Terms and Conditions of Sale for Products and Services

GILBARCO INC.

TERMS AND CONDITIONS OF SALE

These Terms and Conditions of Sale (“Terms”) sets forth the legally binding terms for use of the Products and with respect to Scopes of Work (each as defined below).  These Terms is by and between Gilbarco, Inc. (“Company”) and the company or entity on whose behalf you are accepting these Terms (“Customer”) (each a “Party” and collectively “Parties”). These Terms shall be applicable to Products purchased from Company via purchase order, quote, other master service agreements, supply agreements, order forms, or any other legally binding document as it relates to the Products where such Terms are explicity or implicitly incorporated or referenced. 

1. Purpose.

a. The Parties desire to enter into a framework agreement to set certain common terms and conditions to apply to the sales of goods and/or services (collectively “Product(s)”) from Company to Customer.  The Parties intend to agree upon certain Scope of Work documents (“SOWs”) to issue under these Terms, each incorporating the terms set forth here and, where applicable, setting out supplemental details for the provisions of goods and/or services.  

b. These Terms may apply to sales to Customer by Company or Company’s Affiliates.  “Affiliate” of a company means a company or person that (a) directly or indirectly controls such company, (b) is under the same direct or indirect control as such company, (c) is directly or indirectly controlled by such company.  For this definition, “control” shall mean having (i) at least 50% equity interest or (ii) the right or power to exercise the controlling influence over the management or policies, including the right, power, or other ability to elect a majority of the board of directors or other governing body. Company Affiliates’ sales may be accomplished by the same SOW process. Each such SOW shall form a separate agreement between Company (or Company Affiliate) and Customer.

c. Additional or varied terms governing the sale of goods or services included in any SOW shall be effective only upon affirmative acceptance by Customer and Company.

d. Customer and Company intend for these Terms to be the exclusive manner in which Products are provided by Company to Customer.

2. Deliverables.

Company shall provide the Products according to the specifications and delivery schedule set forth in the applicable SOW.

3. Pricing and Payment Terms.

a. Prices. The prices for the Products (including the prices and fees for extended warranties and for out-of-warranty repairs) are as set out in the applicable SOW.  Prices are exclusive of any applicable tax, duty, freight, insurance, shipping or similar additional costs, which shall in all instances be borne by Customer.  

b. Price Increases. Company shall have the right to increase the prices in the event that Company experiences an increase in its costs resulting from any change, whether or not anticipated, in external factors (including costs of raw materials, production, storage, demurrage, shipping, transport and/or insurance). Company shall give the Customer as much advance notice as is practicable in the circumstances. Any price increase shall take effect from the date of such notice and shall apply to all orders placed by the Customer from that date.  

c. Without prejudice to the foregoing, in the alternative to the above, Company shall have the right to increase the Prices on a quarterly basis by an amount equal to increases in the applicable Consumer Prices Index plus 3%. In such circumstances, Company shall give the Customer not less than 30 days’ prior written notice. Any price increase shall take effect from the date of expiry of the relevant notice and shall apply to all orders placed by the Customer from that date.

d. Minimum Order Pricing.  In the event that Customer was quoted prices subject to a quantity/volume purchase over a specified period of time, and such quantity/volume is not met, Customer shall pay Company the difference in price between Company’s standard sale price (or price quoted to Customer for lower volume/quantity) and price actually paid by Customer, at the conclusion of the specified period of time.

4. Delivery/Title/Risk of Loss.

a. Delivery. Company shall deliver all Products suitably packed for shipment in accordance with any specifications set forth by Customer and marked for shipment to Customer’s destination specified in the applicable purchase order. Risk of loss shall pass from Company to Customer upon shipping by Company of the Products to the stated delivery point in accordance with applicable Incoterms. All freight, insurance, and other shipping expenses, as well as any special packing expenses not expressly included in the original quotation for the Products shall be paid by the Customer.  Services, including software and software-as-a-service products, shall be deemed delivered when Customer is provided access to all agreed features of such services and/or software.

b. Title and Risk of Loss. Title to the Products shall pass from Company to Customer at the time that risk of loss is passed. Company reserves the right to pack or ship Products in the most economical manner, provided that this does not result in increased risk of loss of the Products.  

c. Delay:  Delivery and implementation dates provided in any SOW are approximate and not guaranteed.  Company shall not be liable for damages of any kind arising from any delays in fulfillment, shipment, or delivery of orders.  

