Terms and Conditions of Sale
KANAFLEX CORPORATION GENERAL TERMS AND CONDITIONS OF SALE [06032026]
1. Entire Agreement . (a) these Terms and Conditions of Sale (“Terms”) contain the entire agreement between Kanaflex Corporation, a Delaware corporation (“Seller”) and the Buyer (“Buyer”) listed on the applicable purchase order (the “Purchase Order”) and their respective affiliates in connection with (i) any and all products and other goods and services sold or supplied under the Purchase Order and (ii) any replacement Products (collectively the “Products”). At the direction of Seller, Buyer shall use the form of Purchase Order designated by Seller. (b) The Purchase Order as accepted hereunder supersedes all prior communications with respect to the Order, and if accepted by Sell er will contain the entire agreement of Buyer and Seller with respect to the Order. No term or condition of the Order may be terminated, modified, rescinded or waived except by a writing signed by an authorized representative of Seller. THE PROVISIONS OF THESE TERMS SHALL CONTROL IN THE EVENT OF ANY CONFLICT WITH THE PURCHASE ORDER. NO TERMS, STIPULATIONS, CONDITIONS OR STATEMENTS CONTAINED IN ANY PURCHASE ORDER OR RELEASE OR ACCEPTANCE OR MEMORANDA OR COMMUNICATION IN ANY FORM WHICH VARY FROM OR ARE INC ONSISTENT WITH OR SUPPLEMENT OR ARE CONTRARY TO THESE TERMS SHALL BE BINDING ON SELLER EVEN IF THE RELEVANT ORDERS ARE ACCEPTED OR SHIPPED BY SELLER. No failure by a party to object to any such provisions shall be deemed a waiver of its rights hereunder. No acceptance or acquiescence in a course of performance, no course of prior dealings and no usage of trade will be relevant to supplement or explain any of these Terms . No amendment, modification or waiver of any of the terms of these Terms shall be binding unless placed in writing and duly executed by the authorized representatives of each of Seller and Buyer, subject to Section 2 of these Terms (Changes). (c) Buyer has received and acknowledges full knowledge of these Terms and such Terms will be binding on both Seller and Buyer if and when any Product is delivered to and accepted by Buyer, or if Buyer does not deliver a written objection to these Terms within five (5) days from initial receipt of the same by Buyer.
2. Changes. Notwithstanding any contrary provision of these Terms, Seller will have the right in its sole discretion to unilaterally change or supplement these Terms at any time following written notice of such change or supplement to Buyer (“Changes”). Such written notice shall be effective upon delivery of a notice of such Changes pursuant to the notice provisions of Section 25 (Notices) of these Terms, or ten (10) days after the posting the Changes on the website of Seller at http://www.kanaflex.com, whichever is earlier. The Changes wil l be binding and Buyer will be deemed to have accepted the Changes for any Purchase Order issued by Buyer after the effective date of such Change, or if Buyer does not deliver a written objection to such Change within five (5) days from the effective date of such Change, whichever is earlier. No Change to these Terms will be retroactive unless agreed to in writing by Seller and Buyer.
3. Separate Orders . Each Purchase Order and these Terms as applicable to such Order shall constitute a separate contract and any breach by Seller in relation to any Order shall not entitle Buyer to treat any other Order as terminated.
4. Purchase Order. Buyer shall give a written Purchase Order for the Products in each case at least ten (10) days prior to the requested delivery date. Each Purchase Order will be a firm and irrevocable offer by Buyer to purchase. A Purchase Order becomes a binding contract on these Terms upon acceptance by Seller. The Order shall not be deemed accepted by Seller unless and until the relevant Product units are shipped or supplied by Seller to Buyer; and such act of shipment or supply shall constitute the act of acceptance of the Order. The Purchase Order may be accepted or rejected by Seller in its discret ion in whole or in part. Seller may ship any Order in part, in which case the Order shall be deemed accepted only to the extent of the shipped units. Buyer shall not refuse delivery of any Order shipped in whole or in part by Seller. All delivery dates specified in the Order are estimates only and are subject to change. WITHOUT LIMITING OTHER EXCLUSIONS OR DISCLAIMERS IN THESE TERMS, SELLER SHALL NOT BE LIABLE TO BUYER FOR ANY DAMAGES OR LOSSES OR OTHER LIABILITIES INCURRED AS A RESULT OF ANY NONACCEPTANCE OF ANY ORDER OR ANY DELAYS.
