Last updated: July 10, 2024
Please read these Terms and Conditions (“Terms”, “Terms and Conditions”) carefully before using the www.omega-optical.com website (the “Service”) operated by Omega Optical Holdings, LLC (“us”, “we”, or “our”).
Your access to and use of the Service is conditioned upon your acceptance of and compliance with these Terms. These Terms apply to all visitors, users and others who wish to access or use the Service.
By accessing or using the Service you agree to be bound by these Terms. If you disagree with any part of the terms then you do not have permission to access the Service.
OMEGA OPTICAL HOLDINGS, LLC
TERMS AND CONDITIONS OF SALE
1. SCOPE AND ACCEPTANCE. These terms and conditions together with any other terms and conditions specifically agreed upon in writing (the “Terms and Conditions”) by Seller (as defined below), shall apply to all purchase orders (“Purchase Order(s)”), together with these Terms and Conditions, this “Agreement”) for any sale of products (the “Products”) and/or services (the “Services”) to the purchaser referenced in the Purchase Order (“Buyer”) (Buyer and Seller, each individually a “Party”, and together the “Parties”). ANY ACCEPTANCE OF A PURCHASE ORDER BY BUYER IS CONDITIONED UPON ACCEPTANCE OF THESE TERMS AND CONDITIONS. ANY ADDITIONAL OR DIFFERENT TERMS AND CONDITIONS PROPOSED BY BUYER IN ANY DOCUMENT ARE HEREBY REJECTED BY SELLER AND SHALL NOT BE BINDING UPON SELLER UNLESS OTHERWISE AGREED IN WRITING SPECIFICALLY REFERENCING THIS SECTION 1. NO REPRESENTATIVE OF SELLER IS AUTHORIZED TO BIND SELLER TO ANY PROMISE OR UNDERSTANDING NOT EXPRESSED IN THESE TERMS AND CONDITIONS OR OTHERWISE AGREED BY SELLER IN A SIGNED WRITING.
Seller entities may include the following: Omega Optical, LLC; Optometrics Corporation; Evaporated Metal Films Corp. (D/B/A EMF Corp); and Spectral Systems, LLC (each individually a “Seller” and together, the “Sellers”).
2. PRICES. All prices set forth in an applicable Purchase Order are subject to change without notice in the event of any changes to the cost of materials or labor, specifications, quantities, delivery schedules, customs duties, or other factors beyond Seller’s control, or in the event of any delays caused by instructions from the Buyer, or failure of the Buyer to provide adequate information to Seller within required time periods. Further, prices payable by Buyer shall be subject to immediate increase, should the Seller, as a result of governmental action or regulation, including, without limitation, action contemplated by an investigation under Section 232 of the Trade Expansion Act of 1962 (19 U.S.C. §1862), incur additional duties, tariffs or restrictions on the Products, or on the raw materials that are used in making the Products. In no event shall prices include any amounts imposed on the Buyer in connection with Buyer’s purchases from Seller, such as taxes, including but not limited to value added tax or excise taxes, duties, tariffs, or any other costs assessed against the Buyer by a governmental authority. Prices quoted by Seller are exclusive of costs of delivery (including but not limited to transport, packaging, storage, insurance and any taxes, duties or surcharges) unless otherwise stated. Seller is entitled to set off any amounts owed to Buyer against sums owed by Buyer to Seller.
3. DELIVERY. Delivery dates are approximate and are dependent upon, among other things, prompt receipt by Seller of all necessary information and/or materials from Buyer. Seller may deliver or perform all or any part of the Products and/or Services as early as 30 days in advance of the agreed upon scheduled due dates set forth in this Agreement. The place of delivery of the Products shall be FCA Seller’s premises, unless otherwise specified by Seller or set forth in the applicable Purchase Order. Upon delivery, title to the Products and all risk of loss or damage thereto shall pass to Buyer. Seller reserves a purchase money security interest in Products until all amounts due to Seller in respect of such Products have been paid in full by Buyer as further detailed in Section 4(C). If Buyer notifies Seller that it cannot take timely delivery of the Products, Seller may in its discretion place such Products in storage (at which point title to the Products shall pass to Buyer), at the risk and expense of Buyer, and Buyer shall pay to Seller a storage fee to be established by Seller at the time. Buyer shall dispose of the packing materials for Products at its own expense, and shall defend, indemnify and hold harmless Seller from any legal obligations in connection with such packing waste. Buyer shall be responsible for complying with any legislation or regulations governing the importation of Products into the country of destination and for the payment of any duties on Products.
