PLEASE READ THESE GENERAL TERMS AND CONDITIONS CAREFULLY.
THESE GENERAL TERMS AND CONDITIONS FORM PART OF AND ARE INCORPORATED INTO THE AGREEMENT BETWEEN CUSTOMER AND NANOGRIPTECH. NANOGRIPTECH IS WILLING TO SUPPLY PRODUCTS TO CUSTOMER ONLY ON THE CONDITION THAT CUSTOMER ACCEPTS ALL OF THESE TERMS AND CONDITIONS.
GENERAL TERMS AND CONDITIONS
1. APPLICABILITY
1.1 These general terms and conditions are applicable to all sales of Products from nanoGriptech to Customer and supersede all conditions stipulated by Customer (even if submitted in a later document).
1.2 No other terms or conditions shall be of any effect unless otherwise specifically agreed to by nanoGriptech in a separate written agreement duly signed by nanoGriptech. Customer will be deemed to have assented to all terms of this Agreement if any part of the Products is accepted by Customer. If Customer finds any term or condition not acceptable, Customer must so notify nanoGriptech at once and must reject the Products delivered under this Agreement. Any additional or different terms or conditions contained in Customer’s purchase order or response to a nanoGriptech quotation or nanoGriptech order acknowledgement shall be deemed rejected by nanoGriptech and shall be of no effect. No general terms and conditions of Customer shall at any time form a part of the content of any contract or agreement between Customer and nanoGriptech, even if they are not further expressly rejected by nanoGriptech.
2. TERMS AND CONDITIONS OF SALE
2.1 nanoGriptech shall sell and deliver to Customer and Customer shall purchase and accept from nanoGriptech the products (herein, the “Products”) described on or in any nanoGriptech order acknowledgement or nanoGriptech quotation, or any combination thereof (each an “Order”), pursuant to the terms and conditions of the Order and those specified herein, which taken together constitute the entire agreement between nanoGriptech and Customer regarding the Products (herein, this “Agreement”).
2.2 Unless otherwise agreed in writing, all nanoGriptech quotations for Products are valid for a period of thirty (30) days from the date of issue. Unless otherwise agreed in writing, all nanoGriptech Product order acknowledgements are valid for a period of thirty (30) days from the date of issue. Subsequent modifications in quantity or quality, if such are requested by Customer, generally will cause a modification of the quoted price. Drawings and samples enclosed with any quotation remain the property of nanoGriptech. All drawings and samples shall be treated confidentially by Customer and must be returned to nanoGriptech upon nanoGriptech’s written request. Unless otherwise agreed in writing, all dies, tools, models, plans, drawings, or other documents, devices, or equipment developed, used, or procured by nanoGriptech (“Tools”) in order to produce Products or fulfill any Order are and shall remain nanoGriptech’s exclusive property, even if the cost of development, procurement, and/or use of such Tools was wholly or partially borne by Customer and notwithstanding any charges relating to Tools reflected on nanoGriptech’s invoice.
2.3 Notwithstanding any prior acceptance of an Order by nanoGriptech, nanoGriptech shall have no obligation if Customer is in breach of any of its obligations hereunder, or any other agreement between Customer and nanoGriptech, at the time nanoGriptech’s performance is due.
2.4 No oral communications concerning the terms of any Order, including telephone communication, shall have any force and effect unless and until acknowledged by nanoGriptech in writing. For purposes of this section, the term “writing” shall also include email communication between Customer and nanoGriptech.
2.5 Cancellation. No cancellation of an Order by Customer is effective unless it is accepted by nanoGriptech in writing. All Order cancellations accepted by nanoGriptech are subject to a twenty-five percent (25%) cancellation fee calculated on the total Order value, unless otherwise agreed in writing by nanoGriptech. No cancellation will be accepted by nanoGriptech following delivery of the Products by nanoGriptech. No cancellation of any Order for Products manufactured to Customer’s specification (“Special Orders”) will be accepted by nanoGriptech.
