Terms of Use

JIU HENG LLC Terms Of Use

Last updated: 10/5/2022

1. Introduction

JIU HENG LLC (“JIU HENG”) provides service to you subject to these Terms of Use, which may be updated by JIU HENG from time to time without notice to you. These Terms of Use constitute a binding agreement between JIU HENG and you governing your use of JIU HENG services. By using, reviewing and/or visiting: (i) the www.bigbolt.net website to, for example, fill out the quote request form; (ii) any other Services or social media profiles owned or controlled by JIU HENG; (iii) sending or receiving communications to, from, or on behalf of JIU HENG; or (iv) otherwise interacting with services provided by JIU HENG (collectively, the “Services”), you signify your agreement to both these Terms of Use and the JIU HENG Privacy Policy, which is incorporated into these Terms of Use. You may only use the Services if you agree to abide by all applicable laws and to these Terms of Use. PLEASE READ THESE TERMS OF USE CAREFULLY, INCLUDING THE BINDING ARBITRATION AND CLASS ACTION WAIVER PROVISIONS LOCATED IN SECTION 9. IF YOU DO NOT AGREE TO THESE TERMS OF USE, YOU MAY NOT USE THE SERVICES.

 

2. Conditions for Use

  1. You may use the Services as set forth in these Terms of Use, provided that: (i) your use of the Services is solely for your personal, non-commercial use; (ii) you will not copy or distribute any part of the Services in any medium; (iii) you will not alter or modify any part of the Services; (iv) you will not use the Services for any purpose prohibited by law; and (v) you will otherwise comply with these Terms of Use.
  2. You agree to provide true, accurate, current, and complete information in connection with your use of the Services.
  3. You agree not to use or launch any automated system, including without limitation, “robots,” “spiders,” or similar technological devices or programs, to access the Services. You agree not to collect or use any personally identifiable information including without limitation email addresses, or other information except as necessary for use of the Services.

3. Services Terms

  1. JIU HENG reserves the right at any time and from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. JIU HENG shall not be liable to you or to any third party for any modification, suspension, or discontinuance of the Services.
  2. The content created by JIU HENG, including without limitation, the code, text, graphics, and photos created by and for the Services, interactive features of the Services and the trademarks, service marks and logos contained therein, are owned by or licensed to JIU HENG, subject to copyright and other intellectual property rights under applicable law. The Services are provided to you for your information and personal use only and may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any purpose whatsoever without the prior written consent of JIU HENG or as expressly provided herein. JIU HENG reserves all rights not expressly granted in and to the Services.
  3. To the extent that you provide JIU HENG any idea, suggestion, proposal, plan, or other material related to the Services, you grant to JIU HENG an unlimited right to use and exploit such material in any manner, including commercially, and you waive any right you may have in such material.

4. Indemnification

You agree to defend, indemnify and hold harmless JIU HENG, and its parents, subsidiaries, affiliates, members, directors, officers, employees, shareholders, partners, licensors, distributors, vendors, suppliers, agents, resellers, owners, and operators (the “JIU HENG Parties”), from and against any and all claims, damages, obligations, losses, liabilities, costs, debts, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Services; (ii) these Terms of Use; (iii) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (iv) any claim that you and/or JIU HENG caused damage to a third party, through the use of the Services. This defense and indemnification obligation survives your use of the Services. You agree that JIU HENG may select its own counsel and control the defense of any claim indemnified by you and you agree to cooperate with JIU HENG in connection with any such claim.

5. Warranty Disclaimer

  1. YOU AGREE THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES, LOSSES, OR LIABILITIES ARISING FROM OR IN CONNECTION WITH THE USE OF THE SERVICES. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
  2. TO THE FULLEST EXTENT PERMITTED BY LAW, THE JIU HENG PARTIES DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, IN CONNECTION WITH THE SERVICES AND YOUR USE THEREOF, INCLUDING WARRANTIES RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OR TRADE.
  3. THE JIU HENG PARTIES MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENT OF THE SERVICES. YOU AGREE THAT THE JIU HENG PARTIES WILL HAVE NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OR ANY HARM OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (III) UNAUTHORIZED ACCESS TO OR USE OF THE JIU HENG PARTIES’ SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (IV) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICES, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE SERVICES BY ANY THIRD PARTY, AND/OR (VI) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY INFORMATION POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE SERVICES.
  4. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE JIU HENG PARTIES OR OTHERWISE IN CONNECTION WITH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF USE. AS WITH THE PURCHASE OF A PRODUCT OR SERVICE THROUGH ANY MEDIUM OR IN ANY ENVIRONMENT, YOU SHOULD USE YOUR BEST JUDGMENT AND EXERCISE CAUTION WHERE APPROPRIATE.

