, or (e) damage that occurs during shipment.
8. Buyer's Remedy -
a. Seller's sole and exclusive liability to Buyer and Buyer's exclusive remedy with respect to Products proved to Seller's satisfaction to be defective or nonconforming shall be limited, at Seller's option, to 1) replacement of such Chemical Products without charge or refund of the purchase price, upon the return of such Products, at Buyer's expense, in accordance with Seller's instructions or 2) refunding the sales price received by the Seller for such Products.
b. Seller shall have an opportunity of verifying any breach of warranty before Buyer uses the goods. If requested by Seller, Buyer shall return the nonconforming goods to Seller strictly in accordance with Seller's written instructions concerning shipping, handling, insurance and other matters as to which Seller issues instructions.
c. All claims for breach of warranty must be presented to Seller in writing within ten (10) days after delivery to Buyer, regardless of their nature. Failure of Buyer to give such notice shall be deemed to be a waiver by Buyer of all claims with respect to the subject Products.
a. Seller's liability for goods delivered hereunder that are proven by Buyer to be in breach of the applicable warranty shall be limited, at Seller's option, to:
1) replacing such goods, or
2) refunding the sales price received by Seller for such goods. Seller's liability for services performed that are proven by Buyer to be in breach of the applicable warranty shall be limited, at Seller's option, to
3) re- performing the services or
4) refunding the price received by Seller for such services. All claims for breach of warranty must be presented to Seller in writing within ten (10) days after delivery to Buyer of the goods or services.
Failure of Buyer to give such notice shall constitute a waiver by Buyer of all claims in respect thereto. Seller shall have an opportunity of verifying any breach of warranty before Buyer uses the goods. If requested by Seller, Buyer shall return the nonconforming goods to Seller strictly in accordance with Seller's written instructions concerning shipping, handling, insurance and other matters as to which Seller issues instructions. Failure to comply with these provisions shall invalidate any claim by Buyer for breach of warranty.
b. In no event shall Seller be liable for:
l) goods damaged in shipment or otherwise without fault of Seller;
2) defects in goods due to negligence (other than that of Seller), accident, abuse, improper care or storage, abnormal condition of temperature or moisture;
3) damage to goods which have been tampered with or altered in any way other than by Seller; or
4) expenses incurred by Buyer in attempting to correct any defects in or nonconformance of goods.
c. Seller warrants that it complies with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act, as amended, and of the regulations and orders of the United States Department of Labor issued under Section 14 thereof.
d. Recommendations by Seller, if any, covering the use, utilization, properties or qualities of goods delivered hereunder are believed reliable, but Seller makes no warranty whatsoever with respect thereto. Use or application of goods sold by Seller to Buyer hereunder is at the discretion of the Buyer without any liability or obligation on the part of Seller except as expressly warranted by Seller in writing.
e. THESE WARRANTIES ARE EXCLUSIVE AND ARE IN LIEU OF ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR CUSTOM, INCLUDING BUT NOT BY WAY OF LIMITATION, THE IMPLIED WARRANTY OF MERCHANTABILITY AND THE IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
10. Exclusion of Seller's Warranty -
Seller's warranty made in connection with a sale of Products shall not be effective if Seller has determined, in its sole discretion, that Buyer has misused the Products in any manner, has failed to use the Products in accordance with industry standards and practices, or has failed to use the Products in accordance with instructions, if any, furnished by Seller. In no event will Seller be liable for Products damaged in shipment or in any other manner without the fault of Seller, improper care or storage of the Products, or for any expenses incurred by Buyer in testing or attempting to correct any non-conformance of the Products.
11. Buyer's Representations and Indemnity –
a. The Buyer represents and warrants to the Seller that it shall use the Products in accordance with applicable law, rule, regulation and not in violation of any patent or other proprietary rights of any third party.
b. The Buyer expressly represents and warrants that Buyer will properly test, use, manufacture and market any Products purchased from Seller or materials produced with Products purchased by Seller in accordance with the practices of a reasonable person who is an expert in the field and in strict compliance with law.
c. The Buyer agrees to indemnify and hold harmless the Seller, its employees, agents, successors, officers and assigns for and against any and all suits, claims, demands, liabilities, losses, damages and/or expenses, including costs and fees of legal counsel and all other costs of defending any action, that the Seller may incur as a result of any act or failure to act by the Buyer, its officers, agents or employees, successors or assignees, its customers or all other third parties, whether direct or indirect, in connection with the possession or use of any Product sold by Seller or by reason of Buyer's breach of any of its agreements contained herein.
