TERMS OF SERVICE SELLER
By submitting a purchase order or otherwise ordering products (“PO”) from CERES 14 INC. or SIMPLE SOLVENTS LLC (“CERES 14”), the customer identified on the PO (“Customer”) agrees to be bound by these terms and conditions (“Terms”).
1. ACCEPTANCE OF ORDERS. All POs are subject to acceptance by CERES 14 in writing. No terms and conditions of any letter, Customer purchase order, invoice or other document submitted by Customer in connection with a PO shall amend, add to, vary, or modify these Terms. No failure by CERES 14 to object to such terms or conditions shall be deemed to be a waiver of this provision. CERES 14 reserves the right to amend, modify or revise these Terms from time to time. The parties acknowledge and agree that the terms and conditions of any unexpired agreement executed by the parties, if any, shall apply to the supply of Products (a “Supply Agreement”). To the extent of any conflict between these Terms and the terms and conditions of a Supply Agreement, such Supply Agreement shall prevail to the extent of such inconsistency, provided however that upon the expiration or termination of such Supply Agreement these Terms shall prevail.
2. PRODUCTS, PRICES AND CHANGES. The products covered by these Terms are those specifically identified in the PO, upon acceptance by CERES 14 (“Products”). All prices are in US dollars unless otherwise indicated. CERES 14 reserves the right to change the price for any of the Products from time to time on written notice to Customer. Upon receipt of a notice of a price increase, Customer has the right to cancel a PO or any portion thereof for Products affected by such price increase provided such Products have not been shipped. CERES 14 may make changes to or discontinue Products at any time but shall provide Customer with notice if any such changes affect Products subject to a pre-existing and unfulfilled PO. In such event, CERES 14 shall use reasonable efforts to substitute a Product acceptable to Customer, in Customer’s sole discretion, failing which either party may cancel all or any portion of a pre-existing and unfulfilled PO by giving written notice to the other party and neither party shall be liable to the other for any damages that may result from such cancellation.
3. INSPECTION. Customer shall have the right to inspect: (i) all bulk Products (such as those arriving in tanks, railcars, trucks, etc.) on delivery and prior to unloading; and (ii) all packaged Products (such as pails, totes, drums, etc.) within 10 business days from the date of delivery. During the applicable inspection period, Customer shall have the right to notify CERES 14 that it wishes to reject Product(s) that do not meet the product specifications previously agreed upon between the parties, failing which as contained in CERES 14’s documentation (the “Specifications”). The Product rejection process shall be as follows: (i) if Customer proposes to reject Product, then it agrees to immediately notify CERES 14, identifying the date of the shipment by CERES 14, the PO number, the serial number, the batch number, and providing evidence that such Product does not meet the Specifications; (ii) if CERES 14 does not agree that such Product does not meet the Specifications, then a sample of such Product shall be submitted to an independent third party laboratory acceptable to both parties acting reasonably, whose determination shall be final and binding on the parties, and the cost of which shall be borne by the incorrect party; (iii) if Customer accepts and/or uses the Product, or if the independent laboratory determines that such Product met the Specifications, then Customer is deemed to accept such Product and shall make no further claims with respect to same; (iv) if CERES 14 agrees that such Product does not meet the Specifications, or if the independent laboratory determines that such Product did not meet the Specifications, then CERES 14 agrees to refund or credit Customer within ten business days for such Product, or replace such Product, as determined by CERES 14 in its sole discretion, all at CERES 14’S cost. Following the applicable abovementioned inspection period, Customer shall not be permitted to return any Product without CERES 14’s prior written consent.
