|Terms & Conditions - United States|
Biocatalysts, Inc. Standard Terms and Conditions of Sale
1. DEFINITIONS AND INTERPRETATION
1.1 The following terms have the meanings specified or referred to in this Section 1.1:
"Business Day" any calendar day other than a Saturday or Sunday on which banks are open for business in Chicago, IL;
"Buyer" the person(s), firm or company whose order for the Goods and/or services is accepted by the Company;
"Buyer Indemnitees" has the meaning set forth in Section 3.3.2;
"Change in Control" (a) a sale, lease or other transfer of all or substantially all of the assets of the Buyer, (b) a reorganization, merger, or consolidation of the Buyer with or into any other entity, or an acquisition of the Buyer effected by an exchange of outstanding equity ownership interests of the Buyer, or a redemption or repurchase of the outstanding equity ownership interests issued by the Buyer, in which transaction the Buyer's equity interest owners immediately prior to such transaction own immediately after such transaction less than fifty-one percent (51%) of the equity ownership interests of the surviving entity (or its parent), (c) any sale of voting control or other transaction similar to those described in clause (b) above following which the Buyer's equity interest owners (i) no longer have the ability to elect directors (or similar persons) representing a majority of the total votes on the board of directors (or similar governing body) of the Buyer or (ii) no longer have the ability to direct the vote of the majority of the issued and outstanding equity ownership interests, or otherwise or (d) the liquidation, dissolution, shut down, cessation of business, whether voluntary or involuntary or other winding up of the Buyer;
"Company" Biocatalysts, Inc.;
"Confidential Information" non-public business information, ideas, designs, devices, inventions, technology, business plans, reports, documents, customer lists, supplier lists, trade secrets and all other information and techniques acquired, developed or used by the Company relating to its business or its products or services, whether or not in tangible form, that the Company desires to protect and keep secret and confidential, including information from third parties that the Company is obligated to keep secret and confidential;
"Contract" any contract between the Company and the Buyer for the sale and purchase of the Goods entered into in accordance with Section 2;
"Force Majeure" any delay or failure by the Company to perform any or all of its obligations to Buyer to the extent such delay or failure is caused by an event or circumstance that is beyond the Company's reasonable control including, without limitation, strikes, lockouts or other disputes (whether involving the Company's workforce or otherwise), protest, act of God, war, or national emergency, an act of terrorism, civil unrest, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, explosion, flood, storm, epidemic or default of suppliers or subcontractors;
"Goods" any goods or services which the Company supplies to the Buyer (including any of them or any part of them) under a Contract;
"Intellectual Property Rights" any and all trademarks and domain names, original works of authorship and related copyrights, trade secrets, whether or not patentable, designs and inventions and related patents, and similar intangible property in which any person holds proprietary rights, title, interests or protections, however arising, pursuant to the laws of any jurisdiction throughout the world, all applications, registrations, renewals, issues, reissues, extensions, divisions and continuations in connection with any of the foregoing and the goodwill connected with the use of and symbolized by any of the foregoing;
"International Supply Contract" such a contract as is described in section 26(3) of the Unfair Contract Terms Act 1977;
"Liabilities" losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable attorneys' fees and the cost of enforcing any right hereunder;
"Minimum Order Value" the required minimum value of any order by the Buyer for Goods, as communicated to the Buyer by the Company;
"Notice" has the meaning set forth in Section 19;
"Product Data Sheet" a document setting out a general description of the Goods, which may not be relied upon by the Buyer;
"Specification" in relation to the Goods: the technical specifications of such Goods; all preparatory, design and development materials which relate to the Goods; all information of any description which explains the structure, design and development materials which relate to the Goods; all information of any description which explains the structure, design, operation and functionality of the Goods; and all information of any description which relates to the maintenance and/or support of the Goods;
"Support" has the meaning set forth in Section 11.2.1;
"Terms and Conditions" the standard terms and conditions of sale set out in this document, together with any special terms agreed to in writing between the Buyer and the Company as specified on the front of the acknowledgement of order.
1.2 The headings in these Terms and Conditions are for convenience only and will not affect their construction or interpretation.
