Terms & Conditions

1. Price and Transfer Taxes. Buyer shall purchase the Goods from Seller at the price(s) (the “Price”) set forth as of the date the Seller accepts the Sales Order accompanying these Terms. 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 are payable by Buyer. For all sales transactions subject to sales tax based on the presence of a nexus, Seller will calculate, collect, and remit the appropriate sales tax. The amount of sales tax charged will be shown on the Buyer's invoice. Buyers are responsible for providing accurate shipping or billing addresses at the time of purchase to ensure correct calculation of sales tax. Buyers with tax-exempt status must provide a valid tax exemption certificate applicable to the delivery jurisdiction before the time of purchase. Seller will inform Buyers of any changes to its sales tax collection practices resulting from new or changed nexus statuses through updates to these Terms and Conditions or direct communication. Buyer shall be solely and directly responsible for the reporting of sales, use, excise, and any other similar taxes in any states where Seller does not have nexus. If sales or other transfer taxes are not paid at the time of the sale and are later determined to be applicable to the sale by a state of competent jurisdiction, the Buyer agrees to pay the sales or other transfer taxes at such later time. If legal proceedings are employed to collect any payment, all costs thereof shall be paid by the Buyer.

2. Terms and Method of Payment. Buyer shall pay one hundred percent (100%) of the total sales price, including, without limitation, shipping, freight, and transfer taxes, when the Goods are ready for shipment, except where satisfactory open credit is established in Seller’s sole discretion, in which case the terms will be as negotiated by the Seller and the Buyer. If the Goods are delivered in installments, Buyer shall pay for each installment in accordance with the terms of payment set forth herein, and Buyer’s obligation to pay for such installment shall accrue regardless of whether the remaining installments are delivered. If Buyer fails to make any payment when due, Seller reserves the right to suspend or cancel performance under any or all Sales orders or agreements under which Seller has extended credit to Buyer or pursue any other remedy available to Seller. Seller’s suspension of performance may result in a rescheduling delay contingent on availability. All quotes and payments shall be in United States dollars. Buyer shall make all payments hereunder by wire transfer, check, ACH, or credit card. All late payments shall bear interest at the rate of the lesser of (i) the maximum rate allowable by law, or (ii) 2.0% per month.

3. Title, Shipment, Identification, Risk of Loss, and Insurance. Title to the Merchandise shall remain, as a security interest only, in Seller until the full purchase price is paid. Failure to pay the purchase price when due shall give Seller the right, without liability, to repossess the Merchandise with or without notice and to avail itself of any other legal remedies. Unless otherwise agreed to by Seller, all shipments of the Merchandise shall be F.O.B. shipping point. The method and route of shipment shall be at Seller's discretion, unless Purchaser supplies explicit written instructions, which are agreed to in writing by Seller. If the method or route of shipment is specified by Purchaser, Seller shall have the option of requiring Purchaser to pay the delivery charges. In such case, delivery charges will be prepaid by Seller and added to the purchase price. Risk of loss shall pass to Purchaser when the Merchandise is placed in the hands of the carrier or, if no carrier is used, in the hands of the Purchaser. Until final payment is made, Purchaser shall insure the Merchandise for which it has risk of loss against damage, destruction or loss of theft, fire or other casualty for full replacement value. Purchaser shall name Seller as an additional insured and provide sufficient evidence to Seller of such required insurance.

4. Delivery, Delay. Delivery dates stated, if any, are estimates and are not a guarantee of delivery on a particular date. Any Merchandise unavailable at the time of order will be shipped as soon as reasonably possible. Seller shall not be liable to Purchaser for any failure or delay in performance or for any damages suffered by Purchaser by reason of such failure or delay arising from any cause not within Seller's reasonable control including but not limited to: (a) accidents to or breakdowns or mechanical failures of plant, machinery or equipment; (b) strikes, embargoes, lockouts or other disputes or unrest; (c) fires, explosions, floods, natural disasters or acts of God; (d) shortages of labor, fuel, power, materials or supplies or transportation delay; (e) war, civil disturbance, riots and armed conflict; (f) governmental action, order, confiscation or other acts directly or indirectly affecting Seller's performance hereunder; or (g) Seller's inability to obtain the Merchandise.

5. Buyer’s Acts or Omissions. If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its 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, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay. Buyer acts or omission may include, but not be limited to, inaccurately describing the material properties of the products being made; inadequately describing or omitting how additional materials are added to the agitation process; inadequately describing, or omitting process details or equipment integration (including pipes, fittings, valves, pumps or any other equipment attached to Seller’s Goods) which may impact performance or operation of delivered Goods; or inaccurate or unclear shipping instructions. Buyer agrees and acknowledges that upon Seller’s delivery of the Goods to the common carrier at the Seller’s shipping facility, the Buyer’s obligation to pay the Seller is fixed and is not contingent upon any subsequent act, including, without limitation, the payment or non-payment by a customer of the Buyer.

6. Inspection and Rejection of Nonconforming Goods. Buyer shall inspect the Goods within ten (10) business days of delivery of the Goods to the Delivery Point (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods before the end of the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only Goods shipped that are different than the quantity or quality identified in the Sales Order. The quantity of any installment of Goods as recorded by Seller or common carrier on dispatch from Seller’s facility is conclusive evidence of the quantity received by the Buyer unless Buyer provides conclusive evidence to the contrary within ten (10) business days of delivery of the Goods. The Buyer is responsible for any costs associated with inspecting the Goods, provided the Seller shall reimburse the Buyer’s inspection costs for Nonconforming Goods. If Buyer 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 for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. The Seller shall pay the shipping expense for Nonconforming Goods returned to the Seller and incur the risk of loss. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving shipment of Nonconforming Goods, ship to Buyer, at Seller’s expense and risk of loss, the replaced Goods to the Delivery Point. Buyer acknowledges and agrees that the remedies set forth in this Section 7 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods.

7. Limited Warranty. For new equipment, The Seller warrants to the first user (the buyer) that the equipment’s components manufactured by it will be free from defects in materials and workmanship under normal use and proper maintenance for a period of twelve (12) months from the date the equipment is shipped from its plant. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPORE, PERFORMANCE, OR OTHERWISE.

   For used equipment, UNLESS OTHERWISE EXPRESSLY STATED ON THE SALES ORDER AND/OR INVOICE FACE, IT IS UNDERSTOOD THAT THE PURCHASE OF ALL MERCHANDISE IS "AS IS" AND "WITH ALL FAULTS". SELLER DISCLAIMS ALL WARRANTIES IN CONNECTION WITH THE SALE OF THE MERCHANDISE TO PURCHASER, BOTH EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANT ABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. SELLER HEREBY ASSIGNS THOSE WARRANTIES OF, IF ANY EXPRESSLY PROVIDED BY THE MANUFACTURERS OF NEW MERCHANDISE OR PARTS USED TO REFURBISH THE MERCHANDISE. SELLER MAKES NO REPRESENTATION CONCERNING THE EXISTENCE OR SCOPE OF ANY SUCH MANUFACTURER WARRANTIES AND IN NO EVENT SHALL PURCHASER OR ANY OTHER PERSON HAVE REMEDY AGAINST SELLER FOR BREACH OF A MANUFACTURER'S WARRANTY.

   The Seller shall not be liable for a breach of the warranty if: (i) Buyer makes any further use of such Goods after notifying Seller of a warranty claim; (ii) the defect arises because Buyer failed to follow Seller's instructions as to the storage, installation, commissioning, or maintenance of the Goods; (iii) the defect arises because the Goods are used by Buyer to any degree outside of normal intended use, which shall include, but are not limited to, use or storage of chemicals not expressly listed in Seller's published functional specifications for the Goods or industry specifications commercially known and practiced; (iv) Buyer runs mixer without the designed shaft and impeller installed or fails to fill the tank to designed levels, or (v) Buyer alters or repairs such Goods without the prior written consent of Seller.