4. PAYMENT.
A. The term of payment shall be net 30 days from the date of Seller’s invoice, unless otherwise specified by Seller in writing. Payments shall be made by Buyer without any deduction or set-off. Unless otherwise agreed in writing, payment shall be made by Buyer in U.S. dollars. If Buyer does not make payment in accordance with the terms hereto, Seller may charge late payment fees at a rate of 1.5% per month, compounded, or the highest rate permitted by law, whichever is less. Such late payment fees shall accrue daily.
B. If the creditworthiness of Buyer has not been established, the financial condition of Buyer is unsatisfactory to Seller, or Buyer has previously failed to meet its obligations in Section 4(A) above, Seller may require full or partial payment in advance, or satisfactory security, in the form of a letter of credit or otherwise, and/or Seller may immediately suspend its provision of Products or Services hereunder until such time as Seller is satisfied that Buyer does not present a payment risk. If Seller reasonably believes that a bankruptcy or insolvency of Buyer may be likely, Seller may immediately cancel any Purchase Order then outstanding.
C. In the event of a payment default, Seller will have the right to repossess all affected Products, and whatever money has been paid on account will be deemed to be reasonable rental for the use thereof, to the date of such repossession. Notwithstanding anything to the contrary, until Buyer has paid in full for the Products, Buyer hereby grants to Seller a first priority security interest in such Products and all proceeds, replacements and substitutions thereof to secure the payment obligations therefor, and Buyer grants Seller a security interest in products created by the Services, and all proceeds, replacements and substitutions thereof to secure the payment obligations therefore, and irrevocably authorizes Seller at any time to file in any filing office in any Uniform Commercial Code jurisdiction, any financing statements and amendments that indicate its security interest (regardless of whether the Products fall within the scope of Article 9 of the Uniform Commercial Code of the state or such jurisdiction), and to provide any other information required by part 5 of Article 9 of the Uniform Commercial Code of the state or jurisdiction, and Buyer will furnish any information reasonably required to file such financing statements or amendments, or to perfect Seller’s security interest, and execute all related documents, promptly upon request. If Seller takes action to repossess Products in accordance with Seller’s rights, Buyer will pay Seller’s costs in doing so, including reasonable attorneys’ fees, and whatever money has been paid on account will be deemed to be reasonable rental for the use thereof, to the date of such repossession. This security interest will exist and remain valid until all required payments have been paid.
D. To the extent the Purchase Order contemplates non-recurring engineering work, or any other precursor work to be performed or precursor matters to be completed (e.g. the construction of custom die/tooling) by Seller, any and all amounts payable in respect of such work are irrevocably committed by Seller as of the effectiveness of the Purchase Order and are non-refundable in any circumstances.
E. To the extent the Purchase Order contemplates a “blanket” purchase commitment, or a purchase commitment that will be drawn down on over time, or any similar structure, the following terms apply.
a. In consideration of Seller’s reliance on Buyer’s commitment to make the purchases required by such Purchase Order, Buyer shall purchase from Seller the stated volume of Product at the stated price within the stated time periods (such dates, the “Purchase Deadlines”; such volume at such price, the “Minimum Purchase Requirement” or “MPR”).
b. Buyer’s obligation to purchase the MPR by the Purchase Deadline is an absolute, irrevocable, and non-assignable obligation to which Buyer remains subject in all circumstances until fully and finally satisfied.
