TIANMA AMERICA, INC.
GENERAL TERMS AND CONDITIONS OF SALE
1. EFFECTIVENESS. These terms and conditions of sale (these “Terms”) apply to any transactions which are (a) not stated in any separate written agreement between the customer (“Buyer”) and Tianma America, Inc. (“Seller”) and signed by both parties; or (b) not stated on Seller e-commerce website. These Terms are a material part of the bargain for Seller. No other terms will be valid unless specifically agreed to in writing by Seller. Seller expressly rejects any terms contained in any purchase order issued by Buyer that are in addition to or inconsistent with these Terms. Seller’s willingness to sell products and services to Buyer at quoted prices and quantities is conditioned on Buyer’s acceptance of these Terms. Failure of Seller to object to the provisions in any document or communication sent by Buyer will not be deemed a waiver of the Terms or acceptance of any terms Buyer may have requested. Buyer is deemed to have expressly accepted the Terms if Buyer requests or accepts delivery of any product or commencement of services. Seller rejects any quantity or delivery date terms in any purchase order submitted by Buyer where the term “TBD” is used on the face of these Terms or other form of acknowledgement by Seller or where such terms are not specified or are to be determined at a later date. In the event that Seller consents to modify any of the Terms, the modification will only be effective if (A) it is expressly stated on the face of the Terms and endorsed by Seller or (B) it is in a separate writing that is signed in advance by the parties and specifically refers to the change to these Terms.
2. PRICE. Billings for products and services will be in writing and at the prices in Seller’s acknowledgement unless otherwise specified by Seller in writing. Invoices shall include the price of each product shipped or service to be performed pursuant to these Terms, plus any freight or handling charges. Prices do not include any taxes, now or hereafter applicable on the products or services associated with the transaction, which will be added by Seller to the price where Seller is required by law to collect same, and will be paid by Buyer unless Buyer provides Seller with a proper tax exemption certificate in form and substance satisfactory to Seller. The prices on the face of these Terms are subject to all present and future tariffs, import and export duties, border taxes and similar import surcharges and taxes which shall be incurred solely at the cost and risk of Buyer. If any such rates or charges contemplated on the face of these Terms (whether shown as a separate charge or not) are increased pending delivery, Buyer shall pay such increased rates or charges in addition to the price. Notwithstanding any other provisions in these Terms, in the event that (a) special or additional duties, including antidumping or countervailing duties, are imposed on all or some of the products, or (b) the “fair value” applicable to such products under the US antidumping laws is deemed by government action or by Seller itself to increase, then Seller shall have the right, subject to the provisions set forth in these Terms, to increase the price of such products by an amount not to exceed the increase in said duties or the amount of the increase in fair value, as of the effective date of the publication of such duties or establishment of increased fair value. Seller shall notify Buyer of such price increase in writing. If Buyer does not elect to pay the price increase within five (5) days of receipt of Seller’s written notice, Seller may terminate the affected purchase order as to those products affected by the price increase.
