Terms & Conditions

1.    Payment Terms (Unless stated otherwise in exhibit A of your proposal)

 





 

•    Check or ACH payment is preferred. Credit card payments are subject to a 2.5% fee.

•    Mail checks to:

Floodproofing.com
Attn: Melanie
19 Mantua Rd.
Mt Royal, NJ 08061


2.    Disclaimers

(a)    Floodproofing Certificate:
i.    A Floodproofing Certificate is FEMA documentation of certification by a registered professional engineer or architect that the design and methods of construction of a nonresidential building are in accordance with accepted practices for meeting the floodproofing requirements in the community's floodplain management ordinance. This certificate is NOT INCLUDED in your proposal. 


(b)    Wall Conditions:
i.    Unless noted otherwise in Exhibit A all wall conditions are assumed to be concrete or solid fill CMU. 


(c)    Shop Drawing Approval:
i.    Custom flood barriers will require shop drawing approval by the customer before they can be released to fabrication. 


(d)    Field Verification:
i.    Field verification of the site conditions and measurements are not included in this proposal. It is the responsibility of the customer to verify the actual measurement before product is released into production. 

 

3.    Supply Agreement Conditions


This Supply Agreement (this “Agreement”), dated as of Wednesday, October 20, 2021 (the “Effective Date”), is entered into by and between Floodproofing.com, Inc., a Florida Corporation with offices located at 19 Mantua Rd. Mt Royal, NJ 08061 (“Seller”), and [CUSTOMER NAME], a [STATE OF ORGANIZATION] [ENTITY TYPE], with offices located at [ADDRESS] (“Customer”).

1.    Sale of Goods and Service.  Seller shall sell to Customer and Customer shall purchase from Seller the goods (the “Goods”) and the services (the “Services”) set forth in the attached Exhibit A in the quantities and at the Price (“Price”)) and upon the terms and conditions set forth in this Agreement.


2.    Delivery of Goods and Performance of Services.


(a)    Any delivery date communicated by Seller to Customer is only an estimate based on present production lead times.  Product specific lead times are listed under Exhibit A. Production lead time is highly seasonal and will vary over the course of the year. Seller shall not be liable to Customer for any delays in delivery or any loss or damage to the Goods in transit.  


(b)    Unless otherwise set forth in Exhibit A, Seller shall deliver the Goods [FOB Shipping Point]. Seller will determine the point of origin of shipment and shall use its own discretion in choice of carrier and method of packing.  Seller shall not be responsible for insuring shipments unless specifically requested by Customer and any insurance so requested shall be at Customer’s sole expense.


(c)    Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Customer. Each shipment will constitute a separate sale, and Customer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of the Goods purchased by Customer hereunder. 


(d)    Seller shall use reasonable efforts to meet any performance dates communicated to Customer to render the Services specified in Exhibit A, and any such dates shall be estimates only.


(e)    With respect to the Services, Customer shall (i) acknowledge in writing its receipt of all submittals, samples, and other materials that are delivered to Customer under this Agreement or prepared by or on behalf of Seller in the course of performing the Services (each, a “Deliverable” and, collectively, the “Deliverables”) and notify Seller in writing as soon as possible whether the Deliverable is accepted or rejected, provided that the Price will be subject to change if Customer fails to notify Seller in writing that Customer accepts or rejects such Deliverable within [sixty (60) days] from the date of its receipt; (ii) cooperate with Seller in all matters relating to the Services and provide such access to Customer’s premises and such other facilities as may reasonably be requested by Seller, for the purposes of performing the Services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of this Agreement; (iii) provide such customer materials or information as Seller may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects; [and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.] 


3.    Title and Risk of Loss. Title and risk of loss passes to Customer upon delivery of the Goods to carrier at the Shipping Point. Any claims for losses or damage during transit shall be made by Customer directly to carrier.  


4.    Security Interest.  As collateral security for the payment of the purchase price of the Goods, Customer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Customer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Uniform Commercial Code. Seller and its agents and representatives are hereby given a power of attorney to sign and file all necessary financing statements on behalf of Customer to perfect such security interest.


5.    Customer’s Acts or Omissions. If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Customer or its customers, agents, subcontractors, consultants, or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, damages or losses sustained or incurred by Customer, in each case, to the extent arising directly or indirectly from such prevention or delay.