4. OBLIGATIONS AND RESTRICTIONS. Customer shall: (i) use and dispose of Products only in accordance with applicable laws and regulations; (ii) conduct all safety testing of the Product and any products created using the Product; (iii) ensure that the Product, including the quantities and types of ingredients within the Product, may be manufactured, sold and/or used for Customer’s intended purpose; (iv) ensure that any modifications to the Product, and any residual solvents or chemicals remaining in any products created using the Product, are safe for sale and use, including by retail customers (if being sold thereto); and (v) ensure the adequacy and safety of all packaging, labelling and warnings, safety devices, and instructions contained in, on or with any products created using the Product. Customer shall not: (i) use or sell any Product after its recommended re-test date; (ii) use Products as gasoline blend stocks; (iii) use Products as fireplace or lamp fuel (or any similar device); (iv) use Products for any non-commercial purpose; or (v) resell, distribute, or supply Products to any person for retail sale or personal/household use.
5. PAYMENT. Customer shall pay CERES 14 the prices invoiced plus all taxes, duties, charges, or any other impost of a similar nature (“Taxes”). Customer shall also comply with all excise and other applicable taxes and shall accurately report its status with respect to same to CERES 14 and applicable regulatory authorities at all times. Unless otherwise set out on the PO, all invoices shall be payable in full within 30 days of the invoice date (and all excise taxes shall be payable within eight days) by electronic funds transfer, credit card or by cheque. Customer may not make deductions or offsets of any kind from payments due to CERES 14 unless CERES 14 has provided its prior written consent, which may be withheld in CERES 14’s sole discretion. If any invoiced amounts are not paid on the applicable due date, Customer shall be in arrears and such amounts shall bear interest, after the due date until paid in full, at a rate of 1.5% per month calculated and payable monthly (18% per year), with interest on overdue interest accruing at the same rate. In addition, CERES 14 may, without waiving any other rights or remedies to which it may be entitled: (i) deduct or offset any unpaid amounts owing after the applicable due date against any payments owing from CERES 14 to Customer; (ii) refuse to ship ordered Products; and/or (iii) seek collection from Customer of any unpaid amounts, including reasonable legal fees incurred and costs of collection.
6. LABELLING. If CERES 14 is private labelling Products for Customer, Customer acknowledges that it has independently verified and confirmed that the labelling and packaging of the Products are fit for Customer’s intended purpose, regardless of whether or not CERES 14 may have assisted in the creation or design thereof. In the event that Customer provides CERES 14 with label content and/or design, Customer shall be solely responsible (notwithstanding any review or approval by CERES 14) for ensuring that same: (i) complies with all Applicable Laws; (ii) is accurate; (iii) contains all safety, use, and other applicable warnings and notifications required, recommended and/or appropriate to sell the Products to industrial, commercial or consumer end users, as may be applicable; and (iv) is properly affixed on the Products. In the event that Customer provides CERES 14 with label stock, Customer shall not make any modifications thereto without CERES 14’s prior written consent.
7. FREIGHT. Unless otherwise set out in the PO, all prices are F.O.B. CERES 14’s facility or warehouse and shall be shipped at Customer’s expense, plus shipping and handling charges, by the carrier of CERES 14’s choice. All additional services requested by Customer shall be Customer’s sole responsibility, regardless of whether pricing is “delivered” (or any similar term). For international customers, if pricing is described as “delivered” (or any similar term), such pricing shall be D.A.P. the port closest to the Customer. Products shall be labelled in accordance with US country of origin laws. Customer is responsible for taxes, duties, and levies applicable in the destination country of the Product.
8. TITLE AND RISK OF LOSS. Title and risk of loss of, or damage to, Products shall pass to Customer at the time of delivery of Products to the carrier at CERES 14’s warehouse or facility as applicable. In the case of international customers receiving delivered pricing, such title and risk of loss or damage shall pass to Customer upon arrival at the destination port.
9. PARTIAL SHIPMENTS. CERES 14 shall use reasonable efforts to meet the requested delivery dates for Products specified in the PO. CERES 14 reserves the right to ship any PO in part, and such shipments may be invoiced separately. Delay in delivery of a PO or any part of a PO shall not relieve Customer of its payment obligations for the PO or the remaining part thereof.