2.1 Subject to Section 2.6, the Contract will be upon these Terms and Conditions and these Terms and Conditions supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Contract, including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order or similar document, whether or not such document is referred to in the Contract.
2.2 Each order or acceptance of a quotation for Goods will be deemed to be an offer by the Buyer to purchase Goods upon these Terms and Conditions. The Contract is formed when the order is accepted by the Company, by way of a written acknowledgement of order. No contract will come into existence until a written acknowledgement of the order is issued by the Company. Any acceptance by the Company shall be confidential inter alia upon receipt of any official licence or permit which may be required to authorize the purchase, sale or export of the Goods or services or to obtain the supply of any materials.
2.3 Any quotation is valid for a period of 3 months only from its date, unless otherwise specified on the quotation or the Company has not previously withdrawn it.
2.4 The Buyer must ensure that the terms of its order and any applicable Specification are complete and accurate.
2.5 Acceptance of delivery of the Goods will be deemed conclusive evidence of the Buyer's acceptance of these Terms and Conditions.
2.6 Unless altered by the terms of an applicable Contract, these Terms and Conditions may only be amended in writing signed by an executive officer of the Company.
2.7 Unless otherwise agreed there shall be a Minimum Order Value. In the absence of prior agreement, any order below the Minimum Order Value will incur a surcharge at the Company's discretion.
3. THE GOODS AND SPECIFICATION
3.1 The quantity and description of the Goods will be as set out in the acknowledgement of order.
3.2 All Product Data Sheets, samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the Company's catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods represented by or described in them and the Company shall not be liable for any inaccuracies contained therein and they will not form part of the Contract.
3.3 If Goods are made to the Specification, instruction or design supplied by the Buyer or any third party on behalf of the Buyer, then the Buyer:
3.3.1 represents and warrants to the Company the suitability and accuracy of those Specifications, instructions or designs;
3.3.2 will indemnify and defend each of the Company and its affiliates and their respective representatives (collectively, the "Buyer Indemnitees") against, and will hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Liabilities incurred or sustained by, or imposed upon, the Buyer Indemnitees based upon, arising out of, with respect to or by reason of any infringement of any Intellectual Property Rights; and
3.3.3 will indemnify and defend each of the Buyer Indemnitees against, and will hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Liabilities incurred or sustained by, or imposed upon, the Buyer Indemnitees based upon, arising out of, with respect to or by reason of any violation of any applicable consumer protection law.
3.4 The Buyer agrees that it will provide to all third parties to whom it may supply the Goods, all information as to the use and safe handling of the Goods which has been provided to the Buyer by the Company.
3.5 The Company may make any changes to the Specification, design, materials (whether or not supplied by the Buyer) or finishes of the Goods which:
3.5.1 are required to conform with any applicable safety or other statutory or regulatory requirements; or
3.5.2 do not materially affect their quality or performance.
3.6 All specifications, illustrations and descriptive matter provided by the Company in the quotation, Contract and/or any other literature are given as accurately as possible, but are not to be treated as binding unless specifically so described.
3.7 The Company reserves the right in its sole discretion to exchange specified ingredients/components with others of equal or superior performance.
4.1 Unless otherwise specified in a quotation, prices are FOB Bensenville, Illinois, and are exclusive of any freight insurance, port rates, value added taxes or other applicable sales taxes or duties, all of which will be borne by the Buyer.
4.2 Prior to the delivery of Goods, the Company may increase the price of Goods in its sole discretion by notice to the Buyer. In such an event, the Buyer may on receipt of such notice cancel the order for the Goods, but if the delivery of the Goods is to be made by installments the Buyer shall be entitled to cancel only the undelivered portion of the order. No other remedy shall be available to the Buyer in respect of such variation in price. If the Buyer does not make any such cancellation, the increased price shall apply to the undelivered Goods at the time of the price increase.
4.3 The Company may increase the price of Goods in its sole discretion following any changes in the Specification made both at the request of the Buyer and agreed by the Company or to cover any extra expense as a result of the Buyer's instructions (or lack of instructions), or to satisfy Section 3.5.1.