d. Buyer's indemnity shall extend to any claim brought against Seller by a third party alleging that the use of a Product by the Buyer infringes the patent rights, trademarks, intellectual property rights or other proprietary rights of any third party. Buyer shall indemnify, hold harmless, and if requested by Seller, defend, Seller, its affiliates, and its affiliates’ respective successors, assigns, employees, officers, managers, members, partners, contractors, and consultants (as applicable, the “Indemnified Party”) from and against all losses, costs, expenses, liabilities, damages, fines, or penalties, including court costs, reasonable attorneys’ and professionals’ fees and expenses and other litigation or settlement expenses (collectively “Losses”) sustained or incurred by the Indemnified Party, including in connection with a claim, demand, or action (a “Claim”) made by a third party against the Indemnified Party, to the extent arising from (a) failure of Buyer to perform Buyer’s obligations under the Terms, and (b) use of the Products.
e. Buyer shall notify Seller in writing within fifteen (10) days of Buyer's receipt of knowledge of any accident, or incident involving Seller's Products which results in personal injury or damage to property, and Buyer shall fully cooperate with Seller in the investigation and determination of the cause of such accident.
f. Failure to comply with these provisions shall invalidate any claim by Buyer for breach of warranty.
11. Safety -
a. All of the Products offered by Seller are metal finishing chemicals. As such, they should be used or handled only by or under the direct supervisions of technically qualified individuals. The known chemical, physical and toxicological properties of certain Products are stated in the SDS. Seller, therefore, makes no guarantee of results and assumes no liability for injuries, damages or penalties resulting from their use, since the conditions of handling and use are beyond Seller's control.
b. Any suggestions or recommendations for use of any Product are made without warranty and are not to be taken as a license to operate under or to infringe any patent. If any license, permit or approval of any person, entity or governmental or other regulatory authority shall be required for the acquisition, transport or use of the Products by the Buyer the Buyer shall be solely responsible to obtain the same at its own expense.
c. All Products should be handled only by properly trained persons who are familiar with metal finishing process line and laboratory procedures and the potential hazards in handling metal finishing chemicals.
d. The Buyer assumes all responsibility to learn and understand the risks associated with any of the Products and for instructing its employees, agents, customers and any other persons who might reasonably be expected to come into contact with the Products, in techniques for safe handling and use of the Products and of any potential risks to person and property in any way connected with the Products. The Buyer also assumes the responsibility for the safe disposal of all Products in accordance with all applicable laws.
e. Compliance with Laws and Instruction Materials. Buyer shall comply with all Laws in effect from time to time relating to the use, handling, transportation, installation, service, maintenance, cleaning, and disposal of the Products and shall comply with the instruction materials provided by Seller, including but not limited to the TDS and SDS applicable to the Products.
12. PATENT INFRINGEMENT AND TRADEMARK USE
a. Seller agrees to defend Buyer in any suit alleging infringement by Buyer of any U.S. patent based on the manufacture and sale of the goods purchased by Buyer (except goods manufactured or sold by Seller in accordance with Buyer's specifications, requirements or designs) under this agreement and to indemnify Buyer against liability for any such infringement claim, provided that Buyer notify Seller within ten (10) days after receipt by it of any notice of commencement of any suit based upon such alleged infringement and provided further that Seller shall control and remain in control of any and all proceedings taken in defending such suit, including without limitation, utilization solely of counsel of Seller's own selection to defend such suit. The use of goods purchased hereunder in combination with other goods or in the operation of any process is beyond the control of Seller, and Seller shall have no obligation or liability whatsoever in connection with any suit claiming infringement by means of the use of such goods.
b. Buyer acknowledges ownership by Seller of the current product trademark(s) and/or current product trade name(s) appearing on all labels, literature and packing materials used and/or supplied by Seller.
c. Unless otherwise expressly provided herein, no right, license and/or authorization is granted to Buyer to use Seller's name and/or trademark or trade name of Seller in conjunction with Buyer's marketing, promotion, use, distribution, disposition and/or resale of goods purchased hereunder.
d. Neither Buyer nor any of its subsidiaries and/or affiliates shall
1) incorporate under or otherwise make use of the name of Seller and/or any of its subsidiaries or affiliates and/or
2) make use of any trademarks and/or trade names which, in the sole and exclusive discretion of Seller, are the same as and/or confusingly similar to the trademark(s) and/or trade name(s) appearing on such labels, literature and packing materials.
13. Governing Law –
Any dispute concerning these Terms and Conditions of Sale, including as to the legality, interpretation or application shall be governed by the laws of the State of Nevada, without regard to its principles of conflicts of laws. All Buyers agree that any disputes that concern the Products and/or these Terms and Conditions of Sale shall be brought in the state courts of the State of Nevada.
