All proposals and quotations for the sale of United Grinding North America, Inc.’s products (“Prod-ucts”) and United Grinding North America, Inc.’s acceptance of purchase orders for Products are expressly conditioned upon Buyer’s agreement to the following Terms and Conditions:
1. ACCEPTANCE OF ORDERS
All purchase orders must be addressed to the home office of United Grinding North America, Inc. (“Seller”) home office, 2100 United Grinding Boulevard, Miamisburg, OH 45342, for written ac-ceptance and formal acknowledgment. Buyer’s purchase order must be in writing and received by Seller prior to the expiration date of Seller’s proposal. Submission of Buyer’s purchase order or other written acknowledgement or acceptance of Seller’s quotation, or Buyer’s instruction to Seller to proceed to manufacture or deliver the Products identified in Seller’s quotation, or Buyer’s pay-ment or acceptance of delivery of all or any part of such Products, shall constitute Buyer’s ac-ceptance of these terms and conditions of sale and the formation of an agreement to purchase Products based solely on these terms and conditions and those provisions set forth in Seller’s quotation or in any exhibit or schedule referred to herein or therein (together, these documents constitute the “agreement”). Any additional, different or inconsistent terms or conditions appearing in Buyer’s purchase order shall not be a part of the agreement between Buyer and Seller and shall be of no effect unless specifically accepted in writing by Seller as an exception to the foregoing rule.
Prices are F.C.A. Seller’s loading dock in Miamisburg, Ohio in US dollars and are subject to change without notice.
3. TITLE, RISK OF LOSS AND SECURITY INTEREST
For Products shipped from Seller’s home office, title and risk of loss shall pass to Buyer when Products are delivered F.O.B. to Seller’s loading dock in Miamisburg, Ohio. For Products shipped from outside the continental United States, title and risk of loss shall pass to Buyer when Products are F.C.A. Seller’s loading dock at North American Harbor, unless otherwise agreed in writing by the parties.
In the event Seller has extended to Buyer financing for all or any portion of the purchase price of Products, Buyer hereby expressly grants to Seller a security interest in the Products and replace-ments and all proceeds and Products thereof to secure the prompt performance of Buyer’s obli-gations hereunder, including without limitation, payment of principal amount of such financing, interest thereon, if any, and any amount conditionally retained by Buyer until the full purchase price (including interest and additional charges) has been paid. Buyer’s failure to pay any amount when due shall give Seller the right to repossess and remove Products. Such repossession and removal shall be without prejudice to any of Seller’s other remedies at law or in equity, including without limitation, all rights of secured creditors under the Uniform Commercial Code in force in the State of Ohio. Seller, at Seller’s sole discretion, may file any financing statement and any renewal or assignment thereof or other forms, including without limitation, a UCC-1 Financing Statement or equivalent, necessary to perfect Seller’s security interest granted herein. Buyer further agrees that Seller may sign on behalf of Buyer and file any such financing statement or other forms and to cooperate with Seller, at Seller’s request, to execute and deliver any additional documentation which Seller may reasonably request to protect its inter-est in Products.
4. DELIVERY AND SHIPPING
Quoted delivery times are approximate estimates determined at the time of quotation and are subject to revision without any liability whatsoever to Seller. Under no circumstances shall Seller have any liability whatsoever for loss of use or for any indirect or consequential damages, including without limitation, lost profits as a result of delayed delivery. Unless otherwise requested by Buyer, shipment will be made by carrier of Seller’s choice. Seller may deliver Products in installments. If any shipment of Products is delayed at Buyer’s request, Seller may invoice Buyer for such Prod-ucts, and risk of loss to such Products shall pass to Buyer on the date Seller is prepared to make shipment, following which date Buyer shall also be responsible to pay Seller for all reasonable costs incurred by Seller to store such Products as a condition before Seller shall be required to ship said Products.
5. INSPECTION AND REJECTION
Buyer will inspect Products promptly upon their arrival at Buyer’s location identified in the purchase order. Buyer may not reject or revoke its acceptance of any Products unless the nonconformity of such Products is substantial. No nonconformity or defect shall constitute grounds for claiming breach of the entire purchase order or sales agreement. Seller reserves the right to cure, by repair or replacement, any defects within a reasonable time after receiving written notice of such defects from the Buyer. Buyer shall have ten (10) days following delivery of Products hereunder to give Seller written notice of any claimed defect in such Products . Buyer agrees that such notice period is reasonable. Failure to give timely notice, as provided above, shall be deemed irrevocable ac-ceptance of such Products. Notwithstanding the foregoing, if Buyer has accepted Products ten-dered under this sales agreement in any manner provided in the Ohio Uniform Commercial Code, Buyer shall have no right to subsequently reject Products for any reason or to revoke acceptance of nonconforming Products, unless the acceptance of nonconforming Products was induced by written assurances by Seller .
