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Orders or other requests, whether oral or written, for machinery or equipment (Equipment or Products), the supply or sale of spare or replacement parts (Parts), or for services (Services) to be provided by Elgin Separation Solutions (Affiliations noted in Section 18) on behalf of itself and its divisions and subsidiaries (Seller) to its customers (each a Buyer) are subject to Seller written acceptance by an authorized representative of Seller and any orders so accepted will be governed by (i) the terms and conditions stated in these Terms and Conditions for provision of Equipment, Parts or Services (Terms and Conditions), (ii) the written order acknowledgment issued by Seller to Buyer (Acknowledgment), if any (iii) any change orders identified as such and agreed to in writing by Seller (the Order, Terms and Conditions, Proposal, Acknowledgment, and any such change order, and any such additional terms as agreed to in writing by an authorized representative of Seller collectively referred to herein as Agreement), (iv) the written proposal submitted by Seller to Buyer (Proposal), if any. Buyers submission of a purchase order (or other similar document) shall be deemed to be an express acceptance of these Terms and Conditions. Inconsistent language in Buyers purchase order (or other similar document) is hereby rejected. Buyers purchase order (or other similar document is incorporated in this Agreement, only to the extent of specifying the nature and description of the Equipment, Parts or Services and then only to the extent consistent with the Proposal or Acknowledgment. In the event of any conflict between a Proposal and an Acknowledgement, the Acknowledgment shall prevail.
2. PRICES & TAXES
Prices of Equipment, Parts or Services shall be as stated in the Proposal or Acknowledgment, or if there is no Proposal or Acknowledgment, as otherwise agreed to in writing by Seller. All price quotations are Ex‐works (INCOTERMS 2010) Seller’s premises or as agreed per quote and are subject to change without notice. Prices stated herein are exclusive of any taxes, excises, or other governmental charges applicable to the Product herein described. Seller’s invoices shall include as a separate item, any and all taxes, excises or other governmental charges imposed upon Seller by reason of its performance hereunder, except taxes based upon net income of Seller and/or privilege taxes. Buyer shall pay all property and other taxes which may be levied, assessed or charged against or upon the Product after the date of actual shipment, or placing into storage for Buyer’s account. Seller bears no responsibility for any consular fees for legalizing invoices, certificates of origin, stamping bills of lading, or other charges required by the laws of any country of destination, or any fines imposed due to incorrect declarations. Charges will be added for factory preparation and packaging for shipment. Minimum freight and invoice charges apply, as in effect at the time of order. Any and all freight and/or shipping charges will be added to the quoted price. If by reason of any act of government, the cost to Seller of performing its obligations hereunder is increased, such increase shall be added to the quoted price. Unless otherwise stated in Seller’s quotation, all prices quoted shall be in United States currency. If Seller’s Equipment is quoted in a foreign currency, Seller reserves the right to adjust for any currency fluctuation that may occur between the time in which the Equipment was quoted and when the Seller’s Order Acknowledgement is issued, regardless of that time period, the nature of the foreign currency, or total size of fluctuation experienced.
3. PAYMENT TERMS
Unless alternate payment terms are specified or approved by Seller’s credit department, all charges, including applicable packing and transportation costs, billed by Seller, are payable prior to delivery. Seller reserves the right to modify or withdraw credit terms at any time without notice. Unless otherwise specified all payments are due in the currency specified in Seller’s Proposal, Order Acknowledgment and/or invoice. Interest shall be due from Buyer to Seller on overdue accounts at the maximum rate allowed by law, but no less than 1% per month from the due date. When partial shipments are made, the goods will be invoiced as shipped and each month’s invoices will be treated as a separate account and be payable accordingly. Payment for goods is due, whether or not technical documentation and/or any third-party certifications are complete at the time of shipment. Seller shall be entitled to recover all reasonable attorney’s fees and other costs incurred in the collection of overdue accounts. Seller reserves the right where genuine doubts arise as to Buyers financial position or if Buyer is in default of any payment, to suspend delivery or performance of any order or any part thereof without liability or without prejudice to and without limitation of any other remedy until Buyer cures the default and payment or satisfactory security for payment has been provided. Seller reserves the right to withhold any and all customer property until all outstanding accounts are resolved. Seller shall have the option to extend the delivery date by a time at least equal to the period of suspension. Down payments received are non-refundable.
