Terms & Conditions Of Sale


KLAUSSNER FURNITURE INDUSTRIES, INC., KLAUSSNER FURNITURE OF CALIFORNIA, INC., CANDOR CREEK, LLC, KLAUSSNER INTERNATIONAL, LLC, KLAUSSNER CORPORATE SERVICES, INC., AND ANY OTHER DIRECT AND INDIRECT SUBSIDIARIES OF ANY OF THE FOREGOING


(collectively, "Seller")


GENERAL TERMS AND CONDITIONS OF SALE

 1. Applicable Law and Jurisdiction.


These general terms and conditions apply to, whether written or oral, all proposals and quotations submitted by Seller, to all purchase orders received by Seller, and to all products and services sold and/or provided by Seller (collectively, “Goods”), except as otherwise specifically provided in a document signed by Seller, and between Seller and the purchaser named on or to which such proposal, quotation, purchase order or other agreement is directed or received (“Buyer”).  This sale or any sale resulting herefrom consists only of these terms and conditions and those in other documents which are referred to herein or are attached hereto or in a document subsequently signed by Seller (all of which constitute the “Agreement”). THE AGREEMENT SHALL BE GOVERNED BY, CONSTRUED AND ENFORCED UNDER THE LAW OF THE STATE OF NORTH CAROLINA INCLUDING THE UNIFORM COMMERCIAL CODE IN FORCE ON THE INITIAL DATE OF THE AGREEMENT (“UCC”), EXCEPT AS PROVIDED HEREIN.  The U.N. Convention on the International Sales of Goods shall not apply. Any services to be provided hereunder, whether or not they are otherwise ancillary to and part of a sale of Goods (as separate units), shall be considered ancillary to a sale of Goods and the UCC shall apply to all goods and services to be provided hereunder. THE COURTS OF RANDOLPH COUNTY, NORTH CAROLINA SHALL HAVE EXCLUSIVE JURISDICTION OVER THE PARTIES AND THE CLAIMS ARISING UNDER OR RELATED TO THE AGREEMENT. The parties stipulate to the convenience of such courts in general, as to all litigation. THE PARTIES HEREBY IRREVOCABLY WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY LITIGATION, ACTION, PROCEEDING, CROSS-CLAIM OR COUNTERCLAIM IN ANY COURT (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, RELATING TO OR IN CONNECTION WITH (I) THE AGREEMENT OR THE VALIDITY, PERFORMANCE, INTERPRETATION, COLLECTION OR ENFORCEMENT HEREOF OR (II) THE ACTIONS OF THE PARTIES IN THE ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF. Any declaration of unenforceability of a provision shall be as narrow as possible and shall not affect the enforceability of the other provisions.


 2. Formation, Integration and Modification.


 (a)  The Agreement supersedes all previous quotations and agreements pertaining to Goods.  Delivery to Seller of Buyer’s acceptance of a Seller’s quotation (according to its terms), Seller’s actions in reliance on Buyer’s oral acceptance of a written or oral quotation, or Buyer’s receipt of Goods, shall constitute a binding contract under the terms of the Agreement.  The Agreement is subject to Seller’s revocation or cancellation without liability until it is approved by Seller.  Notice of such approval may be furnished to Buyer in the form of an acknowledgement, shipment, or other form of express approval.


 (b)  An order submitted by Buyer orally or in a purchase order or other writing (whether or not it contains terms or conditions modifying, adding to, repugnant to, or inconsistent with these Terms and Conditions) may be accepted, approved or filled by Seller, but any resulting contract and the liabilities or obligations of Seller shall be determined solely by the Agreement, and (unless Seller otherwise advises Buyer in writing) notice is hereby given that Seller objects to any such terms or conditions in Buyer’s purchase order or other writing.  Seller shall not be deemed to have in any way enlarged or modified its liabilities or obligations under the Agreement by filing such order or by failing to further object to Buyer’s terms or conditions.


 (c)  An order placed with and accepted by Seller can be canceled by Buyer only with the prior written consent of Seller and only upon terms that shall indemnify Seller for all losses incurred by Seller associated with Buyer’s cancellation, including but not limited to, the costs already incurred by Seller in performance of Seller’s contractual duties and any profits which Seller would have received had the contract been completed. If Buyer makes an assignment for the benefit of creditors, if a petition or other proceeding, voluntary or involuntary, is filed with respect to Buyer under applicable bankruptcy, reorganization or other insolvency laws, if Buyer generally becomes unable to pay its debts as they become due, or if Buyer fails to remit payment to Seller for Goods in accordance with the terms hereof, Seller may, at its option, cancel all deliveries of undelivered Goods or any accepted orders effective immediately by giving Buyer written notice of such cancellation.


