General Terms and Conditions

NOTICE:
ALL TRANSACTIONS BETWEEN MESUTRONIC INC., A NORTH CAROLINA CORPORATION (“SELLER”) AND THE BUYER (“BUYER”), AND ALL DOCUMENTS PERTAINING TO SUCH TRANSACTIONS, ARE SUBJECT TO AND CONDITIONED UPON THESE TERMS AND CONDITIONS OF SALE AND SERVICE (“TERMS”) AND THESE TERMS ARE INCORPORATED BY REFERENCE INTO AND ARE A PART OF ALL TRANSACTIONS BETWEEN SELLER AND BUYER, INCLUDING ANY SUBSEQUENT OR FUTURE TRANSACTIONS BETWEEN SELLER AND BUYER. NO TERM CONTAINED IN ANY BUYER CORRESPONDENCE OR ANY SALES DOCUMENTS ISSUED BY BUYER, OTHER THAN BUYER’S ACCEPTANCE OF THESE TERMS, SHALL BECOME A PART OF THE TRANSACTION BETWEEN THE PARTIES OR BIND SELLER.

ORDER PROCESS; CANCELLATION; MODIFICATION:
“Sales Documents” include any quotation, proposal, statement of work, service request, order confirmation, order acceptance issued in writing, and invoice of Seller. Buyer’s purchase of Products (defined below) from Seller, and any Services (defined below) will be governed solely by these Terms and any applicable Sales Documents issued by Seller in connection with such Products and Services (collectively, the “Contract”). In no event will Buyer’s terms in any purchase order, statement of work, service request, commercial document, Buyer’s website, communication or other correspondence from Buyer apply to, nor will Buyer’s proposed additional or different terms modify, a Contract unless Seller accepts Buyer’s specific terms in writing signed by an authorized representative of Seller. Seller hereby objects to and rejects any additional or different terms or conditions proposed by Buyer or contained in any purchase order, statement of work, service request, commercial document, Buyer’s website, or other communication from Buyer, regardless of any knowledge Seller may have of such terms, and such terms will not bind Seller or be applicable to the transaction (even if Buyer’s order is referenced in the Sales Documents). If any of these Terms conflict with the Sales Documents, the specific terms in the applicable Sales Documents will prevail over these Terms to the extent of such conflict. Seller may change a Sales Document to correct mathematical or clerical errors.

All sales of products, spare parts and any other goods sold by Seller (individually, “Product” and collectively, the “Products”) and services performed by Seller (“Services”) are subject to final written acceptance in North Carolina by Seller and no orders are binding on Seller until so accepted. All sales of Products and Services are contracts entered into in North Carolina. Seller shall, at any time and without notice to Buyer, have the right to make any changes to the Products or Services which are necessary to comply with any and all applicable Federal, state, foreign and/or local laws, orders, codes, rules, regulations, directives, restrictions, and limitations (“Laws”) or which do not materially affect the nature or quality of the Products or Services.

Seller may cancel any purchase order or release thereunder, or terminate a Contract relating to the purchase of Products or provision of Services upon reasonable prior written notice to Buyer. Buyer may not cancel or change a Contract except with the prior written consent of Seller. In such event, Buyer shall pay any cancellation or modification charges and all costs incurred by Seller in connection with the cancellation or modification, as applicable.

Any purchase order submitted by Buyer must clearly state the following: (i) identification/customer reference; (ii) Product quantity desired; (iii) Price (as referenced in Seller’s Sales Documents, but subject to confirmation by Seller); (iv) method of payment; (v) desired date of delivery; (vi) purchase order number; and (vii) Buyer’s delivery address (collectively, a “Buyer’s Order”). Seller will transmit an e-mail to Buyer to confirm Seller’s registration and acceptance of Buyer’s Order, which will confirm the delivery date, price, payment conditions and quantities of Buyer’s Order (the “Order Confirmation”). It is Buyer’s responsibility to confirm the accuracy of all the Order Confirmation’s terms, and Buyer has twenty-four (24) hours after receipt of Order Confirmation to alert Seller of any divergence from Buyer’s Order’s specifications, or the Terms. Following this twenty-four (24) hour period, all Order Confirmation terms are considered final. Should Buyer not receive an Order Confirmation from Seller within twenty-four (24) hours of Buyer’s Order submission, Buyer should contact Seller to confirm any errors in Buyer’s Order.

QUOTATIONS:
UNLESS OTHERWISE STATED IN THE SALES DOCUMENTS, QUOTATIONS ARE ONLY VALID IF ISSUED IN WRITING BY SELLER AND FOR UP TO 60 DAYS FROM THE DATE OF THE QUOTATION. QUOTATIONS FOR SPARE PARTS ARE ONLY VALID IF ISSUED IN WRITING BY SELLER AND FOR UP TO 30 DAYS FROM THE DATE OF THE QUOTATION. ALL QUOTATIONS ARE SUBJECT TO CHANGE OR WITHDRAWAL WITHOUT PRIOR NOTICE TO BUYER AT ANY TIME.

PRICE; PAYMENT:
All prices for Products and Services are in U.S. dollars and will be as stated in writing by Seller in its Sales Documents, and are subject to change at any time without notice prior to Buyer’s acceptance. If no price has been stated in the Sales Documents, the price will be Seller’s standard price in its catalogs or price lists in effect at the time of delivery, or performance, as the case may be, and as increased to account for costs of changes or modifications to the Products or Services for the particular Contract. Unless expressly stated otherwise in the Sales Documents, Buyer will also reimburse Seller for all reasonable travel and out-of-pocket expenses incurred by Seller in connection with the performance of Services.

Unless otherwise stated in the Sales Documents, prices for Products are Ex-Works (EXW – Incoterms 2020), and do not include packing, assembly, set up, disassembly, handling, shipping and transportation, training, testing, and storage costs. The prices for the Products and/or Services do not include any sales, use or other taxes or governmental charges, nor any tariffs, duties or assessment, arising out of or related to Products, Services or their respective purchase and sale which may be imposed by any governmental authority, all of which will be the obligation of, and paid by, Buyer. If Seller pays any such tax, duty or assessment, or shipping and handling fee, Buyer will reimburse Seller in accordance with the terms of Section 3(d) below. Buyer is responsible for obtaining and providing to Seller any certificate of exemption or similar document required to exempt any sale from sales, use or similar tax liability.

