1. Purchase
and Sale.
1.1. Products. Seller
shall supply Products as defined in the order information section of this
Agreement (“Order Information”) to Buyer for Buyer’s use in connection with
Buyer’s resale of auto parts through online or other distribution
channels.
1.2. Appointment
as Distributor. Seller hereby appoints Buyer as a non-exclusive
distributor of the Products anywhere in the world through online and other
distribution channels. Seller grants to Buyer a non-exclusive,
royalty-free license to use Seller’s trademarks and logos (a) to sell,
distribute, market, promote, service and support the Products through any
promotional, advertising, or distribution channel, including but not limited
to,
Internet, print, television, radio and (b) to provide a link(s) to Seller’s
website(s) from any websites owned and/or controlled by Buyer.
1.3. Purchase
and Supply Obligations. The purchase and supply of Products
hereunder is not exclusive to either party. Buyer is not required to
purchase Products of any quantity or at any time. If requested by
Seller, Buyer shall provide to Seller a non-binding forecast of the quantity
of
Products that Buyer expects to order in the requested forecast period.
Buyer
shall order Products using its standard purchase order form, and Seller
shall
supply such Products in accordance with the terms of this Agreement, including,
but not limited to, the performance requirement standards set forth in
the Order
Information (“Performance Requirement Standards”). In the event of
inconsistency or conflicts between the terms and conditions of this Agreement
on
one hand, and those appearing on the preprinted terms and conditions of
any
Buyer purchase order or any other purchase order, Seller’s acknowledgement,
authorization, or other document that may be issued by Seller or Buyer
with
respect to the Products on the other hand, the terms and conditions of
this
Agreement will govern and control. Furthermore, any new or additional
terms, conditions or information appearing on or accompanying such documents
shall be of no effect unless Seller and Buyer expressly agree otherwise
in a
separate signed amendment. Buyer may cancel, in whole or in part, any
purchase order for Products submitted hereunder, with at least five (5)
days
notice prior to the date of shipment of such order.
1.4. Performance
Requirement Standards. Buyer and Seller shall meet on a
semi-annual basis to discuss whether changes to the Performance Requirements
Standards are necessary, due to any changing business needs of
Buyer.
1.5. Manufacturing
Capacity. Seller will maintain the labor, materials, and
manufacturing capacity necessary to produce and fill Buyer’s orders for Products
without delay. In the event Seller’s manufacturing capacity is
unable to fulfill the demand for the Products, Seller will prioritize shipments
of the Products to Buyer over shipments to any other party. Seller
will make best efforts to continue to identify and implement ways to reduce
manufacturing costs to obtain a lower selling price.
1.6. Shipping;
Freight Terms. Seller shall deliver Products to Buyer in
accordance with Buyer’s instructions specified in the purchase
order. Title to all conforming Products and risk of loss and damage
shall pass to Buyer upon delivery by Seller to the carrier selected by
Buyer. All Products will be shipped FCA (Free Carrier) [Named Place],
unless Buyer instructs otherwise. Title to and risk of loss for
nonconforming Products shall remain with Seller. Seller shall deliver
all Products to Buyer free and clear of all liens and encumbrances or other
defects in title. Any prepaid freight program will be set forth in the
Order
Information.
1.7. Packaging. All
Products shall be packaged, marked and otherwise prepared for shipment
by Seller
in suitable containers in accordance with sound commercial
practices. Seller shall mark on containers all necessary handling,
loading and shipping instructions. An itemized packing list shall be
included with each shipment.