6.    Inspection and Rejection of Nonconforming Goods.


(a)    Customer shall inspect the Goods promptly within [3] days of receipt (“Inspection Period”). Customer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Exhibit A hereof; or (ii) product’s label or packaging incorrectly identifies its contents. 


(b)    If Customer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price pro-rated for such Nonconforming Goods to Customer. Upon Seller’s request, Customer shall ship, at Seller’s direction and expense, the Nonconforming Goods to Seller. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Customer’s shipment of Nonconforming Goods, ship the replacement Goods to Customer subject to the shipping terms set forth in Section 2 above. 


(c)    Customer acknowledges and agrees that the remedies set forth in Section 6(b) above are Customer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 6(b), all sales of Goods to Customer are made on a one-way basis and Customer has no right to return Goods purchased under this Agreement to Seller.


7.    Price.  


(a)    Customer shall purchase the Goods and Services from Seller at the price (the “Price”) set forth in Exhibit A. Material must be released to production within 60 days from executed proposal. If material is not released into production due to a delay caused by the Customer; including but not limited to submittal approval or payment; then Seller bears the right to increase the price by less than or equal to 5% of the total contract value.


(b)    Unless otherwise set forth in Exhibit A, all Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such charges, costs, and taxes; provided, that, 
(c)    Customer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property, or other assets.  


8.    Payment Terms.


(a)    Unless otherwise set forth in Exhibit A, Customer shall pay all invoiced amounts due to Seller on receipt of invoice. Payment terms are listed in Exhibit A. Customer shall make all payments hereunder by wire transfer to the account set forth in Seller’s invoice, by check or credit card.  Payment by credit card will be subject to a 2.5% processing fee.


(b)    Customer shall pay interest on all late payments at the lesser of the rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Customer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under this Agreement or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods or performance of any Services, if Customer fails to pay any amounts when due hereunder.


(c)    Customer shall not, and acknowledges that it will have no right, under this Agreement, any other agreement, document, or law, to withhold, offset, recoup, or debit any amounts owed (or to become due and owing ) to Seller or any of its affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by Seller or its affiliates, whether relating to Seller’s or its affiliates’ breach or non-performance of this Agreement or any other agreement between Customer or any of its affiliates, and Seller or any of its affiliates, or otherwise.


9.    Change Order.  Any request by Customer to change the type or quantity of Goods or Services identified in Exhibit A (each, a “Change Order”) after the Effective Date shall require the written consent of Seller, which consent can be withheld in Seller’s sole discretion.  If Seller consents to a Change Order, Seller shall be entitled to any increase in cost and expenses incurred by Seller due to such Change Order.  


10.    Limited Warranty.


(a)    Seller warrants to Customer that it has the right to transfer title of the Goods to Customer.  Seller’s sole liability under this warranty shall be to obtain any title or authorization necessary to transfer such title to Customer.


(b)    Seller is not the manufacturer of the Goods.  Customer expressly understands and agrees that warranties regarding infringement of intellectual property rights, materials, workmanship or use of the Goods (the “Manufacturer’s Warranty”), if any, are made exclusively by the manufacturer of the Goods (the “Manufacturer”) and not by Seller.  Customer’s exclusive remedy under the Manufacturer’s Warranty (which is hereby assigned to Customer) shall be as provided therein and shall lie exclusively against and be obtainable only from the Manufacturer, and Customer expressly agrees that it shall have no claim or cause of action against Seller in the event the Manufacturer is for any reason unwilling or unable to perform under the terms of Manufacturer’s Warranty. 


(c)    Seller warrants to Customer that it shall perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall use personnel or subcontractors of required skill, experience, and qualifications.


(d)    EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 10(A) AND SECTION 10(C), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.  SELLER DOES NOT MAKE ANY INDEPENDENT REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE GOODS SOLD TO CUSTOMER BY SELLER. NO AFFIRMATION OF SELLER OR ANY OTHER PERSON ON SELLER’S BEHALF, BY WORDS OR ACTION, OTHER THAN AS SET FORTH IN THIS WARRANTY CLAUSE, SHALL CONSTITUTE A WARRANTY.  


(e)    Seller’s sole and exclusive liability and Customer’s sole and exclusive remedy with respect to any Services subject to a claim under the warranty set forth in Section 10(c) above, shall, in Seller’s sole discretion, be (i) the re-performance of the applicable Services or (ii) the credit or refund of the pro-rated price of such Services; provided, however, that with respect to any Deliverable prepared by or on behalf of Seller in the course of performing the Services, Seller shall not have to re-perform or credit/refund the pro-rated price for such Deliverable, once the Deliverable has been accepted or is deemed accepted by Customer pursuant to Section 2(e)(i) above.