c. If Buyer does not tender to Seller payment in USD in immediately available funds in the amount of the MPR by or before the Purchase Deadline, (i) Buyer shall pay to Seller, as liquidated damages and not as a penalty, an amount equal to the MPR minus any amounts already having been paid under this Agreement in respect of Product the price set forth in the Purchase Order per unit volume of Product; (ii) late payment interest as required under this Agreement; and (iii) Buyer shall immediately pay upon written demand any and all expenses of Seller incurred in enforcement of this Agreement (including legal fees and collection costs).
d. The Parties agree that the requirements in this section are in addition to any other remedies Seller may have at law or in equity, and that the requirements in this paragraph are fair, reasonable, and an essential basis of the bargain in this Agreement with respect to such Purchase Order. Any breach of Buyer’s obligation to meet the MPR by the Purchase Deadline is per se a material breach of this Agreement that is not capable of cure.
5. VARIATIONS IN QUANTITY; CHANGES.
A. Buyer shall accept delivery of Products in quantities greater or smaller than the quantity specified in a Purchase Order(s), provided that any such variation in Product quantity shall not exceed 5% of the quantity originally specified, or 2 units, whichever is greater. Seller shall not be required to give notice of any such Product quantity variation other than in the applicable shipping notice and invoice. Seller reserves the right to make changes to Products or Services which do not affect form, fit, or function, and Seller shall deliver Products to the latest configuration part number at the time of delivery.
B. Seller reserves the right to reject any of Buyer’s Purchase Orders for any reason, including any such Purchase Order that does not contain a delivery schedule for all Products requested for purchase or contains delivery dates greater than 12 months from the original date of issuance of the Purchase Order.
C. Following confirmed acceptance by Seller of a Buyer Purchase Order, Buyer may request changes to delivery and quantity terms which Seller may accept or reject in its sole discretion (and which changes may require adjustments to price, delivery date, or other terms).
6. CANCELLATION. Once accepted by Seller, Purchase Orders are not cancellable by Buyer for any reason. If the Buyer makes an assignment for the benefit of its creditors, or in the event that Seller for any reason feels insecure about Buyer’s willingness or ability to perform under this Agreement, the Seller shall have the right, in its sole discretion, to cancel one or more Purchase Orders and/or this Agreement, or demand full or partial payment in advance pursuant to Section 4 above. In the event of any cancellation of a Purchase Order for any reason, Buyer shall pay to the Seller the reasonable costs and expenses (including labor, work in progress, overhead expenses, engineering expenses and all commitments to its suppliers and subcontractors) incurred by the Seller prior to receipt of notice of such cancellation, plus a margin for profit determined by Seller. In the event that Seller permits a cancellation of this Agreement or of any Purchase Order by Buyer, Seller may establish the terms on which Seller would permit such cancellation, which terms may include a minimum cancellation charge (e.g. 20% of the price quoted in the applicable Purchase Order for standard Products that can be restocked, or 65% of the price quoted for custom Products).
7. WARRANTIES.
A. Seller warrants that Products manufactured by Seller, when delivered, shall be free from defects in material and workmanship. Seller warrants that Services shall be performed in accordance with generally accepted industry practice. Seller’s obligations under this warranty shall be limited exclusively to repairing or replacing, at Seller’s option, any part of Products which, if properly installed, used and maintained, proved to have been defective in material or workmanship within the term specified in Table A from the date of delivery to Buyer FCA. Seller’s obligations for Services that do not meet the warranty obligations above shall be limited to, at Seller’s option, re-performance of the Services or refund of fees paid therefor. Buyer shall notify Seller of any defect in the quality or condition of Products or Services within 7 days of the date of delivery or performance, unless the defect was not apparent on reasonable inspection, in which case, within 7 days after discovery of the defect. If Buyer does not provide such timely notification, it shall not be entitled to reject Products or Services, and Seller shall have no liability for such defect.
B. Seller’s warranty obligations shall not apply to Products which: (1) have been altered or repaired by Buyer or a third party other than Seller, (2) have been subjected to any misuse, neglect, or improper use or application, (3) are normally consumed in operation, (4) have a normal life inherently shorter than the warranty period stated therein, or (5) have been subjected to extraordinary environmental conditions or laser illumination.
