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Memmert USA, LLC. Terms of Sale

TERMS AND CONDITIONS OF SALE

Please read these Terms and Conditions of Sale (these “Terms”) carefully.  These Terms materially affect the parties’ obligations.  Memmert USA, LLC, a Wisconsin limited liability company (“Seller”) is bargaining for and will do business only pursuant to these Terms.  Seller’s acceptance of orders for the purchase of any products (“Products”) and/or services (“Services” and together with any Products, the “Offerings”) is expressly subject to and conditioned on the buyer of the Offerings (“Buyer”) agreeing to these Terms.

1. ACCEPTANCE.  Any offer by Seller is expressly limited to these Terms, and any price quotation referencing these Terms expires if not accepted by Buyer within sixty (60) days after the date of the quotation, unless otherwise stated by Seller in such quotation.  Seller may revoke an offer at any time prior to its acceptance by Buyer.  All orders are subject to Seller’s written acceptance of such order.  If Buyer’s order is accepted, such acceptance is made only pursuant to these Terms, and Seller’s acceptance of any order is limited to these Terms and conditional on Buyer’s agreement to these Terms.  If any of these Terms are not acceptable to Buyer, Buyer shall promptly notify Seller thereof.  If Seller does not receive Buyer’s written objection to these Terms within forty-eight (48) hours after Buyer receives the document referencing these Terms from Seller, or if Buyer receives delivery of any Products or performance of any Services, these Terms shall be deemed irrevocably accepted in their entirety by Buyer.

2. ENTIRE AGREEMENT.  These Terms, together with any email, price quotation, order acknowledgement, or other similar form issued by Seller and referencing or relating to these Terms (together, this “Agreement”), are intended by the parties to be the final expression of their agreement, and are intended also as a complete and exclusive statement of the terms and conditions thereof.  For the avoidance of doubt, the provisions of any purchase order or other writing inconsistent with these Terms will not constitute a part of the contract of purchase and sale, and Seller’s failure to object to provisions contained in any purchase order or communication from Buyer shall not be construed as an acceptance of any such provision or as a waiver of any term of these Terms.  Without limiting the foregoing, Seller hereby expressly objects to all terms that are additional, INCONSISTENT or contradictory to these Terms, regardless of whether such terms are specified in any other email, acknowledgement, purchase order, confirmation, or other document supplied by Buyer, including without limitation those terms and conditions regarding warranty, LIABILITY and indemnity.  No additional or contradictory terms will be effective unless expressly agreed to in a writing hand-signed by Seller.  Buyer’s order will be non-cancellable by Buyer unless Seller consents thereto in a writing hand-signed by Seller.  No online or electronic terms or conditions will be binding upon Seller even if such terms are “clicked to accept” or otherwise “accepted” in order to access or use a system.

3. PRICE.  Unless Seller specifically agrees to hold prices open for a length of time on Seller’s price quotation, all prices are subject to change without notice to Buyer and all Offerings will be invoiced to and paid by Buyer at Seller’s prices in effect at the time of delivery or performance.  Without limiting the foregoing, Seller may increase or decrease prices from time to time based upon increases or decreases to freight charges and surcharges, raw material cost changes, changes in cost of labor, and force majeure events.  All prices for Products are exclusive of freight, shipping, drayage, boxing, and crating charges, both to and from Seller’s facility, and return freight charges for any reusable dunnage materials, and all such charges are the responsibility of, and will be paid by, Buyer.  Unless otherwise specified in this Agreement, prices stated in this Agreement do not include any manufacturers, sales, use, excise or VAT taxes, charges or duties, or any other tax, fee, or charge of any nature whatsoever imposed by any governmental authority on or measured by any transaction between Seller and Buyer, and Buyer shall pay all such amounts.  In the event Seller is required to pay any of the foregoing amounts, Buyer shall reimburse Seller therefor.  Prices may be increased by any increase in any of the foregoing amounts, as well as any increase in tariffs, duties, or other similar amounts, regardless of whether any such amounts were specifically included in quoted prices.  Prices stated in this Agreement may not include travel or other out-of-pocket expenses incurred by Seller in connection with the performance of any Services, and Buyer shall reimburse Seller for all such expenses.