10. LIMITED WARRANTIES. Subject to the Sections entitled LIMITATION OF LIABILITY, THIRD PARTY CLAIMS, and STORAGE, CERES 14 hereby warrants that Products: (i) shall meet the Specifications until the earlier of: (A) the re-test date set out in the certificate of analysis (“COA”); and (B) the moment such Product is transferred or pumped into another container, used, combined, blended or in any way otherwise altered; and (ii) do not infringe any third party’s patent, copyright or trademark in the jurisdiction from which the Product is shipped. To the maximum extent permitted by law, all other warranties, conditions, or representations not specifically included in these Terms, including without limitation those with respect to merchantability or fitness for any particular purpose, whether express, implied, statutory, or arising from a course of dealing or usage of the trade, are expressly excluded.
11. STORAGE. It is Customer’s responsibility to ensure that Products are safely stored in accordance with applicable law and to monitor the storage conditions and any effects they may have on the Specifications.
12. WEIGHTS AND MEASUREMENTS. Customer acknowledges that CERES 14 ships and bills in standard US weights and volumes. When conversions from other systems are required, CERES 14 rounds to the nearest whole US shipping unit (e.g. gallon, case, drum or tote).
13. LIMITATION OF LIABILITY. Regardless of the basis on which Customer is entitled to claim damages (including fundamental breach, negligence, misrepresentation, or other contract or tort claim) from CERES 14, CERES 14 is liable to Customer for no more than the amount of Customer’s actual direct damages, up to the actual purchase price of the Product in the PO that is the subject of the claim. This limitation of liability is cumulative and not per incident. Under no circumstances is CERES 14 liable to Customer for any of the following, even if advised or informed of their possibility: (i) special, incidental, indirect, consequential or punitive damages; (ii) lost profits, business, revenue, goodwill, or anticipated savings; (iii) loss of, or damage to, any equipment; (iv) Customer’s negligence; (v) misuse or modification of Product after delivery; or (vi) the combination of Product(s) with other product(s) or item(s). Nothing contained herein shall restrict or limit Customer’s liability to CERES 14, and Customer shall contribute to any liability to the extent of the contributory and/or relative fault of Customer.
14. THIRD PARTY CLAIMS. Subject to the Section entitled LIMITATION OF LIABILITY, if a third-party claims that Products infringe a third party’s patent, copyright or trademark in the jurisdiction from which the Product is shipped, CERES 14 shall, at its expense, defend Customer against that claim and pay all costs, damages and reasonable legal fees that a court finally awards or that are included in a settlement approved by CERES 14. If such a claim is made or appears likely to be made, CERES 14 may, in its sole discretion and at its own expense: (i) resolve the claim in a way that permits continued ownership and use of the affected Products; (ii) replace same with non-infringing products; (iii) modify Products so that they become non-infringing; or (iv) accept the return of the infringing Products and provide a refund for such infringing Products. This Section is a conclusive statement of CERES 14 s entire liability and responsibility regarding any claim of infringement and Customer’s sole and exclusive remedy in connection therewith, and nothing in these Terms or elsewhere shall obligate CERES 14 to provide any greater indemnity to Customer. CERES 14 shall exclusively control the defense and settlement of any infringement claims it assumes on behalf of Customer. CERES 14 shall not enter any settlement that imposes any liability or obligation on Customer without Customer’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed. The parties shall cooperate in the settlement or defense and give each other full access to all relevant information. CERES 14 is not obligated to indemnify or defend Customer with respect to the claim (or portions of the claim) if Customer fails to promptly notify CERES 14 of the claim and fails to provide reasonable cooperation and information to defend or settle the claim if, but only to the extent that such failure prejudices CERES 14’s ability to defend or settle the claim. CERES 14’s assumption of the defense of the claim does not constitute an admission that it is required to indemnify Customer.
