TERMS AND CONDITIONS OF SALE

1 Definitions and Scope. 

1.1 Definitions.

In these Terms (as defined below), "Seller" means ROEMHELD NORTH AMERICA, INC. and "Buyer" means the customer identified on the Quotation. Seller and Buyer are collectively referred to herein as the "Parties" and individually, a "Party". In addition to the terms defined in these Terms, the following terms have the following meanings: 

"Affiliate" means an entity that directly or indirectly controls, is controlled by or is under common control with a Party and as used herein, "control", "controls" or "controlled" means: (a) 50% or more ownership or beneficial interest of income or capital of such entity; (b) ownership of at least 50% of the voting power or voting equity; or (c) the ability to otherwise direct or share management policies of such entity.

"Intellectual Property Rights" means all inventions (whether patented or not), patent applications and disclosures, patents, design rights, copyrights and copyrightable works, trademarks, service marks, trade names, domain name rights, know-how and trade secrets and all other forms of intellectual property and proprietary rights.

"Product(s)" means the products of Seller identified in the applicable Quotation or Purchase Order.

"Purchase Order" means an ordering document issued by Buyer to Seller that specifies the Product and/or Services, and which is confirmed in writing by Seller in accordance with these Terms

"Quotation" means a quotation or other proposal for Products and/or Services issued to Buyer by Seller, which is subject to these Terms.

"Service(s)" means any installation services and/or other professional services provided by Seller to Buyer and identified in the applicable Quotation or Purchase Order.

"Specifications" means, with respect to a Product, the operating manual and such other documentation as Seller may provide in relation to the technical specifications, parameters and requirements of such Product. 

1.2 Scope of Agreement; Order of Precedence.

Sales of Products and/or Services by Seller to Buyer are expressly subject to and conditioned upon the terms and conditions contained in these Terms and Conditions of Sale and any terms set forth in the Quotation, which collectively constitute an agreement entered into between Buyer and Seller ("Terms"). In the event of a conflict between these Terms and Conditions of Sale and any Quotation or Purchase Order, these Terms and Conditions of Sale will control. In the event of any conflict between any Quotation and any Purchase Order, the Quotation will control. 

2 Orders; Cancellation and Changes.

2.1 Purchase Orders.

Purchase Orders shall be submitted by Buyer to Seller along with the following additional information: (a) credit references; (b) tax exempt certificates; and (c) the telephone number and email address of Buyer's purchasing and accounts payable representatives. Seller's acceptance of any offer or Purchase Order from Buyer is expressly conditioned on Buyer's consent to these Terms, which are part of and incorporated in any Purchase Order, irrespective of whether the Purchase Order references these Terms. Any additional or different terms or conditions, or warranties, whether in a Purchase Order or another communication, understanding, or agreement, that in any way purport to modify these Terms are expressly objected to and rejected and will not be binding on Seller; neither Seller's subsequent lack of objection to any terms, nor the delivery of the Products and/or Services, will constitute an agreement by Seller to any such additional or different terms. Buyer is hereby notified of Seller's express rejection of any terms inconsistent with Terms or to any other terms proposed by Buyer. Trade custom, trade usage and past performance are superseded by these Terms, and will not be used to interpret these Terms. Buyer's issuance of a Purchase Order or acceptance of, or payment for, the Products when delivered and/or Services when provided will be deemed conclusive evidence of, and constitutes Buyer's acceptance of and assent to these Terms. Buyer's acceptance of any offer (or counteroffer) by Seller is limited to these Terms. A Purchase Order will be deemed accepted by Seller upon Seller issuing a written order confirmation or invoice. No Purchase Order will be binding upon Seller until accepted by Seller.

2.2 Cancellations; Changes.

Purchase Order cancellations or changes by Buyer require Seller's prior written consent. Without such required consent, a cancellation of or change to the Purchase Order will entitle Seller to all remedies available by law or equity including, but not limited to, cancellation costs or increased prices. Seller may cancel a Purchase Order or require full or partial early payment if: (a) the solvency or operation of Buyer is in question, (b) Buyer becomes the subject of any bankruptcy proceedings, (c) there is an appointment of a trustee or receiver for Buyer, (d) Buyer makes an assignment or other arrangement for the benefit of its creditors, or (e) if the Purchase Order conflicts in any way with the corresponding Quotation, or the Buyer requirements on which the Quotation is based are no longer valid or correct, each as determined by Seller in Seller's sole discretion. No returns of Product are permitted except to the extent expressly preapproved by Seller in writing.