The prices for the Products are based on the approximate delivery times and schedules in the Sales Documents. Buyer agrees that Seller may (unless prohibited in the Sales Documents) increase the price to account for (i) any increases in costs to manufacture the Products, and (ii) any increases in import duties or shipping and transportation costs (including shipping, insurance, demurrage and detention charges).

Buyer shall pay the price prior to delivery of Products or performance of Services. Buyer shall timely pay all amounts due in full, without deduction or setoff, net without discounts, regardless of any dispute or controversy that may arise between Buyer and Seller. Any required down payment or other prepayment is nonrefundable but will be applied to the purchase price. Buyer shall make all payments under a Contract by [wire or bank transfer], or such other payment method as Seller may state from time to time and in U.S. dollars. Buyer is responsible for all credit card fees, foreign exchange, wire transfer and other bank fees. The date of payment will be the date Seller receives payment in full.

If at any time, in its sole discretion, Seller has any doubt or concern as to Buyer’s financial standing, solvency, creditworthiness or ability to perform its obligations, Seller may decline to make shipments, discontinue performance of Services, and terminate a Contract (in whole or in part), except upon receipt of a deposit or other satisfactory security or advance payment shipment; Seller may also, as applicable, (i) demand pre-payment for all Products and/or Services, and (ii) demand immediate payment of all outstanding (and not-yet-due) invoices. Buyer shall not withhold, offset or recoup any amounts it owes to Seller under a transaction, Contract, or otherwise against any other amount Buyer claims Seller owes to it, regardless of any dispute that may arise between the parties. Seller may, in its sole discretion, apply payments by Buyer to the oldest invoice first and in the following order: accrued costs, accrued interest, price for Products or Services.

If Buyer fails to make any payments as and when due, (i) interest will accrue from the payment due date until payment is received in full at the lower of one and one-half percent (1.5%) per month or the maximum allowed by applicable law; and (ii) Seller may take any or all of the following actions: (1) suspend performance under the applicable Contract or any other Contract with Buyer, (2) terminate the applicable Contract for default or any other Contract with Buyer, (3) require Buyer to pay the full Contract price and any interest, fees, taxes, or assessments and other charges immediately, and (4) take any other actions or pursue any other rights or remedies. To the extent allowed by applicable law, Buyer will further reimburse Seller for all costs incurred in collecting any late payments or overdue amounts, including attorneys’ fees and expenses. Failure by Seller to charge interest on late payments or to exercise its other rights and remedies will not be construed as a waiver of any other legal or equitable remedies.

DELIVERY:
All deliveries are made Ex-Works (EXW – Incoterms 2020) Seller’s facility in ______, or as otherwise stated in the Sales Documents (“Delivery Point”). Unless expressly stated otherwise in Seller’s Sales Documents, Buyer will take delivery of Products when Products have been made available at or delivered to the Delivery Point. Delivery shall be deemed to have been completed at 9:00AM EST on the [third] business day following the day on which Seller notified Buyer that the Products were ready for pickup at the Delivery Point, unless Buyer acquires physical or constructive possession of the Products prior to such previously stated time, wherein such Products shall be considered delivered as of the time Customer acquires physical or constructive possession (“Delivery Date”). Unless expressly stated otherwise in Seller’s Sales Documents, all risk of loss of Products shall pass to Buyer when Seller delivers the Products EXW (Ex-Works Incoterms 2020) at the Delivery Point stated in the Sales Documents. Delivery and performance are conditional on the timely receipt by Seller of documents necessary for the completion of the purchase order and any required down payments or periodic payments.

Unless expressly stated otherwise in Seller’s Sales Documents, the prices do not include any transportation, insurance, installation, training setup, storage or packaging costs and Buyer is responsible for all such costs. Seller may make partial or early deliveries. Any shipping or delivery schedule, forecast or commitment is only an estimate and Seller will not be liable for any delay or failure to deliver all or any part of any order for any reason.

If Buyer does not take delivery of the Products at the Delivery Point, Seller may, at its sole discretion, store the Products at Buyer’s sole risk of loss until Buyer picks the Products up, and Buyer shall be liable for all related costs and expenses (including storage and insurance). All Product deliveries from Seller to Buyer are subject to and conditioned on Seller’s receipt of Products or materials from its suppliers. Should the fulfilment of the Contract be delayed or become impossible due to the delay or failure of Seller’s supplier(s), Buyer shall not be entitled to a claim against Seller for damages or for any other reasons.

SERVICES; INSTALLATION:
FOR THE AVOIDANCE OF DOUBT, ANY SERVICES SPECIFIED IN THE SALES DOCUMENTS ARE PART OF BUT DO NOT LIMIT THE TERM SERVICES AS THAT TERM IS DEFINED IN SECTION 1(B) ABOVE AND NOTHING IN THIS SECTION 5 WILL LIMIT THE APPLICATION OF ALL PROVISIONS RELATED TO SERVICES IN THESE TERMS. BEFORE THE DATE ON WHICH ANY PRODUCT INSTALLATION (IF ANY) IS TO START, BUYER SHALL ENSURE THAT ANY AND ALL CONSTRUCTION AND PREPARATORY WORK IS COMPLETED (INCLUDING ALL FOUNDATIONS ARE COMPLETELY DRY AND SET, OTHER STRUCTURAL ELEMENTS NECESSARY FOR THE INSTALLATION OF THE PRODUCTS ARE COMPLETE, AND ELECTRICAL CONNECTIONS AND ASPIRATION/VACUUM SYSTEMS ARE READY) AND ALL REQUIREMENTS OF SELLER ARE MET. BUYER SHALL ENSURE THAT BUYER AND ITS AFFILIATES, SUPPLIERS, CONTRACTORS AND AGENTS, OBTAIN, MAINTAIN AND COMPLY WITH ALL NECESSARY REGISTRATIONS, LICENSES, PERMITS, GOVERNMENTAL APPROVALS AND CONSENTS AND ALL APPLICABLE LAWS.