2.6 Returns. All sales of Products are final. Customer has no right to return any Products to nanoGriptech without nanoGriptech’s prior written consent in each case. All returns authorized by nanoGriptech are subject to a twenty-five percent (25%) restocking service and handling fee, calculated on the total Order value, as well as an additional deduction for any damage to the Product that has occurred at any time following delivery of the Product to Customer and prior to the return of the Product to nanoGriptech’s warehouse. Customer shall pay all freight and insurance charges connected with shipping any returned Products to nanoGriptech and shall bear the risk of loss or damage to the Products until the Products are delivered to nanoGriptech’s warehouse. nanoGriptech may reject any unauthorized return of Products by Customer and may reship any such Products to Customer “freight collect,” in which case Customer shall be responsible for all freight charges. No return of Special Order Products will be accepted by nanoGriptech.
3. PRICES
3.1 Unless otherwise specified in nanoGriptech’s order acknowledgement or in nanoGriptech’s quotation, all prices are EX WORKS nanoGriptech’s warehouse, the term EX WORKS being defined pursuant to the Incoterms 2010, and only include standard packaging, but not postage or other freight charges, duties, insurance or taxes, if any.
3.2 Unless otherwise specified in nanoGriptech’s order acknowledgement or in nanoGriptech’s quotation, the price of the Products shall be nanoGriptech’s current prices in effect at the time of the Order.
3.3 Unless otherwise specified in nanoGriptech’s order acknowledgement or in nanoGriptech’s quotation, Customer assumes all liabilities for taxes, including any applicable VAT, sales, use, personal property, ad valorem, excise, and other taxes, duties, levies or charges imposed by any governmental authority (but excluding any taxes payable by nanoGriptech with respect to nanoGriptech’s net income) arising out of or connected with the sale of the Products.
4. TERMS OF PAYMENT
4.1 Unless otherwise specified in nanoGriptech’s order acknowledgement or in nanoGriptech’s quotation, payment for Products is required in advance, prior to Product shipment. Unless otherwise specified in nanoGriptech’s order acknowledgment or in nanoGriptech’s quotation, Customer shall make payments by check, credit card, or wire transfer to the account indicated on the invoice without any cash discount or offset, and nanoGriptech shall not be required to incur any expense to receive timely payment in full as required by this Agreement. Customer shall be deemed to have performed Customer’s payment obligations only when nanoGriptech’s bank has received payment of the respective sums due in actually and finally collected funds.
4.2 Each payment by Customer under this Agreement shall, except as required by law, be made without withholding or deduction for or on account of any taxes. If any taxes are required to be withheld or deducted from any such payment, Customer shall pay such additional amounts as may be necessary to ensure that the net amount actually received by nanoGriptech after such withholding or deduction is equal to the amount nanoGriptech would have received had no such withholding or deduction been required, provided, however, that no such additional amounts shall be payable in respect of any taxes imposed on the net income of nanoGriptech by the jurisdiction under the laws of which nanoGriptech is organized or has its principal place of business.
4.3 If the parties have agreed on payment in advance without further specification, then payment in advance means that the payment of the full purchase price must be received by nanoGriptech’s bank in immediately available funds at least five (5) Banking Days (as hereinafter defined) before the date of shipment. “Banking Day” means any day on which banks in the United States are open to the public for carrying on substantially all banking functions.
4.4 nanoGriptech may, with written notice to customer, change or withdraw extensions of credit at any time. If nanoGriptech ceases to extend credit terms before shipment, Customer’s sole remedy shall be cancellation of its Order. If Customer does not receive notice of change of payment terms before shipment, Customer’s sole remedy shall be rejection of the Products immediately upon delivery.
4.5 If Customer fails to make payment on or before the date required, Customer shall pay service charges to nanoGriptech at the rate of one and one half percent (1.5%) per month or the maximum rate allowed by law. The specification of service charges on past-due balances shall not be deemed an agreement to extend credit.
4.6 If Customer fails to observe the payment terms or is in breach of Customer’s payment obligations under any other agreement between nanoGriptech and Customer, or if Customer becomes insolvent, then nanoGriptech may, without limiting nanoGriptech’s other rights and remedies hereunder: (i) accelerate Customer’s unpaid obligations such that they become immediately due and payable; (ii) suspend nanoGriptech’s performance of any Order until Customer’s account is current; and/or (iii) withhold further deliveries of Products to Customer until Customer’s account is current
4.7 Except for claims founded in Customer’s own right which are in the same currency and have been finally adjudicated or are due and undisputed, Customer does not enjoy a right of set-off under any circumstances.
4.8 Customer shall reimburse nanoGriptech for reasonable attorneys’ fees and any other reasonable costs associated with collecting delinquent payments.