3 Prices, Payment Terms and Taxes. 

3.1 Pricing.

Buyer will pay Seller according to the prices set forth in the applicable Quotation and associated Purchase Order. All pricing provided in any Quotation shall be final provided that Buyer (a) submits a Purchase Order within 30 days after the date of the Quotation and (b) such Purchase Order requests shipment of the Product within three months after the date of the Quotation. Pricing for any Purchase Orders requesting shipment within more than six months after the date of the Quotation shall be subject to the prices in effect at the date of shipment. Seller is under no obligation to honor any Quotations issued more than 30 days prior to receipt of a Purchase Order. Unless otherwise provided in the applicable Purchase Order, all prices are published and/or quoted in United States dollars and are subject to the delivery terms defined in Section 4. All prices are subject to adjustment by Seller at any time for changes in tariffs, economics, exchange rates, or Buyer's volume forecasts, as applicable, or as otherwise provided in these Terms. Unless otherwise expressly provided in these Terms, fees paid are non-refundable. Unless otherwise agreed by Seller in writing, Buyer will reimburse Seller for actual expenses (including travel and mileage) incurred by Seller in performing any Services, as set forth in Seller's Service and Repair Policy.

3.2 Material Cost Increase.

If Seller's production or purchase costs for the Product (including without limitation costs of energy, tariffs, equipment, labor, regulation, transportation, raw material or supplies) increases for any reason over Seller's planned costs for the Product as of the date Seller accepted the applicable Purchase Order, then Seller may, by written notice to Buyer of such increased costs, request a renegotiation of the price of the Product under these Terms. If the Parties are unable to agree on a revised Product price within 10 business days after Seller issues such notice, then Seller may terminate any impacted Purchase Order on 10 business days' written notice to Buyer without further liability or obligation.

3.3 Invoicing.

Unless otherwise agreed upon between the Parties in writing, Seller will invoice Buyer for the price of the Products and/or Services any time on or after the date that Seller delivers the Products and/or provides the Services, respectively. All invoices will be delivered by email to the purchasing representative identified on the relevant Purchase Order. Any invoice errors must be disputed in writing by Buyer within 15 days of the invoice date and are subject to correction by Seller. Unless otherwise specified in writing, all payments must be in a single payment in the full amount of the invoices and must be made by wire or electronic fund transfer (referencing the invoice number) and Buyer must be the originator of the wire. To the extent Buyer, in Buyer's sole discretion, authorizes payment by credit card, all such payments are subject to a convenience fee equal to the lesser of 4% or the highest rate permitted by law.

3.4 Payment Terms.

Subject to prior credit approval and unless otherwise agreed upon between the Parties in writing or specified in the Quotation, Buyer will pay Seller for Products and/or Services invoiced by Seller within 30 days from date of invoice. Buyer's failure to pay any undisputed amount when due will be deemed a material breach of these Terms. Undisputed past due amounts will be subject to the maximum legal rate of interest or 1.5% per month, whichever is less. Buyer will pay all costs and expenses incurred by Seller as a result of non-payment or delinquent payment by Buyer, including collection costs, interest, and reasonable attorneys' fees. If Buyer becomes delinquent in payment on any Seller invoice or refuses to accept delivery in accordance these Terms, Seller will have the right, in addition to all other available rights and remedies, to suspend performance, cancel any or all Purchase Orders, withhold further deliveries, and declare all unpaid amounts for Products previously delivered and/or Services previously performed immediately due and payable.

3.5 Taxes.

Seller's pricing excludes all sales, use, excise, value-added, and other similar taxes, charges and duties (including import and export duties). Buyer will be solely responsible for all taxes imposed on Buyer based upon applicable law. Buyer agrees to properly document and provide Seller with applicable sales and use tax exemption certificates when requested by Seller. Each payment to Seller will be made without withholding for any taxes.