(f)    THE REMEDIES SET FORTH IN THIS SECTION 10 HEREIN SHALL BE THE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH HEREIN.

11.    Limitation of Liability.

(a)    TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (iv) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. 

(b)    TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE PRICE PAID TO SELLER FOR THE GOODS AND SERVICES SOLD HEREUNDER.

(c)    [ADDITIONALLY, AND WITHOUT LIMITING ANY OF THE FOREGOING, CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT SELLER HAS EXPRESSLY DISCLOSED TO CUSTOMER THAT ANY GOODS THAT ARE FLOOD BARRIERS ARE DESIGNED PER FEDERAL EMERGENCY MANAGEMENT AGENCY (FEMA) AND AMERICAN SOCIETY OF CIVIL ENGINEERS (ASCE) GUIDELINES FOR APPLICABLE PROTECTION HEIGHT ONLY WHEN PROPERLY FASTENED. IN NO EVENT SHALL SELLER BE LIABLE, RESPONSIBLE, OR OBLIGATED IN ANY WAY WHATSOEVER WITH RESPECT TO (i) VERIFYING OR OTHERWISE ENSURING THAT ANY OPENING(S) INTO WHICH ANY SUCH FLOOD BARRIERS ARE OR MAY BE INSTALLED ARE OR HAVE BEEN DESIGNED AND/OR ENGINEERED TO WITHSTAND ANY PARTICULAR LEVEL OF FORCE FROM FLOOD WATERS OR OTHERWISE, AND/OR (ii) EVALUATING ANY BUILDING OR STRUCTURE, OR DETERMINING ANY BUILDING’S OR ANY STRUCTURE’S ABILITY TO (x) WITHSTAND ANY PARTICULAR LEVEL OF WATER PRESSURE AND/OR (y) BE OR REMAIN WATERPROOF IN ANY LOCATIONS WHERE FLOOD BARRIERS ARE NOT INSTALLED.]


12.    Indemnification


(a)    Customer shall indemnify, defend, and hold harmless Seller and its officers, directors, managers, shareholders, members, partners, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement, and the cost of pursuing any insurance providers, incurred by Indemnified Party (collectively, “Losses”) and relating to, arising out of or resulting from any claim of a third party arising out of or occurring in connection with the Goods or Services purchased from Seller or Customer’s negligence, willful misconduct, or breach of this Agreement, except, in each case, to the extent such Losses result from the willful misconduct or negligent acts or omissions of the Indemnified Party.  


(b)    The Indemnified Party will provide prompt notice to Customer of any claim asserted by a third party against the Indemnified Party that may give rise to a claim for indemnification pursuant to this Section 12 and Customer will take up the defense of such claim. The Indemnified Party will provide reasonable assistance to Customer as reasonably necessary for Customer to defend any such third-party claim, provided that the Indemnified Party will have the right to fully participate in such defense at its own expense. Customer will not have the right to settle any claim on the part of the Indemnified Party (other than a claim solely for monetary damages to be paid by Customer) without the prior written consent of the Indemnified Party, which consent will not be unreasonably withheld.


13.    Insurance. During the term of this Agreement and for a period of [twelve (12) months] thereafter, Customer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability in a sum no less than $[1,000,000] with financially sound and reputable insurers. Upon Seller’s request, Customer shall provide Seller with a certificate of insurance from Customer’s insurer evidencing the insurance coverage specified in this Agreement. [The certificate of insurance shall name Seller as an additional insured.] Customer shall provide Seller with thirty (30) days’ advance written notice in the event of a cancellation or material change in Customer’s insurance policy. Except where prohibited by law, Customer shall require its insurer to waive all rights of subrogation against Seller’s insurers and Seller.


14.    Compliance with Law. Customer shall comply with all applicable laws, regulations, and ordinances. Customer shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement. 


15.    Termination. In addition to any remedies that may be provided in this Agreement, Seller may terminate this Agreement with immediate effect (and without any liability to Customer) upon written notice to Customer, if Customer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of the terms of this Agreement, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.


