Unless otherwise specifically and explicitly agreed to in writing by Seller, these Terms and Conditions of Sale (these “Terms”) shall apply to any and all orders placed by Buyer for any of Seller’s products or services (the “Product(s)”), whether or not such order is subject to a signed purchase order or other agreement between Buyer and Seller. “Buyer” means the individual or entity identified on a purchase order (as defined below), or if different, on Seller’s quote. “Seller” means Specialty Composites Group, LLC d/b/a ArmorCore and d/b/a Waco Composites, or the subsidiary, division or affiliated entity of Specialty Composites Group, LLC d/b/a ArmorCore and d/b/a Waco Composites identified on Seller’s quote or order confirmation.
1. ACCEPTANCE AND CONTROLLING TERMS.
1.1 Any purchase order, which includes email order requests or any written requests (collectively, “Purchase Order” or “Purchase Orders”), submitted by Buyer to Seller shall be deemed to be an irrevocable offer by Buyer to purchase the Products described in such Purchase Order. All Purchase Orders received from Buyer are subject to acceptance by Seller and Seller reserves the right, in its sole and absolute discretion, not to accept any Purchase Order, including any Purchase Order issued in connection with a quote previously provided by Seller. Acceptance of any Purchase Order by Seller is subject to the availability of Products and the ability of Seller to deliver such Products. Seller’s acceptance of a Purchase Order shall be evidenced by (i) delivery of a Purchase Order confirmation to Buyer; or (ii) Seller’s commencement of the work necessary to provide the Products to Buyer in fulfillment of the Purchase Order. It is Buyer’s responsibility to carefully review the Purchase Order confirmation received from Seller and the attached drawings (if applicable) for errors, omissions and/or discrepancies, and to advise Seller in writing of any such errors in the Purchase Order confirmation within five (5) days of Buyer’s receipt thereof, and failure to timely notify Seller of any errors, omissions and/or discrepancies within this five (5) day period of time shall constitute Buyer’s irrevocable approval of the Purchase Order confirmation. Buyer’s approval of the Purchase Order confirmation constitutes Buyer’s acceptance thereof, as well as Buyer’s assumption of full responsibility for any errors, omissions, discrepancies and legal compliance in this document and the Purchase Order confirmation. Seller accepts no liability for any errors, omissions or discrepancies overlooked once the Purchase Order confirmation has been approved. Any changes to a Purchase Order requested by Buyer after Buyer’s approval of the Purchase Order confirmation are subject to additional charges, including but not limited to, any additional costs incurred by Seller.
1.2 These Terms shall govern all Purchase Orders and quotes for Products, and Seller’s acceptance of any Purchase Order submitted by Buyer is conditional on Buyer’s acceptance of these Terms. Seller specifically rejects, and Buyer specifically disclaims, all provisions, terms or conditions in Buyer’s Purchase Order, on its website(s), or in any other Buyer emails, forms or documents (collectively, “Buyer Terms”), with all such Buyer Terms being null, void and of no force or effect. Seller’s failure to object to any Buyer Terms in any communication from Buyer shall not be construed as Seller’s agreement to such Buyer Terms, nor shall it be deemed a waiver of these Terms. If Seller’s Purchase Order confirmation, invoice or other document or electronic transmittal is found to be an acceptance of an offer from Buyer, then such acceptance is expressly made conditional upon Buyer’s assent solely to these Terms, and Buyer’s approval of any Purchase Order confirmation or acceptance of any Products delivered or provided by Seller shall be deemed to constitute such assent by Buyer. If Seller’s Purchase Order confirmation, invoice, sales order form, credit application, email or other document or electronic transmittal constitutes an offer, then Buyer’s acceptance of such offer is expressly subject to these Terms.
2. PRICES. Unless otherwise announced in writing by Seller, or upon notice from Seller to Buyer, prices for Products specified by Seller in a formal quote shall remain in effect for a period of thirty (30) days from the date such prices are quoted by Seller in writing. After the aforementioned thirty (30) day period has expired, all prices for Products are subject to change without notice. Seller reserves the right to invoice Buyer at the prices in effect on the date of shipment, regardless of any prior quote and regardless of whether notice of such price change was received by Buyer. All prices and other terms are subject to correction for typographical and clerical errors. Prices do not include applicable crating, freight, insurance or installation charges. Seller reserves the right to refuse to make quotations, accept orders or direct shipments to destinations outside the Seller’s regular selling area. Prices listed in the Purchase Order include all sales tax, as listed in the Purchase Order.