15. INDEMNITY. Customer indemnifies and holds harmless CERES 14 for any and all claims, damages and losses arising from, or made by persons with respect to any breach of the Terms by Customer.
16. INSURANCE. Customer maintains, and agrees to continue to maintain, such policies of insurance as are appropriate for Customer’s business and the Products being purchased, in the amounts, and against the risks, as are customarily carried and insured against by owners of comparable businesses, properties and assets.
187 TERMINATION. If Customer: (i) breaches these Terms; or (ii) becomes insolvent, commits an act of bankruptcy, enters into any arrangement or composition with its creditors, goes or is put into liquidation or has a receiver appointed over any part of its business assets, then, in addition to and without prejudice to any other rights or remedies to which it may be entitled at law or in equity, CERES 14 may terminate any unfulfilled PO and recover from Customer, at Customer’s expense, any Products not paid for as of the date of termination together with any Products on which CERES 14 may have a purchase money security interest.
18. FORCE MAJEURE. Neither party shall be liable to the other party for non-performance or delay in performance of any of its obligation under this Agreement (other than Customer’s payment obligations for Product) due to causes reasonably beyond its control including, but not limited to: fire, flood, epidemic, natural disasters, strikes, lock-out, labor trouble, other industrial disturbances, lack of raw materials, unavoidable accidents, governmental regulations and/or changes in law, war, riots, terrorism, termination and insurrections. Upon the occurrence of a force majeure event, the affected party shall immediately notify the other party with as much detail as possible and shall promptly inform the other party of any further developments. Immediately after the cause is removed, the affected party shall perform such obligations with all due speed. Should any force majeure event continue for 30 days or more, either party may terminate this Agreement upon notice to the other party.
19. INTELLECTUAL PROPERTY. Customer acknowledges that as between the parties, all intellectual property used on, embodied in, or related to Products belong to and shall be the exclusive property of CERES 14, and Customer shall not make use of any such intellectual property without the express written authorization of CERES 14.
20. ASSIGNMENT. Customer shall not assign these Terms in whole or in part without the prior written consent of CERES 14 and any assignment without such prior written consent shall be void. CERES 14 may, by providing notice to Customer, assign these Terms to any person. Subject to the foregoing, these Terms shall ensure to the benefit of and be binding upon the parties and their respective successors and assigns.
21. GOVERNING LAW. These Terms shall be governed by and construed in accordance with the laws of the jurisdiction from which the Product is shipped and shall be treated in all respects as a contract executed in such jurisdiction. Each party hereto irrevocably submits to the exclusive jurisdiction of the courts of such jurisdiction with respect to any matter arising hereunder or in relation to this Agreement and shall be the exclusive forum for all actions arising hereunder. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
22. ENTIRE AGREEMENT. These Terms and the Supply Agreement, if any, constitute the entire agreement between CERES 14 and Customer with respect to Products and supersede all prior agreements, arrangements, understandings, negotiations, and discussions, whether oral or written, except for any non-disclosure and/or confidentiality agreements, which shall continue until they expire pursuant to their terms. No supplement, modification or waiver of these Terms shall be binding unless executed in writing by the parties. No waiver of any particular term, condition or breach of these Terms shall constitute a waiver thereof nor a waiver of a party’s right at any time thereafter to require strict compliance with all the terms and conditions of these Terms.
23. SURVIVAL. The parties’ rights and obligations which, by their nature, would continue beyond the termination, cancellation, or expiration of this Agreement, including but not limited to those rights and obligations of the parties set forth in the Sections entitled LIMITED WARRANTIES, LIMITATION OF LIABILITY, INTELLECTUAL PROPERTY and THIRD-PARTY CLAIMS shall survive such termination, cancellation or expiration.
24. SEVERABILITY. If any one or more of the provisions contained in these Terms shall be declared invalid, illegal, or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired, and in such case, the parties hereto oblige themselves to reach the purpose of the invalid provision by a new, valid and legal stipulation.
