EFFECTIVE JULY 2021

GENERAL TERMS AND CONDITIONS OF SALE

Seller’s Terms: 

THESE ARE THE TERMS AND CONDITIONS OF SALE (“Terms”), WHICH INCLUDE OUR PRODUCTS (“Products”) AND SERVICES (“Services”) BY AND BETWEEN ICM CONTROLS CORP., THE ABOVE-NAMED SELLER (“Seller”), and YOU (“Buyer”). ALL TRANSACTIONS ARE GOVERNED BY SELLER’S TERMS. ANY PROPOSAL THAT INCLUDES DIFFERENT OR ADDITIONAL TERMS THAT VARY FROM THESE TERMS ARE OBJECTED TO AND DISALLOWED. NOTWITHSTANDING THE FOREGOING, ANY SUCH COUNTERPROPOSALS BY BUYER SHALL NOT OPERATE AS A REJECTION OF THE CONTRACT OF SALE, BUT AS A REJECTION OF THE ADDITIONAL OR DIFFERENT TERM(S). NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IF A WRITTEN CONTRACT OR MEMORANDUM OF UNDERSTANDING IN WRITING SIGNED BY BOTH PARTIES IS IN EXISTENCE COVERING THE SALE OF THE PRODUCTS AND/OR SERVICES COVERED HEREBY, THE TERMS AND CONDITIONS OF SUCH CONTRACT SHALL PREVAIL ONLY TO THE EXTENT AND ONLY TO SUCH TERMS THAT ARE CLEARLY AND WITHOUT A DOUBT INCONSISTENT WITH THESE TERMS, OTHERWISE, AGAIN, THESE TERMS SHALL PREVAIL. 

Formation of Contract: 

A purchase order is deemed by Seller to be an offer to purchase, which Seller may accept or reject in its sole discretion. Seller’s acceptance of an offer to purchase is binding on Seller only if made by written instrument, such as our accompanying quotation and/or confirmation of sale/invoice (the “Sales Confirmation”) or, if not by written instrument, by delivery to the designated delivery point of the Products ordered (and acceptance of delivery shall only be binding as to the portion of the order actually delivered by Seller), and for Services when the same are rendered pursuant to these Terms. Any automatic or computer generated response to an order by Seller’s internal electronic data exchange system or otherwise shall not be deemed acceptance of an order. Seller’s acceptance is subject to, and on the Terms stated herein. The accompanying Sales Confirmation and these Terms comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general and/or other terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. The International Chamber of Commerce Incoterms® 2020 shall apply to the deliveries of Products under these Terms, except to the extent the Incoterms are modified in and/or inconsistent with these Terms. 

Delivery; Shipment: 

Buyer shall state the expected delivery date of the Products requested in the purchase order, which shall be non-binding on the Seller. Seller shall deliver the Products to Buyer within a reasonable time, subject to availability of finished Products, after the effective date of Seller’s acceptance of Buyer’s purchase order. Seller may deliver the Products before the designated delivery date. Delivery and shipment of the Products shall be made EXW (Ex-Works), unless otherwise expressly stated by the Seller, in its sole discretion, in the Sales Confirmation and/or otherwise with express written consent, at 7313 William Barry Blvd, North Syracuse, NY, 13212, Incoterms® 2020 (with modifications to Ex-Works as stated herein in these Terms), or an otherwise designated facility at Seller’s sole discretion. Seller shall not be held liable to Buyer or any other party for any failure or delay in the delivery of any Products, nor any delays, loss, or damage in transit. Unless otherwise agreed upon in a signed writing by both parties, the Products are to be delivered using Seller’s standard methods for packaging and shipping such Products. Seller may, in its sole discretion, without liability or penalty, make partial delivery of Products to Buyer. Each delivery will constitute a separate sale, and Buyer shall pay for the units delivered whether such delivery is in whole or partial fulfillment of Buyer’s purchase order. Partial delivery will be billed as made. Delivery of any part of an order does not constitute obligation to make future deliveries. If for any reason, including for business reasons of the Buyer, the Buyer fails to accept delivery of any of the Products on the date fixed pursuant to Seller’s notice that the Products have been delivered at the delivery point, or if Seller is unable to deliver the Products at the delivery point on such date because Buyer has not provided appropriate instructions, documents, licenses, export/import documents, and/or authorizations: (i) risk of loss will pass to Buyer; (ii) the Products shall be deemed to have been delivered; and (iii) Seller, at its option and for convenience for the Buyer, may store the Products until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance), and the cost of the same shall be additional and separate from the purchase price of the Products. 

