| Sappi Global

North America

1. APPLICABILITY

These Global Terms and Conditions of Sale (“Terms”) apply to the sales of paper and film products containing surface textures or other functional and/or aesthetic surface effects, including but not limited to, finished surface products and products for casting and release purposes, and ancillary services (collectively, the “Products”) by Sappi North America and its affiliates and subsidiaries (collectively, “Seller”) to any buyer (“Buyer”). Except as otherwise agreed to by Seller in writing, the Terms set forth herein, together with the applicable Seller order confirmation or accepted purchase order, shall constitute the complete and final agreement between Seller and Buyer, superseding completely any prior oral or written communications. Terms or conditions contained in any document issued by Buyer which in any manner purport to alter, modify, change, suspend, or add to any term or condition contained herein shall be deemed excluded from such Buyer document and waived by Buyer. Seller and Buyer expressly agree that Seller may modify these Terms from time to time, and such modifications shall be binding upon Buyer.

Seller’s acceptance of Buyer’s purchase order or commencement of performance shall not constitute acceptance of any of Buyer’s terms and conditions. Buyer’s assent to these terms and conditions shall be conclusively presumed from Buyer's (1) receipt of Seller’s order confirmation (“Order Confirmation”) without written objection sent to Seller within five (5) business days after receipt of this Order Confirmation or accepted purchase order, (2) instructing Seller to begin work or to ship any of the Products after receipt of Seller’s Order Confirmation or accepted purchase order, or (3) acceptance of all or any part of the Products ordered. Seller may commence performance in reliance upon Buyer’s acceptance of these Terms.

2. CANCELLATION

Buyer cannot modify, cancel, or otherwise alter purchase orders after receipt of purchase order by Seller without Seller’s written consent. Any such modification, cancellation, or alteration shall be subject to conditions as negotiated at such time, which shall include payment by Buyer to Seller for all expenses incurred and damage sustained by Seller on account of the cancellation or modification, plus a reasonable profit.

3. PRICE

Unless otherwise agreed in writing, the purchase price of the Products shall be the price prevailing at the time of Buyer’s purchase order as reflected on Seller's then-current price list; provided, however, that if Seller announces a surcharge or price increase, such surcharge or price increase shall become effective for Products scheduled for shipment beginning on the date set forth in Seller’s announcement of such surcharge or, if there is no such date, immediately upon such announcement.

4. TAXES AND DUTIES

Prices do not include VAT, sales, use, excise, customs, export, import, commodity, or similar taxes, levies, duties, or other charges. All taxes and duties of any kind levied by any federal, state, municipal, foreign, or other governmental authority which Seller is required to collect or pay with respect to the Products sold hereunder shall be the responsibility of Buyer. Buyer agrees to pay all such taxes and further agrees to reimburse Seller for any such payments made by Seller.

5. TERMS OF PAYMENT; SECURITY INTEREST

Subject to the approval of Seller’s credit department, terms of payment shall be net 30 days from the date of Seller's invoice. If at any time Seller deems Buyer's credit unsatisfactory or in any way impaired, Seller reserves the right, among other remedies, to terminate or suspend supplying products or services to Buyer and/or to require payment by cash in advance or payment secured by an irrevocable letter of credit. Buyer shall make all payments in the currency stated in the Order Confirmation and in full without any discount, set off or other reductions.

Unpaid amounts will accrue interest at a rate equal to the lesser of one and one-half percent (1.5%) per month and the maximum rate permitted by applicable law, from due date until paid, plus Seller’s reasonable costs of collection. In addition to all other remedies available to Seller (which Seller does not waive by the exercise of any rights hereunder), Seller may suspend the delivery of any Products if Buyer fails to pay any amounts when due and the failure continues for five (5) business days following Buyer’s receipt of notice thereof.

Seller retains a security interest in all Products shipped for later payment by Buyer. Buyer will, if requested by Seller, execute and register any instruments required to grant and perfect a security interest in each item of Product, as well as any substitutions, replacements, additions or proceeds to secure the payment by the Buyer of the aggregate purchase Price of Products and any related taxes, charges, costs or expenses incurred in enforcing the security interest. This security interest will be deemed released only upon payment in full of all such amounts.

