Terms & Conditions
TeraPore Technologies
Global Terms and Conditions of Sale
The Terms and Conditions were last updated December 11, 2023.
Please e-mail Customer Service with any concerns regarding the Terms & Conditions at support@teraporetech.com.
1. Applicability
1.1. These terms and conditions of sale (these "Terms"), any Sales Documents accompanying or referencing these Terms, and Supplemental Terms, if any, comprise the entire agreement (the “Agreement”) between TeraPore Technologies, Inc. or an affiliate thereof ("Seller") and the purchaser (“Purchaser”) with respect to the purchase and sale of products (“Products”) and services ("Services") indicated on Sales Documents. “Sales Documents” means any document, print or digital, provided by Seller in the purchase and sale process, including but not limited to quotations, proposals, invoices, documents or emails confirming, acknowledging or accepting an order (“Order Confirmation”) and shipping documents.
1.2. These Terms prevail over any of Purchaser’s general terms and conditions of purchase or any other terms provided by Purchaser, which Seller hereby rejects, regardless of when, where, or how such terms are provided. Fulfillment of Purchaser's order does not constitute acceptance of any of Purchaser's terms and does not serve to modify or amend these Terms.
1.3. Certain Products and Services may be subject to additional terms (“Supplemental Terms”) not contained herein, which, when applicable, may be referenced on or provided with Sales Documents or Seller’s websites or provided by Seller upon request.
1.4. The Agreement between Seller and Purchaser is created when Seller confirms, acknowledges or begins to fulfill Purchaser’s order. Purchaser may not modify or cancel the Agreement without Seller’s express written consent. Modification or cancellation may require payment by Purchaser of certain costs incurred by Seller.
1.5. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the Products or Services covered hereby, the terms and conditions of said contract shall prevail to the extent they are inconsistent with these Terms.
1.6. Unless expressly modified or excluded in a writing signed by the Seller, these Terms shall apply to future sales of Products and Services between Seller and Purchaser (each a “Future Purchase”), even if not expressly referred to in the Sales Documents for such Future Purchase
2. Cancellation
2.1. Purchaser may cancel this purchase by a written cancellation notice received by Seller within two (2) Business Days of Seller first providing a Sales Document containing or referencing these Terms (the “Cancellation Period”). By not cancelling this purchase, Purchaser agrees to be bound by the Terms for this purchase and for any Future Purchase. For purpose of these Terms, a “Business Day” means Monday through Friday, at Sellers place of business except for legal public holidays specified in Title 5, Section 6103 of the United States Code. Purchaser may not cancel or modify this purchase after the Cancellation Period without the express written consent of Seller. In the case of a modification or cancellation by Purchaser, Purchaser may be required to reimburse Seller for any costs incurred by Seller resulting from such modification or cancellation.
3. Delivery and Performance
3.1. Unless otherwise agreed upon in writing set forth on an Order Confirmation, delivery of Products shall be made FOB (Seller).
3.2. Unless otherwise agreed in writing, Seller shall select the carrier and use Seller's standard packaging and shipping methods, for which fees may apply.
3.3. Freight charges, transportation, and insurance costs shall be the sole responsibility of the Purchaser. The Seller shall pay all associated costs directly to the carrier and invoice the Purchaser. All risk of loss shall transfer to the Purchaser upon delivery of the Products to the Carrier at Seller’s location.
3.4. Delivery dates provided by Seller are non-binding and time of delivery is not of the essence. Seller shall not be liable for any delays, loss or damage in transit.
3.5. Seller may, in its sole discretion, make partial shipments of Products and invoice immediately therefore. Purchaser shall pay for the units shipped whether such shipment is in whole or partial fulfilment of Purchaser's order.
3.6. Seller shall determine the location of Services. If Services are provided at Seller’s site or a third-party site authorized by Seller, Purchaser shall be responsible for any shipping and transportation costs, including any insurance costs, if applicable which, if prepaid by Seller shall be invoiced to Purchaser. If Services are provided at Purchaser’s site or another site under Purchaser’s control, Purchaser shall (a) cooperate with Seller in all matters relating to the provision of Services and provide access to premises and facilities as may reasonably be necessary or requested, including a safe work environment; (b) promptly provide any requested materials, direction, information, approvals, authorizations, or decisions (“Information”); and (c) ensure that such Information is materially complete and accurate.
