THESE CUSTOMER TERMS AND CONDITIONS (THESE “TERMS”) ARE THE ONLY TERMS AND CONDITIONS WHICH GOVERN THE SALE OF THE GOODS (THE “GOODS”) FROM MIXER DIRECT, INC. (THE “SELLER”) TO THE BUYER NAMED ON THE SIGNATURE PAGE TO THESE TERMS (THE “BUYER”). THE ACCOMPANYING SALES ORDER (HEREAFTER, THE “SALES ORDER”) AND THESE TERMS (COLLECTIVELY, THIS “AGREEMENT”) COMPRISE THE ENTIRE AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ANY AND ALL PRIOR OR CONTEMPORANEOUS UNDERSTANDINGS, AGREEMENTS, NEGOTIATIONS, REPRESENTATIONS, WARRANTIES, OR COMMUNICATIONS, WHETHER 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 TERMS TO SELLER. ANY TERMS, CONDITIONS AND/OR PROVISIONS CONTAINED IN BUYER’S INSTRUCTIONS OR ITS PURCHASE ORDER WHICH ARE IN ANY WAY INCONSISTENT WITH OR IN ADDITION TO THESE TERMS HEREIN ARE HEREBY REJECTED BY SELLER AND SHALL NOT BE APPLICABLE TO THESE TERMS OR BINDING IN ANY WAY UPON SELLER. SELLER’S FAILURE TO OBJECT TO TERMS CONTAINED IN BUYER’S PURCHASE ORDER (OR ANY OTHER COMMUNICATION FROM BUYER) OR SELLER’S FULFILLMENT OF THE BUYER’S ORDER WILL NOT BE DEEMED A WAIVER OF THESE TERMS OR AN ACCEPTANCE OF ANY OF THE TERMS CONTAINED IN BUYER’S TERMS AND CONDITIONS OR PURCHASE ORDER AND DOES NOT SERVE TO MODIFY OR AMEND THESE TERMS.
1. Title and Delivery. All Goods will be delivered in accordance with the terms in the Sales Order. Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods FOB Shipping Point to the address specified by the Buyer in the Sales Order (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods. Buyer shall be responsible for all freight, delivery, loading, and unloading costs and shall provide the equipment and labor necessary to receive and unload the Goods at the Delivery Point. Title and risk of loss to the Goods shall pass to Buyer at such time as the Seller delivers the Goods to the common carrier at the Seller’s shipping facility (the “Shipping Date”). Upon common carrier’s receipt of the Goods at the Seller’s Shipping facility, any subsequent loss or damage to the Goods shall not relieve Buyer from any payment obligation. Seller shall not be liable for any delays, loss or damage in transit. Buyer shall be responsible for pursuing any claims for loss or damage with the common carrier; provided, however, that Seller shall reasonably cooperate with Buyer with respect to such claims. Notwithstanding passage of title to Buyer on the Shipping Date, Seller shall retain a security interest and right of repossession in the Goods until Buyer has made payment in full. Therefore, as collateral for the payment of the sales 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 Kentucky Uniform Commercial Code. Buyer agrees to cooperate in whatever manner necessary, including executing the applicable UCC filing statements, to assist Seller in the perfection of such security interest. Mixer Direct Inc. dba MXD Process Seller reserves the right, in its sole discretion, without liability or penalty, to make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, the Agreement is severable as to any such partial shipment, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s Sales Order. Delay in delivery or other default of any shipment shall not relieve Buyer of its obligation to accept and pay for remaining deliveries. All delivery dates are approximate. Buyer shall be responsible for all import duties, taxes, and any other expenses incurred or licenses or clearances required at port of entry and destination, and shall be responsible for the costs, if any, incurred by Seller in relation to expedited or “RUSH” orders. Shipping dates are approximate only, and Seller shall not be liable for any damage, loss or expense incurred by Buyer if Seller fails to meet the specified shipping dates. If special or export packaging is requested by Buyer and approved by Seller in writing or, in the opinion of Seller, required under the circumstances, the cost of shipping, if not set forth on the Sales Order or invoice, will be separately invoiced to and payable by the Buyer. Unless specifically agreed in writing all shipments shall be to the same address. In the event Buyer requests a delay in shipment of completed Goods of longer than one (1) week following date of completion, Buyer agrees that Seller may move such completed Goods to a third-party offsite storage facility until the Goods are shipped to Buyer. Seller shall invoice Buyer for all moving and storage costs for such completed Goods. Buyer shall be responsible for insuring, at its own expense, any completed Goods held at the storage facility against loss or damage. The Buyer shall bear the risk of loss and any loss or damage to the Goods will not relieve Buyer from any payment obligation. 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) the Goods shall be deemed to have been delivered; and (ii) 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). Except for Seller’s right to replace Nonconforming Goods as provided herein, 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.