By submitting a purchase order or otherwise ordering products (“PO”) from CERES 14 INC. or SIMPLE SOLVENTS LLC (“CERES 14”), the customer identified on the PO (“Customer”) agrees to be bound by these terms and conditions (“Terms”).
1. ACCEPTANCE OF ORDERS. All POs are subject to acceptance by CERES 14 in writing. No terms and conditions of any letter, Customer purchase order, invoice or other document submitted by Customer in connection with a PO shall amend, add to, vary, or modify these Terms. No failure by CERES 14 to object to such terms or conditions shall be deemed to be a waiver of this provision. CERES 14 reserves the right to amend, modify or revise these Terms from time to time. The parties acknowledge and agree that the terms and conditions of any unexpired agreement executed by the parties, if any, shall apply to the supply of Products (a “Supply Agreement”). To the extent of any conflict between these Terms and the terms and conditions of a Supply Agreement, such Supply Agreement shall prevail to the extent of such inconsistency, provided however that upon the expiration or termination of such Supply Agreement these Terms shall prevail.
2. PRODUCTS, PRICES AND CHANGES. The products covered by these Terms are those specifically identified in the PO, upon acceptance by CERES 14 (“Products”). All prices are in US dollars unless otherwise indicated. CERES 14 reserves the right to change the price for any of the Products from time to time on written notice to Customer. Upon receipt of a notice of a price increase, Customer has the right to cancel a PO or any portion thereof for Products affected by such price increase provided such Products have not been shipped. CERES 14 may make changes to or discontinue Products at any time but shall provide Customer with notice if any such changes affect Products subject to a pre-existing and unfulfilled PO. In such event, CERES 14 shall use reasonable efforts to substitute a Product acceptable to Customer, in Customer’s sole discretion, failing which either party may cancel all or any portion of a pre-existing and unfulfilled PO by giving written notice to the other party and neither party shall be liable to the other for any damages that may result from such cancellation.
3. INSPECTION. Customer shall have the right to inspect: (i) all bulk Products (such as those arriving in tanks, railcars, trucks, etc.) on delivery and prior to unloading; and (ii) all packaged Products (such as pails, totes, drums, etc.) within 10 business days from the date of delivery. During the applicable inspection period, Customer shall have the right to notify CERES 14 that it wishes to reject Product(s) that do not meet the product specifications previously agreed upon between the parties, failing which as contained in CERES 14’s documentation (the “Specifications”). The Product rejection process shall be as follows: (i) if Customer proposes to reject Product, then it agrees to immediately notify CERES 14, identifying the date of the shipment by CERES 14, the PO number, the serial number, the batch number, and providing evidence that such Product does not meet the Specifications; (ii) if CERES 14 does not agree that such Product does not meet the Specifications, then a sample of such Product shall be submitted to an independent third party laboratory acceptable to both parties acting reasonably, whose determination shall be final and binding on the parties, and the cost of which shall be borne by the incorrect party; (iii) if Customer accepts and/or uses the Product, or if the independent laboratory determines that such Product met the Specifications, then Customer is deemed to accept such Product and shall make no further claims with respect to same; (iv) if CERES 14 agrees that such Product does not meet the Specifications, or if the independent laboratory determines that such Product did not meet the Specifications, then CERES 14 agrees to refund or credit Customer within ten business days for such Product, or replace such Product, as determined by CERES 14 in its sole discretion, all at CERES 14’S cost. Following the applicable abovementioned inspection period, Customer shall not be permitted to return any Product without CERES 14’s prior written consent.
