GENERAL TERMS AND CONDITIONS FOR THE SALE OF GOODS
These terms and conditions of sale (these "Terms") are the only terms which govern the sale of the goods ("Goods") by the seller ("Seller") to the person or entity, whose order for Goods is accepted by the Seller (or who accepts the Seller’s offer for the sale of Goods) ("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.
The confirmation of sale (the "Sales Confirmation" and these Terms (collectively, this "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 whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer's order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms.
(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, Seller shall deliver the Goods to Buyer’s designated location (the "Delivery Point") using Seller's standard methods for packaging and shipping such Goods.
(c) 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 fulfillment 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 installment 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 seven (7) -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. Shipping Terms. Delivery shall be made FOB Seller’s facility. Seller shall make delivery in accordance with the terms on the face of the Sales Confirmation.
5. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods to the first carrier for shipment to Buyer. 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 Ohio Uniform Commercial Code.
6. 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.
7. 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 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. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller's facility as designated 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 Section 8(b) are Buyer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 8(b), 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 unless specifically approved by Seller in writing.
(a) Buyer shall purchase the Goods from Seller at the price (the "Price") set forth in Seller's published price list in force as of the date that Seller accepts Buyer's purchase order. If the Price 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 price was originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased price.
(b) 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 amounts due to Seller on receipt of Seller's invoice, or in the case of online orders, at the time of placing an order. Buyer shall make all payments hereunder in US dollars.
(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, 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 seven (7) 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) Subject to the provisions of this Section 10, Seller warrants to Buyer that for the lifetime of the Goods ("Warranty Period"), that such Goods will materially conform to Seller's published specifications in effect as of the date of manufacture and will be free from material defects in material and workmanship.
(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11(a), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) 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.
(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 11(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) 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 11(a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within thirty (30) days of the time when Buyer discovers or ought to have discovered the 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 defective.
(e) The Seller shall not be liable for a breach of the warranty set forth in Section 11(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 oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
(f) Subject to Section 11(d) and Section 11(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 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. Seller has no liability under this Section 11 or these Terms, and the warranty shall be void for any of the following: (i) components that get consumed and replaced on a regular basis through normal use and operation of the Goods; (ii) Buyer’s failure to provide Seller with the nonconforming Goods or the opportunity to examine the Goods; (iii) improper installation, repair, alteration, tampering or use by Buyer or a third party not under Seller’s control and supervision; (iv) misuse, negligence or accident by Buyer or any third party; (v) Buyer’s or any third party’s failure to comply with all applicable laws or failure to seek qualified training on the use or operation of the Goods; and/or (vi) if the Goods have not been paid for in full.
(g) THE REMEDIES SET FORTH IN SECTION 11(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 11(a).
11. Limitation of Liability; Waiver, Release & Indemnification; Intellectual Property.
(a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR 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 OR 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 PURCHASE PRICE ALLOCABLE TO THE GOODS WHICH GIVES RISE TO THE CLAIM.
(c) ANY ACTION, SUIT, OR PROCEEDING EITHER AT LAW OR IN EQUITY ARISING OUT OF OR RELATING TO THE TRANSACTION(S) CONTEMPLATED UNDER THIS AGREEMENT SHALL NOT BE HAD OR MAINTAINED UNLESS THE ACTION SUIT OR PROCEEDING IS COMMENCED WITHIN ONE (1) YEAR OF THE TIME OF ACCRUAL THEREOF. IN NO EVENT, REGARDLESS OF CAUSE, SHALL SELLER BE LIABLE FOR THE ACTS OR OMISSIONS OF BUYER OR THIRD PARTIES.
