Terms of service
CONDITIONS OF SALE
The purpose of the following Terms and Conditions is to set forth the legal terms and conditions of the sale of goods to you by Color Tech Holdings, Inc., a Delaware corporation (“Color Tech Holdings”) Color Tech Holdings advises and encourages you to read the Terms and Conditions closely, as your acknowledgement that you have read, understood, and accept these Terms and Conditions is a prerequisite for Color Tech Holdings accepting your purchase order (the “Purchase Order”)
The Terms and Conditions include important information about the legal relationship between Color Tech Holdings and you, including:
A. Pricing and payment obligations;
B. Shipping, delivery, and inspection requirements;
C. Terms that require you to be in compliance with certain laws; and
D. Your obligation to respect, safeguard, and not infringe on our intellectual property rights (including, without limitation, by reverse engineering our products);
E. Your agreement not to resell or transfer our products.
(a) These terms and conditions of sale (these "Terms") are the only terms that govern the sale of the goods ("Goods") by Color Tech Holdings, Inc., a Delaware corporation having a principal place of business at 702 S Illinois Ave, Suite B-103, Oak Ridge TN 37830 USA ("Seller") to the name of the entity set forth in the accompanying Sales Confirmation ("Buyer"). Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Goods covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
(b) The accompanying invoice (the "Sales Confirmation" and these Terms (collectively, the "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer's general terms and conditions of purchase regardless of whether or when Buyer has submitted its Purchase Order or such terms. Fulfilment of Buyer's Purchase Order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms. Any terms or provisions added to any document issued by Buyer related to the Products, including without limitation any purchase order, are expressly rejected by Color Tech Holdings and any failure of Color Tech Holdings to object to terms or provisions in any subsequent communication from Buyer shall not be deemed a waiver or modification of these Terms. Buyer acknowledges that Color Tech Holdings offers the Products for sale on the express condition that the Buyer agrees to accept and be bound by these Terms. All orders by Buyer are subject to acceptance in writing by an authorized representative of Seller, in the form of a Sales Confirmation.
(c) These products are intended for commercial use / B2B. Our products are designed for informed users with experience in a relevant field, and designed for commercial & government use
(a) The goods will be delivered within a reasonable time after the receipt of Buyer's Purchase Order, subject to availability of finished Goods. Seller shall not be liable for any delays, loss, or damage in transit.
(b) Unless otherwise agreed in writing by the parties, the Goods shall be deemed to have been sold Ex Works (Incoterms 2020) or DAP depending on delivery arrangements and shall be delivered to the Buyer at Seller’s facility located in Oak Ridge TN, USA (the "Delivery Point") using an appropriate method for packaging such Goods, as directed by the Buyer. Buyer shall take delivery of the Goods within three (3) days of Seller's written notice that the Goods have been delivered to the Delivery Point. Buyer shall be responsible for all freight, loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
(c) Unless expressly agreed to by the Parties in writing, the Buyer shall select the method of shipment of, and the carrier for, the Goods, noting any requirements for hazardous freight in accordance with the Safety Data Sheet(s) of the Goods, if applicable. 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 units shipped whether such shipment is in whole or partial fulfilment of Buyer's Purchase Order.
(d) If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller's notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
(a) The quantity of any instalment of Goods as recorded by Seller on dispatch from Seller's place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
(b) The Seller shall not be liable for any non-delivery of Goods (even if caused by Seller's negligence) unless Buyer gives written notice to Seller of the non-delivery within fourteen (14) days of the date when the Goods would in the ordinary course of events have been received.
(c) Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
4. Quantity. If Seller delivers to Buyer a quantity of Goods of up to ten percent (10%) more or less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Sales Confirmation adjusted pro rata.
5. Cancellation of Transaction.
(a) Seller may, in its sole discretion, without liability or penalty, cancel any transaction if Seller determines that Buyer is in violation of its payment obligations or has materially breached or is in material breach of these Terms.
(b) Buyer may only cancel or amend the Purchase Order submitted by it with the written approval of Seller. In the event that Buyer requests to cancel the Purchase Order, and Seller approves the cancelation of the Purchase Order, Buyer shall remain responsible for all costs that Seller has incurred as a result of said Purchase Order.
6. Shipping Terms. Seller shall make delivery in accordance with the terms on the face of the Sales Confirmation.
(a) Title passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, 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. The security interest granted under this provision constitutes a purchase money security interest under the Delaware Uniform Commercial Code.
(b) Risk of loss to all Goods documented on a Sales Confirmation passes to Buyer upon Seller's tender of such units to the carrier.