8. Remedies. THE REMEDIES SET FORTH IN THIS SECTION SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 7. Seller shall, in its sole discretion, either: (a) repair or replace the Goods (or the defective part only) causing breach of the warranties set forth in the previous section, or (b) credit Buyer’s account or refund the amounts actually paid by Buyer for any Goods in breach of the Limited Warranty. With respect to Goods which are in breach of the Limited Warranty, (i) Buyer will obtain a return merchandise authorization (RMA) from Seller, (ii) if Seller so requests, Buyer (at Seller’s cost) returns such Goods to Seller’s warehouse or to such other location as Seller directs. If Seller elects to repair or replace such Goods, Seller shall have a reasonable time to make such repairs or replace such Goods, and such repaired or replaced Goods shall be warranted for the remainder of the original warranty period. Such repair, replacement, or credit shall constitute fulfillment of all liability of Seller to Buyer whether based in contract, tort, indemnity, statutory provision, or otherwise. If Seller’s examination of the Goods finds that the alleged deficiencies do not exist, or were caused by accident, misuse, neglect, alteration, improper installation, unauthorized repair or improper testing by Buyer or Buyer’s agents, then, at Seller’s discretion, Seller may ship the Goods back to Buyer at Buyer’s expense.

9. Cancellation. Buyer may not cancel the Agreement in whole or in part prior to the date of delivery of Merchandise to Purchaser except upon written notice to Seller at least thirty (30) days prior to the schedule shipment date and upon payment, as liquidated damages, and not as a penalty, of an amount equal to fifty percent (50%) of the total purchase price of the canceled Agreement or the amount of liquidated damages which Seller must pay for labor, materials, overhead and supplier(s) costs, whichever is greater. Any purported cancellation notice delivered less than thirty (30) days prior to the scheduled shipment date of the Goods shall be ineffective. If, in Seller’s judgment, Buyer’s financial condition does not justify the terms of payment specified herein, Seller may cancel Buyer’s order unless Buyer immediately pays for all Goods which have been delivered and pays in advance for all Goods to be delivered

10. Returns. Except for Seller’s right to replace Nonconforming Goods as provided herein, all sales of Goods to Buyer are made on a one-way basis, and Buyer has no right to return any customized Goods purchased under this Agreement to Seller. Buyer must contact Seller if they wish to return any standard Goods (as determined by Seller) for a 50% restocking fee.

11. LIMITATION ON SELLER’S LIABILITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SELLER, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, OR AGENTS SHALL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT [OR LOSS OF DATA OR DIMINUTION IN VALUE], INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR SELLER HAS BEEN ADVISED (OR NOT) OF THE POSSIBILITY OF SUCH DAMAGES, AND NOT WITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY, WHETHER IN CONNECTION TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID BY BUYER TO SELLER HEREUNDER FOR THE DEFECTIVE GOODS OR SERVICES DESCRIBED IN THE SALES ORDER. Seller shall not be liable for any unintended use or application of the Goods. In the event the Goods are made pursuant to the specifications of Buyer, and the same are found to infringe the rights of third parties under any intellectual property right, Buyer shall indemnify, defend and hold harmless Seller from and against all liabilities, damages, claims, losses, costs, and expenses (including, but not limited to, court costs and attorney’s fees) arising out of or resulting therefrom.

12. Legal Compliance. Buyer at all times shall comply with all applicable federal, state, and local laws, rules, regulations, ordinances, and orders and Buyer shall indemnify, defend, and hold harmless Seller from and against all liabilities, damages, claims, losses, costs, and expenses (including, but not limited to, court costs and attorney’s fees) arising out of or resulting from Buyer’s breach or failure to comply therewith or breach or violation of these Terms. Buyer shall also, at its own expense, obtain and arrange, and as appropriate maintain in full force and effect, all governmental approvals, consents, permits, licenses, permissions, authorizations, declarations, filings, and registrations as may be necessary or advisable to carry out its obligations under this Agreement or for any and all uses of the Goods by Buyer including, but not limited to, any environmental or health and safety laws.

13. Agreement Term; Termination. This Agreement will apply to all Sales Orders placed after the execution date. Either Party may terminate this Agreement for any reason by providing the other Party 30-days’ notice in writing. Any such termination will not apply to Sales Orders placed prior to the notice. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written Notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, 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. Provisions of the Agreement which survive per their terms or by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Limitation of Liability, Waiver, Governing Law, and Submission to Jurisdiction.

14. Non-Waiver of Default. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. In the event of any default by Buyer, Seller may decline to make further shipments; provided, however, continuation of shipments or any failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall not operate, or be construed, as a waiver thereof and shall not in any way affect Seller’s legal remedies for any such default. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

15. Confidential Information. All non-public, confidential, or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section.

16. Scope and Sequence of Engineering Services. The start of engineering services shall be subject to the execution of the agreed advance payment by Buyer. Buyer agrees to Seller’s Engineering Services and timelines to ensure timely delivery of drawings to support Goods manufacturing. Engineering services will be limited to the Goods purchased from Seller or as otherwise specified on the Sales Order.

Supplementary services or change requests by Buyer regarding the scope of engineering services will be invoiced separately based on an hourly rate of $200 per hour. Additional changes outside the subsequently defined review process or delays in Buyer approvals will delay delivery of final Goods and the Seller shall be held harmless for any material or immaterial impact caused by such delays.

MXD Process Engineering review process consists of two (2) phases:  “Design” approval, and “As-built” drawing. 

(a) At "Design" phase, Seller will present engineering drawing to review and approve the overall geometry and key features of any tanks, specifications of the mixers and control systems, and delineation of any and all additional equipment needed to support the Buyer’s process. The Seller will provide two (2) rounds of review and revision to refine the design based on the Buyer's written feedback. Additional reviews and revisions beyond two (2) rounds of revision will incur additional fees at $1,000 plus $200 per hour time and materials until approved during this phase. The Buyer will sign the concept drawings, at which point the proposal will be considered at Design Complete: which signifies the Buyer's acceptance of the fundamental design parameters of the Goods provided by the Seller. The seller is approved to begin purchasing raw materials at this time. If at any point the Buyer decides to change the fundamental design parameters of any of the Seller’s Goods, the Buyer agrees to pay 5% of the total project fee and all purchased raw materials or $2,500 plus $200 per hour time and materials, whichever is greater.

(b) At “As-Built Drawing” phase, the Buyer agrees to the final placement of all features, fittings, and signs off on the engineering drawings. After signing, the project will be considered "Drawing Approved." Delivery of Engineering Services shall be regarded as completed on the date of receipt of the engineering documentation specified in the contract and completed at “Drawing Approval.” The time schedule in accordance with this contract is preconditioned on the due fulfilment of all contractual obligations by Buyer. In case Buyer doesn’t fulfill its payment obligations or any other contractual obligations in time, the time schedule will be adjusted accordingly. Buyer shall notify Seller of any claims in regard to the engineering documentation within 7 days from the date of receipt of the engineering documentation, otherwise the delivery of the engineering documentation respectively the engineering services shall be regarded as fully accepted by Buyer. In case of non-conformity of the engineering documentation with the documents to be provided under this contract, Seller has the right to take remedial steps within a reasonable time-frame to be agreed upon between the parties. In no case shall Buyer be entitled to a price reduction in case of non-conformity. In addition, the Seller reserves the right to delay start of production until receipt of all payments in accordance with agreed upon terms set at the beginning of the project. 