6. Limitations of Liability

  1. IN NO EVENT SHALL THE JIU HENG PARTIES BE LIABLE TO YOU OR TO ANY RECIPIENT OR OTHER THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES WHATSOEVER RESULTING FROM ANY (I) ERRORS, MISTAKES, OR INACCURACIES IN THE SERVICES, (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE SERVICES, (III) UNAUTHORIZED ACCESS TO OR USE OF JIU HENG’S SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (IV) INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR SERVICES, (IV) BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY, AND/OR (V) LOSS OR DAMAGE OF ANY KIND CAUSED BY THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE JIU HENG PARTIES ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. YOU AGREE THAT THIS LIMITATION OF LIABILITY IS A FUNDAMENTAL ELEMENT OF THE AGREEMENT BETWEEN YOU AND THE JIU HENG PARTIES.
  2. TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION, THE JIU HENG PARTIES’ TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY, UNDER ANY AND ALL CAUSES OF ACTION OR THEORIES OF LIABILITY IS LIMITED TO ONE THOUSAND DOLLARS ($1,000).
  3. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF REMEDIES. IF SUCH LAWS APPLY TO YOU, YOU MAY HAVE ADDITIONAL RIGHTS AND THE FOREGOING EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
  4. The Services are controlled and offered by JIU HENG from its facilities in the China. JIU HENG makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so of their own volition and are responsible for compliance with local law.

7. Arbitration Agreement and Waiver of Rights

  1. THIS SECTION LIMITS YOUR RIGHT TO MAINTAIN COURT ACTIONS, YOUR RIGHT TO A JURY TRIAL, AND YOUR RIGHT TO PARTICIPATE IN CLASS OR REPRESENTATIVE ACTIONS, AMONG OTHER RIGHTS AND REMEDIES. PLEASE READ IT CAREFULLY.
  2. Except as otherwise provided herein, any dispute, claim or controversy arising out of or relating to the Services, or the relationship between you and the JIU HENG Parties, including the breach, termination, enforcement, interpretation or validity of these Terms of Use, including the determination of the scope or applicability of this agreement to arbitrate (collectively, “Claims” and each individually, a “Claim”), shall be finally settled by binding alternative dispute resolution through the New Era ADR platform by one professional neutral with substantial experience in resolving commercial or consumer disputes, as applicable. This neutral shall be randomly selected from the appropriate list of New Era ADR neutrals in accordance with the rules and procedures of New Era ADR. The prevailing party may be entitled to receive reimbursement of its reasonable costs and expenses (including reasonable attorneys’ fees and all other expenses) incurred in connection therewith, at the neutral’s discretion. The award entered by the arbitrator shall be final and binding upon the parties. Judgment on the award entered by the arbitrator shall be entered in the federal or state courts located in Chicago, Illinois. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration, which may only be sought in the federal or state courts located in Chicago, Illinois. You submit to the jurisdiction of the federal or state courts located in Chicago, Illinois and waive any objection to the inconvenience of such forum.
  3. You and JIU HENG, and any other parties, shall maintain the confidential nature of the arbitration proceeding, including the award entered by the arbitrator, except as may be necessary to prepare for or conduct the arbitration, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.
  4. Any cause of action arising out of or related to the Services must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred.
  5. You and the JIU HENG Parties agree that with respect to any Claim, neither may: (i) act as a class representative or private attorney general, or (ii) participate as a member of a class of claimants. No Claim may be arbitrated or litigated on a class or representative basis.
  6. If any provision of this Section is found to be invalid or unenforceable, such provision will be, if possible, deemed modified to conform as much as possible to the intent of the parties and, if not, shall be severed and the remainder of this Section will continue in full force and effect.
  7. Any waiver of any portion or all of this Section must be recorded in a writing signed by the waiving party, and any such waiver will have no effect on the enforceability of the remainder of these Terms of Use.
  8. This Section survives the termination of the relationship between you and the JIU HENG Parties.
  9. You have the right to opt out of the arbitration agreement in this Section by sending, within 30 days after becoming subject thereto, written notice of your decision to opt out to: matthew@cnmetalproducts.com. Your notice must include your name and address, any email addresses you have used to in connection with the Services, and a statement indicating your desire to opt out of the arbitration agreement. The remainder of these Terms of Use will continue to apply to you even if you opt out. If you opt out, you nonetheless agree that Claims may only be brought in the federal or state courts located in Chicago, Illinois, you submit to the jurisdiction of such courts, and waive any objection to the inconvenience of such fora.