1.8. Delivery;Scheduling. Seller
shall deliver Products in accordance with the delivery schedules set forth
in
the applicable purchase order and the Performance Requirement
Standards. Time and place of delivery are of the essence in the
performance of this Agreement. If delivery cannot be made at the
specified time and place, Seller shall promptly notify Buyer of the earliest
possible date for conforming delivery. Notwithstanding such notice,
Seller’s failure to effect conforming delivery shall entitle Buyer to revoke any
acceptance, to cancel a shipment without liability to Seller, to receive
a full
refund of any amount paid, to purchase substitute products elsewhere, to
return
at Seller’s risk and expense all or any part of a nonconforming delivery and to
hold Seller accountable for any additional costs incurred. Buyer’s
receipt of acceptance of all or part of the nonconforming delivery shall
not
constitute a waiver of any claim, right or remedy Buyer has under this
Agreement
or under applicable law.
1.9. Discontinued
Supply. If, during the term of this Agreement, Seller intends to
discontinue the manufacturing of any Product, Seller shall (a) provide
Buyer
with a written notice at least ninety (90) days prior to discontinuance
(“Notice
Period”) and (b) give Buyer an opportunity to purchase any and all units of the
Product Seller will manufacture during the Notice Period. Buyer may,
at its sole discretion, return to Seller any units of the Product that
Buyer
possessed at the time of the discontinuance notice and remained unsold
in
Buyer’s inventory on the effective date of discontinuance. Seller will refund
all
amounts paid by Buyer for such returned Products within thirty (30) calendar
days after receipt of the returned Products. Buyer will be
responsible for the shipping costs.
1.10. Stock
Adjustment. Within a reasonable time after each anniversary of
the Agreement, Buyer may, at its sole discretion, return to Seller, with
or
without reason, any and all units of the Products that remain unsold in
Buyer’s
inventory on such anniversary of this Agreement. Seller will refund
all amounts paid by Buyer for such returned Products within thirty (30)
calendar
days after receipt of the returned Products. Buyer will be
responsible for the shipping costs.
1.11. Inspection
and Rejection. Buyer may inspect and test all products at
reasonable times before, during and after manufacture. If any
inspection or test is made on Seller’s premises, Seller shall provide reasonable
facilities and assistance for the safety and convenience of Buyer’s inspectors
in such manner as shall not unreasonably hinder or delay Seller’s
performance. All Products shall be received subject to Buyer’s
inspection, testing, approval and acceptance at Buyer’s premises notwithstanding
any inspection or testing at Seller’s premises or any prior payment for such
Products. Products rejected by Buyer as no conforming may be returned
to Seller at Seller’s risk and expense.
1.12. Certificate
of Origin. Seller will certify to, and mark Products and
packaging with, the country of origin, sufficient to satisfy the requirements
of
the customs authorities of the country of receipt and any other applicable
law. If Products are imported into the United States, Seller will
provide Buyer with any documents required to prove importation and to transfer
duty drawback rights to Buyer.
1.13. Other
Obligations. Where applicable, Seller will provide Buyer with
safety information on the Products in the format specified in the Material
Safety Data Sheet to be provided by Buyer.
2. Pricing;
Payment.
2.1. Pricing. The
prices for the Products will be those set forth in the Order
Information and will remain fixed for a minimum of six (6) months from
the
Effective Date. If, at any time thereafter, Seller plans to increase
the prices, Seller must provide Buyer with written notice at least sixty
(60)
days prior to the effective date of such price increase. The prices
are inclusive of all packaging, but are exclusive of taxes (including,
but not
limited to, import duties) and shipping charges. The shipping charges
will be those set forth in the Order Information. Seller warrants
that the prices charged Buyer for the Products hereunder is as least as
low as
those currently being quoted by Seller to other resellers for the same
Products
and in like quantities.
2.2. Reseller
Sales Tax Exemption. If Buyer claims exemption from sales tax,
Buyer will provide Seller with an applicable reseller sales tax exemption
certificate(s).
2.3. Payment. Payment
terms will be net sixty (60) days from the date of
invoice. Buyer will be entitled to five percent (5%) discount
if payment is made electronically within fifteen (15) days from the date
of
invoice. Seller shall invoice Buyer within thirty (30) days after
shipment of the applicable Products.
3. Warranty;
Recordkeeping; Notification; Compliance with Law.