4.4 The quotation is subject to alteration in the Company's sole discretion after a period of ninety (90) days from the date thereof. The Company will notify the Buyer in writing of any price increases after such period and such increases shall be deemed accepted by the Buyer absent written notice of rejection sent by the Buyer to us within fourteen (14) days of receipt of the notification.
5.1 The Company may invoice the Buyer for the Goods upon or at any time after delivery.
5.2 Unless otherwise agreed in writing and subject to Section 5.5, payment is due within 30 days after the date of the Company's invoice. Deposits and stage payments are payable on demand or in accordance with the payment schedule agreed with the Buyer in writing.
5.3 No payment will be deemed to have been received until the funds transferred by the Buyer have cleared.
5.4 All sums payable to the Company under the Contract will become due immediately upon termination of the Contract.
5.5 All payments to be made by the Buyer under the Contract will be made in full without any set-off, restriction or condition and without any deduction or withholding for or on account of any counterclaim or any present or future taxes, levies, duties, charges, fees, deductions or withholdings of any nature, unless the Buyer is required by law to make any such deduction or withholding.
5.6 The Company may allocate any payment made by the Buyer to the Company to any outstanding invoice(s), despite any purported allocation by the Buyer.
5.7 Without prejudice to any other rights the Company may have, the Company will have the right to suspend performance of its obligations under the Contract if the Buyer fails to make any payments in accordance with this Section 5.
5.8 If any sum payable under the Contract is not paid when due then, without prejudice to the Company's other rights under the Contract, that sum will bear interest from the due date until payment is made in full, both before and after any judgment, at 5% per annum over the Metropolitan Capital Bank (located in Chicago, IL) base lending rate and the Company will be entitled to suspend deliveries of the Goods until the outstanding amount, including applicable interest, has been received by the Company from the Buyer.
5.9 The Buyer has no right of set off against amounts payable to the Company, other than as agreed upon by the Company in writing or ordered by a court of competent jurisdiction.
5.10 Without prejudice to any other rights or remedies that the Company may pursue, should the Buyer default in any payment or adopt any plan of liquidation or dissolution or file a petition in bankruptcy under any provisions of federal or state bankruptcy law or consent to the filing of any bankruptcy petition against it under any similar law, the Company may, in its sole discretion, cancel without liability any undelivered or uncompleted portion of the Contract and immediately cease delivery of any Goods in transit or services being provided.
6.1 The Company may deliver the Goods by separate installments. Each separate installment will be invoiced and paid for in accordance with the provisions of the Contract.
6.2 Each installment will be a separate Contract and no cancellation or termination of any one Contract relating to an installment will entitle the Buyer to repudiate or cancel any other Contract relating to another installment.
7.1 The Company will use commercially reasonable efforts to meet requested delivery dates; provided, however, that if the Company fails to meet such dates (a) the Buyer will not be entitled to terminate the Contract and (b) the Company will incur no liability.
7.2 Compliance with delivery dates for Goods and services is conditional upon the Company's timely receipt of necessary authorizations, documents, releases, declarations and payments, as applicable, to be supplied by the Buyer, as well as fulfillment of the Buyer's other obligations under these Terms and Conditions and the Contract. Otherwise, said delivery dates shall be reasonably extended. The Company may rescind a Contract if any export or import documents required for delivery to the Buyer are not issued or if one of the Company's suppliers does not timely deliver products necessary for production of the Goods.
7.3 Delivery of the Goods will be made during the Buyer's usual business hours and may be made in installments.
7.4 If the Company agrees in writing to deliver the Goods other than at the Company's premises:
7.4.1 the Company will be entitled to add a reasonable charge for the delivery of the Goods to the Contract price; and
7.4.2 the Buyer will give the Company all necessary delivery instructions and loading and unloading of the Goods will be at the Buyer's risk and expense.
7.5 If the Contract is an International Supply Contract, it will be deemed to incorporate the latest edition of "Incoterms" current at the date of the Contract. If there is any inconsistency between "Incoterms" and any express term of the Contract, the latter will prevail. The Company will be under no obligation to give the Buyer notice specified in section 32(3) of the Sale of Goods Act 1979.
