Terms and Conditions

Terms and Conditions Download PDF(Download PDF)

These standard terms and conditions and all documents referenced herein, including the Product Return Policy and Purchase Order form, amendments or change orders, if any (collectively “Terms and Conditions”), shall govern the sale of goods (“Goods”) by STORM MANUFACTURING CORPORATION d/b/a STORM POWER COMPONENTS (“Seller”) to the person or business entity buying such Goods (“Buyer”). Buyer and Seller are, individually, referred to as a “Party” and, collectively as the “Parties”. These Terms and Conditions are incorporated into each and every Purchase Order received from Buyer which may establish in addition to these Terms and Conditions essential commercial terms not in conflict with these Terms and Conditions. In the event of any conflicting provisions in any Purchase Order or any other document received from Buyer, these Terms and Conditions shall control and Seller shall proceed with the sale under the assumption that these Terms and Conditions are the sole terms and conditions binding on the Parties. Buyer and Seller expressly agree that Seller may modify these Terms and Conditions from time to time without notice, and such modifications shall be binding upon Buyer. Accordingly, each request for quote, order, acceptance of Goods and/or payment to Seller by Buyer shall be deemed an acknowledgment and acceptance by Buyer of these Terms and Conditions as then in effect. These Terms and Conditions, as may be subsequently modified by Seller from time to time without notice, are incorporated by reference into all documents issued by Seller to Buyer in connection with the sale and/or provision of Goods.

  1. Definitions. Capitalized terms have the meanings set out or referred to in this Section 1.

"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise.

"Affiliate" of a Person means any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person.

"Basic Purchase Order Terms" means, collectively, any one or more of the following terms specified by Buyer in a Purchase Order pursuant to Section 3.1: (a) a list of the Goods to be purchased; (b) the quantity of each of the Goods ordered; (c) the Requested Delivery Date; (d) the unit Price for each of the Goods to be purchased; (e) the billing address; and (f) the Delivery Location. For the avoidance of doubt, the term "Basic Purchase Order Terms" does not include any general terms or conditions of any Purchase Order.

"Buyer Contracts" means all contracts or agreements to which Buyer is a party or to which any of its material assets are bound.

"Claim" means any Action brought against a Person entitled to indemnification under Section 10.

"Control" (and with correlative meanings, the terms "Controlled by" and "under common Control with") means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of another Person, whether through the ownership of voting securities, by contract, or otherwise.

"Defective" means not conforming to the Product Warranty under Section 9.3.

"Defective Goods" means goods shipped by Seller to Buyer pursuant to these Terms and Conditions that are Defective.

"Delivery Location" means the street address for delivery of the Goods specified in the applicable Purchase Order.

"Governmental Authority" means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.

"Governmental Order" means any order, writ, judgment, injunction, decree, stipulation, award, or determination entered by or with any Governmental Authority.

"Intellectual Property Rights" means all industrial and other intellectual property rights comprising or relating to: (a) Patents; (b) Trademarks; (c) internet domain names, whether or not Trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, website, and URLs; (d) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, schematics, data, data files, and databases and other specifications and documentation; (e) Trade Secrets; (f) semiconductor chips, mask works and the like; and (g) all industrial and other intellectual property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the Laws of any jurisdiction throughout in any part of the world.

"Law" means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order, or other requirement or rule of law of any Governmental Authority.

"Nonconforming Goods" means any goods received by Buyer from Seller pursuant to a Purchase Order that: (a) do not conform to the product number listed in the applicable Purchase Order; (b) do not fully conform to the specifications approved by Buyer; or (c) materially exceed the quantity of Goods ordered by Buyer pursuant to these Terms and Conditions or any Purchase Order. Where the context requires, Nonconforming Goods are deemed to be Goods for purposes of these Terms and Conditions.

"Patents" means all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other Governmental Authority-issued indicia of invention ownership (including inventor's certificates, petty patents, and patent utility models).

"Person" means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, Governmental Authority, or any other entity.

"Personnel" of a Party means any agents, employees, contractors, or subcontractors engaged or appointed by such Party.

"Representatives" means a Party's Affiliates and each of their respective Personnel, officers, directors, partners, shareholders, attorneys, third-party advisors, successors, and permitted assigns.

"Requested Delivery Date" means the requested delivery date for Goods ordered hereunder that is set forth in a Purchase Order, which must be a business day no less than 180 days following delivery of the applicable Purchase Order to Seller.

"Seller's Intellectual Property Rights" means all Intellectual Property Rights owned by or licensed to Seller.

"Seller's Trademarks" means all Trademarks owned by or licensed to Seller.

"Taxes" means any and all present and future sales, income, stamp, and other taxes, levies, imposts, duties, deductions, charges, fees or withholdings imposed, levied, withheld, or assessed by any Governmental Authority, together with any interest or penalties imposed thereon.

"Tooling" means, collectively, all tooling, dies, test and assembly fixtures, gauges, jigs, patterns, casting patterns, cavities, molds, and documentation (including engineering specifications and test reports) used by Seller in connection with its manufacture and sale of the Goods, together with any accessions, attachments, parts, accessories, substitutions, replacements and appurtenances thereto.