C. No Products may be returned by Buyer unless: (1) authorized in advance by Seller, and (2) such return is made in accordance with terms and conditions agreed upon in writing by Seller. Buyer must obtain a Return Material Authorization (“RMA”) number from Seller prior to any return shipment, and such RMA number must appear on the applicable shipping label and packing slip. Buyer shall bear the risk of loss and be responsible and liable for returned Products until such time as Seller receives the same at its return facility indicated in the RMA or otherwise identified by Seller. In addition, Buyer is responsible for, and shall pay all charges for packing, inspection, shipping, transportation or insurance associated with returned Products.
D. This Section 7 sets forth Buyer’s exclusive remedies and Seller’s exclusive obligations for liabilities, losses, expenses, liens, claims, demands, and causes of action (“Claims”) based upon defects in or nonconformity of Products and/or Services, whether such Claim sounds in contract, tort or otherwise. THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED OR STATUTORY. NO IMPLIED OR STATUTORY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE SHALL APPLY.
E. Certain Product warranty terms are set forth below and may be changed in writing by Seller at its discretion:
8. CUSTOMER FURNISHED MATERIALS. If the Services offered are based upon the Buyer furnishing Buyer’s property to Seller, Seller shall not be liable for any loss or damage to Buyer’s property while parts are in Seller’s possession, except to the extent such loss or damage is the result of gross negligence or other willful acts on the part of the Seller. Title shall remain solely with Buyer through the entire process of Services offered by Seller, including delivery to and from Seller’s facility. Buyer shall insure for its full value all material provided by Buyer to Seller. Seller shall not be obligated to insure material furnished to Seller by Buyer. Seller is not responsible for any specification or warranty non-compliance due to the condition of Buyer-furnished materials. Delivery dates are subject to unilateral adjustment by Seller if Buyer furnished material does not arrive by the mutually agreed upon date.
9. LIMITATION OF LIABILITY. The total liability of Seller on any Claim or otherwise, whether in contract, tort, or under any other theory, arising out of, connected with, or resulting from this Agreement, including the Services, or arising out of, connected with, or resulting from the manufacture, sale, delivery, resale, repair, replacement or use of any Products, shall not exceed the price allocable to the specific Product and/or Service or part thereof which gives rise to the Claim. IN NO EVENT, WHETHER AS A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT, (INCLUDING NEGLIGENCE OF ANY DEGREE, STRICT LIABILITY, PATENT OR ANY OTHER INFRINGEMENT OF INTELLECTUAL PROPERTY) OR OTHERWISE, WILL SELLER, ITS AFFILIATES, SUBCONTRACTORS, OR SUPPLIERS BE LIABLE FOR ANY SPECIAL, PROXIMATE, CONSEQUENTIAL, INCIDENTAL, INDIRECT OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, ANY LOSS OF PROFIT OR REVENUES, LOSS OF USE OF THE PRODUCTS OR SERVICES, OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF SUBSTITUTE GOODS, FACILITIES, SERVICES OR REPLACEMENT POWER, DOWNTIME COSTS OR CLAIMS OF BUYER’S CUSTOMERS FOR DAMAGES. SELLER’S AGGREGATE MAXIMUM LIABILITY UNDER THIS AGREEMENT SHALL IN NO EVENT EXCEED THE TOTAL AMOUNTS PAID BY BUYER TO SELLER DURING THE TRAILING TWELVE-MONTH PERIOD. If Buyer transfers title to, or leases Products sold hereunder to, or otherwise permits use by, any third party, Buyer shall obtain from such third party a signed writing affording Seller and its subcontractors/suppliers the protections and limitations of this Section 9. Buyer hereby forever waives and releases Seller from any Claim brought against Seller more than 18 months from the date of the event giving rise to such Claim.