Transportation: 

Shipments will be made by the transportation method selected by the Buyer whenever practicable, at Buyer’s sole cost and expense. If no instructions are provided, the Seller will use its discretion in selecting the appropriate transportation method. 

Non-Delivery: 

The quantity of any installment of Products as recorded by Seller on its documentation segregated at Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. Seller shall not be liable for any non-delivery of Products (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within five (5) business days of the date when the Products would in the ordinary course of events have been received. Any liability of Seller for non-delivery of the Products shall be limited to only delivering the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered. 

Quantity: 

If Seller delivers to Buyer any quantity of Products more or less than the quantity set forth in the purchase order, Buyer shall not be entitled to object to or reject the Products or any portion of them by reason of the surplus or shortfall and shall pay for such Products at the price set forth in in the Sales Confirmation and these Terms with the purchase price adjusted pro rata. 

Prices, Payment, Cost of Delivery, Taxes and Other Charges: 

All prices are EXW (Ex-Works) at 7313 William Barry Blvd, North Syracuse, NY, 13212, Incoterms® 2020, or an otherwise designated facility at Seller’s sole discretion. All prices are subject to change or withdrawal with or without notice. If Seller should increase the price before delivery of the Products to the delivery point, then the accepted purchase order shall be construed as if the increased price was originally inserted therein, and Seller shall bill Buyer on the basis of such increased price. All billing for standard Products will be at Seller’s established prices for the quantities ordered which are in effect at time of delivery. Unless specified otherwise by Seller, the price for the Products covered by these Terms, excludes all transportation costs, freight, insurance and special handling and packaging, or any required federal, state or local sales or other taxes (except for taxes based on Seller’s net income), duties, export or custom charges, VAT charges, brokerage or other fees, for which Buyer shall be fully responsible. Buyer shall pay the costs of delivery of the Products. Buyer shall also pay all sales, use, excise or similar taxes, or other charges, which Seller is required to pay, or to collect and remit, to any government (national, state or local) and which are imposed on or measured by the sale. 

Title; Risk of Loss: 

Buyer shall obtain the right and title to the Products upon Seller’s delivery to the delivery point EXW (Ex-Works) at 7313 William Barry Blvd, North Syracuse, NY, 13212, Incoterms® 2020, or an otherwise designated facility at Seller’s sole discretion; however, Buyer will remain responsible to promptly pay the purchase price and any taxes, excise, charges, and/or other amounts due from Buyer in accordance with the Sales Confirmation and these Terms. Seller assumes no liability for any loss, destruction, and/or damage to Products after delivery is made to the delivery point. Deliveries /shipments will only be insured at the request and sole expense of the Buyer. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Products, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the New York Uniform Commercial Code. The risk of loss of all Products ordered under any purchase order and/or sold hereunder under these Terms passes to Buyer EXW (Ex-Works) at 7313 William Barry Blvd, North Syracuse, NY, 13212, Incoterms® 2020, or an otherwise designated facility at Seller’s sole discretion. 

Inspection: 

Buyer shall inspect the Products promptly upon receipt (“Inspection Period”) (including but not limited to non-conformity for quantity, quality, and/or defects for non-conformity). Buyer will be deemed to have accepted the Products unless it notifies Seller in writing with two (2) business days of any Nonconforming Products during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Products” means only the following: (i) products delivered / shipped is different than identified in these Terms; or (ii) the products’ label or packaging incorrectly identifies its contents. If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the price for such Nonconforming Products at the pro rata contract rate. Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to Seller’s facility located at 7313 William Barry Blvd, North Syracuse, NY, 13212, or as designated by Seller in its sole discretion. If Seller exercises its option to replace Nonconforming Products, Seller shall, after receiving Buyer’s shipment of Nonconforming Products, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Products to the delivery point. Buyer acknowledges and agrees that the remedies set forth in this section are Buyer’s exclusive remedies for the delivery of Nonconforming Products. 