"Trademarks" means all rights in and to United States and foreign trademarks, service marks, trade dress, trade names, brand names, logos, corporate names and domain names, and other similar designations of source, sponsorship, association, or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.

"Trade Secrets" means all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures, and other confidential and proprietary information and all rights therein.

  1. No Modifications/Entire Agreement. Seller’s provision of credit to Buyer, if any, acceptance of any purchase order and/or sale or provision of any Goods and/or Services to Buyer are all expressly conditioned upon Buyer’s acceptance of these Terms and Conditions as then in effect. SELLER HEREBY REJECTS ANY TERMS OR CONDITIONS WHICH ATTEMPT TO ALTER, MODIFY OR CHANGE IN ANY WAY ANY PROVISION HEREOF, OR OTHERWISE ATTEMPT TO SUSPEND, CONTRADICT OR ADD TO ANY TERM OR CONDITION CONTAINED HEREIN, AND BUYER HEREBY WAIVES ALL SUCH TERMS OR CONDITIONS; THUS, SUCH SHALL NOT BE BINDING ON SELLER UNLESS EXPRESSLY AGREED TO IN A SEPARATE WRITTEN INSTRUMENT SIGNED BY SELLER’S AUTHORIZED REPRESENTATIVE. SELLER OBJECTS TO ANY DIFFERENT, INCONSISTENT, CONFLICTING, SUPPLEMENTAL OR ADDITIONAL TERMS OR CONDITIONS AND HEREBY REJECTS SUCH, WHETHER CONTAINED IN PREVIOUS OR SUBSEQUENT PROPOSALS OR COMMUNICATIONS (WHETHER ORAL OR WRITTEN) FROM OR WITH BUYER OR IMPLIED BY TRADE, CUSTOM, PRACTICE, COURSE OF DEALING OR USAGE IN THE TRADE. BUYER AND SELLER AGREE THAT THESE TERMS AND CONDITIONS, AS MAY BE SUBSEQUENTLY MODIFIED BY SELLER FROM TIME TO TIME, ARE ACCEPTED IN GOOD FAITH BY BOTH PARTIES AS THE COMPLETE AND FINAL EXPRESSION OF THE TERMS AND CONDITIONS GOVERNING TRANSACTIONS BETWEEN THEM, AND FURTHER AGREE THAT THERE SHALL BE NO “BATTLE OF THE FORMS” AS DESCRIBED IN SECTION 2-207 OF THE UNIFORM COMMERCIAL CODE.
  2. Ordering Procedure.
    • Purchase Orders. Buyer shall issue to Seller Purchase Orders (containing applicable Basic Purchase Order Terms that are consistent with these Terms and Conditions) (“Purchase Orders”), in written form via e-mail, or United States mail. By issuing a Purchase Order to Seller, Buyer makes an offer to purchase Goods pursuant to these Terms and Conditions and the Basic Purchase Order Terms contained in such Purchase Order, and on no other terms. For the avoidance of doubt, any variations made to the terms and conditions of these Terms and Conditions by Buyer in any Purchase Order are void and have no effect. Buyer shall be obligated to purchase from Seller quantities of Goods specified in a Purchase Order.
    • Acceptance, Rejection, and Cancellation of Purchase Orders. Seller accepts a Purchase Order by confirming the order in writing or by delivering the applicable Goods to Buyer, whichever occurs first. Seller may reject a Purchase Order or cancel a previously accepted Purchase Order, which it may do without liability or penalty, and without constituting a waiver of any of Seller's rights or remedies under these Terms and Conditions or any Purchase Order, by providing written notice to Buyer specifying the applicable date of rejection or cancellation:
      • if any one or more of the events described under Sections 6.2(a)-(d) has occurred;
      • pursuant to Seller's rights under Section 4(b) or Section 5.4(c); or
      • pursuant to Seller's rights under the last sentence of Section 6.
  1. Shipment, Delivery, Acceptance, and Inspection.
    • Shipment. Unless otherwise expressly agreed by the Parties in writing, Seller shall select the method of shipment of and the carrier for the Goods. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale and Buyer shall pay for the Goods shipped, in accordance with the payment terms specified in Section 3, whether such shipment is in whole or partial fulfillment of a Purchase Order.
    • Packaging and Labeling. Seller shall properly pack, mark, and ship Goods and provide Buyer with shipment documentation showing the Purchase Order number, Seller's identification number for the subject Goods, the quantity of pieces in shipment, the number of cartons or containers in shipment and Seller's name,.
    • Delivery. Unless otherwise expressly agreed by the Parties in writing, Seller shall deliver the Goods to the Delivery Location, using Seller's standard methods for packaging and shipping such Goods.
    • Late Delivery. Any time quoted for delivery is an estimate only; provided, however, that Seller shall use commercially reasonable efforts to deliver all Goods on or before the Requested Delivery Date. Subject to Buyer's rights under this Section 4, no delay in the shipment or delivery of any Good relieves Buyer of its obligations under these Terms and Conditions, including accepting delivery of any remaining installment or other orders of Goods.
    • Transfer of Title and Risk of Loss.
      • Title to Goods shipped under any Purchase Order passes to Buyer upon Seller's tender of the Goods to the carrier at Seller’s facility.
      • Risk of loss to Goods shipped under any Purchase Order passes to Buyer upon Seller's tender of such units to the carrier at Seller’s facility.
    • Inspection. Buyer shall inspect Goods received under these Terms and Conditions within sixty (60) days of receipt of such Goods ("Inspection Period") and either accept or, only if any such Goods are Nonconforming Goods, request a return pursuant to the terms of the Product Return Policy, which can be found here: [INCLUDE WEBSITE LINK HERE] (“Product Return Policy”). Buyer will be deemed to have accepted Goods unless it provides Seller with written Notice of any Nonconforming Goods pursuant to the terms of the Product Return Policy. All defects and nonconformities that are not so specified will be deemed waived by Buyer, such Goods shall be deemed to have been accepted by Buyer, and no attempted revocation of acceptance will be effective. If Buyer notifies Seller of any Nonconforming Goods within one hundred eighty (180) days from the date of shipment of the Goods, Seller shall determine, in its reasonable discretion, whether the Goods are Nonconforming Goods. If Seller determines that such Goods are Nonconforming Goods, Seller shall, in its sole discretion, either:
      • replace such Nonconforming Goods with conforming Goods; or
      • repair such Nonconforming Goods.