17. Title to engineering documentation/ Intellectual Property Rights. The engineering documentation prepared by the Seller which is supplied to Buyer in accordance with this contract shall become the property of Buyer. Buyer shall not disclose such Documents and information received by the Seller to third parties without the Seller’s prior written consent. The Seller reserves all intellectual property rights on the engineering documentation and information provided to Buyer, in particular copyright, right of inventions and confidential know-how (“IP-Rights”). The Seller grants Buyer a non-exclusive license to use the IP-Rights for the purpose the engineering services were rendered only.

18. 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.

19. 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.

20. Governing Law. The validity, performance, and construction of these Terms shall be governed by the laws of the State of Indiana, without giving effect to any choice or conflict of law provision or rule (whether of the State of Indiana or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Indiana.

21. Submission to Jurisdiction. With the exception of Seller’s rights to obtain injunctive relief from any court of competent jurisdiction, all actions and proceedings relating to or arising out of this Agreement shall be brought only in the U.S. District Court for the Southern District of Indiana, or the state courts for Clark County, Indiana, and the parties hereby acknowledge and irrevocably submit to exclusive jurisdiction of and venue in such courts. The U.N. Convention on contracts for the International Sale of Goods shall not apply to the Goods or this Agreement.

22. Force Majeure. The Seller shall not be liable or responsible, either wholly or in part, to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure, nonperformance, or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage (shortage of labor, fuel, raw material, or machinery). Production and deliveries may be allocated by Seller in its sole and reasonable discretion in the event of a shortage of Goods.

23. Assignment. Subject to Section 27, neither party shall assign or delegate (voluntarily, by operation of law or otherwise) this Agreement, or any of its rights or obligations thereunder, without the prior written approval of the other party. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves a party of any of its obligations under this Agreement.

24. Modification. These Terms are attached to and comprise a part of the Sales Order between the parties and, together therewith and with all agreements and documents referred to herein or therein, constitute the entire agreement between the parties relating to the sale of the Goods and supersede all prior or contemporaneous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. Any representations or statements of any kind made by any representative of Seller which are not stated herein shall not be binding upon Seller. No addition to or deletion from or other modification of any provisions upon the face or reverse hereof shall be binding upon either party unless made in writing stating specifically that it amends these Terms and signed by a duly authorized representative of both parties. No course of dealing or usage of trade or course of performance shall be relevant to explain or supplement any term expressed in this agreement.

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

26. Licensed Components. To the extent the Goods contain software or other licensed components, the Buyer takes the Goods as licensee, subject to the terms and conditions of the license applicable to such software or component.

27. Seller Reservations. The Buyer agrees the Seller may subcontract all or portions of the manufacture, assembly, and/or production of the Goods.

28. Services. The Seller may provide various professional services to Buyer as described in the Sales Order. In delivering such services, the Seller agrees to perform such services to the best of its ability and at a level of competency consistent with the services contracted for. The Seller’s liability for any services rendered is subject to the limitations described in Section 8.

29. Notice. 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 in the document to which these Terms are attached or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, by facsimile (with confirmation of transmission), by email, by a nationally recognized overnight mail service (with all fees pre-paid), or by certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice shall become effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements in this Section.

30. Cost and Attorneys’ Fees. If any party hereto shall bring any suit or action against another for relief, declaratory or otherwise, arising out of this agreement, the prevailing party shall have and recover against the other party, in addition to all costs and disbursements, reasonable attorneys’ fees.

    THESE CUSTOMER TERMS AND CONDITIONS (THESE “TERMS”) ARE THE ONLY TERMS AND CONDITIONS WHICH GOVERN THE SALE OF THE GOODS (THE “GOODS”) FROM MIXER DIRECT LLC (THE “SELLER”) TO THE BUYER NAMED ON THE SIGNATURE PAGE TO THESE TERMS (THE “BUYER”). THE ACCOMPANYING SALES ORDER (HEREAFTER, THE “SALES ORDER”) AND THESE TERMS (COLLECTIVELY, THIS “AGREEMENT”) COMPRISE THE ENTIRE AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ANY AND ALL PRIOR OR CONTEMPORANEOUS UNDERSTANDINGS, AGREEMENTS, NEGOTIATIONS, REPRESENTATIONS, WARRANTIES, OR COMMUNICATIONS, WHETHER WRITTEN AND ORAL. THESE TERMS PREVAIL OVER ANY OF BUYER’S GENERAL TERMS AND CONDITIONS OF PURCHASE, REGARDLESS OF WHETHER OR WHEN BUYER HAS SUBMITTED ITS TERMS TO SELLER. ANY TERMS, CONDITIONS AND/OR PROVISIONS CONTAINED IN BUYER’S INSTRUCTIONS OR ITS PURCHASE ORDER WHICH ARE IN ANY WAY INCONSISTENT WITH OR IN ADDITION TO THESE TERMS HEREIN ARE HEREBY REJECTED BY SELLER AND SHALL NOT BE APPLICABLE TO THESE TERMS OR BINDING IN ANY WAY UPON SELLER. SELLER’S FAILURE TO OBJECT TO TERMS CONTAINED IN BUYER’S PURCHASE ORDER (OR ANY OTHER COMMUNICATION FROM BUYER) OR SELLER’S FULFILLMENT OF THE BUYER’S ORDER WILL NOT BE DEEMED A WAIVER OF THESE TERMS OR AN ACCEPTANCE OF ANY OF THE TERMS CONTAINED IN BUYER’S TERMS AND CONDITIONS OR PURCHASE ORDER AND DOES NOT SERVE TO MODIFY OR AMEND THESE TERMS.

     

    1. Price and Transfer Taxes. Buyer shall purchase the Goods from Seller at the price(s) (the “Price”) set forth as of the date the Seller accepts the Sales Order accompanying these Terms. 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 are payable by Buyer. For all sales transactions subject to sales tax based on the presence of a nexus, Seller will calculate, collect, and remit the appropriate sales tax. The amount of sales tax charged will be shown on the Buyer's invoice. Buyers are responsible for providing accurate shipping or billing addresses at the time of purchase to ensure correct calculation of sales tax. Buyers with tax-exempt status must provide a valid tax exemption certificate applicable to the delivery jurisdiction before the time of purchase. Seller will inform Buyers of any changes to its sales tax collection practices resulting from new or changed nexus statuses through updates to these Terms and Conditions or direct communication. Buyer shall be solely and directly responsible for the reporting of sales, use, excise, and any other similar taxes in any states where Seller does not have nexus. If sales or other transfer taxes are not paid at the time of the sale and are later determined to be applicable to the sale by a state of competent jurisdiction, the Buyer agrees to pay the sales or other transfer taxes at such later time. If legal proceedings are employed to collect any payment, all costs thereof shall be paid by the Buyer.

     

    2. Terms and Method of Payment. Buyer shall pay one hundred percent (100%) of the total sales price, including, without limitation, shipping, freight, and transfer taxes, when the Goods are ready for shipment, except where satisfactory open credit is established in Seller’s sole discretion, in which case the terms will be as negotiated by the Seller and the Buyer. If the Goods are delivered in installments, Buyer shall pay for each installment in accordance with the terms of payment set forth herein, and Buyer’s obligation to pay for such installment shall accrue regardless of whether the remaining installments are delivered. If Buyer fails to make any payment when due, Seller reserves the right to suspend or cancel performance under any or all Sales orders or agreements under which Seller has extended credit to Buyer or pursue any other remedy available to Seller. Seller’s suspension of performance may result in a rescheduling delay contingent on availability. All quotes and payments shall be in United States dollars. Buyer shall make all payments hereunder by wire transfer, check, ACH, or credit card. All late payments shall bear interest at the rate of the lesser of (i) the maximum rate allowable by law, or (ii) 2.0% per month.