Cancellation 

Buyer must have Seller’s express written consent to cancel an order. If such written consent is granted by Seller, Buyer may cancel order upon written notice to Seller and upon payment of cancellation charges, which shall include all costs, both direct and indirect, incurred and committed for, with a reasonable allowance for prorating the expense over the entire order. No termination by Buyer for default shall be effective unless and until Seller shall have failed to correct such alleged default within sixty (60) business days after receipt by Seller of the written notice specifying such default, including extensions of this time period if the alleged default cannot be cured in such time period. 

Blanket Orders 

Blanket orders will be accepted subject to these Terms for four-hundred (400) pieces and above, for maximum period for eighteen (18) months. Minimum release is fifty (50) pieces or ten (10%) percent of total order quantity, whichever is greater. There is a minimum billing of one thousand ($1,000) dollars per release. Blanket orders will not be accepted unless full release schedule for total quantity is defined within thirty (30) days of order date. In the event that these orders are cancelled before the total shipments are made, the Seller reserves the right, in addition to cancellation charges, to bill the Buyer the difference between the quantity discount quoted on the blanket order and the selling price for the totals actually delivered to the delivery point. Sixty (60) days’ written notice must be given by Buyer to Seller prior to any change in the release schedule, confirmed in writing 

Returns 

Except as provided herein, all sales of Products to Buyer are made on a one-way basis and Buyer has no right to return Products purchased under these Terms to Seller. Any returns must be authorized by the Seller’s Sales Department in writing and given a Return Authorization Number (RMA). Issuance of RMA number does not acknowledge Products as defective by the Seller. Unauthorized returns will be refused. Authorized returns must be shipped freight prepaid and are subject to inspection prior to disposition. Products built to Buyer’s specifications cannot be returned under any circumstances. Material accepted for return is subject to a minimum service charge of one -hundred and fifty ($150.00) or ten percent (10%) of the billing invoice, whichever is greater, plus all transportation and other charges incurred by the Seller. 

Payment Terms: 

Buyer shall pay all invoiced amounts due to Seller within net thirty (30) calendar days from the date of Seller’s invoice. Buyer shall make all payments hereunder by immediately available funds and in U.S. dollars, without abatement, reduction or setoff. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse and be liable to Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees in collecting any amount(s) to Seller under these Terms. Terms to customers of satisfactory credit (after credit approval) are Net 30 calendar days 

from the date of shipment; however, Seller shall not be obligated to provide any credit terms. To avoid delay on filling orders, Buyer should include credit references with their order or Buyer should send cash or certified check. Seller reserves the right to accept orders on Cash-On-Delivery or Cash-In-Advance basis when credit terms are not deemed warranted by the Seller, in Seller’s sole discretion. Buyer will execute a financing statement, security agreement, lease, letter of credit, or personal guarantee and any other documents as requested by the Seller. Seller may, but shall not be obligated to, grant credit terms to Buyer. Acceptance of any order is subject to final credit approval by Seller. Seller reserves the right to cancel any sale if Seller deems Buyer unable to pay for any Products. Seller reserves the right, in its sole discretion and without prior notice, to deny, change or limit the amount or duration of credit to be allowed Buyer, either generally or with respect to a particular purchase order, and may require cash payments in advance or security satisfactory to Seller. As a modification of the Ex-Works, especially if Letters of Credit is utilized, Buyer shall disclose any export information and/or details regarding the export of the products, including to promptly (before shipping the Products from the delivery point) provide Seller an Air Waybill (AWB), Original Bill of Landing (OBL), and/or other shipping document to Seller, if applicable. 

Minimum Billing Charge: 

Orders amounting to two hundred and fifty ($250.00) net or less will be billed at ($250.00) plus transportation charges, and/or at Seller’s minimum billing charge in effect at the time of delivery. 

No Set-Off: 

Buyer shall not, and acknowledges that it will have no right, under these Terms, any accepted purchase order, and/or other agreement, document, or law, to withhold, offset, recoup, or debit any amounts owed (or to become due and owing) to Seller or any of its affiliates, whether under these Terms or otherwise, against any other amount owed (or to become due and owing) to it by Seller or its affiliates, whether relating to Seller’s or its affiliates’ breach or non-performance of these Terms or any other agreement between Buyer or any of its affiliates, and Seller or any of its affiliates, or otherwise. 

