Terms and Conditions

 

1. Factory Direct Electrical Products Corporation’s (hereinafter, “FDEP”) Terms and Conditions Control the Agreement

a. These terms and conditions are incorporated into and made a part of the agreement, or proposal (“Agreement”) by FDEP and any of its domestic subsidiaries, unincorporated divisions or affiliates (“FDEP”) to sell to the named Buyer the goods referenced on the face of this document (“Goods”) and services (including, without limitation, any material management, assembly and kitting services, and engineering and design services (whether performed by FDEP or a subcontractor) referenced on the face of this document (“Services”). The Agreement expressly limits Buyer’s acceptance to these terms and conditions. Buyer acknowledges that Seller’s primary business is the offer for sale of goods and services via its Internet ecommerce platform and transactions may be fully automated by machine/computer process; All transactions, including Internet ecommerce transactions, are made pursuant to the terms and conditions set forth herein.

Buyer may reject the Agreement by not ordering any Goods or Services. The Agreement does not constitute an acceptance by FDEP of any offer or counteroffer of Buyer, and FDEP hereby rejects any additional, different, or inconsistent terms, conditions or limitations contained in or incorporated by reference in any forms, purchase orders or other documents of Buyer that already have been or hereafter may be presented to FDEP with respect to the Agreement.
FDEP’s acceptance is expressly limited to these terms and conditions.

b. If Buyer has submitted or will submit additional and/or different terms and conditions, or a counteroffer, to FDEP , FDEP’s subsequent performance will not be construed as either acceptance of Buyer’s additional and/or different terms and conditions or Buyer’s counteroffer, nor will FDEP’s subsequent performance be viewed as a willingness to accept any provision of the Uniform Commercial Code, as adopted by any state or commonwealth, that is contrary or in addition to any of the terms and conditions hereof.

2. Prices

Unless otherwise agreed to by FDEP in writing, FDEP’s prices for the Goods and/or Services will be the prices stated on the face of this document, if a printed proposal, or as stated on FDEP’s Internet ecommerce portal, as the case may be, or FDEP’s standard prices for such Goods and Services as of the date hereof, provided that, where standard prices for Goods in the quantities ordered as calculated by FDEP extend beyond two decimal places, FDEP shall round to the nearest two decimal places. FDEP may change the price for the Goods and Services;
(a) in accordance with any change to its standard pricing for such Goods and Services and (b) by the amount of any tariff, excise, levy or charge of any kind imposed, assessed or collected by a governmental body, prior to the date of delivery of Goods or performance of Services, as the case may be.

The prices of all Goods and Services are confidential, and Buyer shall not disclose such prices to any unrelated third party. FDEP and Buyer acknowledge and agree that money damages for any breach of Buyer’s obligation not to disclose the price of Goods or Services is both incalculable and insufficient and that any such breach would irreparably harm FDEP. Therefore, in the event of an actual or prospective breach of the obligation in this Section, FDEP shall be entitled to preliminary and permanent injunctions to prevent or remedy such breach, and specific enforcement of this Agreement, in addition to any other remedies to which FDEP may be entitled at law or in equity.

3. Pricing/Availability/Substitutions:

Pricing, inventory, lead times, freight estimates, and product availability shown in catalogs, quotations, emails, or on Seller’s website are subject to change without notice and are not guaranteed until shipment. Seller reserves the right to correct clerical, typographical, system, or pricing errors at any time, including after receipt of an order or issuance of an order acknowledgment, and may cancel or refuse any order affected by such error. Seller shall not be responsible for inaccurate inventory counts, temporary out-of-stock conditions, discontinued items, manufacturer allocations, or delays caused by supply interruptions. Unless Buyer expressly states in writing that no substitutions are permitted and Seller agrees in writing, Seller may substitute goods of equal or greater quality and commercially comparable function when the ordered goods are unavailable, discontinued, or delayed.

4. Specifications

Unless FDEP has expressly agreed otherwise in writing, it is Buyer’s responsibility to ensure that the Goods and Services are the ones that it has requested and that all specifications and quantities are correct. FDEP HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES THAT GOODS AND SERVICES CONFORM TO ANY SPECIFICATIONS, DRAWINGS, DESIGNS, OR SAMPLES.