6. TERMS OF PAYMENT
Unless otherwise agreed in writing by the parties:
(a) For machines, including tooling and accessories:
Deposit and/or progress payments, if required by Seller’s proposal due and paya-ble according to Seller’s proposal. If no deposit and/or progress payments are specified, Buyer shall pay to Seller such amounts according to the following pay-ment schedule: 30% of total purchase price due and payable within thirty (30) days of placement of the purchase order, 60% due and payable within thirty (30) days of Shipment and 10% due and payable on the earlier of (i) acceptance, (ii) warranty registration and (iii) 90 days after Shipment. Shipment means when Seller delivers Products for purposes of transfer of title and risk of loss in accordance with Para-graph 3, hereof. Seller reserves the right to suspend installation service until Seller receives payment for at least 90% of the total purchase price. If acceptance of the Products by Buyer (which shall not be unreasonably withheld) after Shipment by Seller is delayed more than ninety (90) days from the date of delivery of the Prod-ucts because of conditions other than the Products or services provided by Seller, including but not limited to delay in the provision of goods or services by Buyer or other suppliers, Buyer will pay to Seller as interest 0.4% of the amount due and payable per week until acceptance by Buyer. Receipt and subsequent bank de-posit of a down payment shall not be construed as acceptance of the purchase order until said order is accepted in writing by Seller. Seller reserves the right to cancel and to refuse to complete Buyer's purchases or delay and demand payment in full in advance if, in Seller’s opinion, Buyer has not established credit to promptly meet the payment terms of the order. Acceptance and payment by Buyer with re-spect to the Products shipped by Seller shall not be delayed because of any delay in shipment by Seller of accessory or ancillary equipment not essential to the op-eration of the Products already shipped; in such event, the payment terms set forth in this paragraph shall be applicable to the Products shipped as of the date of Ship-ment and to subsequent Shipments of Products as they occur.
(b) For repair parts and service work: Net cash due on receipt of invoice.
(c) Any account unpaid more than thirty (30) days after receipt of invoice is subject to a finance charge of 1.5% per month on the unpaid balance. To the extent permitted by law, accounts placed for collection are subject to a 25% service charge and Buyer shall be responsible for any and all costs of collection, including reasonable attorney’s fees and costs, whether or not arbitration or legal proceedings are insti-tuted. Unless there is a mutually agreed upon exception to these terms, non-pay-ment will result in voiding of warranties, service and software support.
(d) The purchase price is exclusive of any sales, use or privilege tax, customs duty or import, excise tax based on gross revenue or any similar tax or charge which might be levied as a result of the production, sale or shipment of any Products or the use of any Products by Buyer. Buyer agrees to pay and otherwise be fully responsible for any such taxes (except for taxes based on the net income of Seller). Any per-sonal property taxes assessable on Products after delivery shall be borne by Buyer. Seller shall have the right, but shall not be obligated, to pay any such taxes directly, in which event Buyer shall promptly reimburse Seller in the amount thereof upon presentation by Seller of evidence of payment.
(e) Notwithstanding the foregoing paragraph, Seller shall have no responsibility to col-lect, report, or pay any tax imposed on the purchase of Products by Buyer, and Seller shall not collect, report, or pay any such tax which may be imposed by any governmental or tax collecting authority outside of the United States of America.
7. SPECIFICATIONS AND PERFORMANCE
(a) Brochures, descriptions, specifications, drawings and other particulars however is-sued by or on Seller’s behalf are for informational purposes only and are not war-ranted and Seller will not be bound thereby, unless expressly confirmed by Seller in the proposal to which these terms and conditions are attached.
(b) Any production figures and performance data are estimates and may vary depend-ing on the actual limits of accuracy, machinability of the material, amount of material to be removed, accuracy and finish desired, available facilities, optimum grinding wheels and coolant, operator skill and Buyer’s operating conditions. These figures do not constitute a guarantee of production. Exact cycle times for Buyer’s specific application can only be determined by actual operation of Products by Buyer. Seller makes no warranty or representation regarding part accuracy or part to part consistency.