4 Packaging, Delivery and Risk of Loss. 

4.1 Packaging.

Unless otherwise agreed upon between the Parties in writing or specified in the Quotation, standard packaging for continental United States domestic shipment is included in the agreed price. When special domestic export packaging is requested or required, Buyer will be charged additional expenses. Buyer will be charged for any additional expenses associated with requests for any special packaging.

4.2 Delivery.

All delivery dates are estimates only, and subject to prompt receipt of all necessary information from Buyer that is requested from Seller. Seller's only obligation with respect to delivery dates is to make reasonable efforts to meet such delivery dates. Unless otherwise agreed upon between the Parties in writing or specified in the Purchase Order, all deliveries will be EXW (INCOTERMS 2020) Seller's designated facility. Partial deliveries are permitted. Seller may deliver Products in advance of the delivery schedule. If, for whatever reason, Seller experiences Product shortages, Seller may hold or allocate Products among its customers as Seller considers appropriate.

4.3 Risk of Loss.

Risk of loss and title to the Products transfer upon completion of delivery of the Products per the applicable delivery term specified in Section 4.2. Notwithstanding the applicable delivery terms, Seller will not be liable for any delays, breakage, loss or damage after having made delivery to the first transportation carrier. All claims for loss or damage in transit are to be made by Buyer directly to the transportation carrier and the appropriate insurance carrier, if any. No deductions of any kind from the invoice amount will be made. 

4.4 Inspection and Acceptance.

Buyer will inspect the Products within 15 business days following delivery thereof ("Product Acceptance Period"). Products will be presumed accepted unless Seller receives written notice of rejection from Buyer, explaining the basis for rejection within the Product Acceptance Period ("Acceptance"). Rejection may be based solely upon the failure of the Products to materially comply with the Specifications through no fault of Buyer. All claims not made by Buyer in writing as specified above and received by Seller within the Product Acceptance Period will be deemed waived. Upon receipt of Buyer's written notice, Seller will have the opportunity to inspect, evaluate and test the Product at Buyer's premises or require Buyer to send the Product to Seller or to a person designated by Seller for inspection, evaluation and testing. No inspection or any other actions by third parties are authorized or will be paid for by Seller without Seller's prior written consent. Buyer's sole and exclusive remedy, and the entire liability of Seller for any rightful rejection of the Products during the Product Acceptance Period is, at Seller's sole option and expense, (a) the repair or replacement of the Product; or (b) a credit equal to the purchase price of the Products in lieu of any obligation to repair or replace Products under this Section 

4.4. Seller will not be responsible for any costs or charges for or related to labor and/or parts incidental to the handling and attempted use of the Products.

4.5 Installation.

Except as set forth on the Quotation, Buyer is responsible for the proper handling, storage, installation and commissioning of Products in accordance with the Specifications. Installation and commissioning Services may be available by Seller, subject to and included in a Purchase Order, or a mutual written agreement between Buyer and Seller.

5 LIMITED WARRANTY. 

5.1 Warranty.

With respect to a Product sold by Seller to Buyer hereunder (including firmware that is installed on, delivered with and not separable from a Product), and subject to Sections 5.2 through 5.6, Seller warrants that, for the Product Warranty Period, such Product will substantially conform to and perform in accordance with the Specifications . "Product Warranty Period" means, with respect to a given Product, two years after the date of invoice issued pursuant to Buyer's purchase of such Product. Buyer's sole and exclusive remedy and the entire liability of Seller under this Section 5.1 is, at Seller's option and expense: (x) repair or replacement of Product or (y) a credit equal to the purchase price (less a reasonable depreciation for use, damages and obsolescence) of the Product in lieu of any obligation to repair or replace the Product under this provision. Subject to Sections 5.2, 5.5 and 5.6, Seller warrants that the Services will be performed in a professional and workmanlike manner. For any breach of warranty under this Section 5.3, Buyer must provide a written claim within 10 business days after provision of the applicable Service specifying in reasonable detail the nonconformity with such warranty, and Buyer's sole and exclusive remedy and the entire liability of Seller under this Section 5.1 is to use commercially reasonable efforts to reperform the identified nonconforming Service. If Seller concludes that reperformance of the nonconforming Service is impracticable, then Seller will refund the fees paid by Buyer to Seller allocable to the nonconforming Service. 