Buyer shall ship, at Buyer's expense and risk of loss, all Nonconforming Goods to Seller's facility located at 240 Industrial Park Lane, Decatur, Tennessee 37322 or to such other location as Seller may instruct Buyer in writing. If Seller exercises its option to replace Nonconforming Goods, Seller shall ship to the Delivery Location, at Seller's expense and risk of loss, the replacement Goods.

THE REMEDIES SET FORTH IN THIS SECTION 4.6 AND THE PRODUCT RETURN POLICY ARE BUYER'S EXCLUSIVE REMEDY FOR THE DELIVERY OF NONCONFORMING GOODS, SUBJECT TO BUYER'S RIGHTS UNDER SECTION 9.5 WITH RESPECT TO ANY SUCH GOODS FOR WHICH BUYER HAS ACCEPTED DELIVERY UNDER THIS SECTION 4.6.

  • Limited Right of Return. Except as provided under Section 6, Section 9.5, and Section 9.8, Buyer has no right to return Goods shipped to Buyer pursuant to these Terms and Conditions.
  1. Price and Payment.
    • Price. Buyer shall purchase the Goods from Seller at the prices published by Seller ("Prices").
    • Shipping Charges, Insurance, and Taxes. Buyer shall pay for, and shall hold Seller harmless from, all shipping charges and insurance costs. In addition, all Prices are exclusive of, and Buyer is solely responsible for and shall pay, and shall hold Seller harmless from, all Taxes, with respect to, or measured by, the manufacture, sale, shipment, use, or Price of the Goods (including interest and penalties thereon).
    • Payment Terms. Seller shall issue periodic invoices to Buyer for all Goods ordered in the previous period. Buyer shall pay to Seller all invoiced amounts within thirty (30) days (unless Seller consents to other terms in writing) following the later of (a) Buyer's receipt of Seller's invoice or (b) Buyer's receipt of the applicable Goods. Buyer shall make all payments by check, wire transfer, or automated clearing house.
    • Buyer's Unsatisfactory Credit Status. Each issuance of a Purchase Order to Seller will constitute Buyer's representation and warranty that Buyer is solvent and is able to pay for the Goods identified in such Purchase Order in accordance with the terms of these Terms and Conditions. Buyer shall furnish Seller with statements accurately and fairly evidencing Buyer's financial condition as Seller may, from time to time, reasonably request. Buyer shall be in compliance with all obligations to Buyer's creditors as and when such obligations are due and owing in the ordinary course of Buyer's business. Buyer shall notify Seller, in writing, immediately of any and all events that have had or may have a material adverse effect on Buyer's business or financial condition, including any change in management, sale, lease, or exchange of a material portion of Buyer's assets, a change in Control of Buyer, or the breach of any loan covenants or other material obligations of Buyer to its creditors. If, at any time, Seller determines in its sole discretion that Buyer's financial condition or creditworthiness is inadequate or unsatisfactory, then in addition to Seller's other right under these Terms and Conditions, at law or in equity, Seller may without liability or penalty, take one or more of the following actions:
      • on thirty (30) day's prior written Notice, modify the payment terms specified in Section 3 for outstanding and future purchases, including requiring Buyer to pay for Goods on a cash in advance or cash on delivery basis;
      • reject any Purchase Orders received from Buyer;
      • cancel any previously accepted Purchase Orders;
      • delay or withhold any further shipment of Goods to Buyer;
      • stop delivery of any Goods in transit and cause such Goods in transit to be returned to Seller;
      • on sixty (60) days' prior written Notice, terminate theses Terms and Conditions, including any Purchase Orders;
      • accelerate the due date of all amounts owing by Buyer to Seller.