4. OBLIGATIONS AND RESTRICTIONS. Customer shall: (i) use and dispose of Products only in accordance with applicable laws and regulations; (ii) conduct all safety testing of the Product and any products created using the Product; (iii) ensure that the Product, including the quantities and types of ingredients within the Product, may be manufactured, sold and/or used for Customer’s intended purpose; (iv) ensure that any modifications to the Product, and any residual solvents or chemicals remaining in any products created using the Product, are safe for sale and use, including by retail customers (if being sold thereto); and (v) ensure the adequacy and safety of all packaging, labelling and warnings, safety devices, and instructions contained in, on or with any products created using the Product. Customer shall not: (i) use or sell any Product after its recommended re-test date; (ii) use Products as gasoline blend stocks; (iii) use Products as fireplace or lamp fuel (or any similar device); (iv) use Products for any non-commercial purpose; or (v) resell, distribute, or supply Products to any person for retail sale or personal/household use.
5. PAYMENT. Customer shall pay CERES 14 the prices invoiced plus all taxes, duties, charges, or any other impost of a similar nature (“Taxes”). Customer shall also comply with all excise and other applicable taxes and shall accurately report its status with respect to same to CERES 14 and applicable regulatory authorities at all times. Unless otherwise set out on the PO, all invoices shall be payable in full within 30 days of the invoice date (and all excise taxes shall be payable within eight days) by electronic funds transfer, credit card or by cheque. Customer may not make deductions or offsets of any kind from payments due to CERES 14 unless CERES 14 has provided its prior written consent, which may be withheld in CERES 14’s sole discretion. If any invoiced amounts are not paid on the applicable due date, Customer shall be in arrears and such amounts shall bear interest, after the due date until paid in full, at a rate of 1.5% per month calculated and payable monthly (18% per year), with interest on overdue interest accruing at the same rate. In addition, CERES 14 may, without waiving any other rights or remedies to which it may be entitled: (i) deduct or offset any unpaid amounts owing after the applicable due date against any payments owing from CERES 14 to Customer; (ii) refuse to ship ordered Products; and/or (iii) seek collection from Customer of any unpaid amounts, including reasonable legal fees incurred and costs of collection.
6. LABELLING. If CERES 14 is private labelling Products for Customer, Customer acknowledges that it has independently verified and confirmed that the labelling and packaging of the Products are fit for Customer’s intended purpose, regardless of whether or not CERES 14 may have assisted in the creation or design thereof. In the event that Customer provides CERES 14 with label content and/or design, Customer shall be solely responsible (notwithstanding any review or approval by CERES 14) for ensuring that same: (i) complies with all Applicable Laws; (ii) is accurate; (iii) contains all safety, use, and other applicable warnings and notifications required, recommended and/or appropriate to sell the Products to industrial, commercial or consumer end users, as may be applicable; and (iv) is properly affixed on the Products. In the event that Customer provides CERES 14 with label stock, Customer shall not make any modifications thereto without CERES 14’s prior written consent.
7. FREIGHT. Unless otherwise set out in the PO, all prices are F.O.B. CERES 14’s facility or warehouse and shall be shipped at Customer’s expense, plus shipping and handling charges, by the carrier of CERES 14’s choice. All additional services requested by Customer shall be Customer’s sole responsibility, regardless of whether pricing is “delivered” (or any similar term). For international customers, if pricing is described as “delivered” (or any similar term), such pricing shall be D.A.P. the port closest to the Customer. Products shall be labelled in accordance with US country of origin laws. Customer is responsible for taxes, duties, and levies applicable in the destination country of the Product.
8. TITLE AND RISK OF LOSS. Title and risk of loss of, or damage to, Products shall pass to Customer at the time of delivery of Products to the carrier at CERES 14’s warehouse or facility as applicable. In the case of international customers receiving delivered pricing, such title and risk of loss or damage shall pass to Customer upon arrival at the destination port.
9. PARTIAL SHIPMENTS. CERES 14 shall use reasonable efforts to meet the requested delivery dates for Products specified in the PO. CERES 14 reserves the right to ship any PO in part, and such shipments may be invoiced separately. Delay in delivery of a PO or any part of a PO shall not relieve Customer of its payment obligations for the PO or the remaining part thereof.