 (d)  The Agreement is a final, complete and exclusive statement of the Agreement of the parties.  SELLER IS WILLING TO NEGOTIATE WRITTEN CHANGES TO THESE TERMS AND CONDITIONS, BUT RESERVES THE RIGHT TO MAKE AN ADJUSTMENT IN THE PRICE OF GOODS.  No modifications, limitations, waivers or discharge of the Agreement or any of its terms shall bind Seller unless in writing and signed by Seller’s authorized employee at its home office. Notwithstanding anything to the contrary in the Agreement, no modifications, limitation, waiver or discharge of any provision of the Agreement shall affect Buyer’s liabilities to Seller accrued prior thereto.  Seller may correct unilaterally any mathematical and typographical errors in the Agreement. Typed provisions of the Agreement take precedence over printed provisions.  A course of performance, course of dealing, or customs in the trade shall not constitute a modification or waiver by Seller of any right by Seller.


 (e)  The Agreement is only for the benefit of the parties, except all disclaimers and limitations applicable to Seller shall be for the benefit of Seller’s agents, employees, contractors, and suppliers.  If any provisions are determined to apply to third parties, all other provisions including limitations, waivers, and disclaimers shall also apply.


 3. Price Quotations


 (a)  Prices contained in Seller’s published price lists, if any, are subject to change without notice.  Prices contained in individual written quotations or proposals are firm only for a period of thirty (30) days from the date of the quotation after which Buyer should inquire of Seller as to their validity and request a written confirmation or revision. Prices do not include taxes and Buyer shall pay all applicable sales or other taxes levied with respect to Goods (and replacements) (“Taxes”) and the Agreement, unless exempt therefrom.  Should Buyer claim that it is exempt from any Taxes then Buyer shall furnish Seller with an exemption certificate which has been issued by an appropriate governmental authority.  Buyer hereby agrees to indemnify and hold Seller harmless for any and all Taxes that are the responsibility of Buyer and penalties or fines assessed against Seller or Buyer related thereto, whether or not due to Buyer’s claimed exemption from such imposition.  All prices are in United States Dollars.


 4. Order Criteria


Buyer shall have responsibility to check any and all purchase orders for accuracy, including, but not limited to, quantities, correct fabric and finish selections.


 5. Packaging


Any price quoted shall include Seller’s boxing and crating based on the manufacturing and quality specifications of Goods. Any request to deviate from the standard packaging methods chosen by Seller shall result in additional charges and fees for Buyer.


 6. Risk of Loss: Title


Unless otherwise indicated in a duly accepted purchase order or writing signed by both parties, all domestic shipments shall be delivered F.O.B. Seller’s dock.

 

 (a)  If Goods are delivered F.O.B. Seller’s dock:

i.  Whether or not Seller prepays shipping charges, risk of loss passes to Buyer upon tender of Goods to a carrier.

ii.  Seller’s breach of the Agreement shall not affect the passing of the risk of loss to Buyer notwithstanding any provision of law to the contrary.

iii.  Buyer assumes all responsibility for payment of freight, and all costs associated therewith, which freight charges and other costs may not be reflected in the prices quoted by Seller. Seller may, at Seller’s option, prepay freight and seek reimbursement from Buyer.

iv.  Unless requested in writing by Buyer, Seller shall not insure Goods against loss during transit. If Seller so insures any Goods, the cost of such insurance shall be the responsibility of Buyer.

v.  Title to the Goods or any part thereof shall not pass from Seller to Buyer until the later of (a) all payments due by Seller to Buyer for the Goods have been duly made and (b) the Goods have been made available to the carrier for delivery to Buyer. 

 

 (b)  If Buyer and Seller agree that the Goods are to be delivered F.O.B. destination, then:

i.  Risk of loss passes to Buyer once the Gods reach Buyer’s dock.

ii.  Title to the Goods or any part thereof shall not pass from Seller to Buyer until the later of (a) all payments due by Seller to Buyer for the Goods have been duly made and (b) the Goods have been delivered to Buyer’s dock.