3.1. Products
Warranty. Seller represents and warrants that the Products shall:
(a) conform to the specifications set forth in the applicable Product
documentation; (b) be new, and not refurbished; (c) be free from
defects in design, workmanship, materials and packaging; (d) be
manufactured in a good, workmanlike manner; (e) be of good and merchantable
quality, (f) be fit and sufficient for their intended use and for the
purposes stated on any packaging, labeling or advertising; (g) be
equivalent in materials, quality, fit, finish, workmanship, performance
and
design to any samples submitted to and approved by Buyer; (h) comply with
all applicable laws, regulations, and applicable ISO standards and (i) be free and
clear of all liens and encumbrances or other defects in title. All
express warranties provided under this Agreement are in addition to any
other
implied warranties and shall survive any delivery, inspections, acceptance,
payment or resale of the Products and shall extend to Buyer and its
customers.
3.2. Remedies
for Breach of Warranty. In addition to any other remedies
available at law or in equity, if it is determined within ninety (90) days
after
the date of invoice that any Product delivered to Buyer does not conform
to the
foregoing warranties and/or other requirements set forth in a purchase
order,
Buyer may, at its option, require Seller (a) to deliver new replacement
Product to Buyer no later than five (5) days after a notice of non conformance
from Buyer or (b) refund or credit to Buyer any amount paid for such
non-conforming Product within thirty (30) calendar days from the date of
return
of such Product to Seller. Buyer will be responsible for charges for
shipping non-conforming Products to Seller. Notwithstanding the foregoing,
the
remedies for breach of warranty expressly provided in this Section 3.2
will not
be available to non-conforming Products for which Buyer has taken the warranty
allowance discount at the time of purchase.
3.3. Product
Return Policy. In addition to the remedies for breach of warranty
as set forth in Section 3.2 above, for a period of ninety (90) days after
the
date of invoice, Buyer may return to Seller any Products for a full refund,
with
or without any reason, or whether such Products have been
discontinued. Seller will refund or credit to Buyer any amount paid
for the returned Products within thirty (30) calendar days of receipt of
such
Products by Seller.
3.4. Representations
Made In Packaging and Advertising. Seller represents and warrants
that all representations made by Seller in any packaging, labeling, advertising,
or other marketing materials in connection with the Products shall be true
and
shall have been substantiated at the time that such representations are
made.
3.5. Intellectual
Property Warranty. Seller represents and warrants that the
Products do not and shall not infringe or misappropriate any rights in
patents
(including, but not limited to, design patents), copyrights, trade secrets,
trademarks and service marks and any other intellectual property rights,
and
filed applications and registrations of the foregoing, in any country in
the
world (“Intellectual Property Rights”). Seller shall notify Buyer in
writing within five (5) business days after it has knowledge of any claim
or
allegation of infringement, misuse, dilution, misappropriation or other
violation of any Intellectual Property Right in any way related to or affecting
the Products.
3.6. Failure
Analyses; Epidemic Failure. In the event of any actual or
suspected non-conformity, problem or defect with any Product, Seller shall
cooperate with Buyer to perform failure analyses and take any necessary
corrective action, in additional to any other remedies available to Buyer
at law
or in equity. A non-conformity or defect becomes an “Epidemic
Failure” of the Product, when a common defect cause as determined by failure
analysis occurs in one percent or more of the units of Products delivered
to
Buyer’s customers during any thirty (30) days period and is traceable to a
common root cause. If an Epidemic Failure is declared by Buyer,
Seller will immediately (a) dedicate sufficient resources to thoroughly
investigate the cause of the Epidemic Failure and (b) perform root cause
analysis and (c) implement corrective action. Seller will be
responsible for all costs associated with the resolution of the Epidemic
Failure.
3.7. Inspection;
Access. Seller shall provide Buyer or a third party designee with
such documentation and access to facilities and personnel specifically
related
to the Products as Buyer may reasonably request if necessary to comply
with
laws, regulations, or governing authorities.