5. Warranties

a. OEM Warranties:

i. Products are covered by Company's standard warranty for the products.  Company reserves the right to modify such warranty with prior written notice to Customer.      

ii. Additional OEM warranties, as applicable, shall be specified in each SOW. TO THE FULLEST EXTENT PERMITTED BY LAW, THE WARRANTIES REFERENCED TO IN THIS SECTION IS IN LIEU OF ALL OTHER WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, INCLUDING ANY REGARDING FITNESS FOR A PARTICULAR PURPOSE, RELATING TO THE USE OR PERFORMANCE OF THE PRODUCTS AND THE PARTS THEREFORE.    

iii. The Company shall pass good and marketable title to the Products to the Customer, free and clear of any liens or security interests of third parties.  

b. Third Party Warranties:  To the extent possible and where applicable, Company shall pass on the benefit of third-party warranties covering components or subparts of the goods and/or services delivered under these Terms. Company will cooperate with Customer, in a commercially reasonable manner, in enforcing such third-party warranties.

c. Mutual Warranties. Customer and Company each warrant that the representatives executing these Terms and executing each SOW under these Terms have the requisite authority to bind Customer and Company.  

d. Warranty Remedies.  In the event any goods or services delivered to the Customer fail to conform to the terms of these Terms, Customer's sole and exclusive remedy shall be replacement or repair of the non-conforming goods or re-performance of the non-conforming services, as determined by the Company and at Company's expense. Customer shall notify Company promptly upon discovery of such non-conformity and hold all claimed non-conforming Goods available for inspection by Company. Company shall have a reasonable period of time to repair or replace any Goods that it confirms are non-conforming.

6. Liabilities

a. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN THESE TERMS OR TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COMPANY SHALL NOT BE LIABLE TO THE CUSTOMER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, FOR ANY LOSS OF PROFIT, LOSS OF PRODUCTION, LOSS OF REVENUE, FINANCIAL LOSS OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL LOSS OR DAMAGES, IN EACH CASE, HOWEVER CAUSED, EVEN IF FORESEEABLE, ARISING UNDER OR IN CONNECTION WITH THE TERMS.  

b. Further, neither the Company nor any of its Affiliates or licensors will be responsible for any compensation, reimbursement, or damages arising in connection with: (a) the Customer’s inability to use the Products or cost of procurement of substitute products, either as a result of the termination or suspension of these Terms and the Customer’s use of or lack of access to the Products; (b) any unauthorized access to, alteration of, corruption of, or the deletion, destruction, damage, loss or failure to store any of the Customer’s content or other data, for reasons not directly attributable to the Company; (c) the cost of repair or damages caused by undetected leaks, pollution or damages to the environment including the improper notification or the lack of notification to the parties required to be notified under appliable law; and (d) connection issues due to internet service providers or cloud service and infrastructure providers due to mobile phone networks and/or communication infrastructures in general.

c. NOTWITHSTANDING ANY PROVISION TO THE CONTRARY IN THESE TERMS AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, COMPANY'S TOTAL LIABILITY TO THE CUSTOMER IN RESPECT OF ALL OTHER LOSSES, DAMAGES AND PENALTIES ARISING UNDER OR IN CONNECTION WITH THE TERMS, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), BREACH OF STATUTORY DUTY, OR OTHERWISE, INCLUDING LOSSES CAUSED BY A DELIBERATE BREACH OF THE TERMS BY THE COMPANY, ITS EMPLOYEES, AGENTS OR SUBCONTRACTORS SHALL NOT EXCEED THE VALUE OF PRODUCTS SOLD BY THE COMPANY TO THE CUSTOMER IN THE LAST 12  CALENDAR MONTHS PRIOR TO THE DATE OF THE EVENT RESULTING IN LOSS OR DAMAGE.

