PRODUCT SUPPLY TERMS OF SALE

 

ARTICLE I
Definitions

 

Capitalized terms have the meanings set out in this Section, or in the Section in which they first appear in this Agreement or these Terms of Sale.

Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, whether civil, criminal, administrative, regulatory, or other, and whether at law, in equity, or otherwise.

Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, this Person.

Agreement” has the meaning set out in the preamble.

Business Day” means any day except Saturday, Sunday, or a federal holiday.

Claim” means any Action made or brought against a Person entitled to indemnification under Section 6 of the Agreement.

Control” (and with correlative meanings, the terms “Controlled by” and “under common Control with”) means, regarding any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of another Person, whether through the ownership of voting securities, by contract, or otherwise.

Delivery Point” means the street address specified in the applicable Purchase Order.

Disclosing Party” has the meaning set out in Section 4.01 of these Terms of Sale.

Force Majeure Event” has the meaning set out in Section 10.15 of these Terms of Sale.

Governmental Authority” means any federal, state, local, or foreign government or political subdivision thereof, or any agency or instrumentality of the government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of this organization or authority have the force of Law), or any arbitrator, court, or tribunal of competent jurisdiction.

Governmental Order” means any order, writ, judgment, injunction, decree, stipulation, award, or determination entered by or with any Governmental Authority.

Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (a) Patents; (b) Trademarks; (c) internet domain names, whether or not Trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, website, and URLs; (d) works of authorship, expressions, designs, and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (e) Trade Secrets; (f) all industrial and other intellectual property rights, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights or forms of protection under the Laws of any jurisdiction throughout in any part of the world.

Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, Governmental Order or other requirement or rule of law of any Governmental Authority.

Nonconforming Goods” means any product received by Customer from Supplier under a Purchase Order that: (a) is not a Product; (b) does not conform to the make/model number/UPC/SKU/or other PRODUCT IDENTIFIER listed in the applicable Purchase Order; or (c) on visual inspection, Customer reasonably determines are otherwise defective.

Notice” has the meaning set out in Section 10.01 of these Terms of Sale.

Notify” means to give Notice.

Party” has the meaning set out in the preamble to this Agreement.

Patents” means all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions, and extensions thereof), patent applications, and other patent rights and any other Governmental Authority-issued indicia of invention ownership (including inventor’s certificates, petty patents, and patent utility models).

Payment Failure” has the meaning set out in Section 6.01 of these Terms of Sale.

Person” means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, Governmental Authority or any other entity.

Personnel” means agents, employees, or subcontractors engaged or appointed by Supplier or Customer.

Price” has the meaning set out, from time to time, in the Agreement.

Products” means those products that are identified in the Agreement, as Supplier may amend in accordance with the Agreement.

Purchase Order” means Supplier’s then-current standard form purchase order.

Purchase Order Transaction Terms” means any one or more of the terms specified by Supplier in a Purchase Order under Section 2.03 of these Terms of Sale. For the avoidance of doubt, the term Purchase Order Transaction Terms does not include any general terms or conditions of any Purchase Order.

Receiving Party” has the meaning set out in Section 4.01 of these Terms of Sale.

Trademarks” means all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, trade dress, corporate names, and domain names and other similar designations of source, sponsorship, association or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, these rights and all similar or equivalent rights or forms of protection in any part of the world.

Trade Secrets” means all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures, and other confidential and proprietary information and all rights therein.

US” means the United States of America, including its territories, possessions, and military bases.

 

ARTICLE II

PURCHASE AND SALE

 

Section 2.01             Purchase Orders. Customer shall issue purchase orders to Supplier via email or fax. Purchase orders shall include, at minimum, the number of units of Product ordered and any other information required by Supplier.

 

Section 2.02             Purchase Order. Customer shall issue all Purchase Orders in written form via facsimile or email, and cause all Purchase Orders to contain the Purchase Order Transaction Terms as defined in Section 2.03 of these Terms of Sale. By placing a Purchase Order, Customer makes an offer to purchase Products under the terms and conditions of this Agreement, including the Purchase Order Transaction Terms, and on no other terms.

Section 2.03             Purchase Order Transaction Terms. Customer shall specify the following information (collectively, the “Purchase Order Transaction Terms”) in each Purchase Order: (a) a list of Products to be purchased, including brand by name, number, UPC, SKU or other Product identifier; (b) quantities of Product ordered; and (c) any other information required by Supplier. The Parties agree that there are no minimum Purchase Order quantities required under this Agreement.

Section 2.04             Availability/Changes in Products. Supplier shall make every effort to fulfill Purchase Orders with the brand of Products set forth in the Purchase Orders, it being agreed and understood that Supplier may fulfill orders with other brands of Product based on availability.