8. Ability to Enter Binding Contract

You affirm that you are more than 18 years of age and are fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Use, and to abide by and comply with these Terms of Use. The Services are not intended for children under 18. If you are under 18 years of age, then you may not use the Services.

9. Assignment

Except as otherwise set forth herein, these Terms of Use, and any rights and licenses granted hereunder, may not be assigned, transferred, delegated, or sublicensed by you, but may be assigned, transferred, delegated, and sublicensed by JIU HENG without restriction.

10. Import/Export Restrictions

You may not use, export, import, or transfer any part of the Services except as authorized by U.S. law, the laws of the jurisdiction in which you use or access the Services, or any other applicable laws. In particular, but without limitation, no part of our Services may be exported or re-exported: (a) into any country subject to embargo by the U.S.; or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Persons List or Entity List. By using the Services, you represent and warrant that: (a) you are located in the U.S.; (b) you are not located in a country subject to embargo by the U.S. or designated as a “terrorist supporting” country by the U.S.; and (c) you are not listed on any U.S. Government list of prohibited or restricted parties. You agree that the Services are subject to the export control laws and regulations of the U.S. You will comply with those laws and regulations and will not, without prior U.S. government authorization, export, re-export, or transfer the Services, either directly or indirectly, to any country in violation of those laws and regulations.

11. Miscellaneous

  1. If any provision of these Terms of Use is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms of Use, which shall remain in full force and effect.
  2. No waiver of any term of this these Terms of Use shall be deemed a further or continuing waiver of such term or any other term, and JIU HENG’s failure to assert any right or provision under these Terms of Use shall not constitute a waiver of such right or provision.
  3. The JIU HENG Parties shall not be liable for any delay or failure in performance due in whole or in part to any acts of God (such as earthquakes, storms, floods, etc.), unavoidable accidents, laws, rules, regulations or orders of government authorities, acts of war (declared or not), terrorism, hostilities, blockades, civil disturbances, viruses or pandemics, embargoes, strikes, or any other event or cause beyond the reasonable control of JIU HENG.
  4. These Terms of Use are governed by and construed in accordance with the laws of the State of Illinois, without giving effect to any conflict of laws rules or provisions.
  5. JIU HENG reserves the right to amend these Terms of Use at any time in its sole discretion with or without prior notice, which shall take effect upon posting to the Services. It is your responsibility to review these Terms of Use for any changes. Your use of the Services following any amendment of these Terms of Use will signify your assent to and acceptance of its revised terms.

12. Violations of Terms of Use

Please report any violations of the Terms of Use, including objectionable user submitted content or behavior to matthew@cnmetalproducts.com. State the reasons for your concern and provide a description of the violation. Upon receiving such a submission, JIU HENG in its sole discretion may investigate the matter and take such action as JIU HENG determines to be appropriate.

 

 

Terms and Conditions of Sale

JIU HENG LLC Terms and Conditions of Sale

Last updated: 10/5/2022

1. Agreement and Parties

These terms and conditions, together with the quote to which these terms are attached (“Quote”), represent the agreement (together, the “Agreement”) under which JIU HENG, LLC (“Seller”) agrees to provide the Products identified in the Quote to the to the buyer reflected on the Quote (“Buyer”). Seller and Buyer will sometimes be referred to individually as a “Party” and referred to together as “Parties.”

2. No Additional Terms.

Unless Seller agrees otherwise in writing, Seller’s provision of the Products is conditioned on the Buyer’s agreement that any terms different from or in addition to those in this Agreement, whether communicated orally or contained in any purchase order, request, confirmation, payment, or other written correspondence, irrespective of timing, shall not form a part of the Agreement, even if Buyer purports to condition its acceptance of any purchase order on Seller’s agreement to such different or additional terms.