5. Shipment of Goods; Performance of Services.

a. Shipment of all Goods shall be made Ex Works point of shipment per INCOTERMS 2020 for domestic shipments (FCA port of export for international shipments, with Buyer serving as
exporter of record). Buyer shall bear the risk of loss and damage to Goods after delivery to the point of shipment. Title transfers to Buyer at the date of shipment,
or, with respect to Goods from FDEP’s inventory that FDEP stores for Buyer, as of the effective date of this Agreement.

b. Any shipping dates for Goods or performance dates for Services given in advance of actual shipment of Goods or performance of Services are FDEP’s best estimates for informational purposes only, and deliveries of Goods and performance of Services will be made subject to prior orders on file with FDEP . Unless FDEP otherwise agrees in writing, FDEP may, in its sole discretion, use any commercial carriers for shipment of the Goods. FDEP will use reasonable efforts to comply with Buyer’s requests as to method and route of transportation, but FDEP reserves the right to use an alternate method or route of transportation, whether or not at a higher rate.

Seller will notify Buyer of any material delay and will specify the revised delivery as soon as practicable. Seller shall not be liable for delays in delivery or performance, or for failure to manufacture, deliver or perform as a result of acts of God, fire, acts of civil or military authority, governmental priorities, strikes or other disturbances, floods, epidemics, war, riots, delays in transportation or car shortages, or inability on account of causes beyond the reasonable control of Seller to obtain necessary materials, components, services or facilities, or any other cause beyond Seller’s reasonable control. In the event of any such delay there will be no termination and the date of delivery or performance shall be extended for a period equal to the time caused by the reason of the delay. During any shortage, allocation event, or
supply-chain disruption, Seller may allocate available inventory among customers in its commercially reasonable discretion.

c. Unless FDEP otherwise agrees in writing, Buyer is responsible for insuring the Goods during delivery and filing and pursuing claims with carriers for loss of or damage to Goods in transit.

d. Buyer is responsible for obtaining, at its sole expense, all necessary licenses and permits for the Goods and Services, including, without limitation, licenses and permits for transportation.

e. If Buyer is unable to receive the Goods when they are tendered, Buyer shall be liable to FDEP for any losses, damages, or additional expenses FDEP incurs or suffers as a result of Buyer’s inability to receive the Goods.

f. Quantities are subject to normal manufacturer allowances, in the case of wire and cable, +10% and -5%.

g. Buyer shall immediately inspect all Goods upon delivery and will be deemed to have accepted the Goods unless it notifies FDEP in writing within 5 days of delivery that it rejects them. Buyer waives all claims for shortages and discrepancies unless made in writing to FDEP within 5 days of delivery of the Goods.

Notwithstanding the foregoing, use of the Goods by Buyer, its agents, employees or customers shall constitute acceptance of the Goods by Buyer.

h. For wire and cable, delivery length tolerance is ± 10%. When non-standard manufacturer lengths are requested, cutting and reel charges will apply, and delivery lead-times may be adjusted.

i. FDEP, at its discretion, may round up quantities ordered by Buyer to nearest case/full carton quantity without notification to Buyer; Buyer agrees to accept delivery and pay additional cost for additional items.

j. FDEP may cancel in whole or in part any order for Goods or Services under the Agreement at any time.

k. Until Buyer has fully and finally paid all amounts owed to FDEP for any Goods, Buyer shall hold such Goods in trust for FDEP , and FDEP may repossess them if Buyer fails to pay for them in a timely fashion.

l. If Services are to be performed at a Buyer site, Buyer shall make the site safe and fit for the performance of the Services.

6. Payments and Financial Conditions:

For shipments originating in the United States, unless otherwise provided, and subject to credit approval, terms of sale are Net 30 days from date of shipment. A service charge of 1 1/2% per month, but not to exceed the highest amount allowed by applicable state law, shall be made on all sums due Seller that have not been paid within thirty (30) calendar days from the invoice date; if applicable, Buyer agrees to promptly pay said service charge. If Seller commences litigation or employs attorneys to collect payment of any amounts due it from Buyer, Buyer agrees to pay reasonable attorney’s fees and costs which may be due.