4. PAYMENT.  All payments are due in accordance with the payment terms agreed upon in writing between Buyer and Seller.  If no such payment terms have been agreed upon, all payments are due in full net 30 days from the date of Seller’s invoice.  Seller reserves the right to require full cash payment in advance or at the time of delivery whenever Seller, in its sole discretion, develops doubt as to Buyer’s financial responsibility; Seller will not in such event be liable for non-performance.  Buyer shall incur a service charge if Seller receives payment after the due date, calculated at a rate of ten percent (10%) of the invoice amount per month.  In addition to all other remedies available under this Agreement or at law (which Seller does not waive by the exercise of any rights hereunder), Seller may suspend the delivery or performance of any Offerings if Buyer fails to pay any amounts when due.

5. SHIPMENT; RISK OF LOSS.  Unless otherwise specified in this Agreement, all shipments of Products are F.O.B. Seller (Incoterms 2020).  Risk of loss will pass to Buyer at the time Products are tendered for shipment.  Buyer is responsible for arranging for shipment of Products; provided, however, that in the absence of agreed upon shipping instructions, Seller may use its discretion as to the selection of shipping services and routes, at Buyer’s risk and expense.  Seller assumes no responsibility in connection with the shipment of the Products to Buyer.  Title to Products will remain with Seller until Seller receives full payment therefor.  All shipping dates, or dates for performance of Services, are estimates only.  Seller will use reasonable efforts to meet the estimated shipping or performance date, subject to Buyer’s prompt provision of all necessary, complete and correct specifications, information and data, but Seller may not be held responsible for failure to meet such estimated date.  All claims other than warranty claims, including claims for shipping error or shortages, must made in writing within three (3) days of receipt of the Goods; failure to make any such claim within such time will be deemed to constitute Buyer’s irrevocable waiver of any such claim.

6. CHANGES; CANCELLATION.  Requests by Buyer for cancellation, termination, modification, suspension, or delay in shipment of Buyer’s order are subject to acceptance or rejection by Seller in its sole discretion.  Without limiting the foregoing, such requests will not be accepted on terms that do not fully indemnify, reimburse, and make Seller whole from and against any loss associated therewith.  Such indemnity must include recovery of all costs incurred, including normal indirect and overhead charges, and a normal profit.  Seller generally will not approve any change to an order proposed by Buyer less than four (4) weeks prior to shipment.  Seller reserves the right to make safety changes without Buyer approval to address any actual or potential safety defect in any Offerings or changes in governmental regulations or standards.  Seller shall provide notice to Buyer of any material change within a reasonable period of time thereafter.

7. TERMINATION.  In addition to any remedies that may be provided to Seller under these Terms or applicable law, Seller may terminate this Agreement or any Order, in whole or in part, without liability and with immediate effect upon notice to Buyer for any reason or no reason at all.  Without limiting the foregoing, Seller may terminate this Agreement or any Order, in whole or in part, without liability and with immediate effect upon notice to Buyer if Buyer (a) fails to pay any amount when due to Seller, whether or not under this Agreement, (b) has not performed or complied with any term of this Agreement, in whole or in part, or (c) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.

8. SURVIVAL.  The parties’ rights and obligations that by their nature would continue beyond the expiration or termination of this Agreement, including but not limited to those regarding indemnification, compliance with laws, warranties, limitations on liability, and confidentiality will survive any termination or expiration of this Agreement.

9. EXCLUSIVITY.  Seller will be Buyer’s sole supplier of the Products and all substantially similar products until such time as Buyer notifies Seller in writing, at least twelve (12) months in advance, that Buyer intends to no longer purchase the Products and all substantially similar products from Seller.  In the event Seller is unwilling or unable to supply Buyer’s entire demand for the Products, Buyer shall be entitled (subject to Buyer’s compliance with the provisions hereof relating to the protection of Seller’s intellectual property) to procure replacement products from a third party supplier; provided, however, that such replacement products shall only be purchased in such quantities as Seller is unwilling or unable to supply, and only during such period as Seller is unwilling or unable to supply Buyer’s entire demand for the Products.  If a specification or technology change is required for any reason with respect to any Products, Seller will have the first right of refusal to accommodate the necessary changes and remain Buyer’s sole supplier of such Products.