5.2 Matters Not Covered.

Notwithstanding any other provision in this Section 5, Buyer expressly acknowledges that Seller's warranty does not cover, and Seller is not responsible or liable for: (a) any third party products, software, services, components or systems; (b) consumable, wearable or disposable items included in the Products, including sealing bands, o-rings, gaskets, belts, hoses, filters, seals, fluids, lubricants and wear parts; (c) conditions, changes, alterations, additions or applications to or for Products; (d) Buyer's failure to perform maintenance on the Product as recommended by Seller, or to otherwise comply with the Specifications and/or industry practices; or (e) ordinary wear and tear. 

5.3 Warranty Procedure.

For any Product breach of warranty brought within the applicable Product Warranty Period, Buyer will promptly notify Seller in writing. Buyer must provide a written explanation of the breach of warranty (the "Warranty Claim") as such warranty is set out in this Section 5, subject to the provisions of Section 5. Subsequently, Seller through its inspection process must be satisfied that the claimed breach of warranty exists. For Warranty Claims where physical inspections are required, Buyer must follow Seller's return instructions to return the Product to the designated Seller's service facility at Buyer's own risk and expense. Seller will have the right to request reasonable evidence of and impose reasonable requirements for inspection and evaluation of the Warranty Claim. Warranty repair or replacement by Seller will not extend or renew the applicable Product Warranty Period unless expressly stated in writing by Seller. Seller will not be responsible for labor and material costs of removal or reinstallation of Products. Buyer will reimburse for costs or expenses incurred with respect to warranty claims for Products Seller determined are not defective or not subject to warranty coverage.

5.4 Resellers.

If Buyer is a reseller of the Products or Services, Buyer agrees that: (a) Buyer will make only such representations with respect to the Products and Services as communicated to Buyer by Seller in writing, and only offer such limited warranties with respect to the Products and Services that Seller offers to Buyer in writing and (b) Buyer will not move Products from its facility until sold, and will not alter, deface, relabel or repackage Products without Seller’s prior written consent. Buyer will not make any false or untrue statements or representations to Seller or commit any criminal act affecting Seller’s goodwill or reputation.

5.5 DISCLAIMER.

EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5, SELLER MAKES NO OTHER WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, AND TO THE FULLEST EXTENT PERMITTED BY LAW, SELLER SPECIFICALLY AND EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT, ANY OTHER WARRANTIES ARISING FROM OR OUT OF ANY COURSE OF DEALING, USAGE OF TRADE, SPECIFICATION, PROPOSAL, PERFORMANCE OR CUSTOM, AND ANY STATUTORY WARRANTY ON HIDDEN OR LATENT DEFECTS. 5.6 Exclusive Remedy. EXCEPT AS OTHERWISE REQUIRED BY APPLICABLE LAW, THIS SECTION 5 PROVIDES BUYER'S SOLE AND EXCLUSIVE REMEDIES FOR ALL CLAIMS, DAMAGES, LOSS OR INJURIES (WHETHER DIRECT, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, CONSEQUENTIAL OR INCIDENTAL) BASED ON OR ARISING FROM ANY DEFECT, FAILURE, MALFUNCTION, BREACH OF WARRANTY OR ANY OTHER PERFORMANCE, NONCONFORMANCE OR NONPERFORMANCE OF ANY PRODUCT OR SERVICE, WHETHER THE CLAIM IS IN CONTRACT, EQUITY, INDEMNITY, INFRINGEMENT, WARRANTY, TORT (INCLUDING NEGLIGENCE, STRICT LIABILITY) OR OTHERWISE AND HOWEVER INSTITUTED.