Unless otherwise specified on the face hereof, all US and international sales shall be Ex-works Sellers premises (INCOTERMS 2020), as modified by these Terms and Conditions. Where goods are to be supplied from stock, such supply is subject to availability of stocks at the date of delivery. Partial shipments may be made, as agreed, by Buyer and Seller. Stated delivery dates are approximate only and cannot be guaranteed. Seller shall have no liability for damages arising out of the failure to keep a projected delivery date, irrespective of the length of the delay. Delay shall not constitute grounds for cancellation or for late delivery penalties. In the event Buyer is unable to accept delivery of goods when tendered, Seller may, at its option, arrange storage of the goods and Buyer shall be liable to Seller for the reasonable cost of such storage. This provision is without prejudice to any other rights, which Seller may have with respect to Buyer’s failure to take delivery of goods, which includes the right to invoice Buyer for the goods. Buyer agrees that title to the goods will transfer to Buyer at the point of delivery and that Buyer assumes all risk of loss or damage to the goods from the date title passes to Buyer.
5. FORCE MAJEURE
If either party is unable, by reason of Force Majeure, to carry out any of its obligations under this Agreement, other than obligations to pay money, then on such party giving notice and particulars in writing to the other party within a reasonable time after the occurrence of the cause relied upon, such obligations shall be suspended. Force Majeure shall include acts of God, laws and regulations, government action, war, civil disturbance, strikes and labor problems, lock-outs, interference by government institutions, lightning, fire, flood, hurricanes, washout, storm, pandemic, breakage or accident to equipment or machinery, shortage of raw materials, delays in transit or delivery on the part of transportation companies or communication facilities or failures of sources of raw material which are not due to Seller’s neglect in placing orders or seeking alternate sources of raw material, and any other causes that are not reasonably within the control of the party so affected. In the event the Force Majeure situation shall extend longer than three months, then in that event Seller shall, at its option, have the privilege of canceling the Contract. Seller shall be paid its applicable field service standby rate, if applicable, during any such Force Majeure event.
Orders placed by Buyer and accepted by Seller may be canceled only with the consent of Seller. All of Seller’s documents, drawings and like information shall be returned to Seller upon Buyers request for cancellation. Returned stock equipment and/or parts shall be subject to a minimum 20% restocking fee. Non-stock orders, or orders customer-defined specifications, shall be subjected to a minimum 35% restocking fee.
7. SUSPENSION/DELAYED SHIPMENT
If production is suspended at Buyer’s request and is not resumed within sixty (60) days after notification of suspension, Seller is entitled to invoice Buyer for all work performed up to the notification of suspension and Buyer agrees to pay in accordance with the above terms. If suspension lasts more than one hundred twenty (120) days, Buyer and Seller will mutually agree on a forward plan. Buyer’s request for deferred delivery or suspension of production may, at Seller’s option, be treated as cancellation of the order for which cancellation charges will be payable and such payment shall be made no later than thirty (30) days after the date of invoice. If delivery as originally scheduled is delayed at the request of the Buyer, Seller will, upon completion, prepare the Goods for shipment, store the Goods on Seller’s premises, and tag the Goods with a weatherproof tag with Buyer’s name identified as the owner and Buyer’s Purchase Order Number. On the original ship date, title and risk of loss will pass to the Buyer, and Seller will invoice Buyer for Goods; payment shall become due in accordance with the agreed payment terms. Buyer understands that as part of Seller’s procedures, Seller’s external audit firm may contact Buyer to validate these terms.