6. DELIVERY; SHIPPING

Seller will deliver the Products within a reasonable time after receiving Buyer’s purchase order, subject to their availability. The delivery date provided by Seller for the Products is only an estimate and is based upon prompt receipt of all necessary information from Buyer. If Buyer causes Seller to delay shipment or completion of the Products, Seller will be entitled to any and all extra costs and expenses resulting from the delay. Seller will not be liable for any delays, loss, or damage in transit, and failure to deliver within the time estimated will not be a material breach of contract on Seller’s part.

Products are delivered as specified on the Order Confirmation (“Delivery”). Seller shall arrange for shipment of Products as follows:

For destinations outside of North America, to the destination port;
For U.S. and Canada destinations, to Buyer’s designated location on the Order Confirmation; and
For Mexico destinations, to the border of the U.S. and Mexico (“frontier”).

The cost of shipping and any desired insurance shall be borne by Buyer and, if not paid directly, Buyer shall reimburse Seller upon Seller’s invoice in accordance with Section 5. If Buyer arranges for the shipment of Products, Delivery shall mean Sappi’s U.S. manufacturing facility or designated warehouse.

For shipments to a destination port or the frontier Buyer will take possession of the Products within three (3) days of Seller’s notice to Buyer's designated carrier that the Products have been Delivered. If Buyer fails to take possession of the Products within this 3-day period Buyer will pay Seller for the Products, any demurrage and all storage expenses incurred by Seller. Any shipments returned to Seller as a result of Buyer’s unexcused delay or failure to accept Delivery will require Buyer to pay all additional costs incurred by Seller. Buyer is responsible for all payments due to the carrier. Buyer assumes all risk of loss upon Delivery of Products by Seller to Buyer's carrier and/or bailee in the case of container orders. Seller is under no obligation to insure shipments unless specifically requested by Buyer and then only at Buyer's expense and valuation. Buyer is responsible for obtaining any import licenses and other consents required for a Product shipment at its own expense, and will provide the licenses and consents to the Seller before shipment.

Seller may, in its sole discretion, without liability or penalty, make partial shipments of Products to Buyer. Each shipment will constitute a separate sale, and Buyer will pay for the Products shipped whether the shipment is in whole or partial fulfillment of Buyer's purchase order.

7. TITLE; RISK OF LOSS

Products shall be deemed accepted by Buyer upon Delivery. Risk of loss or damage will pass to Buyer at Delivery. Any loss or damage thereafter, including damage or loss during loading or transportation, will be Buyer’s responsibility and will not relieve Buyer of its payment obligation.

Title to Products passes to Buyer upon Buyer’s payment in full for the Products.

8. DAMAGED PRODUCTS

Any claim by Buyer against Seller for damage to Products occurring prior to Delivery must be made in writing before use of the Product, must be accompanied by documentation and photographs, and no later than the following: (a) within 30 days after receipt of shipment for obvious visual damage; or (b) within 6 months after receipt of shipment and within 10 business days following discovery of concealed damage which can only be revealed by unwrapping the Product in preparation for use. All claims must be made only for substantial cause, must be in writing, and must specify the reason(s) for the claim. The failure to notify Seller of any claim within such 30-day period shall constitute a waiver of and bar such claim. Seller must be given an opportunity to investigate the claim before Buyer disposes of the Products.

If Buyer timely and properly notifies Seller of such claim, and after its investigation, Seller agrees, Seller will, in its sole discretion, (i) replace the Products, or (ii) credit or refund the purchase price for the Products. At Seller’s request, Buyer will dispose of the Products or return the Products to Seller at Seller’s expense. Upon receipt of the Products, Seller will promptly refund the monies owed or ship the replacement Products to Buyer at Seller’s expense, with Seller retaining the risk of loss until delivery.

Buyer acknowledges and agrees that the remedies set forth in this Section 8 are Buyer’s exclusive remedies for the delivery of damaged Products, and except as set forth in this Section 8, Buyer has no right to return the Products to Seller without Seller’s written authorization.