(c) Unless otherwise provided in writing, any and all software developed by Seller and delivered to Buyer is delivered pursuant to a non-exclusive, non-transferable li-cense. Though Seller takes every reasonable precaution to ascertain that software supplied with or for any CNC controlled unit is correct, based upon specifications provided by Buyer, Seller cannot contemplate all applications. All software is sup-plied AS-IS with no express or implied warranties. Buyer is responsible to verify each part program to avoid software associated damage to Products, spoilage or manufacturing delays. Copying or transferring software by Buyer to a third party is prohibited. The source version of all Seller-price programs is the exclusive intellec-tual property of Seller and shall not be copied, licensed, transferred or assigned to any third party without the express written permission of Seller. Third-party software delivered by Seller to Buyer shall be subject to the EULA of the developer of such software.
(d) Buyer is responsible to prepare its facility for Product installation and operation in accordance with the machine foundation specifications and utility services require-ments.
(a) By Buyer: Each purchase order is considered an irrevocable offer to purchase and is noncancelable after it has been accepted by Seller. Any cancellation by Buyer, if approved by Seller’s home office, is contingent upon payment to Seller of a charge computed to cover all of Seller’s costs incurred prior to receipt of the notice of cancellation and the lost profit on the entire order.
(b) By Seller: Seller shall have the right to cancel and refuse to complete or ship this order if at any time: (1) the terms and conditions governing this order, including any requirement of advance payment or posting of security, are not complied with by Buyer and such default or breach is not remedied within seven (7) days after receipt of notice from Seller specifying the default or breach; (2) Seller has reason to be-lieve that the financial responsibility of Buyer is impaired or unsatisfactory to Seller; or (3) Buyer becomes insolvent, enters into any extension agreement or general arrangement with creditors, or becomes the subject of any procedures for settle-ment of debts or bankruptcy.
9. PROPERTY AND PATENT RIGHTS
Seller retains for itself, exclusively, any and all property rights, including without limitation, intel-lectual property rights in and to all designs, ideas, inventions, methods, processes, engineering details and other data and Confidential Information (as defined below) pertaining to any Products designed in connection herewith or patent rights arising out of the work done in connection here-with or with any and all Products developed as a result thereof, including the sole right to manu-facture and produce any and all of the Products designed as a result hereof. Nothing contained in the agreement or these terms and conditions shall grant to Buyer any right, license or privilege in or to Seller’s property rights, other than the royalty-free, non-exclusive, revocable, non-transfera-ble, non-licensable right to use Seller’s property rights incorporated into the Products for the sole purpose of operating, maintaining and repairing the Products.
10. PROPRIETARY TECHNICAL MATERIALS
Documentation, maintenance manuals and drawings relating to Products (collectively, “Proprie-tary Technical Materials”) which Seller may furnish shall be in Buyer’s possession pursuant only to a restrictive, nontransferable, nonexclusive license under which Buyer may use such Proprie-tary Technical Materials solely for the purpose of operating, servicing and repairing Products and for no other purpose. Buyer agrees to maintain the confidentiality of all Proprietary Technical Ma-terials and to instruct and obligate its employees and agents to do the same. Without limiting the generality of the foregoing, Buyer may not reproduce or copy any Proprietary Technical Materials or transfer, assign, sublicense, loan, disclose or otherwise make available all or any portion of such Proprietary Technical Materials to any other person or entity, without the prior express written consent of Seller. Title to and ownership of the Proprietary Technical Materials shall at all times remain in Seller. In addition to any other remedy Seller may have, Seller reserves the right to terminate this license if Buyer fails to comply with any term or condition hereof. This license shall also terminate at such time as Buyer shall permanently cease to use Products. Buyer agrees, upon notice from Seller of any termination of this license and in accordance with any more specific directions from Seller, to deliver immediately to Seller all Proprietary Technical Materials and all copies thereof.