 

 (c)  Without limiting any other rights of Seller, Seller may unilaterally increase prices to cover increased costs (plus reasonable overhead and profit) of design, materials, and manufacturing, including without limitation to reflect increases of costs of raw materials, labor, transportation, shipping, packaging, labeling, custom duties, taxes, storage, insurance, and boxing and crating.  In addition, and without limiting the foregoing or any other rights of Seller, Seller may unilaterally increase prices to cover increased costs (plus reasonable overhead and profit) of design, material and manufacturing to reflect increases required by changes required by Buyer after the date of any quotation.

 

 (d)  The Goods shall be and remain personal or moveable property, notwithstanding their mode of attachment to realty or other property.


 7. International Shipments


 (a)  With respect to any international shipments, unless otherwise agreed in writing by Buyer and Seller (which writing may be a purchase order), all Goods shall be delivered EX-WORKS (as defined by the International Chamber of Commerce (Incoterms 2010)).  

 

 (b)  Export licenses or authorizations necessary for the export of the Goods shall be the responsibility of Buyer, and Seller shall provide such information as may be reasonably necessary to enable Buyer to obtain such licenses or authorization(s). Buyer shall undertake such arrangements as necessary for the Goods to be covered by any duty deferral or free trade zone program(s) of the country of import.


 8. Payment

 

 (a)   Buyer shall pay all invoiced amounts in full upon the earlier of (a) thirty (30) days after the date Seller sends its invoice or (b) thirty (30) days after Buyer’s receipt of the Goods. Past due  amounts shall accrue interest at a rate equal to the greater of one and one-half percent (1.5%) per month and the maximum rate permitted by applicable law, from due date until paid, plus Seller’s reasonable costs of collection, including, but not limited to, reasonable attorneys’ fees and court costs. Seller reserves all other rights granted to a seller under the UCC for Buyer’s failure to pay for Goods or any other breach by Buyer of this Agreement. In addition to Seller’s right to cancel accepted orders pursuant to Section 2(c), Seller may from time to time demand different terms of payment from those specified herein whenever it reasonably appears that Buyer’s financial condition requires such change, and may demand assurance of Buyer’s ability to pay whenever it reasonably appears that such ability is in doubt.  Such demand shall be in writing and Seller may, upon making of such demand, stop production and suspend shipments hereunder.  If, within the period stated in such demand, Buyer fails or refuses such different terms of payment, or fails or refuses to give adequate assurance of his ability to pay, Seller may at Seller’s option treat such failure or refusal as a repudiation of any portion of an accepted order that has not been fully performed.  In all events, time shall be of the essence with regard to Buyer’s payment obligations to Seller hereunder.

 

 (b)  With respect to amounts properly invoiced hereunder, Buyer shall have no right of offset by virtue of any claim against Seller, unless and until such claim has been finally adjudicated in favor of Buyer by a court of competent jurisdiction and such adjudication is not subject to appeal, or Seller has acknowledged the validity and amount of such claim in writing.

 

 (c)  All amounts due on installation or other event which requires the action or cooperation of Buyer which Buyer fails to supply timely shall become due upon such failure.

 

 9. Delivery, Carrier and Routing


 (a)  Shipping dates are estimates based on Seller’s, and Seller’s suppliers’, present engineering and manufacturing capacity and scheduling, and may be revised by Seller upon receipt or scheduling of Buyer’s order.  All shipping dates are approximate and shall be computed from the date of entry of the order on Seller’s books.  All shipping dates are further subject to Seller’s prompt receipt from Buyer of a written purchase order or acceptance, letter of credit, down payment, and other conditions as specified in the Agreement, and of all drawings, information and approvals necessary to provide Goods and to grant any credit proposed in the Agreement.

 (b)  Seller shall not incur any obligation or liability to Buyer for failure to deliver by any particular date.


 10. Delay of Shipment or Performance Excused for Various Reasons


 (a)  If shipment of any Good or other performance by Seller is delayed at the request of or due to the fault of Buyer, Seller may at its option hold Good at the risk and expense of Buyer from the time it is ready for shipment. In the event of any such delay in shipment, full and final payment of Good shall be due and payable thirty (30) days after Buyer is notified that the item is ready for shipment.  If Seller is unwilling to accommodate Buyer by holding such item, Buyer shall accept shipment immediately.

 (b) Dates for Seller’s performance are estimates only.