6 Intellectual Property Rights.

Each Party will retain ownership of all Intellectual Property Rights owned by such Party prior to entry into these Terms. Each Party agrees that as between Seller and Buyer, Seller exclusively owns and will retain exclusive ownership of all Intellectual Property Rights in and related to: (a) the Products and all updates, modifications, improvements and derivatives thereof; and (b) all other ideas, inventions (whether patentable or not), concepts, designs, methods, processes, software, data, and works of authorship authored, developed, conceived, reduced to practice or licensed wholly or in part by Seller or an Affiliate thereof for or in connection with any Products. No rights are granted to Buyer hereunder other than as expressly set forth herein, and Seller (and its licensors, where applicable) reserve all rights not expressly granted herein. Buyer will not itself or assist or instruct others to attempt in any way to reverse engineer, copy or otherwise obtain or attempt to reproduce in any way any Product or any component thereof without Seller's prior written consent. To the extent the Products or Services (including, but not limited to, any firmware contained therein) contain third party Intellectual Property Rights, Seller only provides those rights which Seller has lawfully obtained from such third party. If Buyer provides any ideas, suggestions or recommendations to Seller regarding the Products and/or Services ("Feedback"), Buyer, on behalf of itself and its Affiliates and their customers and end customers, hereby grants to Seller and its Affiliates a nonexclusive, irrevocable, paid-up, royalty-free, perpetual, worldwide license under and to all of Buyer's rights and interests that are incorporated in any Feedback.

7 Indemnification.

7.1 Indemnification – Seller.

Except as set forth below in Section 7.2 and 7.3, Seller will defend any third party lawsuit or action against the Buyer based on a claim that the Products as delivered by Seller directly infringe a valid U.S. patent or copyright, and indemnify Buyer for any final judgment assessed against Buyer resulting from such lawsuit, provided that Buyer: (a) promptly notifies Seller of the third party claim; (b) provides all relevant materials and information related to the claim to Seller; (c) provides Seller with reasonable assistance for the defense and disposition of the claim; and (d) gives Seller exclusive control over the defense and resolution of the claim. Subject to Section 7.3, if a Product is held to constitute infringement or its use is enjoined, Seller may, at its sole option and expense, and as Buyer's sole and exclusive remedy: (i) procure for Buyer the right to continue using the Product; (ii) replace the Product with a similar non-infringing product; (iii) modify the Product so that it is non-infringing; or (iv) accept return of the Product and grant Buyer credit for the purchase price therefore. THIS SECTION 7.1 STATES SELLER'S ENTIRE LIABILITY, BUYER'S SOLE RECOURSE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT. Seller will have no obligation or liability under this Section 7.1 and Buyer will indemnify, defend and hold Seller Indemnified Parties (as defined below) harmless to the extent that any claim for infringement arises out of or results from: (x) Buyer's designs, changes or specifications; (y) combining any Products with any third party products, software, services, components or systems; (z) the application or use of any Products in a manner that does not comply with the Specifications therefor; or (zz) any alteration, customization or other modification of the Products.

7.2 Indemnification – Buyer.

Buyer will, at Buyer's sole expense, indemnify, defend and hold Seller and its Affiliates, and their respective owners, managers, directors, officers, employees, representatives, agents, subcontractors, contractors, successors and assigns (collectively, "Seller Indemnified Parties") harmless against all losses, claims, liabilities, damages, causes of action, judgments, costs and expenses (including reasonable attorneys' fees) arising out of or relating to Buyer's or Buyer's Affiliate's, or their subcontractor's, end customer's or representative's: (a) negligent act or omission or willful misconduct; (b) breach of these Terms or violation of applicable law; (c) misuse or improper installation, storage, maintenance or use of the Products; (d) incorporation of the Products and/or Services into another product or service; (e) changes, alterations or additions to Products; or (f) Buyer's relationship with any end user customer, including any dispute with an end user. Buyer will be entitled to control the defense of such claim for which it is providing indemnity to any Seller Indemnified Parties pursuant to this Section 7.2. At Buyer's expense, Seller will reasonably cooperate in the defense of the claim. Seller may participate in the defense at its own expense and through counsel of its choosing. Buyer will not admit liability or enter into any settlement without the prior written approval of Seller. 