8. TITLE AND RISK OF LOSS
Ownership and risk of loss pass to Buyer at the point of delivery per incoterms. Seller accepts no responsibility for any damage, shortage, or loss in transit. Seller will attempt to pack or prepare all shipments so that they will not break or deteriorate in shipment but does not guarantee against such damage. Claims for any damage, shortage, or loss in transit must be made by Buyer on the carrier.
The safe installation and operation of the quoted Goods is the sole responsibility of the Buyer and any owner. Buyer must consider all hazard considerations such as, but not limited to, electric area classification, hazards associated with processing the specified material or specific safety standards applicable to the installation site. The Buyer and any owner also must ensure the operating and maintenance personnel coming in contact with the Goods are adequately trained in its safe operation and all associated safety procedures.
10. INTELLECTUAL PROPERTY
In the event of a determination of intellectual property infringement by final order of a court of competent jurisdiction, unappealed, and Buyer’s use of such Goods is enjoined, Seller will, at its expense and option: (i) procure for Buyer the right to continue to use the Goods or replace same with non-infringing Goods; (ii) modify the Goods so that they become non-infringing, or (iii) remove the Goods and refund to Buyer the purchase price and the transportation and installation cost thereof less the value of Buyer’s reasonable use up to the removal date. Seller will have no responsibility to pay any sum in connection with any settlements of claims made without its prior written consent. The foregoing states Seller’s entire liability and Buyer’s sole and exclusive remedies for infringement by any Goods purchased hereunder. Seller will have no responsibility respecting infringement caused by a third party’s patent or intellectual property right, infringement of any patents issued or intellectual property created after the date hereof or infringement caused by the use or sale of the Goods: (a) for a purpose other than that for which Seller manufactured the same; (b) in combination with other equipment in a system not designed by Seller; (c) manufactured to a design not furnished by Seller. Buyer shall indemnify, defend and hold Seller harmless from and against all claims, damages, losses, judgments, fees, expenses and costs, including attorneys’ fees, as incurred, arising out of or resulting from Buyer’s designs and specifications, integration and assembly, or in any way related to its acts, negligence, breach of this Agreement.
Seller expressly reserves the right to change, discontinue or modify the design and manufacture of its products without obligation to furnish, retrofit or install goods previously or subsequently sold. Buyer shall have the right, during the progress of the work, to request, in writing, additional work, or deletion of any work covered hereunder; provided, however, that such changes do not materially affect the scope of work, and provided tat such changes are not, in the Seller’s judgment, inconsistent with sound engineering principles or the Seller’s guarantees, warranties, and/or responsibilities hereunder. If such changes result in any increase in the work to be performed by Seller, or the cost thereof, or the cost of raw materials to be used by the Seller, a change to the contract price shall be made; provided, that Seller shall be entitled to continue the performance of its work hereunder regardless of any proposed change until such agreement in writing is made. If such requests for changes and/or such changes result in any delay in the completion of the Seller’s work hereunder, the estimated time of completion shall be correspondingly extended.
All Seller Equipment / Products shall be installed by Buyer at Buyers expenses, unless stated otherwise in writing by Seller. Should Buyer desire and so request, Seller will make available a competent person to superintend the installation and/or first operation (a.k.a. commissioning) of the Equipment. Buyer shall reimburse Seller at Seller’s standard rate per day and eight (8) hours; plus time-and one-half for all time over eight (8) hours in a single day, and double time for all hours spent on Saturdays, Sundays, and recognized Holidays, plus actual board and expenses, including transportation to and from location of work, including travel time. Seller’s rate are subject to change and shall be quoted on a case-by-case basis. Payment for such service shall be pursuant to the stated payment terms of the invoice and these Standard Terms & Conditions of Sale.
Buyer will hold Seller free and harmless against all claims and losses from injuries to persons, including your employees, and damage to property and fire losses resulting in any act of or omission to act of such person while on Buyer’s property.