5. DELIVERY TERMS, INSPECTION & ACCEPTANCE
5.1 Unless otherwise specified in nanoGriptech’s order acknowledgement or in nanoGriptech’s quotation, the terms of delivery for the Products shall be EX WORKS (EXW) nanoGriptech’s warehouse being defined pursuant to the Incoterms 2010.
5.2 Unless otherwise specified in nanoGriptech’s order acknowledgement or in nanoGriptech’s quotation, Customer shall pay all freight, transportation, shipping, insurance and handling charges, duties, and taxes, including any applicable VAT, sales, personal property, ad valorem, and other taxes, duties, levies or charges imposed by any governmental authority, irrespective of whether applicable law makes such items the responsibility of the buyer or seller, but excluding any taxes payable by nanoGriptech with respect to its net income.
5.3 Unless otherwise expressly provided in nanoGriptech’s quotation or nanoGriptech’s order acknowledgement, any estimated delivery date communicated by nanoGriptech to Customer is an estimate of the approximate date the Products are expected to be delivered and nanoGriptech does not promise, guarantee or otherwise obligate itself to have the Products shipped on or before that time. The estimated delivery date is subject to change. Any delay in payment by Customer may result in a delay in delivery. Notwithstanding anything in this Agreement to the contrary, nanoGriptech has no obligation to deliver any Product as long as Customer is in breach of any of its payment obligations hereunder. If the parties have expressly agreed in writing upon a delivery date, then nanoGriptech shall use commercially reasonable efforts to deliver the Products to Customer by the agreed upon date, however, time shall not be of the essence.
5.4 A storage fee of one percent (1%) of the total Order amount per week will be charged if Customer fails to accept delivery within thirty (30) days after the date of nanoGriptech’s notice of availability of Products for delivery. If Customer fails to accept delivery for ninety (90) days after notice of availability of Products for delivery, at nanoGriptech’s sole discretion and at any time thereafter, nanoGriptech may cancel Customer’s Order and refund Customer’s payment less any unpaid storage fees and a twenty-five percent (25%) restocking service and handling fee calculated on the total Order value.
5.5 Compliance with Export Laws. Customer is responsible for timely obtaining and maintaining any required export license, import license, exchange permit or any other governmental authorization. Customer shall not ship, transfer, or export any Products into any country prohibited by the United States Export Administration Act or any other export laws, restrictions, or regulations (collectively the “Export Laws”). If any Product is identified as an export controlled item under the Export Laws, Customer represents and warrants that Customer is not a citizen or resident of, or otherwise located within, or an entity organized under the laws of, or otherwise located within, any nation embargoed by the United States, and that Customer is not acting as an agent or representative of any person who is located within or of any entity organized under the laws of, or otherwise located within, any nation embargoed by the United States, and that Customer is not otherwise prohibited under the Export Laws from receiving any Products. nanoGriptech’s obligation to deliver the Products is conditioned on Customer’s compliance with the Export Laws, and nanoGriptech shall have no obligations to Customer under this Agreement if Customer fails to comply with the Export Laws. nanoGriptech shall not be liable if any authorization of any government is delayed, denied, revoked, restricted, not renewed, or later withdrawn, and Customer shall not be relieved thereby of its obligations to pay nanoGriptech for Products or any other charges which are the obligation of Customer hereunder.
5.6 Customer shall inspect the Products immediately upon receipt by Customer. CUSTOMER SHALL NOTIFY NANOGRIPTECH IN WRITING OF ANY NON-CONFORMING PRODUCTS OR SHORTAGES WITHIN TEN (10) BUSINESS DAYS FOLLOWING RECEIPT OF THE PRODUCTS BY CUSTOMER. No rejection of non-conforming Products by Customer is effective if Customer fails to notify nanoGriptech in writing of such rejection within ten (10) business days following receipt of the Products by Customer. Customer’s failure to notify nanoGriptech of any non-conforming Products or shortages within ten (10) business days following receipt of the Products by Customer constitutes acceptance of the Products by Customer and Customer’s waiver of any right of inspection and of any claims of defects that could have been discovered upon a reasonable inspection of the Products.