Section 2.05             Non-Exclusive. The Parties agree that this engagement is non-exclusive, each agreeing that the Customer may order Products from other suppliers, and Supplier may provide Products to any other Person. This Agreement does not preclude Supplier from entering into an agreement (a “Competitive Transaction”) with any other Person related to the sale, or distribution of the Product

Section 2.06          Purchaser Cancellation; Supplier’s Right to Accept or Reject Purchase Orders. Customer may cancel all or part of a Purchase Order upon not more than twenty-four (24) hours of submitting a Purchase Order to the Supplier, it being understood that any attempt to cancel a Purchase Order after such twenty-four (24) hour time frame may not be honored by the Supplier. Supplier may, in its sole discretion, reject any Purchase Order, upon Notice to the Customer within three (3) Business Days of Supplier’s receipt of any Purchase Order. Rejection of a Purchase Order may be without liability or penalty to Supplier, and may be made for (i) no reason and without having to state a reason, (ii) due to a defect in the Purchase Order, or (iii) if Supplier determines that Customer is in violation of its payment obligations or has otherwise breached this Agreement.

Section 2.07             Shipping Charges, Insurance and Taxes. All prices are including of all shipping charges and insurance costs but 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 Customer under this Agreement. Customer shall be responsible for all taxes on Products, provided, that, Customer is not responsible for any taxes imposed on, or regarding, Supplier’s income, revenues, gross receipts, personnel, or real property.

Section 2.08             Payment Terms. Supplier shall issue invoices weekly to Customer for all Products ordered and Services rendered in the previous week. Customer shall pay all invoiced amounts due in full to Supplier within thirty (30) Business Days from the date of the Customer’s receipt of the invoice, except for any amounts disputed by Customer in good faith. Customer shall make all payments in US dollars by check or by wire transfer as directed by Supplier.

Section 2.09             Unsatisfactory Credit Status. Each issuance of a Purchase Order to Supplier constitutes Customer’s representation and warranty that Customer can pay for the Products and Services identified in the Purchase Order in accordance with the terms of this Agreement. Customer shall furnish Supplier with such statements accurately and fairly evidencing Customer’s financial condition as Supplier may, from time to time, reasonably request. Throughout the term, Customer shall be in compliance with all loan covenants and other obligations to its lenders. Customer shall Notify Supplier immediately of any and all events that have had or may have a material adverse effect on Customer’s business or financial condition, including any change in management, sale, lease or exchange of a material portion of Customer’s assets, a change of Control or ownership, or breach of any loan covenants or other material obligations of Customer to its lenders. If, at any time, Supplier determines in its sole discretion that Customer’s financial condition or creditworthiness is inadequate or unsatisfactory, then in addition to Supplier’s other rights under this Agreement, at law or in equity, Supplier may without liability or penalty, take any of the following actions: (a) immediately modify the payment terms specified in Section 2.08 of these Terms of Sale for outstanding and future purchases, including requiring Customer to pay cash in advance or cash on delivery; (b) reject any Purchase Order received from Customer; (c) cancel any previously accepted Purchase Orders; (d) immediately terminate this Agreement; or (e) accelerate the due date of all amounts owing by Customer to Supplier. No actions taken by Supplier under this Section 2.09, of these Terms of Sale nor any failure of Supplier to act under this Section 2.09 of these Terms of Sale constitute a waiver by Supplier of any of its rights to enforce Customer’s obligations under this Agreement including the obligation of Customer to make payments as required under this Agreement.

Section 2.10             Invoice Disputes. Customer shall Notify Supplier in writing of any dispute with any invoice (along with substantiating documentation/a reasonably detailed dispute description) within five (5) Business Days from the date of the invoice. Customer will be deemed to have accepted all invoices for which Supplier does not receive timely Notice of disputes, and shall pay all undisputed amounts due under these invoices within the period set out in Section 2.08 of these Terms of Sale. The Parties shall seek to resolve all disputes expeditiously and in good faith. Notwithstanding anything to the contrary, Customer shall continue performing its obligations under this Agreement during any dispute, including, without limitation, Customer’s obligation to pay all due and undisputed invoice amounts in accordance with the terms and conditions of this Agreement.

Section 2.11             Late Payments. Except for invoiced payments that Customer has successfully disputed, Customer shall pay interest on all late payments, calculated daily and compounded monthly at the lesser of the rate of 1.5% of the delinquent amount or the highest rate permitted under applicable Law. Customer shall also reimburse Supplier for all costs incurred in collecting any late payments, including, without limitation, court costs and attorneys’ fees. In addition to all other remedies available under this Agreement or at Law (which Supplier does not waive by the exercise of any rights under this Agreement), Supplier may (a) suspend the delivery of any Products if Customer fails to pay any undisputed amounts when due under this Agreement and (b) terminate this Agreement under the terms of Article VI of these Terms of Sale.