10. DUNNAGE REPLENISHMENT.  In the event Seller utilizes any returnable dunnage in connection with the transportation of the Products, Seller may invoice Buyer for damaged and/or missing dunnage based upon a periodic reconciliation of dunnage shipments versus dunnage returns.  The reimbursed cost for such dunnage shall be Seller’s actual cost to replace such dunnage, plus a reasonable service charge determined by Seller.

11. CERTAIN BUYER OBLIGATIONS.  Buyer shall (a) cooperate with Seller in all matters relating to the Offerings and provide access to Buyer’s premises, and to such office accommodations and other facilities as Seller requests for the purpose of performing or delivering any of the Offerings; (b) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that Seller deems necessary in order to complete and provide the Offerings in accordance with this Agreement; and (c) provide in a timely manner such customer materials or information that Seller requests in order to complete and provide the Offerings, and Buyer shall ensure that such customer materials and information are complete and accurate in all respects.

12. COMPLIANCE WITH LAWS.  Buyer shall comply with all applicable federal, state and local laws, regulations, orders, and ordinances.  Without limiting the foregoing, Buyer shall comply with all applicable anti-bribery, anti-corruption, and recordkeeping requirements imposed under the U.S. Foreign Corrupt Practices Act of 1977, as amended, the United Kingdom Bribery Act, and any anti-bribery or anti-corruption laws of similar effect in the jurisdictions where Buyer conducts business.  Buyer represents and warrants that neither it nor any of its subcontractors, vendors, agents or other associated third parties will engage in any form of commercial bribery, nor directly or indirectly provide or offer to provide, anything of value to or for the benefit of, any official or employee of a governmental authority or of any government-owned, government-controlled or government-affiliated entity to obtain or retain any contract, business opportunity or other business benefit, or to influence any act or decision of that person in his/her official capacity. Buyer shall comply with all applicable laws governing the classification, valuation, origination, and marking of foreign-origin products imported into the United States or the other jurisdictions where it conducts business, as well as any similar requirements imposed under bilateral or multilateral Free Trade Agreements that may apply to its transactions with Seller.  Buyer shall comply with all applicable economic sanctions, export control laws, and other restrictive trade measures imposed by the United States Government, United Kingdom Government, European Union, and United Nations Security Council, and any other jurisdictions where Buyer conducts business (collectively “Export Control Laws”), including any jurisdiction that imposes economic sanctions and trade embargoes against designated countries, entities, and persons (“Embargoed Targets”).  Buyer is not an Embargoed Target or subject to any Export Control Laws, and Buyer shall not (A) directly or indirectly export, re-export, transship, or otherwise deliver Products or any portion of Products to an Embargoed Target, or (B) broker, finance, or otherwise facilitate any transaction in violation of any Export Control Laws. 

13. LIMITED WARRANTY AND REMEDIES.  For the period of three (3) years from the date of shipment (the “Warranty Period”), Seller warrants that all Products will be free from material defects in workmanship and materials under normal use and service when stored, maintained, and installed in strict accordance with factory recommendations (the “Limited Warranty”).  Products must be registered on Seller’s website within 90 days from the date of shipment of the Products to qualify for the Limited Warranty. Seller further warrants that, at the time of performance, the Services will be performed in a professional and workmanlike manner, in all material respects (the “Services Warranty”).  The warranties expressly provided herein may only be asserted by Buyer and may not be asserted by Buyer’s customers or other users or beneficiaries of the Offerings; provided, however, that if Buyer is an authorized equipment dealer of Seller, Buyer may assign the Limited Warranty herein to Buyer’s customers, subject to all of the limitations of these Terms, and in such case, the warranty shall be exclusively controlled by Seller in accordance with these Terms.  THE LIMITED WARRANTY AND SERVICES WARRANTY ARE EXCLUSIVE AND ARE IN LIEU OF ANY OTHER WARRANTY.  OTHER THAN THE FOREGOING WARRANTIES, SELLER HEREBY DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE OFFERINGS (WHETHER PRODUCTS OR SERVICES) INCLUDING ANY WARRANTY OF FITNESS FOR PARTICULAR PURPOSE, TITLE, MERCHANTABILITY, AND AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.  NO PERSON IS AUTHORIZED TO GIVE ANY OTHER WARRANTIES ON BEHALF OF SELLER OTHER THAN THOSE EXPRESSLY STATED HEREIN.