5. Pricing. (a) The Products shall be purchased by Buyer at the prices set forth on the Seller Confidential Price List as issued by Seller from time to time and in effect on the date the Purchase Order is accepted hereunder (“Buyer Price List”). The Buyer Price List is an integral part of the Purchase Order as of the effective date shown thereon and shall supersede all prior price lists. Notwithstanding the foregoing, all prices set forth in the Buyer Price List are quota tions only; and Seller reserves the right to increase or decrease prices at any time with or without prior notice; provided that no change in price shall apply to Product units which have been shipped or supplied to Buyer prior to the effective date of such change. (b) Buyer prices do not include and Buyer shall be solely responsible for all shipping costs, insurance, sales or use taxes, GST, VAT and all other taxes or
governmental duties or charges on any sale or transfer of Products and all comparable c harges (“Charges”) . Freight is covered by the seller when the order meet s prepaid threshold set out by the seller. Prepaid freight levels are subject to change and can be adjusted without notice. All shipping costs for non-prepaid orders will be billed directly to Buyer by the common carrier, if applicable. Prior to any shipment under the Purchase Order, Buyer shall provide Seller with any written resale or exemption tax certificate acceptable to Seller, if applicable and if an effective tax certificate is then not on file with Seller for Buyer.
6. Payments. Seller shall issue an invoice for each Purchase Order to Buyer (“Invoice”). Payment for the full amount of each Invoice shall be made by Buyer to Seller in the currency designated in the Invoice on or before the due date stated in the Invoice and shall not be reduced by any tax withholdings or other deductions or offsets of any kind. Seller will provide bank wire and other instructions for payment in writing from time to time. Without prejudice to other rights or remedies of Seller, all amounts not paid by Buyer when due will bear interest from the due date until payment in full with interest, at the lesser of (i) One Percent (1%) per month or any part thereof or (ii) the maximum interest rate allowed by law.
7. Breach; Termination. (a) Seller or Buyer by written notice to the other party may terminate these Terms and any then outstanding Purchase Orders and shipments and any other future agreements or obligations (if any) to sell or supply or purchase Products (collectively “Commitments”), in t he event that: (i) The other party materially breaches these Terms, and such breach is not cured within thirty (30) days of delivery of written notice to the breaching party or if such breach is incapable of being cured; (ii) Any government al authority hav ing authority over either party requires any provision of these Terms to be revised in such a manner as to cause material adverse consequences to such party; or (iii) The other party becomes bankrupt or insolvent, or is a subject of proceedings for bankruptcy or insolvency as a debtor or for liquidation or dissolution, or ceases to carry on business or becomes unable to pay its debts as they become due. (b) Seller further may terminate these Terms without cause in its sole discretion upon sixty (60) days written notice. (c) In the event of a termination, all outstanding payment obligations or other indebtedness of Buyer to Seller shall be immediately due and payable. Acceptance by Seller of less than the full amount due shall not be a waiver of any of Seller’s rights under these Terms or applicable law. (d) Notwithstanding any contrary provision in these Terms, Seller shall have no obligation to pay any rebate, issue any credit or make any other payment of any kind to Buyer unless Buyer is fully in compliance with its payment and other obligations under these Terms and any other contractual obligation in favor of Seller. In addition, in the event that Buyer fails to make any payment when due, Seller shall have the right to offset any and all outstandi ng payment obligations or other indebtedness of Buyer to Seller against any outstanding payment obligations or other indebtedness that Seller or any of its affiliates may owe Buyer. (e) The termination of these Terms and any Commitments shall be subject t o Section 21 (Survival) hereof in all events.
8. Shipment; Risk of Loss; Title. Shipments not meeting prepaid freight shall be made F.O.B. the principal shipping facilities of Seller within the State of Illinois, or other shipping facilities of Seller w ithin the United States or Canada as designated by Seller from time to time. The act of shipment occurs when the Product units are placed for delivery by Seller to a common carrier for shipment to Buyer. All risk of loss and title to the Product units shall pass to and be borne only by Buyer from and after the act of shipment. Buyer shall be solely responsible for filing any claims for loss or damage with the carrier or any other third party. Risk of loss will not be altered by the actions of either party, whether or not such actions may constitute a breach of these Terms. Seller is under no obligation to obtain insurance for any shipment.
9. Nonconformance. Buyer shall inspect each shipment or supply of Products upon receipt. Buyer shall give Sell er written notice of any claimed nonconformance of any shipment or invoice within ten 24 to 48 hours of receipt; and all other claims shall be deemed waived.