ACCEPTANCE:
BUYER SHALL INSPECT ALL PRODUCTS AND SERVICES IMMEDIATELY UPON THEIR DELIVERY OR PERFORMANCE, AND PRIOR TO USE OR RESALE. IMMEDIATELY AND NO LATER THAN TEN (10) DAYS AFTER DELIVERY OF A PRODUCT OR COMPLETION OF A SERVICE, BUYER MUST GIVE WRITTEN NOTICE TO SELLER OF ANY CLAIM BUYER MAKES BASED UPON ANY ALLEGED SHORTAGE, DEFECT OR DISCREPANCY OF PRODUCTS SOLD OR SERVICES PROVIDED, BASED UPON THE CONDITION, GRADE, PATENT DEFECTS IN OR QUANTITY OF PRODUCTS, AND SUCH NOTICE MUST INDICATE THE BASIS OF THE CLAIM IN DETAIL, STATE THE INVOICE NUMBER, INVOICE DATE, AND INFORMATION, SUCH AS A SERIAL NUMBER, ON THE PRODUCT ITSELF OR THE PRODUCT LABEL OR PACKAGING. BUYER’S FAILURE TO COMPLY WITHIN THE TIME SPECIFIED IN THIS SECTION 6, CONSTITUTES BUYER’S IRREVOCABLE ACCEPTANCE OF PRODUCTS DELIVERED OR SERVICES PERFORMED AND WILL BIND BUYER TO PAY TO SELLER THE FULL PRICE OF SUCH PRODUCTS OR SERVICES. PRODUCTS SOLD WILL NOT BE RETURNED WITHOUT SELLER’S PRIOR WRITTEN CONSENT, AND THEN ONLY DDP (INCOTERMS 2020) SELLER’S FACILITY LOCATED IN [__________], PLUS A RESTOCKING FEE EQUAL TO 15% OF THE CONTRACT PRICE OF THE PRODUCTS RETURNED, AND IN ACCORDANCE WITH SELLER’S THEN CURRENT RETURN POLICIES (FOR EXAMPLE, BUYER MAY BE REQUIRED TO INCLUDE THE ORIGINAL PACKAGING SLIP). BUYER SHALL PRE-PAY ANY OTHER TRANSPORTATION CHARGES FOR ANY AUTHORIZED RETURNS OF PRODUCTS. BUYER SHALL FOLLOW ANY INSTRUCTIONS, RECOMMENDATIONS AND LIMITATIONS THAT SELLER GIVES WITH RESPECT TO SETUP, OPERATION, MAINTENANCE, REPAIR AND SERVICING OF PRODUCTS. BUYER ASSUMES ALL RISK OF INJURY TO PERSONS AND PROPERTY ARISING OUT OF OR RELATED TO ITS FAILURE TO FOLLOW INSTRUCTIONS, RECOMMENDATIONS AND LIMITATIONS OF SELLER AND ALL RESULTING PROBLEMS WITH THE OPERATION OF THE PRODUCTS. IF SELLER HAS AGREED IN A WRITTEN STATEMENT OF WORK TO PROVIDE ASSISTANCE TO BUYER IN CONNECTION WITH BUYER’S USE OF PRODUCTS OR FOR OTHER RELATED SERVICES, THEN ALL TERMS OF THE STATEMENT OF WORK WILL APPLY.

LIMITED WARRANTY.
Subject to the provisions in these Terms and in the Sales Documents: (i) for Products not manufactured by Seller, Seller makes no warranty as to such Products other than that such Products will meet the manufacturer’s specifications in Sales Documents on the Delivery Date, and that Seller shall only assign to Buyer, to the extend Seller is authorized by the manufacturer to do so, all manufacturer’s warranties as to those Products; (ii) for Products manufactured by Seller, Seller warrants that when such Products are delivered to Buyer, Products will materially comply with the specifications to which Seller and Buyer have agreed to in writing in the Sales Documents; and (iii) when Services are performed, Services will have been performed in a workmanlike manner. The warranties provided in this Section 7 are collectively the “Limited Warranty.” The Limited Warranty shall expire: (1) for Products – twelve (12) months from the Delivery Date (or, for Products that have been shipped, from the Shipping Date), or XXXX hours of operation, whichever occurs first; and (2) for Services – five (5) days after the completion of such Services (collectively, the “Warranty Period”). The Limited Warranty is conditioned upon Buyer following the claims process outlined in Section 7, which Seller may change from time to time. Unless expressly stated otherwise in the Sales Documents, the Limited Warranty extends to Buyer only, and not to any resale customer of Buyer or end consumer, and is non-transferable. Buyer is solely responsible for proper selection of Products and Services as well as for their intended use, application and processing, alone and in conjunction with other products, and Buyer has tested Products or otherwise determined their suitability for Buyer’s intended use. As such, Buyer may not rely on Seller to ensure that the Services performed or Products purchased will meet any standards or specifications.

From time to time, Seller or its affiliates may provide information to Buyer regarding the use or application of the Products. Buyer acknowledges and agrees that any depictions, statements, claims, advertising, technical advice, trials, projections, diagrams, designs, samples, drawings, illustrations, and other descriptions or other information from Seller or its affiliates, applicable to Products, Services or a Contract are provided on an “AS IS” basis and do not constitute any specifications, representations, warranties, or guarantees, implicitly or explicitly.

No employee, dealer, distributor, sales representative, or any other person or entity is authorized to offer any different or additional warranties or remedies, or to change the Limited Warranty, without the signature of an authorized officer of Seller. EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY PROVIDED IN THIS SECTION 7, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES, STATUTORY OR OTHERWISE, REGARDING OR RELATING TO PRODUCTS, SERVICES OR ANY CONTRACT, AND SELLER DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS AND IMPLIED, WRITTEN OR ORAL, WITH RESPECT TO PRODUCTS AND SERVICES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.