9. LIMITED WARRANTY

Subject to the limitations and conditions contained in these Terms, Seller warrants to Buyer for a period of (a) three (3) years for casting and release Products, and (b) one (1) year for finished surface Products, after the date of shipment from Seller’s manufacturing facility in the U.S. (“Warranty Period”) that, as of the date of shipment, the Products sold under these Terms conformed to the product specifications provided with the Products, or if not so provided then the applicable published product specifications for such Products, if any. Under no circumstances does Seller guarantee or warrant any particular level of re-use for casting and release Products. No warranty is given if there are no applicable published specifications.

Seller's prices are based upon this limited warranty and any different or greater warranty coverage which Buyer requests may require a price adjustment. This limited warranty does not cover and excludes, without limitation: (i) any failure, losses, damages, deficiencies, costs or expenses arising or relating to any misuse (including use with incompatible materials, abnormal conditions of use and use for purposes not intended for the Product), accident, abuse or neglect; normal wear and tear; improper storage, handling or application of the Product or other materials or items used with the Product; and any similar acts, events or circumstances; (ii) Products made with materials or parts supplied by Buyer or manufactured to Buyer’s specifications; (iii) Products which have been altered, repaired, modified, or serviced by anyone other than Seller; (iv) Products for which Buyer has not paid in full; (v) Products which are sold as obsolete, off-spec, seconds or substandard, and (vi) any other claim or matter not within the scope of the limited warranty.

Seller's sole and exclusive liability and Buyer’s exclusive remedy for any breach of the limited warranty shall be (at Seller's option) to replace or refund the purchase price of any such Products which fail to conform, subject to Buyer: (1) promptly notifying Seller in writing that such Products failed to conform to the limited warranty with a detailed explanation of the alleged non-conformities, (2) if directed by Seller, returning such Products or a sample of such Products to Seller at Buyer’s expense, and (3) Seller's examination of such Products establishing Seller's satisfaction that such alleged nonconformity existed as of the date of shipment and did not result from causes excluded from the limited warranty. If Seller elects to replace such Products, Seller shall have a reasonable time to do so and the replacement Products shall be covered by the foregoing limited warranty for the remainder of the original Warranty Period. If Seller determines that any Products(s) so returned are not covered by the limited warranty, Seller reserves the right to charge Buyer for all costs and expenses incurred by Seller in shipping, examining and handling such product(s).

Failure by Buyer to give such written notice within the Warranty Period shall be deemed an absolute and unconditional waiver by Buyer of any claim for breach of such limited warranty and shall fully and completely release and discharge Seller from any obligation or liability under the limited warranty. The warranty is exclusive and in lieu of all other warranties and remedies.

Fitness of Product for Buyer’s use shall be determined solely by Buyer. Buyer hereby acknowledges and agrees that limitations on the use of certain patterns or textures on Products may apply. Buyer acknowledges that Seller has no control over Buyer’s manufacturing processes or its use of the Products and that Seller has made no warranties, guarantees, or assurances as to the results that may be obtained from the use of the Products whether used singly or in combination with other items.

THE FOREGOING LIMITED WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY SELLER WITH RESPECT TO PRODUCTS SOLD BY SELLER. SELLER MAKES NO AND DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR NON-INFRINGEMENT; ANY IMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE; ANY IMPLIED WARRANTY ARISING FROM ANY USE OF ANY PRODUCTS, OR SELLER'S AND/OR BUYER'S CONDUCT IN RELATION TO THE PRODUCTS WHETHER OR NOT THE PURPOSE OR USE OF THE PRODUCTS HAS BEEN DISCLOSED TO SELLER AND WHETHER OR NOT THE PRODUCTS ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR BUYER’S USE OR PURPOSE. SELLER ACCEPTS NO RESPONSIBILITY, RISK OR LIABILITY TO BUYER OR OTHERS CONCERNING, RELATING TO OR ARISING OUT OF THE PERFORMANCE, NONPERFORMANCE, FAILURE, EFFICACY, LENGTH OF LIFE OF OR ANY DEFECT IN THE WHOLE OR ANY PART OR PARTS OF ANY PRODUCT OR PRODUCTS MANUFACTURED OR FABRICATED FROM OR INCORPORATING OR OTHERWISE USING THE PRODUCTS SOLD HEREUNDER.

