1. CONTENT OWNERSHIP - Content on Fix Supply Property that is provided by Fix Supply, including software, graphics, photographs, images, screen shots, text, digitally downloadable files, trademarks, logos, product, service and program names, slogans, and the compilation of the foregoing ("Fix Supply Content") is the property of Fix Supply, and is protected in the U.S. and internationally under trademark, copyright, and other intellectual property laws. Except as explicitly provided herein, nothing in the Agreement shall be deemed to create a license in or under any such intellectual property rights, and you agree not to sell, license download, screenshot, rent, modify, distribute, copy, reproduce, transmit, display to third parties, publicly perform, publish, adapt, edit or create derivative works from any Fix Supply Content.
2. PROHIBITED USES OF FIX SUPPLY PROPERTIES - Any unauthorized use, change of information or interference with the availability of, access to or proper working of any part or feature of the Fix Supply Properties or their security measures is prohibited. Without limiting the foregoing, you agree that you will not, directly or indirectly through any third party, engage in any of the following activities with respect to the Fix Supply Properties or the Content, unless agreed to in writing by an authorized representative of Fix Supply:
2.1. copy, mirror, archive, intercept or redirect any Content;
2.2. redistribute, reproduce, make a derivative work from or commercially exploit the Content in any manner;
2.3. page, screen, or web scrape, web harvest, or use any robot, spider, indexing agent or other automatic device, process or means to access the Fix Supply Properties for any purpose, including extracting data from, monitoring or copying the Content;
2.4. use the Fix Supply Properties in a manner that could disable, overburden, damage or impair them or interfere with another party’s use of them;
2.5. use any device, software, script or routine that interferes with the proper working of the Fix Supply Properties;
2.6. introduce to the Fix Supply Properties any virus, trojan horse, rootkit, logic bomb or other material which is malicious or technologically harmful;
2.7. attempt to gain unauthorized access to, interfere with, damage or disrupt any parts or features of the Fix Supply Properties or the Content, the servers on which the Fix Supply Properties and Content is stored, or any server, computer or database connected to the Fix Supply Properties or operated by us;
2.8. use a denial-of-service attack or a distributed denial-of-service attack against any of the Fix Supply Properties;
2.9. reverse engineer or attempt to extract the source code of any software that comprises any part of the Fix Supply Properties or the Content;
2.10. display or use any Content for any commercial purpose in any publications, audiovisual works, public performances, or on websites or other applications, including but not limited to in connection with products other than our Products, in any other manner likely to cause confusion, to disparage or discredit, to dilute the strength of the intellectual property owned by us, or to otherwise infringe the intellectual property rights of Fix Supply or any third party;
2.11. frame or use framing techniques to enclose any trademark, logo, intellectual property or other proprietary information (including images, text, page layout or form) of Fix Supply without our express written consent;
2.12. use any metatag or any other “hidden text” utilizing our name or trademarks without our express written consent;
2.13. use any technology or other means to hide your identity.
TERMS OF SALE
1All Invoices, Quotations and Order Confirmations, and all forms for placing orders for products and/or services, including but not limited to Purchase Orders, Requests for Proposal and Requests for Quotation, are expressly subject to and conditioned on these terms and conditions (“Terms and Conditions”) and upon no other terms and conditions unless specifically and expressly agreed to in writing and signed by a duly authorized officer of [Fix Supply, LLC (“Company”)].
[Fix Supply] is hereafter referred to as “Seller.” The purchaser(s) of the products and/or services from Seller are hereafter referred to as “Buyer.” Seller’sproducts and/or services are hereafter referred to as “Goods.” The orders for Goods, including but not limited to all of Buyer’s Quotations, Purchase Orders, and Order Confirmations, are hereafter referred to as “Order.
”Buyer’s assent to the Terms and Conditions shall be conclusively presumed from the first to occur of the following: (i) Buyer’s execution of a Purchase Order with, or referring to, Seller; (ii) Buyer’s execution of any other document containing these Terms and Conditions; or (iii) the acceptance of delivery of any Goods.
Any document attached by Seller to its Invoice is part of the Terms and Conditions. Any Terms and Conditions contained in any document from Buyer, including any Order, are void and not binding.