11. PATENT AND TRADEMARK INDEMNITY
(a) Seller will defend, at its own expense, any suit or proceeding against Buyer in a court of the United States for the direct infringement of United States patents and trademarks by Products purchased from Seller hereunder. Seller shall pay all dam-ages and costs finally awarded against Buyer because of direct infringement; pro-vided, however, that Seller shall not be obligated to defend or be liable for costs or damages awarded in any suit or proceeding for infringement of patents by any other Products, or any completed equipment, system, assembly, combination, method or process, in which, or in the manufacture or testing of which, any Products pur-chased from Seller may be used; and provided further that Seller’s obligation to pay such damages and costs shall not apply to any alleged infringement occurring after Buyer has received notice of such alleged infringement unless Seller thereaf-ter gives to Buyer written consent for such continuing alleged infringement.
(b) Seller’s duties under this Paragraph 11 are conditioned upon Buyer giving Seller prompt written notice of commencement of any suit or proceeding or any claim of infringement and furnishing to Seller a copy of each communication relating to the alleged infringement and giving to Seller all authority (including the right to exclu-sive control of the defense of any such suit or proceeding), information and assis-tance (at Seller’s expense) necessary to defend or settle such suit or proceeding. Seller shall not be bound by any settlement made without Seller’s prior written con-sent.
(c) If in any such suit or proceeding Buyer’s continued use of any item of Products is enjoined, or if by reason of any claim of infringement Seller deems it advisable to do so, Seller may at its option and expense: (1) procure for Buyer the right to con-tinue using such Products; (2) modify or replace such Products with non-infringing Products, provided that such modification does not materially affect performance; or (c) remove such Products, grant Buyer a credit thereon as depreciated on a straight-line 2-year basis and accept its return. If infringement is alleged prior to completion of deliveries of the Products, Seller may decline to make further ship-ments without being in breach of the agreement.
(d) Seller shall not be obligated to defend any suit or proceeding, or be liable for any costs or damages, if the infringement arises out of compliance with Buyer’s speci-fications or any marking or branding applied at the request of Buyer. Buyer agrees, at its expense, to defend and to pay costs and damages finally awarded in any suit or proceeding against Seller based on any such infringement, provided that Buyer is promptly notified by Seller in writing of the commencement or threat of such suit or proceeding or claim of infringement and is given all authority (including the right to exclusive control of the defense of any such suit or proceeding), information and assistance (at Buyer’s expense) necessary to defend or settle such suit or proceed-ing.
In addition to the obligations in any separate non-disclosure or confidentiality agreement between the parties, which the parties hereby acknowledge and agree shall survive the expiration or termi-nation of any such agreement until the expiration of the period of confidential restriction set forth in this Paragraph 12, Seller and Buyer hereby agree that the following terms and conditions shall apply to any Confidential Information (as defined below) that is disclosed or made available to the receiving party by the disclosing party in connection with the performance of the agreement. The parties agree not to directly or indirectly use (except for purposes related to the agreement) or disclose to third parties (except to its employees or representatives who have reason to know the Confidential Information in order to perform the agreement) any Confidential Information for a period of five (5) years from the date of the agreement or the date of delivery of the Products, whichever is later; provided the confidentiality obligations hereunder shall continue with respect to the trade secrets of a disclosing party for so long as the information constitutes a trade secret under applicable law. Further, upon request or upon the expiration or termination of the confiden-tial restriction period in the Paragraph 12, each receiving party shall return promptly to the disclos-ing party all Confidential Information of the disclosing party, whether in digital or written form, and all copies thereof, and shall delete the same from any computer server or other memory storage device. The receiving party shall not reproduce, reverse engineer, deconstruct on disassemble the disclosing party’s Confidential Information. “Confidential Information” means any information disclosed by a party relating to its products, methods, processes, business or customers that is proprietary and non-public, including without limitation, trade secrets, technology, know-how, per-sonal data, pricing, specifications, drawings, ideas and inventions, as well as the existence and terms and conditions of the agreement. Confidential Information shall not include: (a) information that is or becomes public through no fault of the receiving party; (b) information that was in the possession of the receiving party prior to its disclosure hereunder; (c) information that was dis-closed to the receiving party by a third party under no obligation of non-disclosure; or (d) infor-mation independently developed without reliance on Confidential Information. In the event of a breach or threatened breach of the confidentiality restrictions herein, the disclosing party shall have the right to seek injunctive relief, in additional to any other remedies it may have at law or in equity, without having to prove irreparable harm or the inadequacy of monetary damages or to post a bond or other security.
13. RETURNS; RESTOCKING FEE
(a) No returns of Product shall be accepted by Seller without prior approval of such return by Seller.