10. Defective Products. (a) Buyer shall give Seller written notice of any claimed defect in any Product unit within thirty (90) days of receipt of the unit by Buyer; and all other claims shall be deemed waived. At its option Seller may repair or replace or repurchase any defe ctive Product unit and shall have no other obligation to Buyer. No returns are permitted without the prior authorization of Seller; and all authorized returns must comply with the then applicable Seller return policies. Buyer shall not return any defecti ve Product unit without the prior authorization of Seller. All determinations concerning alleged defects of Product units shall be made by Seller in its sole judgment and shall be binding on both parties. Seller shall have no
other obligation to Buyer f or any defects in Product units. All claims by Buyer shall be made by written notice to Seller and in all events shall be subject to the provisions and limitations of Section 12 (Indemnification), Section 13 (Warranties and Disclaimers), Section 16 (Limitation of Liabilities) and Section 17 (Limitation of Action) of these Terms, and no offset or deduction from any invoice is permitted.
11. Compliance with Laws. Buyer shall comply with all applicable laws and regulations of any governmental authority in c onnection with its possession or use of any Products in whole or in part, and the possession and use of any such Products in whole or in part by any customer of Buyer or its affiliate.
12. Indemnification. (a) NOTWITHSTANDING ANY CONTRARY PROVISION OF THESE TERMS AND TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, BUYER SHALL DEFEND, INDEMNIFY AND HOLD HARMLESS (COLLECTIVELY “INDEMNIFY” OR “INDEMNIFICATION” OR ANY VARIATION THEREOF) EACH AND ALL OF SELLER AND ITS AFFILIATES AND ITS OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND CONTRACTORS (WITH SELLER, THE “SELLER PERSONS”) FROM AND AGAINST ANY AND ALL CLAIMS, DEMANDS, DAMAGES, LOSSES, LIABILITIES, COSTS, EXPENSES PENALTIES, FINES , SETTLEMENTS AND JUDGMENTS, INCLUDING LEGAL FEES AND LITIGATION COSTS AND EXPENSES (EACH, A “CLAIM”) ARISING OUT OF OR IN CONNECTION WITH ANY ONE OR MORE OF (i) ANY STORAGE, HANDLING, INSTALLATION, ALTERATION, MODIFICATION, RESALE, OR MISUSE OF ANY PRODUC T; (ii) ANY VIOLATION OF APPLICABLE LAW; (iii) ANY OTHER BREACH OR VIOLATION OF ANY PROVISION OF THESE TERMS; AND (iv) ANY PFAS CLAIMS (AS DEFINED IN SECTION 16 OF THESE TERMS (LIMITATION OF LIABILITIES)), IN EACH CASE WHETHER OR NOT DUE TO THE NEGLIGENCE OF ANY SELLER PERSON; PROVIDED THAT THE INDEMNIFICATION OBLIGATIONS OF BUYER UNDER THE FOREGOING CLAUSES (i) THROUGH (iii) OF THIS SUBSECTION (a) SHALL NOT BE APPLICABLE TO THE EXTENT OF (A) ANY ACT OR OMISSION OF SELLER PERSON CONSTITUTING GROSS NEGLIGEN CE OR WILLFUL MISCONDUCT UNDER APPLICABLE LAWS OR (B) CLAIMS FOR DEATH OR PERSONAL INJURY SOLELY CAUSED BY THE NEGLIGENCE OF SELLER OR ANY OTHER SELLER INDEMNITEE. (b) NO PARTY OR OTHER PERSON OR ENTITY SHALL BE ENTITLED TO ANY FORM OF EQUITABLE OR IMPLIED INDEMNIFICATION AT ANY TIME.