(d) BUYER UNDERSTANDS AND AGREES THAT THERE ARE CERTAIN INHERENT RISKS ASSOCIATED WITH THE USE, INSTALLATION, AND/OR OPERATION OF THE GOODS SUCH AS THE POTENTIAL FOR DEATH, PERMANENT DISABILITY, SERIOUS INJURY, DISEASE, AND/OR PERSONAL LOSS AND THAT BUYER IS USING, INSTALLING AND/OR OPERATING THE GOODS AT BUYER’S OWN RISK. BUYER ACCEPTS AND ASSUMES FULL RESPONSIBILITY FOR ANY AND ALL RISKS, INJURIES, DAMAGES (BOTH ECONOMIC AND NON-ECONOMIC), AND LOSSES OF ANY TYPE, WHICH MAY OCCUR TO BUYER OR ANY THIRD PARTY, ASSOCIATED WITH BUYER’S HANDLING, USE, INSTALLATION, OPERATION, ALTERATION, TAMPERING, POSSESSION, STORAGE, OR SALE OF THE GOODS, INCLUDING BY WAY OF EXAMPLE AND NOT LIMITATION, ANY RISKS THAT MAY ARISE FROM NEGLIGENCE OR CARELESSNESS ON THE PART OF BUYER OR ANY THIRD PARTY, FROM DANGEROUS OR DEFECTIVE GOODS OR IMPROPER HANDLING, USE, INSTALLATION, OPERATION, ALTERATION, TAMPERING, POSSESSION, AND/OR STORAGE OF THE GOODS. BUYER HEREBY FULLY AND FOREVER WAIVES, RELEASES, AND DISCHARGES SELLER, TOGETHER WITH ITS INSURERS, EMPLOYEES, OFFICERS, DIRECTORS, OWNERS, ASSOCIATES, REPRESENTATIVES, AGENTS, AFFILIATES, AND/OR VOLUNTEERS, FROM ANY AND ALL LIABILITY, INJURY, LOSS, DAMAGE, CLAIMS, DEMANDS, RIGHTS OF ACTION, OR CAUSES OF ACTION, PRESENT OR FUTURE, WHETHER THE SAME BE KNOWN OR UNKNOWN, ANTICIPATED, OR UNANTICIPATED, INCLUDING BUT NOT LIMITED TO, LIABILITY ARISING OUT OF THE HANDLING, USE, INSTALLATION, OPERATION, ALTERATION, TAMPERING, POSSESSION, STORAGE, OR SALE OF THE GOODS BY BUYER OR ANY THIRD PARTY.
(e) BUYER SHALL DEFEND, INDEMNIFY, HOLD HARMLESS, AND PROMISE NOT TO SUE SELLER, TOGETHER WITH ITS INSURERS, EMPLOYEES, OFFICERS, DIRECTORS, OWNERS, ASSOCIATES, REPRESENTATIVES, AGENTS, AFFILIATES, AND/OR VOLUNTEERS, FROM AND AGAINST ANY AND ALL LIABILITY, INJURY, LOSS, DAMAGE, CLAIMS, DEMANDS, RIGHTS OF ACTION, OR CAUSES OF ACTION, JUDGMENTS, COSTS OR EXPENSES, INCLUDING ATTORNEY FEES AND OTHER LITIGATION COSTS, WHICH MAY IN ANY WAY ARISE FROM OR RELATE TO THE FOLLOWING: (1) THE HANDLING, USE, INSTALLATION, OPERATION, ALTERATION, TAMPERING, POSSESSION, STORAGE, OR SALE OF THE GOODS BY BUYER OR ANY THIRD PARTY; (2) BUYER’S FAILURE TO COMPLY WITH ALL APPLICABLE LAWS RELATING TO THE GOODS; (3) BUYER’S FAILURE TO SEEK QUALIFIED PROFESSIONAL TRAINING ON THE HANDLING, USE, INSTALLATION, OPERATION, ALTERATION, TAMPERING, POSSESSION, STORAGE, OR SALE OF THE GOODS; (4) BUYER’S BREACH OF ANY TERM, REPRESENTATION OR WARRANTY SET FORTH IN THESE TERMS; (5) ANY NEGLIGENT OR INTENTIONAL ACT OR OMISSION OF BUYER OR ANY THIRD PARTY UNDER THE DIRECTION, CONTROL, SUPERVISION OR INSTRUCTION OF BUYER; AND/OR (6) THE UNLAWFUL OR UNAUTHORIZED SALE, RESALE, EXPORT OR IMPORT OF THE GOODS.
(f) ALL MATERIALS, AND ANY INVENTIONS (WHETHER OR NOT PATENTABLE), WORKS OF AUTHORSHIP, TRADE SECRETS, IDEAS, CONCEPTS, TRADE NAMES AND TRADE OR SERVICE MARKS CREATED OR PREPARED BY SELLER IN CONNECTION WITH ANY PURCHASE ORDER OR RELATED TO THE GOODS, TOGETHER WITH ANY AND ALL INTELLECTUAL PROPERTY RIGHTS THEREIN, SHALL BELONG EXCLUSIVELY TO SELLER.