Patents; Trademarks: 

Sellers reserves the right to discontinue deliveries of any Products, the manufacture, sale or use of which would, in Seller’s opinion, infringe upon any U.S. patent, trademark or design now or hereinafter issued, registered, or existing and under which Seller is not licensed. These Terms do not authorize the use of Seller’s trademarks, licensing, software, patents, and/or other intellectual property, and/or of any third party, and Buyer has the obligation to obtain authorization of the same should it intend to use the same. Notwithstanding anything in these Terms to the contrary, Seller shall retain the exclusive ownership and all rights, title and interest, including but not limited to copyright, patent, trademarks, trade secrets, and all other intellectual property rights, in any and all the of the know-how, ideas, technology, procedures, solutions, software, general utility programs, codes, libraries, software tools, techniques, algorithms, and concepts used by it in connection with the Products, whether or not they existed, were developed, or were known to Seller prior to the performance of these Terms or are developed, alone or with Seller’s assistance, by either party during the performance of these Terms. 

Warranties: 

The Seller warrants its Products against defects in material or workmanship for a period of one (1) year from the date of manufacture in accordance with these Terms. The liability of the Seller is limited, at its option, to repair, replace or issue a non-case credit for the purchase price of the Products, which are proved to be defective. The warranty and remedies set forth herein do not apply to any goods or parts thereof which have been subjected to misuse including any use or application in violation of the Seller’s instructions, neglect, tampering, improper storage, incorrect installation or servicing not performed by the Seller. In order to permit the Seller to properly administer this warranty, the Buyer shall: (1) notify the Seller promptly in writing if any claim, submitting date code information or any other pertinent data as requested by the Seller; and (2) permit the Seller to inspect and test the product claimed to be defective. Items claimed to be defective and are determined by the Seller to be non-defective are subject to Seller’s current rate at the time, which is subject to change, but currently a minimum of a $30.00 per hour, inspection fee. This warranty constitutes the Seller’s sole liability hereunder and is in lieu or any other warranty expressed, implied, in equity and/or statutory. Unless otherwise stated in writing, Seller makes no warranty that the Products and/or Services depicted or described herein and/or otherwise are fit for any particular purpose. Products manufactured by a third party (“Third-Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Products. Third-Party Products are not covered by the warranty stated above. THE WARRANTIES SET FORTH HEREIN WITH RESPECT TO THE PRRODUCTS AND ANY SERVICES ARE THE ONLY WARRANTIES MADE BY SELLER IN CONNECTION WITH THE PRODUCTS AND SERVICES AND THE TRANSACTIONS CONTEMPLATED AS A RESULT OF THIS SALE. SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS TO BUYER OR ANY OTHER PERSON WHATSOVER OF ANY KIND, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO THE PRODUCTS, SERVICES, AND/OR THIRD-PARTY PRODUCT AND SELLER SPECIFICALLY DISCLAIMS ALL WARRANTIES INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WARRANTY OF TITLE; AND NON-INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE, AND PRODUCTS AND/OR SERVICES SOLD HEREUNDER ARE SOLD ONLY TO THE SPECIFICATIONS SPECIFICALLY SET FORTH BY THE SELLER IN WRITING. SELLER’S SOLE OBLIGATION FOR A REMEDY TO BUYER SHALL BE REPAIR OR REPLACEMENT OF NON-CONFORMING PRODUCTS (AS PROVIDED HEREIN ABOVE). BUYER ASSUMES ALL RISK WHATSOEVER AS TO THE RESULT OF THE USE OF PRODUCTS PURCHASED, WHETHER USED ALONE OR IN COMBINATION WITH OTHER GOODS OR SUBSTANCES. 

Limitation of Liability: 

IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INCLUDING, BUT NOT LIMITED TO, CLAIMS FOR INDEMNIFICATION, WHETHER AS TO QUALITY OR AMOUNT OF PRODUCTS DELIVERED OR NON-DELIVERY OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNT PAID TO SELLER FOR THE PRODUCTS SUBJECT TO THE CLAIM OF DAMAGES SOLD HEREUNDER. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER FOR PENALTIES OR PENALTY CAUSES OF ANY DESCRIPTION, FOR CERTIFICATION NOT OTHERWISE SPECIFICALLY PROVIDED HEREIN, FOR INDEMNIFICATION OF BUYER TO OTHERS FOR COSTS, DAMAGES OR EXPENSES, EACH ARISING OUT OF OR RELATED TO THE PRODUCTS AND/OR SERVICES OF ANY ORDER, AND/OR FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, STATUTORY, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF USE, LOSS OF TIME, INCONVENIENCE, LOSS BUSINESS OPPORTUNITIES, DAMAGE TO GOOD WILL OR REPUTATION, OR LOSS OF DATA, ARISING OUT OF, OR AS A RESULT OF, THE SALE, DELIVERY, SERVICING, USE OR LOSS OF THE GOODS SOLD HEREUNDER, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, AND EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. THIS LIMITATION OF SELLER’S LIABILITY WILL APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT OR TORT, INCLUDING NEGLIGENCE. ANY ACTION AGAINST SELLER MUST BE BROUGHT WITHIN TWELVE (12) MONTHS AFTER THE CAUSE OF ACTION ACCRUES. 

Indemnification: 

Buyer shall indemnify, defend, and hold harmless Seller and its officers, directors, managers, shareholders, members, partners, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under these Terms (including attorneys’ fees), and the cost of pursuing any insurance providers, incurred by Indemnified Party relating to and/or arising out of or resulting from any claim of a third party or Seller arising out of or occurring in connection with the Products purchased from Seller or Buyer’s negligence, willful misconduct, or breach of these Terms. Buyer shall not enter into any settlement without Seller’s or Indemnified Party’s prior written consent. 

Compliance with Law; Export Laws: 

As a modification of the Ex-Works, Buyer shall be responsible for all export and import obligations, and provide Seller promptly with documentation of compliance with the same before shipment from the delivery point. Buyer represents and warrants that it is in compliance with and shall continue to comply with all applicable laws, regulations, and ordinances. Buyer has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under these Terms. Without limiting the foregoing, Buyer shall comply with all applicable international, national, state, regional and local laws and regulations with respect to their performance of these Terms. Buyer agrees to adhere to all applicable US Export laws and regulations with respect to the Products. Export. The Products, including any software, documentation, and any related technical data included with, or contained in, such Products, and any products utilizing any such Products software, documentation, or technical data (collectively, “Regulated Products”) may be subject to US export control laws and regulations, including the Export Administration Regulations and the International Traffic in Arms Regulations. The Buyer shall not, and shall not permit any third parties to, directly or indirectly, export, reexport, or release any Regulated Products to any jurisdiction or country to which, or any party to whom, the export, reexport, or release of any Regulated Products is prohibited by applicable federal and/or foreign law, regulation, or rule. Buyer shall be responsible for any breach of this Section by its, and its successors’ and permitted assigns’, parent, affiliates, employees, officers, directors, partners/members/shareholders, customers, agents, distributors, resellers, or vendors. Buyer shall comply with all applicable laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, reexporting, or releasing any Regulated Products. Buyer shall provide prior written notice of the need to comply with such laws and regulations to any person, firm, or entity which it has reason to believe is obtaining any such Regulated Products from the Buyer with the intent to export or reexport. 

Confidential Information: 

All non-public, confidential, or proprietary information of Seller, including, but not limited to, trade secrets, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with these Terms is confidential, solely for the use of performing these Terms and may not be disclosed or copied unless authorized by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. 

Excuses for Non-Performance: 

Any delay or failure of Seller to perform its obligations under these Terms will be excused to the extent that the delay or failure was caused directly by an event beyond Seller’s control, (which events may include, but are not limited to, acts of God, natural disasters, COVID-19, pandemics, epidemics, embargoes, explosions, riots, wars, acts of terrorism, strikes, labor stoppages or slowdowns or other industrial disturbances, and shortage of adequate power or transportation facilities). Seller accepts no liability for partly filled or unfilled orders. All orders accepted are subject to the following contingencies, including without limitation: labor shortage, material shortage, energy loss, transportation embargos, war, fire strikes, or for any other causes beyond the Seller’s reasonable control. No exception is made for Buyer’s obligation for payment of any amounts to Seller under these Terms. 