13. Warranties and Disclaimers. (a) SELLER REPRESENTS AND WARRANTS TO BUYER THAT THAT AT THE TIME OF DELIVERY (i) SELLER HAS GOOD TITLE TO THE RELEVANT PRODUCT UNITS FREE AND CLEAR OF ALL LIENS, ENCUMBRANCES AND SECURITY INTERESTS; AND (ii) THE PRODUCT COMPLIES IN ALL MATERIAL RESPECTS WITH SELLER’S THEN PUBLISHED SPECIFICATIONS (THE “PRODUCT WARRANTIES”). SELLER EXPRESSLY DISCLAIMS (i) ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS, OR GUARANTEES OF ANY KIND, WHETHER EX PRESS OR IMPLIED, WRITTEN OR ORAL (COLLECTIVELY, “WARRANTIES”), INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES, REPRESENTATIONS OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTORY QUALITY, NONINFRINGEMENT, OR THOSE ARISIN G OUT OFF ANY STATUTE, COURSE OF DEALING OR USAGE OF TRADE, AND (ii) ANY WARRANTIES OF ANY KIND TO THE EXTENT RELATED OR IN CONNECTION WITH ANY PFAS CLAIMS. (b) SELLER FURTHER MAKES NO WARRANTY, REPRESENTATION, CONDITION, OR GUARANTEE OF ANY KIND, EITHER EXPRESS OR IMPLIED OR WRITTEN OR ORAL (ALSO COLLECTIVELY, “WARRANTIES”), IN RESPECT OF ANY TECHNICAL ADVICE FURNISHED OR OTHER RECOMMENDATIONS MADE BY SELLER OR ITS REPRESENTATIVES CONCERNING ANY USE OR APPLICATION OF ANY PRODUCT, AND ALL SUCH ADVICE OR RE COMMENDATIONS ARE PROVIDED “AS IS”. WITHOUT LIMITING AND IN ADDITION TO THE GENERAL DISCLAIMERS ABOVE, SELLER FURTHER EXPRESSLY DISCLAIMS ALL WARRANTIES OF SUFFICIENCY, SUITABILITY, AND ACCURACY AND IN RESPECT OF THE RESULTS TO BE OBTAINED. WITH REGARD TO ANY HANDLING OR INSTALLATION OR USE OF ANY PRODUCT, BUYER ASSUMES FULL RESPONSIBILITY FOR QUALITY CONTROL, TESTING AND DETERMINATION OF SUITABILITY AND SUFFICIENCY OF SUCH PRODUCT FOR ITS INTENDED APPLICATION OR USE. (c) ANY PRODUCT WARRANTY UNDER THESE TERMS SHALL BE VOID IN THE EVENT OF (i) ANY ATTEMPT TO REMEDY OR CORRECT A CLAIMED DEFECT BY BUYER OR ANY THIRD PARTY NOT AUTHORIZED BY SELLER IN WRITING TO PERFORM SUCH WORK, (ii) ANY CONTINUED USE OF ANY DEFECTIVE OR DAMAGED PRODUCT, OR (iii) ANY ALTERN ATIONS OR MODIFICATIONS OR MISUSE OF OR DAMAGE TO ANY PRODUCT BY BUYER OR ANY THIRD PARTY; AND IN SUCH EVENT BUYER SHALL BE DEEMED TO HAVE ACCEPTED THE PRODUCT “AS IS”, WITH NO FURTHER OBLIGATION OF SELLER TO BUYER. (d) ALL WARRANTIES HEREUNDER SHALL BE TO BUYER ONLY AND BUYER SHALL HAVE NO RIGHT OR POWER OR AUTHORITY TO MAKE ANY WARRANTY (WHETHER WRITTEN OR ORAL OR EXPRESS OR IMPLIED TO ANY THIRD PERSON OR ENTITY ON BEHALF OF SELLER OR ANY AFFILIATE.
14. Ownership of Intellectual Property. The parties agree that Seller (and its affiliates, successors, and assigns) is and shall be the sole and exclusive owner of all intellectual property and intellectual property rights in any and all jurisdictions that are applicable to any of the Products now or existing i n the future, including but not limited to patent rights, copyrights, moral rights, trademark and trade dress rights, trade secret rights, design rights, database rights, and all other intangible or industrial rights in and to any of the Products in any jurisdiction (“IP Rights”). No license or other rights in or to any of the IP Rights are granted to Buyer or any affiliate whether by implication, estoppel or otherwise. Neither Buyer or any affiliate or agent of Buyer shall claim or challenge any such in tellectual property ownership rights at any time.
15. No Reverse Engineering or Knock -Offs. None of Buyer or any affiliate or agent or customer shall any time directly or indirectly or in concert with any third party (“Buyer Persons”) (i) modify, disassem ble, reverse engineer or otherwise attempt to discover or copy the design or composition of any part of or any methods or processes for manufacturing of any of the Products or any components or other materials produced or offered for sale by or for Seller or any of its affiliates (collectively “Kanaflex Products”), or assist or permit any other person to do so, or (ii) engage in any efforts to knockoff, counterfeit, pass off or otherwise copy or reproduce any of the Kanaflex Products, in whole or in part. In addition to any other liabilities under these Terms or applicable law, Buyer shall be directly liable for any breach of this Section 15 by any Buyer Person.