If Buyer believes that any Products fail to conform to the Limited Warranty or any Services fail to conform to the Services Warranty set forth above, Buyer shall notify Seller of the same in writing during the Warranty Period and within five (5) days after the discovery thereof.  Buyer shall follow Seller’s instructions with respect to any such claim, including, without limitation, making such Products or Services available for Seller’s inspection or promptly returning or removing such Products to Seller, at Buyer’s sole cost and expense.  Buyer will provide full cooperation and support to Seller in determining the root cause of any alleged defect.  No Offerings may be returned without Seller’s express written preauthorization. 

If Seller determines in its reasonable discretion that the Products are actually in breach of the Limited Warranty, then Seller’s sole liability and Buyer’s sole and exclusive remedy under the Limited Warranty shall be, at Seller’s option, (a) ) if within the first year of the Warranty Period, for Seller or a Seller-authorized service agency to repair or replace the Products at no cost to Buyer for parts or labor in connection with such repair or replacement or (b) if after the first year of the Warranty Period but prior to the expiration of the Warranty Period, for Seller or a Seller-authorized service agency to repair or replace the Products with no cost to Buyer for parts, but with Buyer being responsible for all of Seller’s or its authorized third parties’ other costs (including labor, travel, living, customs, and duties, among others) in connection with such repair or replacement.   Seller’s sole liability and Buyer’s sole and exclusive remedy under the Services Warranty will be limited to re-performance or credit, at Seller’s option, for any Services that Seller determines in its reasonable discretion were actually in breach of the Services Warranty.  Seller will not be liable for a breach of warranty if (a) the defect arises because Buyer fails to follow Seller’s oral or written instructions relating to the applicable Offering, including without limitation with respect to the storage, installation, commissioning, use, operation or maintenance, (b) Buyer adjusts, alters or repairs the applicable Products without the prior written consent of Seller, or (c) the applicable Products become defective or inoperative due to normal use, accident, misapplication, abuse, or misuse; and any of the foregoing will immediately render the warranties provided herein by Seller null and void.

14. LIMITATION OF LIABILITY. 

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THE AGREEMENT, SELLER WILL NOT BE LIABLE UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR SPECIAL DAMAGES, INCLUDING WITHOUT LIMITATION ANY LOST PROFITS, COSTS OF SUBSTITUTE PRODUCTS AND SERVICES, MACHINE WORK OR LABOR COSTS, ARISING FROM THE SALE, USE, INSTALLATION, OR RECEIPT OF THE OFFERINGS OR FROM ANY OTHER CAUSE WHATSOEVER, WHETHER BASED ON WARRANTY (EXPRESSED OR IMPLIED) OR OTHERWISE BASED ON CONTRACT, TORT, OR ANY OTHER THEORY OF LIABILITY, AND REGARDLESS OF ANY ADVICE OR REPRESENTATIONS THAT MAY HAVE BEEN RENDERED BY SELLER CONCERNING THE SALE, USE, INSTALLATION, OR RECEIPT OF THE OFFERINGS, EVEN IF SELLER IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNTS PAID TO SELLER BY BUYER FOR THE OFFERINGS WITHIN THE ONE (1) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO BUYER’S CLAIM.  THE LIMITATIONS SET FORTH HEREIN SHALL BE VALID AND ENFORCEABLE NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF THE LIMITED REMEDY SET FORTH HEREIN.

