Mensch Manufacturing, L.L.C.: Standard Terms of Sale
1. Agreement. These terms and conditions of sale (“Terms”) are the only terms that govern the sale of the goods (“Goods”) and services (“Services”) by Mensch Manufacturing, L.L.C. (“Seller”), to the buyer named in Seller’s proposal, quote, or other form of offer, sales order, order acknowledgement, or confirmation that incorporates these Terms by reference (each a “Sales Confirmation”) as part of inducing or in response to a purchase order, whether in writing or given orally or electronically (“Purchase Order”), received by Seller from the buyer (“Buyer”). Regardless of anything to the contrary in these Terms, if a written contract signed by Buyer and Seller is in existence covering the sale of the Goods and Services covered by these Terms, then the terms and conditions of that written contract shall prevail to the extent those terms and conditions are inconsistent with these Terms. Seller’s Sales Confirmation and these Terms (collectively, the “Agreement”) comprise the entire agreement between Buyer and Seller, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both oral and written. If these Terms constitute an acceptance of an offer to purchase from Buyer, then the acceptance is expressly conditioned on Buyer’s assent to any additional or different terms contained in this Agreement. SELLER OBJECTS TO THE INCLUSION OF ANY DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS. If Buyer has not otherwise agreed to these Terms, then Buyer’s acceptance of delivery of all or part of the Goods or Services ordered, or Buyer’s payment therefore, shall constitute acceptance by Buyer of these Terms. These Terms prevail over any of Buyer’s standard terms and conditions of purchase regardless whether or when Buyer has submitted Buyer’s Purchase Order or those terms of purchase to Seller. If Buyer’s Purchase Order is made in response to a written proposal, quote, or other form of offer from Seller, and if Seller’s proposal, quote, or other form of offer contains terms and conditions additional to or different from those contained in Buyer’s Purchase Order or standard terms and conditions of purchase, BUYER’S ACCEPTANCE OF SELLER’S PROPOSAL, QUOTE, OR OFFER IS EXPRESSLY CONDITIONED UPON BUYER’S AGREEMENT TO THESE TERMS AND NO OTHER TERMS. This Agreement expressly limits Buyer’s acceptance to the terms of this Agreement. Seller’s signing of Buyer’s Purchase Order and returning the Purchase Order to Buyer, Seller’s other written indication of acceptance, commencement by Seller of any work, performance by Seller of any Services purchased under this Agreement, or the shipment of the Goods shall NOT constitute acceptance by Seller of Buyer’s standard terms and conditions of purchase. Purchase Orders, including electronic and online orders, may not be changed or canceled without Seller’s prior written approval. Buyer shall be responsible for all expenses and losses (including lost profits) incurred by Seller as a result of any change or cancellation of a Purchase Order.
2. Blanket Order. If Buyer’s Purchase Order states that the Purchase Order is a blanket purchase order or blanket purchasing agreement under which Buyer will from time to time issue to Seller “releases” with respect to portions of the Goods, then, except to the extent Seller otherwise expressly agrees in writing, (a) when Buyer issues a release for any of the Goods, Seller may ship all of the quantity of Goods specified in the release within ten (10) days after Seller receives the release regardless of any contrary provision in the release, (b) any delivery dates specified in any release shall be extended automatically to the extent that Seller is not reasonably able to meet the specified delivery dates, and (c) Buyer shall be obligated to release the entire quantity of Goods provided for in the blanket order or purchasing agreement within 180 days after the date on which this Agreement is formed.
3. Delivery of Goods. Seller shall deliver the Goods within a reasonable time after the receipt of Buyer’s Purchase Order. Seller shall not be liable for any delays, loss, or damage in transit.