LIMITED WARRANTY EXCLUSIONS:
THE LIMITED WARRANTY DOES NOT COVER: (A) ACCESSORIES OR PERIPHERALS NOT MANUFACTURED BY SELLER, WHICH WILL BE SUBJECT ONLY TO ANY TRANSFERABLE WARRANTY THE MANUFACTURER OF SUCH PRODUCT MAY ISSUE; (B) DAMAGE TO PRODUCTS DURING OR AFTER DELIVERY; (C) DAMAGE CAUSED BY NORMAL WEAR AND TEAR; (D) USER ERROR, INCLUDING UNSUITABLE OR IMPROPER USE; (E) USE UNDER CIRCUMSTANCES OR RESALE FOR USES EXCEEDING SELLER’S SPECIFICATIONS OR LIMITATIONS OR CONTRARY TO ANY INSTRUCTIONS OR INFORMATION FROM SELLER; (F) UNAUTHORIZED USE, OR UNAUTHORIZED OR IMPROPER INSTALLATION, REPAIR, MODIFICATION OR ALTERATION; (G) IMPROPER STORAGE; (H) DEFECTS OR FAILURES OF PRODUCTS SOLD OR SERVICES PERFORMED ARISING FROM, IN WHOLE OR PART, BUYER’S INSTRUCTIONS, INFORMATION, DESIGN, PLANS OR OTHER NON-SELLER SPECIFICATIONS; (I) FAULTY OR NEGLIGENT TREATMENT, INCLUDING FAILURE TO LUBRICATE; (J) ANY WARRANTIES OR REPRESENTATIONS GIVEN BY BUYER ON RESALE OF PRODUCTS OR USE OF SERVICES; (K) REPACKAGING OR REBRANDING; (L) MODIFICATION OR ALTERATION OF PRODUCTS OR SERVICES; (M) ABUSE OR ACCIDENTS; (N) FAULTY ASSEMBLY OR COMMISSIONING BY BUYER OR THIRD PARTIES RELATED TO BUYER; (O) IMPROPER MAINTENANCE, INCLUDING FAILURE TO LUBRICATE, UNAUTHORIZED REPAIR OR ALTERATION; (P) UNSUITABLE OPERATING EQUIPMENT OR MEDIA; (Q) CHEMICAL, ELECTROCHEMICAL OR ELECTRICAL INFLUENCES; (R) INAPPROPRIATE OR INSUFFICIENT SITE PREPARATION WORK; (S) USE OF UNSUITABLE WORKING MATERIAL; OR (T) DAMAGE CAUSED BY NATURAL CALAMITIES . THE LIMITED WARRANTY ON THE PRODUCTS IS SUBJECT TO MARGINAL, TECHNICALLY UNAVOIDABLE DISCREPANCIES IN QUALITY, COLOR, TOUCH, SIZE, WEIGHT OR DESIGN, AND DOES NOT CONFER ANY RIGHT OF BUYER TO MAKE A WARRANTY CLAIM.

BUYER’S LIMITED WARRANTY CLAIMS:
BUYER MUST GIVE SELLER DETAILED WRITTEN NOTICE OF ANY PRODUCTS OR SERVICES WHICH BUYER ALLEGES DO NOT CONFORM TO THE LIMITED WARRANTY, STATING THE ALLEGED NON-CONFORMITIES (EACH, A “WARRANTY CLAIM”). ANY WARRANTY CLAIM MUST BE MADE WITHIN SEVEN (7) DAYS AFTER BUYER IS AWARE OF THE ALLEGED NON-CONFORMITY AND, IN ANY EVENT, WITHIN THE WARRANTY PERIOD. THE LIMITED WARRANTY EXPIRES WHEN, AND NO CLAIMS MAY BE MADE AFTER, THE WARRANTY PERIOD ENDS. AT SELLER’S REQUEST, BUYER WILL ALLOW SELLER ACCESS TO THE PRODUCTS TO INSPECT THE PRODUCTS OR SERVICES AND EVALUATE THE ALLEGED NON-CONFORMITY AND, UPON REQUEST OF SELLER, WILL RETURN, AT BUYER’S EXPENSE, ANY ALLEGED NON-CONFORMING PRODUCT TO A LOCATION DESIGNATED BY SELLER FOR SELLER TO INSPECT THE PRODUCTS AND EVALUATE THE ALLEGED NON-CONFORMITY. FOR ANY PRODUCTS THAT SELLER DETERMINES DO NOT CONFORM TO THE LIMITED WARRANTY, SELLER’S SOLE LIABILITY AND OBLIGATION, AND BUYER’S SOLE AND EXCLUSIVE REMEDY, WILL BE, AT SELLER’S CHOICE, IN ITS SOLE DISCRETION, TO REPAIR OR REPLACE SUCH NON-CONFORMING PRODUCT, OR TO REFUND THE PURCHASE PRICE FOR SUCH NON-CONFORMING PRODUCT. FOR ANY SERVICES WHICH SELLER DETERMINES DO NOT CONFORM TO THE LIMITED WARRANTY, SELLER’S SOLE LIABILITY AND OBLIGATION, AND BUYER’S SOLE AND EXCLUSIVE REMEDY, WILL BE, AT SELLER’S CHOICE, TO CORRECT OR REPEAT SUCH SERVICES OR TO REFUND THE AMOUNT PAID FOR SUCH NON-CONFORMING SERVICES. THIS LIMITED WARRANTY DOES NOT COVER ANY ALLEGEDLY DEFECTIVE PRODUCTS OR SERVICES IF SELLER IS NOT PERMITTED TO INSPECT SUCH PRODUCTS OR SERVICES. IN THE EVENT SELLER DETERMINES THAT ANY PRODUCTS OR SERVICES ARE NOT COVERED BY THIS LIMITED WARRANTY, BUYER SHALL PAY ALL OF SELLER’S EXPENSES FOR INSPECTION, HANDLING, PERFORMANCE, REPAIR AND REPLACEMENT.

LIMITATION OF LIABILITY; EXCLUSION OF DAMAGES:
SELLER’S MAXIMUM AGGREGATE LIABILITY UNDER, ARISING OUT OF OR RELATING TO A CONTRACT, OR PRODUCTS, OR SERVICES, OR THE USE (OR INABILITY TO USE) ANY PRODUCTS OR SERVICES, WHETHER IN WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, WILL NOT EXCEED THE AMOUNT BUYER PAID TO SELLER FOR THE PARTICULAR PRODUCTS OR SERVICES AT ISSUE.

IN NO EVENT WILL SELLER OR SELLER’S AFFILIATES BE RESPONSIBLE FOR ANY LOSS, LIABILITY, INJURY OR DAMAGE ARISING OUT OF OR RELATING TO (I) BUYER’S DETERMINATION AS TO THE SUITABILITY OR FITNESS OF THE PRODUCTS OR SERVICES FOR A PARTICULAR PURPOSE, (II) THE USE OR APPLICATION OF THE PRODUCTS OR SERVICES, ALONE OR IN CONJUNCTION WITH OTHER PRODUCTS OR DEVICES, OR (III) THE NEGLIGENCE OR WILLFUL MISCONDUCT OF BUYER, OR (IV) FROM DEFECTS OR DEFICIENCIES IN BUYER’S OTHER EQUIPMENT.