8. Amendment and Modification. These Terms may only be amended or modified in a writing which specifically states that it amends these Terms and is signed by an authorized representative of each party.
9. Inspection and Rejection of Nonconforming Goods.
(a) Buyer shall inspect the Goods within three (3) days of receipt ("Inspection Period"). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. "Nonconforming Goods" means only the following: (i) product shipped is different than identified in Buyer's Purchase Order; or (ii) product's label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies Seller in writing of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the price paid for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Unless otherwise agreed to in writing by the Seller, the Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to a location agreed in writing by Seller. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer's shipment of Nonconforming Goods, ship to Buyer, at Buyer's expense and risk of loss, the replaced Goods to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in THIS SECTION 9 are Buyer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided under THIS SECTION 9 all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
(a) Buyer shall purchase the Goods from Seller at the prices (the "Prices") set forth in Seller's published price list in force as of the date that Seller accepts Buyer's Purchase Order. If the Prices should be increased by Seller before delivery of the Goods to a carrier for shipment to Buyer, then these Terms shall be construed as if the increased prices were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased prices.
(b) Notwithstanding Section 10(a), Seller may choose to offer Goods to a Buyer gratis, in exchange for Buyer’s evaluation of the Goods. In such cases, Buyer’s evaluation of the Goods shall be deemed to represent good and valuable consideration and these Terms shall still apply to all such transactions. By accepting any such Goods gratis from Seller, the Buyer expressly acknowledges, understands and agrees that these Terms shall apply in all respects to such transaction.
(c) All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any Governmental Authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personnel, or real or personal property or other assets.
(a) Buyer shall pay all invoiced amounts due to Seller within thirty (30) days from the date of Seller's invoice, unless Seller specifies otherwise. However, Seller reserves the right to request payment prior to delivery at their discretion. Buyer shall make all payments hereunder by wire transfer, cheque, or such other method which is specified by Seller. Payment should be made in US dollars, unless an alternative currency is agreed to in writing by both parties.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, reasonable attorneys' fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for thirty (30) days following written notice thereof.
(c) Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller's breach, bankruptcy, or otherwise.
(a) Seller warrants to Buyer that for a period of one (1) year from the date of shipment of the Goods ("Warranty Period"), that such Goods will materially conform to Seller's published specifications in effect as of the date of manufacture (including any “expiration date” or “use by date” or “best by” date printed on the product or the product label). Seller does not warrant that use of the Goods will detect every instance of contamination or that the absence of a colour reaction demonstrates the absence of contamination. Buyer acknowledges that test performance may vary depending on sampling technique, contaminant distribution, contaminant concentration, surface characteristics, environmental conditions, storage conditions, operator technique and other variables beyond Seller's control.
(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 12(a), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING WITHOUT LIMITATION ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(c) Products manufactured by a third party ("Third Party Product") may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Goods. Third-Party Products are not covered by the warranty in Section 12(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING WITHOUT LIMITATION ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY 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.
(d) The Seller shall not be liable for a breach of the warranty set forth in Section 12(a) unless: (i) Buyer gives written notice of the nonconformity or defect, reasonably described, to Seller within thirty (30) days of the time when Buyer discovers or ought to have discovered the nonconformity or defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller's place of business at Seller's cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer's claim that the Goods are nonconforming or otherwise defective.
(e) The Seller shall not be liable for a breach of the warranty set forth in Section 12(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the nonconformity or defect arises due to Buyer’s failure to follow Seller's oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; (iii) Buyer alters or repairs such Goods without the prior written consent of Seller; or (iv) the Buyer combines or otherwise utilizes the Goods with other goods or products.
(f) Subject to Section 12(d) and Section 12(e) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the nonconforming or defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller's expense, return such Goods to Seller.
(g) THE REMEDIES SET FORTH IN SECTION 12(f) SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 12(a).
(h) Without limiting anything contained in this Section 12, Buyer affirmatively agrees not to at any time make or give any warranties or any kind whatsoever to any third party or third parties regarding the Products or their performance.
(i) These products are qualitative field tests for indicative purposes. They do not replace dosimetry or quantitative laboratory analysis. The Goods are intended solely as qualitative field screening tools to assist operational decision-making. They are not intended to provide definitive identification, certification, quantitative analysis or regulatory compliance determinations and should not be relied upon as the sole basis for any health, safety, operational, legal or regulatory decision. Buyer remains solely responsible for all operational, health, safety, regulatory, security and commercial decisions made using information obtained from the Goods.