Except to the extent otherwise specified by Seller in its quotation, pro rata payments shall become due without setoff as shipments are made. If Seller consents to delay shipment after receipt of any specially ordered products, payment shall become due on the date when Seller is prepared to make shipment. In the event of any such delay, products shall be held at Buyer’s risk and expense.

Any order for products by Buyer shall constitute a representation that Buyer is solvent and has the ability to pay its obligations as they become due. In addition, upon Seller’s request, Buyer will furnish a written representation concerning its solvency at anytime prior to shipment.

If Buyer’s financial condition at any time does not justify continuance of the work to be performed by Seller hereunder on the agreed terms of payment, Seller may require full

or partial payment in advance. In the event of Buyer’s bankruptcy or insolvency, or in the event any proceeding is brought against Buyer, voluntary or involuntary, under any bankruptcy or insolvency laws, Seller shall be entitled to cancel any order then outstanding at any time during the period allowed for filing claims against the estate, and shall receive reimbursement for its proper cancellation charges. Seller’s rights under this article are in addition to all rights as they are available to it at law or in equity. For ecommerce or portal purchases, Seller may require payment in full at checkout or may authorize, capture, void, or refund payment transactions in accordance with these terms.

a. Buyer unconditionally guarantees payment, as primary obligor, of all purchases made by its subsidiaries and affiliates.

b. If FDEP agrees to stock Goods for Buyer, Buyer acknowledges and agrees that it is responsible for all excess and obsolete Goods.

c. If Buyer remits a payment on account without remittance detail, FDEP has the right to apply the funds to oldest invoices first. Buyer has sixty (60) days to challenge FDEP’s application of payment funds.

7. Taxes

The purchase price of the Goods and Services does not include transportation taxes and sales, use, excise, import or any similar tax or other governmental charge arising pursuant to or in connection with the sale, purchase, processing, delivery, storage, use, consumption, performance or transportation of the Goods and Services. Buyer is responsible for paying any transportation taxes, and any present or future sales, use, excise, import (Including “trade war tariffs”) or any similar tax or other governmental charge applicable to the Agreement and to the sale and/or furnishing of the Goods and Services.

Per South Dakota vs. Wayfair, Inc., Buyer acknowledges that Seller must collect all sales taxes on goods and services in Buyer’s jurisdiction regardless if Seller has legal nexus; it is solely Buyer’s responsibility to provide Seller with valid sales/use tax exemption documentation. In any event, if a state taxing authority later deems that sales tax was due on any purchase made by Buyer, because of audit or otherwise, for any reason, then Buyer agrees to pay said tax plus collection costs, interest and penalties levied by the State taxing authority.

8. Cancellation

Unless the cancellation is due to a default by Seller, once an order is placed with and accepted by Seller, the order cannot be cancelled, unless Seller consents in writing. If an order is cancelled, Buyer shall reimburse Seller for any cost it incurs as a result of such cancellation, including but not limited to cancellation or restocking fees.

9. Limited Warranties; Disclaimer of Warranties

FDEP warrants that, unless otherwise specified, at the time of delivery to the point of shipment, the Goods are new and free from liens and encumbrances. FDEP will use commercially reasonable efforts to pass through to Buyer all manufacturer warranties. FDEP warrants that it will provide Services in a competent fashion, in accordance with industry standards. FDEP HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN OR ORAL, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY CONTRACT, AT LAW, IN EQUITY, BY STRICT LIABILITY OR OTHERWISE, WITH RESPECTTO THE GOODS AND SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, ANY WARRANTY AGAINST DEFECTS IN DESIGN, MATERIALS AND WORKMANSHIP, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY AGAINST REDHIBITORY DEFECTS, AND ANY WARRANTY AGAINST INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY PATENTS, TRADEMARKS, OR COPYRIGHTS, UNDER THE LAWS OF ANY NATION.