3. CREDIT; PAYMENTS. Unless stated to the contrary on the face of these Terms, subject to credit approval by Seller, payment must be made thirty (30) days from the date of invoice. Seller reserves the right to require payment for products or services in advance, cash on delivery (“C.O.D.”) and, at its sole discretion, elect to modify, limit, or cancel any payment terms extended to Buyer as to time, amount, or both. The quantity and price on Seller’s order acknowledgement form are given and accepted subject to limit of Buyer’s credit or the financial condition of Buyer, determined at any time by Seller, affecting the whole or any unfilled portion of these Terms. Buyer agrees to submit such financial information from time to time as may be reasonably requested by Seller for the establishment and/or continuation of credit terms. Failure of Buyer to make timely payment after demand by Seller may, at the option of Seller, be deemed a breach of these Terms. Each shipment will be a separate and independent transaction and will be invoiced separately. Buyer will pay for each shipment separately and as invoiced. Seller reserves the right to add a monthly interest charge equal to fifteen percent (15%) annual simple interest on all late payments. Seller may accept partial payment in an amount less than the full amount of any invoice. The acceptance does not constitute a waiver of Seller’s right to collect the balance or an accord and satisfaction of the debt or debt(s) due and owing. If, at Seller’s sole discretion, Buyer’s financial condition at any time does not justify continuance of production or shipment on the original terms of payment or upon default or breach of these Terms by Buyer, Seller may stop production or halt a shipment and charge Buyer a cancellation fee and require full or partial payment in advance. If bankruptcy, insolvency, or any proceeding is brought by or against Buyer under bankruptcy and insolvency laws, Seller may cancel any outstanding order without waiving its claim for damages or any other remedies. If shipments are delayed by Buyer without Seller’s prior express written consent, payments will be due on the date when Seller was prepared to make a shipment. Products held for Buyer will be at Buyer’s risk and expense. Seller shall not be limited to its rights and remedies against Buyer set forth in these Terms, but shall be entitled to pursue all other rights and remedies as may be available to it under law or otherwise and shall be entitled to recover reasonable attorneys’ fees in enforcing its rights hereunder and collecting past-due amounts hereunder.
4. TOOLS; PROPERTY RIGHTS; ACCEPTANCE OF SERVICES. Unless agreed in writing, Seller or Seller’s suppliers will retain title to and possession of any models, drawings, composites, patterns, dies, molds, working plates, schematics, bread boards, jigs, fixtures and tools made for or obtained for the furnishing of products or services hereunder. Tools, dies, and other equipment furnished to Seller will be at Buyer’s risk and expense and Buyer acknowledges and agrees that these tools, dies, and other equipment may be furnished by Seller to its suppliers at Seller’s sole discretion. All material developed from services provided by Seller or its suppliers, as well as the design, development or manufacture by Seller or its suppliers of a product for Buyer will not be deemed to produce a work made for hire and will not give Buyer any copyright, trademark, patent, trade secret or other intellectual property rights in the service or product. All such rights will remain the property of Seller and its licensors and no license of any type, express or implied, is granted to Buyer under the Terms with respect to such rights or with respect to any trademark of Seller, Seller’s suppliers, or its or their affiliated companies. Services performed by or on behalf of Seller will be deemed accepted by Buyer upon completion by Seller.
5. SHIPMENT, TITLE, AND DELIVERY. The terms of shipment and delivery for the products are FCA Seller’s manufacturing location for the Product, per Incoterms 2010 or, if so specified, as set forth on Seller’s quotation to Buyer. Title and liability for loss or damage to the products shall pass to Buyer upon Seller’s tender of delivery of the products to a carrier for shipment to Buyer, and any loss or damage during shipment or thereafter shall not relieve Buyer from any obligations hereunder. Seller will select the carrier unless Buyer designates a carrier in writing prior to shipment. The date of the bill of lading shall be conclusive proof of the date of shipment to Buyer. Shipment may be made in installments. Additional charges shall apply to special packaging. “Shipment date” or “delivery date” as used in these Terms and in Seller’s system mean the date Seller tenders delivery of the product to a carrier for shipment to Buyer. Shipment dates given by Seller shall be considered Seller’s best estimates only. Seller will use commercially reasonable efforts to fill all purchase orders according to the schedule and quantity set forth in Seller’s acknowledgement. BUYER SHALL HAVE NO REMEDY FOR LATE DELIVERY UNLESS BUYER AND SELLER SEPARATELY AGREE IN WRITING TO A FIRM SHIPMENT DATE OR DELIVERY DATE. Seller may not have sufficient supplies of one or more products from its then-contemplated sources of supply to meet the full requirements of its customers. Whenever that situation exists, Seller may, at its option, allocate shipments of such product(s) among Seller’s customers on any basis that in Seller’s sole opinion is equitable. Seller need not make up or compensate for any such reduction. If any such reduction occurs, Buyer shall have the option to accept such reduction or to terminate these Terms to the extent of any shortage by giving Seller written notice of termination no more than thirty (30) days after the date of Seller’s notice of reduction.