1. OFFER AND ACCEPTANCE – ANY ORDER EXPRESSLY LIMITS ACCEPTANCE TO THE TERMS AND CONDITIONS SET FORTH HEREIN. SELLER OBJECTS TO ANY ADDITIONAL OR DIFFERENT TERMS (ORAL OR WRITTEN). ANY SUCH ADDITIONAL OR DIFFERENT TERMS ARE REJECTED BY SELLER AND THUS NOT BINDING ON SELLER UNLESS SPECIFICALLY AND EXPRESSLY AGREED TO IN WRITING SIGNED BY A DULY AUTHORIZED OFFICER OF SELLER, NOTWITHSTANDING ANY PRIOR TRANSACTIONS OR COURSE OF DEALING BETWEEN BUYER AND SELLER AND REGARDLESS OF WHETHER SUCH ADDITIONAL OR DIFFERENT TERMS MATERIALLY ALTER THE TERMS AND CONDITIONS OF ANY ORDER. No Order of any kind between Buyer and Seller shall be binding on Seller unless and until it is accepted by Seller. Acceptance of Buyer’s Order is upon these Terms and Conditions; provided, however, if Buyer’s Order or offer is expressly conditioned upon Seller’s acceptance of Buyer’s terms and conditions, and the terms of quantity, price and the description of the Goods of Seller in Buyer’s Order or offer are the same as set forth in Seller’s acceptance, then all other contrary or different terms in Buyer’s offer are expressly rejected and Seller’s acceptance shall create an agreement between Buyer and Seller to the extent of all consistent terms between Buyer’s offer and Seller’s acceptance, subject to and conditioned upon Buyer’s consent to any of these Terms and Conditions which may constitute terms additional to or different from those terms contained in Buyer’s offer. Buyer shall be deemed to have so consented by notifying Seller in writing or electronically, by accepting delivery of the Goods, or by using or selling the Goods. Acceptance by Seller of Buyer’s Order shall take place upon acknowledgement either electronically or in writing of Buyer’s Order, or by delivery to Buyer or Buyer’s carrier of all or any part of the Goods.
2. PRICE – All prices for Goods are quoted and payable in United States currency. All prices are F.O.B. Seller’s shipping point (Buyer pays shipping, loading, and handling charges). Seller has the right to correct any obvious/clerical errors. If shipping charges are quoted or invoiced, Seller may include charges in addition to actual freight costs. If the prices on the date of shipment differ materially from the date they were originally quoted, then Seller may adjust prices to conform to its prices in effect on date of shipment.
3. TAXES – Prices do not include any taxes. Any taxes which, under any existing or future law, Seller may be required to pay or collect with respect to the sale, purchase, delivery, storage, processing, use, consumption, or transportation of any of the Goods shall be paid by Buyer to Seller on Seller’s demand. This includes, without limitation, Buyer’s obligation to pay for any sales and use tax, excise tax, customs, duties, inspection or attestation fees, or any other charges imposed by any governmental authority.
4. DELIVERY – Delivery dates for any Goods are approximate, are done for the convenience of Buyer, and shall not be binding upon Seller or considered material to the performance of these Terms and Conditions. Shipping schedules and shipping commitments are generally based upon current production capabilities, material availability and inventory, and may be changed by Seller at Seller’s option as conditions may require. The Goods shall be sold and delivered F.O.B. Seller’s shipping point, and delivery of Goods to Buyer shall be deemed to have taken place upon tender of Goods to Buyer or to the shipping carrier. Seller reserves title to the Goods until paid for in full by Buyer to Seller. Shipments in installments is permitted. The Goods are subject to tolerances and variations consistent with usual industry practices or with Seller’s own practices. Seller assumes no liability for specifications agreed upon, reviewed or provided by Buyer
5. RISK OF LOSS - Buyer agrees to assume all risk for loss of, or damage or injury to, the Goods from the time they are tendered for delivery to the shipping carrier (or Buyer) and for all risk of loss arising out of any delay in shipment of the Goods after they are tendered for delivery to the shipping carrier (or Buyer), or if shipment is deferred by any act or omission, from the time the Goods are completed and ready for shipment. Buyer shall be liable for the full purchase price whether the Goods are lost, stolen, damaged or destroyed. Buyer shall arrange for such insurance as is necessary to cover and protect the Goods at all times.