(j) Other reactions. Under certain circumstances colorimetric tests may produce false positives or unintended color reactions. Please see product specification sheets for details.
13. Intellectual Property.
(i) For the purposes of this Section 13, the following terms have the meanings set forth herein:
(ii) “Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to (i) Patents; (ii) Trademarks; (iii) internet domain names, whether or not Trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, websites, and URLs; (iv) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software, and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (v) Trade Secrets; and (vi) 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.
(iii) "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).
(iv) "Trademarks" means all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, 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 and extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.
(v) "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.
(b) Buyer acknowledges and agrees that:
(i) any and all Seller's Intellectual Property Rights are the sole and exclusive property of Seller (or its licensors, as applicable);
(ii) Buyer shall not acquire any ownership interest in any of Seller's Intellectual Property Rights under this Agreement;
(iii) any goodwill derived from the use by Buyer of Seller's Intellectual Property Rights inures to the benefit of Seller (or its licensors, as applicable);
(iv) if Buyer acquires any Intellectual Property Rights, rights in or relating to any Goods (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 of the Parties; and
(v) Buyer shall use Seller's Intellectual Property Rights solely for purposes of using the Goods under this Agreement and only in accordance with this Agreement and the instructions of Seller.
(i) take any action that might interfere with any of Seller's rights in or to Seller's Intellectual Property Rights, including Seller's ownership or exercise thereof;
(ii) challenge any right, title, or interest of Seller in or to Seller's Intellectual Property Rights;
(iii) reverse engineer, disassemble, or otherwise attempt to discover the underlying chemical compounds, methods of operation, or construction of the Goods;
(iv) Integrate the Goods into any product, device, or system without the express written permission of Seller;
(v) make any claim or take any action adverse to Seller's ownership of Seller's Intellectual Property Rights;
(vi) 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 in whole or in confusingly similar part;
(vii) use any mark, anywhere that is confusingly similar to Seller's Trademarks in whole or in confusingly similar part;
(viii) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Goods or any Seller's Trademarks;
(ix) misappropriate any of Seller's Trademarks for use as a domain name without prior written consent from Seller; or
(x) alter, obscure, or remove any Seller's Trademarks, or Trademark or copyright notices or any other proprietary rights notices placed on the Goods, marketing materials, or other materials that Seller may provide.
(a) Buyer affirmatively represents and warrants that it has submitted the Purchase Order for, and hereby is, purchasing the Goods solely for its own use.
(b) Buyer shall not, without the written approval of Seller, transfer the Goods to any other individual or entity regardless of the identity of the transferee.
(c) Buyer shall not, under any circumstance, sell the Goods to any other individual or entity.
(d) Distribution Partners, Resale Partners and Referral Agents are exempt from this Section 14, insofar as they need to resell Supplier Goods as agreed with Supplier.
15. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, LOSS OF DATA, DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID BY BUYER TO SELLER FOR GOODS DURING THE SIX-MONTH PERIOD IMMEDIATLEY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY.
(c) The limitation of liability set forth in Section 15(a) above shall not apply to (i) liability resulting from Seller's gross negligence or wilful misconduct and (ii) death or bodily injury resulting from Seller’s illegal or intentional acts or omissions.
16. Insurance. During the term of this Agreement, Seller shall, at its own expense, maintain and carry appropriate insurance.
(a) General Compliance with Laws Covenant. Buyer shall at all times comply with all laws applicable to this Agreement, 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 or use of the Goods and (b) not engage in any activity or transaction involving the Goods, by way of shipment, use or otherwise, that violates any law. Buyer is responsible for determining whether the Goods satisfy regulatory requirements applicable to Buyer's intended use.
(b) OFAC Representation and Warranty. Buyer is in compliance with the International Emergency Economic Powers Act (50 U.S.C. § 1701) and all other laws administered by the Office of Foreign Assets Control of the US Treasury Department (“OFAC”) or any other Governmental Authority imposing economic sanctions and trade embargoes ("Economic Sanctions Laws") against countries ("Embargoed Countries") and persons designated in such laws (collectively, "Embargoed Targets"). Buyer is not an Embargoed Target or otherwise subject to any Economic Sanctions Law.
(c) OFAC Covenant. Without limiting the generality of Section 17(a), Buyer shall comply with all Economic Sanctions Laws. Without limiting the generality of the foregoing, Buyer shall not:
(i) directly or indirectly export, re-export, transship, or otherwise deliver the Goods or any portion of the Goods to an Embargoed Target; or
(ii) broker, finance, or otherwise facilitate any transaction in violation of any Economic Sanctions Law.