3. Price.

Pricing set forth in the Quote is valid for thirty (30) days from the date it was issued and subject to on-hand material availability.

4. Quantity.

The quantity of Products delivered may vary up to 10% above or below the number set forth in the Quote, in accordance with industry standards.

5. Credit Approval.

The sale of all Products is subject to the approval of Seller’s credit department. Seller may elect, at its sole and absolute discretion, to require cash in advance or other security satisfactory to Seller prior to fabricating, shipping, delivering, or otherwise providing any Products to Buyer. If Buyer refuses such conditions, Seller may withdraw the Quote and/or cancel this Agreement.

6. Payment.

Seller will transmit to Buyer an invoice or invoices consistent with the Quote (each, an “Invoice”). Buyer agrees to pay Seller by check, wire transfer, or ACH payment within thirty (30) days of each Invoice date. Except as otherwise provided by law, Buyer will pay all sales, excise, and similar taxes with respect to the Products, which will be reflected on each Invoice.

7. Failure to Make Payment.

If Buyer fails to fulfill payment terms, Seller may, at its sole and absolute discretion: decline to fabricate, ship, deliver, or otherwise provide any further Products to Buyer under any Quote and may withdraw any Quote to Buyer and cancel this Agreement or any other Agreement with Buyer; or require cash in advance or other security satisfactory to Seller prior to fabricating, shipping, delivering, or otherwise providing any further Products to Buyer. Seller may charge 1.5% interest per month on any past due Invoices. In addition to the amount of any past due Invoice, plus interest, Buyer shall be responsible for any and all of Seller’s collection costs including, but not limited to, collection fees, attorneys’ fees, and court costs. Buyer agrees that Seller retains a security interest in all Product(s) shipped until Invoices are paid in full.

8. Delivery.

Buyer agrees to pay all freight, transportation, insurance, shipping, storage, handling, demurrage, or similar charges. Title, liability for and risk of loss to Products sold hereunder pass to Buyer upon tender to Buyer’s chosen carrier. Products are FOB Seller’s warehouse, or in the case of export, Incoterms 2020 EXW Seller’s warehouse. Seller may make partial shipments and, if so, send an Invoice for each shipment separately.

9. Certifications.

Some Seller Products are manufactured by altering standard fasteners into special fasteners. Altered fasteners are not subject to the Fastener Quality Act. Such altered fasteners are marked by an (*) on the Quote. All orders 75 pieces and under are sold as replacement parts and are also not subject to the Fastener Quality Act. All other product is tested plain. The test sampling plan of our product is in accordance with ASTM F568-98 for inch and metric product.

10. Alterations and Cancellations.

After a Quote is accepted by Buyer, it may be changed only with Seller’s written consent and upon an agreed pricing adjustment. Once fabrication has begun, a Quote may be cancelled only with Seller’s prior written consent and upon payment of a 15% restocking fee for any standard products. Quotes reflecting custom manufactured products may not be cancelled.

11. Inspection, Claims and Returns.

  1. BUYER AGREES TO INSPECT PRODUCTS UPON DELIVERY. FAILURE TO GIVE NOTICE OF A CLAIM WITHIN FIVE (5) DAYS FROM DATE OF DELIVERY (OR TEN (10) DAYS FROM SHIPMENT IN CASE OF NONDELIVERY) SHALL CONSTITUTE A WAIVER BY BUYER OF ALL CLAIMS IN RESPECT OF SUCH PRODUCTS.
  2. PRODUCTS SHALL NOT BE RETURNED TO SELLER WITHOUT SELLER’S PRIOR WRITTEN PERMISSION, WHICH PERMISSION SHALL NOT BE UNREASONABLY CONDITIONED, DELAYED OR DENIED.
  3. ALL RETURNS MUST BE: ACCOMPANIED BY AN RMA NUMBER PROVIDED BY SELLER IN ADVANCE; INCLUDE THE QUOTE NUMBER; PACKAGED IN THE ORIGINAL SHIPPING CONTAINER; AND SHIPPED TO SELLER AT BUYER’S EXPENSE.
  4. FOR STANDARD PRODUCTS, ALL RETURNS ARE SUBJECT TO A 15% RESTOCKING FEE.
  5. ORDERS FOR CUSTOM MANUFACTURED PRODUCTS ARE NON-RETURNABLE.
  6. PRODUCT(S) THAT HAVE BEEN PLATED OR OTHERWISE ALTERED ARE NON-RETURNABLE.