6. INSPECTION, ACCEPTANCE AND RETURN OF GOODS – Please see full Return Policy. After the return period specified in the Return Policy,Buyer shall conclusively be deemed to have irrevocably accepted the Goods, and such goods shall conclusively be deemed to conform to Buyer’s specifications. No returns nor cancellations can be made without the prior, written authorization of Seller and a pre-assigned return/cancellation authorization number issued by Seller. All returns and cancellations are subject to inspection and acceptance by Seller. When returns and cancellations are accepted by Seller, they are subject to a handling and re-inspecting charge Seller will determine. All returns and cancellations must be in accord with Seller’s specific shipping instructions. Buyer further acknowledges that custom or specially processed or manufactured Goods are non-cancelable and non-returnable, and Seller, in its sole discretion, may cause such Goods, including blisters, insert cards, and other packaging supplies, to be shipped to Buyer, and Buyer shall be obligated to pay Seller immediately the amount of Seller’s invoice.
7. PAYMENTS - All invoices shall be due and payable in full, without set-off or reduction, within thirty (30) calendar days from the invoice date, unless payment for the Goods is due in full upon delivery or in advance. Within this same30 day period, Buyer agrees to notify Seller in writing of any claim of error in any Invoice issued by Seller or any other statement of account, and if Buyer fails to so notify Seller, then Seller’s Invoice or statement of account shall conclusively be deemed to be correct and accepted by Buyer. Extensions of credit may be changed or withdrawn at any time. Buyer shall pay an interest charge of one and one-half percent (1 ½%) per month or part thereof, or the highest rate permitted by law, whichever is lesser, on any amount past due and owing by Buyer to Seller on any invoice until paid in full by Buyer to Seller. Whether or not Seller must commence a lawsuit, if any dispute arises between the parties in connection with the interpretation, construction and/or enforcement of these Terms and Conditions or in connection with the enforcement of any of Seller’s rights or Buyer’s duties, Buyer shall promptly pay Seller all costs, expenses, and fees, including without limitation, attorneys’ fees, and costs, incurred by Seller in connection with the dispute. In the event Seller is the prevailing party in a lawsuit or other proceeding brought by or against Buyer, whether based in tort, contract, or other theory of recovery, then Seller shall be entitled to all its costs and expenses, including attorney’s fees, incurred in such lawsuit or proceeding.
8. BUYER’S REPRESENTATIONS – In addition to all of the other representations and duties of Buyer as set forth herein, and to the extent Buyer provides any products to Seller for packaging, repackaging, distributing or shipping, Buyer represents that the products are: (a) free from all defects, including defects in design, manufacturing, workmanship, materials and hazards; (b) merchantable, suitable and fit for a particular purpose; (c) in compliance with all court orders, laws and regulations of any kind whatsoever; (d) not infringing or encroaching on any other party’s rights, including without limitation, patents, trademarks, trades dress, trade names, copyrights, rights of privacy, trade secrets and other intellectual property rights; (e) not in conflict or in violation of any agreement, judgment, court order, law or regulations; and (f) salable, including without limitation salable without requiring any further authorization or from anyone else. Whether or not Buyer provides any products to Seller for packaging, repackaging, distributing,or shipping, Buyer represents that it has reviewed these Terms and Conditions carefully with its legal counsel or voluntarily waives its right to do so.
9. WARRANTY DISCLAIMER – ALL GOODS ARE BEING SOLD “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OF ANY KIND, WITH RESPECT TO THE GOODS, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AS TO ACCURACY, FUNCTIONALITY, PERFORMANCE OR MERCHANTABILITY. SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY WITH RESPECT TO THE GOODS, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES ARISING OUT OF TRADE USAGE, COURSE OF DEALING OR COURSE OF PERFORMANCE. ANY PERFORMANCE ESTIMATES DESCRIBED IN ANY ORDER, OR IN ANY OF SELLER’S WRITTEN OR ELECTRONIC OR MAGNETIC MEDIA PROPOSALS OR QUOTATIONS, ARE ONLY ESTIMATES AND ARE NOT INTENDED AS AN EXPRESS WARRANTY. ANY SAMPLES SUBMITTED BY SELLER TO BUYER, AND ANY DESCRIPTIONS, ILLUSTRATIONS, OR FORECASTS IN TRADE LITERATURE, BROCHURES, OR OTHER DOCUMENTATION OR ELECTRONIC OR MAGNETIC MEDIA SHALL NOT BE CONSTRUED AS WARRANTIES AS TO SUBSTANCE, PERFORMANCE, QUALITY, WEIGHT OR DIMENSION, AND ANY FAILURE TO CONFORM WITH SUCH SAMPLES, DESCRIPTIONS, FORECASTS OR ILLUSTRATIONS SHALL NOT CONSTITUTE ANY BREACH OF ANY ORDER OR THESE TERMS AND CONDITIONS. NO SALES PERSONNEL, EMPLOYEES, AGENTS OR REPRESENTATIVES OF SELLER OR ANY THIRD PARTY ARE AUTHORIZED TO MAKE ANY REPRESENTATION, WARRANTY OR COVENANT, WHETHER IN WRITING OR ORALLY, ON BEHALF OF SELLER. NOTWITHSTANDING THE FOREGOING TERMS IN SECTION 9, IN THE EVENT ANY PART OF SECTION 9 IS INVALID OR UNENFORCEABLE, THEN THIS SECTION WILL BE VALID TO THE FULLEST EXTENT ALLOWABLE BY LAW.