7. Intellectual Property.

a. License.  All software Products are provided subject to the following:

i. Definitions.

1. Documentation means any user, training or system manuals for the Software that describes and/or provides guidance on the Software or any aspect of the Software (in whatever form or media and as updated by from time to time); and  

2. Software means the Company software made available to the Customer under these Terms, including all associated media, upgrades, alterations and modifications to, or new releases or versions of, that software, and made available to the Customer.  

ii. License. Company hereby grants the Customer a limited,  non-exclusive, non-transferable, non sub-licensable license to use the Software and the Documentation solely at the Customer’s site(s) and for Customer's internal business purposes. The Customer may make a reasonable number of copies of the Software and Documentation for testing, training and back-up purposes. 

iii. Terms of Use. Customer shall not use the Software in any way other than explicitly set forth in these Terms and for the business use intended. Without derogating from the above: 

1. The Customer must not, and must not permit any other person to, will not modify, decompile, reverse engineer, disassemble or otherwise attempt to reveal the source code of the licensed software.     
2. Except as set out in this clause or otherwise permitted by law, the Customer must not, and must not permit any other person to, copy, reproduce, translate, adapt, vary, repair or any of the Software or Documentation by any means or in any form without prior written consent.  
3. The Customer must not sublicense, provide, or otherwise make available, the Software or any component of the Software in any form to any person (other than its employees) without the prior written consent of Company.    
4. The Customer will comply with all relevant laws and regulations when using the Software and the Documentation.  
5. Customer shall not integrate the Software or the Software’s interface to any unapproved third-party application.  Further, the Software which resides at a site may not be integrated with a third-party application that requires use of a Company proprietary interface unless Customer has first licensed a corresponding license for such interface from Company for each authorized copy of the Software that Customer has licensed pursuant to the Terms.  Also, Customer may not without the prior written consent of Company have read or write access to any Company proprietary database repository that is used to store data as part of the functionality of the Software.  

iv. Responsibility of the Customer. The Customer acknowledges that it has not relied on any statements or representations made by Company as to the performance, functionality or suitability of the Software for its requirements, except as expressly recorded in the Terms. The Customer will comply with Company’s reasonable restrictions and instructions in relation to the use of the Software and the Documentation, including those set out in this License. 

v. Intellectual Property. The Customer agrees that all intellectual property rights in the Software and the Documentation belong to Company.  The Customer will not dispute Company’s ownership of any such intellectual property rights. The Customer acknowledges that there is no transfer of title, intellectual property or ownership of the Software or Documentation or of any intellectual property relating to the Software or Documentation.    

vi. Termination of License.

1. Any use of the Software for any purpose other than in accordance with clause 1, or any breach of clause 2 of this License will, without limitation, be deemed to be a material breach of the Terms which is not capable of remedy.  

2. On termination of the Terms the Customer's right to use the Software and the Documentation will automatically terminate, and the Customer must immediately remove from its computer systems, and destroy, all copies of the Software and the Documentation.  

vii. Audit Rights. Upon notice to Customer, Company, at its expense and sole discretion, shall have the right to inspect and audit Customer’s use and possession of the Software to ensure that the obligations of these Terms are being carried out by Customer upon providing notice to Customer. If the audit shows an unauthorized disclosure or use of any of the Software, the Customer shall pay for the cost of such audit.

b. Ownership. Each Party shall own and retain all rights, title and interest (including all copyrights, patents, service marks, trademarks and other intellectual property rights) in its Products. Except for any license granted pursuant to these Terms, neither Party shall acquire any interest and/or rights in the other Party’s Products or any other services or materials, or any copy or portion thereof, provided by such Party, pursuant to these Terms.