6. ACCEPTANCE. Before accepting receipt of each shipment at its own facility, Buyer shall visually inspect each shipment for correct product part number and quantity. If, on receipt, Buyer discovers any discrepancy in part number or quantity, Buyer shall refuse acceptance of the product. Payment and acceptance of products do not waive Buyer’s warranty rights set forth in Section 10 below.
7. PRODUCT RESCHEDULE AND CANCELLATION. Standard Products are products for which Seller has more than one OEM customer. Orders for Standard Products may be cancelled provided that Buyer gives notice of cancellation in writing to Seller at least ninety (90) days before the original scheduled delivery date. Orders for Standard Products may be rescheduled one time for up to thirty (30) days after the original scheduled delivery date. The cancellation and/or reschedule fee for any cancellations made ninety (90) days or less before the original scheduled delivery date and any reschedules not in compliance with the immediately preceding sentence is 100% of the purchase price for the cancelled or rescheduled Products. Once rescheduled, orders for Standard Products are noncancelable and may not be re-scheduled additional times. Except as otherwise agreed to by a duly authorized representative of Seller in advance in writing, Buyer may not reschedule or cancel the shipment of all or any portion or installment of Custom Products covered by these Terms. If a prior written agreement is not in place, the charges for cancellation shall be one-hundred percent (100%) of the total costs, charges, or other fees. Custom Products, include, but are not limited to, the following: (a) products manufactured using Buyer-specific requirements (i.e. labeling, packaging, screening, testing) such that the products are usable only by Buyer; (b) products ordered constitute eighty percent (80%) or more of Seller’s backlog for that product; (c) products manufactured specially for Buyer, making it impractical for Seller to resell the product; (d) products designated by Seller as “end-of-life;” or (e) products otherwise designated or determined by Seller to be a Custom Product. If Buyer refuses to accept delivery of all or any portion or installment of the products or if Buyer otherwise breaches these Terms, then Seller shall be entitled to recover any damages Seller has suffered on account of Buyer’s breach to the full extent permitted by law.
8. PRODUCT DISCONTINUANCE. Seller reserves the right to discontinue the production of any product (if produced by Seller) or the sale of any product (if purchased from a third party), in each case, at any time without notice. In the event that the production by Seller of any product is discontinued, Seller will not discontinue the production until Seller has produced the quantity of product for which Seller has acknowledged a purchase order from Buyer and scheduled product for shipment within six (6) months of the date of acknowledgement. In the event that the sale of any product is discontinued, Seller will not discontinue the sale until Seller has produced the quantity of product for which Seller has acknowledged a purchase order from Buyer and scheduled product for shipment within sixty (60) days of the date of acknowledgement.