No action taken by Seller under this Section 5.3 (nor any failure of Seller to act under this Section 5.3) constitutes a waiver by Seller of any of its rights and remedies under these Terms and Conditions, including its right to enforce Buyer's obligation to make payments as required hereunder.

  • Invoice Disputes. Buyer shall notify Seller in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within five (5) days from Buyer's receipt of such invoice. Buyer will be deemed to have accepted all invoices for which Seller does not receive timely notification of dispute and shall pay all undisputed amounts due under such invoices within the period set forth in Section 3. The Parties shall seek to resolve any such disputes expeditiously and in good faith. Notwithstanding anything to the contrary, Buyer shall continue performing its obligations under these Terms and Conditions during any such dispute, including Buyer's obligation to pay all due and undisputed invoice amounts in accordance with the terms of these Terms and Conditions.
  • Late Payments. Buyer shall reimburse Seller for all reasonable costs incurred by Seller in collecting any late payments, including attorneys' fees and court costs. In addition to all other remedies available under these Terms and Conditions or at Law (which Seller does not waive by the exercise of any rights under these Terms and Conditions), if Buyer fails to pay any undisputed amounts when due under these Terms and Conditions, Seller may (a) suspend the delivery of any Goods, or (b) reject Buyer's Purchase Orders or cancel accepted Purchase Orders pursuant to the terms of Section 2.
  • No Set-off Right. Buyer shall not, and acknowledges that it will have no right, under these Terms and Conditions, any Purchase Order, any other agreement, document or Law to, withhold, offset, recoup or debit any amounts owed (or to become due and owing) to Seller, whether under these Terms and Conditions or otherwise, against any other amount owed (or to become due and owing) to it by Seller, whether relating to Seller's breach or non-performance of these Terms and Conditions, any Purchase Order, any other agreement between (a) Buyer or any of its Affiliates and (b) Seller, or otherwise.
  • Security Interest. To secure Buyer's prompt and complete payment and performance of any and all present and future indebtedness of Buyer to Seller, Buyer hereby grants Seller a security interest, in all inventory of goods purchased by Buyer from Seller, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. Seller may file a financing statement for such security interest and Buyer shall execute such statements or other documentation necessary to perfect Seller's security interest in such Goods. Buyer also authorizes Seller to execute, on Buyer's behalf, such statements or other documentation necessary to perfect Seller's security interest in such Goods. Seller shall be entitled to all applicable rights and remedies of a secured party under applicable Law.
  1. Termination.
    • Seller's Right to Terminate. Seller may terminate these Terms and Conditions, including any part of a Purchase Order, by providing written Notice to Buyer:
      • if Buyer fails to pay any amount when due under these Terms and Conditions ("Payment Failure");
      • if Buyer is in breach of any representation, warranty or covenant of Buyer under these Terms and Conditions (other than committing a Payment Failure), and either the breach cannot be cured or, if the breach can be cured, it is not cured by Buyer within a commercially reasonable period of time (in no case exceeding ninety (90) days) after Buyer's receipt of written Notice of such breach;
      • pursuant to and in accordance with Section 5.4(f); or
      • if Buyer (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

Any termination under this Section 6.1 will be effective on Buyer's receipt of Seller's written Notice of termination or such later date (if any) set forth in such Notice.