15. WORK BY OTHERS; ACCESSORIES AND SAFETY DEVICES. Unless agreed to in a writing hand-signed by Seller, Seller shall have no responsibility for labor or work of any nature relating to the installation and operation or use of the Products, all of which shall be performed by Buyer or others. It is the responsibility of Buyer to furnish such accessory and safety devices as may be desired by it and/or required by law (including United States Occupational Safety and Health Administration standards) relating to Buyer’s use of the Products. Buyer shall be solely responsible for ascertaining that the Products are installed and operated in accordance with all applicable laws, regulations, rules and ordinances. Buyer agrees to cause the Products to be installed in strict accordance with Seller’s documentation, if any, and will indemnify and hold harmless Seller, its employees, successors and assigns against any and all damages, demands, suits, causes of action, claims and expenses arising directly or indirectly from Buyer’s failure to cause the Products to be properly installed, operated or used.

16. EXCLUSION OF TORT REMEDIES.  This is a commercial sales transaction.  The parties intend for it to be governed by Article 2 of the Uniform Commercial Code (as adopted by the state set forth in Section 30 below) and related commercial legal principles.  NEITHER PARTY WILL HAVE ANY NEGLIGENCE OR OTHER TORT LIABILITY TO THE OTHER, OR TO ANY THIRD PARTY, ARISING FROM ANY BREACH OF THIS AGREEMENT.

17. PRODUCT RECALLS.  Subject to the limitations set forth herein, Seller shall reimburse Buyer for the reasonable and documented out-of-pocket costs and expenses incurred by Buyer in connection with any recall, repair, replacement or refund program which is caused by Seller’s gross negligence, intentional misconduct, or breach of the limited warranties set forth in these Terms, and which is (a) deemed necessary by Seller or (b) is mandated by an order of a governmental agency to correct a manufacturing defect affecting the safety of Products sold; provided, that Seller shall not be responsible for reimbursing Buyer for any costs and expenses incurred by Buyer if such recall, repair, replacement or refund program relates in whole or in part to any deficiency or deviation, material part change, or part, sub-systems, software, product, packaging or service designs, trade dress, appearance or features in the Products provided or specified by Buyer.  In the event a recall, repair, replacement or refund program is required, (i) Buyer shall fully cooperate with Seller, at Seller’s request, in the implementation and administration of any program of recall, repair, replacement or refund, and (ii) Buyer shall furnish to Seller such records regarding any program of recall, repair, replacement or refund as Seller shall reasonably request.  Buyer shall notify Seller in a timely manner of any condition known to it that may affect the safety of the Products, and Buyer shall consult with Seller about any such condition prior to notifying any governmental agency.  In no event shall reimbursement under this Section of reasonable and documented out-of-pocket costs include any amounts for lost profits or business goodwill or any other special, consequential, punitive or indirect damages.  Nothing in this Agreement shall constitute a waiver or limitation by Seller of any constitutional, statutory, or other right to administrative or judicial review of any request, demand, or order of any governmental agency or body.

18. INDEMNIFICATION.  Buyer shall indemnify, defend, and hold Seller, its direct and indirect parent and subsidiary entities and other affiliates, and its and their respective directors, officers, employees, representatives, agents, direct and indirect customers and product users, and each of the foregoing’s respective successors and assigns, harmless from and against any and all claims, demands, actions, proceedings, damages, losses, liabilities, costs, and expenses, of any kind whatsoever, including all attorneys’ fees, arising from or relating to any actual or alleged claim whatsoever, including without limitation any claim of infringement of a patent, copyright, trademark, trade secret, or other proprietary right, and claims of product liability, personal injury, property damage, and product defect, which arises out of or is related to Buyer’s or its direct or indirect customers’ use of the Offerings, negligence, willful misconduct, violation or breach of any term of this Agreement, fraud, or violation of law, or from Buyer’s specifications for the Offerings.

19. INTELLECTUAL PROPERTY OWNERSHIP.  All intellectual property rights, including copyrights, patents, patent disclosures, inventions (whether patentable or not), trade dress, trade names, logos, corporate names, domain names, trademarks, service marks, trade secrets, know-how, specifications, and other confidential information, together with all derivative works and all goodwill associated therewith, and all other rights in and to all the Offerings, documents, work product, drawings, and other materials (whether or not copyrightable) that are delivered to Buyer under this Agreement or prepared by or on behalf of Seller in the course of performing under this Agreement, shall be exclusively owned by Seller.  No license, transfer, or assignment of proprietary rights from Seller to Buyer will occur as a result of this Agreement or any order.  Buyer warrants that any trademarks Buyer requests Seller to affix to any Products are owned or authorized for use by Buyer.  Buyer shall not contest, or assist others in contesting, the validity or ownership of Seller’s intellectual property.