 11. Inspection and Rejection


 (a)  Buyer shall inspect all shipped Goods immediately following arrival thereof at the destination, and shall give written notice to Seller within ten (10) days of the receipt thereof (i) of any claim that the Goods are nonconforming or damaged, provided that a reasonable inspection should have revealed such nonconformity or damage, or (ii) of any claim of shortage of Goods.  If Buyer shall fail to give such notice within such time period, Goods shall be deemed to conform to the terms of an accepted order, and Buyer shall be deemed to have accepted Goods.


 (b)  Except for the obligations stated herein, Seller’s responsibility for Goods ceases once Goods have been received and not rejected in accordance with this Section 11.


 (c)  Seller shall not be held responsible for any potential nonconformity and damage for Goods received by Buyer and not inspected within ten (10) days.


 (d)  Buyer shall promptly notify Seller in writing of any alleged damage in any Goods purchased from Seller, in reasonable detail to the satisfaction of Seller. Seller has the right to fully inspect any Good claimed nonconforming or damaged before making a final determination of the claim.


 (e)  In the event any Goods are determined by Seller to be nonconforming or damaged, written consent is required by Seller for Buyer to return said Goods. No replacement is allowed for nonconforming or damaged Goods returned without such prior written consent by Seller. Written consent sent to Buyer by Seller shall accompany all returned Goods; otherwise shipment of Goods shall be refused and returned to Buyer at Buyer’s cost. Returns shall be made within fifteen (15) days of written consent being given to Seller. Buyer’s failure to comply with this Section 11 shall result in Buyer’s claim for return deemed conclusively abandoned. Buyer is responsible for properly tagging, identifying, and packing returned Goods.


 12. General Limited Warranty


 (a)  Seller warrants to Buyer only that the portions of Goods manufactured by Seller shall be free from manufacturing defects in materials and workmanship which are discovered within the warranty period, subject to the disclaimers and limitations of the Agreement. The length of a warranty period shall be the longer of (a) one (1) year from date Seller makes the Goods available to the carrier or (b) such other express written warranty period as may be provided by Seller in its sole discretion. In each case, any warranty offered is not a warranty of performance, but a limited warranty as to the condition of Goods at the beginning of the warranty period.  Because Goods may be subject to a wide variety of use, installation, maintenance and cleaning, the warranty is only against such defects and not against any other failures such as, but not limited to, those due to wear and tear, and normal maintenance are excluded from this warranty against defects.


 (b)  Seller warrants to Buyer that Goods shall be as described in the Agreement in all material respects, subject to the limitations stated herein and Seller’s published and internal standards; however, Seller retains the right to change the dimensions, composition, design, performance, color and appearance of the Goods without liability if, in its judgment, the change is non-material.  Seller may, in its discretion, also rely on any generally accepted industry standards.


 (c)  Seller’s warranties shall apply only if Goods:  (i) have been installed, maintained, and used in conformity with instructions furnished by Seller from time to time, if any; (ii) have been subjected to normal use for the purpose for which Goods were designed; (iii) have not been subjected to misuse, negligence, or accident; and, (iv) have not been altered or repaired by persons other than Seller in any respect which, in the judgment of Seller, adversely affects the condition or operation of Goods.


 13. Termination by Seller


At any time prior to the earlier of (a) shipment of Goods or (b) payment of the Goods, Seller may, without incurring any liability, cancel or terminate any order by providing written notice to Buyer of such cancellation or termination.


 14. Flammability Codes


All Goods are manufactured to industry standards and are continually tested at both the point of manufacture and at testing laboratories. Goods may include polyurethane foam and fabrics that meet California Technical Bulletin #117-2013 requirements. It is Buyer’s responsibility to determine local flammability code requirements and inform Seller as to such code requirements. Exposure to sufficient heat and/ or flame could result in the foam burning and releasing heat, smoke and gases that if inhaled could inhibit breathing and result in serious injury or fatalities. It is the responsibility of Buyer to take all necessary precautions to ensure safety and open exits in the event of fire.


 15. Products Including Marble


Some Goods may incorporate marble. Buyer acknowledges and agrees that even though marble tops may be anti-stain treated prior to leaving Seller’s possession, marble is a porous material and food or liquid stains may occur if they are not removed immediately after happening. Buyer further acknowledges and agrees that Seller recommends that marble tops be re-treated with anti-stain at least twice a year using commercially available products. Buyer acknowledges and agrees that marble is a natural product and will show natural variations in color and composition.