Seller will supply only such safety devices as are specified, except that in the event additional safety devices are required by law we will, at your written request, and at your expense, furnish them upon receipt of proper specifications. Buyer takes full responsibility for ensuring local, state or federal compliance with required safety systems.
If, in Seller’s judgment, improvements can be made in the design, size, material or workmanship of the Goods herein described, Seller reserves the right to make such improvements as part of the design process without additional charge to the Buyer.
14. DRAWINGS/CONFIDENTIAL INFORMATION
(i) Any drawings, prints and all know how, technical, and proprietary and trade secret information (“Confidential Information”) furnished by Seller are furnished only for the use of Buyer (or Buyer’s customers) in installing, operating and maintaining the Goods purchased hereunder; they shall remain Seller property, be kept strictly confidential, used for no other commercial purpose and be returned promptly upon request. Seller’s Confidential Information is considered highly valuable intellectual property, and Buyer may in no way infringe the same. Buyer may not reverse engineer, disassemble or otherwise similarly analyze the Goods.
(ii) Buyer hereby assigns to Seller, all right, title and interest in and to any discoveries, improvements, enhancements, developments, modifications, creative ideas, works of authorship and inventions (collectively, “Developments”) that relate to the Goods and which are conceived, developed and/or reduced to practice, in whole or in part, by Buyer or its employees. At Seller’s expense, Buyer shall take all actions, sign all documents and make all filings necessary to vest in Seller such ownership. To the extent applicable law prohibits Seller from exclusive ownership of Developments, each party will take all actions necessary to permit a transfer of Developments from Buyer to Seller at the minimum payment permitted by law. In the event applicable law prohibits an assignment or transfer of Developments from Buyer to Seller, Buyer shall grant Seller a perpetual, world-wide, exclusive license to use the Developments for any and all purposes.
(iii) Buyer recognizes the great value of the publicity and goodwill associated with the Seller Confidential Information which Seller has established in the mind of the purchasing public and acknowledges that such goodwill is exclusively that of Seller. Buyer further recognizes and acknowledges that a breach by Buyer of any of its covenants, agreements or undertakings under this Agreement may cause Seller irreparable damage, which cannot be readily remedied in damages in an action at law, and may, in addition thereto, constitute an infringement of Seller, thereby entitling Seller to equitable remedies, including without limitation, all fees, costs and reasonable attorneys’ fees related thereto. Specifically, in addition to such remedies as may be available at law or under this Agreement, Seller shall have the right, without posting of bond or other security, to an injunction, both temporary and permanent, specific performance and/or other equitable relief. All remedies are cumulative. In the event any action or proceeding shall be instituted by Seller to enforce this Section, Buyer shall waive and not assert any claim or defense that an adequate remedy at law exists.
15. LAW AND DISPUTE RESOLUTION / ARBITRATION
(i) The official language of this Agreement is English. The rights and obligations in this Agreement will be governed by and interpreted in accordance with the substantive laws of the laws of the State of Missouri without giving effect to its conflicts of laws statutes. Neither 1980 U.N. Convention on Contracts for the International Sale of Goods nor the related Convention on the Limitation Period in the International Sale of Goods will be applicable to this Agreement. Any dispute arising from or in connection with this Agreement shall be submitted to the courts servicing the city of St. Louis, Missouri, USA. Buyer waives any objection based on forum non conveniens or any other objection to venue of any such action.
(ii) At all times, Seller shall have the right to pursue equitable remedies, collection actions and enforcement of judgments against Buyer in any court of competent jurisdiction. If the parties are unable to settle their dispute amicably, then the matter will be settled by arbitration in the state of Missouri, St. Louis City.