10. INDEMNIFICATION. Seller shall defend Buyer against all third party Claims, and shall indemnify and hold harmless Buyer from and against any judgments, costs, and fees, including attorney fees, awarded in a non-appealable judgement in respect thereof, that any U.S. patent, U.S. registered copyright or U.S. registered trademark is infringed by Products sold hereunder when standing alone (and not in combination with any other product or technology) to the extent that both (a) the infringing Products are manufactured, sold, or used, solely and strictly pursuant to Seller’s specifications, designs, drawings, or other technical data, and (b) Buyer notifies Seller in writing of any such Claim as soon as reasonably practicable, and allows Seller to control, and reasonably cooperates with Seller in the defense of any such Claim and related settlement negotiations. To the extent that any Products are held by a court of competent jurisdiction to infringe or otherwise violate a third party’s proprietary rights or are believed by Seller to infringe or otherwise violate a third party’s proprietary rights, Seller may, in its sole discretion and expense, either (a) modify the affected Products to be non-infringing, or (b) obtain for Buyer a license to continue using such Products on substantially the same terms set forth in this Agreement, or, if neither of the foregoing alternatives is reasonably available to Seller, (c) Seller may require Buyer to return the infringing Products and all rights thereto, and refund to Buyer the price paid to Seller for the infringing Products. Seller shall have no obligation under this Section 10, and Buyer shall indemnify, defend, and hold harmless Seller and its affiliates from any Claim to the extent any Claim is based on (a) modifications of Products by a party other than Seller or Seller’s authorized representative, (b) the design, combination, operation, or use of Products with equipment, devices, software, or data not supplied by Seller, (c) the use or installation Products in an environment for which such Products were not intended, (d) Buyer’s failure to use updated or modified versions of Products provided by Seller, (e) materials provided by Buyer, or (f) the negligent acts or omissions or willful misconduct of Buyer, its employees, representatives, or affiliates. THE FOREGOING CONSTITUTES THE ENTIRE LIABILITY OF SELLER AND BUYER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIMS OF INFRINGEMENT PURUSANT TO ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
11. FORCE MAJEURE; EXCUSABLE DELAYS.
A. Seller shall not be liable for delays in delivery, failure to perform, or any breach or Claim due directly or indirectly to causes beyond Seller’s reasonable control, including but not limited to: acts of God; war; terrorism; civil commotion; riots; embargoes; government regulations, orders, instructions or priorities; port congestion; acts of or failure to act on the part of Buyer or its agents/employees; fires; floods; sabotage; nuclear incidents; earthquakes; storms; epidemics; strikes; lockouts or other labor difficulties; shortages of or inability to timely obtain proper labor, materials, components, shipping space or transportation, fuel, supplies or power at current prices; or due to limitations imposed by the extent of availability of Seller’s normal manufacturing facilities.
B. If a delay excused per the above extends for more than 90 days and the Parties have not agreed upon a revised basis for continuing to provide Products and/or Services, including adjustment to the agreed upon price of such Products and/or Services, then either Party (except where delay is caused by Buyer, in which event only Seller) upon 30 days’ written notice may terminate the applicable Purchase Order with respect to the undelivered Products thereof, or, may terminate the applicable Agreement for Services with respect to the unperformed Services thereof. Upon termination, Buyer shall promptly pay Seller its reasonable termination charges upon submission of Seller’s invoices thereof.
12. MASTER GRATINGS, DIES, TOOLS, PATTERNS, DRAWINGS.
A. Seller’s charges for master gratings, dies, molds, patterns and the like represent the Buyer’s proportionate cost thereof, it being expressly understood that such master gratings, dies, molds, patterns and the like remain the sole property of Seller. Modifications made to dies, molds, patterns and the like in order to manufacture Products shall be made at the sole discretion of Seller. Seller reserves the right to create replications of master gratings at any time without notice to Buyer unless otherwise explicitly agreed upon in writing referencing this Section 13. Any deposits made for work in this Section 12 are non-refundable in any circumstance.