7.3 LIMITATION ON LIABILITY.

NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS AND EXCEPT FOR SELLER'S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SELLER AND ITS AFFILIATES, AND THEIR RESPECTIVE OWNERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, REPRESENTATIVES, AGENTS, SUBCONTRACTORS, CONTRACTORS, SUCCESSORS AND ASSIGNS WILL NOT BE LIABLE FOR ANY OF THE FOLLOWING LOSSES OR DAMAGES: EXEMPLARY, SPECIAL, PUNITIVE, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING LOST PROFITS, LOST REVENUES, LOST SALES, LOSS OR CORRUPTION OF DATA, LOSS OF PRODUCT USE, LOSS OF BUSINESS, LOSS OF GOODWILL, DOWNTIME COSTS, DAMAGE TO ASSOCIATED EQUIPMENT, LOSS OF REPUTATION, LOSS OF DATA, COST OF SUBSTITUTE GOODS, FACILITIES OR SERVICES, OR CLAIMS OF BUYER'S END USER CUSTOMERS, FOR SUCH DAMAGES OR LOSSES), EVEN IF BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF SUCH DAMAGES OR LOSSES WERE FORESEEN, FORESEEABLE, KNOWN OR OTHERWISE AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. IN NO EVENT WILL SELLER'S TOTAL AGGREGATE LIABILITY ARISING OUT OF THESE TERMS AND CONDITIONS OF SALE, WHETHER UNDER TORT, CONTRACT, WARRANTY OR OTHERWISE EXCEED THE TOTAL AMOUNTS PAID BY BUYER TO SELLER FOR THE PRODUCT GIVING RISE TO THE CLAIM DURING THE 12 MONTHS PRECEDING NOTICE OF THE CLAIM. THE LIMITATIONS OF LIABILITY CONTAINED IN THESE TERMS ARE A FUNDAMENTAL PART OF THE BASIS OF SELLER'S BARGAIN HEREUNDER AND SELLER WOULD NOT ENTER INTO THESE TERMS ABSENT SUCH LIMITATIONS. Seller's rights and remedies set forth herein will be in addition to any legal or equitable right or remedy available to Seller. No waiver of any of Seller's rights or remedies will be effective without Seller's express written consent.

8 Confidential Information.

8.1 Confidentiality Definitions.

Any non-public technical, financial or business information, trade secrets, content, or any other information provided by one Party (the "Disclosing Party") to the other party (the "Receiving Party") directly or indirectly, orally or in writing ("Confidential Information"), will be held in confidence by the Receiving Party and not be used by such Party except to the extent necessary to carry out its obligations hereunder, except as otherwise authorized by the Disclosing Party in writing. Confidential Information includes these Terms, Purchase Orders, Quotations, Specifications and any other agreements between Seller and Buyer relating to, and any information and data concerning, the Products and the Services. The Disclosing Party or its licensors retain all right in such Confidential Information.

8.2 Obligations.

The Receiving Party will use Confidential Information only in connection with its performance under these Terms or any Quotation related thereto. The Receiving Party will use the same degree of care to avoid any disclosure or use of the Confidential Information as it uses for its own confidential, proprietary and trade secret information, but in no case use less than a reasonable degree of care. The Receiving Party agrees to limit disclosure of Confidential Information to employees, contractors or agents and employees, contractors or agents of Affiliates having a specific need to know such Confidential Information in furtherance of its performance under these Terms. The Parties may enter into separate nondisclosure and confidentiality agreements in connection with Buyer's purchase of the Products and/or Services provided for herein. The confidentiality obligations in this Section 8 are in addition to, and not in lieu of, any obligations set forth in such separate agreements.

8.3 Exceptions; Compelled Disclosure.

The confidentiality obligations under this Section 8 do not apply to any information that: (a) is generally known to the public other than through the Receiving Party's fault; (b) was known by or in the possession of the Receiving Party at the time of disclosure other than as a result of any improper act or omission of the Receiving Party or its Affiliate; (c) is received by the Receiving Party from a third-party not subject to any nondisclosure obligations with respect to the Confidential Information; or (d) is independently developed by the Receiving Party without reference to or use the Confidential Information. The Receiving Party may disclose Confidential Information to the extent it is required by a regulatory agency or any other government authority or a court to do so, provided the Receiving Party promptly notifies the Disclosing Party of such requirement and provides reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If a protective order or other remedy is not obtained by the Disclosing Party, the Receiving Party will furnish only that portion of the Confidential Information that is legally required and use commercially reasonable efforts to obtain assurance that confidential treatment will be accorded the Confidential Information.