5.7 International Standards and Regulations. Because standards and regulations vary significantly from country to country, nanoGriptech does not represent or warrant that Products meets any applicable requirements in any jurisdiction outside the United States (each an “Export Market”). Customer assumes all responsibility for compliance with all applicable laws, standards, and regulations in any Export Market in which the Products are offered for sale by Customer, sold by Customer, imported by Customer, delivered by Customer, or used by Customer. Customer shall procure and maintain at its own expense any license, permit, or certification from any regulatory authority required for Customer to export, import, market, resell, or use the Products in any Export Market.
6. INTELLECTUAL PROPERTY OWNERSHIP. All right, title and interest in the intellectual property rights in Products, including technology and trade secrets embodied therein and any custom developments created or provided in connection with or related to this Agreement, and any derivative works thereof, shall belong solely and exclusively to nanoGriptech or its licensors, and Customer shall have no rights whatsoever in any of the foregoing other than the rights set forth in this Agreement. Nothing in this Agreement or otherwise will be deemed to grant to Customer an ownership interest in the intellectual property rights in Products in whole or in part. Any design developed by nanoGriptech, whether or not requested and/or paid for by Customer, and whether or not developed in conjunction with Customer’s employees or agents, is the exclusive property of nanoGriptech. No right, express or implied, is granted by this Agreement to Customer to use in any manner the name or any other trade name or trademark of nanoGriptech in connection with the performance of this Agreement or otherwise.
7. WARRANTY DISCLAIMER; ASSUMPTION OF RISK; INDEMNITY
7.1 PRODUCTS ARE SOLD “AS IS”. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND EXCEPT AS PROHIBITED BY LAW, NANOGRIPTECH MAKES NO REPRESENTATIONS AND GRANTS NO WARRANTIES, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, AND NANOGRIPTECH SPECIFICALLY DISCLAIMS ALL WARRANTIES, WHETHER WRITTEN OR ORAL, OR EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF QUALITY, MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE, OR ANY WARRANTY AS TO THE VALIDITY OF ANY PATENTS OR THE NON-INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES WITH RESPECT TO THE PRODUCTS SUPPLIED HEREUNDER.
7.2 NANOGRIPTECH MAKES NO REPRESENTATION OR WARRANTY (EXPRESS OR IMPLIED) THAT PRODUCTS OFFERED FOR SALE BY NANOGRIPTECH COMPLY WITH ANY LAWS, STANDARDS, CODES, OR REGULATIONS GOVERNING THEIR PURCHASE, USE, HANDLING, STORAGE, RESALE, TRANSPORTATION, DISPOSAL, EXPORT OR IMPORT IN ANY JURISDICTION OUTSIDE OF THE UNITED STATES.
7.3 Notwithstanding anything to the contrary, no representation or other affirmation of fact, including without limitation statements regarding suitability for an application or performance of the Products whether made by nanoGriptech’s employees, agents, or otherwise shall be deemed to be a warranty by nanoGriptech for any purpose, or give rise to any liability of nanoGriptech whatsoever.
7.4 Unless specifically agreed to in writing by a duly authorized representative of nanoGriptech, nanoGriptech’s Products have not been tested or otherwise certified by nanoGriptech as fit for use, and are not meant to be foolproof or fault-tolerant, in applications (e.g., nuclear, aerospace, mobile vehicles, medical devices or equipment, weapons systems) in which the failure of the Products could lead directly or indirectly to death, bodily injury, or severe property or environmental damage (“High Risk Applications”). Accordingly, Customer assumes all risks for High Risk Applications for which Customer employs Products. Customer agrees that nanoGriptech will not be liable for any claims or damages arising from the use of the Products in any High Risk Applications and Customer shall indemnify nanoGriptech from any third-party claims arising out of or related to Customer’s employment of Products in any High Risk Applications.
7.5 Customer shall indemnify, defend and hold nanoGriptech harmless from and against any and all claims brought by any third party against nanoGriptech arising out of or related to any warranty or representations made by Customer to its customers concerning the Products.
8. LIMITATION OF LIABILITY & REMEDIES
8.1 AGGREGATE LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND EXCEPT FOR ANY DAMAGES ARISING OUT OF NANOGRIPTECH’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE MAXIMUM AGGREGATE LIABILITY OF NANOGRIPTECH ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND NANOGRIPTECH’S PRODUCTS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL IN NO EVENT EXCEED THE ACTUAL AMOUNT PAID TO NANOGRIPTECH BY CUSTOMER FOR THE PRODUCT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE DATE THE DAMAGES OR LOSSES OCCURRED OR THE CAUSE OF ACTION AROSE.