9. USE RESTRICTIONS. Seller’s products may be classified according to the following quality grades: “Standard,” “Special,” and “Specific.” If such quality grade applies to one of Seller’s products, such designation will be found in the applicable data sheet for the product. The quality grade of each product is “Standard” unless otherwise expressly specified. The recommended applications for each product depend on the product’s quality grade. Buyer must check the quality grade of each product on such product’s data sheet issued by Seller before using it in a particular application. Buyer may not use any product for any application associated with the “Specific” or “Special” quality grade without the prior written consent of Seller. Further, Buyer may not use any product for any application for which it is not intended (including as set forth in Subsections (a) through (d) to this Section 9) without the prior written consent of Seller. Seller shall not be in any way liable for any damages or losses incurred by Buyer or any third party arising from the use of any product in an application associated with the “Specific” or “Special” quality grade or for which the product is not intended (including as set forth in Subsections (a) through (d) of this Section 9) where Buyer has failed to obtain the prior written consent of Seller. Buyer agrees it is solely responsible for reviewing, testing and evaluating whether Seller’s products are suitable for use in Buyer’s applications, systems, design, goods or products. Applications for each quality grade of Seller’s products include, but are not limited to, the following: “Standard”: Computers; office automation equipment; communications equipment; test and measurement equipment; audio and visual equipment; home electronic appliances; machine tools; personal electronic equipment; and industrial robots. “Special”: Control systems for transportation equipment (automobiles, trains, ships, etc.); traffic control systems; anti-disaster systems; anti-crime systems; safety equipment; and medical equipment not specifically designed for life support. “Specific”: Military systems; Aircraft control equipment; aerospace equipment; nuclear reactor control systems; medical equipment, devices or systems for life support (e.g., artificial life support devices or systems); surgical implantations, or healthcare intervention (e.g. excision, etc.); and any other applications or purposes that pose a direct threat to human life. Seller’s products are not designed, manufactured or authorized for use or sale: (a) as critical components in medical applications where such applications are used to sustain human life or where failure of the medical application could reasonably lead to a loss of life or bodily injury. The term “critical component” includes any component, subsystem or system required to carry out the primary function of the medical application; (b) in aerospace or avionics applications where the failure of the product could reasonably lead to a loss of life, bodily injury or catastrophic property damage and where there is no redundant system in the application to compensate for the failure of the product; (c) in a military or defense applications where: (i) the product has been specifically designed or modified for use in such military or defense application; (ii) the product is used as a component or subsystem of any weapon; (iii) the product is used as a component or subsystem of any equipment or system specifically designed and manufactured for design, manufacture, use or storage of “weapons of mass destruction,” such as nuclear, biological, chemical, radiological or explosive weapons; (iv) Buyer has reason to know that the product will be used as a component or subsystem of any equipment or system used for design, manufacture, use or storage of “weapons of mass destruction”; or (v) the product is covered by the “United States Munitions List” governed by the International Traffic in Arms Regulations; or (d) in a nuclear application where the failure of the product could reasonably lead to a loss of life, bodily injury or catastrophic property damage. Buyer shall not (A) make any modifications to the products or their packaging, (B) alter, remove or tamper with the trademarks, numbers, or other means of identification displayed on, or incorporated into, the products, (C) display on, or incorporate into, the products any other trademarks, numbers, or other means of identification (other than as displayed on or incorporated into the products as delivered by Seller) on or in the products without obtaining the prior written consent of Seller. Buyer shall comply with the technical instructions contained in any specifications that may be provided to Buyer by Seller from time-to-time.
10. WARRANTY. Seller warrants to Buyer that the products will be free from defects in material and workmanship under normal use and will conform to Seller’s specifications, for a period of one (1) year from the date of manufacture, provided that all of the following conditions have been satisfied: (a) Seller is promptly notified upon discovery of any defect (but in no event later than ten (10) days following the end of the warranty period) of any warranty claim; and (b) Buyer returns the products to Seller by Seller’s designated carrier, within seven (7) days after Buyer has received an RMA number from Seller. Seller will accept products for warranty claim verification only when returned by Buyer in a condition that allows for suitable testing by Seller. Products must be segregated by product type when more than one type of product is returned. If Seller determines that any returned products are not covered by Seller’s warranty, Seller will invoice Buyer, and Buyer will pay, the shipping costs for such products both to Seller and back to Buyer; and (c) Seller determines that any claimed defects in the products were not caused by misuse, static discharge, abuse, vandalism, neglect, improper handling, installation or shipment, unauthorized repair, alteration or accident or damage due to the elements or similar causes not within the control of Seller or its supplier. Any returned products electrically or mechanically destroyed by Buyer or third parties will not be covered by this warranty, and will not be returned to Buyer, but will be scrapped by Seller. Any modification of products by Buyer, unless specifically authorized in writing in advance by Seller, shall invalidate the above warranty. All Products replaced hereunder will become the property of Seller. Seller reserves the right, at its option, to inspect and/or repair Product under warranty at Buyer’s facility. THIS WARRANTY IS EXTENDED TO BUYER ONLY AND IS NOT TRANSFERABLE TO SUBSEQUENT PURCHASERS OR USERS OF THE PRODUCTS. SERVICES ARE PROVIDED “AS IS, WHERE IS.” SELLER HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY AGAINST INFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OF TRADE, OR OTHERWISE, WITH RESPECT TO PRODUCTS OR SERVICES PROVIDED UNDER THESE TERMS OR ANY USE THEREOF BY BUYER. THIS SECTION 10 STATES BUYER’S SOLE AND EXCLUSIVE REMEDY FOR A BREACH OF WARRANTY. SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES FOR ANY SERVICES PERFORMED BY OR ON BEHALF OF SELLER. NO SALESPERSON, REPRESENTATIVE OR AGENT OF SELLER IS AUTHORIZED TO GIVE ANY GUARANTY OR WARRANTY OR MAKE ANY REPRESENTATION CONTRARY TO THOSE CONTAINED IN THESE TERMS.