7.6 The Company will use its commercially reasonable efforts to deliver each of the Buyer's orders for the Goods within the time agreed when the Buyer places an order and, if no time is agreed, within a reasonable time. If, despite such efforts, the Company is unable for any reason to fulfill any delivery or performance on the specified date, the Company will be deemed not be deemed in breach of the Contract, nor (for the avoidance of doubt) will the Company have any liability to the Buyer for direct, indirect, incidental or consequential loss including, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss, however caused (including as a result of negligence) by any delay or failure in delivery except as set out in this Section 7.6. Any delay in delivery will not entitle the Buyer to cancel the order unless and until the Buyer has given 5 days' written notice to the Company requiring the delivery to be made and the Company has not fulfilled the delivery within that period. If the Buyer cancels the order in accordance with this Section 7.6 then:
7.6.1 the Company will refund to the Buyer any sums which the Buyer has paid to the Company in respect of that order or part of the order which has been cancelled; and
7.6.2 the Buyer will be under no liability to make any further payments under Section 5.1 in respect of that order or part of the order which has been cancelled.
7.7 If the Buyer fails to take delivery of any of the Goods when they are ready for delivery or to provide any instructions, documents, licenses or authorizations required to enable the Goods to be delivered on time (except solely on account of the Company's default), the Goods will be deemed to have been delivered on the due date and (without prejudice to its other rights) the Company may:
7.7.1 store or arrange for storage of the Goods until actual delivery or sale in accordance with Section 7.7.2 and charge the Buyer for all related costs and expenses (including, without limitation, storage and insurance); and/or
7.7.2 following written notice to the Buyer, sell any of the Goods at the best price reasonably obtainable in the circumstances and charge the Buyer for any shortfall below the price under the Contract or account to the Buyer for any excess achieved over the price under the Contract, in both cases having taken into account any charges related to the sale.
7.8 The Company will attempt to comply with reasonable requests by the Buyer for postponement of delivery of the Goods, but shall be under no obligation to do so. Where delivery of the Goods is postponed otherwise than due to the Company's fault, the Buyer will pay all costs and expenses of delay including, without limitation, a reasonable charge for storage and transportation.
7.9 The Buyer shall inspect the Goods immediately upon delivery and shall, within 2 Business Days of such delivery (time being of the essence in this context), give notice in writing to the Company of any matter or thing by reason whereof it alleges that the Goods are not in accordance with the Contract. Any delivery book or note marked "not examined" will not be accepted by the Company for the purposes of this Section 7.9. If the Buyer fails to give such written notice, then the Goods shall be deemed in all respects to be in accordance with the Contract and the Buyer shall be deemed to have accepted the Goods. The Goods in respect of which the Buyer makes any claims hereunder shall be preserved intact, as delivered, for a period of 21 days from negotiation of the claim within which time the Company or its agents shall have the right to attend at the Buyer's premises to investigate the complaint. Any breach by the Buyer of this Section 7.9 shall disentitle the Buyer to any allowance in respect of its claim.
7.10 The Company shall have no liability to the Buyer for any Goods damaged in transit unless both the Company and the carrier(s) receive written notice of such damage from the Buyer within three (3) Business Days of delivery.
7.11 If the Buyer receives notice of shipment and the Goods do not arrive when expected, the Buyer shall notify the Company immediately.
7.12 The Company will ship the Goods with at least 50% of their remaining shelf-life. Details of shelf-life for each product can be found on the product datasheet, which, in the case of standard products only, can be found on the Company's website at www.biocatalysts.com.
8.1 Risk of damage to or loss deterioration of the Goods will pass to the Buyer on delivery (or deemed delivery in accordance with Condition 7.7).
8.2 Ownership of the Goods will not pass to the Buyer until the Company has received in full (in cash or cleared funds) all sums due to it in respect of:
8.2.1 the Goods; and
8.2.2 all other sums which are or which become due to the Company from the Buyer on any account.
8.3 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions:
8.3.1 any sale will be effected in the ordinary course of the Buyer's business at full market value and the Buyer will account to the Company accordingly; and
8.3.2 any such sale will be a sale of the Company's property on the Buyer's own behalf and the Buyer will deal as principal when making such a sale.