3. PAYMENT TERMS. If required by Seller, Buyer shall remit a deposit in the amount specified by the Seller upon Buyer’s placement of the order. After 48 hours of Seller’s receipt of the deposit, the deposit will be NON-REFUNDABLE. Purchase Orders received without a deposit are generally held from production pending the receipt of the payment. Unless different payment terms have been extended to Buyer in writing, payment of the balance is due upon completion of the order, prior to shipping. Seller will send a notification to Buyer that the order is complete, together with an invoice noting balance of the purchase price due upon receipt, and, Buyer shall remit payment of the purchase price balance to Seller within 7 days of the date of the invoice. Seller in its sole discretion may assess 18% interest for all overdue amounts beginning on the 31st day after the date of the invoice. Further, Seller may place a hold on any order if Buyer is more than 7 days overdue in paying any amounts due in connection with an order. The payment remittance address and payee will be listed on the invoice. For all orders completed and not approved by Buyer for release, Seller in its sole discretion may assess a per week storage fee until such time as the Buyer approves release of the Products and transports the Products from the Seller’s facility. If any amount due Seller is collected by or through a collection agency or attorney, Seller shall be entitled to recover all costs of collection, including, without limitation, attorney’s fees. In the case of an apparent discrepancy in a line item charge, Buyer is obligated to advise Seller’s customer service team in writing of the nature of the claimed discrepancy within five (5) days of Buyer’s receipt of the invoice. This includes all requests for proof of delivery. A claim of discrepancy shall not serve to relieve Buyer of its absolute obligation to pay the remaining balance of the invoice in accordance with the terms of payment set forth herein. Seller, after review of any alleged discrepancy by Buyer, shall have the sole and absolute discretion to resolve the discrepancy, and Buyer expressly agrees to abide by Seller’s decision. If Buyer utilizes a credit card for payment of any amounts due under a Purchase Order, Seller shall have the right in its sole discretion to charge an additional credit card processing fee. Further, Seller may charge additional transaction fees related to Buyer’s remittance of payment to Seller in Seller’s sole discretion.
4. DELIVERY AND RISK OF LOSS.
4.1 BUYER ARRANGES FREIGHT. If the Purchase requires Buyer to arrange freight, Products shall be shipped FOB Seller’s manufacturing facility or distribution center, such that risk of loss and title of Products shall pass to Buyer upon delivery to the designated carrier. Seller’s crating costs related to preparation of the Products for transport shall be added to the amount invoiced to Buyer prior to shipping.
4.2 SELLER ARRANGES FREIGHT. If the Purchase Order requires Seller to arrange freight, the estimated freight charges for shipment of all Products shall be prepaid by Seller and added to the amount invoiced to Buyer. Any actual freight charges in excess of the estimated freight charges shall be paid by the Buyer. Seller reserves the right to select the carrier, routing and method of transportation utilizing the least expensive surface route within the contiguous United States. Buyer shall be responsible for all charges for transportation specified utilizing a more expensive means of transportation such as dedicated trucks, and any other premium services. Multiple deliveries for released portions of orders are routed considering the shortest length of haul. Acceptance of a specified routing does not constitute a guarantee of ship date, transit time or arrival date. Seller reserves the right to ship all prepaid orders in one complete shipment. Partial shipments may be made at Seller’s discretion. Seller shall not be responsible for any cartage or storage charges at destination. Buyer shall pay any detention, storage, handling or auxiliary charges assessed by carriers or warehousemen resulting from Buyer’s requirements for special service or Buyer’s failure to accept delivery in a timely manner. Seller’s responsibility for delivery ceases when the transportation company receives shipment in good condition. Claims for loss or damage must be reported directly to the courier/driver and carrier. Seller’s willingness to assist the Buyer with such claims does not indicate liability on the part of the Seller for the claim or replacement of the Products. All other charges and services provided by the carrier at a consignee’s request including but not limited to redelivery or re-consignment are the responsibility of the Buyer. Buyer’s requests for deferment on shipping must be approved by Seller in writing and any such orders may be subject to revised pricing.