 16. Table Top and Table Base Product


Buyer acknowledges and agrees that any recommended table top/ base sizes are for reference only. It is Buyer’s sole responsibility to confirm conformity with desired applications.


 17. Products with Wood Finishes


Buyer acknowledges and agrees that due to natural variations in the color of wood, Goods with wood finishes may show slight variations in color.


 18. Disclaimer and Limitation of Express Warranties


There are no express warranties other than those contained in the Agreement. Any representations as to performance and other matters, except as contained in the Agreement, were for illustrative purposes only and do not constitute a warranty.  Whether or not Goods are to be used exclusively by Buyer, there shall be no third party beneficiaries to the express warranties contained herein.  Seller does not warrant any portion of Goods not manufactured by or not furnished by Seller (whether or not specified by Buyer), but Seller shall assign to Buyer upon request all assignable warranties of Seller’s suppliers related to such Goods. All descriptions, shipping specifications and illustrations of Goods or Seller and its quality and other systems and capabilities in catalogues, brochures and price lists or otherwise provided by Seller are intended for general guidance only and Seller is not responsible for any errors or omissions therein or for any loss or damage resulting from reliance on them.  Seller does not warrant that it or Goods are in compliance with any entity, organization or industry standards, guidelines, or procedures unless specifically contained in the Agreement.


 19. Seller’s Remedies


Seller retains the right upon breach of the Agreement by Buyer to sell any Goods in Seller’s possession. In effecting any resale based upon breach of the Agreement by Buyer, Buyer shall remain liable for any net deficiency on resale of Goods. Seller shall be entitled to collect from Buyer reasonable attorneys’ fees and costs related to Buyer’s breach of the Agreement.


 20. Buyer’s Remedies


BUYER’S EXCLUSIVE REMEDY FOR SHORTAGE OF GOODS, DAMAGED OR DEFECTIVE GOODS (WHETHER OR NOT OCCURRING AS A RESULT OF SELLER’S ALLEGED NEGLIGENCE OR GROSS NEGLIGENCE), BREACH OF WARRANTY BY SELLER, OR ANY OTHER CAUSE OF ACTION ARISING OUT OF SELLER’S SALE OF GOODS (WHETHER ARISING IN CONTRACT, TORT, STRICT LIABILITY OR UNDER ANY OTHER LEGAL THEORY) IS EXPRESSLY LIMITED TO REPLACEMENT OF NONCONFORMING GOODS. BUYER SHALL HAVE NO RIGHT TO WITHHOLD PAYMENT OR MAKE A REDUCTION IN PRICE. BUYER’S REMEDY OF REPLACEMENT IS AVAILABLE ONLY IF NONCONFORMANCE WAS NOT CAUSED BY BUYER’S MISUSE, NEGLECT, IMPROPER STORAGE, OR TRANSPORTATION, OR BY ACCIDENT, FIRE OR OTHER HAZARD. BUYER’S REMEDY FOR BREACH OF WARRANTY BY SELLER SHALL BE LIMITED TO OBTAINING CONFORMING GOODS FROM SELLER. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES ARISING OUT OF THE SALE OF GOODS CONTEMPLATED HEREBY. Seller shall not be subject to liability for damages resulting from the handling, use or further processing of Goods furnished under this Agreement.  The warranties contained herein extend only to Buyer. Buyer waives any causes of action or theories of liability including, but not limited to, those arising under contract, the UCC, tort, strict liability, product liability, statutes, or otherwise, except as specifically provided herein.  The replacement of Goods by Seller does not give rise to any new warranty except the warranty period provided for herein shall be extended by the length of any period from the date the defective or non-conforming Goods are received by Seller until the date replacement Goods are delivered to Buyer. Buyer shall contact Seller requesting warranty coverage plus a return authorization number and other instructions for the return of Goods to Seller or other instructions.


 21. Disclaimer of Warranties


 (a)  THE WARRANTIES CONTAINED HEREIN ARE GIVEN IN LIEU OF ALL OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, AND ALL OTHER WARRANTIES ARE HEREBY DISCLAIMED BY SELLER, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.   Seller does not warrant Goods shall comply with the requirements of any safety or environmental code or regulation of any federal, state, municipality or other jurisdiction beyond the specific express warranties in this Agreement.