8. Indemnification.

a. General Indemnity. 

i. Except as to the extent of Customer’s own negligence or intentional wrongdoing, Company shall be solely responsible for and shall hold Customer fully indemnified against any loss or damage arising to or in connection the negligence or intentional wrongdoing of Company. Company will defend, indemnify, and hold harmless the Customer, its Affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) violation of applicable law by Company; or (b) any claim involving alleged infringement or misappropriation of third party rights by Company.

ii. The Customer shall fully and completely indemnify Company in respect of all claims (including reasonable attorneys’ fees) by any person whatsoever for injury to person or property caused by or in connection with the use the Products and, additionally, for all costs and charges in connection therewith except to the extent such claim is a result of the negligence or intentional wrongdoing of Company. The Customer will defend, indemnify, and hold harmless the Company, its Affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third party claim concerning: (a) Customer or any Customers’ end users’ use of the Products, (b) violation of applicable law by the Customer or any Customers’ end user; or (c) Customer’s content or the combination of Customer’s content with other applications, content or processes, including any claim involving alleged infringement or misappropriation of third party rights by Customer’s content or by the use, development, design, production, advertising or marketing of Customer’s content.  

iii. If Company is obligated to respond to a third-party subpoena or other compulsory legal order or process described above, Customer will also reimburse Company for reasonable attorneys’ fees, as well as Company’s employees’ and contractors’ time and materials spent responding to the third-party subpoena or other compulsory legal order or process at its then current hourly rates.

b. Specific Indemnity:  In addition to the indemnities set forth elsewhere in these Terms, Customer agrees to indemnify, defend, and hold harmless Company for any losses, claims, damages or the like arising from the installation or use of the goods and services provided under these Terms that is against the guidance, directions, and/or recommendations of the Company and/or not in accordance with industry standards.  

9. Compliance.

a. Generally. The Parties shall fully comply with all applicable laws, rules and regulations, including without limitation those of the United States and all other jurisdictions globally (“Laws”) that apply to the respective Parties’ business activities in connection with the purchase of and use of Products from the Company. Specifically, the Parties shall comply with all Laws relating to anti-corruption, bribery, extortion, kickbacks, or similar matters, including without limitation the U.S. Foreign Corrupt Practices Act and the UK Bribery Act.  No Party will take any action that will cause either Party or any of their affiliates to violate any such Laws.    

b. Data Use and Protection. Company’s Data Processing Addendum (“DPA”), available here, is incorporated by reference herein. Customer grants Company a worldwide, limited-term license to host, copy, display, and use any information, data, and/or files that Customer transmits, uploads, creates, or stores to or on the Products provided by Seller (“Customer Data”). Customer authorizes Company to create an aggregated or fully anonymized data set based on Customer’s Personal Information (as defined within the DPA).  Customer and Company agree the aggregated or fully anonymized data set is not Personal Data or Personally Identifiable Information (as defined under applicable Data Protection Laws) and will be owned and retained by Company.  Furthermore, Customer acknowledges and agrees that Products can use certain Customer Data, including without limitation, end-user data to improve the Products, and create new services that use the Customer Data in an anonymized or aggregated form.  To this end, Customer shall ensure that all requisite consents and approvals are procured, including from end-users.  For the avoidance of doubt, it is hereby clarified that under no circumstances shall Company be construed as a “data controller” under any applicable Data. Other than Company's security and data protection obligations expressly set forth in these Terms, Company assumes no responsibility or liability for Customer Data, and the Customer shall be solely responsible for Customer Data and the consequences of using, disclosing, storing, or transmitting it.  