Buyer acknowledges that, except as expressly provided in these Terms, no representative of Seller is authorized to give or make any other representation or warranty or modify the above limited warranty in any way and that no Seller samples, tests, trials, data, catalogs, brochures or other publications and no statement, advice, recommendation, or instruction made or assistance given by Seller in connection with any Products or services shall constitute a representation or warranty or a waiver or modification by Seller of these Terms. Except for the above limited warranty, Buyer assumes all risk and liability from Buyer’s use of the products and acknowledges that it does not rely on, and waives any claim relating to, any such samples, tests, trials, data, catalogs, brochures, publications, statement, advice, recommendation, or instruction regarding the Products given to Buyer by Seller.
This limited warranty extends only to Buyer and to no other person.

10. TECHNICAL ADVICE

Seller assumes no obligation or liability for any technical advice furnished to Buyer or Buyer’s customers or subcontractors, including without limitation, technical advice with respect to the use of Seller's Products, all such technical advice being given and accepted at Buyer's risk. Seller will not be liable for any damages of any kind arising out of or relating to the use of or the inability to use the technical advice or information provided.

11. TOOLING FOR CUSTOM TEXTURES

Unless otherwise agreed in writing, all costs for tooling and similar items (“Tooling”), including design and development costs, which are incurred by Seller to make Products with custom Textures for Buyer will be paid by Buyer in addition to the price of the Products and are due and payable in advance. Unless otherwise agreed in writing, all such Tooling (including but not limited to, schematic drawings, photographs, software, prototypes, data files, grayscale images, dies and mills) shall be and remain the exclusive property of Seller, and Buyer shall not have any rights to ownership, possession or removal, nor to prevent their disposal or use by Seller for others.

Buyer represents and warrants that any specifications, designs, drawings, equipment, materials, or other items furnished by or on behalf of Buyer to Seller for use in connection with production of Products by Seller can be used by Seller to produce Products for Buyer without liability to any other person. Buyer shall bear all costs of delivering such specifications, designs, drawings, tooling, equipment, materials and other similar items to Seller's facility. Seller shall not be liable for loss, damage, maintenance, repair or renewal of any tooling or similar item, or any equipment furnished by Buyer, regardless of cause except to the extent (but only to the extent) caused solely by Seller’s gross negligence.

Unless otherwise agreed in writing by the parties, Buyer hereby acknowledges and agrees that the textures provided on the surface of Products are proprietary to Sappi and subject to protection under intellectual property laws. Buyer hereby further acknowledges and agrees that, except for the use of such textures on Buyer’s own products, the copying of such textures by Buyer or third parties to create counterfeit textures constitutes infringement of Sappi’s intellectual property rights.

12. INDEMNIFICATION

Buyer agrees to indemnify, hold harmless and defend Seller (and its employees, subsidiaries, affiliates, successors, suppliers and agents) from and against any and all claims (whether based on contract, tort, strict liability or otherwise), judgments, liabilities, damages, losses, expenses and costs (including, but not limited to, court costs and attorneys' fees) incurred or suffered by Seller, which relate to or arise out of (i) Buyer's or Buyer’s customer use, handling, sale, distribution or disposal of the Products, or (ii) Buyer's breach of any representation, warranty or obligation hereunder. Buyer shall defend any such matter with counsel reasonably acceptable to Seller and shall not settle any such matter except with the consent of Seller. If Buyer fails to promptly and diligently investigate and defend or settle any claim, then Seller shall have the right, at Buyer’s cost, expense and risk, from that time forward to have sole control of the defense of the claim and the terms of any settlement or compromise.

13. INFRINGEMENT

Seller shall defend Buyer from and against any third party claim or action to the extent such claim or action in based on a third party claim that the process used by Seller to manufacture the Product infringes such third party’s United States patent, copyright, trademark, or misappropriates such third party’s trade secret, and Seller will pay those damages and costs finally awarded against Buyer in any monetary settlement of such suit or action which are specifically attributable to such claim.

The foregoing obligations are conditioned on Buyer (i) notifying Seller promptly in writing of the action, (ii) making no admission of liability and giving Seller sole control of the defense thereof and any related settlement negotiations, and (iii) cooperating and, at Seller’s request and expense, assisting in the defense.