3.8. Records. Seller
shall: (a) maintain traceability records for each Product, including, but
not limited to, the lot number of each unit of Product; and (b) provide
Buyer a copy of such records without charge upon Buyer’s request.
3.9. Required
Notification. Seller shall immediately notify Buyer as soon as it
becomes aware of any: (a) defect or condition which renders or may render
any Product ineffective or dangerous; (b) Product that is not in compliance
with the warranties provided hereunder; (c) actual or anticipated breach or
non-performance by Seller under the terms of this Agreement; or
(d) regulatory or ISO inspections and/or other communications with
regulatory or ISO authorities related to the Product.
3.10. Compliance
with Laws. Seller represents and warrants that: (a) the
Products have been or shall be produced, packaged, tagged, labeled, packed,
and
shipped in compliance with the applicable requirements of federal, state
and
local laws, regulations, ordinances and administrative orders and rules
of the
United States, its territories and all other countries in which the Products
is
produced or delivered; (b) Seller and all of its affiliates, subsidiaries,
subcontractors, suppliers and agents involved in the production or delivery
of
the Products have strictly adhered, and shall continue, throughout the
term of
any and all agreements to which Seller is a party, to strictly adhere,
to all
applicable federal, state and local laws, regulations and prohibitions
of the
United States, its territories and all countries in which the Products
is
produced or delivered with respect to the operation of their production
facilities and their other business and labor practices, including, without
limitation, all laws, regulations and prohibitions governing the working
conditions, wages, hours and minimum age of the work force; and (c) the
Products have not been and shall not be produced or manufactured, in whole
or in
part, by child labor or by convict or forced labor. Seller shall
provide Buyer with any guaranty of compliance with the foregoing in such
form as
Buyer may designate with respect to any Products.
3.11. Anti-Dumping. Supplier
represents and warrants that all sales of Products to Buyer shall be made
at no
less than fair value under the United States antidumping law and that no
government has provided a countervailable subsidy for the Products actionable
under U.S. law. Supplier shall indemnify Buyer for (I) all
antidumping and/or countervailing duties imposed on all the Products that
is
sold prior to the date of publication of the International Trade
Administration's preliminary determination of sales at less than fair value
or
prior to the existence of countervailable subsidies and exported before
the date
of publication of the International Trade Administration's final determination
of sales at less than fair value or the existence of countervailable subsidies
and (II) any expenses (including reasonable attorneys' fees) and administrative
costs incurred by Buyer in its participation in any United States antidumping
or
countervailable duty proceeding involving any Products.
4. Confidential
Information; Intellectual Property.
4.1. Confidential
Information.
a. “Confidential
Information” means any information, regardless of form, related to either
party’s business, operations, products, development, research, or know-how,
which is not yet part of the public domain, whether such information has
been
disclosed or discovered prior to or during the term of this
Agreement. However, Confidential Information does not include
information which: (1) was in possession of the receiving party, as
evidenced by written records, prior to receiving it from the disclosing
party;
or (2) is or becomes legally part of the public domain by acts other than
those of the receiving party after receiving it from the disclosing party;
(3) is or becomes legally available to the receiving party from a third
party who did not acquire the information from the disclosing party under
obligation of confidentiality; or (4) is required to be disclosed by law or
regulation.
b. The
receiving party agrees that it will (1) treat the Confidential Information
as confidential and proprietary; (2) disclose the Confidential Information
only to those of receiving party’s employees and agents who have a need to know
such information and ensure that those people treat the Confidential Information
in accordance with this Agreement; (3) not divulge, in whole or in part,
the Confidential Information to any other third party without the prior
written
consent of the disclosing party; and (4) limit use of the Confidential
Information consistent with the purposes contemplated by this
Agreement.
c. Neither
party shall disclose any information concerning this Agreement, the identity
of
the parties, or the relationship between the parties without the prior
written
approval of an authorized representative of the other party.