Section 2.12             No Set-Off. Customer shall perform its obligations under this Agreement without set-off, deduction, recoupment, or withholding of any kind for amounts owed or payable by Supplier whether under this Agreement, applicable law, or otherwise and whether relating to Supplier’s breach, bankruptcy, or otherwise and whether under this Agreement, any Purchase Order, any other agreement between (a) Customer and (b) Supplier or any of its Affiliates, or otherwise.

 

ARTICLE III
INTELLECTUAL PROPERTY RIGHTS

 

Section 3.01       Ownership. The Parties acknowledge and agree that: (a) any and all Intellectual Property Rights owned by a Party to this Agreement, are the sole and exclusive property of such Party and/or its licensors; (b) neither Party shall acquire any ownership interest in the Intellectual Property Rights of the other Party under this Agreement; and (c) neither Party shall use the Intellectual Property Rights of the other Party except as expressly provided in this Agreement or otherwise consented to in writing by the Party whose Intellectual Property Rights are to be used.

 

ARTICLE IV
Confidentiality

 

Section 4.01             Protection of Confidential Information. From time to time during the Term, Supplier (as “Disclosing Party”) may disclose or make available to Customer, its officers, directors, employees, contractors, agents and subcontractors (collectively, as “Receiving Party”) information about its business affairs, goods and services, confidential information, and materials comprising or relating to Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information; such information, as well as the terms of this Agreement, whether orally or in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential” constitutes “Confidential Information” hereunder. Confidential Information excludes information that, at the time of disclosure: (a) is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Article IV of these Terms of Sale by Receiving Party; (b) is or becomes available to Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was known by or in the possession of Receiving Party before being disclosed by or on behalf of Disclosing Party; (d) was or is independently developed by Receiving Party without reference to or use of, in whole or in part, any of Disclosing Party’s Confidential Information; or (e) must be disclosed under applicable Law. Receiving Party shall from receipt of such Confidential Information: (i) protect and safeguard the confidentiality of Disclosing Party’s Confidential Information with at least the same degree of care as Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (ii) not use Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (iii) not disclose any such Confidential Information to any Person, except to Receiving Party who must know the Confidential Information to assist Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. Receiving Party shall be responsible for any breach of this Article IV of these Terms of Sale caused by its officers, directors, employees, contractors, agents and subcontractors (“Representatives”). The provisions of this Article IV of these Terms of Sale shall survive termination or expiration of this Agreement for any reason. At any time during or after the Term, at Disclosing Party’s written request, Receiving Party and its Representatives shall, promptly return all Confidential Information including copies that it has received under this Agreement.

 

Section 4.02             Equitable Remedies. Customer acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under this Article IV of these Terms of Sale would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by Customer of any of these obligations,  Supplier shall, in addition to any and all other rights and remedies that may be available to Supplier at law, at equity, or otherwise in respect of this breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages do not afford an adequate remedy. Customer agrees that Customer will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Article IV of these Terms of Sale.

 

Section 4.03                    No Liability for Consequential or Indirect Damages. In no event is Supplier liability for consequential, indirect, incidental, special, exemplary, punitive or enhanced damages, lost profits or revenues or diminution in value, arising out of or relating to any breach of this Agreement, regardless of: (a) whether the damages were foreseeable; (b) whether or not Supplier was advised of the possibility of the damages; and (c) the legal or equitable theory (contract, tort or otherwise) on which the claim is based, and notwithstanding the failure of any agreed or other remedy of its essential purpose.

 

Section 4.04             Maximum Liability for Damages. In no event shall Supplier’s aggregate liability for each claim arising out of or related to this Agreement, whether arising out of or related to breach of contract, tort (including negligence) or otherwise, exceed the total of the amounts paid and amounts accrued but not yet paid to Supplier under this Agreement in the one (1) month period preceding the event giving rise to the claim.

 

ARTICLE V
Representations and Warranties

 

Section 5.01       Customer’s Representations and Warranties. Customer represents and warrants to Supplier that: (a) it is duly organized, validly existing and in good standing in the jurisdiction of its organization; (b) it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement, except where the failure to be so qualified, in the aggregate, would not reasonably be expected to adversely affect its ability to perform its obligations under this Agreement; (c) it has the full right, power and authority to enter into this Agreement and to perform its obligations under this Agreement; (d) the execution of this Agreement by its Representative whose signature is set out at the end hereof has been duly authorized by all necessary action of the Customer; and (e) when executed and delivered by each of Supplier and Customer, this Agreement will constitute the legal, valid and binding obligation of Customer, enforceable against Customer in accordance with its terms, except as may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws and equitable principles related to or affecting creditors’ rights generally or the effect of general principles of equity.