c. Cyber Protection. Unless otherwise specified in these Terms or agreed in writing by both Company and Customer, it is Customer’s responsibility to have and maintain in place malware protection software and security for all of Customer’s systems and data, which security includes properly configured hardware firewalls, unique, strong passwords per user, physical security, and access control policies. Customer acknowledges that the security and protection of Customer’s network and the data and applications on that network, including protections against unauthorized access, the configuration of all required data parameters, including security-related parameters, is solely and entirely Customer’s responsibility.  A properly configured firewall is required for each site using a persistent connection to the public Internet or any private network where there is a potential for unauthorized access.  Customer acknowledges that, to be effective, malware protection software, hardware firewalls, system passwords and other security software and hardware components require periodic and routine updates, which Customer must obtain or perform as applicable.  Company disclaims any warranty, express or implied, that the Software or Customer’s data will remain malware-free.  Customer acknowledges that failure to discharge Customer obligations to keep Customer’s systems secure may result in investigation fees, fines, penalties, charge backs and credit card fraud costs, and other losses as levied by credit card processors and others, remediation costs (which may include system component updates or replacements) and lost profits and loss of reputation and/or goodwill. Customer waives any claims against Company for any such costs or losses to the extent arising from Customer’s failure to have or maintain a secure system, or to the extent arising as a result of a failure or breach of Customer’s security for Customer’s systems or data, or as a result of any unauthorized access to Customer’s systems. In the event of a security breach of Customer’s systems, Customer agrees to promptly (i) notify Company of such breach, (ii) provide Company with copies of any forensic reports related to such breach, and (iii) authorize any investigating entities to disclose all relevant information regarding Customer investigations, including investigations in progress, of such breach to Company.  

d. The foregoing requirements are in addition to any other confidentiality and security obligations under these Terms. Nothing contained in this section will be construed as granting either Party any ownership interest in the Personal Information or Data of the other Party. Except in accordance with a Data Processing Agreement, under no circumstances will either Party transmit Personal Information to the other.

10. General Provisions.

a. Confidentiality.  All documents and information, including business data and Product pricing supplied to a party (the “Receiving Party”) hereunder that is marked confidential, restricted, or otherwise subject to limited access, or would be reasonably understood to be confidential based on the nature of the information or the circumstances surrounding the disclosure (“Confidential Information”), are proprietary in nature and confidential to the party disclosing such information (the “Disclosing Party”). The Receiving Party agrees to maintain such documents and information in confidence, and not to disclose such information to a third party or use such documents or information for any purpose other than the fulfillment of the mutual business purposes of the parties under these Terms. The Receiving Party will disclose Confidential Information only to the employees of the Receiving Party who have a need to know such Confidential Information for purposes of these Terms and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. This section shall survive any termination of these Terms, and notwithstanding the above, nothing contained in this section shall restrict Company  from entering into a direct contact or other contractual arrangements with customers or prospective customers.

b. Term. These Terms shall be effective from the date of its last execution and shall continue until terminated in accordance with the terms set forth in these Terms or on an applicable SOW.

c. Termination and Termination Remedies.  

i. Termination for Convenience. Company may terminate these Terms without cause upon sixty (60) days’ prior written notice to Customer.  

ii. Termination for Cause. A Party may terminate these Terms for Cause (as defined below) upon 90 days’ prior written notice of its intent to terminate for Cause, unless the other Party is able to cure such Cause during the 90-day notice period.   Notwithstanding the foregoing, Company may terminate these Terms for Cause immediately upon written notice if such Cause is based upon this section.  The time period from the commencement of the Initial Term until termination or expiration of these Terms shall be the “Term.”     Any one of the following shall be deemed “Cause” for termination hereunder:   
1. any breach of a material provision of these Terms;    
2. any material false representation, report, or claim in connection with the business relationship of the parties hereto or any fraud or criminal misconduct;   
3. the transfer of an interest equivalent to or greater than thirty-five percent (35%) of the beneficial ownership of Customer to an individual or entity without the prior written consent of Company, which consent shall not be unreasonably withheld;   
4. any merger, or consolidation, involving Customer or sale of all or substantially all of Customer’s assets related to performance under these Terms, without the prior written consent of Company, which consent shall not be unreasonably withheld;   
5. any assignment of these Terms by Customer, in whole or in part, direct or indirectly, in breach of these Terms, below;    
6. any unauthorized use of a Company trademark or logo by Customer;   
7. the adjudication of either Party to be bankrupt or insolvent; the filing by either Party of a voluntary petition in bankruptcy or insolvency, or for the appointment of a Receiver with respect to all or a substantial part of the property of the Party; the filing by either Party of a petition, answer, or other pleading seeking or being caused to reorganize or readjust under any law relating to insolvency of bankruptcy unless discharged within thirty (30) days; or the institution by either Party of any proceedings for liquidation or winding up of its business other than for purposes of reorganization, consolidation, or merger.  