 (b)  Subject to Seller’s limitation of liability contained in this Section 21, in the event of a recall campaign related to any Good or components thereof, Buyer shall be responsible for the costs of complying with such recall campaign. If a recall campaign is mandated by a government authority and Buyer can show that the underlying defect relates to (a) a significant deviation from applicable specifications referenced in the order, or (b) a material defect in materials or workmanship, then Seller shall reimburse Buyer for any reasonable and direct expenses which may be incurred by Buyer as a result of such recall campaign.  In the event of a recall campaign related to Goods, Buyer and Seller agree to exchange information and consult with each other with respect to the need and advisability thereof.


 22. Indemnification


Buyer shall defend, indemnify, and hold harmless Seller from any and all third party claims, damages, costs, liabilities, and expenses (including reasonable attorneys’ fees) under theories of tort, product liability, negligence (ordinary or gross), warranty, contract, statute, or otherwise arising out of, or related to: (a) the use, storage, sale, processing or other disposition of the Goods, supplies or materials used in connection with the Goods, or parts manufactured with the Goods, if the action or inaction of Buyer or its employees, customers or agents, [or Buyer’s design specifications,] were a material or proximate cause of injuries or damages giving rise to claims against Seller, (b) the inaccuracy of any representation made by Buyer hereunder or any other document, instrument or agreement, and/ or (c) Buyer’s breach of any covenant contained herein or in any other document, instrument or agreement.


 23. Consequential, Incidental, and Other Damages


BUYER AND THIRD PARTIES SHALL NOT BE ENTITLED TO ANY CONSEQUENTIAL (WHETHER DIRECT OR INDIRECT), PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES, AS DEFINED IN THE UCC OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, DIMINUTION IN VALUE, LOST INCOME OR PROFITS AND INTERRUPTIONS IN BUSINESS.  This limitation shall be enforced regardless of whether Seller has defaulted in its warranty or other obligations.  Any legal inability to limit or restrict the right of Buyer or a third party to such damages shall not affect the right of Seller to indemnification hereunder, and under no circumstance shall Buyer recover more than the purchase price.  Buyer acknowledges that the remedies provided herein are exclusive and in lieu of all other remedies available to Buyer at law or in equity.


 24. Security Interest, Power of Attorney


In addition to any security interest granted by the UCC, Buyer hereby grants a security interest to Seller in all Goods and documents related thereto and proceeds and products therefrom to secure all obligations of Buyer to Seller, whether or not arising under the Agreement. Buyer shall take any such action and execute any documents (and expressly authorizes any such action taken by Seller) deemed necessary by Seller to perfect and maintain perfected such security interest granted hereunder.  Buyer grants Seller an irrevocable power of attorney to sign Buyer’s name to a financing statement if necessary or convenient to perfect Seller’s security interest.  In case of a default by Buyer, Seller may peaceably enter the premises of Buyer and others to repossess or render inoperable all Goods in which it has a security interest.


 25. Proprietary Information; Intellectual Property


 (a)  Any invention or other information developed by Seller in the performance of the Agreement or otherwise, including all rights, title and interest in any invention or other information, shall remain the sole property of Seller. Nothing herein shall constitute a license to or otherwise grant to Buyer of any rights in and to any of Seller’s intellectual property rights whether developed during performance of this Agreement or otherwise.


 (b)  Buyer hereby assigns all right, title, and interest in and to any inventions and information jointly developed with Seller in the performance of the Agreement without any further consideration.  In the event that Seller is unable, for any reason whatsoever, to secure Buyer’s signature on any document or instrument necessary to effectuate the intent of this subsection, Buyer hereby irrevocably designates and appoints Seller and its duly authorized representatives as Buyer’s agent and attorney-in-fact to act for and on Buyer’s behalf and to execute and file, and to take all further actions, as may be necessary or convenient to effectuate the intent of this subsection, with the same legal force and effect as if executed by Buyer.


 (c)  Any pictures and drawings provided by Seller, shall at all times remain the property of Seller and shall be returned to Seller following a request to do so.


 26. Confidentiality and Nondisclosure


 (a)  Buyer acknowledges that any information disclosed to Seller has not and shall not be confidential or a trade secret. Seller shall be under no obligation to refrain from using in its business any information which may pass to it from Buyer in the performance of the Agreement.