Section 5.02             Supplier Disclaimer of Representations and Warranties. Neither Supplier nor any person on Supplier’s behalf has made or makes any express or implied representation or warranty whatsoever including any warranties of: (i) merchantability; or (ii) fitness for a particular purpose; or (iii) title; or (iv) non-infringement; or (v) performance of products to standards specific to the country of import, whether arising by law, course of dealing, course of performance, usage of trade or otherwise, all of which are expressly disclaimed and Customer acknowledges that it has not relied on any representation or warranty made by Supplier or any other person on Supplier’s behalf.

 

ARTICLE VI

Termination

 

Section 6.01             Supplier’s Right to Terminate. Supplier may terminate this Agreement by providing Notice to Customer: (i) within thirty (30) days of Notice to the Customer at any time, without cause, for no cause, and without having to state any cause; (ii) if Customer fails to pay any amount when due under this Agreement (“Payment Failure”) and the failure continues for ten (10) days after receipt of Notice of nonpayment; (iii) if Customer breaches any material provision of this Agreement (other than a Payment Failure), and either the breach cannot be cured or, if the breach can be cured, it is not cured by Customer within thirty (30) Business Days after Customer’s receipt of Notice of such breach; (iv) if Customer becomes insolvent or files, or has filed against it, a petition for voluntary or involuntary bankruptcy or under any other insolvency Law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property, or is generally unable to pay its debts as they become due; or (v) if Customer ceases to operate as a going concern, dissolves, or undergoes a change of control without Supplier’s prior written consent, or enters into one or a series of transactions whereby Customer sells, transfers, or disposes of all or substantially all its assets or stock, or enters into any merger, consolidation or reorganization with any other party

Section 6.02             Customer’s Right to Terminate. Customer may terminate this Agreement: (i) within ninety (90) days of Notice to the Supplier at any time, without cause, for no cause, and without having to state any cause; (ii) immediately upon Notice to the Supplier, if Supplier breaches any material provision of this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by Supplier within thirty (30) Business Days after Supplier’s receipt of Notice of breach; or (iii) immediately upon notice to the Supplier, if Supplier becomes insolvent or files, or has filed against it, a petition for voluntary or involuntary bankruptcy or under any other insolvency Law, makes or seeks to make a general assignment for the benefit of its creditors or applies for, or consents to, the appointment of a trustee, receiver, or custodian for a substantial part of its property, or is generally unable to pay its debts as they become due.

Section 6.03       Effect of Expiration or Termination. The expiration or earlier termination of this Agreement does not affect any rights or obligations that were incurred by the Parties before the expiration or earlier termination; provided that if Supplier terminates this Agreement under Section 6.01 of these Terms of Sale, all indebtedness of Customer to Supplier of any kind shall be immediately due and payable on the effective date of the Term’s expiration or earlier termination without further notice to Customer. The Parties further agree that notwithstanding any Notice of termination under this Agreement, prior to the effective date of such Notice of termination, unless a Purchase Order is cancelled by the Customer pursuant to this Agreement, or Supplier has rejected a Purchase Order pursuant to this Agreement, Supplier may, at its option, reject or fulfill any Purchase Order until the effective date of Termination or expiration of this Agreement, provided that, at the option of Supplier, the fulfillment of any such Purchase Orders may be made on a cash only or certified check basis as expressly provided in Supplier’s invoices to the Customer. Notwithstanding any Notice of termination, Customer shall continue to be liable to pay all invoices for all fulfilled Purchase Orders in accordance with their terms.

 

ARTICLE VII
relationship of the parties

 

Section 7.01             Independent Contractors; No Franchise or Business Opportunity Agreement. The Parties to this Agreement are independent contractors and nothing in this Agreement shall be deemed or constructed as creating a joint venture, partnership, agency relationship, franchise, or business opportunity between Supplier and Customer. Neither Party, by virtue of this Agreement, will have any right, power, or authority to act or create an obligation, express or implied, on behalf of the other Party. Each Party assumes responsibility for the actions of their personnel under this Agreement and will be solely responsible for their supervision, daily direction and control, wage rates, withholding income taxes, disability benefits, or the manner and means through which the work under this Agreement will be accomplished.