11. INTELLECTUAL PROPERTY INDEMNIFICATION. a. Seller agrees to defend Buyer, at its own expense, against any rightful claims made against Buyer by a third party unrelated to Buyer (“Claimant”) alleging that the products as sold by Seller to Buyer under this Agreement directly infringe a United States patent, utility model, design patent, trademark, copyright, maskwork right or trade secret (“Intellectual Property”). Seller also agrees to indemnify Buyer against actual damages for such direct infringement which are awarded against Buyer by any competent arbitration institution or court in a suit or proceeding. b. Seller’s obligations described in Subsection (a) above shall arise only with respect to claims where: (1) Buyer promptly notifies Seller, in writing, of all allegations in the claim; (2) Buyer gives Seller full control and authority for the defense and settlement of the claim; (3) Buyer provides Seller with all information and assistance necessary for the defense and settlement of the claim; and (4) Claimant agrees that it will resolve the claim directly with Seller. c. Seller shall have no obligations under Subsection (a) with respect to any claim where: (1) the claim arises from either (i) Seller’s use of any material, part or subassembly provided by or specified by Buyer, or (ii) Seller’s compliance with any designs, instructions or specifications furnished by Buyer; (2) such claim arises from any modifications or additions made to the products by Buyer or any third party; (3) such claim arises from the combination of the products with any other material, part, structure, subassembly, apparatus, external circuitry, software or other external elements; (4) such claim arises from use of the products in a manner for which they are not designed, (5) such claim arises from an implementation of industry wide standards including de facto standards whether or not such standards have been formally established or promulgated by any governmental or industrial standard setting body (“Industry Standard”) relating to the form, fit, functionality, interconnectivity or other aspects of any apparatus incorporating the products where such Intellectual Property would not have been infringed but for the implementation of such Industry Standard; or (6) such claim is otherwise attributable to any act or omission on the part of Buyer. d. If an infringement claim is asserted, or if Seller believes one likely, Seller will have the right, but not the obligation: (i) to procure for Buyer the right to use the products for the use contemplated by Seller and Buyer in making these Terms; (ii) to modify the products as appropriate to avoid such rightful claim of infringement as long as modification for this purpose does not materially impair the operation thereof; or (iii) to accept the return of the products and reimburse Buyer for the sales amount thereof less reasonable charges for wear and tear. e. THE FOREGOING STATES SELLER’S EXCLUSIVE OBLIGATION WITH RESPECT TO CLAIMS OF INFRINGEMENT OF PROPRIETARY RIGHTS OF ANY KIND, AND IS IN LIEU OF ALL WARRANTIES, EXPRESS OR IMPLIED. THE FOREGOING APPLIES TO PRODUCTS NOT SERVICES. f. Buyer shall indemnify and hold Seller and its supplier harmless against any expense or liability from claims of infringement of any Intellectual Property which are described in Subsection (c) above.