IN NO EVENT WILL SELLER OR SELLER’S AFFILIATES BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, WHETHER ARISING FROM THE SALE OF THE PRODUCTS, OR PROVIDING OF SERVICES, THE INSTALLATION AND/OR SETUP OF ANY PRODUCTS, ANY TRAINING, ANY SERVICES, ANY DEFECT IN THE PRODUCTS OR SERVICES, ANY NON-CONFORMITY WITH WARRANTIES, ANY USE OR INABILITY TO USE THE PRODUCTS, OR OTHERWISE, REGARDLESS OF THE THEORY OF RECOVERY, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

IN NO EVENT WILL SELLER OR SELLER’S AFFILIATES BE LIABLE FOR DAMAGES TO GOODS OR MATERIALS TREATED, COVERED, PROCESSED IN OR HANDLED WITH THE PRODUCTS OR SERVICES. THESE TERMS CONTAIN BUYER’S SOLE AND EXCLUSIVE REMEDIES RELATING TO THESE TERMS, A BREACH OF THESE TERMS, THE SALES DOCUMENTS, OR THE PRODUCTS, OR SERVICES, REGARDLESS OF THE THEORY OF RECOVERY.

INSURANCE; INDEMNITY:
BUYER WILL MAINTAIN WITH A NATIONALLY RECOGNIZED INSURANCE COMPANY COMMERCIAL GENERAL LIABILITY, PERSONAL INJURY, AND PROPERTY DAMAGE INSURANCE POLICIES, INCLUDING WRONGFUL DEATH COVERAGE, IN AN AMOUNT REASONABLE IN THE INDUSTRY. BUYER WILL REQUIRE ITS INSURER(S) TO WAIVE ALL RIGHTS OF SUBROGATION AGAINST SELLER,

ITS AFFILIATES AND THEIR INSURERS. UPON REQUEST BY SELLER FROM TIME TO TIME, BUYER WILL DELIVER TO SELLER A CURRENT CERTIFICATE OF INSURANCE. BUYER AGREES TO INDEMNIFY AND HOLD HARMLESS SELLER AND ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, FROM AND AGAINST ANY AND ALL THIRD PARTY CLAIMS, ACTIONS, SUITS, DAMAGES, LIABILITIES, COSTS, OBLIGATIONS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES AND EXPENSES) ARISING OUT OF OR RELATING TO: (I) BUYER, ITS EMPLOYEES, AGENTS, OR CUSTOMERS’ SELECTION, INSTALLATION, SETUP, USE OF, INCORPORATION OF, MODIFICATION OF, OR APPLICATION OF THE PRODUCTS ALONE OR IN CONJUNCTION WITH OTHER PRODUCTS, OR SERVICES; (II) ANY PROCESSING OR MODIFICATION OF PRODUCTS IN ANY MANNER BY BUYER, ITS EMPLOYEES, AGENTS, OR CUSTOMERS; (III) CLAIMS REGARDING WARNINGS OR FAILURE TO WARN OF DANGERS RELATED TO PRODUCTS; (IV) ANY VIOLATION OR FAILURE TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS, INCLUDING THOSE PERTAINING TO HEALTH AND/OR SAFETY; (V) ANY INTENTIONAL OR NEGLIGENT ACT, OR MISREPRESENTATION BY BUYER, ITS EMPLOYEES OR AGENTS; (VI) ANY BREACH OF WARRANTY OR MISREPRESENTATION (EXPRESS OR IMPLIED) MADE BY BUYER, ITS EMPLOYEES OR AGENTS; (VII) ANY VIOLATION, MISAPPROPRIATION, OR INFRINGEMENT OF ANY PATENT, TRADEMARK, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY RIGHTS OF ANY PERSON OR ENTITY ARISING OUT OF OR RELATED TO COMPLIANCE WITH BUYER’S DESIGN, SPECIFICATIONS, DRAWINGS, SAMPLES, MODELS, OR INSTRUCTIONS OR BUYER’S USE OF A PRODUCT WITH OTHER GOODS; (VIII) USE OF A PRODUCT OR SERVICES INCONSISTENT WITH OR EXCEEDING SELLER’S SPECIFICATIONS, LIMITATIONS OR RECOMMENDATIONS; (IX) ANY BREACH BY BUYER OF ANY TERMS OF A CONTRACT; (X) ANY PERSONAL INJURY OR PROPERTY DAMAGE ARISING OUT OF BUYER’S OR ITS PERSONNEL’S ACTS OR OMISSIONS, (XI) UNAUTHORIZED REPAIR OR ALTERATION, OR (XII) BUYER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT. AT SELLER’S REQUEST, BUYER SHALL ALSO DEFEND SELLER AND ITS AFFILIATES, AT BUYER’S EXPENSE, AGAINST ANY SUCH CLAIM MADE AGAINST SELLER OR ITS AFFILIATES.

TOOLING/MOLDS/DIES:
ALL MATERIAL, EQUIPMENT, FACILITIES AND SPECIAL TOOLING (INCLUDING TOOLS, JIGS, DIES, FIXTURES, MOLDS, PATTERNS, SPECIAL TAPS, SPECIAL GAUGES, SPECIAL TEST EQUIPMENT AND MANUFACTURING AIDS AND REPLACEMENTS THEREOF) USED IN THE MANUFACTURE OF THE PRODUCTS OR THE PERFORMANCE OF SERVICES HEREUNDER WILL REMAIN THE PROPERTY OF SELLER. ANY MATERIAL, TOOLING OR EQUIPMENT FURNISHED TO SELLER BY BUYER WILL REMAIN THE PROPERTY OF BUYER WITH TITLE TO AND RIGHT OF POSSESSION REMAINING IN BUYER.