8.4 The Buyer's right to possession of the Goods will terminate immediately if any of the circumstances set out in Section 14.1 occur.
8.5 The Company will be entitled to recover payment for the Goods notwithstanding that title in any of the Goods has not passed from the Company.
8.6 The Buyer grants the Company, its agents and employees an irrevocable license at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the Buyer's right to possession has terminated, to recover them.
8.7 Where the Company is unable to determine whether any Goods are the goods in respect of which the Buyer's right to possession has terminated, the Buyer will be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
8.8 On termination of the Contract for any reason, the Company's (but not the Buyer's) rights contained in this Section 8 will remain in effect.
9. WARRANTY, EXCLUSION OF LIABILITY AND INDEMNITY
9.1 The Company will, free of charge, within a period of 1 month from the date of delivery of Goods which the Company determines to its reasonable satisfaction are damaged or defective due to defects in performance, providing the Goods are still within their shelf life, replace, or refund the purchase price of such Goods. This obligation will not apply where:
9.1.1 the Goods have been subject to misuse, including alteration in any way whatsoever;
9.1.2 any instructions relating to usage of the Goods have not been complied with in all respects, including with respect to storage;
9.1.3 the Buyer has failed to notify the Company of any defect or suspected defect within 7 days of the delivery where the defect should be apparent on reasonable inspection, or within 7 days of the same coming to the knowledge of the Buyer; or
9.1.4 a product has been made to the customer's specification against technical advice from the Company.
9.2 Any replaced Goods will belong to the Company. Any replacement Goods will be warranted under the terms specified in Section 9.1 for the unexpired portion of the 1 month period from the original date of delivery of the replaced Goods.
9.3 Any warranty given by the Company is made expressly for the benefit of the Buyer, and may not be assigned to any other person or entity without the Company's prior written consent, which may be withheld in the Company's sole discretion.
Limitation of Liability
9.4 In no event shall the Company's liability under the Contract exceed the purchase price actually received by the Company under the Contract; provided, however, that this cap shall not apply to:
9.4.1 the Company's gross negligence or willful misconduct; or
9.4.2 death or bodily injury resulting from the Company's negligent acts or omissions.
9.5 Except as provided herein, the Company will be under no liability to the Buyer whatsoever (whether in contract, tort (including negligence), breach of statutory duty, restitution or otherwise) for any injury, death, damage or direct, indirect, incidental or consequential loss including, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and like loss, however caused (including as a result of negligence), however caused, arising out of or in connection with:
9.5.1 any of the Goods or the manufacture or sale or supply, or failure or delay in supply, of the Goods and services by the Company or on the part of the Company's employees, agents or sub-contractors;
9.5.2 any breach by the Company of any of the express or implied terms of the Contract;
9.5.3 any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods;
9.5.4 any statement made or not made, or advice given or not given, by or on behalf of the Company or otherwise under the Contract.
9.6 Except as expressly set forth herein, the Company makes no express or implied warranties including, but not limited to, any implied warranty of merchantability or fitness for a particular purpose.
9.7 Each of the Company's employees, agents and sub-contractors may rely upon and enforce the exclusions and restrictions of liability herein in that person's own name and for that person's own benefit, as if the words "its employees, agents and sub-contractors" followed the word Company wherever it appears in those clauses save each reference in Section 9.5.1.
9.8 The Buyer agrees to indemnify and defend each of Buyer Indemnitees against, and will hold each of them harmless from and against, and shall pay and reimburse each of them for, any and all Liabilities incurred or sustained by, or imposed upon, the Buyer Indemnitees based upon, arising out of, with respect to or by reason of (a) any direct or indirect breach or negligent performance or failure in performance by the Buyer of the terms of the Contract or (b) in respect of the Goods sold under the Contract, unless the Company's own negligence is the cause of such Liability.