4. Non-Delivery.
4.1. The quantity of any installment of Products as recorded by Seller on delivery to the carrier at Seller's place of business is conclusive evidence of the quantity received by Purchaser on delivery unless Purchaser can provide conclusive evidence proving the contrary.
4.2. The Seller shall not be liable for any non-delivery of Products (even if caused by Seller's negligence) unless Purchaser 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.
4.3. Any liability of Seller for non-delivery of the Products shall be limited to replacing the Products within a reasonable time or adjusting the invoice respecting such Products to reflect the actual quantity delivered.
5. Title and Risk of Loss
5.1. Except as provided for in Section 5.3, title and risk of loss passes to Purchaser upon delivery to carrier at Seller’s location.
5.2. As collateral security for the full payment of the purchase price of the Products, Purchaser hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Purchaser 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 (a “Purchase Money Security Interest”). The Purchase Money Security Interest granted under this provision constitutes a purchase money security interest under (i) if Purchaser is in the United States, the California Uniform Commercial Code, (ii) if Purchaser is in Canada, the Personal Property Security Act (Canada), (iii) if purchaser is in Australia, the Personal Property Securities Act 2009 (PPSA), (iv) if purchaser is in the United Kingdom, the Personal Property Securities Act 2009 (PPSA), (v) if Purchaser is in New Zealand, the Personal Property Securities Act 1999 (PPSA), or (vi) under such similar statutes, law, rules, or regulations as to create a similar security interest. Seller may, in its reasonable discretion, register such security interest in the applicable official registers of any national or local jurisdiction where the Products are delivered or physically located, file any and all documents and take any action it deems necessary to fully establish protection of its security interest in the Products; however, the failure of Seller to file any such document shall not in any way act as a waiver of Seller’s right to such security interest. Purchaser shall execute all documents and take all actions as Seller reasonably requests to enable Seller to exercise its security rights under this section.
5.3. If Purchaser is in Japan, Germany, France, Brazil, Italy, The People’s Republic of China, or any country in which the laws do not recognize a Purchase Money Security Interest by matter of law, then title and property in the Products shall not pass to the Purchaser until the Seller has received in cash or cleared funds payment in full of the price of the Products, including any incidental costs, and all other products agreed to be sold by the Seller to the Purchaser for which payment is then due.
5.3.1. Until such time as the property in the Products passes to the Purchaser, the Purchaser shall hold the Products as the Seller’s fiduciary agent and bailee, and shall keep the Products separate from those of the Purchaser and third parties and properly stored, protected and insured and identified as the Seller’s property, but the Purchaser shall be entitled to resell or use the Products in the ordinary course of its business.
5.3.2. Purchaser shall not to use the Products to create any charge or assign title to the Products as a security or create any other interest similar to a security interest in the Products.
5.3.3. Purchaser shall inform the Seller without delay in the event of an attachment order or any other third-party intervention affecting the Products, so that the Seller may apply to have the order set aside and preserve its rights.
5.3.4. Until such time as the title and property in the Products passes to the Purchaser (and provided the Products are still in existence and have not been resold), the Seller shall be entitled at any time to require the Purchaser to deliver up the Products to the Seller and, if the Purchaser fails to do so forthwith, to enter upon any premises of the Purchaser or any third party where the Products are stored and repossess the Products.