16. Limitation of Liabilities. NOTWITHSTANDING ANY CONTRARY PROVISION OF THESE TERMS AND THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW: (a) SUBJECT TO THE OTHER PROVISIONS OF THIS SECTION 16 , THE SOLE AND EXCLUSIVE OBLIGATION AND LIABILITY OF SELLER OR OTHER SELLER PERSON, AND BUYER’S EXCLUSIVE REMEDY, FOR ANY DIRECT LOSSES OR DAMAGES IN ANY MANNER ARISING OUT OR CONNECTED WITH THESE TERMS OR ANY PURCHASE ORDER OR ANY PRODUCT SOLD OR SUPPLIED UNDER THESE TERMS, IS EXPRESSLY LIMITED AT TO THE REPLACEMENT, REPAIR OR REWORK (AS APPLICABLE) OF ANY NONCONFORMING OR DEFECTIVE PRODUCT UNITS, AS DETERMINED BY SELLER, FURTHER SUBJECT TO AND LIMITED BY THE FOLLOWING PROVISIONS OF THIS SECTION AND ANY OTHER OBLIGATIONS OF AND LIMITATIONS ON BUYER SET FORTH IN THESE TERMS, INCLUDING BUT NOT LIMITED TO SECTION 12 (INDEMNIFICATION), SECTION 13 (WARRANTIES AND DISCLAIMERS), SECTION 14 (INTELLECTUAL PROPERTY), AND SECTION 17 (LIMITATION OF ACTION). (b) NOTWITHSTANDING THE FOREGOING OR ANY CONTRARY PROVISION OF THESE TERMS AND TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL SELLER OR O THER SELLER PERSON BE LIABLE TO BUYER, ITS AFFILIATES, AGENTS, CUSTOMERS, OR ANY OTHER PERSONS OR ENTITIES, FOR (i) ANY LOSS OF PROFITS OR REVENUES OR SIMILAR LOSSES, OR (ii) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY LOSSES OR DAMAGES, OR (iii) ANY PFAS CLAIMS (COLLECTIVELY, “EXCLUSIONS”). FOR THESE PURPOSES: “LOSSES OR DAMAGES” MEANS ANY CLAIMS, ACTIONS, CAUSES OF ACTION, LOSSES, LIABILITIES, EXPENSES, COSTS, FINES OR PENALTIES OF ANY KIND OR CHARACTER, INCLUDING BUT NOT LIMITED TO ATTORNEY’S FEES AND LITIGATION EXPENSES AND COSTS. “PFAS CLAIMS” MEANS ANY LOSSES OR DAMAGES CONNECTED IN ANY MANNER OR TO ANY DEGREE TO ANY PERFLUOROALKYL OR POLYFLUOROALKYL SUBSTANCE (PFAS), INCLUDING BUT NOT LIMITED TO PERFLUOROAKYL ACIDS (PF AAS), PERFLUOROALKYL CARBOXYLIC ACIDS (PFCAS), PERFLUOROOCTANOIC ACID (PFOA), PERFLUOROOCTANE SULFONIC ACID (PFOS), PERFLUOROHEPTANOIC ACID (PFHPA), PERFLUORONONANOIC ACID (PFNA), PERFLUOROHEXANESULFONIC ACID (PFHXS), HEXAFLUOROPROPYLENE OXIDE DIMER ACID, GENX, “C8”, “C6”, “ADONA,” PERFLUOROALKANE SULFONYL FLUORIDE (PASF), PERFLUOROBUTANESULFONIC ACID (PFBS), PERFLUOROBUTANOIC ACID (PFBA), PERFLUORODECANOIC ACID (PFDA), POLYTETRAFLUOROETHYLENE (PTFE), PERFLUOROPOLYETHERS (PFPES), PERFLUOROOCTANESULFONYL FLO URIDE (PSOF), FLUOROPOLYMERS, PERFLUORONONANOIC ACID OR AMMONIUM PERFLUOROOCTANOATE, OR ANY ASSOCIATED SALTS, CARBOXCYLATES, ACIDS, ALCOHOLS, PRECURSORS, INTERMEDIATES, TERMINAL DEGRADATION PRODUCTS, RELATED HIGHER HOMOLOGUE CHEMICALS OR BREAKDOWN OR BYPRODUCTS THEREOF. (c) WITHOUT LIMITING THE FOREGOING EXCLUSIONS IN SUBSECTION (b) AND IN ADDITION THERETO, AND NOTWITHSTANDING ANY CONTRARY PROVISION OF THESE TERMS AND TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, IN NO EVENT SHALL THE TOTAL LIABIL ITY OF SELLER AND ANY OTHER SELLER PERSON OR PERSONS ARISING OUT OF OR CONNECTED WITH THESE TERMS OR THE PURCHASE ORDER OR ANY SUBJECT MATTER HEREOF