 (b)  Except as required by law, Buyer shall not disclose any of the terms or conditions of an accepted order, including price terms, to any third party (other than a permitted successor or assign) for any reason whatsoever. All specifications, drawings, sketches, models, samples, designs, technical information or data, written, oral or otherwise furnished by or on behalf of Seller, all proposals, plans and other information furnished by Seller in bidding, negotiating and performing the Agreement shall remain the property of Seller and shall be returned (together with all copies) promptly upon Seller’s request.  Such information shall be treated as confidential, and shall not be used, disclosed or reproduced by Buyer, except as required in the course of performance hereunder.  Buyer’s obligations of confidentiality hereunder with respect to each item of confidential information shall extend for a period of three (3) years from the date of Seller’s acceptance of the last order to which the items of confidential information in question pertain; provided, however that Buyer’s obligations of confidentiality hereunder with respect to any such items of information which rise to the level of a trade secret (as defined under applicable law) shall remain in full force and effect for so long as such information remains a trade secret under applicable law.  For purposes hereof, the confidentiality obligations embodied herein do not extend to any information which, at the time of disclosure, (i) is already known or independently developed by Buyer; (ii) is in the public domain through no wrongful act of Buyer; or (iii) is received by Buyer from a third party who was free to disclose such information.  The parties acknowledge that the rights of Seller hereunder are in addition to those rights Seller may have under common law or applicable statutes for the protection of trade secrets.


 27. Force Majeure


Seller shall not be liable for monetary damages or otherwise for any delay or failure to perform any of its obligations, for the time and to the extent such failure to perform is caused by:  (a) war, explosion, fire, flood, accident, severe weather or act of God; (b) strikes, lockouts or other labor troubles; (c) compliance with any governmental regulation, order or rule (foreign or domestic); (d) shortage or breakdown or other failure of facilities used for the manufacture or transportation of the products sold hereunder; (e) shortage or unavailability of labor, power, fuel, raw materials or other products necessary for the delivery of Goods sold hereunder; (f) cyber-attacks or Domain Name Server issues outside its direct control; or (g) any other cause or causes beyond the reasonable control of Seller or its suppliers.  In the event that Seller is unable, due to any such cause or otherwise, to fulfill Buyer’s total requirements of Seller, Buyer agrees to accept, as full and complete performance by Seller, deliveries of Goods in accordance with such allocations as Seller may make.  During periods when demand for available product exceeds supply, Seller may distribute its supply of raw materials and/or finished Goods among itself, for its own uses, its customers and Buyer in such manner as Seller deems practicable.  Buyer agrees to accept, as full and complete performance by Seller, deliveries in accordance with such determination as Seller may make.  In no event shall Seller be required to purchase material or product from third persons in the event that Seller invokes one of the above-mentioned clauses, nor shall Seller be liable for any cost increases suffered by Buyer in purchasing product from a third party.


 28. No Other Terms and Conditions


No modifications to these terms and conditions shall be effected by Seller’s receipt or acknowledgment of a purchase order from Buyer containing additional or different terms and conditions.  No statements or agreements, oral or written, shall vary or modify these terms and conditions.  [This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof.]


 29. Waiver


No waiver by either party of any breach of any of the terms or conditions contained herein shall be construed as a waiver of any succeeding breach of the same or any other term or condition contained herein.


 30. Assignability; Binding on Successors


Buyer shall not assign the Agreement, by operation of law or otherwise, without the express written consent of Seller. In the case of any permitted assignment or transfer of or under the Agreement, the Agreement shall be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the parties hereto.


 31. Relationship of Parties


Seller and Buyer are independent contracting parties and nothing in the Agreement shall make either party the agent, joint venturer or legal representative of the other for any purpose whatsoever, or grant either party any authority to assume or to create any obligation on behalf of or in the name of the other. Although third parties may be referenced, there are no third party beneficiaries to the Agreement.


 32. Ambiguities


Ambiguities, if any, in the Agreement shall not be construed against Seller, irrespective of which party may be deemed to have authored the ambiguous provision.


 33. United States Government Regulations; OFAC


 (a)  Buyer shall not engage in any transaction with respect to Goods which violates any statute or regulation of the United States Government.