     

    3. Title, Shipment, Identification, Risk of Loss, and Insurance. Title to the Merchandise shall remain, as a security interest only, in Seller until the full purchase price is paid. Failure to pay the purchase price when due shall give Seller the right, without liability, to repossess the Merchandise with or without notice and to avail itself of any other legal remedies. Unless otherwise agreed to by Seller, all shipments of the Merchandise shall be F.O.B. shipping point. The method and route of shipment shall be at Seller's discretion, unless Purchaser supplies explicit written instructions, which are agreed to in writing by Seller. If the method or route of shipment is specified by Purchaser, Seller shall have the option of requiring Purchaser to pay the delivery charges. In such case, delivery charges will be prepaid by Seller and added to the purchase price. Risk of loss shall pass to Purchaser when the Merchandise is placed in the hands of the carrier or, if no carrier is used, in the hands of the Purchaser. Until final payment is made, Purchaser shall insure the Merchandise for which it has risk of loss against damage, destruction or loss of theft, fire or other casualty for full replacement value. Purchaser shall name Seller as an additional insured and provide sufficient evidence to Seller of such required insurance.

     

    4. Delivery, Delay. Delivery dates stated, if any, are estimates and are not a guarantee of delivery on a particular date. Any Merchandise unavailable at the time of order will be shipped as soon as reasonably possible. Seller shall not be liable to Purchaser for any failure or delay in performance or for any damages suffered by Purchaser by reason of such failure or delay arising from any cause not within Seller's reasonable control including but not limited to: (a) accidents to or breakdowns or mechanical failures of plant, machinery or equipment; (b) strikes, embargoes, lockouts or other disputes or unrest; (c) fires, explosions, floods, natural disasters or acts of God; (d) shortages of labor, fuel, power, materials or supplies or transportation delay; (e) war, civil disturbance, riots and armed conflict; (f) governmental action, order, confiscation or other acts directly or indirectly affecting Seller's performance hereunder; or (g) Seller's inability to obtain the Merchandise.

     

    5. Buyer’s Acts or Omissions. If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its 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, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay. Buyer acts or omission may include, but not be limited to, inaccurately describing the material properties of the products being made; inadequately describing or omitting how additional materials are added to the agitation process; inadequately describing, or omitting process details or equipment integration (including pipes, fittings, valves, pumps or any other equipment attached to Seller’s Goods) which may impact performance or operation of delivered Goods; or inaccurate or unclear shipping instructions. Buyer agrees and acknowledges that upon Seller’s delivery of the Goods to the common carrier at the Seller’s shipping facility, the Buyer’s obligation to pay the Seller is fixed and is not contingent upon any subsequent act, including, without limitation, the payment or non-payment by a customer of the Buyer.

     

    6. Inspection and Rejection of Nonconforming Goods. Buyer shall inspect the Goods within ten (10) business days of delivery of the Goods to the Delivery Point (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods before the end of the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only Goods shipped that are different than the quantity or quality identified in the Sales Order. The quantity of any installment of Goods as recorded by Seller or common carrier on dispatch from Seller’s facility is conclusive evidence of the quantity received by the Buyer unless Buyer provides conclusive evidence to the contrary within ten (10) business days of delivery of the Goods. The Buyer is responsible for any costs associated with inspecting the Goods, provided the Seller shall reimburse the Buyer’s inspection costs for Nonconforming Goods. If Buyer 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 for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. The Seller shall pay the shipping expense for Nonconforming Goods returned to the Seller and incur the risk of loss. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving shipment of Nonconforming Goods, ship to Buyer, at Seller’s expense and risk of loss, the replaced Goods to the Delivery Point. Buyer acknowledges and agrees that the remedies set forth in this Section 7 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods.

     

    7. Limited Warranty. For new equipment, The Seller warrants to the first user (the buyer) that the equipment’s components manufactured by it will be free from defects in materials and workmanship under normal use and proper maintenance for a period of twelve (12) months form the date the equipment is shipped from its plant. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPORE, PERFORMANCE, OR OTHERWISE.

       For used equipment, UNLESS OTHERWISE EXPRESSLY STATED ON THE SALES ORDER AND/OR INVOICE FACE, IT IS UNDERSTOOD THAT THE PURCHASE OF ALL MERCHANDISE IS "AS IS" AND "WITH ALL FAULTS". SELLER DISCLAIMS ALL WARRANTIES IN CONNECTION WITH THE SALE OF THE MERCHANDISE TO PURCHASER, BOTH EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANT ABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. SELLER HEREBY ASSIGNS THOSE WARRANTIES OF, IF ANY EXPRESSLY PROVIDED BY THE MANUFACTURERS OF NEW MERCHANDISE OR PARTS USED TO REFURBISH THE MERCHANDISE. SELLER MAKES NO REPRESENTATION CONCERNING THE EXISTENCE OR SCOPE OF ANY SUCH MANUFACTURER WARRANTIES AND IN NO EVENT SHALL PURCHASER OR ANY OTHER PERSON HAVE REMEDY AGAINST SELLER FOR BREACH OF A MANUFACTURER'S WARRANTY.

       The Seller shall not be liable for a breach of the warranty if: (i) Buyer makes any further use of such Goods after notifying Seller of a warranty claim; (ii) the defect arises because Buyer failed to follow Seller's instructions as to the storage, installation, commissioning, or maintenance of the Goods; (iii) the defect arises because the Goods are used by Buyer to any degree outside of normal intended use, which shall include, but are not limited to, use or storage of chemicals not expressly listed in Seller's published functional specifications for the Goods or industry specifications commercially known and practiced; (iv) Buyer runs mixer without the designed shaft and impeller installed or fails to fill the tank to designed levels, or (v) Buyer alters or repairs such Goods without the prior written consent of Seller.

     

    8. 8. Remedies. THE REMEDIES SET FORTH IN THIS SECTION SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 7. Seller shall, in its sole discretion, either: (a) repair or replace the Goods (or the defective part only) causing breach of the warranties set forth in the previous section, or (b) credit Buyer’s account or refund the amounts actually paid by Buyer for any Goods in breach of the Limited Warranty. With respect to Goods which are in breach of the Limited Warranty, (i) Buyer will obtain a return merchandise authorization (RMA) from Seller, (ii) if Seller so requests, Buyer (at Seller’s cost) returns such Goods to Seller’s warehouse or to such other location as Seller directs. If Seller elects to repair or replace such Goods, Seller shall have a reasonable time to make such repairs or replace such Goods, and such repaired or replaced Goods shall be warranted for the remainder of the original warranty period. Such repair, replacement, or credit shall constitute fulfillment of all liability of Seller to Buyer whether based in contract, tort, indemnity, statutory provision, or otherwise. If Seller’s examination of the Goods finds that the alleged deficiencies do not exist, or were caused by accident, misuse, neglect, alteration, improper installation, unauthorized repair or improper testing by Buyer or Buyer’s agents, then, at Seller’s discretion, Seller may ship the Goods back to Buyer at Buyer’s expense.

     

    9. Cancellation. Buyer may not cancel the Agreement in whole or in part prior to the date of delivery of Merchandise to Purchaser except upon written notice to Seller at least thirty (30) days prior to the schedule shipment date and upon payment, as liquidated damages, and not as a penalty, of an amount equal to fifty percent (50%) of the total purchase price of the canceled Agreement or the amount of liquidated damages which Seller must pay for labor, materials, overhead and supplier(s) costs, whichever is greater. Any purported cancellation notice delivered less than thirty (30) days prior to the scheduled shipment date of the Goods shall be ineffective. If, in Seller’s judgment, Buyer’s financial condition does not justify the terms of payment specified herein, Seller may cancel Buyer’s order unless Buyer immediately pays for all Goods which have been delivered and pays in advance for all Goods to be delivered

     

    10. Returns. Except for Seller’s right to replace Nonconforming Goods as provided herein, all sales of Goods to Buyer are made on a one-way basis, and Buyer has no right to return any customized Goods purchased under this Agreement to Seller. Buyer must contact Seller if they wish to return any standard Goods (as determined by Seller) for a 50% restocking fee.