OR THEREOF OR ANY PRODUCT EXCEED IN THE AGGREGATE THE TOTAL PRICE OF THE PRODUCT UNITS PURCHASED AND PAID FOR BY BUYER FOR WHICH THE SUBJECT LOSSES OR DAMAGES ARE CLAIMED. (d) THE LIMITATIONS AND EXCLUSIONS SET FORTH IN THIS SECTION 16 SHALL APPLY (i) IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION OR CLAIM, INCLUDING BUT NOT LIMITED TO BREACH OF CONTRACT, TO RT (INCLUDING NEGLIGENCE), PRODUCTS OR STRICT LIABILITY, STATUTORY VIOLATION, OR ANY OTHER LEGAL OR EQUITABLE FORM OF ACTION OR DOCTRINE, (ii) EVEN IF THE PARTY OR OTHER PERSON OR ENTITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR SUCH DAMAGES OR LOSSES WERE REASONABLY FORESEEABLE, AND (iii) NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY; PROVIDED HOWEVER THAT A LIMITATION OR EXCLUSION UNDER THIS SECTION 16 MAY NOT BE APPLICABLE IN A SPECIFIC JURISDICTION IN RELATION TO A SPECIFIC CASE OR MATTER BUT ONLY TO THE EXTENT SUCH LIMITATION OR EXCLUSION WOULD BE UNLAWFUL IN SUCH JURISDICTION WHEN APPLIED TO SUCH CASE OR MATTER.
17. Limitation of Actions. SELLER AND BUYER SHALL ATTEMPT TO RESOLVE THROUGH GOOD FAITH NEGOTIATIONS ANY DISPUTE ARISING UNDER OR RELATING TO THESE TERMS BEFORE PROCEEDING TO LITIGATION. IF A DISPUTE CANNOT BE RESOLVED THROUGH NEGOTIATIONS WITHIN A REASONABLE TIME, EITHER PARTY MAY REQUEST NON -BINDING MEDIATION TO BE CONDUCTED IN WILMINGTON, DELAWARE, BY THE JUDICIAL ARBITRATION AND MEDIATION SERVICES/ENDISPUTE (JAMS) OR BY A MEDIATOR APPROVED BY BOTH PARTIES, AND NEITHER PARTY SHALL UNREASONABLY WITHHOLD APPROVAL OF A MEDIATOR PROPOSED BY THE OTHER PARTY IN GOOD FAITH. EACH PARTY SHALL PARTICIPATE IN THE MEDIATION PROCESS IN GOOD FAITH, WITH EACH BEARING ITS OWN EXPENSES AND EQUALLY SHARING THE FEES AND EXPENSES OF THE MEDIATOR. IF THE PARTIES CANNOT RESOLVE A DISPUTE THROUGH GOOD-FAITH NEGOTIATIONS WITHIN 60 DAYS AFTER BEGINNING MEDIATION, THEN THE DISPUTE SHALL BE DETERMINED THROUGH BINDING ARBITRATION CONDUCTED BY THE JAMS IN ACCORDANCE WITH THE THEN-CURRENT JAMS STREAMLINED ARBITRATION RULES & PROCEDURES. THE RESULT OF THE ARBITRATION SHALL BE HELD IN CONFIDENCE BY THE PARTIES, THEIR REPRESENTATIVES , ANY OTHER PARTICIPANTS, AND THE ARBITRATOR. THE ARBITRATION SHALL BE CONDUCTED BY A SINGLE ARBITRATOR SELECTED BY AGREEMENT OF THE PARTIES OR, FAILING SUCH AGREEMENT, APPOINTED IN ACCORDANCE WITH THE JAMS RULES. ANY DEMAND FOR ARBITRATION AND ANY COUNTERCLAIM WILL SPECIFY IN REASONABLE DETAIL THE FACTS AND LEGAL GROUNDS FORMING THE BASIS FOR THE CLAIMANT’S REQUEST FOR RELIEF AND WILL INCLUDE A STATEMENT OF THE TOTAL AMOUNT OF DAMAGES CLAIMED, IF ANY, AND ANY OTHER REMEDY SOUGHT BY THE CLAIMANT. THE ARBITR ATION WILL BE CONDUCTED IN THE ENGLISH LANGUAGE IN VERNON HILLS, ILLINOIS . EACH PARTY WILL BEAR ITS OWN EXPENSES IN THE ARBITRATION AND WILL SHARE EQUALLY THE COSTS OF THE ARBITRATION; PROVIDED, HOWEVER, THAT THE ARBITRATOR MAY, IN THEIR DISCRETION, AWARD REASONABLE COSTS AND FEES TO THE PREVAILING PARTY. THE ARBITRATOR WILL HAVE FULL POWER AND AUTHORITY TO DETERMINE ISSUES OF ARBITRABILITY AND TO INTERPRET OR CONSTRUE THE APPLICABLE PROVISIONS OF THESE TERMS AND TO DETERMINE APPROPRIATE REMEDIES FOR BREACHES HEREOF (INCLUDING INTERIM OR PERMANENT INJUNCTIVE RELIEF); PROVIDED THAT THE ARBITRATOR WILL NOT HAVE ANY