(b) Each Product return shall be subject to a 25% restocking charge.
(a) Seller warrants to the original Buyer the Products of Seller’s own manufacture against defects in material and workmanship under normal operating conditions and service for the warranty period stated in Seller’s final proposal, or if no warranty period is stated in Seller’s final proposal for a period of twelve (12) months of op-eration but not to exceed one year from date of shipment. This warranty does not cover perishable tooling and parts subject to wear or consumption, such as filters and wear surface lubricants. Buyer’s exclusive remedy under this warranty is lim-ited to repairing or, at Seller’s option, furnishing without charge F.O.B. point of man-ufacture a similar part to replace any part which is proven to have been defective at the time it was shipped, provided Buyer has given Seller written notice of any such claimed defect within fifteen (15) days of discovery thereof, and in any event within the term of this warranty. Seller shall have the option of requiring the return of the defective part, transportation paid, to establish the claim. No allowance will be made for repairs or alterations made without Seller’s prior written consent or approval. Any service performed by Seller’s personnel beyond the coverage of the warranty is chargeable at Seller’s regular rates. Where required, the supervision of Seller’s serviceman will be furnished at no charge to correct any defect. Seller’s obligations under the warranty provided herein shall not, under any circum-stances, exceed the purchase price of the Products. Seller shall not be liable for any incidental or consequential damages, including without limitation, lost profits as Buyer’s sole remedy is limited above to repair or replacement. Any action for breach of this warranty or other action under those terms must be commenced within one year after such cause of action arises.
(b) Seller may provide after-sales services to Buyer for the Products sold to Buyer hereunder. Such services provided hereunder may include, as necessary, assis-tance to Buyer in installation, service, and repair of Products, as well as training of Buyer’s employees in the service of Products. Such services shall be provided at times and upon conditions agreed to in writing between the parties from time to time. Seller’s personnel providing such services shall not be engaged in construc-tion activities and shall receive no remuneration or compensation from Buyer in exchange for the services provided.
(c) This warranty is limited to the original Buyer and is not transferable.
(d) Seller makes no warranty with respect to Products manufactured by others and incorporated in or attached to Products supplied, or to any Product or part war-ranted herein, provided, however, that Seller shall pass on to Buyer such warran-ties as may be provided by the original product manufacturer.
(e) Seller’s obligation under this warranty is dependent upon Products being used and maintained in accordance with all operating and maintenance instructions set forth in the manuals and instruction sheets furnished by Seller. This warranty shall be void with respect to Products if (1) there is any alteration or repair by any person other than Seller’s authorized personnel, unless authorized by Seller in writing; (2) if any Products are operated at levels in excess of the stated throughput capacity; (3) if Buyer does not maintain and operate Products in strict accordance with Seller‘s written instructions and operating manuals provided by Seller to Buyer; or (4) if any Products have been subjected to abuse, vandalism, accident or similar deviations from normal operations.
(f) THE FOREGOING WARRANTY AND REMEDIES ARE EXCLUSIVE. SELLER MAKES NO OTHER EXPRESS WARRANTY. SELLER DISCLAIMS, AND BUYER WAIVES ANY AND ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. SELLER SHALL IN NO CIRCUMSTANCES BE LIABLE IN CONTRACT, IN TORT OR OTHERWISE FOR SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, WHETHER OR NOT FORESEEABLE. NO EMPLOYEE OR REPRESENTATIVE OF SELLER IS AUTHORIZED TO MODIFY THIS WARRANTY, OR SELLER’S STANDARD WARRANTY FOR ANY PRODUCTS.
15. OSHA; PRODUCT LIABILITY AND INDEMNIFICATION
(a) Because of differences in installation, the large variety of sizes and shapes of grind-ing wheels, and Buyer’s control over the operation, use and maintenance of Prod-ucts, only Buyer can assure compliance with OSHA and ANSI Standards, and Seller shall have no liability to Buyer or Buyer’s agents, servants and employees or others for any failure of compliance. Upon Buyer’s request, Seller may, as an accommodation to Buyer, and without incurring any liability, quote additions or modifications required by Buyer to meet OSHA or ANSI requirements and advise Buyer on developing maintenance and operating procedures to comply with such requirements.
(b) Buyer shall use and shall require its employees to use all safety devices and guards, and follow proper safe operating procedures as set forth in manuals, in-struction sheets and signs furnished by Seller. Buyer shall not modify any Products.