iii. Open Orders. Termination of these Terms by Company shall also terminate any open orders, SOWs, etc., as of the date of termination. In addition to other remedies available, Customer shall pay Company, in the event of termination by Company, a pro rate portion of the total amount that would be due for cancelled orders equal to the portion of work already completed by Company, with such amount to include, at minimum, reimbursement for the costs of all goods purchased or otherwise irrevocably acquired in furtherance of such cancelled orders, along with any other applicable termination fees set forth herein or in the applicable order documentation.    

iv. Post-Termination Rights and Obligations of the Parties.  If these Terms expires or is terminated:  

1. At Company’s option, Customer agrees to return to Company all special tools, training manuals, manuals, and any other proprietary or trademark materials.     
2. Customer agrees to immediately cease the use or display of all materials previously approved for use or provided by Company.   
3. Termination or expiration of these Terms for any reason shall be without prejudice to all accrued rights and remedies and shall not affect the continuing rights and obligations of the parties under any relevant section of these Terms, including those obligations which contemplate performance by a Party after the expiration or termination of these Terms.    

d. Obsolescence and Modification. The Company reserves the right, upon at least 180 days' prior written notice to Customer, to (i) discontinue the manufacture or sale of, or otherwise render or treat as obsolete, any Products, (ii) modify the design or manufacture of any Products so as to preclude or limit its sales of such Products, or (iii) modify the status of any Products  so as to limit its right to return or obtain price protection for such Products and in the event of discontinuance Customer shall be able to, no later than 180 days’ prior to the effective date of Discontinuance, place an Order (“Last Buy Order ”) for its demands of such Products.  

e. Independent Counsel and Drafting. Each Party acknowledges that they have had the opportunity to seek independent legal counsel in connection with the negotiation and execution of these Terms. These Terms shall be deemed to have been drafted jointly by the parties and, in the event of a dispute, shall not be construed against any Party by reason of its drafting or preparation.

f. Notice. Any notice provided for or permitted under these Terms will be treated as having been given (i) when delivered personally, on the next business day after the day on which it is personally delivered, (ii) when sent by commercial overnight courier or email with written verification of delivery, on the next business day after its delivery to the courier during normal business hours, or (iii) when mailed postage prepaid by certified or registered mail, return receipt requested, on the fifth business day after its date of posting.  Any notices required or permitted to be given will be in writing and addressed as follows, or at such place which has been notified to the other Party in accordance with this provision:  

If to Company:  

7300 W. Friendly Ave. 
Greensboro, NC, 27401 
Attn:  Legal Department      

If to Customer:  
At the address included on the applicable SOW.

A Party may amend its address for notice by providing written notice to the other Party. Notwithstanding the foregoing, service of process must be served on a Party’s registered agent for such purpose.

g. Governing Law. These Terms shall be governed by and construed in accordance with the internal laws of the State of North Carolina, USA, without regard to the conflicts of law’s provisions. Company and Customer consent to the sole and exclusive venue and jurisdiction of the courts situated in Guilford County, North Carolina, USA.  

h. Dispute Resolution.  The Parties will attempt to settle any claim or controversy arising out of these Terms through good faith negotiations and in the spirit of cooperation. Any issues that cannot be so resolved will be referred to a senior management representative from each of the Parties who has the authority to resolve the dispute. In the event such senior management representatives cannot resolve the dispute within a period of 30 days of the referral, either Party may submit the dispute to binding arbitration for resolution.  

i. Any such arbitration proceedings shall be conducted at the place of the principal office of the respondent in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The dispute or controversy shall be arbitrated before a single arbitrator who is selected in accordance with the rules of the AAA. The arbitrator's decision shall be final and binding upon the parties. The parties shall be entitled to full discovery in any such arbitration. 