16. LIMITED WARRANTY
Seller warrants to Buyer that Goods designed and manufactured by it will substantially conform to the specifications. References to Buyer in this Section 5 refer to both Buyer and Buyer’s customer; If Buyer passes this limited warranty to its customer, it must so pass the entirety of this Section 5. Any statement made by Seller regarding performance or capacity of Goods is made in good faith, but such statement is not intended in any way to modify or enlarge the foregoing limited warranty. All Goods will be manufactured in accordance with Seller’s original or last revised specifications as recorded by Seller, unless revised specifications are provided by Buyer and agreed to in writing by Seller at the time of Seller’s entry of Buyer’s order. It is Buyer’s responsibility to supply correct original equipment identification when placing a parts order. Any error made in supplying Goods because of Buyer’s incorrect equipment identification will be Buyer’s responsibility.
The exclusive and sole remedy for any breach of warranty is as follows. Seller will replace or repair, without charge to Buyer, any defective Good which was designed and manufactured by Seller, subject to the return of the Goods at Seller’s request. Seller’s obligation will terminate after ONE YEAR FROM THE DATE THE GOOD IS PLACED IN OPERATION BY BUYER OR EIGHTEEN MONTHS FROM THE DATE OF DELIVERY OF THE GOODS, WHICHEVER OCCURS FIRST. NON-DEFECTIVE GOODS MAY NOT BE RETURNED EXCEPT IF SELLER, IN ITS DISCRETION, PERMITS THE RETURN UNDER SECTION 20 BELOW. SELLER’S WARRANTY OBLIGATIONS ALSO SHALL BE CONDITIONED ON SELLER’S RECEIVING WRITTEN NOTICE OF ANY ALLEGED NON-CONFORMITY WITHIN TEN (10) DAYS AFTER ITS DISCOVERY.
THE FOREGOING SHALL BE BUYER’S EXCLUSIVE REMEDIES. EXCEPT AS WARRANTED IN THIS SECTION 5, THE GOODS ARE SOLD HEREUNDER AS IS, AND NO WARRANTY OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, WHETHER IN RELATION TO MERCHANTABILITY, HIDDEN DEFECTS, FITNESS FOR PARTICULAR PURPOSE, COURSE OF PERFORMANCE, COURSE OF DEALING, USAGE OF TRADE, NONINFRINGEMENT OR OTHERWISE IS GIVEN BY SELLER TO BUYER OR ANY OTHER PARTY. SELLER SHALL NOT UNDER ANY CIRCUMSTANCE BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL OR OTHERWISE (INCLUDING, BUT NOT LIMITED TO, LOSS OF REVENUE, PROFIT OR USE OR COST OF CAPITAL OR OF SUBSTITUTE USE OR PERFORMANCE) ARISING OUT OF THE TRANSACTIONS CONTEMPLATED HEREUNDER. UNDER NO CIRCUMSTANCES SHALL SELLER’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING BUT NOT LIMITED TO ANY WARRANTY CLAIMS HEREUNDER), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EXCEED THE TOTAL AMOUNT PAID BY BUYER TO SELLER FOR THE SHIPMENT IN QUESTION (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN SUCH ACTION). ANY ACTION ARISING OUT OF OR RELATED TO THIS AGREEMENT AGAINST SELLER MUST BE COMMENCED WITHIN ONE (1) YEAR FROM THE DATE THE RIGHT, CLAIM, DEMAND OR CAUSE OF ACTION SHALL FIRST OCCUR, OR BE BARRED FOREVER.