(c) Buyer shall promptly notify Seller, and in any event within five (5) days, of any ac-cident or malfunction involving Products which results in personal injury or damage to property and shall cooperate fully with Seller in investigating and determining the cause of such accident or malfunction.
(d) Buyer agrees to defend, indemnify and save Seller harmless from any and all lia-bility or claim for loss or damage to persons or property or related expenses (in-cluding actual attorneys’ fees) resulting from or related to Buyer's failure to comply with its obligations pursuant to the agreement and these terms and conditions, in-cluding without limitation, Buyer’s failure to operate and maintain the Products in accordance with Seller’s written instructions or applicable law, including OSHA and ANSI regulations and standards, except to the extent such loss or damage is caused by Seller’s gross negligence or willful misconduct.
16. LIMITATION OF LIABILITY
Seller, or any of its affiliates, shall in no event have obligations or liabilities to Buyer or any other person for loss of profits, loss of use or incidental, special or consequential damages, including without limitation, lost profits, whether based on contract, tort (including negligence), strict liabil-ity or any other theory or form of action, even if Seller has been advised of the possibility thereof, arising out of or in connection with the sale, delivery, use, repair or performance of Products, or any failure or delay in connection with any of the foregoing. Without limiting the generality of the preceding sentence, Seller shall not be liable for personal injury or property damage. Notwith-standing anything to the contrary herein, the total damages payable by Seller hereunder for any and all reasons whatsoever shall not exceed the amount paid by Buyer for the Products respon-sible for such damages. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE BUYER’S REMEDIES UNDER THESE TERMS FAIL OF THEIR ESSENTIAL PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY PRODUCTS IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY SELLER, BY WAY OF TECH-NICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE PRODUCTS.
17. FORCE MAJEURE
(a) If the performance of any obligation hereunder, except the making of payments hereunder, is prevented, restricted, interfered with or delayed by reason of pan-demic, fire, flood, earthquake, explosion or other casualty or accident; strikes or labor disputes; inability to procure parts, supplies or power; war or other violence; any law, order, proclamation, regulation, ordinance, demand or requirement of any government agency; or any other act or condition whatsoever beyond the reason-able control of the affected party, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected shall take all reasonable steps to avoid or remove such causes of nonperformance and shall resume performance hereunder with dispatch whenever such causes are removed.
(b) In the event such excusable delay shall continue for a period of more than three (3) consecutive months, then either party may at any time after the expiration of such three (3) months’ period terminate the purchase order under these terms upon written notice to the other party, while such cause or causes of delay continue. In the event of such a termination, it is understood and agreed that Buyer shall pay Seller’s reasonable costs and expenses incurred or committed to prior to the date of such termination in respect of all work and services performed by Seller under these Terms of Sale. Buyer agrees to pay such costs and expenses promptly fol-lowing receipt of Seller’s invoice therefore, which shall be submitted as soon as practicable after such termination.
Waiver by either party of a breach of any provision of the agreement shall not constitute a waiver of any subsequent nonperformance or other breach of the same or any other provision.
19. GOVERNING LAWS
The parties acknowledge that the purchase order(s) that is subject to these terms bears a reason-able relation to the State of Ohio, and agree that in the event of any dispute or disagreement between them relating to this agreement, the laws of the State of Ohio shall govern their rights and duties under this agreement. The parties specifically intend that the provisions of Article 2 of the Ohio Uniform Commercial Code will control as to all aspects of this agreement and its inter-pretation, and that all the definitions contained therein will be applicable to this agreement except where this agreement expressly provides otherwise. No course of prior dealings between the parties and no usage of trade shall be relevant to supplement or explain any term used herein.
20. ARBITRATION OF DISPUTES
All disputes that may arise between the parties regarding the interpretation or application of these terms and the legal effect of these terms, including without limitation, the enforceability of this arbitration provision, shall, to the exclusion of any court of law, be arbitrated and determined by a binding arbitration, unless the parties can resolve the dispute by mutual agreement. Either party shall have the right to submit any dispute to arbitration 60 days after the other party has been notified as to the nature of the dispute. The arbitration shall be governed by the Commercial Arbi-tration Rules of the American Arbitration Association. The arbitration proceeding shall be governed by the statutes of the State of Ohio, and the proceeding shall be held in the city in that state where the principal office of Seller is located before single arbitrator selected in accordance with the American Arbitration Association. The parties recognize and consent to the above-mentioned arbitration association’s jurisdiction over each and every one of them. The decision of the arbitrator shall be conclusive and binding upon the parties and may be enforced by any court of competent jurisdiction. Notwithstanding anything to contrary in this Paragraph, any claim for injunctive relief or specific performance may be brought by either party in the federal or state courts for Miamis-burg, Ohio, which the parties acknowledge and consent shall have the exclusive jurisdiction to adjudicate such matters.