4. Delivery Point for Goods. Except to the extent Seller otherwise expressly agrees in writing, Seller shall deliver all Goods to Buyer at Seller’s facility at 2333 South M-37 Highway, Hastings, Michigan 49058, United States of America (“Delivery Point”), using Seller’s standard methods for packaging and shipping Goods. Buyer shall take delivery of the Goods within five (5) days of Seller’s written notice that the Goods have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point, and will unload and release all transportation equipment promptly so Seller incurs no demurrage or other expense. If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on that date because Buyer has not provided appropriate instructions, documents, licenses or authorizations, then (a) risk of loss to the Goods shall pass to Buyer, (b) the Goods shall be deemed to have been delivered, and (c) Seller, at Seller’s option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
5. Partial Deliveries. Seller may, in Seller’s sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether the shipment is in whole or partial fulfillment of Buyer’s Purchase Order.
6. Schedule for Services. Seller shall use reasonable efforts to meet any performance dates to render the Services specified in the Sales Confirmation, and any of those dates shall be estimates only. With respect to the Services, Buyer shall (a) cooperate with Seller in all matters relating to the Services and provide access to Buyer’s premises, and any office accommodation and other facilities as may reasonably be requested by Seller, for the purposes of performing the Services, (b) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of this Agreement, (c) provide any customer materials or information as Seller may reasonably request to carry out the Services in a timely manner and ensure that the customer materials or information are complete and accurate in all material respects, and (d) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
7. Non-Delivery. The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within five (5) days of the date when the Goods would in the ordinary course of events have been received. Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting the Goods to reflect the actual quantity delivered. The remedies set forth in this Section are Buyer’s exclusive remedies for any non-delivery of Goods.
8. Quantity. If Seller delivers to Buyer a quantity of Goods of up to 5% more or less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for the delivered Goods at the price set forth in the Sales Confirmation adjusted pro rata.
9. Shipping Terms. Delivery shall be made FCA Delivery Point (Incoterms® 2020) except to the extent Seller otherwise expressly agrees in writing. Shipping dates are estimates only.
10. Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or later arising or acquired from time to time, and in all accessions to and replacements or modifications of the Goods, 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 Michigan Uniform Commercial Code.
11. Buyer's Acts of Omissions. If Seller’s performance of Seller’s obligations under this Agreement is prevented or delayed by any act or omission of Buyer or Buyer’s agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of Seller’s obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from the prevention or delay.
12. Inspection and Rejection of Nonconforming Goods. Buyer shall inspect the Goods within five (5) business days (i.e. excluding Saturdays, Sundays, and national holidays) of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless Buyer notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes any written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (a) product shipped is different than identified in Buyer’s Purchase Order; or (b) product’s label or packaging incorrectly identifies the product’s contents. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in Seller’s discretion, (i) replace the Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for the Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection with the Nonconforming Goods. Buyer shall ship, at Buyer’s expense and risk of loss, the Nonconforming Goods to Seller’s facility in 2333 South M-37 Highway, Hastings, Michigan 49058, United States of America. If Seller exercises Seller’s option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship the replaced Goods to Buyer at the Delivery Point, at Seller’s expense and risk of loss. The remedies set forth in this Section are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided in this Section, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller. If Seller decides to accept returned Goods, Seller may impose conditions and fees for those returns, including without limitation restocking fees, and Buyer will be responsible for all shipping charges. Goods received by Seller but not approved for returns will be shipped freight collect to Buyer or disposed of at Buyer’s expense.
13. Price. With respect to Goods, Buyer shall purchase the Goods from Seller at the price(s) (“Price(s)”) set forth in Seller’s applicable Sales Confirmation and, with respect to Services, Buyer shall purchase the Services at the Price(s) quoted by Seller. If the Price(s) of the Goods or Services should be increased by Seller before delivery of the Goods to Buyer or before performance of the Services, then these Terms shall be construed as if the increased Price(s) were originally inserted in this Agreement, and Buyer shall be billed by Seller on the basis of the increased Price(s). Buyer shall reimburse Seller for all reasonable travel and out-of-pocket expenses incurred by Seller in connection with the performance of the Services. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all of those charges, costs, and taxes, except that Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personal or real property, or other assets.