4.2. Tangible
Property. All tangible property (other than the Products)
provided by Buyer or Seller (each an “Originating Party”) to the other party in
connection with this Agreement shall remain the exclusive property of the
Originating Party, and shall be returned to the Originating Party immediately
upon conclusion of this Agreement, or as otherwise request by the Originating
Party; provided, however, that Buyer shall own all tangible property (including,
without limitation, all tools, dies, molds and patterns) paid for by
Buyer. Each party shall safely store the tangible property of the
other party separately from its own property, shall plainly identify such
property as the other party’s property and shall not use, in any other manner
whatsoever, such property except in the performance of its obligations
under
this Agreement.
4.3. Patents,
Inventions and Copyrights. All inventions, improvements, or
discoveries conceived or made by Seller, based at least in part on Buyer’s
Confidential Information, shall be the exclusive property of Buyer, and
Seller
shall cooperate in assigning, and hereby does assign, all right, title,
and
interest therein to Buyer. All copyrightable works developed by
Seller, either alone or with others, under this Agreement are “works made for
hire” and are hereby assigned to and shall belong exclusively to Buyer, and any
and all copyright rights to such works, including the right to copy or
reproduce
the works, create further derivative works, file for copyright protection,
and
renew such rights, are hereby assigned to, and shall be the exclusive property
of, Buyer.
5. Insurance;
Indemnification and Limitation of Liability.
5.1. Insurance. Buyer
will require product liability insurance in the amount of $1,000,000 per
occurrence with a $2,000,000 umbrella with Buyer (U.S. Auto Parts
Network, Inc. and affiliates) named as additional
insured. Seller shall obtain and maintain, at its expense, a policy
or policies of commercial general liability insurance covering liabilities
relating to the Products, including, but not limited to, products and completed
operations, with a broad form Seller's endorsement naming Buyer as the
additional insured, in those amounts and with such companies as set forth
in the
Seller Information Guide and containing such other provisions satisfactory
to
Buyer. All such policies shall provide that the coverage thereunder
shall not be terminated without at least thirty (30) days prior written
notice
to Buyer. Certificates of insurance evidencing such coverage shall be
submitted in advance of or concurrent with the execution of this Agreement
by
Seller and upon each policy renewal. Approval of any of Seller's
insurance policies by Buyer shall not relieve Seller of any obligations
contained herein, including, without limitation, Seller's indemnity obligations
under Section 5.2 below, and claims in excess of Seller’s policy
limits. If at any time Seller does not provide Buyer with the
certificates of insurance required hereunder or if, in Buyers’ opinion, such
policies do not provide adequate protection for Buyer and Seller does not
furnish evidence of acceptable coverage within fifteen (15) days after
Buyer so
notifies Seller, Buyer shall have the right to withhold making any payment
which
may be outstanding under this Agreement until evidence of acceptable coverage
is
provided.