10. BUYER’S SOLE AND EXCLUSIVE REMEDY; LIMITATIONS ON LIABILITY – SELLER’S SOLE OBLIGATION AND LIABILITY TO BUYER, AND BUYER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO DEFECTIVE OR OTHERWISE NONCONFORMING GOODS IS LIMITED TO, IN SELLER’S DISCRETION, ONE OF THE FOLLOWING: (A) REPLACEMENT OF THE NON-CONFORMING GOODS AND DELIVERY TO BUYER FREE OF CHARGE TO THE SAME LOCATION OF ORIGINAL SHIPMENT; (B) REPAIR OF THE NON-CONFORMING GOODS AND DELIVERY TO BUYER FREE OF CHARGE TO THE SAME LOCATION OF ORIGINAL SHIPMENT; OR (C) REFUND OF THE PURCHASE PRICE PAID, IF ANY, FOR THE NON-CONFORMING GOODS (WITHOUT INTEREST). IF REQUESTED BY SELLER AND AT SELLER’S EXPENSE, BUYER SHALL RETURN TO SELLER ANY GOODS WHICH ARE REPLACED OR FOR WHICH BUYER RECEIVES A REFUND, PROVIDED THAT IN ANY SUCH EVENT, BUYER HAS COMPLIED WITH SELLER’S RETURN POLICIES AND PROCEDURES. BUYER WAIVES ANY RIGHT TO ANY REMEDIES FOR NONCONFORMING GOODS OTHERWISE AVAILABLE AT LAW OR STATUTE OTHER THAN THOSE EXPRESSLY STATED IN THIS SECTION 10. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, AND EVEN IF BUYER’S EXCLUSIVE REMEDY FAILS, SELLER SHALL IN NO EVENT BE LIABLE FOR ANY PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ANY DAMAGES FOR BUSINESS INTERRUPTION, LOSS OF REVENUES, PROFITS, INJURY TO REPUTATION, OR LOSS OF CUSTOMERS), REGARDLESS OF CAUSE OR FORM OF ACTION AND EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING THE FOREGOING, IN THE EVENT THE TERMS OF THIS SECTION, OR ANY PART THEREOF, SHALL BE HELD INVALID OR UNENFORCEABLE BY A COURT OF COMPETENT JURISDICTION, SELLER’S TOTAL AGGREGATE LIABILITY IN CONNECTION WITH ANY ORDER AND THESE TERMS AND CONDITIONS SHALL NOT EXCEED THE PURCHASE PRICE OF THE GOODS GIVING RISE TO THE CLAIM. ONLY IF THE ABOVE TERMS IN THIS SECTION ARE NOT PERMITTED BY APPLICABLE LAW, THIS SECTION SHALL NOT RELIEVE BUYER FROM LIABILITY FOR DAMAGES THAT RESULT FROM ANY GROSS NEGLIGENCE OR WILLFUL OR TORTIOUS ACTS OF VENDOR.
11. TECHNOLOGICAL CHANGES OR IMPROVEMENTS - Notwithstanding any other provision hereof, Seller reserves the right, without prior notice, at any time and from time to time, to make changes in: (a) any formula, data, tables, dimensions, materials and/or processes used in the manufacture and/or provision of the Goods; or (b) to make changes in the design, specifications and capacities of any of the Goods; or (c) to discontinue manufacturing or supplying any of the Goods.