14. Payment Terms. Buyer shall pay all invoiced amounts due to Seller within thirty (30) days from the date of Seller’s invoice, without discount. Buyer shall make all payments under this Agreement by wire transfer or check and in U.S. dollars. Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights under this Agreement), Seller shall be entitled to suspend the delivery of any Goods or performance of any Services and stop Goods in transit if Buyer fails to pay any amounts when due under this Agreement. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise. If at any time Seller determines that Buyer’s financial condition or credit rating does not merit a sale on credit, Seller may require advance payment.
15. Buyer's Obligations. Before using the Goods, Buyer shall determine the suitability of the Goods for Buyer’s intended use and shall assume all risk and liability whatsoever in connection with that determination. Buyer shall use the Goods in accordance with any instructions included with the Goods or otherwise communicated to Buyer. Buyer shall also use the Goods in accordance with the requirements of all applicable federal, state, provincial, local, and other laws, rules, and regulations. Buyer will not remove or change any safety devices, warnings, or operating instructions placed on the Goods by Seller.
16. Government Contracts. Seller shall not be liable for making Seller’s Goods conform to any regulations applicable to use of the Goods by the United States government unless specifically agreed to in writing between Seller and Buyer.
17. Limited Warranty. Seller warrants to Buyer that (a) for a period of twelve (12) months from the date of delivery of the Goods to Buyer at the Delivery Point (“Warranty Period”), the Goods will materially conform to Seller’s published specifications in effect as of the date of manufacture and will be free from material defects in material and workmanship during normal use, and (b) Seller shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet Seller’s obligations under this Agreement. Buyer must complete and return to Seller the warranty registration card for the Goods. Warranty coverage for the Goods becomes effective upon proper registration of the Goods by Buyer returning the completed warranty registration card to Seller. EXCEPT FOR THE WARRANTIES SET FORTH IN (a) AND (b) OF THIS SECTION, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. Products manufactured by a third party (“Third-Party Product”) may constitute, contain, be contained in, be incorporated into, be attached to, or be packaged together with, the Goods. Third-Party Products are not covered by the warranty in this Section. Third-Party Products are warranted, if at all, only by and to the extent of the original manufacturer’s warranty. For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (A) WARRANTY OF MERCHANTABILITY, (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, (C) WARRANTY OF TITLE, (D) WARRANTY OF TITLE; OR (E) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. Seller shall not be liable for a breach of the warranties set forth in (a) and (b) of this Section unless: (I) Buyer gives written notice of the defective Goods or Services, as the case may be, reasonably described, to Seller within ten (10) days of the time when Buyer discovers or ought to have discovered the defect; (II) Buyer provides pictures of the allegedly defective Goods or parts to Seller; (III) if applicable, Seller is given a reasonable opportunity after receiving the notice of breach of the warranty set forth in (a) of this Section to examine the Goods and Buyer (if requested to do so by Seller) returns the allegedly defective Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (IV) Seller reasonably verifies Buyer’s claim that the Goods or Services are defective. Seller shall not be liable for a breach of the warranty set forth in (a) of this Section if: (AA) Buyer makes any further use of the allegedly defective Goods after giving notice to Seller of the alleged breach of warranty; (BB) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use, or maintenance of the Goods; or (CC) Buyer alters or repairs the allegedly defective Goods without the prior written consent of Seller. The Limited Warranty in this Section does not cover and expressly excludes damage caused to vehicles, structures, or any objects or items other than the Goods themselves. Further, the Limited Warranty in this Section does not cover and expressly excludes damage or defects caused by: normal wear and tear, rust, corrosion, scratches; cosmetic damage; accidents, fire, earthquake, tornado or other external causes outside the control of Seller; misuse; damage caused by fuel, chemical, or other liquid contact or spills; vandalism; or inadequate care or maintenance. Seller reserves the right to make warranty coverage contingent upon proof of proper