6. Prices and Taxes.
6.1. Unless otherwise set forth in the Order Confirmation, the price of the Products is based on the prices quoted in Seller’s product catalog, which are subject to change without notice. Prices in any Order Confirmation are subject to change upon notice to Purchaser at any time before the quotation or proposal has been accepted. At any time prior to shipment, prices for Products may be adjusted by Seller, upon notice to Purchaser, to reflect any increase in Seller’s cost of raw materials incurred by Seller, regardless of the acceptance or issuance of an Order Confirmation
6.2. All stated prices are exclusive of any taxes, fees, duties, tariffs and levies or other similar charges imposed and/or enacted by a government, however designated or imposed, including but not limited to value-added and withholding taxes that are levied or based upon the amounts paid under this Agreement (collectively, “Taxes/Excluded Items”). Any Taxes/Excluded Items related to the Products purchased pursuant to this Agreement are the responsibility of Purchaser (excluding taxes based on Seller’s net income), unless Purchaser presents an exemption certificate acceptable to Seller and the applicable taxing authorities. If possible, Seller will bill Taxes/Excluded Items as a separate item on the invoice presented to Purchaser. If any exemption certificate presented by Purchaser is held to be invalid, then Purchaser shall pay Seller the amount of the Tax and any penalties and interest related thereto. At any time prior to shipment, Seller shall be entitled to an increase in time and money for any costs that it incurs directly or indirectly that arise out of or relate to changes in Taxes/Excluded Items.
7. Inspection and Rejection of Nonconforming Products
7.1. Purchaser shall inspect the Products within 10 days of receipt (the "Inspection Period"). Purchaser will be deemed to have accepted the Products unless it notifies Seller in writing 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) the product shipped is different than the Product identified in Sales Documents; (ii) Product’s label or packaging incorrectly identifies its contents, or (iii) the Product’s have defects, damages, or deficiencies resulting in performance parameters outside tolerances specified in the Sales Documents or in the Product’s documentation. Such notification shall identify each and every alleged nonconformity of the Nonconforming Products and describe that portion of the shipment being rejected. Seller shall then respond with instructions as to the disposition of the Nonconforming Products.
7.2. If Purchaser 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, together with any reasonable shipping and handling expenses incurred by Purchaser in connection therewith. Purchaser shall ship, at its expense and risk of loss, the Nonconforming Products to Seller's Shipment Point. If Seller exercises its option to replace Nonconforming Products, Seller shall, after receiving Purchaser's shipment of Nonconforming Products, ship to Purchaser, at Purchaser's expense and risk of loss, the replaced Products to the Seller’s Shipment Point.
7.3. Purchaser acknowledges and agrees that the remedies set forth in Section 7.2 are Purchaser's exclusive remedies for the delivery of Nonconforming Products. Except as provided under Section 7.2, all sales of Products to Purchaser are made on a one-way basis and Purchaser has no right to return Products purchased under this Agreement to Seller.
8. Use of Products
8.1. Purchaser shall (a) comply with all instructions, limitations, specifications, use statements or conditions of use made available by Seller, including but not limited to product data, product information, safety data sheets, limited use information and labelling (“Use Documents”), and (b) properly test, use, manufacture and market Products and/or materials produced with Products.
8.2. Purchaser shall not cause, allow, or permit any reverse engineering, disassembly, or other form of inspection to elucidate the chemical makeup or structure of the Products.
8.3. Purchaser acknowledges that Products are not tested for safety and efficacy in food, drug, medical device, cosmetic, commercial or any other use, unless otherwise explicitly stated in Use Documents. Purchaser is solely responsible for: (a) obtaining any necessary intellectual property permission related to the use of Products, (b) compliance with all applicable regulatory requirements and generally accepted industry standards, and (c) conducting all necessary testing and verification, including for fitness for the intended purpose.
8.4. If the applicable Use Documents, including but not limited to the limited use label license, indicate that the Products are offered and sold for research use only, Purchaser has no express or implied authorization from Seller to use such Products for any other purpose, including, without limitation, in vitro diagnostic purposes, in foods, drugs, medical devices or cosmetics for humans or animals or for commercial purposes.
8.5. Purchaser shall not market, distribute, resell, or export Products for any purpose, unless otherwise agreed by Seller in writing.
8.6. Purchaser shall not use the Products in humans or animals or in products intended for administration to or consumption by humans or animals unless otherwise expressly agreed in a writing signed by Purchaser and Seller.
9. Payment
9.1. Purchaser shall pay the price for the Products in the currency specified in the Sales Documents within 30 days of the date of the Seller’s Invoice. Purchaser may not set off or try to set off any amounts that may be claimed by the Purchaser against any amounts that are owed to the Seller.