ii. Each Party shall bear one-half of the cost of such arbitration unless the arbitrator otherwise allocates such costs. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Nothing in this section will prevent either Party from resorting to judicial process if injunctive relief from a court is necessary to prevent serious and irreparable injury to one Party or to others.

i. Entire Agreement. Unless otherwise agreed to in a written instrument signed by Company and Customer, these terms constitute the entire agreement between the parties, there being no other promises, terms, understandings, conditions, or obligations referring to the subject matter contained herein. Any modifications hereto shall be in writing and signed by both parties. These Terms supersedes all prior negotiations, discussions, and understandings between the Parties, whether written or oral, including any previous terms and conditions made available on Company’s website, relating to the subject matter hereof. Any modifications hereto shall be in writing and signed by both parties. The titles and subtitles used in these Terms are used for convenience only and are not to be considered in construing or interpreting these Terms.  These Terms shall be interpreted and construed only by its contents and there shall be no presumption or standard of construction in favor of or against either Party.  

j. Severability. If for any reason any provision of these Terms, including but not limited to any provision relating to termination of these Terms, shall be deemed, by a court of competent jurisdiction to be legally invalid or unenforceable in any jurisdiction to which it applies, the validity of the remainder of the Terms shall not be affected and such provision shall be deemed modified to the minimum extent necessary to make such provision consistent with applicable law, and, in its modified form, such provision shall then be enforceable and enforced so long as the essential benefits of these Terms remain enforceable and obtainable.

k. Construction. The parties acknowledge that each has had the opportunity to seek legal counsel to review the contents of these Terms and that neither Party shall be deemed the drafter of the Terms.

l. Independent Contractors. Nothing in these Terms is intended to, or shall be deemed to, establish any employer-employee relationship, partnership or joint venture between any of the Parties, constitute any Party the agent of another Party, or authorize any Party to make or enter into any commitments for or on behalf of any other Party except as expressly provided in these Terms or in subsequent documents executed by duly authorized representatives of both Parties.

m. Assignment. Customer shall not assign or transfer these Terms or any of its rights, or delegate any of its duties or obligations hereunder, whether voluntarily, by merger, operation of law, or otherwise, without the prior written consent of Company, which shall not be unreasonably withheld.

n. Waiver. No waiver of any of the provisions of these Terms shall be deemed, or will constitute, a waiver of any other provision, whether or not similar, nor will any waiver constitute a continuing waiver. No waiver shall be binding unless executed in writing by the Party making the waiver.

o. Counterparts. These Terms may be executed in separate counterparts, each of which when so executed and delivered shall be deemed to be an original and all of which taken together shall constitute on and the same instrument. These Terms may also be executed and delivered by electronic transmission, and any such counterpart executed and delivered by electronic transmission shall be deemed an original for all intents and purposes. For avoidance of doubt, no counterpart shall be effective until each Party has executed at least one counterpart.

p. Change of Control. Company may assign these Terms to (i) any of its Affiliates or (ii) any entity with which or into which Company may consolidate or merge. Company may also subcontract or delegate any of its obligations to any of its Affiliates or as otherwise permitted by these Terms. Any assignment, subcontracting, or delegation by Company shall not relieve Company of any of its obligations under these Terms.  

q. Force Majeure. Neither Party shall be liable to the other as a result of any delay or failure to perform its obligations under the Terms if and to the extent such delay or failure is caused by an event or circumstance which is beyond the reasonable control of that Party and which by its nature could not have been foreseen by such a Party or if it could have been foreseen was unavoidable. If such event or circumstances prevents the affected Party from performing its obligations under the Terms for more than 28 days, the other Party shall have the right, without limiting its other rights or remedies, to terminate the Terms with immediate effect by giving written notice of the same and either Party shall be entitled to recover from the other prepayments for products and services not provided or supplied in the event of the Force Majeure event.