5.2. Indemnification.
a. Seller
shall indemnify, defend, and hold harmless BUYER, its affiliates and its
subsidiaries and its and their respective present and former directors,
officers, employees, representatives, licensees, distributors, agents,
dealers,
customers, independent contractors, and any person directly or indirectly
involved in the distribution or sale of the Products (each an
“Indemnified Party” and collectively, the "Indemnified Parties") from and
against any and all damages, liabilities, losses, costs and expenses (including
fees of attorneys and expert witnesses) incurred by any Indemnified Party
in any
claim, demand, action, lawsuit or proceeding, arising out of or in any
way
relating to any of the following (collectively, the “Claims”):
(1) infringement,
misuse, dilution, misappropriation, or other violation of any Intellectual
Property Right of a third party in any way relating to or affecting the
Products
for their intended use either as standalone products or in combination
with
other products;
(2) death
of
or injury to any person, damage to any property, or any other damage or
loss, by
whomsoever suffered, resulting or claimed to result in whole or in part
from any
latent or patent defect in the Products, including, without limitation
improper
construction, installation, repair, display, service or design of the Products,
failure of the Products to comply with any specification or samples or
with any
express or implied warranties of Seller, or any claim of negligent and/or
strict
liability in tort relating to the Products;
(3) any
violation of applicable laws and regulations by Seller (or its affiliates,
subsidiaries, subcontractors, suppliers, or representatives) in the manufacture,
possession, use or sale of the Products;
(4) the
packaging, tagging, labeling, packing, shipping, and/ or delivery of the
Products;
(5) failure
to warn or to provide adequate warnings and/or instructions in the use,
assembly, service or installation of the Products;
(6) the
packaging, labeling or advertising claims made by Seller;
(7) the
omission or commission of any act, lawful or unlawful, by Seller or its
affiliates and/or their respective directors, officers or personnel, whether
or
not such act is within the scope of the authority or employment of such
persons,
including any violation of applicable laws and regulations;
(8) breach
of
any other representations, warranties or covenants of Seller set forth
in this
Agreement; or
(9) the
assertion by a third party of a security interest, lien or other legal
interest
created by a factoring arrangement in any amount due Seller under an agreement
to which Seller is a party.
b. Seller’s
obligations to Buyer under this Section 5.2 are conditioned upon Buyer
(1) promptly providing notice to Seller of any Claim; (2) permitting
Seller’s counsel satisfactory to Buyer to assume the responsibility for the
defense of such Claim; and (3) assisting Seller, at its expense, in defense
of such Claim. No delay on the part of Buyer in notifying Seller of
the Claim shall relieve Seller from any obligation hereunder unless (and
to the
extent) Seller is materially prejudiced thereby. Seller shall not
compromise or settle any such Claim without Buyer’s prior
consent. Buyer may, at its election and at any time, take control of
the defense and investigation of said Claim and retain counsel and other
consultants, investigators and experts of its own choice to manage and
defend
any such Claim, at the cost and expense of Seller.
5.3. Limitation
of Liability. IN NO EVENT SHALL BUYER BE LIABLE TO SELLER,
DIRECTLY OR INDIRECTLY, FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL
OR
EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS,
LOSS OF BUSINESS OPPORTUNITIES, GOODWILL, USE, DATA OR OTHER INTANGIBLE
LOSSES
(EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING
FROM OR IN CONNECTION WITH THIS AGREEMENT.
6. Term;
Termination of Agreement. The initial term of this Agreement
shall commence on the Effective Date and last for a period of time set
forth in
the Ordering Information and shall automatically renew for twelve (12)
month
renewal periods thereafter, unless Buyer delivers written notice of termination
at least thirty (30) days prior to the end of the then current
term. Either party may terminate this Agreement with written notice
if the other party fails to cure its material breach of this Agreement
within
thirty (30) days of its receipt of written notice from the other party
of such
breach. Either party may immediately terminate the Agreement, and
cancel without liability any outstanding purchase order, by giving written
notice to the other party if the other party is insolvent or makes an assignment
for the benefit of creditors. Upon any expiration of the initial term
or any renewal term of this Agreement, Buyer may, at their option, continue
to
purchase Products under the same terms as set forth in this Agreement until
six
(6) months after the expiration date, provided that the foregoing supply
obligations shall not apply to any Product(s) that has been discontinued
as
described in Section 1.9. All obligations which are by their
nature continuing, including, without limitation, the obligations contained
in
Sections 3.8, 3.9, 4, 5, 6, 7 and 8 shall survive the expiration and/or
termination of this Agreement.
7. Remedies;
Dispute Resolution. Termination of this Agreement, or the
exercise of any other remedy, shall not be deemed to be an exclusive remedy,
and
shall be in addition to any other remedies available at law or in
equity. Upon termination or expiration of this Agreement, Seller
shall, at Buyer’s option, be obligated to fulfill any open purchase
orders. In no event shall Buyer be required to purchase any Product
after any termination of this Agreement due to Seller’s breach of this
Agreement. Seller consents to the personal and exclusive jurisdiction
of the courts located within the county of Los Angeles, California for
the
resolution of any claim or dispute arising under or in connection with
the
Agreement. The prevailing party in any dispute hereunder is entitled
to recover reasonable legal fees and adjudication costs. No failure
or delay to enforce a provision shall be deemed a waiver thereof.