20. SECURITY INTEREST.  Buyer hereby grants to Seller and Seller hereby retains a lien on and a security interest in and to all of the right, title, and interest of Buyer in, to, and under the Products sold by Seller to Buyer and all accessories and additions thereto, wherever located, whether now existing or hereafter acquired, as well as all spare parts and components therefor, and all proceeds of the sale or other disposition thereof, including, without limitation, cash, accounts, contract rights, instruments, and chattel paper (“Subject Assets”).  If requested by Seller, Buyer shall execute one or more financing statements pursuant to the Uniform Commercial Code in a form satisfactory to Seller.  In the event Buyer is in default under this Agreement, Seller will have the remedies of a secured party under applicable law, including without limitation the Uniform Commercial Code, and Seller may thereupon enter the premises of Buyer and remove and repossess all Subject Assets.  The security interest granted under this Section constitutes a purchase money security interest under applicable law.

21. SETOFF.  Seller may set off any amount due from Buyer, whether or not under this Agreement, against any amount due Buyer hereunder.

22. CONFIDENTIALITY.  All non-public, confidential or proprietary information of or relating to Seller or Seller’s direct or indirect affiliates, customers, and suppliers, including without limitation specifications, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates disclosed by or on behalf of Seller, whether disclosed orally, visually or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” shall be deemed “Confidential Information,” is confidential, solely for the use of performing this Agreement, and may not be disclosed or copied unless authorized by Seller in writing.  Buyer agrees to maintain and protect the confidentiality of the Confidential Information, and to not disclose the Confidential Information except as legally required (and then only to the minimum extent legally required), and except to Buyer’s employees who are bound by obligations of confidentiality with respect to such Confidential Information at least as stringent as those set forth herein and who have a need to know such Confidential Information for the purpose of fulfilling Buyer’s obligations under this Agreement.  Buyer shall be responsible for any breach of the confidentiality and non-use obligations set forth herein by such employees.  Buyer may only be use the Confidential Information in the performance of this Agreement, and may not use the Confidential Information for any other purpose.  Buyer shall return to Seller, or destroy, with such destruction certified in writing to Seller, within five (5) days of the earlier of a request from Seller or the termination of this Agreement, all Confidential Information, and all written materials, and copies thereof, including materials stored in electronic media, containing, incorporating, or otherwise based upon, in whole or in part, the Confidential Information.  This provision shall survive any termination of this Agreement for any reason, and in the event of any breach or threatened breach of this provision, Seller shall be entitled, in addition to any other remedies and damages, to injunctive relief without the necessity of paying bond and without being required to prove the existence, amount or insufficiency of damages.

23. FORCE MAJEURE; EXCUSE FROM PERFORMANCE.  Seller shall not have any liability or responsibility whatsoever, or be deemed to have defaulted under or breached any term of this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from any accident, breakdown, sabotage, riot, insurrection, war, delay, shortage of materials, interruption of supply, embargo, unforeseen capacity constraint or demand increase, strike or other labor problem, transportation problem, national or regional emergency, act of God, disaster, catastrophe, pandemic, epidemic, quarantine, or other cause or condition, whether of like or different nature, that is beyond Seller’s reasonable control, or orders, contracts, priorities, directives, requisitions or requests of the federal or state governments, whether or not voluntarily assumed.  If any such event renders Seller’s timely delivery or performance of any Offering impracticable, at Seller’s option, (a) the date of delivery or performance shall be extended for a period equal to the time lost by reason of the delay, or (b) Seller will be excused from performance and Buyer shall promptly, upon Seller’s request, pay Seller for any Offerings then completed (whether fully or partly completed).