10. Exclusive Remedy; Returns; Credits.

Buyer’s EXCLUSIVE remedy against FDEP for any claim for, or arising out of, any defect or nonconformity in a Good is the direct cost of repair or replacement of the Good, or alternatively, at FDEP’s sole election, a refund of the purchase price of the Good. FDEP is not responsible for obtaining access to, or uninstalling, installed Goods, delivering replacement Goods to the installation site, or installing replacement Goods. Buyer’s EXCLUSIVE remedy against FDEP arising out of any defect in, or in connection with, any Service provided hereunder is the re-performance of that Service or, at FDEP’s sole election, a refund of the purchase price of the Service. These remedies are available to Buyer for one (1) year after the Good is tendered or the Service is performed, and FDEP’s obligations under this Section 10 will be void unless Buyer provides FDEP with notice of the defect within 30 days of the date Buyer discovered or should have discovered the defect. If Buyer returns any Good to FDEP for repair, replacement or refund, it shall utilize FDEP’s return material authorization procedures then in effect. Returns are subject to manufacturer policies.

Returns may be subject to restocking fees. Only current items in their original cartons and standard package quantities may be returned. All unauthorized returns will be sent back to Buyer at Buyer’s expense. Return shipments must be pre-paid and shipped in accordance with the instructions set forth on the return authorization form. Credit will be issued, less any transportation charges, re-stocking and service charges, to cover handling, inspection, counting, repacking, etc. Returns will not be accepted for (a) custom orders or (b) Goods that have been modified, damaged, or not in their original packaging. Buyer must use any credit FDEP issues within two (2) years from the date of issuance. Any unused credit or portion thereof not used after two (2) years could be subject to states’ unclaimed property laws.

11. Credit Card Charge Back:

Buyer’s only remedy for defective goods is repair/replacement of said goods and return of any goods may only be made with prior authorization (see paragraph 10). Buyer agrees, as a condition of sale, that it will not make any efforts to “protest” or otherwise communicate to their credit card issuer that Buyer wants to “reverse” or otherwise cancel a credit card transaction made to purchase goods from Seller (collectively known as “charge back”). If Buyer, for any reason, or for no reason at all, initiates a charge-back then Buyer acknowledges and agrees that its breach of duty under this provision shall be sufficient evidence to demonstrate to card issuer why charge-back should not be allowed. If card issuer does execute the charge-back in favor of Buyer, then Seller will seek summary judgment from a Court having competent jurisdiction to compel immediate payment from Seller for its material breach of its duty to perform as prescribed herein; Buyer agrees that it will pay reasonable attorneys’ fees, court costs and interest to accrue as of the date of the original shipment date at a rate of 1.5% per month, but not to exceed the highest amount as allowed by applicable law.

12. Limitationof Liability

NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENTTO THE CONTRARY, IN NO EVENT WILL: (A) FDEP BE LIABLE TO BUYER FOR ANY CIRCUMSTANTIAL, CONSEQUENTIAL, CONTINGENT, EXEMPLARY, INCIDENTAL, INDIRECT, LIQUIDATED, PUNITIVE, SPECIAL, SPECULATIVE OR OTHER DAMAGES, (B) FDEP BE LIABLE FOR LOST PROFITS, SALES OR REVENUES, COST OF REPLACEMENT GOODS BUYER PURCHASES FROM OTHERS, LOST BUSINESS OR BUSINESS INTERRUPTIONS, OR ATTORNEYS FEES OR COURT COSTS ARISING IN ANY MANNER PURSUANTTO OR IN CONNECTION WITH THE AGREEMENT, THE GOODS OR THE SERVICES (EVEN IF FDEP IS MADE AWARE OF THE POTENTIAL FOR SUCH DAMAGES); AND (C) FDEP’S TOTAL LIABILITY RELATED TO ANY GOOD OR SERVICE EXCEED THE PURCHASE PRICE OF SUCH GOOD OR SERVICE. THESE LIMITATIONS APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