     

    11. LIMITATION ON SELLER’S LIABILITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SELLER, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, OR AGENTS SHALL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT [OR LOSS OF DATA OR DIMINUTION IN VALUE], INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR SELLER HAS BEEN ADVISED (OR NOT) OF THE POSSIBILITY OF SUCH DAMAGES, AND NOT WITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY, WHETHER IN CONNECTION TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID BY BUYER TO SELLER HEREUNDER FOR THE DEFECTIVE GOODS OR SERVICES DESCRIBED IN THE SALES ORDER. Seller shall not be liable for any unintended use or application of the Goods. In the event the Goods are made pursuant to the specifications of Buyer, and the same are found to infringe the rights of third parties under any intellectual property right, Buyer shall indemnify, defend and hold harmless Seller from and against all liabilities, damages, claims, losses, costs, and expenses (including, but not limited to, court costs and attorney’s fees) arising out of or resulting therefrom.

     

    12. Legal Compliance. Buyer at all times shall comply with all applicable federal, state, and local laws, rules, regulations, ordinances, and orders and Buyer shall indemnify, defend, and hold harmless Seller from and against all liabilities, damages, claims, losses, costs, and expenses (including, but not limited to, court costs and attorney’s fees) arising out of or resulting from Buyer’s breach or failure to comply therewith or breach or violation of these Terms. Buyer shall also, at its own expense, obtain and arrange, and as appropriate maintain in full force and effect, all governmental approvals, consents, permits, licenses, permissions, authorizations, declarations, filings, and registrations as may be necessary or advisable to carry out its obligations under this Agreement or for any and all uses of the Goods by Buyer including, but not limited to, any environmental or health and safety laws.

     

    13. Agreement Term; Termination. This Agreement will apply to all Sales Orders placed after the execution date. Either Party may terminate this Agreement for any reason by providing the other Party 30-days’ notice in writing. Any such termination will not apply to Sales Orders placed prior to the notice. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written Notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, 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. Provisions of the Agreement which survive per their terms or by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Limitation of Liability, Waiver, Governing Law, and Submission to Jurisdiction.

     

    14. Non-Waiver of Default. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. In the event of any default by Buyer, Seller may decline to make further shipments; provided, however, continuation of shipments or any failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall not operate, or be construed, as a waiver thereof and shall not in any way affect Seller’s legal remedies for any such default. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

     

    15. Confidential Information. All non-public, confidential, or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section.

     

    16. Scope and Sequence of Engineering Services. The start of engineering services shall be subject to the execution of the agreed advance payment by Buyer. Buyer agrees to Seller’s Engineering Services and timelines to ensure timely delivery of drawings to support Goods manufacturing. Engineering services will be limited to the Goods purchased from Seller or as otherwise specified on the Sales Order.

     

    Supplementary services or change requests by Buyer regarding the scope of engineering services will be invoiced separately based on an hourly rate of $200 per hour. Additional changes outside the subsequently defined review process or delays in Buyer approvals will delay delivery of final Goods and the Seller shall be held harmless for any material or immaterial impact caused by such delays.

     

    MXD Process Engineering review process consists of two (2) phases:  “Design” approval, and “As-built” drawing. 

     

    (a) At "Design" phase, Seller will present engineering drawing to review and approve the overall geometry and key features of any tanks, specifications of the mixers and control systems, and delineation of any and all additional equipment needed to support the Buyer’s process. The Seller will provide two (2) rounds of review and revision to refine the design based on the Buyer's written feedback. Additional reviews and revisions beyond two (2) rounds of revision will incur additional fees at $1,000 plus $200 per hour time and materials until approved during this phase. The Buyer will sign the concept drawings, at which point the proposal will be considered at Design Complete: which signifies the Buyer's acceptance of the fundamental design parameters of the Goods provided by the Seller. The seller is approved to begin purchasing raw materials at this time. If at any point the Buyer decides to change the fundamental design parameters of any of the Seller’s Goods, the Buyer agrees to pay 5% of the total project fee and all purchased raw materials or $2,500 plus $200 per hour time and materials, whichever is greater.

     

    (b) At “As-Built Drawing” phase, the Buyer agrees to the final placement of all features, fittings, and signs off on the engineering drawings. After signing, the project will be considered "Drawing Approved." Delivery of Engineering Services shall be regarded as completed on the date of receipt of the engineering documentation specified in the contract and completed at “Drawing Approval.” The time schedule in accordance with this contract is preconditioned on the due fulfilment of all contractual obligations by Buyer. In case Buyer doesn’t fulfill its payment obligations or any other contractual obligations in time, the time schedule will be adjusted accordingly. Buyer shall notify Seller of any claims in regard to the engineering documentation within 7 days from the date of receipt of the engineering documentation, otherwise the delivery of the engineering documentation respectively the engineering services shall be regarded as fully accepted by Buyer. In case of non-conformity of the engineering documentation with the documents to be provided under this contract, Seller has the right to take remedial steps within a reasonable time-frame to be agreed upon between the parties. In no case shall Buyer be entitled to a price reduction in case of non-conformity. In addition, the Seller reserves the right to delay start of production until receipt of all payments in accordance with agreed upon terms set at the beginning of the project. 

     

    17. Title to engineering documentation/ Intellectual Property Rights. The engineering documentation prepared by the Seller which is supplied to Buyer in accordance with this contract shall become the property of Buyer. Buyer shall not disclose such Documents and information received by the Seller to third parties without the Seller’s prior written consent. The Seller reserves all intellectual property rights on the engineering documentation and information provided to Buyer, in particular copyright, right of inventions and confidential know-how (“IP-Rights”). The Seller grants Buyer a non-exclusive license to use the IP-Rights for the purpose the engineering services were rendered only.

     

    18. 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.

     

    19. 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.

     

    20. Governing Law. The validity, performance, and construction of these Terms shall be governed by the laws of the State of Indiana, without giving effect to any choice or conflict of law provision or rule (whether of the State of Indiana or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Indiana.

     

    21. Submission to Jurisdiction. With the exception of Seller’s rights to obtain injunctive relief from any court of competent jurisdiction, all actions and proceedings relating to or arising out of this Agreement shall be brought only in the U.S. District Court for the Southern District of Indiana, or the state courts for Clark County, Indiana, and the parties hereby acknowledge and irrevocably submit to exclusive jurisdiction of and venue in such courts. The U.N. Convention on contracts for the International Sale of Goods shall not apply to the Goods or this Agreement.

     

    22. Force Majeure. The Seller shall not be liable or responsible, either wholly or in part, to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure, nonperformance, or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage (shortage of labor, fuel, raw material, or machinery). Production and deliveries may be allocated by Seller in its sole and reasonable discretion in the event of a shortage of Goods.

     

    23. Assignment. Subject to Section 27, neither party shall assign or delegate (voluntarily, by operation of law or otherwise) this Agreement, or any of its rights or obligations thereunder, without the prior written approval of the other party. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves a party of any of its obligations under this Agreement.

     

    24. Modification. These Terms are attached to and comprise a part of the Sales Order between the parties and, together therewith and with all agreements and documents referred to herein or therein, constitute the entire agreement between the parties relating to the sale of the Goods and supersede all prior or contemporaneous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. Any representations or statements of any kind made by any representative of Seller which are not stated herein shall not be binding upon Seller. No addition to or deletion from or other modification of any provisions upon the face or reverse hereof shall be binding upon either party unless made in writing stating specifically that it amends these Terms and signed by a duly authorized representative of both parties. No course of dealing or usage of trade or course of performance shall be relevant to explain or supplement any term expressed in this agreement.