12. Compliance with Law. Buyer shall comply with all applicable laws, regulations and ordinances in connection with the Goods, including (without limitation) the purchasing, handling, use, operation, installation, possession, storage and sale/resale of the Goods. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement and to use the Goods. If Buyer sells, leases, or allows another person or entity to borrow or use, in any way, or transfer the Goods to any other person or entity, Buyer agrees, as a condition of purchasing the Goods, to accept full and sole responsibility for ensuring that such person or entity is fully aware and agrees to the terms and conditions set forth in these Terms. Buyer shall accept full responsibility and liability if Buyer fails to disclose these Terms to a third-party purchaser without first providing acknowledgement and acceptance by the third-party purchaser of the terms and conditions set forth in these Terms. Buyer acknowledges that the Goods, if any, which are purchased or received under this Agreement may be subject to the export controls of the U.S. Export Administration Regulation, the U.S. Department of Treasury Office of ForeignAssets Control, the U.S. Department of State and other U.S. agencies, as well as the export control regulations of the European Union, the United Nations Security Council, and other foreign governments (“Export Control and Economic Sanctions Laws”). Buyer agrees that any export, resale, or re-export of Seller’s Goods shall be in compliance with all applicable Export Control and Economic Sanctions Laws, Unless licensed to do so, Buyer agrees that it will not: (i) export, resell, re-export or transfer the Goods for end-uses that are prohibited by Export Control and Economic Sanctions Laws, including, but not limited to: maritime nuclear propulsion; nuclear, chemical and biological weapons; rocket, missile and unmanned air vehicle systems; and nuclear activities not in compliance with International Atomic Energy Agency (IAEA) safeguards; (ii) export, resell, re-export or transfer any Goods to a customer that an entity or person that is listed, blocked or subject to sanctions under applicable Export Control and Economic Sanctions Laws, including entities that are owned 50% or more, directly or indirectly, individually or in the aggregate, by an individual or entity that is listed, blocked or subject to sanctions; or (iii) export, resell, re-export, transfer, or conduct transactions involving the Goods with or to entities or individuals in countries or regions subject to comprehensive sanctions, including: Crimea, Cuba, Iran, North Korea, Syria, and Sudan. Further, none of the underlying information, software, or technology of the Goods may be transferred or otherwise exported or re-exported in violation of Export Control and Economic Sanctions Laws. Any diversion contrary to U.S. law or other applicable law is prohibited. By purchasing Goods from Seller, Buyer represents and warrants that Buyer is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. Buyer agrees to assume sole responsibilityforobtaininglicensestoexportorre-exportasmayberequired,andfurtherrepresentsandwarrantsthatBuyershall: (i) cooperate fully with Seller in any official or unofficial audit or inspection that relates to Export Control and Economic Sanctions Laws; and (ii) not export, re-export, divert, transfer, or disclose, directly or indirectly, any Goods sold hereunder or any related technical information, document, or material or direct products thereof to any country, entity, person or end-user so restricted by Export Control and Economic Sanctions Laws, as modified by time to time.
13. 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 seven (7) 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.
14. 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.
15. 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. This Section does 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.
16. 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, pandemics, epidemics, catastrophes, 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; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) shortage of adequate power or transportation facilities; (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within thirty (30) 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 sixty (60) consecutive days following written notice given by it under this Section 16, either may thereafter terminate this Agreement upon thirty (30) days' written notice.
17. 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.
18. 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.
19. 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.
20. Governing Law. All matters arising out of or relating to this Agreement or any transactions contemplated hereunder are governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Ohio.
21. Submission to Jurisdiction.
(a) The parties shall resolve any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof (each, a “Dispute”), under the provisions of this Section 21. The procedures set forth in Sections 21(b) through 21(c) shall be the exclusive mechanism for resolving any Dispute that may arise from time to time and Sections 21(b) through 21(c) are express conditions precedent to binding arbitration of the Dispute.