  • Effect of Expiration or Termination.
    • Upon the expiration or earlier termination of these Terms and Conditions, including any part of a Purchase Order, all indebtedness of Buyer to Seller under these Terms and Conditions of any kind, shall become immediately due and payable to Seller, without further notice to Buyer.
    • Termination of these Terms and Conditions will not affect any rights or obligations of the Parties that:
      • come into effect upon or after termination or expiration of these Terms and Conditions; or
      • otherwise survive the termination of these Terms and Conditions pursuant to Section 3 and were incurred by the Parties prior to such termination.
    • Any Notice of termination under these Terms and Conditions automatically operates as a cancellation of any deliveries of Goods to Buyer that are scheduled to be made subsequent to the effective date of termination, whether or not any orders for such Goods had been accepted by Seller. With respect to any Goods that are still in transit upon termination of these Terms and Conditions, Seller may require, in its sole discretion, that all sales and deliveries of such Goods be made on either a cash-only or certified-check basis.
    • Subject to Section 2(b), the Party terminating these Terms and Conditions shall not be liable to the other Party for any damage of any kind (whether direct or indirect) incurred by the other Party by reason of the termination of these Terms and Conditions. Termination of these Terms and Conditions will not constitute a waiver of any of either Party's rights, remedies or defenses under these Terms and Conditions, at law, in equity or otherwise.
  1. Certain Obligations of Buyer.
    • Certain Prohibited Acts. Notwithstanding anything to the contrary in these Terms and Conditions, neither Buyer nor any Buyer Personnel shall:
      • make any representations, warranties, guarantees, indemnities, similar claims, or other commitments:
        • actually, apparently or ostensibly on behalf of Seller, or
        • to any customer or other Person with respect to the Goods, which are additional to or inconsistent with any then-existing representations, warranties, guarantees, indemnities, similar claims, or other commitments in these Terms and Conditions or any written documentation provided by Seller to Buyer.
      • engage in any unfair, competitive, misleading, or deceptive practices respecting Seller, Seller's Trademarks or the Goods, including any product disparagement; and
      • separate any software or accessories sold, bundled or packaged with any Good from such Good or sell, license or distribute such software on a standalone basis, or remove, translate or modify the contents or documentation of or related to such software or accessories, including any customer license agreements or warranty statements.
    • Government Contracts. Buyer shall not resell Goods to any Governmental Authority or its respective agencies without Seller's prior written approval. Unless otherwise separately agreed in writing between Seller and Buyer, no provisions required in any US government contract or subcontract related thereto shall be a part of these Terms and Conditions or imposed upon or binding upon Seller, and these Terms and Conditions shall not be deemed an acceptance of any government provisions that may be included or referenced in Buyer's request for quotation, Purchase Order or any other document.
    • Credit Risk on Resale of the Goods to Customers. Buyer shall be responsible for all credit risks with respect to, and for collecting payment for, all products (including Goods) sold to its customers or other third parties, whether or not Buyer has made full payment to Seller for such products. The inability of Buyer to collect the purchase price for any product shall not affect Buyer's obligation to pay Seller for any Goods.
  2. Compliance with Laws. Buyer shall at all times comply with all Laws applicable to these Terms and Conditions, Buyer's performance of its obligations hereunder, and Buyer's use or sale of the Goods. Without limiting the generality of the foregoing, Buyer shall (a) at its own expense, maintain all certifications, credentials, licenses, and permits necessary to conduct its business relating to the purchase, use or resale of the Goods and (b) not engage in any activity or transaction involving the Goods, by way of resale, lease, shipment, use or otherwise, that violates any Law.
  3. Representations and Warranties.
    • Buyer's Representations and Warranties. Buyer represents and warrants to Seller that:
      • it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of these Terms and Conditions;
      • the performance of these Terms and Conditions by Buyer will not violate, conflict with, require consent under or result in any breach or default under (i) any of Buyer's organizational documents, (ii) any applicable Law or (iii) with or without notice or lapse of time or both, the provisions of any Buyer Contract;
      • it is in compliance with all applicable Laws and Buyer Contracts relating to these Terms and Conditions, the Goods and the operation of its business;
      • it has obtained all licenses, authorizations, approvals, consents, or permits required by applicable Laws to conduct its business generally and to perform its obligations under these Terms and Conditions; and
      • it is not insolvent and is paying all of its debts as they become due.
    • Seller's Representations and Warranties. Seller represents and warrants to Buyer that:
      • it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of these Terms and Conditions;
      • the performance of these Terms and Conditions by Seller will not violate, conflict with, require consent under or result in any breach or default under (i) any of Seller's organizational documents, (ii) any applicable Law or (iii) with or without notice or lapse of time or both, the provisions of any Seller Contract;
      • it is in compliance with all applicable Laws relating to these Terms and Conditions, the Goods and the operation of its business; and
      • it has obtained all licenses, authorizations, approvals, consents, or permits required by applicable Laws to conduct its business generally and to perform its obligations under these Terms and Conditions.
    • Limited Product Warranty. Subject to the provisions of Sections 9.4 through 9.8 and the Product Return Policy, Seller warrants to Buyer (the "Product Warranty") that:
      • for a period of one hundred eighty (180) days from the date of shipment of a Good (the "Warranty Period"), each Good will materially conform to the specifications approved by Buyer for the Goods; and
      • Buyer will receive good and valid title to all Goods, free and clear of all encumbrances and liens of any kind.
    • Product Warranty Limitations. The Product Warranty and the Product Return Policy does not apply to any Good that:
      • has been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions or use contrary to any instructions issued by Seller;
      • has been reconstructed, repaired, or altered by Persons other than Seller or its authorized Representative; or
      • has been used with any Third-Party Products, hardware, or product that has not been previously approved in writing by Seller.
    • Buyer's Exclusive Remedy for Defective Goods. Notwithstanding any other provision of these Terms and Conditions (except for Section 8), this Section 9.5 and the Product Return Policy contains Buyer's exclusive remedy for Defective Goods. Buyer's remedy under this Section 9.5 is conditioned upon Buyer's compliance with the Product Return Policy.

Buyer has no right to return for repair, replacement, credit, or refund any Good except as set forth in this Section 9.5 and the Product Return Policy (or if otherwise applicable, Section 4.6 or Section 9.8). In no event shall Buyer reconstruct, repair, alter or replace any Good, in whole or in part, either itself or by or through any third party.

SUBJECT TO SECTION 9.8, THIS SECTION 9.5 AND THE PRODUCT RETURN POLICY SETS FORTH BUYER'S SOLE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED PRODUCT WARRANTY SET FORTH IN SECTION 9.3.