13. Indemnification

a. Upon prompt notice by Buyer of any claim of U.S. patent, copyright, or trademark (“IP”) infringement with respect to any Goods, FDEP will use its reasonable efforts to secure for Buyer such indemnity rights as the Goods’ manufacturer may offer. This Section 13 is Buyer’s sole and exclusive remedy against FDEP regarding the infringement by any Goods of any third-party IP rights.

b. Buyer shall indemnify, defend and hold harmless FDEP, its shareholders, officers, directors, employees, agents and representatives (each, an “Indemnified Party”) from and against all losses, damages, liabilities, costs, and expenses including, but not limited to, property damage, loss of profits or revenue, loss of use of any property, cost of capital, cost of purchased or replacement power or temporary equipment, personal or bodily injury, or death (“Losses”), that may arise pursuant to or in connection with the Agreement, the Goods, or the Services (including, without limitation, (a) Losses arising in connection with the performance of Services on Buyer’s premises by FDEP’s employees, representatives, agents, or subcontractors), and (b) Losses arising from actual or alleged infringements of a third party’s intellectual property rights caused by (i) FDEP having followed Buyer’s specifications, instructions or designs relating to the Goods or Services, (ii) Buyer’s continued use of the Goods or Services after FDEP has informed Buyer of modifications required to avoid infringement, or (iii) modifications of the Goods or Services other than by FDEP, in each instance regardless of whether such Losses are suffered directly by Buyer or arise pursuant to or in connection with a third-party suit, claim, counterclaim, demand, judgment or other action (each, a “Claim”) and, to the extent permitted by law, regardless of whether any Indemnified Party or any third party is negligent, provided that Buyer need not indemnify FDEP for FDEP’s obligation, if any, to Buyer under Section 13. For the avoidance of doubt and without limitation, this indemnification obligation requires Buyer to pay any judgments against any Indemnified Party resulting from any Claim, court costs, and reasonable attorneys’ fees and disbursements incurred in defense of any Claim. FDEP has the sole and exclusive right to conduct the defense of any Claim at Buyer’s sole expense. Buyer’s indemnification obligation does not depend on the truth or accuracy of any allegations made against an Indemnified Party, Buyer or any third party.

14. Product Suitability

a. Unless otherwise agreed in writing, although FDEP may provide Buyer with advice regarding Goods or installation/use recommendations, such advice shall not be deemed to be a recommendation, endorsement or guarantee. Buyer acknowledges that if it follows such advice, it does so at its own risk.

b. Goods sold by FDEP are designed to meet stated U.S. safety standards and regulations. Because local safety standards and regulations may vary significantly, FDEP cannot guarantee that the Goods meet all applicable local requirements. Buyer assumes responsibility for compliance with all safety standards and regulations in the localities in which the Goods will be shipped, sold and used. Unless FDEP has agreed to install a Good, FDEP is not responsible for the installation and/or use of a Good. Before purchase and use of any Goods, Buyer should review the Goods’ application, and all applicable regulations, codes, and standards, and verify that the installation and use of the Goods will comply with them. Unless otherwise agreed in writing by an authorized FDEP representative, Goods sold hereunder are not intended for use or in connection with (a) any safety application, unless the Good is specifically designed and marketed as a safety product, (b) the containment area of a nuclear facility, or (c) in a healthcare application where the Goods have potential for patient contact.

15. Ownership

FDEP has and shall retain all right, title, and interest in and to any and all trade secrets, technical data, sales service and product plans, methodologies, techniques, designs, molds, tools, samples, systems, know-how, expertise and other proprietary information in connection with any Services, and Buyer shall not obtain a license to, or any other property rights in, any such FDEP property pursuant to or in connection with this Agreement.

16. Electronic Interchange of Data:

If Buyer and Seller mutually agree to use an electronic method or system to facilitate purchase and sale transactions, Buyer agrees that it will not contest: (i) any contract of sale resulting from such electronic means of data exchange under the provisions of any law relating to whether agreements must be in writing or signed by the party to be bound thereby; or (ii) the admissibility of copies of electronic records under the business records exception to the hearsay rule, the best evidence rule or any other similar rule, on the basis that such records were not originated or maintained in documentary form. Buyer and Seller will negotiate and agree on technical standards and methods to use in making electronic purchases, and will use reasonable security procedures to protect electronic records from improper access. In the event of a conflict, the business records maintained by Seller regarding electronic purchases made by customer shall be deemed to be conclusive. Seller’s electronic records, including order logs, click-through acceptances, shipment records, and payment processor records, will be admissible and may be relied upon to the fullest extent permitted by law. Buyer is responsible for maintaining the confidentiality of any account credentials and for all activity occurring under Buyer’s account.