10. LIMITED WARRANTIES. Subject to the Sections entitled LIMITATION OF LIABILITY, THIRD PARTY CLAIMS, and STORAGE, CERES 14 hereby warrants that Products: (i) shall meet the Specifications until the earlier of: (A) the re-test date set out in the certificate of analysis (“COA”); and (B) the moment such Product is transferred or pumped into another container, used, combined, blended or in any way otherwise altered; and (ii) do not infringe any third party’s patent, copyright or trademark in the jurisdiction from which the Product is shipped. To the maximum extent permitted by law, all other warranties, conditions, or representations not specifically included in these Terms, including without limitation those with respect to merchantability or fitness for any particular purpose, whether express, implied, statutory, or arising from a course of dealing or usage of the trade, are expressly excluded.
11. STORAGE. It is Customer’s responsibility to ensure that Products are safely stored in accordance with applicable law and to monitor the storage conditions and any effects they may have on the Specifications.
12. WEIGHTS AND MEASUREMENTS. Customer acknowledges that CERES 14 ships and bills in standard US weights and volumes. When conversions from other systems are required, CERES 14 rounds to the nearest whole US shipping unit (e.g. gallon, case, drum or tote).
13. LIMITATION OF LIABILITY. Regardless of the basis on which Customer is entitled to claim damages (including fundamental breach, negligence, misrepresentation, or other contract or tort claim) from CERES 14, CERES 14 is liable to Customer for no more than the amount of Customer’s actual direct damages, up to the actual purchase price of the Product in the PO that is the subject of the claim. This limitation of liability is cumulative and not per incident. Under no circumstances is CERES 14 liable to Customer for any of the following, even if advised or informed of their possibility: (i) special, incidental, indirect, consequential or punitive damages; (ii) lost profits, business, revenue, goodwill, or anticipated savings; (iii) loss of, or damage to, any equipment; (iv) Customer’s negligence; (v) misuse or modification of Product after delivery; or (vi) the combination of Product(s) with other product(s) or item(s). Nothing contained herein shall restrict or limit Customer’s liability to CERES 14, and Customer shall contribute to any liability to the extent of the contributory and/or relative fault of Customer.
14. THIRD PARTY CLAIMS. Subject to the Section entitled LIMITATION OF LIABILITY, if a third-party claims that Products infringe a third party’s patent, copyright or trademark in the jurisdiction from which the Product is shipped, CERES 14 shall, at its expense, defend Customer against that claim and pay all costs, damages and reasonable legal fees that a court finally awards or that are included in a settlement approved by CERES 14. If such a claim is made or appears likely to be made, CERES 14 may, in its sole discretion and at its own expense: (i) resolve the claim in a way that permits continued ownership and use of the affected Products; (ii) replace same with non-infringing products; (iii) modify Products so that they become non-infringing; or (iv) accept the return of the infringing Products and provide a refund for such infringing Products. This Section is a conclusive statement of CERES 14 s entire liability and responsibility regarding any claim of infringement and Customer’s sole and exclusive remedy in connection therewith, and nothing in these Terms or elsewhere shall obligate CERES 14 to provide any greater indemnity to Customer. CERES 14 shall exclusively control the defense and settlement of any infringement claims it assumes on behalf of Customer. CERES 14 shall not enter any settlement that imposes any liability or obligation on Customer without Customer’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed. The parties shall cooperate in the settlement or defense and give each other full access to all relevant information. CERES 14 is not obligated to indemnify or defend Customer with respect to the claim (or portions of the claim) if Customer fails to promptly notify CERES 14 of the claim and fails to provide reasonable cooperation and information to defend or settle the claim if, but only to the extent that such failure prejudices CERES 14’s ability to defend or settle the claim. CERES 14’s assumption of the defense of the claim does not constitute an admission that it is required to indemnify Customer.
15. INDEMNITY. Customer indemnifies and holds harmless CERES 14 for any and all claims, damages and losses arising from, or made by persons with respect to any breach of the Terms by Customer.