  • DISCLAIMER OF OTHER REPRESENTATIONS AND WARRANTIES; NON-RELIANCE. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN SECTION 9.2 AND THE PRODUCT WARRANTY SET FORTH IN SECTION 9.3 AND THE PRODUCT RETURN POLICY, (A) NEITHER SELLER NOR ANY PERSON ON SELLER'S BEHALF HAS MADE OR MAKES ANY EXPRESS OR IMPLIED REPRESENTATION OR WARRANTY WHATSOEVER, EITHER ORAL OR WRITTEN, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT OR PERFORMANCE OF GOODS OR PRODUCTS TO STANDARDS SPECIFIC TO THE COUNTRY OF IMPORT, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED, AND (B) BUYER ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY SELLER, OR ANY OTHER PERSON ON SELLER'S BEHALF, EXCEPT AS SPECIFICALLY PROVIDED IN SECTIONS 9.2 AND 9.3 OF THESE TERMS AND CONDITIONS AND THE PRODUCT RETURN POLICY.
  • Third-Party Products. Buyer acknowledges that the Goods purchased by Buyer under these Terms and Conditions may contain, be contained in, incorporated into, attached to, or packaged together with products manufactured by a third party ("Third-Party Products"). Third-Party Products are not covered by the warranty in Section 3 and the Product Return Policy. For the avoidance of doubt, Seller makes no representations or warranties with respect to any Third-Party Products.
  • Withdrawal of Goods. If Seller determines that any Goods sold to Buyer may be Defective, at Seller's request, Buyer shall withdraw all similar Goods from sale and, at Seller's option, either return such Goods to Seller (pursuant to the terms of the Product Return Policy) or destroy the Goods and provide Seller with written certification of such destruction. Notwithstanding the limitations of Section 5, if Buyer returns all withdrawn Goods or destroys all withdrawn Goods and provides Seller with written certification of such destruction within thirty (30) days following Seller's withdrawal request, in either case, consistent with Seller's instructions, unless any such defect has not been caused or contributed to by any of the factors described under Section 9.4, Seller shall (a) repair or replace all such returned Goods or (b) replace such destroyed Goods, in either case, pursuant to the terms of the Product Return Policy. THIS SECTION 9.8 SETS FORTH BUYER'S SOLE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY GOODS THAT ARE WITHDRAWN PURSUANT TO THIS SECTION 9.8.
  1. Indemnification.
    • Mutual Indemnification. Subject to the terms and conditions of these Terms and Conditions, including those set forth in Section 2, each Party (as "Indemnifying Party") shall indemnify, defend and hold harmless the other Party and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, "Indemnified Party") against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, fees and the costs of enforcing any right to indemnification under these Terms and Conditions and the cost of pursuing any insurance providers, incurred by Indemnified Party (collectively, "Losses"), arising out or resulting from any third-party Claim or any direct Claim against Indemnifying Party alleging:
      • a breach or non-fulfillment of any of Indemnifying Party's representations, warranties, or covenants set forth in these Terms and Conditions;
      • any grossly negligent or more culpable act or omission of Indemnifying Party or its Personnel (including any recklessness or willful misconduct) in connection with the performance of these Terms and Conditions;
      • any bodily injury, death of any Person or damage to real or tangible personal property caused by the willful or grossly negligent acts or omissions of Indemnifying Party or its Personnel; or
      • any failure by Indemnifying Party or its Personnel to materially comply with any applicable Laws.

Notwithstanding anything to the contrary in these Terms and Conditions, this Section 10.1 does not apply to any Claim (whether direct or indirect) for which a sole or exclusive remedy is provided for under another section of these Terms and Conditions, including Section 4.4, Section 4.6, Section 9.5, and Section 9.8.