CONFIDENTIALITY, INTELLECTUAL PROPERTY; NO LICENSE:
ALL INFORMATION PROVIDED BY SELLER OR ITS AFFILIATES TO BUYER SHALL BE KEPT CONFIDENTIAL AND NOT DISCLOSED BY BUYER TO ANY PERSON UNLESS THE DISCLOSURE IS AGREED TO IN WRITING BY SELLER OR SUCH INFORMATION IS OTHERWISE GENERALLY AVAILABLE TO THE PUBLIC. SELLER RETAINS OWNERSHIP AND CONTROL OVER ALL INTELLECTUAL PROPERTY INCLUDING DRAWINGS, DESIGNS, SPECIFICATIONS, INVENTIONS, DEVICES, DEVELOPMENTS, PROCESSES, PATENTS, TRADEMARKS, COPYRIGHTS, AND KNOWHOW APPLICABLE TO OR ARISING OUT OF THE PRODUCTS AND SERVICES (“INTELLECTUAL PROPERTY”), AS WELL AS THE EXCLUSIVE RIGHT TO MANUFACTURE THE PRODUCTS. NO LICENSE IS GRANTED OR IMPLIED BY THESE TERMS, AND BUYER SHALL NOT NAME OR DESIGNATE ANY SELLER PRODUCT INFORMATION OR PRODUCTS IN ANY PROCESS PATENT APPLICATION. BUYER HAS NO CLAIM TO, NOR OWNERSHIP INTEREST IN, ANY INTELLECTUAL PROPERTY, AND SUCH INFORMATION, IN WHATEVER FORM AND ANY COPIES THEREOF, SHALL BE PROMPTLY RETURNED TO SELLER UPON REQUEST FROM SELLER. BUYER ACKNOWLEDGES THAT NO LICENSE OR RIGHTS OF ANY SORT ARE GRANTED TO BUYER HEREUNDER IN RESPECT OF ANY INTELLECTUAL PROPERTY, OTHER THAN THE LIMITED RIGHT TO USE SELLER’S PRODUCTS OR RECEIVE THE SERVICES PURCHASED FROM SELLER. BUYER SHALL NOT USE, DIRECTLY OR INDIRECTLY, IN WHOLE OR IN PART, SELLER’S NAME, OR ANY OTHER TRADEMARK OR TRADE NAME THAT IS NOW OR MAY HEREAFTER BE OWNED BY SELLER (COLLECTIVELY THE “TRADEMARKS”), AS PART OF BUYER’S CORPORATE OR BUSINESS NAME, OR IN ANY WAY IN CONNECTION WITH BUYER’S BUSINESS, EXCEPT IN A MANNER AND TO THE EXTENT AUTHORIZED BY SELLER IN WRITING. BUYER HEREBY ACKNOWLEDGES SELLER’S OWNERSHIP OF THE TRADEMARKS AND THE GOODWILL ASSOCIATED THEREWITH. BUYER SHALL NOT INFRINGE UPON, HARM OR CONTEST THE VALIDITY OF ANY TRADEMARKS. BUYER SHALL BE ENTITLED TO USE THE TRADEMARKS ONLY PURSUANT TO THE TERMS OF THE CONTRACT.

AUDIT:
UNLESS AGREED TO IN WRITING BY AN OFFICER OF SELLER, NEITHER BUYER NOR ANY BUYER REPRESENTATIVE, MAY EXAMINE OR AUDIT SELLER’S FACILITIES, OPERATIONS, BOOKS OR RECORDS OF ANY KIND, OR ANY OTHER DATA THAT SELLER, IN ITS SOLE DISCRETION, CONSIDERS CONFIDENTIAL OR PROPRIETARY. IF SUCH REQUEST IS GRANTED BY SELLER, THEN THE AUDIT SHALL BE CONDUCTED AT BUYER’S SOLE EXPENSE AND SELLER SHALL EXCLUSIVELY CONTROL THE CONDITIONS, SCOPE AND PARAMETERS OF SUCH AUDIT, INCLUDING THE TIME AND LOCATION.

SOFTWARE:
“SOFTWARE” MEANS ALL SOFTWARE (INCLUDING ANY BUNDLED OR STAND-ALONE SOFTWARE, OPERATING SYSTEMS, AND/OR DOWNLOADABLE SOFTWARE) PROVIDED WITH THE PRODUCTS. BUYER SHALL ENSURE THAT THE SOFTWARE IS SUITABLE AND APPROPRIATE FOR BUYER’S USES AND IS COMPATIBLE WITH BUYER’S SYSTEMS. BUYER SHALL ONLY USE THE SOFTWARE IN ACCORDANCE WITH THESE TERMS, ANY LICENSE AGREEMENT WHICH SELLER MAY REQUIRE, AND ANY APPLICABLE COPYRIGHT, TRADEMARK, PATENT, AND OTHER INTELLECTUAL PROPERTY LAWS. BUYER SHALL USE THE SOFTWARE SOLELY IN CONNECTION WITH THE AUTHORIZED USE OF THE CORRESPONDING PRODUCT OR HARDWARE PRODUCT.

BUYER SHALL HAVE NO OTHER RIGHTS WITH RESPECT TO THE SOFTWARE AND IN NO EVENT DOES BUYER RECEIVE THE RIGHT TO RECEIVE, ACCESS OR USE ANY SOURCE CODE.

TERMINATION OR SUSPENSION:
WITHOUT LIMITING SELLER’S OTHER RIGHTS AND REMEDIES, AND WITHOUT ANY LIABILITY TO BUYER, SELLER MAY SUSPEND, DELAY OR TERMINATE ITS PERFORMANCE OR TERMINATE A CONTRACT, IF: (A) BUYER FAILS TO PERFORM OR OBSERVE ANY OF ITS OBLIGATIONS UNDER A CONTRACT BETWEEN SELLER AND BUYER, INCLUDING PAYMENT OF ANY PURCHASE PRICE, FEES, OR OTHER AMOUNTS; (B) THERE IS A CHANGE IN THE CONTROL OR MANAGEMENT OF BUYER; (C) BUYER CEASES TO CONDUCT ITS OPERATION IN THE NORMAL COURSE OF BUSINESS; (D) BUYER BECOMES INSOLVENT OR FILES FOR BANKRUPTCY; (E) SELLER DEEMS BUYER’S CREDIT UNSATISFACTORY FOR ANY REASON; (F) A FORCE MAJEURE EVENT OCCURS; OR (G) SELLER REASONABLY BELIEVES THAT ITS PERFORMANCE MAY VIOLATE APPLICABLE LAWS. IN ADDITION TO OTHER PROVISIONS IN THESE TERMS, SELLER SHALL NOT BE IN BREACH UNLESS (I) SUCH BREACH IS MATERIAL AND (II) BUYER GIVES SELLER PRIOR WRITTEN NOTICE STATING IN REASONABLE DETAIL THE ALLEGED BREACH AND SELLER HAS FAILED TO CURE SUCH BREACH WITHIN THE LONGER OF THIRTY (30) DAYS FROM SUCH NOTICE TO CURE OR, IF SUCH BREACH CANNOT BE CURED WITHIN THIRTY (30) DAYS, SUCH LONGER TIME AS IS REASONABLY NECESSARY SO LONG AS SELLER COMMENCES THE CURE WITHIN THIRTY (30) DAYS AFTER RECEIPT OF BUYER’S NOTICE.