THE LIMITED WARRANTY CONTAINED IN THIS SECTION 5 SHALL BE VALID AND REMAIN IN EFFECT ONLY IF: (I) THE GOODS ARE USED, MAINTAINED, INSTALLED AND STORED BY BUYER AS DIRECTED BY ALL APPLICABLE DOCUMENTATION; (II) IF ENFORCEABLE, BUYER HAS PAID SELLER ALL SUMS DUE HEREUNDER; (III) BUYER HAS NOT IN ANY WAY REPAIRED OR MODIFIED THE GOODS; (IV) THE CLAIM IS UNRELATED TO NORMAL WEAR AND TEAR, CORROSION OR EROSION, OR TO ANY GOOD NORMALLY CONSUMED IN OPERATION OR THAT HAS A NORMAL LIFE INHERENTLY SHORTER THAN THE APPLICABLE WARRANTY PERIOD; (V) THE CLAIM IS UNRELATED TO THE FAILURE BY BUYER TO FOLLOW THE MOST CURRENT INSTRUCTIONS ISSUED BY THE SELLER WITH RESPECT TO THE PROPER USE OF THE GOODS; (VI) THE CLAIM IS UNRELATED TO THE NEGLIGENCE OR ACT OF BUYER OR ANY THIRD PARTY; (VII) THERE HAS BEEN NO OPERATION OF THE GOODS UNDER CONDITIONS MORE SEVERE THAN THOSE FOR WHICH THE GOODS WERE DESIGNED; OR (VIII) THE CLAIM IS UNRELATED TO FORCE MAJEURE. WITH RESPECT TO GOODS NOT MANUFACTURED BY SELLER, SELLER PASSES TO BUYER THE WARRANTIES PROVIDED BY THE MANUFACTURER AND BUYER SHALL HAVE BREACH OF WARRANTY RIGHTS ONLY AGAINST SUCH THIRD PARTY MANUFACTURER.
THIS ARTICLE 12 SETS FORTH BUYER’S SOLE REMEDY AND SELLER’s ONLY OBLIGATION WITH REGARD TO NON‐CONFORMING EQUIPMENT, PARTS OR SERVICES. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED PURSUANT TO THE PROVISIONS OF THIS ARTICLE 8, SELLER MAKES NO OTHER WARRANTIES OR REPRESENTATIONS OF ANY KIND, EXPRESS OR IMPLIED, AND SELLER DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE. UNDER NO CIRCUMSTANCE SHALL SELLER BE FINANCIALLY RESPONSIBLE FOR CONSEQUENTIAL DAMAGES ARISING FROM A WARRANTY CLAIM. THIS INCLUDES, BUT IS NOT LIMITED TO, ENVIRONMENTAL SPILLS, LEAKAGE, CONTAMINATION, OR UNCONTROLLABLE RELEASE.
17. RESTOCKING FEES
Upon Seller’s written approval, unused and/or “Made to Stock” goods ordered incorrectly, in new condition, and of current manufacture and catalog specifications, may be returned by Buyer for credit (subject to a 20% minimum restocking fee), provided written request is received within one month after the purchase date. Non‐standard, custom goods, or goods incorporating customer-defined specifications are not returnable for credit, without the consent of the Seller. A 35% minimum restocking fee will apply to all returned non-standard and/or custom goods. Requests for return of goods must show original purchase order number, invoice number, description of material, and date of purchase. Return of goods does not relieve Buyer of the obligation to make payment against Seller’s invoice, and any credit or refund allowed will be issued following Seller’s receipt of the goods. The credit allowed on returned goods, if any, is a merchandise credit and is applicable only against future purchases of Seller goods. The credit given will be solely in Seller’s discretion and may be based on the original or a subsequently adjusted price; a charge will be made to clean‐up, refinish and restock. No rubber, electronic products or components, and/or expiration dated products may be returned for credit.
18. EXPORT COMPLIANCE
By acceptance of these terms and conditions and/or the receipt of the product manufactured, Buyer confirms that the products, commodities, technology, and/or software will not be re-exported, or transshipped in violation of any export regulation of the United States, including but not limited to trade embargos and denied parties lists now in effect. These products, commodities, technology, and/or software were exported from the United States in accordance with the Export Administration Regulations. Diversion, contrary to United States law, is prohibited and is a violation of the sales agreement. A separate Export Compliance Certification may be required for orders leaving the United States.