16.    Intellectual Property. All intellectual property rights, including copyrights, patents, patent disclosures and inventions (whether patentable or not), trademarks, service marks, trade secrets, know-how, and other confidential information, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith, derivative works and all other rights (collectively, “Intellectual Property Rights”) in and to all Deliverables, except for any Confidential Information of Customer or customer-provided materials, shall be owned exclusively by Seller. Seller hereby grants Customer a license to use all Intellectual Property Rights in the Deliverables free of additional charge and on a non-exclusive, non-transferable, non-sublicensable, fully paid-up, royalty-free and perpetual basis, solely to the extent necessary to enable Customer to make reasonable use of the Deliverables and the Services.


17.    Confidentiality. From time to time during the term of this Agreement, either party (as the “Disclosing Party”) may disclose or make available to the other party (as the “Receiving Party”), non-public, proprietary, and confidential information of Disclosing Party that, if disclosed in writing or other tangible form is clearly labeled as “confidential,” or if disclosed orally, is identified as confidential when disclosed and within five (5) days thereafter, is summarized in writing and confirmed as confidential (“Confidential Information”); provided, however, that Confidential Information does not include any information that: (a) is or becomes generally available to the public other than as a result of Receiving Party’s breach of this Section 17; (b) is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (c) was in Receiving Party’s possession prior to Disclosing Party’s disclosure hereunder; or (d) was or is independently developed by Receiving Party without using any Confidential Information. The Receiving Party shall: (x) protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; (y) not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and (z) not disclose any such Confidential Information to any person or entity, except to the Receiving Party’s Group who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement. If the Receiving Party is required by applicable law or legal process to disclose any Confidential Information, it shall, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy. For purposes of this Section 17 only, “Receiving Party’s Group” shall mean the Receiving Party’s employees, officers, directors, managers, agents, independent contractors, service providers, or subcontractors.


18.    Entire Agreement. This Agreement, including and together with any related exhibits, schedules, attachments, and appendices, constitutes the sole and entire agreement of the parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.


19.    Notices. Unless otherwise agreed herein, 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 this Agreement, a notice is effective only (a) on receipt by the receiving party, and (b) if the party giving the notice has complied with the requirements of this Section.


Notice to Seller:    

19 Mantua Rd.
Mt Royal, NJ 08061
Facsimile: [856-269-4465]
   Attention: [Andrew Koniecki]


Notice to Customer:    [CUSTOMER ADDRESS] 
   Attention: [TITLE OF OFFICER TO RECEIVE NOTICES]


20.    Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.  


21.    Amendments. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party. 


22.    Waiver. No waiver by any party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.


23.    Assignment. Customer shall not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement without the prior written consent of Seller. Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation, or subcontract shall relieve Customer of any of its obligations hereunder. Seller may at any time assign, transfer, delegate, or subcontract any or all of its rights or obligations under this Agreement without Customer’s prior written consent.


24.    Successors and Assigns. This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns. 


25.    Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.


26.    No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto 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.


27.    Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of [New Jersey] without giving effect to any choice or conflict of law provision or rule (whether of the State of [New Jersey] or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of [New Jersey].


28.    Submission to Jurisdiction. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of [New Jersey] in each case located in the City of [Woodbury] and County of [Gloucester], and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding.


29.    WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS AND APPENDICES ATTACHED TO THIS AGREEMENT, IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.


30.    Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 19, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.


31.    Force Majeure. Seller will not be liable to Customer for Seller’s failure to perform any of its obligations under this Agreement (other than the payment of any amount due to the other party pursuant to this Agreement) during any period in which its performance is delayed by circumstances beyond its reasonable control (including, without limitation, acts of God, strikes, walkouts, lockouts, freight embargo, riots, civil disturbance, acts of war, acts of terrorism, acts of a public enemy, laws, regulations, or other government proclamations, ordinances, or acts, quarantine, pandemics, epidemics, unusually severe weather, power failures, earthquakes, floods, fires, explosions, or other catastrophes) or directly resulting from any failure of Customer to perform its obligations under this Agreement. If Seller claims force majeure, then it will be excused for non-performance for as long as its performance is so prevented, delayed, or hindered due to force majeure.  Seller shall give prompt notice of the force majeure event to Customer stating the period of time the occurrence is expected to continue. Seller shall use diligent efforts to end the failure or delay and ensure the effects of such force majeure event are minimized. Seller shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause.  If force majeure event continues for more than [sixty (60)] days, Seller shall have the right to terminate the Agreement (without any liability to Customer) by written notice to Customer.

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