EXPORT CONTROLS:
ALL SALES OF PRODUCTS AND PROVISIONS OF SERVICES ARE SUBJECT TO AND CONDITIONED UPON SELLER OR ITS AFFILIATES OBTAINING ANY NECESSARY EXPORT CONTROL OR IMPORT LICENSES FOR SUCH PRODUCTS OR SERVICES, AND SELLER MAY CANCEL THE TRANSACTION WITH BUYER IF IT DOES NOT OBTAIN ANY NECESSARY LICENSES IN ORDER TO EXPORT ANY PRODUCTS OR SERVICES FROM THE COUNTRY OF ORIGINATION OR TO IMPORT INTO THE DELIVERY POINT. EXPORTING CERTAIN PRODUCTS OUTSIDE OF THE UNITED STATES OF AMERICA AND EUROPEAN COMMUNITY MAY BE SUBJECT TO EXPORT CONTROL LAWS. ONCE THE PRODUCTS HAVE BEEN DELIVERED TO BUYER, BUYER IS RESPONSIBLE FOR COMPLYING WITH ALL APPLICABLE EXPORT CONTROL LAWS AND REGULATIONS, INCLUDING OBTAINING ANY EXPORT LICENSES FOR THE EXPORT OF PRODUCTS OR INFORMATION OUTSIDE THE UNITED STATES OF AMERICA. IF BUYER WISHES FOR SELLER TO DELAY THE DELIVERY OF PRODUCTS UNTIL ANY NECESSARY EXPORT OR IMPORT LICENSES ARE OBTAINED, THEN BUYER SHALL INFORM SELLER AS SOON AS PRACTICABLE. BUYER WILL BE RESPONSIBLE FOR ANY STORAGE COSTS IN CONNECTION WITH SUCH DELAY.

COMPLIANCE; POLICIES:
BUYER SHALL INSTALL, USE, OPERATE, MAINTAIN, STORE, TRANSPORT, HANDLE, AND DISPOSE OF THE PRODUCTS OR SERVICES IN ACCORDANCE WITH APPLICABLE LAWS, IN A SAFE MANNER, AND ACCORDING TO ANY INSTRUCTIONS, RECOMMENDATIONS, SAFETY PROCEDURES, AND LIMITATIONS COMMON IN THE INDUSTRY AND/OR PROVIDED BY SELLER FROM TIME TO TIME (INCLUDING THOSE IN ANY OPERATING MANUALS, LITERATURE, SAFETY SHEETS OR OTHER DOCUMENTS). BUYER SHALL ENSURE ITS EMPLOYEES, CONTRACTORS, AND AGENTS COMPLY WITH THE FOREGOING IN THIS SECTION 17. SELLER SHALL NOT BE BOUND OR REQUIRED TO COMPLY WITH ANY CODE OF CONDUCT, SUSTAINABILITY, OR OTHER POLICIES OF BUYER. SELLER SHALL USE COMMERCIALLY REASONABLE EFFORTS TO COMPLY WITH ITS OWN CORPORATE POLICIES, WHICH CAN BE MADE AVAILABLE TO BUYER UPON WRITTEN REQUEST, AND SUBJECT TO CHANGE FROM TIME TO TIME; PROVIDED, HOWEVER, THAT SELLER SHALL UNDER NO CIRCUMSTANCES BE LIABLE DIRECTLY OR INDIRECTLY TO BUYER OR TO ANY THIRD PARTY FOR SELLER’S FAILURE TO COMPLY WITH ITS CORPORATE POLICIES.

NOTICE:
ALL NOTICES WILL BE IN WRITING, ON ORIGINAL LETTERHEAD, SIGNED BY BUYER AND SENT VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED, OR BY EXPRESS MAIL OR PERSONAL DELIVERY TO [ADDRESS ATTENTION : __________________].. A NOTICE WILL BE DEEMED EFFECTIVELY GIVEN AND RECEIVED (A) UPON PERSONAL DELIVERY, (B) IF DELIVERED BY OVERNIGHT COURIER, ON THE NEXT BUSINESS DAY AFTER DELIVERY TO THE OVERNIGHT COURIER SERVICE, OR (C) IF SENT BY REGISTERED OR CERTIFIED MAIL, THREE BUSINESS DAYS AFTER DELIVERY TO THE U.S. POSTAL SERVICE; PROVIDED, HOWEVER, THAT ANY WRITTEN COMMUNICATION CONTAINING SUCH INFORMATION ACTUALLY RECEIVED BY A PERSON WILL CONSTITUTE NOTICE FOR ALL PURPOSES OF THE CONTRACT.

FORCE MAJEURE:
SELLER SHALL NOT BE LIABLE OR RESPONSIBLE, NOR BE DEEMED TO HAVE DEFAULTED UNDER OR BREACHED A CONTRACT, AND ITS PERFORMANCE WILL BE DEEMED EXTENDED FOR ANY FAILURE OR DELAY IN FULFILLING OR PERFORMING ANY PROVISION OF A CONTRACT, WHEN SUCH FAILURE OR DELAY IS CAUSED BY OR RESULTS FROM ACTS BEYOND THE REASONABLE CONTROL OF SELLER, ITS AFFILIATES, OR EITHER SELLER’S OR ITS AFFILIATES’ RESPECTIVE CONTRACTORS OR SUPPLIERS, INCLUDING THE FOLLOWING FORCE MAJEURE EVENTS (“FORCE MAJEURE EVENTS”): (A) ACTS OF GOD; (B) FLOOD, FIRE, EARTHQUAKE, EXPLOSION, EPIDEMIC, OR PANDEMIC; (C) WAR, INVASION, HOSTILITIES (WHETHER WAR IS DECLARED OR NOT), EMBARGOES, BLOCKADES, TERRORISTIC THREATS OR ACTS, RIOT, OR OTHER CIVIL UNREST; (D) CHANGES IN ANY LAWS OR ANY ACTIONS BY A GOVERNMENT AGENCY; (E) NATIONAL OR REGIONAL EMERGENCY; (F) STRIKES, LABOR STOPPAGES OR LABOR SLOWDOWNS OR OTHER INDUSTRIAL DISTURBANCES; AND (G) DELAYS IN OBTAINING OR THE INABILITY TO OBTAIN LABOR, MATERIALS, PRODUCTS OR SERVICES THROUGH USUAL SOURCES AT NORMAL PRICES; AND (H) OTHER SIMILAR EVENTS BEYOND THE REASONABLE CONTROL OF SELLER OR ITS AFFILIATES, AND THEIR RESPECTIVE SUBCONTRACTORS OR SUPPLIERS.