2. Buyer’s Acts or Omissions. If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay. Buyer agrees and acknowledges that upon Seller’s delivery of the Goods to the common carrier at the Seller’s shipping facility, the Buyer’s obligation to pay the Seller is fixed and is not contingent upon any subsequent act, including, without limitation, the payment or non-payment by a customer of the Buyer
3. Inspection and Rejection of Nonconforming Goods. Buyer shall inspect the Goods within ten (10) business days of delivery of the Goods to the Delivery Point (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing Mixer Direct Inc. dba MXD Process Customer Terms & Conditions of any Nonconforming Goods before the end of the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only Goods shipped that are different than the quantity or quality identified in the Sales Order. The quantity of any installment of Goods as recorded by Seller or common carrier on dispatch from Seller’s facility is conclusive evidence of the quantity received by the Buyer unless Buyer provides conclusive evidence to the contrary within ten (10) business days of delivery of the Goods. The Buyer is responsible for any costs associated with inspecting the Goods, provided the Seller shall reimburse the Buyer’s inspection costs for Nonconforming Goods. If Buyer timely notifies Seller 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 for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. The Seller shall pay the shipping expense for Nonconforming Goods returned to the Seller and incur the risk of loss. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving shipment of Nonconforming Goods, ship to Buyer, at Seller’s expense and risk of loss, the replaced Goods to the Delivery Point. Buyer acknowledges and agrees that the remedies set forth in this Section 4 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods.
4. Price and Transfer Taxes. Buyer shall purchase the Goods from Seller at the price(s) (the “Price”) set forth as of the date the Seller accepts the Sales Order accompanying these Terms. 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 are payable by Buyer. All invoices for deliveries to a Kentucky address shall separately include Kentucky sales and use tax unless Buyer shall have delivered to Seller a resale certificate or manufacturer’s sales and use tax exemption certificate in acceptable to Seller. Buyer shall be solely and directly responsible for the reporting of sales, use, excise, and any other similar taxes in any states other than Kentucky. If sales or other transfer taxes are not paid at the time of the sale, and are later determined to be applicable to the sale by a state of competent jurisdiction, the Buyer agrees to pay the sales or other transfer taxes at such later time. In the event that legal proceedings are employed to collect any payment, all costs thereof shall be paid by the Buyer.
5. Terms and Method of Payment. Buyer shall pay one hundred percent (100%) of the total sales price, including, without limitation, shipping, freight, and transfer taxes, on or before the Shipping Date, except where satisfactory open credit is established in Seller’s sole discretion, in which case the terms will be as negotiated by the Seller and the Buyer. If the Goods are delivered in installments, Buyer shall pay for each installment in accordance with the terms of payment set forth herein, and Buyer’s obligation to pay for such installment shall accrue regardless of whether the remaining installments are delivered. If Buyer fails to make any payment when due, Seller reserves the right to suspend or cancel performance under any or all Sales orders or agreements under which Seller has extended credit to Buyer or pursue any other remedy available to Seller. Seller’s suspension of performance may result in a rescheduling delay contingent on availability. All quotes and payments shall be in United States dollars. Buyer shall make all payments hereunder by wire transfer, check, ACH, or credit card (in which case additional fees apply). All late payments shall bear interest at the rate of the lesser of (i) the maximum rate allowable by law, or (ii) 1.5% per month. Mixer Direct Inc. dba MXD Process Customer Terms & Conditions https://www.mixerdirect.com/terms-conditions 4/8
6. Limited Warranty. (a) Except as otherwise provided in the Sales Order to which these Terms apply, Seller warrants to Buyer that for a period of ONE (1) YEAR beginning on the Shipping Date ("Warranty Period") such Goods (i) will substantially conform to the functional specifications set forth on the Seller’s website (currently www.mixerdirect.com) as of the Shipping Date, and (ii) will be free from material defects in workmanship and materials. Seller agrees the Limited Warranty is transferable by Buyer, subject to these Terms. THE WARRANTIES SET FORTH HEREIN SHALL NOT BE ENLARGED OR OTHERWISE AFFECTED BY, AND NO OBLIGATION OR LIABILITY OF SELLER SHALL ARISE OR GROW OUT OF, SELLER’S RENDERING OF TECHNICAL ADVICE OR SERVICES TO BUYER. (b) EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 6(A) ABOVE, SELLER MAKES NO OTHER WARRANTIES WHATSOEVER WITH RESPECT TO THE GOODS, WHETHER EXPRESS OR IMPLIED BY LAW, STATUTORY, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY (i) WARRANTIES OF MERCHANTABILITY; (ii) WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE; OR (iii) WARRANTIES AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY AND OTHER RIGHTS OF A THIRD PARTY, IF AND TO THE EXTENT THE CLAIMED INFRINGEMENT IS BASED UPON SPECIFICATIONS PROVIDED BY THE BUYER. (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 6(a) above. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING 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. The Seller may, in its reasonable discretion and based on actual facts and circumstances, replace a Third-Party Product. (d) The Seller shall not be liable for a breach of the warranties set forth in Section 6(a) unless: (i) Buyer gives written Notice of the defective Goods to the Seller’s website, reasonably described, to Seller within five (5) business days of the time when Buyer discovers or ought to have discovered the defect; (ii) if applicable, Seller is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in Section 6(a) to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller's place of business at Buyer's cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer's claim that the Goods are defective and not caused by Buyer’s accident, misuse, neglect, alteration, improper installation, unauthorized repair or improper testing. (e) The Seller shall not be liable for a breach of the warranty set forth in Section 6(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller's instructions as to the storage, installation, commissioning, or maintenance of the Goods; (iii) the Mixer Direct Inc. dba MXD Process Customer Terms & Conditions https://www.mixerdirect.com/terms-conditions 5/8 defect arises because the Goods are used by Buyer to any degree outside of normal intended use, which shall include, but are not limited to, use or storage of chemicals not expressly listed in Seller's published functional specifications for the Goods or industry specifications commercially known and practiced; or (iv) Buyer alters or repairs such Goods without the prior written consent of Seller.
7. Remedies. THE REMEDIES SET FORTH IN THIS SECTION SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 6(A). Subject to Section 6(d) and Section 6(e) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (a) repair or replace the Goods (or the defective part only) causing breach of the warranties set forth in the previous section, or (b) credit Buyer’s account or refund the amounts actually paid by Buyer for any Goods in breach of the Limited Warranty. With respect to Goods which are in breach of the Limited Warranty, (i) Buyer will obtain a return merchandise authorization (RMA) from Seller, (ii) if Seller so requests, Buyer (at Seller’s cost) returns such Goods to Seller’s warehouse or to such other location as Seller directs. If Seller elects to repair or replace such Goods, Seller shall have a reasonable time to make such repairs or replace such Goods, and such repaired or replaced Goods shall be warranted for the remainder of the original warranty period. Such repair, replacement, or credit shall constitute fulfillment of all liability of Seller to Buyer whether based in contract, tort, indemnity, statutory provision, or otherwise. If Seller’s examination of the Goods finds that the alleged deficiencies do not exist, or were caused by accident, misuse, neglect, alteration, improper installation, unauthorized repair or improper testing by Buyer or Buyer’s agents, then, at Seller’s discretion, Seller may ship the Goods back to Buyer at Buyer’s expense.
8. LIMITATION ON SELLER’S LIABILITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SELLER, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, OR AGENTS SHALL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT [OR LOSS OF DATA OR DIMINUTION IN VALUE], INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR SELLER HAS BEEN ADVISED (OR NOT) OF THE POSSIBILITY OF SUCH DAMAGES, AND NOT WITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY, WHETHER IN CONNECTION TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID BY BUYER TO SELLER HEREUNDER FOR THE DEFECTIVE GOODS OR SERVICES DESCRIBED IN THE SALES ORDER. Seller shall not be liable for any unintended use or application of the Goods. In the event the Goods are made pursuant to the specifications of Buyer, and the same are found to infringe the rights of third parties under any intellectual property right, Buyer shall indemnify, defend and hold harmless Seller from and against all liabilities, damages, claims, losses, costs, and expenses (including, but not limited to, court costs and attorney’s fees) arising out of or resulting therefrom. Mixer Direct Inc. dba MXD Process Customer Terms & Conditions
9. Legal Compliance. Buyer at all times shall comply with all applicable federal, state, and local laws, rules, regulations, ordinances, and orders and Buyer shall indemnify, defend, and hold harmless Seller from and against all liabilities, damages, claims, losses, costs, and expenses (including, but not limited to, court costs and attorney’s fees) arising out of or resulting from Buyer’s breach or failure to comply therewith or breach or violation of these Terms. Buyer shall also, at its own expense, obtain and arrange, and as appropriate maintain in full force and effect, all governmental approvals, consents, permits, licenses, permissions, authorizations, declarations, filings, and registrations as may be necessary or advisable to carry out its obligations under this Agreement or for any and all uses of the Goods by Buyer including, but not limited to, any environmental or health and safety laws.