8.4 Reproduction and Return of Confidential Information.

The Confidential Information provided by the Disclosing Party will not be copied or reproduced without the Disclosing Party's prior written consent, except for such copies as may reasonably be required by the Receiving Party for its performance of its obligations under these Terms. Upon the Disclosing Party's request, the Receiving Party will promptly return to the Disclosing Party (or its designees) all Confidential Information received from the Disclosing Party or certify that it has destroyed all Confidential Information, in whatever form, including written or electronically recorded information and all copies thereof (other than copies retained in automatic back-up and archive systems). Notwithstanding the foregoing, the Receiving Party will be entitled to retain one copy of the Confidential Information with its legal counsel or other appropriate corporate representative to evidence the exchange of information hereunder and in connection with legal or statutory requirements. All such retained copies will be subject to the use and disclosure restrictions set forth in this Section 8 for so long as the Confidential Information is retained. 8.5 Torts and Trade Secrets. Nothing in this Section 8 will be construed to limit or negate the provisions of any other agreement or the statutory or common law of torts or trade secrets where such other agreement or law provides either party with broader protection for its Confidential Information than as provided herein.

9 Term and Termination.

Either Party may terminate these Terms, a Purchase Order or an accepted Quotation: (a) upon material breach of any material term of these Terms by the other Party that is not remedied within 30 days after written notice of such breach is issued by the non-breaching Party; or (b) if a Party becomes insolvent or makes an assignment for the benefit of creditors, or such Party institutes any voluntary proceeding under bankruptcy, reorganization, arrangement, readjustment of debt or insolvency law of any jurisdiction or for the appointment of a receiver or trustee in respect to any of the Party's property, then termination will be automatic and immediate; however, in the event any such proceeding is initiated by a third-party against such Party, termination will be automatic if such proceeding is not dismissed or cured by the Party within 30 days after the filing thereof. Upon termination, all rights, licenses, consents and authorizations granted by a Party hereunder will immediately terminate, other than those expressly specified to continue after termination. The rights of termination provided herein are not exclusive of other remedies that Seller may be entitled to under these Terms or in law or equity. In no event will termination relieve Buyer of its obligation to pay any amounts payable to Seller for the period prior to the effective date of termination. Section 1 and Sections 5 through 10 will survive any termination or expiration of these Terms, any Purchase Order or Quotation. 

10 Miscellaneous.

10.1 Waiver; Severability.

No waiver of any of provisions of these Terms will be effective unless agreed to in writing signed by the Party waiving such provision. No oral agreement, course of performance or other means other than such written agreement signed by both parties expressly providing for such waiver will be deemed to waive any provision of these Terms. In the event that any provision or portion of a provision herein is determined to be illegal, invalid, or unenforceable, the validity and enforceability of the remaining provisions will not be affected, and in lieu of such provision, a provision similar in terms as is legal, valid and enforceable will be added hereto

10.2 Interpretation and Headings.

The Parties have jointly participated in the negotiation and drafting of these Terms. In the event any ambiguity or question of intent or interpretation arises, no presumption or burden of proof will arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of these Terms. The headings contained in these Terms are for reference purposes only and will not affect in any way their meaning or interpretation. Pronouns in masculine, feminine or neuter genders will be construed to state and include any other gender. Whenever the words "include," "includes" or "including" are used in these Terms, they will be deemed to be followed by the words "without limitation." 10.3 Notice. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") will be in writing and addressed to the address set forth for the receiving Party thereof on the face of the Purchase Order, in each case as such address may be updated from time to time by the receiving Party in writing. All Notices will be delivered by personal delivery, email, nationally recognized overnight courier (with all fees pre-paid) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only (x) upon receipt of the receiving party, and (y) if the party giving the Notice has complied with the requirements of this Section 10.3. 