RIGHT OR AUTHORITY: (I) IN EXCESS OF THE AUTHORITY OF A COURT HAVING JURISDICTION OVER THE PARTIES AND THE DISPUTE WOULD HAVE ABSENT THIS ARBITRATION AGREEMENT; (II) TO AWARD DAMAGES IN EXCESS OF THE TYPES AND LIMITATION OF DAMAGES FOUND IN THESE TERMS; OR (III) TO MODIFY THE TERMS OF THESE TERMS. THE AWARD OF THE ARBITRATOR WILL BE ISSUED WITHIN 30 DAYS OF THE COMPLET ION OF THE HEARING, SHALL BE IN WRITING, AND SHALL STATE THE REASONING ON WHICH THE AWARD IS BASED. JUDGMENT UPON THE AWARD RENDERED IN THE ARBITRATION MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION. THE PARTIES FURTHER CONSENT TO THE JURISDICTION OF ANY STATE OR FEDERAL COURT WITH SUBJECT MATTER JURISDICTION LOCATED WITHIN A DISTRICT THAT ENCOMPASSES ASSETS OF A PARTY AGAINST WHOM A JUDGMENT (OR AWARD) HAS BEEN RENDERED FOR THE ENFORCEMENT OF THE JUDGMENT (OR AWARD) AGAINST THE ASSETS OF SUCH PARTY NOTWITHSTANDING THE FOREGOING, THE PARTIES ACKNOWLEDGE THAT BUYER’S BREACH OF AN OBLIGATION UNDER THESE TERMS WILL SUBJECT SELLER TO IRREPARABLE AND
CONTINUING INJURY FOR WHICH REMEDIES AT LAW WOULD BE INADEQUATE AND, ACCORDINGLY, SELLER SHALL BE ENTITLED TO TEMPORARY, PRELIMINARY, OR PERMANENT INJUNCTIVE RELIEF, SPECIFIC PERFORMANCE, OR OTHER EQUITABLE RELIEF AS APPROPRIATE. BUYER HEREBY WAIVES ANY BOND REQUIREMENTS FOR OBTAINING EQUITABLE RELIEF. EACH PARTY WILL CONTINUE PERFORMING ITS OBLIGATIONS UNDER THE TERMS WHILE A DISPUTE IS BEING RESOLVED UNLESS AND UNTIL SUCH OBLIGATIONS ARE TERMINATED BY THE TERMINATION OR EXPIRATION THEREOF.
18. Force Majeure . Seller shall not be liable to Buyer for any failure by Seller to perform any obligation arising f rom causes beyond its reasonable control, including but not limited to severe weather, storms, floods, fires, earthquakes, acts of God, epidemics, or pandemics; explosions, accidents, strikes, lockouts or other labor disputes; embargoes, sanctions, acts of war, conflicts, terrorism, riot, or insurrection; inability to obtain raw materials, energy sources, equipment, labor, common carriers, or transportation, at prices and on terms Seller deems practicable from its usual sources of supply; governmental rules or laws or the actions of any applicable governmental authority or court; or other causes outside the reasonable control of Seller, whether or not similar to the foregoing.
19. Assignment. Buyer shall not assign or transfer or delegate (“assign” or “assignment” or any variation) all or any portion of these Terms or any right or obligation under these Terms (whether by merger or consolidation or operation of law or otherwise) without Seller’s prior written consent, which may be withheld in its sole discretion. Any unauthorized assignment shall be null and void. For these purposes any material change of control or ownership shall constitute an assignment. Seller shall have the right to assign these Terms to any of its affiliates or in connection with the sale or transfer of its relevant business without any required consent. Subject to the foregoing restrictions, these Terms shall bind and inure to the benefit of the successors and permitted assigns of the respective parties.