12. Force Majeure.

  1. No liability shall result from delay in performance or nonperformance, directly or indirectly caused by circumstances beyond the control of the party affected, including, but not limited to, act of God, fire, explosion, flood, war, act of or authorized by any Government, labor trouble or shortage, pandemic, inability to obtain material, equipment or transportation, failure to obtain or hardship in obtaining reasonably priced supplies of materials, or failure of usual transportation mode. Quantities so affected may be eliminated from this Agreement without liability, but this Agreement shall remain otherwise unaffected. Seller shall have no obligation to purchase supplies of the Products specified herein to enable it to perform this Agreement.
  2. In the event of a force majeure event: (i) Seller will provide prompt written notice to Buyer of such force majeure event, its expected duration, and the extent to which Seller’s performance will be affected; (ii) Seller agrees to use commercially reasonable efforts to eliminate the cause of the force majeure event as soon as possible; and (iii) Buyer may elect to agree to a price increase, extend the delivery date set forth in the Quote, or otherwise alter this Agreement to accommodate the sale or purchase of Product(s) affected by the force majeure event.
  3. If for any reason, including but not limited to force majeure, Seller is unable to supply the total demand for Products specified herein, Seller may distribute its available supply among any or all purchasers, as well as departments and divisions of Seller, on such basis as it may deem fair and practical, without liability for any failure of performance which may result therefrom.

13. Technical Assistance.

Seller may furnish such technical assistance and information as it has available with respect to the use of the Products covered by this Agreement. Buyer agrees to evaluate such information, to make an independent decision regarding the suitability of such information and Products for Buyer’s, or its customer’s, application, and only use such Products and information pursuant to the then current good product stewardship principles and all regulatory requirements applicable to Buyer’s, or its customer’s, business. Seller makes no warranty whatsoever with response to any such technical assistance or information.

14. Compliance with Laws.

Buyer agrees to comply with all applicable laws, regulations and ordinances including all applicable export and import laws. To the extent Seller exports the Products the following Destination Control Statement applies: “These items are controlled by the U.S. Government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the U.S. Government or as otherwise authorized by U.S. law and regulations.”

15. Confidentiality.

  1. Each Party, as a recipient of the other Party’s Confidential Information, understands and agrees that it will not, for itself or in conjunction with others, test, modify, manipulate, research, reverse engineer or replicate the disclosing Party’s Confidential Information in an effort to understand the disclosing Party’s proprietary technology or learn information not explicitly stated in the disclosing Party’s Confidential Information. Any such understanding of the disclosing Party’s proprietary technology not explicitly stated in the disclosing Party’s Confidential Information shall be treated as the disclosing Party’s Confidential Information under this Contract.
  2. Unless otherwise agreed upon between the parties hereto, the recipient Party agrees that it will not use the disclosing Party’s Confidential Information, or any improvement or other modification of the disclosing Party’s Confidential Information, or any data derived from the disclosing Party’s Confidential Information, for securing any intellectual property rights. No license or other rights to the disclosing Party’s Confidential Information or other intellectual property is granted or implied hereby. Neither party shall have the right to use the other Party’s name, or any trademarks or trade names of the other Party, without express advance written permission.

16. Arbitration.

Except for undisputed, unpaid Invoices owed by Buyer, Buyer and Seller agree to arbitrate all disputes, claims or controversies whether based on contract, tort, statute, or any other legal or equitable theory, arising out of or relating to this Agreement, including the scope and validity of this paragraph. Any unresolved dispute or controversy arising from or relating to this Agreement shall be finally resolved by binding arbitration through the platform provided by New Era ADR, Inc. (https://neweraadr.com/) (the “New Era Platform”) in accordance with its rules and procedures for “Virtual Standard Arbitrations” by a professional neutral(s) with substantial experience in resolving commercial disputes (the “Neutral”). The Neutral shall be chosen in accordance with the rules and procedures of the New Era Platform. The parties will bear costs in accordance with the rules and procedures of the New Era Platform. The prevailing Party may be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees and all other expenses) incurred in connection therewith, at the Neutral’s discretion.