8.2 LIMITATION OF LIABILITY PER OCCURRENCE. NOTWITHSTANDING ANYTHING TO THE CONTRARY AND EXCEPT FOR ANY DAMAGES ARISING OUT OF NANOGRIPTECH’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE MAXIMUM AGGREGATE LIABILITY OF NANOGRIPTECH ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL IN NO EVENT EXCEED PER OCCURRENCE THE ACTUAL AMOUNT PAID TO NANOGRIPTECH BY CUSTOMER FOR THE PRODUCT GIVING RISE TO THE LIABILITY. FOR THE PURPOSES OF THIS SECTION 8.2, “OCCURRENCE” INCLUDES WITHOUT LIMITATION, CONTINUOUS OR REPEATED EXPOSURE TO SUBSTANTIALLY THE SAME GENERAL HARMFUL CONDITIONS.
8.3 EXCLUSION OF DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, IN NO EVENT SHALL NANOGRIPTECH BE LIABLE FOR SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL LOSSES OR DAMAGES OF ANY SORT ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE PRODUCTS, REGARDLESS OF THE FORM OF ACTION AND REGARDLESS OF WHETHER SUCH DAMAGES ARE FORESEEABLE.
8.4 NOTWITHSTANDING ANYTHING TO THE CONTRARY, CUSTOMER’S REMEDIES FOR NON-CONFORMING PRODUCTS ARE LIMITED TO THE RETURN OF THE NON-CONFORMING PRODUCTS AND THE REPAYMENT OF THE PURCHASE PRICE OR TO THE REPAIR OR THE REPLACEMENT OF THE NON-CONFORMING PRODUCTS.
8.5 CUSTOMER AGREES AND ACKNOWLEDGES THAT THE PROVISIONS OF THIS AGREEMENT ALLOCATE THE RISKS BETWEEN CUSTOMER AND NANOGRIPTECH, THAT NANOGRIPTECH’S PRICING REFLECTS THIS ALLOCATION OF RISK, AND BUT FOR THIS ALLOCATION OF RISK AND LIMITATION OF LIABILITY, NANOGRIPTECH WOULD NOT HAVE ENTERED INTO THIS AGREEMENT WITH CUSTOMER OR SUPPLIED PRODUCTS TO CUSTOMER.
8.6 IN JURISDICTIONS THAT LIMIT THE SCOPE OF OR PRECLUDE LIMITATIONS OR EXCLUSION OF REMEDIES OR DAMAGES, OR OF LIABILITY, SUCH AS LIABILITY FOR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OR DO NOT ALLOW IMPLIED WARRANTIES TO BE EXCLUDED, THE LIMITATION OR EXCLUSION OF WARRANTIES, REMEDIES, DAMAGES OR LIABILITY SET FORTH ABOVE ARE INTENDED TO APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY HEREIN SHALL SURVIVE THE TERMINATION OF THIS AGREEMENT.
8.7 NO SUIT OR ACTION SHALL BE BROUGHT AGAINST NANOGRIPTECH MORE THAN ONE (1) YEAR AFTER THE DATE OF THE INCIDENT THAT RESULTED IN THE LOSS, INJURY OR DAMAGE, OR THE SHORTEST DURATION PERMITTED UNDER APPLICABLE LAW IF GREATER THAN ONE (1) YEAR.
9. FORCE MAJEURE. nanoGriptech shall not be liable to Customer or any other person for any failure or delay in the performance of any obligation under this Agreement due to events beyond nanoGriptech’s reasonable control, including, but not limited to, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, wars, riots and public disorder, sabotage, strikes, lockouts, labor disputes, labor shortages, work slowdown, stoppages or delays, shortages or failures or delays of energy, materials, supplies or equipment, transportation embargoes or delays, acts of God, breakdown in machinery or equipment, and, except as otherwise set forth in this Agreement, acts or regulations or priorities of the federal, state or local governments.