 

 (b)  Buyer represents and covenants that all of the information provided by Buyer to Seller is true and correct as of the date of the order.  Buyer represents and covenants that it shall not re-export the Goods or any related technical information without complying with applicable U.S. Export Administration Regulations (“EAR”), International Traffic in Arms Regulations (“ITAR”) and laws administered by the Office of Foreign Assets Controls (“OFAC” and together with EAR and ITAR, the “Export Laws”). Diversion of the Goods or any related technical information contrary to U.S. law is prohibited. Buyer represents and covenants that it shall verify compliance with U.S. sanctions laws and represents and covenants that neither the end-user of the Goods (or any related technical information), Buyer, any beneficial owners of Buyer, nor any party involved in this transaction is (a) identified on any U.S. government sanctions lists, including but not limited to the Denied Persons List, Unverified List, Entity List, Specially Designated National List, Debarred List, Nonproliferation Sanctions List, and Sectoral Sanctions Identifications List (collectively, the “Prohibited Persons”), or (b) located in any U.S. embargoed or sanctioned countries or regions.  Buyer represents and covenants that Buyer is not providing and shall not provide any material, financial or technological support for or financial or other service to or in support of acts of terrorism or a Prohibited Person.  Buyer represents and covenants that it will comply with all prohibitions from 15 CFR Parts 736 and 746, including but not limited to those concerning prohibited exports, re-exports, imports, and sales to or from certain countries. Buyer represents and covenants that the Goods and any related technical information purchased from Seller will not be exported or re-exported to any country or end-user without the required licenses or approvals of the United States Government. 

 

 (c)   Buyer agrees to provide all information necessary for Seller to comply with all applicable laws, regulations and any related legal reporting, notification or other types of approval obligations in the country(ies) of origin and destination, including, without limitation, permits, authorization, licensing, reporting, disclosure or certification information required or desired under the Export Laws.  Buyer further agrees to provide all documentation and/or electronic transaction records to allow Seller to meet all customs or export-related obligations, any local content/origin requirements, and to obtain all tariff and trade program duty avoidance(s) and/or refund benefits, where applicable.

 

 (d)   Buyer will be the importer of record.  In addition, Buyer will furnish all consular and customs declarations and will accept and bear all responsibility for penalties resulting from errors or omissions thereon.

 

 (e)   Buyer represents and covenants that it shall comply and cause all of its subsidiaries and representatives to comply with all applicable laws, rules and regulations of any jurisdiction concerning or relating to bribery or corruption, including, without limitation, the United States Foreign Corrupt Practices Act of 1977, as amended (“FCPA”),  the U.K.’s Bribery Act of 2010, and the rules and regulations thereunder (collectively, “Anti-Corruption Laws”) and any applicable laws, rules and regulations of any jurisdiction concerning anti-money laundering and anti-terrorism.  Buyer represents and covenants that it shall not under any circumstances, whether acting on behalf of Seller or in connection with its business activities generally, offer to pay, pay, or issue authorization to pay any money, make any gift, provide any kickback or give anything of value (including, but not limited to trips, travel, insider information, etc.) to Seller or its customers, vendors, employees, government officials, etc. that is or could be perceived as intended, directly or indirectly, to: (i) improperly influence any business decision, any act or failure to act, any commission of fraud, or opportunity for the commission of any fraud or obtain any unfair competitive advantage or other business advantage; or (ii) which could violate federal or state and local laws or regulations, including but not limited to Anti-Corruption Laws. Buyer may not offer employment to foreign officials if doing so would violate applicable laws. Buyer must maintain accurate books and records.

 

 (f)   Buyer shall immediately notify Seller if any of the representations set forth in this Section 33 are no longer true or if any of the covenants of Buyer set forth in this Section 33 have been breached or violated.


 34. Certifications


Seller certifies that any Goods produced in the United States shall be produced in compliance with all applicable requirements of Sections 7 and 12 of the U.S. Fair Labor Standards Act, and of the regulations and orders of the U.S. Department of Labor issued under Section 14 thereof.  No other certifications or waivers regarding payments to Seller’s suppliers or laborers are required.


 35. Time for Bringing Action


Any proceeding by Buyer for breach of the Agreement or any other right against Seller arising from or in connection with a payment cannot be filed nor maintained unless:  (i) it is commenced within one (1) year after the cause for action has accrued; (ii) Buyer has given timely written notice to Seller of its claim as provided herein; and (iii) buyer deposits the unpaid portion of the purchase price with the tribunal pending final adjudication.  An action shall accrue no later than shipment of Goods.  Buyer shall give Seller written notice of any claim of breach of the warranties contained herein within one hundred (180) days after the occurrence of the event upon which such claim is founded; failure of Buyer to give such written notice shall constitute a waiver of all claims.