  • Exceptions and Limitations on Indemnification. Notwithstanding anything to the contrary in these Terms and Conditions, an Indemnifying Party is not obligated to indemnify or defend (if applicable) an Indemnified Party against any Claim if such Claim or corresponding Losses arise out of or result from, in whole or in part, the Indemnified Party's or its Personnel's:
    • gross negligence or more culpable act or omission (including recklessness or willful misconduct); or
    • bad faith failure to materially comply with any of its obligations set forth in these Terms and Conditions; or
    • use of the Goods in any manner not otherwise authorized under these Terms and Conditions or that does not materially conform with any usage guidelines provided by Seller.
  • EXCLUSIVE REMEDY. THIS SECTION 10 SETS FORTH THE ENTIRE LIABILITY AND OBLIGATION OF EACH INDEMNIFYING PARTY AND THE SOLE AND EXCLUSIVE REMEDY FOR EACH INDEMNIFIED PARTY FOR ANY DAMAGES COVERED BY THIS SECTION 10.
  1. Limitation of Liability.
    • NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT UNDER THESE TERMS AND CONDITIONS, LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY OR THEIR REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS AND CONDITIONS, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT THE OTHER PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
    • MAXIMUM LIABILITY FOR DAMAGES. EXCEPT FOR OBLIGATIONS TO MAKE PAYMENT UNDER THESE TERMS AND CONDITIONS, LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND CONDITIONS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO SELLER PURSUANT TO THESE TERMS AND CONDITIONS IN THE ONE (1) YEAR PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
    • ASSUMPTION OF RISK. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY GOODS IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY SELLER, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE GOODS.
  2. Intellectual Property Rights.
    • Ownership. Buyer acknowledges and agrees that:
      • except to the extent provided in a separate written agreement between Buyer and Seller, Seller (or its licensors) will retain all Intellectual Property Rights used to create, embodied in, used in, and otherwise relating to the Goods and any of their component parts;
      • any and all Seller's Intellectual Property Rights are the sole and exclusive property of Seller or its licensors;
      • Buyer shall not acquire any ownership interest in any of Seller's Intellectual Property Rights under these Terms and Conditions;
      • any goodwill derived from the use by Buyer of Seller's Intellectual Property Rights inures to the benefit of Seller or its licensors, as the case may be;
      • if Buyer acquires any Intellectual Property Rights in or relating to any product (including any Good) purchased under these Terms and Conditions (including any rights in any Trademarks, derivative works or patent improvements relating thereto), by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Seller or its licensors, as the case may be, without further action by either Party; and
      • Buyer shall use Seller's Intellectual Property Rights only in accordance with these Terms and Conditions and any instructions of Seller.
    • Prohibited Acts. Buyer shall not:
      • take any action that interferes with any of Seller's rights in or to Seller's Intellectual Property Rights, including Seller's ownership or exercise thereof;
      • challenge any right, title, or interest of Seller in or to Seller's Intellectual Property Rights;
      • make any claim or take any action adverse to Seller's ownership of Seller's Intellectual Property Rights;
      • register or apply for registrations, anywhere in the world, for Seller's Trademarks or any other Trademark that is similar to Seller's Trademarks or that incorporates Seller's Trademarks;
      • use any mark, anywhere, that is confusingly similar to Seller's Trademarks;
      • engage in any action that tends to disparage, dilute the value of, or reflect negatively on the products purchased under these Terms and Conditions (including Goods) or any Seller Trademark;
      • misappropriate any of Seller's Trademarks for use as a domain name without prior written consent from Seller; or
      • alter, obscure, or remove any of Seller's Trademarks or trademark or copyright notices or any other proprietary rights notices placed on the products purchased under these Terms and Conditions (including Goods), marketing materials, or other materials that Seller may provide.
  1. Confidentiality.
    • Scope of Confidential Information. Either Party (as the "Disclosing Party") may disclose or make available to the other Party (as the "Receiving Party") information about its business affairs, goods and services, confidential information and materials comprising or relating to Intellectual Property Rights, Trade Secrets, third-party confidential information, and other sensitive or proprietary information. Such information, as well as the terms of these Terms and Conditions, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," is collectively referred to as "Confidential Information" hereunder. Notwithstanding the foregoing, Confidential Information does not include information that at the time of disclosure:
      • is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 13 by the Receiving Party or any of its Representatives;
      • is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information;
      • was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party;
      • was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party's Confidential Information; or
      • is required to be disclosed pursuant to applicable Law.
    • Protection of Confidential Information. The Receiving Party shall, for five (5) years from receipt of such Confidential Information:
      • protect and safeguard the confidentiality of the Disclosing Party's Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
      • not use the Disclosing Party's Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under these Terms and Conditions; and
      • not disclose any such Confidential Information to any Person, except to the Receiving Party's Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under these Terms and Conditions.

The Receiving Party shall be responsible for any breach of this Section 13 caused by any of its Representatives. On the termination of these Terms and Conditions, the Receiving Party and its Representatives shall promptly return all Confidential Information and copies thereof that it has received under these Terms and Conditions.