Seller’s Rights: 

If Buyer should fail in any manner to fulfill the Terms hereof, Seller may defer further deliveries until such default is cured. If for any reason, the quantities of the Products covered hereby or of any materials used in the production of the Products reasonably available to Seller shall be less than Seller total needs for its own use and for sale, Seller may, but is not required, to allocate its available supply of Products among its existing or prospective purchasers and/or its own departments, divisions and affiliates in such manner Seller deems proper in Seller’s sole discretion, without thereby incurring liability on account of the method of allocation determined or its implementation or for failure to perform these Terms. In addition to any remedies that may be provided in these Terms and in equity (which remedies shall be cumulative), Seller may terminate any accepted purchase order with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due to Seller; (b) has not otherwise performed or complied with any of the terms of these Terms, and/or any other agreement with Seller, in whole or in part; and/or (c) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. 

Assignment 

Buyer shall not assign, transfer, delegate, or subcontract any of its rights or obligations under these Terms without the prior written consent of Seller. Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation, or subcontract shall relieve Buyer of any of its obligations hereunder. Seller may at any time assign, transfer, delegate, or subcontract any or all of its rights or obligations under these Terms without Buyer’s prior written consent., including without limitation that Seller may assign anything subject to these Terms without Buyer’s consent if the assignment is to an affiliate or if the assignment is carried out as part of a merger, restructuring, or reorganization, and/or sale or transfer of all or substantially all of Seller’s assets. 

Errors; Interpretation; Severability 

Stenographic and clerical errors by Seller are subject to correction by Seller, without liability or penalty, with or without notice at any time. These Terms are not to be construed against the drafter thereof. If any clause or portion hereof shall be held by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the remaining clauses or portions shall remain in full force and effect. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties shall negotiate in good faith to and the court may modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible. The paragraph headings are for convenience only and shall not be used in interpreting or construing these Terms. 

Choice of Law 

These Terms shall be construed, and the respective rights and duties of Buyer and Seller shall be determined, according to the laws of the State of New York and its Uniform Commercial Code without giving effect to its principles of conflicts of laws. The UN Convention on Contracts for the International Sale of Products shall not apply to these Terms. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the City of Syracuse and County of Onondaga County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. 

Cumulative Remedies: 

All rights and remedies of Seller provided in these Terms are cumulative and not exclusive, and the exercise by Seller of any right or remedy does not preclude the exercise of any other rights or remedies that Seller may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties, or otherwise. Notwithstanding the previous sentence, the Parties intend that Buyer’s rights where mentioned in these Terms are Buyer’s exclusive remedies for the events specified therein. 

Notices: 

All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Sales Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section. 

Further Assurances: 

Buyer shall execute and deliver such additional documents, instruments, conveyances, and assurances and take such further actions as may be required by Seller to carry out the provisions hereof these Terms and give effect to the transactions contemplated hereby and thereby. 

Miscellaneous: 

The accompanying Sales Confirmation, Terms, any executed MOU or Contract in existence between the parties subject to these Terms, comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, notwithstanding any other terms that might be contained in any purchase order or other document received from Buyer or submitted to Seller, between the parties regarding the subject matter hereof and can only be modified or changed in writing and signed by authorized representative of Seller; provided that, notwithstanding the foregoing, these Terms may be modified, amended, and/or changed at any time, without notice or consent (written and/or otherwise) by only the Seller in its sole discretion, and such Terms shall remain binding on Buyer. No waiver by Seller of any of Seller’s Terms or any breach hereof shall constitute or be deemed to be a waiver of any such term or any such breach in any other case. No waiver shall be deemed to occur as a result of the failure to enforce any term or condition of these Terms. Subject to the limitations and other provisions of these Terms: any provision that, in order to give proper effect to its intent, should survive such expiration or termination, such as without limitation representations and warranties, obligation for payment by Buyer, indemnification, confidentiality and other provisions regarding obligations of Buyer shall survive the expiration or earlier termination of these Terms. With respect to confidential information that constitutes a trade secret under applicable law, the rights and obligations set forth therein shall survive the expiration or earlier termination of these Terms until, if ever, such confidential information loses its trade secret protection other than due to an act or omission of Buyer. These Terms are binding on and inures to the benefit of the parties to these Terms and their respective permitted successors and permitted assigns. These Terms benefit solely the parties to the same and their respective permitted successors and assigns and nothing in the same, express or implied, confers on any other person and/or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms. The relationship between the parties is that of independent contractors. 

*Incoterms® and the Incoterms® 2020 logo are trademarks of ICC. Use of these trademarks does not imply association with, approval of or sponsorship by ICC unless specifically stated above. The Incoterms® Rules are protected by copyright owned by ICC.