(b) Before proceeding under Sections 21(c) or (d) of this Agreement, a party shall send written notice to the other party of any Dispute (“Dispute Notice”). The parties shall first attempt in good faith to resolve any Dispute set forth in the Dispute Notice by negotiation and consultation between themselves, including not fewer than two (2) negotiation sessions attended by Buyer and Seller, or any representative of Buyer and/or Seller provided such representative has full settlement authority. For purposes of clarification, the party sending the Dispute Notice shall send such notices in compliance with this Agreement’s notice provisions (Section 22). If Buyer and Seller cannot resolve any Dispute during the time period ending thirty (30) calendar days after the date of the Dispute Notice (“Escalation to Mediation Date”), either party may initiate mediation under Section 21(c).
(c) Subject to Section 21(d), in the event a Dispute has not been resolved by the parties on or before the Escalation to Mediation Date, either party may initiate a mediation procedure in accordance with this paragraph within five (5) days thereafter by delivering a written request for mediation. Such mediation will be conducted by American Arbitration Association according to its procedures. The mediator shall be selected by the striking method, shall be a retired judge, or an attorney licensed to practice law in the state of Ohio, and shall have experience in commercial disputes. If the parties are unable to select the mediator within ten (10) business days after delivery of the mediation notice, then the parties shall request that the American Arbitration Association designate an appropriate mediator based upon the foregoing criteria. If the American Arbitration Association is unable to act in the matter expeditiously, mediation shall be conducted under the auspices of any other mediation service mutually agreed to by the parties according to the mediator’s procedures. The scope of such mediation and the authority of the mediator to act with respect to the Dispute are defined by the specific provisions of this paragraph and any mediator will be required to execute an acknowledgment of applicability of the provisions of this paragraph in any proceeding under this Agreement. The object of any mediation subject to this paragraph is to assist the parties in reaching a mutually acceptable resolution of the Dispute. Such mediation shall, in all circumstances, be consistent with the rights and obligations created by this Agreement and shall not be premised on the derogation or diminution of those rights or disregard of those rights. The mediation process shall begin promptly and shall be concluded within sixty (60) days of the day the request for mediation is made, unless the parties mutually otherwise agree in writing (“Mediation End Date”). The mediation shall be attended by representatives of both parties with full settlement authority. Any and all discussions, negotiations, findings or other statements by the mediator and/or the parties made in connection with the mediation shall be privileged and confidential and shall not be admissible into evidence in any other legal proceeding. All mediation proceedings shall take place in Cleveland, Ohio. The expenses of the mediation service shall be borne equally by Buyer and Seller, and all other expenses relating to such mediation shall be borne by the party incurring them.
(d) If the parties cannot resolve any Dispute for any reason at mediation as set forth in Section 21(c), within thirty (30) calendar days after the Mediation End Date, either party may commence binding arbitration with the American Arbitration Association in accordance with the provisions of the American Arbitration Association Real Estate Industry Arbitration Rules. There shall be one arbitrator. The place of the arbitration shall be Cleveland, Ohio or any other place agreed upon at the time by the parties. The arbitration shall be held, and the award rendered, in English. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. It is the intent of the parties that, barring extraordinary circumstances, arbitration proceedings will be concluded within one hundred and twenty (120) calendar days from the date the arbitrator is appointed. The party commencing arbitration shall pay any arbitration and administrative expenses as well as the arbitrator fees as charged by the American Arbitration Association and/or the arbitrator. Subject to the foregoing, each party shall bear its own costs, fees and expenses of arbitration. No demand for arbitration may be made after the date when the institution of legal or equitable proceedings based on such claim or dispute would be barred by the terms of this Agreement or the applicable statute of limitation, if shorter. The arbitrator is not authorized to award punitive or other damages not measured by the prevailing party’s actual damages. An award of damages shall not include pre-award interest. The arbitration proceedings and arbitrator’s award shall be maintained by the parties as strictly confidential, except as is otherwise required by court order or as is necessary to confirm, vacate or enforce the award and for disclosure in confidence to the parties’ respective attorneys, tax advisors, insurers, senior management and to family members of a party who is an individual.
(e) If either party to this Agreement commences any arbitration or action against the other party arising out of this Agreement, including, without limitation, any arbitration or action to enforce or interpret this Agreement, the prevailing party or parties in such action shall be entitled to recover its reasonable attorney's fees and other expenses incurred in connection with the Dispute. Any award of attorney's fees hereunder shall not be computed according to any pre-determined schedule, but, instead, shall be in such amount as to fully reimburse all attorney's fees actually incurred in good faith, regardless of the size of the judgment, since it is the intention of all parties to compensate fully the prevailing party for all attorney's fees paid or incurred in good faith.