19. SECURITY INTEREST
Seller hereby retains and Buyer hereby grants a security interest in the Goods (and proceeds thereof), all of which will remain personal property and will not be considered fixtures to real estate until all amounts due have been paid in full. Buyer agrees to perform all acts that in Seller’s opinion shall be necessary or desirable to protect such security interest. All costs and expenses in connection therewith, including reasonable attorneys’ fees, shall be borne by the Buyer. In addition, Buyer agrees to furnish adequate insurance against loss or damage by fire or other causes during the period between time of shipment and payment in full of all amounts due hereunder.
Seller’s waiver of any breach or failure to enforce any of the terms, conditions and specifications of the Contract shall not in any way affect, limit or waive Seller’s right thereafter to enforce and compel strict compliance with every term, condition and specification hereof.
Neither party may assign these Terms / this Contract, without the other party’s prior written consent, except either party may assign said contract, without consent, to any corporation owned or controlled by said party or to any corporation into which said party is consolidated or to which the business of said party directly related to the Contract is sold or conveyed.
22. ENTIRE AGREEMENT/MISCELLANEOUS
(i) None of the provisions of this Agreement shall be deemed to have been waived by any act of or acquiescence on the part of Seller, its agents, subcontractors, or employees, but only by an instrument in writing signed by an authorized representative of Seller. No waiver by Seller of any provisions of this Agreement shall constitute a waiver of any other provision or of the same provision on another occasion. (ii) This Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. (ii) If any provision or portion hereof is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions or portions of this Agreement shall remain in full force and effect and shall in no way be affected, impaired or invalidated. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT EACH AND EVERY PROVISION OF THIS AGREEMENT WHICH PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES, IS INTENDED BY THE PARTIES TO BE SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND TO BE ENFORCED AS SUCH. (iv) Buyer shall perform its obligations under this Agreement in full compliance with all relevant laws, rules and regulations applicable in connection with the sale, shipment or use of the Goods, including but not limited to the U.S. Foreign Corrupt Practices Act, U.S. export control regulations, export regulations of all U.S. agencies, U.S. embargo regulations export control or anti-bribery laws and any other applicable anti-corruption or anti-bribery act. (v) There are no third-party beneficiaries of this Agreement, and Buyer may grant no rights to its customer against, or that bind or obligate, Seller. (vi) Neither Seller nor Buyer shall directly or indirectly induce any employee or agent of the other party to leave the employ of the other, without the other party’s prior written consent. (vii) Seller may use subcontractors as it deems necessary. (viii) Buyer shall pay all of Seller’s costs and expenses, including reasonable attorneys’ fees and accountants’ fees, incurred in enforcing this Agreement or obtaining damages. (ix) In addition to any other rights that Seller has under this Agreement, Seller has the right to set off, at any time against monies due Buyer from Seller, all or any part of the monies due and payable under this Agreement or otherwise, to Seller from Buyer. Buyer has no set off rights.
23. DEFINITIONS / LEGAL AFFILIATIONS
For purpose of this Article 11, the following definitions shall apply: (1) “Seller Group” shall mean (i) Seller, its parent, subsidiary or related companies, (ii) its and their working interest owners, co‐lessees, co‐owners, partners, joint venturers, if any, and their respective parents, subsidiary or related companies and (iii) the officers, directors, employees, consultants, agents and invitees of all of the foregoing. (2) “Buyer Group” shall mean (i) Buyer, its parent, subsidiary or related companies, (ii) its and their working interest owners, co‐lessees, co‐owners, partners, joint venturers, if any, and their respective parents, subsidiary or related companies and (iii) the officers, directors, employees, consultants, agents and invitees of all of the foregoing. TerraSource Global Corporation is affiliated with Tabor Machinery Company, LLC, Norris Screen and Manufacturing, LLC, Tango Drilling Services, Inc., Elgin Separation Solutions – Industrials, LLC, Centrifugal Services, Inc.; Elgin Equipment Group; KEMTRON Canada, Inc.; Kem-Tron Technologies Pvt, Ltd; Industrial Process Equipment, Inc.; KEMTRON Technologies, LLC; and Elgin Separation Solutions.