 

ARTICLE VIII
PrevailINg TERMS

 

Section 8.01             Agreement and Terms of Sale Prevail Over Purchase Order. In the event of any conflict between the Agreement and these Terms of Sale, the Agreement shall control. These Terms of Sale shall control and prevail over any terms or conditions contained in any Purchase Orders.

 

ARTICLE IX
Customer Insurance Obligations

 

Section 9.01             Customer Insurance Obligations. During the Term of this Agreement, Customer shall, at its own expense, maintain, and carry in full force and effect, commercial general liability (including product liability) in a sum no less than $1,000,000 per occurrence with financially sound and reputable insurers. Upon execution of this Agreement and upon Supplier’s request, Customer shall provide Supplier with a certificate of insurance from Customer’s insurer evidencing the insurance coverage specified in this Section 9.01 of these Terms of Sale. The certificate of insurance shall name Supplier as an additional insured. Customer shall provide Supplier with not less than thirty (30) days’ advance Notice in the event of a cancellation or material change in its insurance policy.

 

ARTICLE X
Miscellaneous

 

Section 10.01          Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice” and with the correlative meaning, “Notify”) must be in writing and addressed to the other Party at its address set out in the Agreement (or to any other address that the receiving Party may designate from time to time in accordance with this Section 10.01 of these Terms of Sale). Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Notice is deemed effective only if the Party giving the Notice has complied with the requirements of this Section 10.01 of these Terms of Sale and (a) on receipt by the receiving Party if personally delivered, (b) one (1) Business Day after depositing the Notice with a nationally recognized courier, or (c) three (3) Business Days after depositing the Notice with the United States Postal Service.

Section 10.02          Interpretation. For purposes of this Agreement: (a) the words “include,” “includes”, and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto”, and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means the agreement, instrument, or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means the statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties drafted this Agreement without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set out verbatim herein.

Section 10.03          Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.

Section 10.04         Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.

Section 10.05         Amendment and Modification. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement and signed by an authorized Representative of each Party.

Section 10.06         Waiver.  No waiver under this Agreement is effective unless it is in writing, identified as a waiver to this Agreement and signed by an authorized representative of the Party waiving its right. Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion. None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from this Agreement: (i) any failure or delay in exercising any right, remedy, power, or privilege or in enforcing any condition under this Agreement; or (ii) any act, omission, or course of dealing between the Parties.

Section 10.07         Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or later be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.

Section 10.08         Assignment. Customer may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Supplier. Any purported assignment or delegation in violation of this Section 10.08 of this Terms of Sale is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Agreement. Supplier may assign any of its rights or delegate any of its obligations to any Affiliate or to any Person acquiring all or substantially all of Supplier’s assets or stock without the consent of Customer.

Section 10.09         Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.

Section 10.10         No Third-Party Beneficiaries. This Agreement benefits solely the Parties to this Agreement and their respective permitted successors and permitted assigns and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.

Section 10.11         Choice of Law. This Agreement, including all exhibits, schedules, attachments, and appendices attached hereto and thereto, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the Laws of the State of Florida without regard to the conflict of laws provisions thereof to the extent these principles or rules would require or permit the application of the Laws of any jurisdiction other than those of the State of Florida.

Section 10.12          Choice of Forum. Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments, and appendices attached hereto and thereto, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the Federal District Court for the State of Florida, County of Palm Beach or if this court does not have subject matter jurisdiction, the courts of the State of Florida sitting in Palm Beach County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of these courts and agrees to bring any action, litigation, or proceeding only in the Federal District Court or if this court does not have subject matter jurisdiction, the courts of the State of Florida sitting in Palm Beach County. Each Party agrees that a final judgment in any action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.

Section 10.13         Waiver of Jury Trial. Each Party acknowledges and agrees that any controversy that may arise under this Agreement, including any exhibits, schedules, attachments, and appendices attached to this Agreement, is likely to involve complicated and difficult issues and, therefore, each Party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement, including any exhibits, schedules, attachments, and appendices attached to this Agreement, or the transactions contemplated hereby. Each Party certifies and acknowledges that (a) no Representative of the other Party has represented, expressly, or otherwise, that the other Party would not seek to enforce the foregoing waiver in the event of a legal action, (b) it has considered the implications of this waiver, (c) it makes this waiver voluntarily, and (d) it has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Section 10.13 of these Terms of Sale.

Section 10.14         Force Majeure.  No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Customer to make payments to SUPPLIER hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, other potential disasters or catastrophes, such as epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; (h) telecommunication breakdowns, power outages or shortages, lack of warehouse or storage space, inadequate transportation services, or inability or delay in obtaining supplies of adequate or suitable materials; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.