20. Confidentiality. Except to the extent prohibited by applicable law or with the prior written consent of Seller in its sole discretion, Buyer agrees to receive and maintain in confidence any and all trade secrets and other confidential or proprietary information of or relating directly or indirectly to Seller or its affiliates or distributors or customers or users, including but not limited to the Products and any deliverables or other work product disclosed or produced pursuant to these Terms and without regard to the form of s uch information (collectively “Confidential Information”), using the same degree of care which Buyer employs with its own confidential information, but in all events no less than a reasonable standard of care, and Buyer will not disclose to any person or e ntity or make public or authorize the disclosure of any of the Confidential Information, and will not use any of the Confidential Information for any purpose other than the performance of its obligations to Seller under these Terms. Buyer acknowledges and agrees that its failure to comply with the provisions of this Section may cause irreparable harm to Seller which cannot be adequately compensated for in damages, and accordingly that Seller will be entitled to claim, in addition to any other remedies available to it, injunctive and other equitable relief to restrain any anticipated, present or continuing breach of this Section. Any confidential or proprietary information previously disclosed or obtained between the parties shall be deemed to be part of th e Confidential Information hereunder.
21. Survival. Notwithstanding any contrary provision of these Terms, any provisions of these Terms which expressly or by their nature are intended to survive shall survive the termination of these Terms and remain in full force and effect, including but not limited to (a) Section 12 (Indemnification), Section 13 (Warranties and Disclaimers), Section 14 (Ownership of Intellectual Property), Section 15 (No Reverse Engineering or Knock -Offs), Section 16 (Limitation of Liabilities), Section 17 (Limitation of Actions), and Sections 18 through 26 hereof, and (b) all claims or causes of action in existence on the termination date.
22. Independent Contractors. The parties are solely sellers and buyers of Pr oducts. Nothing in these Terms or in the dealings of the parties shall constitute a partnership, joint venture, employment, agency or any similar relationship. No party has the right or power or authority to enter into any agreement or obligation for the other party or otherwise bind the other party to any extent.
23. Applicable Law; Jurisdiction; Attorney’s Fees. (a) These Terms and any Purchase Order and any matter or dispute or controversy arising out of or in connection with these Terms or such Purchase Order or any of the subject matter hereof or thereof (“Dispute”) shall be construed in accordance with and governed by the internal laws of the State of Delaware, without giving effect to conflict of law principles. These Terms and any Order shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
(b) TO THE FULLEST EXTENT NOT PROHIBITED BY APPLICABLE LAW, EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES A NY RIGHT THE PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION OR PROCEEDING AT LAW OR IN EQUITY IN ANY COURT OF COMPETENT JURISDICTION ARISING OUT OF OR IN CONNECTION WITH ANY DISPUTE.
24. Notices. Any notices, documentation, approvals and other communications required or permitted under these (“notices”) shall be in writing in the English language and given to the appropriate party at the following address: With respect to Seller: 800 Woodlands Pkwy, Vernon Hills, IL 60061, USA; fax: 847 -634-6249; email: orderdesk@kanaflex.com With respect to Buyer: At the address and fax number or email address of Buyer then on file with Seller. Notice will be deemed given (i) upon courier delivery to the appropriate address; (ii) one (1) business day after the date of transmission if sent by fax or by electronic mail (with confirmation of transmission); or (iii) three (3) business days after the date of mailing if sent by prepaid United States certified or registered mail. A party may change its address for n otification purposes upon advance written notice to the other party delivered in accordance with this Section.
25. In General. If any provision of these Terms (including but not limited to these Terms) shall be adjudicated to be invalid or unenforceable by a court of competent jurisdiction, it is the intent of the parties that the remaining provisions of these Terms will remain in full force and effect, and the affected provision or portion thereof will be deemed modified so that it is enforceable to the maximum extent permissible to reflect as closely as possible the intentions of the parties as evidenced from the provisions of these Terms. When the context requires, the plural shall include the singular and the singular the plural, and any gender shall include any other gender. The terms “included” or “including” or any variation are not words of exclusion and shall be read to include “without limitation”. No provision hereof shall be interpreted or construed against any party because such party or its legal counsel was the drafter thereof. Section headings are only for the convenience of the parties and are not part of these Terms. Nothing in these Terms shall be construed as creating any direct or beneficial right in or on behalf of any third party. These Terms may be executed and delivered by the parties in one or more counterparts, each of which will be an original, and each of which may be delivered by facsimile, e -mail or other functionally equivalent electronic means of transmission and those counterparts will together constitute one and the same instrument.