16. INSURANCE. Customer maintains, and agrees to continue to maintain, such policies of insurance as are appropriate for Customer’s business and the Products being purchased, in the amounts, and against the risks, as are customarily carried and insured against by owners of comparable businesses, properties and assets.
187 TERMINATION. If Customer: (i) breaches these Terms; or (ii) becomes insolvent, commits an act of bankruptcy, enters into any arrangement or composition with its creditors, goes or is put into liquidation or has a receiver appointed over any part of its business assets, then, in addition to and without prejudice to any other rights or remedies to which it may be entitled at law or in equity, CERES 14 may terminate any unfulfilled PO and recover from Customer, at Customer’s expense, any Products not paid for as of the date of termination together with any Products on which CERES 14 may have a purchase money security interest.
18. FORCE MAJEURE. Neither party shall be liable to the other party for non-performance or delay in performance of any of its obligation under this Agreement (other than Customer’s payment obligations for Product) due to causes reasonably beyond its control including, but not limited to: fire, flood, epidemic, natural disasters, strikes, lock-out, labor trouble, other industrial disturbances, lack of raw materials, unavoidable accidents, governmental regulations and/or changes in law, war, riots, terrorism, termination and insurrections. Upon the occurrence of a force majeure event, the affected party shall immediately notify the other party with as much detail as possible and shall promptly inform the other party of any further developments. Immediately after the cause is removed, the affected party shall perform such obligations with all due speed. Should any force majeure event continue for 30 days or more, either party may terminate this Agreement upon notice to the other party.
19. INTELLECTUAL PROPERTY. Customer acknowledges that as between the parties, all intellectual property used on, embodied in, or related to Products belong to and shall be the exclusive property of CERES 14, and Customer shall not make use of any such intellectual property without the express written authorization of CERES 14.
20. ASSIGNMENT. Customer shall not assign these Terms in whole or in part without the prior written consent of CERES 14 and any assignment without such prior written consent shall be void. CERES 14 may, by providing notice to Customer, assign these Terms to any person. Subject to the foregoing, these Terms shall ensure to the benefit of and be binding upon the parties and their respective successors and assigns.
21. GOVERNING LAW. These Terms shall be governed by and construed in accordance with the laws of the jurisdiction from which the Product is shipped and shall be treated in all respects as a contract executed in such jurisdiction. Each party hereto irrevocably submits to the exclusive jurisdiction of the courts of such jurisdiction with respect to any matter arising hereunder or in relation to this Agreement and shall be the exclusive forum for all actions arising hereunder. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
22. ENTIRE AGREEMENT. These Terms and the Supply Agreement, if any, constitute the entire agreement between CERES 14 and Customer with respect to Products and supersede all prior agreements, arrangements, understandings, negotiations, and discussions, whether oral or written, except for any non-disclosure and/or confidentiality agreements, which shall continue until they expire pursuant to their terms. No supplement, modification or waiver of these Terms shall be binding unless executed in writing by the parties. No waiver of any particular term, condition or breach of these Terms shall constitute a waiver thereof nor a waiver of a party’s right at any time thereafter to require strict compliance with all the terms and conditions of these Terms.
23. SURVIVAL. The parties’ rights and obligations which, by their nature, would continue beyond the termination, cancellation, or expiration of this Agreement, including but not limited to those rights and obligations of the parties set forth in the Sections entitled LIMITED WARRANTIES, LIMITATION OF LIABILITY, INTELLECTUAL PROPERTY and THIRD-PARTY CLAIMS shall survive such termination, cancellation or expiration.
24. SEVERABILITY. If any one or more of the provisions contained in these Terms shall be declared invalid, illegal, or unenforceable in any respect under any applicable law, the validity, legality and enforceability of the remaining provisions contained herein shall not in any way be affected or impaired, and in such case, the parties hereto oblige themselves to reach the purpose of the invalid provision by a new, valid and legal stipulation.