maintenance. Subject to (I) through (IV) and (AA) through (CC) of this Section, with respect to any defective Goods during the Warranty Period, Seller shall, in Seller’s sole discretion, either: (X) repair or replace the defective Goods (or the defective part) with new or re-manufactured Goods or parts free of charge excluding transportation costs and all other costs such as removal and installation expense or (Y) credit or refund the Price of the Goods at the pro rata Price; provided, however, that, if Seller so requests, Buyer shall, at Seller’s expense, return the defective Goods to Seller. Subject to (I) through (IV) of this Section, with respect to any Services subject to a claim under the warranty set forth in (b) of this Section, Seller shall, in Seller’s sole discretion, (XX) repair or re-perform the applicable Services or (YY) credit or refund the Price of the Services at the pro rata Price. THE REMEDIES SET FORTH IN THIS SECTION SHALL BE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN (a) AND (b) OF THIS SECTION. No reseller, agent, or employee is authorized to make any modification, extension, or addition to the Limited Warranty in this Section and this Limited Warranty shall not be modified, expanded, or waived in whole or in part. Any statements to the contrary are null and void unless made in writing and signed by the Seller’s President. The Limited Warranty in this Section is valid only to the original purchaser and is not transferrable.
18. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE, OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER THOSE DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF THE REMEDY’S ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED TWO (2) TIMES THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS AND SERVICES SOLD UNDER THIS AGREEMENT OR $100,000, WHICHEVER IS LESS. The limitation of aggregate liability set forth in the immediately preceding sentence shall not apply to (a) liability resulting from Seller’s gross negligence or willful misconduct and (b) death or bodily injury resulting from Seller’s willful or negligent acts or omissions.
19. Insurance. During the term of this Agreement and for a period of 36 months thereafter, Buyer shall, at Buyer’s own expense, maintain and carry, with financially sound and reputable insurers, insurance in full force and effect that includes, but is not limited to, (a) commercial general liability (including products liability) with the following minimum limits of coverage in U.S. Dollars (i) $2,000,000 annual general aggregate limit, (ii) $2,000,000 annual products/completed operations aggregate limit, (iii) $1,000,000 each occurrence limit, and (iv) $1,000,000 personal and advertising injury limit, and (b) umbrella liability with the following minimum limits of coverage in U.S. Dollars (i) $5,000,000 annual general aggregate limit and (ii) $5,000,000 annual products/completed operations aggregate limit. Upon Seller’s request, Buyer shall provide Seller with a certificate of insurance from Buyer’s insurer evidencing the insurance coverage specified in these Terms. The certificate of insurance shall name Seller as an additional insured on a primary/non-contributory basis. Buyer shall provide Seller with thirty (30) days’ advance written notice if there will be a cancellation or material change in Buyer’s insurance policy. Except where prohibited by law, Buyer shall require Buyer’s insurer to waive all rights of subrogation against Seller’s insurers and Seller.
20. Compliance with Laws; Export Control Laws. Buyer shall comply with all applicable laws, regulations, and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that Buyer needs to carry out Buyer’s obligations under this Agreement. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer, including, without limitation, all applicable “Anti-bribery Laws,” which prohibit the payment or transfer directly or indirectly of anything of value to governments, government officials, state-owned enterprises, political parties, political party officials, or to relatives or associates of those officials, in connection with obtaining or maintaining business or an improper business advantage. Buyer also will not participate in the purchase and re-sale of Seller’s products or technology to any “prohibited person or entity” or to any person or entity in or for export to any country that is deemed to be a “prohibited country” under U.S. export control laws (currently including but not limited to Cuba, Iran, North Korea, Sudan, and Syria) or for use in nuclear, chemical, or biological weapons, or rocket or missile applications. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Goods. Upon Seller’s request, Buyer shall provide information in response to any reasonable request (including a written certification) regarding compliance with applicable laws, rules, and regulations.