5. PERFORMANCE. Seller will use reasonable efforts to meet shipment or delivery dates specified by Seller or Buyer, but Buyer acknowledges and agrees that such dates are estimates only and are not a firm commitment. Time is not of the essence with respect to the transactions covered by these Terms, except with respect to Buyer’s obligation to timely make all related payments. Delivery dates and lead times are ESTIMATES ONLY, are based on current production schedules at the time of the Purchase Order, and are subject to change without prior notice. Estimated lead times may be longer for certain Products. Seller shall not be responsible for any delays in production. Seller shall not be liable for any costs related to late deliveries. Seller shall not be liable for any delay in shipping or performance or non-delivery for any reason, including but not limited to, any delay or non-delivery caused directly or indirectly by a Force Majeure Event (as defined in Section 13). Buyer agrees that any delay in delivery or failure to deliver or perform any part of these Terms shall not be grounds for Buyer to terminate or refuse to comply with any provisions hereof and no claim or penalty shall be effective against Seller for such delay. SELLER SHALL NOT BE RESPONSIBLE FOR ANY DELAY CAUSED BY BUYER’S FAILURE TO TIMELY PROVIDE PERTINENT INFORMATION REQUIRED FOR SELLER TO COMPLETE ITS OBLIGATIONS UNDER AN ORDER. In addition, all performance dates, timetables and project milestones may, at Seller’s discretion, automatically be extended, day for day, for each day of delay in the completion of any milestone, inspection or approval resulting from any act, omission or delay (including, without limitation, any delay in submitting any required information) of Buyer or any of Buyer’s other contractors, subcontractors, customers or suppliers, or resulting from any other delay not caused by Seller.
6. LIMITED WARRANTY. Products are sold with a limited warranty against manufacturer defects in materials and workmanship for a period of 18 months from the delivery date or one (1) year from the date of placement into service, whichever comes first. Seller reserves the right to repair or replace defective Products at its sole discretion. This limited warranty does not extend to other materials supplied by the Buyer or damage caused by shipping, accident, abuse, misuse, negligence, cleaning, or normal wear and tear. This warranty applies to the original Buyer only and is not transferrable. All other warranties express or implied are excluded. Seller reserves the right to modify its limited warranty at any time in its sole discretion. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, SELLER PROVIDES THE PRODUCTS AS-IS AND MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, AND HEREBY SPECIFICALLY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, RELATING DIRECTLY OR INDIRECTLY TO THE PRODUCTS, WHETHER ORAL, WRITTEN OR ARISING BY COURSE OF DEALING OR USAGE OF TRADE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SELLER OR ANY EMPLOYEE, AGENT, DISTRIBUTOR OR OTHER SUPPLIER OF SELLER’S PRODUCTS SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THE EXPRESS WARRANTY SET FORTH ABOVE. NO EMPLOYEE, AGENT, DISTRIBUTOR OR OTHER SUPPLIER OF SELLER’S PRODUCTS HAS THE AUTHORITY TO MODIFY OR AMEND THE EXPRESS WARRANTIES SET FORTH ABOVE WITHOUT EXPRESS WRITTEN AUTHORIZATION FROM SELLER.
7. LIMITATION OF LIABILITY. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, MULTIPLE OR PUNITIVE DAMAGES, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER AS THE RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER THEORY, INCLUDING WITHOUT LIMITATION LABOR OR EQUIPMENT REQUIRED TO REMOVE AND/OR REINSTALL ORIGINAL OR REPLACEMENT PARTS, LOSS OF TIME, PROFITS OR REVENUES, LACK OR LOSS OF PRODUCTIVITY, LOSS OF USE OF THE PRODUCTS OR ANY ASSOCIATED EQUIPMENT INTEREST CHARGES OR COST OF CAPITAL, COST OF SUBSTITUTE EQUIPMENT, FACILITIES, SYSTEMS, SERVICES OR DOWNTIME COSTS, DAMAGE TO OR LOSS OF PROPERTY OR EQUIPMENT, ANY INCONVENIENCE, COST OR DAMAGE ARISING OUT OF ANY DELAY IN PERFORMING, FAILURE TO PERFORM OR OTHER BREACH OF THE WARRANTY SET FORTH