17. Export Controls; Availability; Laws

a. Buyer represents and warrants that it is not designated on, or associated with, any party designated on any U.S., United Nations, or European Union government restricted parties or sanctions list, including without limitation, the U.S. Commerce Department Bureau of Industry and Security (“BIS”) Denied Persons List; Entity List or Unverified List; the U.S. Treasury Department Office of Foreign Assets Control (“OFAC”) Specially designated Nationals and Blocked Persons List; or the U.S. State Department Directorate of Defense Trade Controls (“DDTC”) Debarred Parties List.

b. Goods may be subject to export controls under the laws, regulations and/or directives of the United States and other countries, in which case, these Goods are only authorized for use (e.g., via a government-approved and issued export license, which Buyer must obtain) by the ultimate end-user in the destination identified in the transaction documents between Buyer and FDEP . Buyer shall comply with such laws and regulations, failing which, Buyer shall indemnify, defend, and hold harmless FDEP for Buyer’s compliance lapses in this regard. Buyer will not export, re-export or transfer, or cause a deemed export or re-export of, these Goods (in their original form or after being incorporated into other items) to any country or person to which/whom export, re-export, or transfer (actual or deemed) is prohibited or without first obtaining all required authorizations or licenses. Buyer’s obligations under this clause shall survive the expiration or termination of the Agreement.

c. Due to government regulations and product availability, not all goods FDEP sells may be available in every area, or for every destination, end user, or end use.

d. Buyer warrants and represents that it will comply with all Laws with respect to the purchase, use, and operation of any and all Goods and Services. “Laws” means any international, multinational, national, foreign, federal, state, municipal, local (or other political subdivision) or administrative laws, constitutions, statutes, codes, ordinances, rules, regulations, requirements, standards, policies or guidances having the force of law, treaties, judgments or orders of any kind or nature whatsoever, including, without limitation, any judgment or principle of common law.

e. Buyer shall refrain from taking any action that may cause a FDEP employee to violate a law or customary codes of business ethics and conduct that may give rise to an act of moral turpitude.

18. Interpretationof the Agreement; Integration; No Waiver

None of FDEP’s or Buyer’s shareholders, directors, officers, partners, managers, employees, agents or representatives have any authority to orally modify or alter in any way the terms and conditions of the Agreement.

The terms, conditions, and limitations set forth in the Agreement can be modified, altered, or added to only by a subsequent written instrument signed by the Chief Executive Officer or President of FDEP or by language included on the face hereof. Regardless of how many times Buyer purchases, or has purchased, goods and services from FDEP by whatever means, each time Buyer accepts the Agreement, Buyer and FDEP enter into a separate agreement that will be interpreted without reference to any other agreement between Buyer and FDEP , or what Buyer may claim to be a course of dealing or course of performance that has arisen between Buyer and FDEP . No inconsistent usage of trade or industry custom, if any, prior to, contemporaneous with or subsequent to the making of the Agreement will waive, vary, serve to explain or serve to interpret any of the terms, conditions and limitations of the Agreement. The Agreement is the sole and exclusive agreement with respect to the matters set forth herein and the provision of Goods and Services hereunder (except for any contemporaneous writing agreed to in writing by FDEP expressly modifying the terms and conditions hereof, which is hereby incorporated herein by reference and made a part hereof) and supersedes all prior and contemporaneous agreements and understandings, negotiations, inducements, representations and conditions, whether oral or written, express or implied, with respect to such matters. FDEP’s failure to enforce any of the terms, conditions and limitations of the Agreement will not constitute a waiver of those terms, conditions and limitations or a waiver of any other terms, conditions or limitations of the Agreement, and FDEP’s failure to exercise any right (whether provided by the Agreement, law, equity, or otherwise) arising from Buyer’s default under the Agreement will not constitute a waiver of that right or any other rights.