10.1 The Buyer shall inspect all Goods before use to ensure that the Goods are fit for the Buyer's purpose.
10.2 The Company's goods are submitted to its standard testing procedures before delivery. In the event the Goods require the Company to undertake special testing, the Buyer will incur additional charges for the Goods (whether or not the Buyer attends such testing). If the Buyer is not represented at the testing following notice of the time and place at which the testing is to be held, the test report shall be communicated by the Company to the Buyer and shall be deemed to be accepted as accurate by the Buyer in all respects.
11. MATERIAL DEFECTS
11.1 The Company shall have no liability for any of the following:
11.1.1 development samples, prototypes and preproduction deliveries;
11.1.2 insignificant divergences from the Contract or product datasheet;
11.1.3 insignificant reductions in usability; or
11.1.4 damages caused after the transfer of risk to the Buyer by external influences such as fire, water, currency surge etc; improper installation, operation, use or maintenance; use in fields of application and environmental conditions other than those expressly specified by the Company; or use in combination with other products not approved by the Company.
11.2 FREE TECHNICAL SUPPORT
11.2.1 The Company, its employees and/or agents may from time to time, free of charge, provide technical support and/or make suggestions or recommendations and /or give advice to the Buyer in connection with goods delivered hereunder, their installation, operation, use, etc. (collectively, "Support").
11.2.2 Any Support will be given in good faith; the Company does not, however, warrant or guarantee the correctness, adequacy or suitability of the Support, and it shall be the Buyer's sole responsibility to assess the Support and whether or not to accept, act on or implement the same. If the Buyer does elect to do so, the Company shall have no liability to the Buyer for any Liability suffered as a result and the Buyer shall hold the Company harmless against third party claims, if any.
12. FORCE MAJEURE
12.1 The Company will be deemed not to be in breach of the Contract or otherwise liable to the Buyer in any manner whatsoever for any failure or delay in performing its obligations under the Contract due to Force Majeure.
12.2 If the Company's performance of its obligations under the Contract is affected by Force Majeure:
12.2.1 The Company will give written notice to the Buyer, specifying the nature and extent of the Force Majeure, as soon as reasonably practicable after becoming aware of the Force Majeure and will use its commercially reasonable efforts to bring the Force Majeure event to an end and, while the Force Majeure is continuing, use its commercially reasonable efforts to mitigate its severity, without being obliged to incur any expenditure;
12.2.2 subject to the provisions of Section 12.3, the date for performance of such obligation will be deemed suspended only for a period equal to the delay caused by such event; and
12.2.3 the Company will not be entitled to payment from the Buyer in respect of extra costs and expenses incurred by virtue of the Force Majeure.
12.3 If the Force Majeure in question continues for more than three (3) months, either party may give written notice to the other to terminate the Contract. The notice to terminate must specify the termination date, which must not be less than 30 days after the date on which the notice is given, and once such notice has been validly given, the Contract will terminate on that termination date.
13.1 The Company may by writing notice to the Buyer terminate the Contract immediately if the Buyer:
13.1.1 is in material breach of any of the terms of the Contract and, where the breach is curable, the Buyer fails to cure such breach within 30 days following receipt of written notice from the Company specifying the breach. The Buyer's failure to pay any sums due in accordance with Section 5 is deemed an incurable, material breach of the terms of the Contract.
13.1.2 adopts any plan of liquidation or dissolution or files a petition in bankruptcy under any provisions of federal or state bankruptcy law or consents to the filing of any bankruptcy petition against it under any similar law;
13.1.3 undergoes a Change in Control; or
13.1.4 the equivalent of any of the above occurs to the Buyer under the jurisdiction to which the Buyer is subject.
13.2 Notwithstanding the termination of the Contact, the rights, duties and liabilities of either the Buyer or the Company accrued prior to such termination and the conditions which expressly or impliedly have effect after termination will continue to be enforceable.
13.3 Following delivery of a notice of breach under Section 13.1.1, the Company may immediately suspend any pending deliveries unless and until the breach is cured, if curable.
14.1 Notwithstanding that credit may have been given to the Buyer under the Contract, the Company may be able to retain possession of the Goods or any part of them until payment been received from the Buyer in full.