LIMITATION ON ACTIONS:
BUYER MUST COMMENCE ANY ACTION OR PROCEEDING THAT ARISES OUT OF OR RELATES TO A CONTRACT, SELLER’S BREACH OF A CONTRACT, PRODUCTS, OR SERVICES WITHIN THE EARLIER OF: (A) ONE (1) YEAR AFTER THE CLAIM OR CAUSE OF ACTION HAS ACCRUED; OR (B) THE PERIOD PRESCRIBED BY APPLICABLE STATUTE OF LIMITATION OR REPOSE.

CHOICE OF LAW; VENUE; JURISDICTION:
THE TRANSACTION AND CONTRACT, AND ANY MATTER, DISPUTE OR CONTROVERSY ARISING OUT OF OR RELATING TO THE TRANSACTION, A CONTRACT, PRODUCTS OR SERVICES WILL BE GOVERNED BY NORTH CAROLINA LAW, EXCLUDING ITS CONFLICTS OF LAW PRINCIPLES, AND THE PROVISIONS OF THE 1980 UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS (“UNCISG”) ARE EXPRESSLY EXCLUDED. BUYER AND SELLER AGREE THAT THE NORTH CAROLINA STATE COURTS AND THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NORTH CAROLINA, SHALL CONSTITUTE THE SOLE AND EXCLUSIVE JUDICIAL FORUM(S) AND VENUE AND, THEREFORE, WILL HAVE SOLE AND EXCLUSIVE JURISDICTION OVER THE ADJUDICATION AND RESOLUTION OF ANY AND ALL MATTERS, DISPUTES AND CONTROVERSIES ARISING OUT OF OR RELATING TO A TRANSACTION, A CONTRACT, PRODUCTS, OR SERVICES; EXCEPT WITH RESPECT TO SELLER’S CLAIM OR ANY ACTION INSTITUTED BY SELLER (A) FOR EQUITABLE OR COMPARABLE RELIEF INCLUDING AN ACTION FOR TEMPORARY OR PERMANENT INJUNCTIVE RELIEF; (B) FOR RECOVERY OF POSSESSION OF PRODUCTS, SUCH AS REPLEVIN, CLAIM AND DELIVERY, ATTACHMENT OR THE LIKE; (C) TO COLLECT ANY AMOUNTS OWED BY BUYER; OR (D) TO JOIN OR IMPLEAD AN ACTION IN WHICH BUYER IS A PARTY.

MISCELLANEOUS:
A CONTRACT (WHICH INCLUDES THESE TERMS) CONTAINS THE ENTIRE AGREEMENT AND UNDERSTANDING OF THE PARTIES RELATING TO THE SUBJECT MATTER AND SUPERSEDES ALL PREVIOUS AND CONTEMPORANEOUS AGREEMENTS, UNDERSTANDINGS, PROPOSALS, DISCUSSIONS, USAGES OF TRADE AND COURSES OF DEALING, WHETHER WRITTEN OR ORAL, BETWEEN THE PARTIES. NOTHING IN THE CONTRACT OR THE COURSE OF DEALING OF THE PARTIES MAY BE CONSTRUED TO CONSTITUTE THE PARTIES HERETO AS PARTNERS, JOINT VENTURERS OR AS AGENTS FOR ONE ANOTHER OR AS AUTHORIZING EITHER PARTY TO OBLIGATE THE OTHER IN ANY MANNER. A CONTRACT WILL BE BINDING ON, AND WILL INURE TO THE BENEFIT OF, THE PARTIES AND THEIR RESPECTIVE SUCCESSORS, HEIRS AND PERMITTED ASSIGNS. BUYER MAY NOT ASSIGN (INCLUDING BY OPERATION OF LAW) ALL OR ANY PORTION OF ITS RIGHTS OR OBLIGATIONS UNDER A CONTRACT WITHOUT SELLER’S PRIOR WRITTEN CONSENT, AND ANY PURPORTED ASSIGNMENT WITHOUT THAT CONSENT WILL BE VOID AND OF NO EFFECT. NOTWITHSTANDING ANY CONSENT BY SELLER TO BUYER’S ASSIGNMENT OF A CONTRACT, BUYER SHALL CONTINUE TO BE OBLIGATED UNDER THE CONTRACT. ANY CONSENT, APPROVAL OR AGREEMENT REQUIRED OR ALLOWED BY SELLER MAY BE GIVEN OR WITHHELD BY SELLER IN ITS SOLE DISCRETION AND MUST BE IN WRITING TO BE EFFECTIVE. NO DELAY OR FAILURE BY SELLER TO EXERCISE OR ENFORCE ANY OF ITS RIGHTS OR REMEDIES UNDER A CONTRACT WILL BE CONSTRUED AS A WAIVER OF SUCH RIGHTS OR REMEDIES. THE EXPRESS WAIVER OF ANY RIGHT OR REMEDY IN A PARTICULAR INSTANCE WILL NOT CONSTITUTE A WAIVER OF THAT RIGHT OR REMEDY IN ANY OTHER INSTANCE. IF ANY PROVISION OF THESE TERMS OR ANY SALES DOCUMENTS IS HELD TO BE INVALID, ILLEGAL OR UNENFORCEABLE BY ANY COURT OF COMPETENT JURISDICTION, THEN SUCH PROVISION(S) WILL BE DEEMED TO BE SEVERABLE AND THESE TERMS AND ANY SALES DOCUMENTS WILL THEN BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE REMAINING PROVISIONS. AS USED HEREIN, THE WORDS “INCLUDING”, “INCLUDE” AND “INCLUDES” WILL NOT BE DEEMED TO BE LIMITING. THE CONTRACT AND THESE TERMS MAY BE AMENDED OR MODIFIED ONLY BY A WRITTEN AGREEMENT, SIGNED BY BOTH PARTIES, EXPRESSLY AMENDING OR MODIFYING THE CONTRACT OR THESE TERMS.