IN SECTION 8 OR OBLIGATIONS UNDER SUCH WARRANTY, OR CLAIMS OF THIRD PARTIES AGAINST BUYER, ARISING OUT OF OR IN CONNECTION WITH THE SALE, INSTALLATION, USE OF, INABILITY TO USE, OR THE REPAIR OR REPLACEMENT OF THE PRODUCTS SOLD PURSUANT TO THESE TERMS. IN NO EVENT SHALL SELLER’S TOTAL LIABILITY IN RESPECT OF ANY AND ALL CLAIMS OF ANY KIND WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE ARISING OUT OF OR IN CONNECTION WITH, OR RESULTING FROM SELLER’S SALE, DELIVERY, RESALE, REPAIR, REPLACEMENT OR FURNISHING OF ANY PRODUCTS, INCLUDING PERFORMANCE OR BREACH OF THE WARRANTY SET FORTH IN SECTION 6 OF THESE TERMS, EXCEED THE PURCHASE PRICE ALLOCABLE TO THE GOOD(S) THAT GIVE RISE TO THE CLAIM, AND ANY AND ALL SUCH LIABILITY SHALL TERMINATE UPON THE EXPIRATION OF THE APPLICABLE WARRANTY PERIOD FOR SUCH GOOD(S). BUYER IS WHOLLY RESPONSIBLE FOR OBTAINING A QUALIFIED INSTALLATION PROFESSIONAL TO INSTALL THE PRODUCTS. SELLER EXPRESSLY DISCLAIMS ANY OBLIGATION AND/OR LIABILITY ARISING FROM, RELATING TO OR IN CONNECTION WITH THE INSTALLATION OF PRODUCTS.
8. CANCELLATIONS AND RETURNS. Buyer must provide Seller with a written request for any cancellation. Seller will attempt to accommodate requests for cancellations but cannot guarantee stoppage of shipment for Products. If an order for a stock item (as determined by Seller in its sole discretion) is cancelled, Seller will assess no cancellation fee, even if production has commenced with respect to such order. If an order for a custom item (as determined by Seller in its sole discretion) is cancelled, Buyer is liable for the full amount of order if Seller receives the cancellation request after production has commenced with respect to such custom item. If an order for a custom item is cancelled prior to commencement of production, Buyer will not be assessed a cancellation fee. Subject to Section 9, Seller will not accept return of any custom item. Subject to Seller’s assessment of a 50% restocking fee and Seller’s inspection of the returned stock item, Seller will accept return of stock items if the Buyer’s written return request is received by Seller within 90 days of the purchase date. Buyer is responsible for all shipping costs related to any returns.
9. CLAIMS. All claims for workmanship defects, shortages and errors must be made in writing accompanied by photographs of such defects and Product serial number(s) within five (5) days after Buyer’s receipt of the Products. Payments will not be made for unauthorized repairs. Failure to make a claim within this period of time constitutes acceptance of the Products and a waiver of claims. All Products are inspected before shipping. All Products are signed for by the freight company, stating that the Products have been picked up in good condition. Buyer and third party shippers have sole responsibility for any damage, loss or shortages incurred during transit. Buyers or their receiving warehouses must inspect the Products upon arrival and make claims for any damage, loss or shortages directly to the carrier. Seller is not responsible for any freight-related claims, but may assist the Buyer in this process at Seller’s sole discretion. Any acceptance by Seller of Product returns due to defects is subject to Seller’s verification of: (1) any defect; and (2) Product serial numbers. Seller may reject any Product return if Buyer fails to strictly comply with the requirements of this Section 9.
10. CHANGES IN PRODUCT DESIGN OR MANUFACTURE. Seller shall have the right in its sole discretion to change, discontinue or modify the production, processes, dimensions and materials of any of its Products, and to substitute material equal to or superior to that originally specified.
11. CONFIDENTIALITY. All pricing, drawings, plans, disclosures, specifications, or technical or business information furnished at any time to Buyer by Seller shall remain the sole property of Seller. Buyer shall hold all such information in strict confidence, shall not use or divulge to any third person or entity any such confidential information, and any and all copies of such confidential information shall be returned to Seller promptly upon Seller’s request.