10.4 Force Majeure.

In the event either Party is unable to fully perform its obligations hereunder (except for Buyer's obligation to pay any amounts owed hereunder) due to events beyond its reasonable control, that by their nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including labor strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party's), acts of God, action by any governmental authority (whether valid or invalid), fires, floods, windstorms, earthquakes, natural disasters, epidemic, pandemic, tariffs, embargoes, explosions, riots, acts of terrorism or sabotage, malicious damage, wars, electronic viruses, worms or corrupting microcode, or court injunction or order, shortage of supply or delay in delivery by Seller's vendors, breakdown of plant or machinery, default of suppliers or sub-contractors, inability to obtain or secure: power, material, labor, transportation and equipment, that Party will be relieved of its obligations to the extent it is unable to perform. Timely notice of such inability to perform will be given to the other Party.

10.5 Assignment.

Neither Party may assign any rights or obligations hereunder without the prior written consent of the other Party, which consent will not be unreasonably withheld or delayed; provided, that no consent will be required with respect to assignments by a Party to any of its Affiliates.

10.6 Relationship of the Parties.

Buyer and Seller are independent contracting Parties and nothing hereunder or in the course of performance of these Terms will grant either Party the authority to create or assume an obligation on behalf or in the name of the other Party, or will be deemed to create the relationship of agency, joint venture, partnership, association or employment between the Parties

10.7 Dispute Resolution; Governing Law.

These Terms, the Quotation, the Purchase Order and all disputes between the Parties arising out of or related thereto will be governed by the laws of the State of Missouri except for its choice of law rules; the United Nations Convention on the International Sale of Goods will not apply. All disputes and related claims must be made within 12 months after the cause of action accrues. Seller and Buyer acknowledge that these Terms, the Quotation and the Purchase Order evidence a transaction involving interstate commerce. Seller and Buyer will first endeavor to resolve through good faith negotiations any dispute arising under or related to these Terms or with respect to the Products or the Services. If a dispute cannot be resolved through good faith negotiations within 30 days, then, upon notice by either Party to the other, such dispute will be resolved exclusively through binding arbitration before a single, neutral arbitrator conducted in accordance with the Commercial Arbitration Rules of the AAA. If the are unable to agree upon an arbitrator within 10 days, the arbitrator will be selected by the AAA. The arbitration will be conducted in St. Louis, Missouri, and the language of the arbitration will be English. The arbitrator's award will be final and binding. The arbitrator will issue a written opinion setting forth the basis for the arbitrator's decision. The written opinion may be issued separately from the award by the arbitrator where necessary to preserve confidentiality. Each Party will bear its own fees and costs, and each Party will bear one half the cost of the arbitration hearing fees, and the cost of the arbitrator, unless the arbitrator finds the claims to have been frivolous or harassing. Either Party may apply to have the arbitration award confirmed and a court judgment entered upon it. The arbitrator will have no authority to award punitive damages or any other damages excluded herein. Except as may be required by law, neither a Party, its counsel, nor the arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both Parties.

10.8 Government Contracts.

If Products are purchased under a government contract or sub-contract, Buyer will promptly notify Seller of the provisions of any government procurement laws and regulations which are required to be included in the contract covering the Products ordered, which will not be binding on Seller unless expressly agreed to by Seller in writing. If compliance with such provisions increase Seller's costs or liability, or encumbers any Seller Intellectual Property Rights, Seller will be entitled, at its option, to adjust the prices accordingly, request separate payment of the additional costs, or terminate these Terms and/or the applicable Purchase Order, in which case Buyer will be responsible for all costs incurred by Seller prior to such termination.

10.9 Entire Agreement.

These Terms and all other agreements incorporating these Terms constitute the sole and entire agreement under which Seller will sell and Buyer will purchase the Products. Terms and conditions proposed by Buyer that are different from or in addition to the provisions of these Terms are hereby expressly rejected by Seller and are not a part of these Terms and Buyer's acceptance is expressly limited to the terms of this Terms. These Terms constitute the entire agreement between Seller and Buyer with respect to the matters contained herein and supersede all prior or contemporaneous oral or written agreements, representations and/or communications. These Terms may be modified only by an amendment expressly referencing and modifying these Terms that is issued and signed by an authorized representative of Seller.