10. MISCELLANEOUS TERMS
10.1 Governing Law. This Agreement and, to the fullest extent permitted by applicable law, all matters arising out of or relating in any way to this Agreement (whether arising in contract or tort), shall be governed by and construed in accordance with the law of the Commonwealth of Pennsylvania, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of any jurisdiction other than Commonwealth of Pennsylvania; provided, however, that the United States Arbitration Act (Title 9 US Code) shall govern the interpretation and enforcement of the arbitration clause in this Agreement. The application of the Convention on Contracts for the International Sale of Goods (CISG) is hereby excluded.
10.2 Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Any such claim or controversy shall be arbitrated on an individual basis and shall not be consolidated with a claim of any other party. The place of arbitration shall be Pittsburgh, Pennsylvania. The language of arbitration shall be English. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. The foregoing shall not preclude nanoGriptech from seeking any injunctive relief for protection of its intellectual property rights.
10.3 If any provision contained in this Agreement is held by a competent tribunal to be invalid, illegal or unenforceable, such invalid, illegal or unenforceable provision shall be severed from the remainder of this Agreement, and the remainder of this Agreement shall be enforced. In addition, the invalid, illegal or unenforceable provision shall be deemed to be automatically modified, and, as so modified, to be included in this Agreement, such modification being made to the minimum extent necessary to render the provision valid, legal and enforceable. Notwithstanding the foregoing, however, if the severed or modified provision concerns all or a portion of the essential consideration to be delivered under this Agreement by one party to the other, the remaining provisions of this Agreement shall also be modified to the extent necessary to equitably adjust the parties’ respective rights and obligations hereunder.
10.4 In the event of a violation or threatened violation of nanoGriptech’s proprietary rights, nanoGriptech shall have the right, in addition to such other remedies as may be available pursuant to law or this Agreement, to temporary or permanent injunctive relief enjoining such act or threatened act. The parties acknowledge and agree that legal remedies for such violations or threatened violations are inadequate and that nanoGriptech would suffer irreparable harm.
10.5 This Agreement shall be deemed to have been drafted by all parties and, in the event of a dispute, neither party shall be entitled to claim that any provision should be construed against the other party by reason of the fact that it was drafted by the other party.
10.6 Assignment. Customer may not assign, delegate, or transfer this Agreement or any right or obligation hereunder, whether voluntarily or involuntarily, by operation of law or otherwise, without the prior written consent of nanoGriptech, and any attempt by Customer to assign this Agreement without such consent will be null and void. nanoGriptech shall have the right without any requirement to obtain Customer’s consent hereunder, to assign this Agreement to a subsidiary or affiliate, or a successor by merger, acquisition or consolidation, or to an acquirer of all or substantially all of the assets of nanoGriptech, its subsidiary or affiliate. Notwithstanding anything to the contrary, nanoGriptech is permitted to transfer, sell, pledge, or grant a security interest in any receivables arising under this Agreement.
10.7 The parties hereto are independent contractors and nothing in this Agreement will be construed as creating a joint venture, employment or agency relationship between the parties.
10.8 Any reference made to trade terms (such as EXW) is deemed to be made to the relevant term of Incoterms published by the International Chamber of Commerce.
10.9 Any reference made to a publication of the International Chamber of Commerce is deemed to be made to the version current at the date of conclusion of the Agreement.
10.10 Entire Agreement. This Agreement is the final and complete agreement between nanoGriptech and Customer with respect to the subject matter hereof. No representations, inducements, promises, or understandings in relation to the subject matter hereof, whether oral or written, exist unless expressly set forth in this Agreement, and this Agreement supersedes all prior understandings, agreements, contracts, or arrangements between the parties, whether oral or written, unless otherwise expressly incorporated in this Agreement. No agreement or other understanding purporting to add to or to modify the terms and conditions hereof is binding on nanoGriptech unless agreed to by duly authorized representative of nanoGriptech in writing. In resolving conflicts or discrepancies between any of the Agreement documents, the following order of precedence shall be used: (1) these general terms and conditions; (2) the Order(s).
10.11 JURY TRIAL WAIVER. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, EACH PARTY WAIVES ITS RIGHT TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR BASED UPON THIS AGREEMENT OR THE PRODUCTS, INCLUDING CONTRACT, TORT, BREACH OF DUTY, AND ALL OTHER CLAIMS. THIS WAIVER IS A MATERIAL INDUCEMENT FOR ALL PARTIES TO ENTER INTO THIS AGREEMENT. EACH PARTY HAS REVIEWED THIS WAIVER WITH ITS COUNSEL.