Notwithstanding the foregoing, Seller will have no obligation under this Section 13 or otherwise with respect to any infringement claim based upon any: (i) misuse or modification of the Products by Buyer or its employees or agents, (ii) use of the Products in combination with other materials, goods, products, or services for which the Products were not intended to be used, (iii) Products that Seller made to Buyer’s specifications or designs, (iv) allegedly infringing activity by Buyer after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (v) Buyer’s use of the Products incidental to an infringement not resulting primarily from the Products.

If any Product becomes, or in Seller’s opinion is likely to become, the subject of a claim of infringement, then Seller may, at its option and expense, (i) procure for Buyer the right to continue using the Products, or (ii) replace or modify the affected Products so that they becomes non-infringing.

THIS SECTION 13 STATES SELLER’S ENTIRE LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS AND ACTIONS.

14. LIMITATIONS OF LIABILITY

IN NO EVENT WILL SELLER BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES ARISING FROM OR RELATING TO ANY INJURY TO PERSONS, LOSS OF USE OR VALUE (INCLUDING WITHOUT LIMITATION, DIMINUTION IN VALUE OR STIGMA DAMAGES), LOSS OF REVENUE OR ANTICIPATED PROFITS, COST OF CAPITAL, DAMAGE TO OR LOSS OF OTHER PROPERTY OR EQUIPMENT, CLAIMS MADE BY CUSTOMERS OR END-USERS, DEMURRAGE CHARGES, COST OF SHIPMENT, AND COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT, OR OTHERWISE, WHETHER FORESEEABLE OR NOT, AND EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES.

SELLER’S TOTAL LIABILITY FOR ALL CLAIMS ARISING OUT OF, OR RELATING TO, THE PRODUCTS WILL BE LIMITED TO GENERAL MONEY DAMAGES IN AN AMOUNT NOT TO EXCEED THE TOTAL PURCHASE PRICE FOR THE PRODUCTS GIVING RISE TO THE CLAIM.

15. NO LICENSE

The sale of the Products will not confer upon Buyer any license, express or implied, under any patents, trademarks, trade names, or other proprietary rights owned or controlled by Seller, its subsidiaries, affiliates, or suppliers; it being specifically understood and agreed that all the rights are reserved to Seller, its subsidiaries, affiliates, or suppliers. Without limiting the foregoing, Buyer will not, without Seller’s prior written consent, use any trademark or trade name of Seller in connection with any the Products.

16. TERMINATION

In addition to any other remedies that Seller may have, Seller may terminate these Terms with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under these Terms and the failure continues for five (5) days after Buyer’s receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) 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.

17. CONFIDENTIALITY

All non-public, confidential, or proprietary information of Seller, including but not limited to specifications, samples, textures, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, that Seller discloses to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and regardless of whether marked, designated, or otherwise identified as “confidential,” is confidential, solely for the use in connection of sales of Product to Buyer, and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller's request, Buyer will promptly return all documents and other materials received from Seller. Seller will be entitled to injunctive relief for any violation of this Section 17, without having to post bond or establish the insufficiency of a remedy at law. This Section 17 does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Seller on a non-confidential basis from a third party.

18. FORCE MAJEURE

Seller shall not be responsible for cancellation or delay in delivery or performance resulting, directly or indirectly, from causes or circumstances beyond its reasonable control, including, but not limited to, acts of God, acts of Buyer, strikes or other labor disturbances regardless of whether Seller is capable of settling such strike or disturbance, mill conditions, temporary or permanent mill closures, equipment failure or repairs to equipment, inability to obtain fuel, raw materials, or parts, intervention or acts of government, war, acts of terrorism, riot, shortages or delays of transportation, epidemics and pandemics, floods, fires, unusually severe weather, blockades, sanctions or embargoes, accidents, unexpected increases in demand, or other contingency the non-occurrence of which was a basic assumption on which the purchase order was made and accepted (“Force Majeure”). Upon the occurrence of any Force Majeure, the time for performance by Seller shall be extended for a period equal to the time lost by reason of the controversy, and Seller shall have the right to allocate Products, in its sole discretion. Buyer waives any and all Seller liability resulting from such shortages or such allocation decision.