     

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

     

    26. Licensed Components. To the extent the Goods contain software or other licensed components, the Buyer takes the Goods as licensee, subject to the terms and conditions of the license applicable to such software or component.

     

    27. Seller Reservations. The Buyer agrees the Seller may subcontract all or portions of the manufacture, assembly, and/or production of the Goods.

     

    28. Services. The Seller may provide various professional services to Buyer as described in the Sales Order. In delivering such services, the Seller agrees to perform such services to the best of its ability and at a level of competency consistent with the services contracted for. The Seller’s liability for any services rendered is subject to the limitations described in Section 8.

     

    29. Notice. 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 in the document to which these Terms are attached or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, by facsimile (with confirmation of transmission), by email, by a nationally recognized overnight mail service (with all fees pre-paid), or by certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice shall become effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements in this Section.

     

    30. Cost and Attorneys’ Fees. If any party hereto shall bring any suit or action against another for relief, declaratory or otherwise, arising out of this agreement, the prevailing party shall have and recover against the other party, in addition to all costs and disbursements, reasonable attorneys’ fees.

        THESE CUSTOMER TERMS AND CONDITIONS (THESE “TERMS”) ARE THE ONLY TERMS AND CONDITIONS WHICH GOVERN THE SALE OF THE GOODS (THE “GOODS”) FROM MIXER DIRECT LLC (THE “SELLER”) TO THE BUYER NAMED ON THE SIGNATURE PAGE TO THESE TERMS (THE “BUYER”). THE ACCOMPANYING SALES ORDER (HEREAFTER, THE “SALES ORDER”) AND THESE TERMS (COLLECTIVELY, THIS “AGREEMENT”) COMPRISE THE ENTIRE AGREEMENT BETWEEN THE PARTIES, AND SUPERSEDE ANY AND ALL PRIOR OR CONTEMPORANEOUS UNDERSTANDINGS, AGREEMENTS, NEGOTIATIONS, REPRESENTATIONS, WARRANTIES, OR COMMUNICATIONS, WHETHER WRITTEN AND ORAL. THESE TERMS PREVAIL OVER ANY OF BUYER’S GENERAL TERMS AND CONDITIONS OF PURCHASE, REGARDLESS OF WHETHER OR WHEN BUYER HAS SUBMITTED ITS TERMS TO SELLER. ANY TERMS, CONDITIONS AND/OR PROVISIONS CONTAINED IN BUYER’S INSTRUCTIONS OR ITS PURCHASE ORDER WHICH ARE IN ANY WAY INCONSISTENT WITH OR IN ADDITION TO THESE TERMS HEREIN ARE HEREBY REJECTED BY SELLER AND SHALL NOT BE APPLICABLE TO THESE TERMS OR BINDING IN ANY WAY UPON SELLER. SELLER’S FAILURE TO OBJECT TO TERMS CONTAINED IN BUYER’S PURCHASE ORDER (OR ANY OTHER COMMUNICATION FROM BUYER) OR SELLER’S FULFILLMENT OF THE BUYER’S ORDER WILL NOT BE DEEMED A WAIVER OF THESE TERMS OR AN ACCEPTANCE OF ANY OF THE TERMS CONTAINED IN BUYER’S TERMS AND CONDITIONS OR PURCHASE ORDER AND DOES NOT SERVE TO MODIFY OR AMEND THESE TERMS.

         

        1. Price and Transfer Taxes. Buyer shall purchase the Goods from Seller at the price(s) (the “Price”) set forth as of the date the Seller accepts the Sales Order accompanying these Terms. 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 are payable by Buyer. For all sales transactions subject to sales tax based on the presence of a nexus, Seller will calculate, collect, and remit the appropriate sales tax. The amount of sales tax charged will be shown on the Buyer's invoice. Buyers are responsible for providing accurate shipping or billing addresses at the time of purchase to ensure correct calculation of sales tax. Buyers with tax-exempt status must provide a valid tax exemption certificate applicable to the delivery jurisdiction before the time of purchase. Seller will inform Buyers of any changes to its sales tax collection practices resulting from new or changed nexus statuses through updates to these Terms and Conditions or direct communication. Buyer shall be solely and directly responsible for the reporting of sales, use, excise, and any other similar taxes in any states where Seller does not have nexus. If sales or other transfer taxes are not paid at the time of the sale and are later determined to be applicable to the sale by a state of competent jurisdiction, the Buyer agrees to pay the sales or other transfer taxes at such later time. If legal proceedings are employed to collect any payment, all costs thereof shall be paid by the Buyer.

         

        2. Terms and Method of Payment. Buyer shall pay one hundred percent (100%) of the total sales price, including, without limitation, shipping, freight, and transfer taxes, when the Goods are ready for shipment, except where satisfactory open credit is established in Seller’s sole discretion, in which case the terms will be as negotiated by the Seller and the Buyer. If the Goods are delivered in installments, Buyer shall pay for each installment in accordance with the terms of payment set forth herein, and Buyer’s obligation to pay for such installment shall accrue regardless of whether the remaining installments are delivered. If Buyer fails to make any payment when due, Seller reserves the right to suspend or cancel performance under any or all Sales orders or agreements under which Seller has extended credit to Buyer or pursue any other remedy available to Seller. Seller’s suspension of performance may result in a rescheduling delay contingent on availability. All quotes and payments shall be in United States dollars. Buyer shall make all payments hereunder by wire transfer, check, ACH, or credit card. All late payments shall bear interest at the rate of the lesser of (i) the maximum rate allowable by law, or (ii) 2.0% per month.

         

        3. Title, Shipment, Identification, Risk of Loss, and Insurance. Title to the Merchandise shall remain, as a security interest only, in Seller until the full purchase price is paid. Failure to pay the purchase price when due shall give Seller the right, without liability, to repossess the Merchandise with or without notice and to avail itself of any other legal remedies. Unless otherwise agreed to by Seller, all shipments of the Merchandise shall be F.O.B. shipping point. The method and route of shipment shall be at Seller's discretion, unless Purchaser supplies explicit written instructions, which are agreed to in writing by Seller. If the method or route of shipment is specified by Purchaser, Seller shall have the option of requiring Purchaser to pay the delivery charges. In such case, delivery charges will be prepaid by Seller and added to the purchase price. Risk of loss shall pass to Purchaser when the Merchandise is placed in the hands of the carrier or, if no carrier is used, in the hands of the Purchaser. Until final payment is made, Purchaser shall insure the Merchandise for which it has risk of loss against damage, destruction or loss of theft, fire or other casualty for full replacement value. Purchaser shall name Seller as an additional insured and provide sufficient evidence to Seller of such required insurance.

         

        4. Delivery, Delay. Delivery dates stated, if any, are estimates and are not a guarantee of delivery on a particular date. Any Merchandise unavailable at the time of order will be shipped as soon as reasonably possible. Seller shall not be liable to Purchaser for any failure or delay in performance or for any damages suffered by Purchaser by reason of such failure or delay arising from any cause not within Seller's reasonable control including but not limited to: (a) accidents to or breakdowns or mechanical failures of plant, machinery or equipment; (b) strikes, embargoes, lockouts or other disputes or unrest; (c) fires, explosions, floods, natural disasters or acts of God; (d) shortages of labor, fuel, power, materials or supplies or transportation delay; (e) war, civil disturbance, riots and armed conflict; (f) governmental action, order, confiscation or other acts directly or indirectly affecting Seller's performance hereunder; or (g) Seller's inability to obtain the Merchandise.