Forum; Waiver of Trial by Jury. The Laws of the State of Nevada, excluding choice of law rules, shall govern any action related to these Terms. Any litigation with respect to the Agreement shall be brought in the courts of the State of Nevada, County of Washoe, and Buyer irrevocably submits to such personal jurisdiction and venue. This provision is mandatory. IT IS MUTUALLY AGREED BY AND BETWEEN THE PARTIES THAT THEY EACH WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING, OR COUNTERCLAIM BROUGHT BY EITHER OF THEM AGAINST THE OTHER PARTY ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THESE TERMS.
Attorney’s Fees. If Seller is required to take any action to enforce these Terms, Seller shall be entitled to reasonable attorneys’, consultants’, expert witnesses’, and other professionals’ fees and costs, costs of collection, and interest at the statutory rate on any unpaid amount from the date due
a. Any delays in or any failure of performance or delivery by Seller shall not constitute default or give rise to any claims for damages if and to the extent caused, directly or indirectly, by acts of God, acts of the Buyer, acts, rules or regulations of governmental authority (civil or military, executive, legislative, judicial or otherwise), strikes or other concerted acts of workers, lockout, labor difficulties, fires, floods, storm, accident, earthquakes, tidal waves, or other natural disasters, epidemics, war, riots, rebellion, sabotage, insurrection, difficulties or delays in public transportation or in public or postal delivery services, car shortages, fuel shortages, inability to obtain from Seller's usual sources of supply, or inability to obtain suitable or sufficient energy, labor, machinery, facilities, supplies or materials, as and when required, failure of any third party to honor its contractual commitments, or by any other circumstances beyond Seller's control whether of a similar or dissimilar nature.
b. When any such circumstance or circumstances exist as set forth above. Seller shall have the right, in its sole discretion, to allocate its available production, deliveries, services, raw materials or other resources among any or all purchasers, as well as among divisions, departments, subsidiaries and affiliates of Seller, upon any such basis as Seller may determine, without any liability whatsoever for any failure to perform which may result therefrom. In any event, Seller may determine not to allocate any of its available production, deliveries, services, raw materials or other resources to Buyer, without any liability whatsoever for any failure to perform which may result therefrom.
15. Miscellaneous –
a. Buyer shall not assign or transfer this Agreement or the benefits thereof without the prior written consent of Seller.
b. This Agreement shall be governed by and construed according to the substantive laws of the State of Nevada.
c. Seller's failure to strictly enforce any term or condition contained in Seller's Terms and Conditions of Sale shall not constitute a waiver of Seller's right to strictly enforce such terms or conditions at any time in the future.
d. If any provision of these Terms and Conditions of Sale shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not be affected or impaired thereby.
e. The paragraph headings contained herein are for convenience only and are not to be considered in interpreting these Terms and Conditions of Sale. These Terms and Conditions of Sale are intended to be binding upon, inure to the benefit of, and be enforceable by, the parties hereto, and their respective heirs, personal representatives, successors and assigns.
f. If Buyer fails to comply with any Term, in addition to all other remedies available to Seller at law or in equity, all of which shall be cumulative, Seller shall have the right to cease supplying Purchases to Buyer and to terminate any Orders, except that Buyer shall be obligated to pay all amounts owed to Seller for Purchases delivered prior to such termination. Failure of Seller to enforce any right it may have against Buyer shall not constitute a waiver of such right or a waiver of any other right of Seller.
a. Buyer shall not assign or transfer this Agreement or the benefits thereof without the prior written consent of Seller.
b. These Terms (including the Specific Terms contained in Orders) constitute the entire agreement between the parties with respect to the subject matter hereof, and supersedes all prior or contemporaneous negotiations and agreements, whether written or oral. These Terms may be amended only by a writing signed by both parties. The rights and obligations of Buyer pursuant to these Terms may not be assigned or delegated, by operation of law or otherwise, without the written consent of Seller. If any of the provisions herein shall for any reason be held void or unenforceable, the remaining provisions shall remain in full force and effect.
Notices. All notices, consents, approvals, change orders, and other communications that are required or permitted to be given under these Terms shall be sufficient in all respects if given in writing and delivered in person or by electronic mail, facsimile, overnight courier, or certified mail, postage prepaid, return receipt requested, to the receiving party at the address shown on the Order, or to such other address as such party may have given to the other by notice pursuant to this Section. Notices, consents, approvals, change orders, and other communications shall be deemed delivered, given, and received on the date of delivery, in the case of personal delivery, electronic mail, or facsimile, or on the delivery or refusal date, as specified on the return receipt in the case of certified mail or on the tracking report in the case of overnight courier.