12. LIMITATIONS. SELLER SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOST REVENUES, FAILURE TO REALIZE EXPECTED SAVINGS OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS OR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY THEREOF IN ADVANCE. THESE LIMITATIONS APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE, INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, INFRINGEMENT OF A THIRD PARTY’S PROPRIETARY RIGHTS, NEGLIGENCE, STRICT LIABILITY, MISREPRESENTATIONS OR OTHER TORTS. NO ACTION MAY BE BROUGHT AT ANY TIME MORE THAN TWELVE (12)MONTHS AFTER THE CAUSE OF ACTION AROSE, EXCEPT THAT LEGAL ACTION MAY BE COMMENCED TO RECOVER PAYMENTS DUE AT ANY TIME WITHIN THE APPLICABLE STATUTE OF LIMITATIONS. BUYER AGREES THAT SELLER’S TOTAL LIABILITY TO BUYER FOR ANY DAMAGES OF BUYER FOR ANY REASON WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY BUYER TO SELLER FOR THE PRODUCTS OR SERVICES THAT CAUSED THE DAMAGE OR THAT ARE THE SUBJECT MATTER OF, OR ARE DIRECTLY RELATED TO, THE CAUSE OF ACTION.
13. COMPLIANCE WITH LAWS. Buyer agrees to comply with all applicable laws, regulations, licensing or other requirements regarding Seller’s products and services. Buyer agrees to comply with all applicable U.S. export control laws and regulations, specifically including, but not limited to, the Arms Export Control Act, 22 U.S.C. §§ 2751-2794, including the International Traffic in Arms Regulation (“ITAR”), 22 C.F.R. § 120, et seq.; the Export Administration Act, 50 U.S.C. app. 2401-2420, including the Export Administration Regulations, 15 C.F.R. §§ 730-774; the International Emergency Economic Powers Act, 50 U.S.C. §§ 1701-1706 and the Trading with the Enemy Act, 50 U.S.C. §§ 1 et. seq., including U.S. trade sanctions and economic embargo programs administered by the Treasury Department’s Office of Foreign Assets Control. Without limiting the foregoing, Buyer agrees that it will not, directly or indirectly, export, reexport, transship, transfer, transmit or release products, technology or software in violation of any applicable export control laws, rules or regulations. Buyer shall immediately notify Seller if Buyer is, or becomes, listed in any Denied Parties List or if Buyer’s export privileges are otherwise denied, suspended, or revoked in whole or in part by any U.S. Government entity or agency. If Buyer is engaged in the business of either exporting or manufacturing (whether exporting or not) defense articles or furnishing defense services, Buyer represents that it is registered with the Office of Defense Trade Controls, as required by the ITAR, and that it maintains an effective export/import compliance program in accordance with the ITAR. For any items and technologies controlled under the International Traffic in Arms Regulations (22 C.F.R. 120-130), Buyer will inform Seller of such items and technologies prior to transfer or release to Seller and obtain written permission from Seller in advance of such transfer. Where Buyer is a signatory under an export license or export agreement (e.g., TAA, MLA), Buyer shall provide prompt notification to Seller in the event of changed circumstances including, but not limited to, ineligibility, a violation or potential violation of the ITAR, and the initiation or existence of a U.S. Government investigation, that could affect Buyer’s performance. Buyer shall be responsible for all losses, costs, claims, causes of action, damages, liabilities, and expenses (including attorneys’ fees, all expense of litigation and/or settlement, and court costs), arising from any act or omission of Buyer, its officers, employees, agents, suppliers, or subcontractors at any tier, in the performance of any of its obligations under these terms and conditions.
14. COUNTRY OF ORIGIN IDENTIFICATION. All or some of the products covered by these Terms are imported. The requirements of 19 U.S.C. section 1304 and 19 C.F.R. part 134 provide that the imported products or their containers must be marked in a conspicuous place as legibly, indelibly and permanently as the nature of the product or container will permit, and in such a manner as to indicate to an ultimate purchaser in the United States, the full, unabbreviated English name of the country of origin of the product.