         

        5. Buyer’s Acts or Omissions. If Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its 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, or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay. Buyer acts or omission may include, but not be limited to, inaccurately describing the material properties of the products being made; inadequately describing or omitting how additional materials are added to the agitation process; inadequately describing, or omitting process details or equipment integration (including pipes, fittings, valves, pumps or any other equipment attached to Seller’s Goods) which may impact performance or operation of delivered Goods; or inaccurate or unclear shipping instructions. Buyer agrees and acknowledges that upon Seller’s delivery of the Goods to the common carrier at the Seller’s shipping facility, the Buyer’s obligation to pay the Seller is fixed and is not contingent upon any subsequent act, including, without limitation, the payment or non-payment by a customer of the Buyer.

         

        6. Inspection and Rejection of Nonconforming Goods. Buyer shall inspect the Goods within ten (10) business days of delivery of the Goods to the Delivery Point (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods before the end of the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only Goods shipped that are different than the quantity or quality identified in the Sales Order. The quantity of any installment of Goods as recorded by Seller or common carrier on dispatch from Seller’s facility is conclusive evidence of the quantity received by the Buyer unless Buyer provides conclusive evidence to the contrary within ten (10) business days of delivery of the Goods. The Buyer is responsible for any costs associated with inspecting the Goods, provided the Seller shall reimburse the Buyer’s inspection costs for Nonconforming Goods. If Buyer 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 for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. The Seller shall pay the shipping expense for Nonconforming Goods returned to the Seller and incur the risk of loss. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving shipment of Nonconforming Goods, ship to Buyer, at Seller’s expense and risk of loss, the replaced Goods to the Delivery Point. Buyer acknowledges and agrees that the remedies set forth in this Section 7 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods.

         

        7. Limited Warranty. For new equipment, The Seller warrants to the first user (the buyer) that the equipment’s components manufactured by it will be free from defects in materials and workmanship under normal use and proper maintenance for a period of twelve (12) months form the date the equipment is shipped from its plant. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPORE, PERFORMANCE, OR OTHERWISE.

           For used equipment, UNLESS OTHERWISE EXPRESSLY STATED ON THE SALES ORDER AND/OR INVOICE FACE, IT IS UNDERSTOOD THAT THE PURCHASE OF ALL MERCHANDISE IS "AS IS" AND "WITH ALL FAULTS". SELLER DISCLAIMS ALL WARRANTIES IN CONNECTION WITH THE SALE OF THE MERCHANDISE TO PURCHASER, BOTH EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANT ABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. SELLER HEREBY ASSIGNS THOSE WARRANTIES OF, IF ANY EXPRESSLY PROVIDED BY THE MANUFACTURERS OF NEW MERCHANDISE OR PARTS USED TO REFURBISH THE MERCHANDISE. SELLER MAKES NO REPRESENTATION CONCERNING THE EXISTENCE OR SCOPE OF ANY SUCH MANUFACTURER WARRANTIES AND IN NO EVENT SHALL PURCHASER OR ANY OTHER PERSON HAVE REMEDY AGAINST SELLER FOR BREACH OF A MANUFACTURER'S WARRANTY.

           The Seller shall not be liable for a breach of the warranty if: (i) Buyer makes any further use of such Goods after notifying Seller of a warranty claim; (ii) the defect arises because Buyer failed to follow Seller's instructions as to the storage, installation, commissioning, or maintenance of the Goods; (iii) the defect arises because the Goods are used by Buyer to any degree outside of normal intended use, which shall include, but are not limited to, use or storage of chemicals not expressly listed in Seller's published functional specifications for the Goods or industry specifications commercially known and practiced; (iv) Buyer runs mixer without the designed shaft and impeller installed or fails to fill the tank to designed levels, or (v) Buyer alters or repairs such Goods without the prior written consent of Seller.

         

        8. 8. Remedies. THE REMEDIES SET FORTH IN THIS SECTION SHALL BE THE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S SOLE AND EXCLUSIVE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 7. Seller shall, in its sole discretion, either: (a) repair or replace the Goods (or the defective part only) causing breach of the warranties set forth in the previous section, or (b) credit Buyer’s account or refund the amounts actually paid by Buyer for any Goods in breach of the Limited Warranty. With respect to Goods which are in breach of the Limited Warranty, (i) Buyer will obtain a return merchandise authorization (RMA) from Seller, (ii) if Seller so requests, Buyer (at Seller’s cost) returns such Goods to Seller’s warehouse or to such other location as Seller directs. If Seller elects to repair or replace such Goods, Seller shall have a reasonable time to make such repairs or replace such Goods, and such repaired or replaced Goods shall be warranted for the remainder of the original warranty period. Such repair, replacement, or credit shall constitute fulfillment of all liability of Seller to Buyer whether based in contract, tort, indemnity, statutory provision, or otherwise. If Seller’s examination of the Goods finds that the alleged deficiencies do not exist, or were caused by accident, misuse, neglect, alteration, improper installation, unauthorized repair or improper testing by Buyer or Buyer’s agents, then, at Seller’s discretion, Seller may ship the Goods back to Buyer at Buyer’s expense.

         

        9. Cancellation. Buyer may not cancel the Agreement in whole or in part prior to the date of delivery of Merchandise to Purchaser except upon written notice to Seller at least thirty (30) days prior to the schedule shipment date and upon payment, as liquidated damages, and not as a penalty, of an amount equal to fifty percent (50%) of the total purchase price of the canceled Agreement or the amount of liquidated damages which Seller must pay for labor, materials, overhead and supplier(s) costs, whichever is greater. Any purported cancellation notice delivered less than thirty (30) days prior to the scheduled shipment date of the Goods shall be ineffective. If, in Seller’s judgment, Buyer’s financial condition does not justify the terms of payment specified herein, Seller may cancel Buyer’s order unless Buyer immediately pays for all Goods which have been delivered and pays in advance for all Goods to be delivered

         

        10. Returns. Except for Seller’s right to replace Nonconforming Goods as provided herein, all sales of Goods to Buyer are made on a one-way basis, and Buyer has no right to return any customized Goods purchased under this Agreement to Seller. Buyer must contact Seller if they wish to return any standard Goods (as determined by Seller) for a 50% restocking fee.

         

        11. LIMITATION ON SELLER’S LIABILITY. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, SELLER, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, OR AGENTS SHALL NOT BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT [OR LOSS OF DATA OR DIMINUTION IN VALUE], INTERRUPTION OF BUSINESS, OR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OF ANY KIND REGARDLESS OF THE FORM OF ACTION WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EVEN IF SUCH DAMAGES WERE FORESEEABLE OR SELLER HAS BEEN ADVISED (OR NOT) OF THE POSSIBILITY OF SUCH DAMAGES, AND NOT WITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY, WHETHER IN CONNECTION TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY, OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID BY BUYER TO SELLER HEREUNDER FOR THE DEFECTIVE GOODS OR SERVICES DESCRIBED IN THE SALES ORDER. Seller shall not be liable for any unintended use or application of the Goods. In the event the Goods are made pursuant to the specifications of Buyer, and the same are found to infringe the rights of third parties under any intellectual property right, Buyer shall indemnify, defend and hold harmless Seller from and against all liabilities, damages, claims, losses, costs, and expenses (including, but not limited to, court costs and attorney’s fees) arising out of or resulting therefrom.