12. SOLVENCY; AUTHORIZATION FOR BACKGROUND CHECK; SUSPENSION OF PERFORMANCE – Buyer hereby represents and warrants to Seller that Buyer is solvent on a balance sheet basis and has the unrestricted ability to pay its debts in the ordinary course of business as and when they are due and payable. Buyer acknowledges and agrees that, contemporaneously with the receipt by Seller from Buyer of any purchase order or request for the purchase of products, goods, or services, (i) Buyer shall be deemed to have remade and reaffirmed in writing Buyer’s solvency representation and warranty set forth above; and (ii) such written solvency representation and warranty, in addition to being remade as set forth herein, shall be deemed for all purposes to be incorporated in said purchase order or request as if it was fully set forth in writing therein, it being theexpress intention of the parties to grant to Seller the maximum right of reclamation available at law or in equity either under applicable state law (i.e. the Uniform Commercial Code) or in any bankruptcy or solvency proceeding. To induce Seller to sell to Buyer on an open account basis, Buyer authorizes Seller to check Buyer’s assets and credit background, and Buyer authorizes the release of all financial/credit information, including any credit history information and experience, to Seller. This authorization for the release of financial/credit information is a continuing authorization for as long as Seller claims it has not been paid in full by Buyer. If, in Seller’s judgment, any doubt exists as to Buyer’s financial capacity or responsibility at any time, or if Buyer is past due in payment of any amount owing to Seller, then Seller reserves the right, without liability and without prejudice to any other remedies, to decline or suspend performance, decline to ship, or stop any material or the Goods in transit, until Seller receives payment of all amounts owing to Seller, regardless of whether or not payment is then past due or adequate assurance of such payment has been made by Buyer to Seller.
13. INDEPENDENT CONTRACTORS’ INTELLECTUAL PROPERTY – Buyer and Seller are independent contractors and nothing in the Terms and Conditions creates any partnership, joint venture, agency, employment or sales representative relationship between Buyer and Seller. Neither is the agent of the other and neither has the power to bind the other. Personnel supplied by Buyer or Seller shall not be for any purpose considered employees of the other party. In addition, Buyer acknowledges Seller’s sole, complete and exclusive ownership of and validity of all of Seller’s trademarks, patents, trade dress, trade names, copyrights, trade secrets and all other intellectual property rights in connection with the packaging, display and distribution of the Goods, and Buyer waives, relinquishes and surrenders any claims to Seller’s intellectual property rights.
14. INDEMNIFICATION OF SELLER – Buyer shall defend (counsel to be selected by Seller and paid for by Buyer), indemnify and hold harmless Seller, its parent, subsidiary and affiliated companies, and the officers, directors, employees and agents of each, from all claims, losses, demands, liabilities, actions, damages, settlements, costs and expenses (including without limitation penalties, interest and attorney fees) in any way arising out of or related to any actual or alleged: (a) breach by Buyer of any provisions of these Terms and Conditions; (c) personal injury, death or property damage in connection with the Goods; (d) violation, infringement or misappropriation of any patent, trade name, trade dress or trade secret of any third party with respect to the Goods; (e) modification, alteration, adaptation or use of the Goods; and (f) acts, representations or omissions of Buyer related to Buyer’s sale of the Goods, use of the Goods or incorporation of the Goods into a product or part thereof. Seller shall have the right to control the defense of any such claims, including, without limitation, the authority to settle any claim.
15. EXCUSABLE EVENT – Seller shall not be liable or considered in breach of its obligations under this Contract to the extent that Seller’s performance is delayed or prevented, directly or indirectly, by any cause beyond its reasonable control, or by armed conflict, acts or threats of terrorism, epidemics, strikes or other labor disturbances, or acts or omissions of any governmental authority or of the Buyer or Buyer’s contractors or suppliers. If an excusable event occurs, the schedule for Seller’s performance shall be extended by the amount of time lost by reason of the event plus such additional time as may be needed to overcome the effect of the event. If acts or omissions of the Buyer or its contractors or suppliers cause the delay, Seller shall also be entitled to an equitable price adjustment.
16. TOOLS, DIES, CONFIDENTIAL DATA - Unless otherwise required by applicable law, any tools, dies, fixtures or technical data that Seller may develop for use in production of the Goods shall remain the sole property of Seller and shall be subject to the confidentiality provisions set forth herein. Buyershall not disclose, to any other person or entity, any nonpublic, confidential, proprietary, and/or trade secret information acquired or learned from Seller without Seller’s prior written permission. Buyer shall not use in any way any of corporate names, designs, trademarks, patents, trade names or copyrighted works of Seller, Seller’s affiliates, and Seller’s parents for any purpose other than to perform this Order.