10. Cancellation. If, in Seller’s judgment, Buyer’s financial condition does not justify the terms of payment specified herein, Seller may cancel Buyer’s order unless Buyer immediately pays for all Goods which have been delivered and pays in advance for all Goods to be delivered. Buyer may cancel an order upon written Notice to Seller delivered not less than thirty (30) days prior to the scheduled shipment date of the Goods. If Buyer exercises such cancellation option, Buyer shall pay a cancellation fee in an amount equal to (i) 75% of the Sales price of the covered Goods for any order cancelled less than sixty (60) days (but not less than thirty (30) days) prior to the scheduled shipment date or (ii) 50% of the Sales price of the covered Goods for any order cancelled at least sixty (60) days prior to the scheduled shipment date. Any purported cancellation notice delivered less than thirty (30) days prior to the scheduled shipment date of the Goods shall be ineffective.
11. Agreement Term; Termination. This Agreement will apply to all Sales Orders placed after the execution date. Either Party may terminate this Agreement for any reason by providing the other Party 30-days’ notice in writing. Any such termination will not apply to Sales Orders placed prior to the notice. 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: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. Provisions of the Agreement which survive per their terms or by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Limitation of Liability, Waiver, Governing Law, and Submission to Jurisdiction.
12. Non-Waiver of Default. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. In the event of any default by Buyer, Seller may decline to make further shipments; provided, however, continuation of shipments or any failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall not operate, or be construed, as a waiver thereof and shall not in any way affect Seller’s legal remedies for any such default. 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.
13. 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 Mixer Direct Inc. dba MXD Process Customer Terms & Conditions
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.
14. 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.
15. 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.
16. Governing Law. The validity, performance, and construction of these Terms shall be governed by the laws of the Commonwealth of Kentucky, without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Kentucky or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Commonwealth of Kentucky.
17. Submission to Jurisdiction. With the exception of Seller’s rights to obtain injunctive relief from any court of competent jurisdiction, all actions and proceedings relating to or arising out of this Agreement shall be brought only in the U.S. District Court for the Western District of Kentucky, Louisville Division, or the state courts for Jefferson County, Kentucky, and the parties hereby acknowledge and irrevocably submit to exclusive jurisdiction of and venue in such courts. The U.N. Convention on contracts for the International Sale of Goods shall not apply to the Goods or this Agreement.
18. Force Majeure. The Seller shall not be liable or responsible, either wholly or in part, to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure, nonperformance, or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage (shortage of labor, fuel, raw material, or machinery). Production and deliveries may be allocated by Seller in its sole and reasonable discretion in the event of a shortage of Goods.
19. Assignment. Subject to Section 23, neither party shall assign or delegate (voluntarily, by operation of law or otherwise) this Agreement, or any of its rights or obligations thereunder, without the prior written approval of the other party. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves a party of any of its obligations under this Agreement. Mixer Direct Inc. dba MXD Process Customer Terms & Conditions
20. Modification. These Terms are attached to and comprise a part of the Sales Order between the parties and, together therewith and with all agreements and documents referred to herein or therein, constitute the entire agreement between the parties relating to the sale of the Goods and supersede all prior or contemporaneous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. Any representations or statements of any kind made by any representative of Seller which are not stated herein shall not be binding upon Seller. No addition to or deletion from or other modification of any provisions upon the face or reverse hereof shall be binding upon either party unless made in writing stating specifically that it amends these Terms and signed by a duly authorized representative of both parties. No course of dealing or usage of trade or course of performance shall be relevant to explain or supplement any term expressed in this agreement.
21. Severability. If any term or provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
22. Licensed Components. To the extent the Goods contain software or other licensed components, the Buyer takes the Goods as licensee, subject to the terms and conditions of the license applicable to such software or component.
23. Seller Reservations. The Buyer agrees the Seller may subcontract all or portions of the manufacture, assembly, and/or production of the Goods.
24. Services. The Seller may provide various professional services to Buyer as described in the Sales Order. In delivering such services, the Seller agrees to agrees to perform such services to the best of its ability and at a level of competency consistent with the services contracted for. The Seller’s liability for any services rendered is subject to the limitations described in Section 8.
25. Notice. 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 in the document to which these Terms are attached or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, by facsimile (with confirmation of transmission), by email, by a nationally recognized overnight mail service (with all fees pre-paid), or by certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice shall become effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements in this Section.
26. Cost and Attorneys’ Fees. If any party hereto shall bring any suit or action against another for relief, declaratory or otherwise, arising out of this agreement, the prevailing party shall have and recover against the other party, in addition to all costs and disbursements, reasonable attorneys’ fees.