9.2. If the Purchaser fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to: cancel the contract or suspend any further deliveries to the Purchaser; or apply a monthly interest charge at the rate of one and one half percent or the maximum legal rate allowed by applicable law, whichever is lower, on all past due payments calculated from the due date. Purchaser shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys' fees. Seller may at any time or times, suspend performance of any order or require payment or prepayment in cash, security, or other adequate assurance satisfactory to Seller when, in Seller’s opinion, the financial condition of Purchaser or other grounds for insecurity warrant such action.
10. Limited Warranty
10.1. Limited Warranty for Products. Seller warrants to Purchaser that: (i) for a period of six (6) months from the date Seller ships the Products to Purchaser; or (ii) in the case of Products which require installation by Seller’s personnel, for a period ending either (a) six (6) months from the date of installation or the date Seller receives final acceptance from Purchaser (if applicable), or (b) nine (9) months from the date Seller ships the Products to Purchaser, whichever date of (ii)(a) or (b) is earlier (each such period, the “Warranty Period”), the Products manufactured by Seller, when properly installed and maintained, and operated at ratings, specifications and design conditions specified by Seller, will materially conform to Seller’s specifications for such Products set forth in the Product’s documentation, or, in the absence of such documentation, such specifications as have been provided by Purchaser to Seller and accepted in writing by Seller and included in the Sales Confirmation at the time of the order, and will be free from material defects in material and workmanship (this “Limited Warranty”). Purchaser shall notify Seller promptly in writing of any claims within the Warranty Period and provide Seller with an opportunity to inspect and test the Products or service claimed to fail to meet this Limited Warranty. Purchaser shall provide Seller with a copy of the original invoice for the product or service, and prepay all freight charges to return any Products to Seller's factory, or other facility designated by Seller. All claims must be accompanied by full particulars, including system operating conditions, if applicable. If the defects are of such type and nature as to be covered by this Limited Warranty, Seller shall, at its option and in its sole discretion, either: (a) accept return of the defective Products and furnish replacement Products; (b) furnish replacement parts for the defective Products; (c) repair the defective Products; or (d) accept return of the defective Products and return payments made, or issue credits for, such defective Products. If Seller determines that any warranty claim is not, in fact, covered by this Limited Warranty, Purchaser shall pay Seller its then customary charges for any additionally required service or products.
10.2. Limited Warranty for Services. Seller further warrants that all Services performed hereunder, if any, will be performed in a workmanlike manner in accordance with applicable law and industry standards by qualified personnel (this “Limited Warranty for Services”); this Limited Warranty for Services shall survive for 30 days following Seller’s completion of the Services (the “Service Warranty Period”). In the event of a warranty claim under this Limited Warranty for Services, Purchaser shall inform Seller promptly in writing of the details of the claim within the Service Warranty Period. Seller’s liability under any service warranty is limited (in Seller’s sole discretion) to repeating the service that during the Service Warranty Period does not meet this Limited Warranty for Services or issuing credit for the nonconforming portions of the service. If Seller determines that any warranty claim is not, in fact, covered by the foregoing Limited Warranty for Services, Purchaser shall pay Seller its then customary charges for all services performed by Seller.
10.3. Other Limits. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTIONS 10.1 and 10.2, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE PRODUCTS AND SERVICES, INCLUDING WITHOUT LIMITATION ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) 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 does not warrant against, and in no event shall Seller be liable for, damages or defects arising out of improper or abnormal use, misuse, abuse, improper installation (other than by Seller), application, operation, maintenance or repair, alteration, accident, or for negligence in use, storage, transportation or handling or other negligence of Purchaser. In no event shall Seller be liable for any Products repaired or altered by someone other than Seller other than pursuant to written authorization by Seller.