(f) No punitive or exemplary damages shall be awarded against either Buyer or Seller, or any affiliates of either of them, in any arbitration, litigation or other proceeding, and all claims to such damages are hereby waived.
(g) THE PARTIES HERETO KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE THEIR PRESENT OR FUTURE RIGHTS TO A JURY TRIAL IN ANY ACTION, TO RESOLVE ANY DISPUTE, CONSOLIDATE OR TRANSFER ANY ACTION WITH OR TO ANOTHER ACTION WHERE EITHER PARTY MIGHT OTHERWISE BE ENTITLED TO A JURY TRIAL, NOTWITHSTANDING ANY STATE OR FEDERAL CONSTITUTIONAL OR STATUTORY RIGHTS OR PROVISIONS. BY ACCEPTING AND AGREEING TO THESE TERMS, BUYER AND SELLER ACKNOWLEDGE AND REPRESENT THAT THEY HAVE KNOWINGLY AND VOLUNTARILY WAIVED THEIR RIGHT TO TRIAL BY JURY AND HAVE FURTHER AGREED TO BINDING ARBITRATION OF DISPUTES AS PROVIDED HEREIN.
(h) THE PARTIES RECOGNIZE THAT THEIR RELATIONSHIP IS UNIQUE AND THAT EACH BUYER IS SITUATED DIFFERENTLY FROM ALL OTHER BUYERS, AND THAT NO ONE BUYER CAN ADEQUATELY REPRESENT THE INTEREST OF OTHERS. THEREFORE, THE PARTIES AGREE THAT ANY MEDIATION, ARBITRATION, SUIT, ACTION OR OTHER LEGAL PROCEEDING SHALL BE CONDUCTED AND RESOLVED ON AN INDIVIDUAL BASIS ONLY AND NOT ON A CLASS-WIDE, MULTIPLE PLAINTIFF, CONSOLIDATED OR SIMILAR BASIS, AND BUYER HEREBY EXPLICITLY AND UNEQUIVOCALLY WAIVES ITS RIGHT, IF ANY, TO JOIN A PLAINTIFF CLASS ACTION LAWSUIT IN ANY DISPUTE AGAINST SELLER OR TO ACT IN ANY ARBITRATION OR OTHERWISE IN THE INTEREST OF THE PUBLIC OR IN ANY PRIVATE ATTORNEY GENERAL CAPACITY.
(i) If, for any reason, any legal suit, action or proceeding arising out of or relating to any transactions contemplated under these Terms is required by law to be filed with any federal or state courts and cannot be adjudicated by arbitration as set forth herein, the suit, action or proceeding shall be instituted in the federal courts of the United States of America or the courts of the State of Ohio in each case located in the City of Cleveland and County of Cuyahoga, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
22. Notices. All notices, request, 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), facsimile (with confirmation of transmission) or 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.
23. 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.
24. Survival. Provisions of these Terms which 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, Limitation of Liability; Waiver, Release & Indemnification; Intellectual Property, Confidential Information, Governing Law, Submission to Jurisdiction and Survival.
25. WARNING STATEMENT. BY AGREEING TO THESE TERMS AND/OR PURCHASING ANY GOOD FROM SELLER, BUYER WARRANTS AND REPRESENTS THAT BUYER HAS READ AND AGREED TO BE BOUND BY THE TERMS AND CONDITIONS SET FORTH IN THE X-1 GENERAL WARRANTY STATEMENT AND DISCLAIMER (THE “X-1 CONSUMER WARNING STATEMENT”) LOCATED ON SELLER’S WEBSITE AT https://aviatorarmsusa.com/X1-CONSUMER-WARNING-STATEMENT, AND INCLUDED IN THE PACKAGING WITH THE GOODS, WHICH SHALL BE INCORPORATED INTO AND ARE AN INTEGRAL PART OF THESE TERMS AS IF FULLY REWRITTEN HEREIN. IN THE EVENT OF A CONFLICT BETWEEN THESE TERMS AND THE X-1 CONSUMER WARNING STATEMENT, THESE TERMS SHALL GOVERN AND CONTROL.