17. Applicable Law.

All matters arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the state of Illinois, without regard to any applicable conflicts of law provisions thereof, and the terms of the United Nations Convention on Contracts for the International Sale of Goods shall not apply.

18. Warranty.

Seller warrants that each Product will be free of defects in materials and workmanship in relation to the specifications provided by Buyer for 24 months from the date of delivery. This warranty shall not be transferable by Buyer and shall not extend to any goods which have been subjected to alteration, misuse or neglect, damaged by accident, or rendered defective by reason of improper handling or installation. Seller does not accept any liability for normal wear and tear, or for charges for repairs or replacements made without authority or for any contingent liability of any kind. SELLER DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH REGARD TO GOODS SOLD PURSUANT TO THIS AGREEMENT, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

19. Remedy for Breach of Warranty.

Seller’s sole obligation for breach of warranty shall be to issue credit to Buyer equal to the price paid for the defective Products or to replace the defective Products. The decision with respect to whether credit should be issued or whether the goods should be replaced shall be in Seller’s sole discretion.

20. Indemnification.

  1. Buyer agrees to defend, indemnify, and hold harmless Seller and its affiliates, officers, directors, shareholders, managers, agents, employees, suppliers, subcontractors, customers, successors, and assigns, to the fullest extent permitted by law, from any liabilities, obligations, losses, damages, penalties, claims, actions, suits, arbitrations and costs (including, without limitation, attorneys’ fees and costs) and expenses suffered by Seller with respect to any third party claim asserted against Seller, including that the Products: (a) infringe any patent, copyright, trademark, trade secret, design, or other intellectual property right or proprietary or similar rights; (b) were incorrectly or improperly installed or incorporated as a component part or otherwise; and (c) caused or contributed to any bodily injury, injury to property or assets, or other any injury whatsoever.
  2. Seller will not be liable for: (a) any error, omission, or inaccuracy in drawings or specifications provided by or approved by Buyer and has no obligation to check or confirm the conformity, accuracy, or adequacy of patents, regulatory requirements, drawings, or similar specifications provided to Seller by Buyer or provided by Seller to Buyer and approved by Buyer; or (b) any obligation to install or otherwise incorporate the Products correctly or properly.

21. Exclusion of Damages.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO WAIVES ANY CLAIM TO INDIRECT, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR MULTIPLIED DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE PROVISION OF ANY PRODUCTS. TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE PARTIES WAIVE AND AGREE NOT TO ASSERT NON- CONTRACTUAL CLAIMS RELATING TO THIS AGREEMENT OR THE PRODUCTS, AND THIS AGREEMENT SHALL BE DEEMED TO INCLUDE SUCH LANGUAGE AS MAY BE REQUIRED TO AFFECT SUCH WAIVER.

22. Liability Cap.

In no event will Seller’s liability relating to the Products, Buyer’s purchase thereof, or this Agreement exceed, in the aggregate for all claims, the amounts actually paid by Buyer and received by Seller for the specific Products to which such liability relates.

23. FLSA Assurance.

We hereby certify that the Products were produced in compliance with all applicable requirements of Section 6, 7 and 12 of the Fair Labor Standards Act, as amended, and of regulations and orders of the United States Department of Labor issued under Section 14 thereof.

24. Severability.

Any provision of this Agreement deemed prohibited or unenforceable shall be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.

25. No Reliance.

Buyer acknowledges, agrees, and represents that it is not relying upon, and it has not been induced by, any representation, warranty, statement made by, or other information provided by Seller in connection with its decision to purchase or use any Product(s), other than the representations and warranties made by Seller in this Agreement.

26. Entire Agreement.

This Agreement constitutes the full, final, and entire agreement and understanding of the Parties with respect to the subject matter hereof and supersedes any prior or contemporaneous written or oral agreements, undertakings, promises, representations, warranties, or covenants not contained herein.

27. No Waiver.

Waiver by either Party of any Default by the other Party shall not be construed as a waiver by such Party of any other default which may thereafter occur.

28. Modifications.

No modification of this Agreement shall be binding upon Seller unless separately agreed in writing. No modification shall be affected by the acknowledgment or acceptance by Seller of purchase order forms or any other communication or terms from Buyer stipulating different conditions.

29. No Third Party Beneficiaries.

The Parties agree that unless expressly provided herein, this Agreement is not made for, and shall not have, any third party beneficiaries.