15. GOVERNMENT CONTRACTS. If Buyer’s original purchase order indicates by contract number that it is placed under a government contract, Buyer will notify Seller of the Federal Acquisition Regulations (FAR) requirement applicable to the purchase order. “Contracting Officer” will mean “Buyer,” “Contractor” will mean “Seller,” and the term “Contract” will mean the “Terms.”
16. MISCELLANEOUS. Seller has no obligation to hold any information received from Buyer in confidence unless the information is covered by a written, separate Non-Disclosure Agreement signed in advance by an authorized officer of Seller. Neither party will publicize or disclose the existence or substance of the Terms or any transactions without the express, prior written consent of the other party. Seller’s performance under these Terms is subject to all contingencies beyond Seller’s control or beyond the control of Seller’s suppliers, including but not limited to strikes, labor disputes, floods, the elements, civil commotion, war, riot, acts of God, rules, laws, orders, restrictions, embargoes, quotas, actions or inactions of any government, foreign or domestic, or any agency or subdivision thereof, casualties, fires, accidents, shortages of transportation facilities, detention of products by customs authorities, loss of products in public or private warehouses, or other casualty or contingency beyond Seller’s control or the control of Seller’s suppliers or otherwise unavoidable. In any such event, Seller shall have the right, at its election and without any liability to Buyer, to (a) perform these Terms as so restricted or modified to the extent determined by Seller in its sole and absolute discretion; or (b) perform these Terms within a reasonable time after the causes for nonperformance or delay have terminated. These Terms shall be governed and construed in accordance with the laws of the State of California without regard to its conflict of law rules. The exclusive forum for the resolution of any disputes hereunder shall be California state courts in the County of Los Angeles or federal district courts in the Central District of California located in Los Angeles, California. If a disagreement whether in tort, contract or otherwise arises between Buyer and Seller, the parties will meet to attempt to resolve the disagreement. If the parties cannot resolve the disagreement, they will submit the matter to mediation. The parties will mutually agree on a suitable mediator. At least ten (10) business days before the mediation, each side will provide the mediator with a statement of its position and copies of all supporting documents. Each party will send to the mediation a person who has authority to bind the party. If the disagreement cannot be resolved at mediation, a binding arbitration will be held. Prior to the arbitration the parties will agree to the rules of the arbitration. To the extent that Buyer and Seller cannot agree to the rules of the arbitration, the Rules of the California Code of Civil Procedure will apply. The arbitration will be held in Los Angeles County, California. Neither party will sue the other except for enforcement of the arbitrator’s decision. Any arbitration proceeding must be commenced within one (1) year after the accrual of the disagreement or controversy. Neither party may assign its rights or obligations hereunder to a third party without the consent of the other party; provided, however, that without the consent of Buyer, Seller may assign its rights and obligations hereunder to any affiliate of Seller or successor to Seller’s business (or the portion of Seller’s business to which these Terms relate) or to any third party authorized to enforce Seller’s rights hereunder. These Terms have been made and are made solely for the benefit of Buyer and Seller and their respective successors and permitted assigns. Nothing in these Terms is intended to confer any rights or remedies on any persons other than the parties to it and their respective successors and permitted assigns. Nothing in these Terms is intended to relieve or discharge the obligation or liability of any third persons to any party to these Terms. No waiver of any provision of these Terms or any rights or obligations of either party hereunder shall be effective, except pursuant to a written instrument signed by the party or parties making such waiver. Any such waiver shall be effective only in the specific instance and for the specific purpose stated in writing. In the event that any provisions hereof are found invalid or unenforceable pursuant to judicial decree or decision, the remainder of these Terms shall remain valid and enforceable according to its terms.
Posted: January 30, 2018