10.4. Exclusive Obligation. THIS WARRANTY IS EXCLUSIVE. THE LIMITED WARRANTY AND THE LIMITED WARRANTY FOR SERVICES ARE THE SOLE AND EXCLUSIVE OBLIGATIONS OF SELLER WITH RESPECT TO THE DEFECTIVE PRODUCTS AND SERVICES. SELLER SHALL NOT HAVE ANY OTHER OBLIGATION WITH RESPECT TO THE PRODUCTS, SERVICES, OR ANY PART THEREOF, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE. THE REMEDIES SET FORTH IN SECTIONS 10.1 AND 10.2 SHALL BE THE PURCHASER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 10.1 AND 10.2.
10.5. Purchaser Breach. In no event shall Purchaser be entitled to any claim under the above Limited Warranties if Purchaser is in breach of its obligations, including but not limited to payment, hereunder.
11. Limitation of Liability
11.1. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, INCLUDING WITHOUT LIMITATION, REMANUFACTURING COSTS AND REWORK COSTS, DE-INSTALLATION OR RE-INSTALLATION COST, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY PURCHASER OR COULD HAVE BEEN REASONABLY FORESEEN BY PURCHASER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (TORT, CONTRACT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND WHATEVER THE FORUM, WHETHER ARISING OUT OF OR IN CONNECTION WITH THE MANUFACTURE, PACKAGING, DELIVERY, STORAGE, USE, MISUSE OR NON-USE OF ANY OF ITS PRODUCTS OR SERVICES OR ANY OTHER CAUSE WHATSOEVER.
11.2. 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 THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER.
11.3. The limitation of liability set forth in Clause 11.2 above 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 acts or omissions.
12. Intellectual Property Infringement.
12.1. Seller will defend, at its own expense, any action against Purchaser brought by a third party to the extent that the action is based upon a claim that the Products infringe any patents or copyrights, or misappropriate any trade secrets, of a third party. Seller will pay those costs and damages finally awarded against Purchaser in any such action that are specifically attributable to such claim or those costs and damages agreed to in a monetary settlement of such action.
12.2. The foregoing obligations are conditioned on Purchaser (i) notifying Seller promptly in writing of such action, (ii) making no admission of liability and giving Seller sole control of the defense thereof and any related settlement negotiations, and (iii) cooperating and, at Seller’s request and expense, assisting in such defense.
12.3. If the Products become, or in Seller’s opinion are likely to become, the subject of an infringement claim, Seller may, at its option and expense, either (i) procure for Purchaser the right to continue using such Products, (ii) replace or modify such Products so that they become non-infringing, or (iii) accept return of such Products and refund Purchaser the amounts actually paid by Purchaser to Seller for such Products.
12.4. Notwithstanding the foregoing, Seller will have no obligation under this Section 12 or otherwise with respect to any infringement claim based upon any: (i) misuse or modification of the Products by Purchaser or its employees or agents, (ii) use of the Products in combination with other materials, Products, products, or services for which the Product were not intended to be used, (iii) failure of Purchaser to implement any update provided by Seller that would have prevented the claim, (iv) Products that Seller made to Purchaser’s specifications or designs.
13. Insurance.
13.1. During the term of this Agreement, Purchaser shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than $1,000,000.00 with financially sound and reputable insurers. Upon Seller's request, Purchaser shall provide Seller with a certificate of insurance from Purchaser's insurer evidencing the insurance coverage specified in these Terms.
14. Compliance with Law.
14.1. Purchaser shall comply with all applicable laws, regulations, and ordinances. Purchaser shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. Purchaser shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products by Purchaser. Purchaser assumes all responsibility for shipments of Products requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Products.
15. Termination.
15.1. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Purchaser, if Purchaser: (i) fails to pay any amount when due under this Agreement and such failure continues for ten (10) days after Purchaser's receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) 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.
16. Governing Law and Jurisdiction
16.1. If Purchaser is in the United States:
16.1.1. 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 California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.
16.1.1.1. Any legal suit, action, controversy, proceeding, or claim arising out of or relating to this Agreement including, but not limited to, its breach, existence, validity, legality, enforceability, interpretation, performance, nullity, termination or expiration, (a “Controversy”) shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the City of San Francisco, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Seller and Purchaser hereby agree to waive their right to trial by jury and covenant that neither of them will request trial by jury in any litigation.