19. COMPLIANCE WITH LAWS; U.S. TRADE SANCTIONS

Each party will comply with all applicable laws, regulations, and ordinances, and Buyer will comply with the export and import laws and regulations in effect as of the date of shipment of the Products of any country involved in the transactions contemplated by these Terms.

BUYER AND SELLER ACKNOWLEDGE THAT NO DIRECT OR INDIRECT (THROUGH A THIRD PARTY OR COUNTRY) TRANSACTIONS, INCLUDING THE EXPORTATION OR IMPORTATION OF PRODUCTS, TECHNOLOGIES, OR SERVICES, OR FINANCIAL TRANSFERS WILL TAKE PLACE BETWEEN U.S. PERSONS AND ANY COUNTRY OR NATIONAL, ENTITY, OR INDIVIDUAL SANCTIONED BY THE U.S. GOVERNMENT WITHOUT THE APPROPRIATE U.S. GOVERNMENT LICENSE, SUCH AS, BUT NOT LIMITED TO, A SPECIFIC LICENSE FROM THE OFFICE OF FOREIGN ASSETS CONTROL (OFAC), AND WRITTEN PERMISSION FROM BOTH BUYER AND SELLER. SELLER MAY TERMINATE THESE TERMS WITHOUT NOTICE AND WITHOUT ANY LIABILITY TO THE BUYER IF THE BUYER BREACHES THE ABOVE PROVISIONS. BUYER SHALL HOLD SELLER HARMLESS FROM ANY CLAIMS SUFFERED BY BUYER OR SELLER AS A RESULT ON ANY VIOLATION OF THE ABOVE PROVISIONS BY THE BUYER. BUYER WARRANTS THAT IT WILL NOT DIVERT THE GOODS TO DESTINATIONS OTHER THAN THE DESTINATION INDICATED IN THE PURCHASE ORDER AND, IN THE CASE OF A BUYER DISTRIBUTOR, SHALL INCLUDE THESE TRADE SANCTION PROVISIONS IN ANY SUBSEQUENT CONTRACTS UNDER WHICH THE PRODUCTS ARE RESOLD.

20. GOVERNING LAW; VENUE

All matters arising out of or relating to these Terms shall be governed in all respects by the substantive laws of The Commonwealth of Massachusetts, without regard to any conflict of laws principles that would require the application of the laws of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to these Terms or the documents related thereto.

Buyer, acting for itself and its successors and assigns, hereby waives all rights to trial by jury in any litigation arising from or related to these Terms. Buyer expressly and irrevocably consents to the jurisdiction of the state and federal courts located in Boston, Massachusetts, and waives the right to assert that any action in any such court is in the improper venue or should be transferred to a more convenient forum.

Seller will have the sole and exclusive right to determine whether any dispute, controversy or claim arising out of or relating to these Terms, or the breach thereof, will be submitted to a court of law or arbitrated. The venue for any arbitration will be in Boston, Massachusetts. The arbitrator’s award may be confirmed and reduced to judgment in any court of competent jurisdiction.

21. MISCELLANEOUS

Buyer acknowledges that is has not been induced to purchase any the Products from Seller by any representation or warranty not expressly set forth in these Terms. If there is a conflict between the provisions of Seller’s order confirmation and these Terms, then the terms of Seller’s order confirmation will govern. No waiver by Seller of any of the provisions of these Terms is effective unless explicitly set forth in writing that specifically references these Terms and is signed by Seller. No failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms operates or may be construed as a waiver thereof. 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. The Section headings contained in these Terms are for convenience only and will not affect the interpretation of any provision. If any provision of these Terms is held to be prohibited or unenforceable, the provision will be changed and interpreted to accomplish the objectives of the provision to the greatest extent possible under applicable law and the remaining provisions will continue in full force and effect. Buyer will not assign any quotation or accepted order for the Products, in whole or in part, without Seller’s prior written consent.

22. SURVIVAL

In addition to any other term whose context may so require, the terms contained in Sections 1, 4, 5, 7, 8, 9, 10, 11, 12, 13, 14, 15, 17, 19, 20, 21 and 22 will survive any cancellation of the purchase order.