12. INTELLECTUAL PROPERTY RIGHTS. Intellectual property rights (whether arising under patent, trademark, copyright laws or otherwise) to all improvements embodied in designs, tools, patterns, drawings, information and Products supplied by Seller under these Terms, and exclusive rights for the use and reproduction thereof, and all intellectual property rights arising out of the performance under these Terms shall accrue and be assigned to, and be owned by, Seller, and Buyer shall execute and deliver such instruments as may be necessary to effect or confirm such ownership. Buyer agrees to indemnify, defend and hold Seller harmless from any and all damages, losses, liabilities, claims, costs and expenses (including reasonable attorney’s fees) related to any claim arising from or related to (a) the design, distribution, manufacture, marketing, sale, or use of the Products or (b) a claim that such materials, goods or products furnished to Buyer by Seller, or the use thereof, infringes any claim of any patent, foreign or domestic, in each case to the extent that such claim arises from or is related to (i) Products which are made in accordance with drawings, samples or manufacturing specifications designated by Buyer, (ii) any modifications by Buyer to the Products or any part(s) thereof, or (iii) the combination of the Products or any part(s) thereof with any other parts, equipment, products or goods. Buyer agrees at its own expense to undertake the defense of any suit against Seller brought upon such claim or claims. Alternatively, Seller, at its sole and absolute discretion, may select its own counsel and Buyer shall reimburse Seller for the costs of such representation.
13. FORCE MAJEURE. Seller shall not be responsible for any delay or failure in performance of (a) any part of a quote, (b) these Terms, or (c) delivery of the Products, to the extent such delay or failure is caused by an event beyond the reasonable control of Seller including, without limitation, governmental action, fire, explosion, acts of God, flood, war, terror attack, riot, accident, blockades, insurrections, riots, epidemics, earthquakes, hurricanes, fires, tornadoes, floods, abnormal weather, snow or hail storms, labor trouble, shortages of labor or materials, power-outages, increases in material costs, transportation difficulty, acts of the public enemy, or the existence of any circumstance making performance commercially impractical (each such event, a “Force Majeure Event”).
14. COMPLIANCE WITH LAWS. Buyer shall comply with all laws and regulations applicable to the Products, including, but not limited to, all applicable import and export laws and regulations. If the ultimate destination of the Products is outside of the United States, Buyer shall designate such country on its Purchase Order. In the event that Buyer purchases Products for export without so notifying Seller, Seller reserves the right to cancel the Purchase Order at no penalty or liability for breach in the event that Seller objects to the ultimate destination of the Products, and Buyer will have sole liability therefor and shall defend, indemnify and release Seller for any loss, liability, claim, damage, cost and expense (including without limitation, claims of governmental authorities) arising from the export from the United States or import into another country of such Products, including, without limitation, those related to packaging, labeling, marking, warranty, contents, use, or documentation of the Products. Buyer shall have the sole responsibility for obtaining any required export licenses. Buyer shall not take, and shall not solicit Seller to take, any action which would violate any anti-boycott or any export or import statutes or regulations of the United States governmental authorities and shall indemnify, defend, hold harmless and reimburse Seller for any loss, liability, claim, damage, cost and expense arising out of or related to such actions.
15. REMEDIES FOR BREACH. A “Breach” of these Terms shall occur if Buyer (a) fails to pay any amount due on the due date, (b) files a petition in bankruptcy or seeks relief under any bankruptcy, reorganization, insolvency, dissolution, liquidation or similar law of any jurisdiction, (c) becomes unable to pay or suspends payment of its debts as they become due, or if a court issues an order appointing a receiver, custodian or administrator over all or part of Buyer’s assets, or (d) or any of its affiliates breach any agreement with Seller or any of its affiliates. In the event of a Breach, Seller may terminate any outstanding Purchase Order with Buyer or any of its affiliates. In addition, without waiving any other available remedies, Seller may: (i) declare immediately due and payable all sums due and to become due under any outstanding Purchase Order; (ii) stop the design, manufacture, fabrication or shipment of any Products; and (iii) stop performance of any services or the design, manufacture, fabrication or shipment of any products under any other agreement between Buyer or any of its affiliates and Seller or any of its affiliates.
16. ATTORNEY’S FEES. Buyer agrees to pay all reasonable attorney fees and legal costs incurred or paid by Seller in connection with any suit, action or proceeding to collect any amounts owed to Seller under these Terms or any quote, Purchase Order or acknowledgment, subject to these Terms.
17. NO WAIVER. Seller’s waiver of any breach of any provision contained in these Terms shall not serve to waive any other breach by Buyer. Seller’s delay or failure to enforce any of its rights under these Terms shall not be deemed a waiver of such rights.