16.2. If Purchaser is in The People’s Republic of China:
16.2.1. The laws of The People’s Republic of China govern this Agreement, irrespective of any laws regarding choice or conflict of laws that direct the application of the laws of another jurisdiction.
16.2.1.1. The Controversy will be submitted to the China International Economic and Trade Arbitration Commission in Shanghai (“CIETAC”) for final resolution by arbitration in accordance with the rules and procedures of CIETAC. The CIETAC tribunal will consist of three (3) arbitrators. The parties will at all times comply with, and observe all requirements and rulings of, CIETAC made in relation to any Controversy submitted to CIETAC for resolution. Submission of evidentiary documents may be in copies without the need of notarization unless specifically ordered by the CIETAC tribunal. Any interim decisions or orders by the CIETAC tribunal will be binding, and sanctions may be given on failures of any party in implementing such interim decision or order. Any award or determination by the CIETAC tribunal is final and binding on both parties. The arbitration proceedings will be conducted in the English language. The United Nations Convention on Contracts for the International Sale of Products does not apply to the Agreement or the documents related thereto.
16.2.2. Except as otherwise provided for in Clause 16.1 or Clause :
16.2.3. The Controversy will be settled by binding arbitration; and notwithstanding its place of execution or performance, this Agreement will be governed by, and construed under and in accordance with, the Laws of the State of New York, USA, irrespective of any laws regarding choice or conflict of laws that direct the application of the laws of another jurisdiction.
16.2.3.1. The place of arbitration will be New York, New York, under the rules prescribed by the International Centre for Dispute Resolution (“ICDR”) in accordance with its ICDR Rules. Unless the parties agree to a single arbitrator, the arbitration will be heard and determined by three arbitrators, who will be appointed pursuant to the ICDR Rules. The arbitration proceedings will be conducted in the English language. The award will be rendered in writing with the reasons detailed. The award may be in the nature of money damages, injunctive relief, or specific performance as decided by the arbitrator. Either party may initiate arbitration by notifying the other in writing. The arbitrator’s ruling and award from such arbitration is final; the parties consent to judgment upon the award; and the award may be entered in any court of competent jurisdiction.
17. Miscellaneous
17.1. Choice of Language. It is by the express intention of the parties hereto that the present Agreement and all its related documents be drafted in English. Il est de l’intention expresse des parties à la présente Convention (connaissement, bon de commande, bon de conditionnement ou facture) et tout document s’y rattachant soient écrit en langue anglaise.
17.2. 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 thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
17.3. Confidential Information. All non-public, confidential or proprietary information of Seller, including but not limited to all Sales Documents, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Purchaser, 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 use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Purchaser 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 Purchaser at the time of disclosure; or (c) rightfully obtained by Purchaser on a non-confidential basis from a third party.
17.4. Force Majeure. Under no circumstances shall Seller have any liability for any breach relating to non-performance or underperformance caused by extreme weather, natural disaster, fire, accident or other act of God; strike, lock out or other labor shortage or disturbance; lock down, boycott, embargo or tariff; terrorism or act of terrorism, war or war condition or civil disturbance or riot; failure of public or private telecommunications networks; delay of carriers or other industrial, agricultural or transportation disturbance; failure of normal sources of supply; epidemics, pandemics, contagion, disease or quarantine; law, regulation or any act of government; or any other cause beyond Seller’s reasonable control (a “Force Majeure”). Seller’s performance shall be excused and deemed suspended during the continuation of such event or events and, for a reasonable time thereafter, delayed or adjusted accordingly
17.5. Assignment. Purchaser shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Purchaser of any of its obligations under this Agreement.
17.6. Relationship of the Parties. The relationship between the parties 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 the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
17.7. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, 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 these Terms.
17.8. Notices. All notices, requests, 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 Order 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 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.
17.9. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
17.10. Survival. Provisions of these Terms which 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: Use of Products, Limited Warranty, Limitation of Liability, Intellectual Property Infringement, Insurance, Compliance with Law, Governing Law and Jurisdiction, and Miscellaneous.