19. Force Majeure; Limited Availability

FDEP is not liable for its failure to perform under the Agreement (including, without limitation, the failure to deliver any Goods or perform any Services) due to circumstances beyond its control, including, without limitation, fire, flood, earthquake, pestilence, epidemic, pandemic, public health crisis, or other catastrophe; war, act of terrorism, or strike; lack or failure of transportation facilities, shortage of suitable parts, materials or labor; any existing or future law, rule, regulation, decree, treaty, proclamation, or order of any governmental agency; inability to secure fuel, materials, supplies, equipment or power at reasonable prices or in sufficient amounts; act of God or the public enemy; or any other event or cause, whether similar or dissimilar, beyond FDEP’s reasonable control, including, without limitation, any delay caused by Buyer, regardless of whether the circumstance arose before or after the effective date of the Agreement (each, a “Force Majeure Event”). If any Force Majeure Event prevents FDEP’s performance of any of its obligations under the Agreement, including but not limited to delivery and cost savings obligations, FDEP has the right to (a) change (in whole or in part), terminate or cancel the Agreement, or (b) omit during the period of the Force Majeure Event plus any additional amount of time required to resume performance all or any portion of the quantity of the Goods deliverable during that period, whereupon the total quantity deliverable under the Agreement will be reduced by the quantity omitted. If FDEP is unable to supply the total demands for any Goods to be delivered under the Agreement due to circumstances beyond its control, including a Force Majeure Event, FDEP has the right to allocate its available supply among its customers in whatever manner FDEP deems to be fair and equitable. In no event will FDEP be obligated to purchase materials from other than its regular sources of supply in order to enable it to supply Goods to Buyer under the Agreement. No change, cancellation or proration by FDEP will be deemed to be a breach of the Agreement.

20. Claims Against Seller:

In order to give Seller a reasonable opportunity for investigation, any claim by Buyer against Seller based wholly or in part upon, or any manner related to this agreement and/or merchandise sold hereunder, shall be made in writing and delivered to Seller within ten (10) days after the date of delivery or occurrence giving rise to the claim, whichever shall be later; otherwise such claims shall be waived. Each notice of claims shall set forth fully the facts on which the claim is based. Any action based on such claim, or otherwise arising hereunder, must be commenced and prosecuted within two years after the cause of action has accrued.

21. Choice of Law; Choice of Venue; Severability; WaiverofJuryTrial.

The negotiation, execution, performance, termination, interpretation and construction of the Agreement is governed by the law of the State of Oklahoma, and expressly excluding the United Nations Convention on Contracts for the International Sale of Goods. If either FDEP or Buyer brings a lawsuit or any other action arising out of or related to the Agreement against the other party, such party must file its lawsuit or other action in a state or federal court located in Oklahoma City, Oklahoma. FDEP and Buyer expressly submit to the exclusive jurisdiction of those courts and consent to venue in those courts, FDEP and Buyer each consent to extra-territorial service of process. IN THE EVENT OF LITIGATION PERTAINING TO ANY MATTER COVERED BY THE AGREEMENT, FDEP AND BUYER EACH HEREBY AGREE TO WAIVE ANY RIGHTTHAT IT MAY HAVE TO A JURY TRIAL OF ANY OR ALL ISSUES.

Nothing contained in the Agreement will be construed to limit or waive any FDEP’s rights under United States federal, state, or local laws. Any provision of the Agreement held to be invalid, illegal or unenforceable will be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof.

22. BindingAuthority; Assignment

Any individual signing or otherwise entering into this Agreement on behalf of Buyer hereby represents and warrants that he or she is duly authorized to execute and enter into this Agreement on Buyer’s behalf. Buyer may not assign this Agreement without FDEP’s prior written consent.

23. Paragraph Headings:

Paragraph headings are inserted for convenience only and shall not be deemed to limit or affect the scope of the provisions contained herein.