21. Indemnification. If any Goods are manufactured or sold by Seller to meet Buyer’s specifications or requirements and are not a part of a standard line offered by Seller to the trade generally, in the usual course of Seller’s business, Buyer shall indemnify, hold harmless, and defend Seller against all liabilities, costs, damages, judgments, and expenses (including attorney fees and costs) arising from any actual or alleged claim of unfair competition or infringement of any United States or foreign patent, trademark, or copyright asserted with respect to the manufacture or sale of the Goods.
22. Intellectual Property; Seller Property. Seller is the sole and exclusive owner of all intellectual property and all intellectual property rights relating to the Goods or Services, all packaging and other materials associated with the Goods or Services, and all manufacturing, packaging, or other processes associated with the Goods or Services, except and only to the extent that Buyer has specifically provided Seller with items for inclusion in or on the Goods or has specifically directed Seller in the manner of preparation or manufacture of the Goods. Without limiting the general nature of the foregoing, Seller’s sole and exclusive ownership shall extend to all inventions (whether or not patentable), devices, technologies, ideas, improvements, processes, systems, software, works of authorship and other intellectual property that Seller solely or jointly with others creates, conceives, or develops (a) in the course of Seller’s design, development, or manufacture of the Goods, (b) in the course of Seller’s design, development, or manufacture of packaging or promotional materials for the Goods, or (c) in Seller’s performance of Services for Buyer. Buyer assigns, and agrees to assign, to Seller all right, title, and interest that Buyer now has or in the future acquires in the intellectual property or in any related intellectual property rights.
23. Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against Buyer proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors.
24. Waiver. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver of that right, remedy, power, or privilege. No single or partial exercise of any right, remedy, power, or privilege under this Agreement precludes any other or further exercise of that right, remedy, power, or privilege or the exercise of any other right, remedy, power, or privilege.
25. Confidential Information. All non-public, confidential, or proprietary information of Seller, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
26. Force Majeure. Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent the failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic or pandemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), restraints or delays affecting carriers, inability or delay in obtaining supplies of adequate or suitable materials, or telecommunication breakdown or power outage.
27. Assignment. Buyer shall not assign, transfer, delegate, or subcontract (each, a “transfer”) any of Buyer’s rights or obligations under this Agreement without the prior written consent of Seller. Any purported transfer in violation of this Section is null and void. No permitted transfer shall relieve Buyer of any of Buyer’s obligations under this Agreement. Seller may at any time assign or transfer any or all of Seller’s rights or obligations under this Agreement without Buyer’s prior written consent to any affiliate or to any person acquiring all or substantially all of Seller’s assets.
28. Relationship of the Parties. The relationship between Buyer and Seller is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between Buyer and Seller, and neither Buyer nor Seller shall have authority to contract for or bind the other party in any manner whatsoever.
29. No Third-Party Beneficiaries. This Agreement is for the sole benefit of Buyer and Seller and their respective successors and permitted assigns and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
30. Period of Limitations. No claim, suit, or other proceeding may be brought by Buyer for breach of contract, breach of warranty, or any other claim against Seller arising out of this Agreement or relating to the Goods after one (1) year from the date the cause of action accrued.
31. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Michigan. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
32. Submission to Jurisdiction. 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 Michigan in each case located in the City of Grand Rapids and County of Kent, and each party irrevocably submits to the exclusive jurisdiction of those courts in any suit, action, or proceeding.
33. Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (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 any 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), electronic mail, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party and (b) if the party giving the Notice has complied with the requirements of this Section.
34. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, the invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable that term or provision in any other jurisdiction.
35. Survival. Provisions of these Terms that by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement, including, but not limited to, the following provisions: Limitation of Liability, Insurance, Compliance with Laws; Export Control Laws, Confidential Information, Governing Law, Submission to Jurisdiction, and Survival.
36. Amendment and Modification. These Terms may only be amended or modified in a writing stating specifically that the writing amends these Terms and is signed by an authorized representative of each party.