21. ATTORNEYS’ FEES
If any legal action is brought to collect the purchase price hereunder, the prevailing party shall be entitled to receive its attorneys’ fees and court costs in addition to any other relief it may receive.
The invalidity in whole or in part of any of these terms and conditions shall not affect the validity or enforceability of any other term or condition. If any clause of the agreement is held to be invalid by any court of competent jurisdiction, the clause in question shall be modified to eliminate the invalid element and as so modified the clause shall be binding on the parties. The remaining pro-visions of the agreement shall not be affected by the modification of any invalid clause. “
23. BINDING EFFECT; ASSIGNMENT
The agreement and the terms and conditions hereof shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. The parties agree that Buyer may not assign the agreement without the prior written consent of Seller. Any attempt to assign the agreement in violation of this Paragraph shall be null and void.
Neither the agreement may be modified or amended except in a writing signed by both parties. The agreement may not be modified by course of dealing, course of performance or any oral communication between the parties.
Any notice permitted or required hereunder must be in writing and, if sent to Seller, addressed to Seller’s home office set forth herein, or, if sent to Buyer, addressed to Buyer at the address for Buyer reflected in Seller’s records. Either party may from time to time designate a different ad-dress by notice duly given. Notices may be delivered by (a) a nationally recognized overnight courier, with such notice effective upon receipt as shown in the courier’s records or (b) U.S. certi-fied mail, postage prepaid, return receipt requested, with such notice effective upon the earlier of receipt or three (3) calendar days after postmarked.
26. COUNTERPARTS; ELECTRONIC SIGNATURES
The agreement may be executed in counterparts, each of which shall be deemed an original and all of which shall constitute one and the same documents. The parties agree that documents may be executed electronically by their duly authorized representatives and upon receipt shall be con-sidered originals.
27. EXPORT CONTROLS
The parties acknowledge that information subject to U.S. export control laws and regulations may be dis-closed pursuant to this Agreement. Each party shall comply with all applicable export and import laws and regulations, including but not limited to, the International Traffic in Arms Regulations, as amended (22 C.F.R. Parts 120 - 130) (“ITAR”), the Export Administration Regulations, as amended (15 C.F.R. Parts 730 - 774) (“EAR”) and Office of Foreign Assets Control (“OFAC”) regulations. The parties shall not export, disclose, transfer, furnish or otherwise provide any article, technical data, technology, defense service, or technical assistance of the other party to any foreign country or foreign person as defined by applicable export control laws and regulations, including those working for a party, whether in the United States or abroad, without obtaining in advance proper United States government export authorization.
Buyer shall comply with applicable laws and regulations governing the exportation or re-exportation of the Products. The Products may be subject to export restrictions imposed by the United States, Switzerland, Germany and other countries and Buyer will not export or permit the export of the Products anywhere without proper government authorization. Buyer further agrees that when requested by Seller, it shall pro-vide all necessary information, including but not limited to the end-user and end use of the Products to fa-cilitate compliance with applicable export control laws. Buyer also agrees that it will notify Seller immedi-ately in writing if Buyer or any of its related entities, or any of Buyer’s customers for which a Product pur-chased from Seller was used in any way to fulfill an order for such Buyer customer, is added to the Entity List in Part 744 in the EAR (“Entity List”). Buyer acknowledges that should Buyer be added to the Entity List, Seller shall have the right to immediately cease any pending deliveries or if available, apply for any applicable export license, in which case delivery can only resume if an export license is granted. Seller shall have no liability (including for lost profits or business interruption or under the limited service war-ranty) for any delivery interruption as a result of any changes in export control laws and regulations.
28. ENTIRE AGREEMENT
The agreement constitutes the entire agreement with regard to the subject matter of the agree-ment and supersedes any and all prior agreements, understandings and communications between Buyer and Seller related to the subject matter of the agreement.