         

        12. Legal Compliance. Buyer at all times shall comply with all applicable federal, state, and local laws, rules, regulations, ordinances, and orders and Buyer shall indemnify, defend, and hold harmless Seller from and against all liabilities, damages, claims, losses, costs, and expenses (including, but not limited to, court costs and attorney’s fees) arising out of or resulting from Buyer’s breach or failure to comply therewith or breach or violation of these Terms. Buyer shall also, at its own expense, obtain and arrange, and as appropriate maintain in full force and effect, all governmental approvals, consents, permits, licenses, permissions, authorizations, declarations, filings, and registrations as may be necessary or advisable to carry out its obligations under this Agreement or for any and all uses of the Goods by Buyer including, but not limited to, any environmental or health and safety laws.

         

        13. Agreement Term; Termination. This Agreement will apply to all Sales Orders placed after the execution date. Either Party may terminate this Agreement for any reason by providing the other Party 30-days’ notice in writing. Any such termination will not apply to Sales Orders placed prior to the notice. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written Notice to Buyer, if Buyer: (a) fails to pay any amount when due under this Agreement; (b) has not otherwise performed or complied with any of these Terms, 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. Provisions of the Agreement which survive per their terms or by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Compliance with Laws, Confidential Information, Limitation of Liability, Waiver, Governing Law, and Submission to Jurisdiction.

         

        14. Non-Waiver of Default. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. In the event of any default by Buyer, Seller may decline to make further shipments; provided, however, continuation of shipments or any failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement shall not operate, or be construed, as a waiver thereof and shall not in any way affect Seller’s legal remedies for any such default. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

         

        15. Confidential Information. All non-public, confidential, or proprietary information of Seller, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated, or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section.

         

        16. Scope and Sequence of Engineering Services. The start of engineering services shall be subject to the execution of the agreed advance payment by Buyer. Buyer agrees to Seller’s Engineering Services and timelines to ensure timely delivery of drawings to support Goods manufacturing. Engineering services will be limited to the Goods purchased from Seller or as otherwise specified on the Sales Order.

         

        Supplementary services or change requests by Buyer regarding the scope of engineering services will be invoiced separately based on an hourly rate of $200 per hour. Additional changes outside the subsequently defined review process or delays in Buyer approvals will delay delivery of final Goods and the Seller shall be held harmless for any material or immaterial impact caused by such delays.

         

        MXD Process Engineering review process consists of two (2) phases:  “Design” approval, and “As-built” drawing. 

         

        (a) At "Design" phase, Seller will present engineering drawing to review and approve the overall geometry and key features of any tanks, specifications of the mixers and control systems, and delineation of any and all additional equipment needed to support the Buyer’s process. The Seller will provide two (2) rounds of review and revision to refine the design based on the Buyer's written feedback. Additional reviews and revisions beyond two (2) rounds of revision will incur additional fees at $1,000 plus $200 per hour time and materials until approved during this phase. The Buyer will sign the concept drawings, at which point the proposal will be considered at Design Complete: which signifies the Buyer's acceptance of the fundamental design parameters of the Goods provided by the Seller. The seller is approved to begin purchasing raw materials at this time. If at any point the Buyer decides to change the fundamental design parameters of any of the Seller’s Goods, the Buyer agrees to pay 5% of the total project fee and all purchased raw materials or $2,500 plus $200 per hour time and materials, whichever is greater.

         

        (b) At “As-Built Drawing” phase, the Buyer agrees to the final placement of all features, fittings, and signs off on the engineering drawings. After signing, the project will be considered "Drawing Approved." Delivery of Engineering Services shall be regarded as completed on the date of receipt of the engineering documentation specified in the contract and completed at “Drawing Approval.” The time schedule in accordance with this contract is preconditioned on the due fulfilment of all contractual obligations by Buyer. In case Buyer doesn’t fulfill its payment obligations or any other contractual obligations in time, the time schedule will be adjusted accordingly. Buyer shall notify Seller of any claims in regard to the engineering documentation within 7 days from the date of receipt of the engineering documentation, otherwise the delivery of the engineering documentation respectively the engineering services shall be regarded as fully accepted by Buyer. In case of non-conformity of the engineering documentation with the documents to be provided under this contract, Seller has the right to take remedial steps within a reasonable time-frame to be agreed upon between the parties. In no case shall Buyer be entitled to a price reduction in case of non-conformity. In addition, the Seller reserves the right to delay start of production until receipt of all payments in accordance with agreed upon terms set at the beginning of the project. 

         

        17. Title to engineering documentation/ Intellectual Property Rights. The engineering documentation prepared by the Seller which is supplied to Buyer in accordance with this contract shall become the property of Buyer. Buyer shall not disclose such Documents and information received by the Seller to third parties without the Seller’s prior written consent. The Seller reserves all intellectual property rights on the engineering documentation and information provided to Buyer, in particular copyright, right of inventions and confidential know-how (“IP-Rights”). The Seller grants Buyer a non-exclusive license to use the IP-Rights for the purpose the engineering services were rendered only.

         

        18. 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.

         

        19. 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.

         

        20. Governing Law. The validity, performance, and construction of these Terms shall be governed by the laws of the State of Indiana, without giving effect to any choice or conflict of law provision or rule (whether of the State of Indiana or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Indiana.

         

        21. Submission to Jurisdiction. With the exception of Seller’s rights to obtain injunctive relief from any court of competent jurisdiction, all actions and proceedings relating to or arising out of this Agreement shall be brought only in the U.S. District Court for the Southern District of Indiana, or the state courts for Clark County, Indiana, and the parties hereby acknowledge and irrevocably submit to exclusive jurisdiction of and venue in such courts. The U.N. Convention on contracts for the International Sale of Goods shall not apply to the Goods or this Agreement.

         

        22. Force Majeure. The Seller shall not be liable or responsible, either wholly or in part, to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure, nonperformance, or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage (shortage of labor, fuel, raw material, or machinery). Production and deliveries may be allocated by Seller in its sole and reasonable discretion in the event of a shortage of Goods.

         

        23. Assignment. Subject to Section 27, neither party shall assign or delegate (voluntarily, by operation of law or otherwise) this Agreement, or any of its rights or obligations thereunder, without the prior written approval of the other party. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves a party of any of its obligations under this Agreement.

         

        24. Modification. These Terms are attached to and comprise a part of the Sales Order between the parties and, together therewith and with all agreements and documents referred to herein or therein, constitute the entire agreement between the parties relating to the sale of the Goods and supersede all prior or contemporaneous communications, representations, or agreements, either oral or written, with respect to the subject matter hereof. Any representations or statements of any kind made by any representative of Seller which are not stated herein shall not be binding upon Seller. No addition to or deletion from or other modification of any provisions upon the face or reverse hereof shall be binding upon either party unless made in writing stating specifically that it amends these Terms and signed by a duly authorized representative of both parties. No course of dealing or usage of trade or course of performance shall be relevant to explain or supplement any term expressed in this agreement.

         

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

         

        26. Licensed Components. To the extent the Goods contain software or other licensed components, the Buyer takes the Goods as licensee, subject to the terms and conditions of the license applicable to such software or component.

         

        27. Seller Reservations. The Buyer agrees the Seller may subcontract all or portions of the manufacture, assembly, and/or production of the Goods.

         

        28. Services. The Seller may provide various professional services to Buyer as described in the Sales Order. In delivering such services, the Seller agrees to perform such services to the best of its ability and at a level of competency consistent with the services contracted for. The Seller’s liability for any services rendered is subject to the limitations described in Section 8.

         

        29. Notice. 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 in the document to which these Terms are attached or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, by facsimile (with confirmation of transmission), by email, by a nationally recognized overnight mail service (with all fees pre-paid), or by certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms, a Notice shall become effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements in this Section.

         

        30. Cost and Attorneys’ Fees. If any party hereto shall bring any suit or action against another for relief, declaratory or otherwise, arising out of this agreement, the prevailing party shall have and recover against the other party, in addition to all costs and disbursements, reasonable attorneys’ fees.