17. LIMITATION ON ACTION – Any action or suit against Seller, whether based in tort, contract, or any other legal theory, arising in any way from or with respect to these Terms and Conditions, any Order or the Goods must be commenced not later than one (1) year after the cause of action has accrued, but in no event more than one (1) year from the date of the Order.
18. FORCE MAJEURE -Seller shall not be liable for any failure to perform in accordance with any Order, including, without limitation, any delay or failure to deliver any of the Goods, caused for any reason, in whole or in part, beyond Seller’s reasonable control, including, but not limited to, production schedules of Seller’s suppliers, unavailability of materials or power at current prices, labor disturbances, acts of God, fire, flood, weather, terrorism, theft, war, or transportation difficulties.
19. ENTIRE AGREEMENT - These Terms and Conditions, together with the other documents expressly referred to herein constituting any Order, constitute the entire agreement under which Seller is supplying the Goods for sale to Buyer. No other, additional, different or modified terms, conditions or understandings, whether oral or written, shall be binding upon Seller or relied upon by Buyer, unless concurrently herewith or hereafter such modifications are specifically and expressly agreed to in writing and signed by a duly authorized officer of Seller.
20. NO WAIVER – Seller’s failure to strictly enforce any Terms or Conditions, or to exercise any of its rights, shall not constitute a waiver of Seller’s rights to strictly enforce such Terms or Conditions or to exercise such rights thereafter. The waiver by Seller of any default or breach by Buyer must be specifically and expressly agreed to in writing and signed by a duly authorized officer of Seller, and any such waiver shall not operate as a waiver of any other default or breach, even of the same kind. To the extent Seller is deemed to have waived any rights or Terms and Conditions, whether by conduct or otherwise, in any one or more instances, such waiver shall not be deemed or construed as a further or continuing waiver. All of Seller’s rights and remedies are cumulative and are in addition to any other rights and remedies Seller may have at law or in equity.
21. SUCCESSORS AND ASSIGNS; SURVIVAL; AUTHORIZATION – The rights, duties, agreements and obligations hereunder, or any portion thereof, shall be binding upon and inure to the benefit of Seller and Buyer and their respective successors and assigns. These rights, duties, agreements and obligations shall survive the termination of any agreement between the parties and shall not be deemed waived, terminated or merged by Seller’s acceptance of any performance, including payment, by Buyer. Buyer confirms that the individual(s) signing any credit application, Orders or other communications to Seller are duly authorized officers, agents, or representatives with the authority to bind Buyer by signature thereon.
22. GOVERNING LAW; JURISDICTION – These Terms and Conditions of the agreement between Buyer and Seller have been made in the State of New York, and all the rights and duties arising out of or relating in any way to the subject matter of any Order or transaction(s) between the parties, including but not limited to any and all disputes as to the legality, interpretation, application, enforcement and performance of the Terms and Conditions and the rights and duties of the parties, shall be governed by, construed and enforced in accord with the laws of the State of New York without regard to any conflict of laws rules. BUYER AGREES THAT VENUE AND JURISDICTION FOR ANY AND ALL DISPUTES WITH SELLER SHALL EXCLUSIVELY LIE WITH A COURT OF COMPETENT JURISDICTION LOCATED IN THE COUNTY OF ERIE, NEW YORK. BUYER FURTHER AGREES THAT SERVICE OF PROCESS CAN BE AFFECTED UPON BUYER BY SERVICE ON THE SECRETARY OF THE STATE OF NEW YORK.
23. PERSONAL GUARANTY – To further induce Seller to sell to Buyer, the persons executing any credit application and other sales documents submitted by Buyer personally guarantee prompt and full payment on Seller’s invoices and in accord with these Terms and Conditions if Buyer fails or refuses to pay such sums. This guarantee is absolute and unconditional, regardless of (i) the enforceability of any document evidencing all or any part of the obligations of Buyer, (ii) any waiver or consent by Seller or Buyer with respect to the Terms and Conditions, or (ii) any other circumstance which might otherwise constitute a discharge of or defense by a guarantor. Guarantors waive diligence, presentment, demand of payment, filing of claims in the event of receivership or bankruptcy of Buyer, protest or notice with respect to the liabilities or obligations of Seller. Guarantors covenant that this guaranty will not be discharged except by complete payment.
24. SEVERABILITY – If any provision herein is invalid, illegal or unenforceable, then the validity, legality and enforceability of the remaining provisions hereof will not in any way be affected or impaired thereby and only the invalid, illegal or unenforceable provisions shall be null and void.