  1. Tooling. All Tooling used to manufacture the Goods is owned by Seller ("Seller Tooling"). Buyer has no right, title, or interest in or to any of the Seller Tooling.
  2. Access and Audit Rights. Buyer hereby grants Seller access to Buyer's operations, facilities, books and records, correspondence, writings, drawings, and receipts related to the Goods for the purpose of ensuring Buyer's compliance with these Terms and Conditions. Buyer shall also cooperate fully with Seller with respect to all reasonable requests of Seller relating to the foregoing access rights.
  3. Miscellaneous.
    • Further Assurances. Upon a Party's reasonable request, the other Party shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to these Terms and Conditions.
    • Relationship of the Parties. The relationship between Seller and Buyer is solely that of vendor and vendee, and they are independent contracting parties. Nothing in these Terms and Conditions creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.
    • Survival; Statute of Limitations. Subject to the limitations and other provisions of these Terms and Conditions: (a) the representations and warranties of the Parties contained herein will survive the termination of these Terms and Conditions for a period of twelve (12) months after such termination; and (b) any provision that, in order to give proper effect to its intent, should survive such termination, will survive the termination of these Terms and Conditions for the period specified therein, or if nothing is specified for a period of twelve (12) months after such termination. All other provisions of these Terms and Conditions will not survive the termination of these Terms and Conditions. Notwithstanding any right under any applicable statute of limitations to bring a claim, no Action based upon or arising in any way out of these Terms and Conditions may be brought by either Party after the expiration of the applicable survival or other period set forth in this Section 3 and the Parties waive the right to file any such Action after the expiration of the applicable survival or other period; provided, however, that the foregoing waiver and limitation do not apply to the collection of any amounts due to Seller under these Terms and Conditions.
    • Notices. All notices, requests, consents, claims, demands, waivers, and other communications under these Terms and Conditions (each, a "Notice") must be in writing and addressed to the other Party at its address set forth in the preamble of these Terms and Conditions (or to such other address that the receiving Party may designate from time to time in accordance with this section). All Notices must be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms and Conditions, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
    • Interpretation. For purposes of these Terms and Conditions: (a) the words "include," "includes" and "including" are deemed to be followed by the words "without limitation"; (b) the word "or" is not exclusive; (c) the words "herein," "hereof," "hereby," "hereto" and "hereunder" refer to these Terms and Conditions as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in these Terms and Conditions: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, these Terms and Conditions; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties drafted these Terms and Conditions without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of these Terms and Conditions to the same extent as if they were set forth verbatim herein.
    • Headings. The headings in these Terms and Conditions are for reference only and do not affect the interpretation of these Terms and Conditions.
    • Severability. If any term or provision of these Terms and Conditions is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the court may modify these Terms and Conditions to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
    • Amendment and Modification. No amendment to these Terms and Conditions is effective unless it is in writing, identified as an amendment to these Terms and Conditions and signed by an authorized Representative of each Party.
    • Waiver.
      • No waiver under these Terms and Conditions is effective unless it is in writing and signed by an authorized representative of the Party waiving its right.
      • Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion.
      • None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from these Terms and Conditions:
        • any failure or delay in exercising any right, remedy, power or privilege or in enforcing any condition under these Terms and Conditions; or
        • any act, omission, or course of dealing between the Parties.
      • Cumulative Remedies. All rights and remedies provided in these Terms and Conditions are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise. Notwithstanding the previous sentence, the Parties intend that Buyer's rights under Section 4, Section 4.6, Section 9.5, and Section 10 are such Party's exclusive remedies for the events specified therein.
      • Equitable Remedies. Each Party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under Section 13 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such Party of any such obligations, the other Party shall, in addition to any and all other rights and remedies that may be available to such Party at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each Party agrees that such Party will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 11.
      • Assignment. Buyer may not assign any of its rights or delegate any of its obligations under these Terms and Conditions without the prior written consent of Seller. Seller may assign any of its rights or delegate any of its obligations to any Person acquiring all or substantially all of Seller's assets. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under these Terms and Conditions.
      • Successors and Assigns. These Terms and Conditions is binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.
      • No Third-Party Beneficiaries. Except as expressly set forth in the second sentence of this Section 14, these Terms and Conditions benefits solely the parties to these Terms and Conditions and their respective permitted successors and permitted assigns, and nothing in these Terms and Conditions, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms and Conditions.
      • Governing Law. These Terms and Conditions, including all exhibits, schedules, attachments and appendices attached hereto and thereto, and all matters arising out of or relating to these Terms and Conditions, are governed by and construed in accordance with, the Laws of the State of Tennessee, United States of America, without regard to the conflict of laws provisions thereof. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms and Conditions.
      • Choice of Forum. Each Party irrevocably and unconditionally agrees that it shall not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to these Terms and Conditions, including all exhibits, schedules, attachments and appendices attached hereto and thereto, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the United States District Court for the Eastern District of Tennessee or, if such court does not have subject matter jurisdiction, the courts of the State of Tennessee sitting in Meigs County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in the United States District Court for the Eastern District of Tennessee or, if such court does not have subject matter jurisdiction, the courts of the State of Tennessee sitting in Meigs County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
      • Waiver of Jury Trial. Each Party acknowledges and agrees that any controversy that may arise under these Terms and Conditions, including any exhibits, schedules, attachments, and appendices attached to these Terms and Conditions, is likely to involve complicated and difficult issues and, therefore, each such Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to these Terms and Conditions, including any exhibits, schedules, attachments, and appendices attached to these Terms and Conditions, or the transactions contemplated hereby. Each Party certifies and acknowledges that (a) no Representative of the other Party has represented, expressly or otherwise, that such other Party would not seek to enforce the foregoing waiver in the event of a legal action, (b) such Party has considered the implications of this waiver, (c) such Party makes this waiver voluntarily, and (d) such Party has been induced to enter into these Terms and Conditions by, among other things, the mutual waivers and certifications in this Section.
      • Force Majeure. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached these Terms and Conditions, for any failure or delay in fulfilling or performing any term of these Terms and Conditions (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party's ("Impacted Party") control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, epidemics or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of these Terms and Conditions; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials. The Impacted Party shall give notice within fifteen (15) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party's failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this Section 16.18, either Party may thereafter terminate these Terms and Conditions upon thirty (30) days' written notice.
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