(d) Antiboycott Laws Covenant. Without limiting the generality of Section 17(a), Buyer shall:
(i) comply with all laws that encourage or require US individuals and companies to refuse to participate in or cooperate with foreign boycotts that are not sanctioned by the US government, including the Anti-Boycott Act of 2018 (Title XVII, Subtitle B, Part II or Pub. L. No. 115-232), the Export Administration Regulations, Part 760, Restrictive Trade Practices and Boycotts of the Export Administration Regulations (EAR) (15 C.F.R. pt. 760 (2008)), and the Ribicoff Amendment to the Tax Reform Act of 1976, which added Section 999 to the Internal Revenue Code of 1986, as amended (collectively, the “Antiboycott Laws”;
(ii) not take any action that violates the Antiboycott Laws.
(e) Export Regulation (EAR and ITAR) Covenant. Buyer acknowledges that the Goods, including any software, documentation, and any related technical data included with, or contained in, such Goods, and any products utilizing any such Goods, software, documentation, or technical data (collectively, "Regulated Goods") may be subject to US export control Laws and regulations, including the Export Administration Regulations for which the Export Control Reform Act of 2018 provides permanent statutory authority, and the International Traffic in Arms Regulations administered by the US Department of State. Without limiting the generality of Section 17(a), and notwithstanding the fact that Buyer has agreed not to resell the Goods (or transfer Goods) without the written permission of Seller pursuant to Sections 14(a) and 14(b) of this Agreement, Buyer shall not under any circumstance, and shall not permit any third parties to under any circumstance, directly or indirectly, export, re-export, or release any Regulated Goods to any jurisdiction or country to which, or any party to whom, the export, re-export or release of any Regulated Goods is prohibited by applicable federal or foreign Law. Buyer shall be responsible for any breach of this Section by its, and its successors' and permitted assigns', parent, Affiliates, employees, officers, directors, partners, members, shareholders, customers, agents, distributors, resellers, or vendors that are not Buyer or Buyer's Representatives. Without limiting the generality of Section 17(a), Buyer shall comply with all applicable federal and foreign Laws, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, or releasing any Regulated Goods. Buyer shall provide prior written Notice of the need to comply with such Laws to any Person, firm, or entity which it has reason to believe is obtaining any such Regulated Good from the Buyer with the intent to export.
"CodeNu" items are subject to certain export restrictions. i. ECCN 1A004 ii. Group B controlled item and will only be sold & shipped to selected allowable countries. The Company also reserves the right to refuse sale at its discretion iii. Customer certifies the end use is compliant with the relevant export control restrictions. Customer certifies it will not cause the products to be sent or on-sold to a country or representative of a country not allowed under Group B controlled item restrictions.
(f) Foreign Corrupt Practices Act Representation and Warranty. Buyer and its representatives are in compliance with the Foreign Corrupt Practices Act of 1977, as amended ("FCPA"). Neither Buyer nor any of its Representatives has:
(i) used any corporate funds for any unlawful contribution, gift, entertainment, or other unlawful expense relating to political activity or to influence official action;
(ii) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds;
(iii) made any bribe, rebate, payoff, influence payment, kickback, or other unlawful payment; or
(iv) failed to disclose fully any contribution or payment made by Buyer (or made by any Person acting on its behalf of which Buyer is aware) that violates the FCPA.
(g) Foreign Corrupt Practices Act Covenant. Without limiting the generality of Section 17(a), Buyer shall, and shall cause its Representatives to, comply with the FCPA, including maintaining and complying with all policies and procedures to ensure compliance with the FCPA.
18. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for five (5) days after Buyer's receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) 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.
19. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and 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.
20. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section 20. This Section 20does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
21. Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (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") reasonable control, including, without limitation, the following force majeure events ("Force Majeure Event(s)"): (a) acts of God; (b) flood, fire, earthquake, 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 this Agreement; (f) national or regional emergency; and (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within five (5) 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 21, the other party may thereafter terminate this Agreement upon five (5) days' written notice.
22. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement.
23. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall 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 authority to contract for or bind the other party in any manner whatsoever.
24. 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 these Terms.
(a) All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Delaware without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Delaware.
(b) The United Nations Convention on Contracts for the International Sale of Goods (CISG) shall not apply to this Agreement.
26. Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Illinois in each case located in the City of Chicago and County of Cook, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.
27. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or via certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 27.
28. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
29. Survival. Provisions of these Terms which by their nature should apply beyond the term will remain in force after any termination or expiration of this Agreement including, but not limited to, Sections 8, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, and 29.