8. Other
Representations and Warranties. Each party hereby represents and
warrants to the other party that: (a) the execution and delivery of and
performance under this Agreement by such party does not, and will not,
conflict
with or violate any other agreement or obligations with third parties or
any
restrictions of any kind or any law to which it is bound or subject; and
(b) it has the unrestricted right to disclose any information it submits to
the other party, free of all claims of third parties, and that such disclosures
do not breach or conflict with any confidentiality provisions of any agreement
to which it is a party.
9. Miscellaneous.
9.1. Independent
Contractor. Seller is an independent contractor of Buyer, and
neither party has the power to bind the other.
9.2. Assignment. Seller
shall not assign this Agreement or its obligations hereunder to any third
party,
whether voluntarily or involuntarily, without the express written consent
of
Buyer. Buyer will be permitted to assign this Agreement without the
consent of Seller to any entity who succeeds to Buyer by way of a merger,
consolidation, reorganization or sale of all or substantially all of its
assets.
9.3. Notices. All
requests, approvals, consents and notices must be in writing and will be
effective as of the date sent and, unless otherwise specified in this Agreement,
shall be sent as follows: (a) certified mail - return receipt requested;
(b) a nationally recognized overnight delivery service that guarantees
overnight delivery and requires the signature of recipient; or
(c) facsimile, transmission confirmed, to the addresses and fax numbers
indicated in this Agreement.
9.4. Governing
Law; Entire Agreement. This Agreement: (a) is
governed by the laws of California, without reference to its principles
of
conflicts of laws; (b) together with Exhibit A and B is the entire and
exclusive set of terms and conditions for transactions made with respect
to the
Products; (c) may only be modified by a writing signed by both
parties.
9.5. Severability;
Remedies; Waiver. In the event that any provision contained in
this Agreement shall be held to be invalid, illegal or unenforceable in
any
respect, the validity, legality and enforceability of the remaining provisions
contained herein shall not in any way be affected or impaired
thereby. The remedies contained herein are cumulative and in addition
to any other remedies at law or in equity. Buyer’s failure to
enforce, or waiver of a breach of, any provision of this Agreement shall
not
constitute a waiver of any other breach hereof.
9.6. Force
Majeure. If a party’s performance is delayed because of war or
similar unrest, fire, act of God or other similar cause that is beyond
its
control and which such party could not have reasonably prevented, such
delay in
performance shall not be considered a breach of this Agreement; provided
however
that if such delay continues for thirty (30) days or more, then: (a) Buyer
may upon notice cancel all or any portion of its unfilled orders; and
(b) Buyer may immediately terminate this Agreement.
9.7. Set-off. Buyer
and Seller acknowledge and agree that Buyer’s monetary obligations to Seller
under this Agreement shall at all times be net of the indemnity obligations
under Section 5.2 and any other monetary obligations owing by Seller to
Buyer
hereunder (collectively, "Seller's Monetary Obligations") and that any
payment
or advance made by Buyer to Seller hereunder while any Seller's Monetary
Obligations are outstanding shall be deemed to be an overpayment to Seller
to
the extent of such outstanding Seller's Monetary Obligations and shall
be
subject to recoupment and/or set-off by Buyer. Without limiting the
foregoing, Buyer shall have the right, at all times, to deduct any Seller's
Monetary Obligations from any amounts owed to Seller by Buyer, and to pay
only
the net sum due, if any. Any Seller's Monetary Obligations that
remain outstanding after any exercise by Buyer of its recoupment and/or
set-off
rights shall be paid by Seller promptly upon demand by Buyer.