24. INSURANCE.  During the term of this Agreement and for two (2) years thereafter, Buyer shall, at its own expense, maintain and carry insurance in full force and effect in amounts and types customary in Buyer’s industry and satisfactory to Seller.  All insurance policies must be underwritten by a company with a minimum A.M. Best Rating of A- VII.  Certificates evidencing the required coverages must be furnished to Seller prior to the commencement of any work and on an annual basis thereafter, and at any additional times upon Seller’s request.  Buyer shall provide Seller with thirty (30) days’ advance written notice in the event of a cancellation or material change in any of Buyer’s insurance policies.  If Buyer fails to maintain the insurance required herein, Seller may, in its sole discretion, purchase such insurance on Buyer’s behalf and charge back the cost thereof to Buyer, with a reasonable markup.

25. NOTICES.  Any notice relating to this Agreement must be in writing and will be considered given one (1) day after it is deposited, postage prepaid, with a registered mail service and addressed to the other party at the address given in this Agreement or otherwise found on the website of Buyer; or, if delivered by hand, when so delivered.  Notices to Buyer may be delivered by email to any email address used by an employee of Buyer in communicating with Seller, and will be deemed given when sent to such email address.

26. ASSIGNMENT; DELEGATION.  Buyer may not assign, whether voluntarily or involuntarily, this Agreement or any of Buyer’s rights hereunder nor delegate any of Buyer’s obligations hereunder without Seller’s prior written consent.  Any purported assignment or delegation in violation of this Section will be void.  Seller may assign this Agreement and any of Seller’s rights hereunder and delegate any of Seller’s obligations under this Agreement.  If Seller assigns this Agreement or delegates any obligations under this Agreement (whether in whole or in part), Buyer shall, as relates to such part that was assigned or delegated, release Seller from all liability under this Agreement and hold the assignee solely responsible for performance of all such assigned or delegated obligations.

27. APPLICABLE LAW.  The validity, construction, and enforcement of this Agreement is governed by and interpreted under the laws of the State of Wisconsin, including, without limitation, its provisions of the Uniform Commercial Code.  The United Nations Convention on Contracts for the International Sales of Goods (CISG) does not apply to this Agreement.  Any controversy or claim arising out of or in connection with this Agreement will be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on any award rendered by the arbitrators may be entered in any court having jurisdiction thereof.  Any such arbitration will occur in Waukesha County, Wisconsin, and will be conducted in the English language.  Notwithstanding the foregoing, any claim by Seller for collection of unpaid amounts may be pursued through any available method and in any available venue, including without limitation through litigation in the State or Federal courts located in the State of Wisconsin, without first proceeding to arbitration pursuant to this Section, and Buyer hereby irrevocably submits to the personal jurisdiction of such courts.  Service of process on Buyer may be made through any form permissible for delivering a notice pursuant to Section 25.  Buyer shall pay Seller any collection fees and all attorneys’ fees incurred by Seller in enforcing this Agreement (including without limitation in collecting payments due) or defending against any claim for breach of this Agreement.

28. AMENDMENT; WAIVER.  No amendment or modification of any term or condition will be valid or binding upon Seller unless approved by Seller in a writing hand-signed by Seller.  Unless Seller expressly indicates otherwise in such hand-signed writing, such modification is effective only in that instance and only for the purpose for which it is made and is not to be construed as a modification on any future occasion or of any future order or agreement.  Clerical and stenographic errors are subject to correction by Seller.  No waiver by Seller of any of the terms of this Agreement is effective unless explicitly set forth in a writing signed by Seller.  No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof.  No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

29. SEVERABILITY.  If any term of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such determination will not affect the remainder of this Agreement, which will remain in full force and effect.

30. INDEPENDENT CONTRACTORS.  The relationship between the parties is that of independent contractors.  Nothing contained in this Agreement may be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have the authority to contract for or bind the other party in any manner whatsoever.

31. NO THIRD-PARTY BENEFICIARIES.  This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

32. INTERPRETATION.  Any rule of construction that requires any ambiguities to be interpreted against the drafter shall not be employed in the interpretation of this Agreement, or any document drafted or delivered in connection with the transactions

 

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