18. DISPUTE RESOLUTION. These Terms shall be governed by the laws of the State of Texas. If Buyer is incorporated in the United States, any claim or litigation arising out of or relating to the Products shall be brought exclusively in a court of competent jurisdiction in the state district courts of McLennan County, Texas. If Buyer is incorporated outside the United States, any dispute will be resolved by arbitration in Waco, Texas by three arbitrators and under the American Arbitration Association’s International Arbitration Rules. The language of the arbitration will be English.
19. COLLATERAL. In addition to the contractual relationship herein created between the Buyer and Seller, this agreement is further intended by the parties to be a Security Agreement, and as such does hereby create a purchase money security interest in all those certain items of property, equipment and fixtures herein described, which is the Collateral of this Security Agreement. The Collateral is given to secure the payment of the Purchase Order price above described, together with all additions thereto and modification thereof, and all costs and expenses incurred by Seller in the collection of the Purchase Order price, or the enforcement of this Purchase Order and Security Agreement. Buyer further grants Seller, a security interest in and to all proceeds, increases, substitutions, replacements, additions and accession to the Collateral. Buyer agrees that it will pay the agreement price secured hereby in accordance with the terms and provisions hereof, and failure to so pay will be considered default hereunder, giving rise to the remedies hereinafter set forth. Additionally, it shall be considered default hereunder if at any time Seller believes that the prospect of payment of the obligations secured hereby, or the performance of this Purchase Order and Security Agreement is impaired. On the occurrence of any such event of default, and at any time thereafter, Seller may declare all obligations secured hereby to become immediately due and payable and may proceed to enforce payment of the same and exercise any and all the rights and remedies, either at law or equity, to which it may be entitled. Seller may require Buyer to assemble the Collateral and make it available to Seller at any place designated by Seller which is reasonably convenient to both parties. Unless the Collateral is perishable or threatens to decline speedily in value or is of a type customarily sold on a recognized market, Seller will give Buyer reasonable notice of the time and place of any public sale of the Collateral or of the time after which any private sale or any other intended disposition thereof is to be made, the requirements of reasonable notice shall be met if such notice is mailed, postage prepaid, by certified mall, return receipt requested to Buyer’s address as shown above. Expenses of retaking, holding, preparing for sale, or the like, shall include Seller’s reasonable attorneys’ fees and related legal expenses. All terms used herein which are defined in the Uniform Commercial Code of Texas (Texas Business and Commercial Code) shall have the same meaning herein as in said Code.
20. ASSIGNMENT. These Terms are binding upon, and shall inure to the benefit of Buyer, Seller and their successors and permitted assigns. Buyer may not assign all or any portion of its rights or obligations hereunder without the prior written consent of Seller. Seller may assign, delegate or subcontract a Purchase Order or any of its obligations under these Terms, in whole or in part, without Buyer’s consent.
21. ENTIRE AGREEMENT; AMENDMENTS. The entire agreement of Seller and Buyer is expressed exclusively in the terms, covenants and conditions set forth in these Terms and the applicable Purchase Order. No agent, representative or employee of Seller has authority to agree, represent or warrant otherwise, except Seller’s officers, and then only in writing. These Terms supersede all other written or oral agreements between the parties relating to the subject matter hereof. Seller may modify these Terms without notice to the Buyer. Seller and Buyer may modify a Purchase Order only by an express written agreement signed by both parties.
22. RELATIONSHIP OF THE PARTIES. The relationship between the parties is that of independent contractors. Nothing contained in a quote, Buyer’s Purchase Order, these Terms or in any other document or agreement related to the provision of the Products 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. No relationship of exclusivity shall be construed from a quote or these Terms.
23. SEVERABILITY. Any part of these Terms held to be invalid or unenforceable by a tribunal of competent jurisdiction shall be deemed ineffective to the extent thereof without affecting the validity or enforceability of any other part of these Terms.
24. SURVIVAL. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms.
25. GENERAL. Buyer warrants and represents that the individual signing this Purchase Order on behalf of Buyer has authority to enter into this Purchase Order on behalf of Buyer, and that upon execution this Purchase Order shall be binding upon Buyer.
26. CHANGE TO TERMS. Seller may at any time modify, change, revise, or supplement these Terms without notice to the Buyer, and such modifications, changes, revisions, and/or supplements shall be binding on the Buyer as of the date any such modification, change, revision, and/or supplement is made available for review by Buyer.