14.2 Without prejudice to any other right which the Company may have, the Company shall be entitled to exercise a general lien or right of retention on all Goods in the Seller's possession, which are, or are intended to become, the Buyer's property in regard to all debts, damages or other sums due to the Company under any Contract whatsoever between the Company and the Buyer, and pursuant to such lien or right the Company shall be entitled without prior notice to the Buyer to sell all or any portion of such Goods privately, by auction or otherwise and to keep the proceeds to reduce such debts, damage or sums of all costs and expenses incurred in and about affecting such a sale.
15. INTELLECTUAL PROPERTY
15.1 The Company shall own all Intellectual Property Rights in the Goods. In the event that the Buyer obtains any Intellectual Property Rights in the Goods, the Buyer agrees to assign to the Company all of its right, title and interest in and to any and all such rights, whether or not patentable or registrable under copyright or similar statutes, made or conceived or reduced to practice or learned by the Buyer, either alone or jointly with others.
15.2 No right or license is granted to the Buyer in respect of the Intellectual Property Rights of the Company, except the right to use, or resell the Goods in the Buyer's ordinary course of business.
15.3 The Buyer will not without the Company's prior written consent allow any trade marks of the Company or other words or marks applied to the Goods to be obliterated, obscured or omitted nor add any additional marks or words.
15.4 For the avoidance of doubt, the Company makes no representation or warranty that the Goods do not infringe or misappropriate any third party's patent or other Intellectual Property Rights and in this respect the Buyer shall accept such title to the Goods "as is."
16.1 The Buyer will keep confidential any and all Confidential Information that it may acquire.
16.2 The Buyer will not use the Confidential Information for any purpose other than to perform its obligations under the Contract. The Buyer will ensure that its officers and employees comply with the provisions of this Section 17.
16.3 The obligations on the Buyer set out in this Section 17 will not apply to any information which:
16.3.1 is publicly available or becomes publicly available through no act or omission of the Buyer; or
16.3.2 the Buyer is required to disclose by order of a court of competent jurisdiction.
17.1 No modification, amendment or change to these Terms and Conditions is binding upon the Company or the Buyer unless it is in writing, specifically states that it amends these Terms and Conditions and is signed by an authorized representative of each party.
17.2 The Company will not by mere lapse of time without giving notice or taking other action hereunder be deemed to have waived any breach by the Buyer of any of its rights hereunder. Furthermore, the waiver by the Company of a particular breach hereunder by the Buyer shall not be construed as, or constitute, a continuing waiver of such breach, or of other breaches of the same or other provisions hereunder.
17.3 The Buyer shall not assign, transfer, delegate or subcontract any of its rights or obligations hereunder without the prior written consent of the Company. Any purported assignment or delegation in violation of this Section 17.3 shall be null and void. No assignment or delegation shall relieve the Buyer of any of its obligations hereunder. The Company may at any time freely assign, transfer or subcontract any or all of its rights or obligations hereunder.
17.4 If any term or provision hereunder is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision hereunder or invalidate or render unenforceable such term or provision in any other jurisdiction.
17.5 Each right or remedy of the Company under any Contract is without prejudice to any other right or remedy of the Company under this or any other Contract.
17.6 Except as otherwise set forth herein, these Terms and Conditions are for the sole benefit of the Company and the Buyer and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms and Conditions.
17.7 These Terms and Conditions and the Contract constitute the entire understanding and agreement of the Company and the Buyer pertaining to the subject matter hereof and thereof and supersede all oral or written agreements or understandings between the Company and the Buyer with respect to such subject matter. The Buyer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Company which is not set out in these Terms and Conditions or the Contract.
17.8 The relationship between the Company and the Buyer is that of independent contractors. Nothing herein shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Company and the Buyer, 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 these Terms and Conditions.
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on in the Contract or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Contract, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section 19.
All matters arising out of or relating to the Contract or any term thereof shall be governed by and construed in accordance with the internal laws of the State of Illinois without giving effect to any choice or conflict of law provision or rule (whether of the State of Illinois or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Illinois. Any legal suit, action or proceeding arising out of or relating to the Contract shall be instituted in the federal courts of the United States of America or the courts of the State of Illinois in each case located in the City of Chicago, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.