B. Seller’s drawings remain the property of Seller unless otherwise agreed upon in writing.
13. EXPORT CONTROLS; FCPA; ANTI-BOYCOTT.
A. Buyer shall not make any disposition of the Products by way of transshipment, re-export, diversion or otherwise, except as expressly permitted by applicable U.S. export laws, and other than in and to the ultimate country of destination specified on an applicable Purchase Order(s), or as declared as the country of ultimate destination on Seller’s invoices or in the End Use Statement that Buyer supplies Seller. Seller shall not be named as shipper or exporter of record or U.S. principal party-in-interest unless specifically agreed upon in writing by Seller in which case, Buyer shall provide Seller with a copy of the documents filed by Buyer for export clearance purposes. At Seller’s request, Buyer shall supply end-use and end-user information to determine export license applicability. Failure of Buyer to comply with this Section 13 shall constitute a material breach of this Agreement allowing Seller to terminate this Agreement and related Purchase Order(s) at Buyer’s expense without liability to Seller.
B. Buyer warrants that it shall not violate or cause the Seller to violate any applicable antibribery law, including but not limited to the U.S. Foreign Corrupt Practices Act of 1977 (“FCPA”), as amended, the United Kingdom Bribery Act (“UKBA”) of 2010, as amended, or their respective implementing regulations in connection with Buyer’s sale or distribution of the Products and/or Services, and that Buyer does not know or have reason to believe that any consultant, agent, representative or other person retained by Buyer in connection with the sale and/or distribution of Products and/or Services has violated, nor caused Seller to violate the FPCA and/or the UKBA. Where Buyer learns of or has reason to know of any violation of the FCPA and/or UKBA in connection with the sale or distribution of Products and/or Services, Buyer shall immediately notify Seller in writing.
C. Buyer shall not violate or cause Seller to violate the U.S. Antiboycott Provisions of the U.S. Export Administration Regulations issued pursuant to the U.S. Export Administration Act of 1979, as amended, in connection with Buyer’s purchase of Products and/or Services and that Buyer shall not request or require Seller to make statements or certifications against countries that are not subject to boycott by the U.S.
14. GOVERNMENT CONTRACTS. Only Federal Acquisition Regulation (“FAR”) supplement clauses expressly agreed upon in writing by Seller shall be included or incorporated by reference to this Agreement. Seller shall not be bound by and makes no representation of compliance with any FAR or FAR supplement clauses that Seller has not expressly agreed upon in writing.
15. INDEPENDENT CONTRACTOR. Buyer is an independent contractor for all purposes, without express or implied authority to bind Seller by contract or otherwise. Neither Buyer nor its employees, agents or subcontractors are agents or employees of Seller, nor entitled to any employee benefits of Seller, including but not limited to, any type of insurance.
16. TERMINATION.
A. For Convenience. Seller may terminate this Agreement at any time by giving Buyer at least 60 days prior written notice. Either party may terminate this Agreement if the requirements of Section 11(B) are met.
B. For Failure to Pay. If Buyer fails to pay Seller within 30 days of the date when payments are due under this Agreement, Seller may give to Buyer written notice of termination and an opportunity to cure such non-payment, which shall include payment of applicable late fees. If Buyer does not make such payment within 10 days of receiving such termination notice, then Seller may terminate this Agreement effective as of the end of such 10-day period.
C. For Material Breach. Either Party may terminate this Agreement (the “Terminating Party”) due to the material breach of the other Party (the “Breaching Party”); provided, however, that the Terminating Party shall first give to the Breaching Party written notice of the proposed termination or cancellation of this Agreement, specifying the grounds therefor.
D. Effect of Termination. If this Agreement is terminated, it shall not relieve Buyer of its obligation to pay Seller the fees (including late fees) that are not reasonably in dispute for Products and/or Services provided prior to such termination or that were due under this Agreement prior to the date of termination, nor shall it limit the remedies to which a Party is otherwise entitled under applicable law.
17. CONFIDENTIALITY. Buyer understands that all information and physical material provided by or concerning Seller, whether written or oral or delivered or produced from the foregoing, which is communicated or disclosed to Buyer or discovered or generated by Buyer in connection with this Agreement (“Confidential Information”), is proprietary and confidential to Seller. Confidential Information, however, shall not include any such information or material that is: (a) in Buyer’s possession prior to its receipt of such information or material, as shown by Buyer’s contemporaneous written records, without separate obligation of confidentiality to Seller; (b) already publicly available or becomes available to the public through no fault of Buyer’s; or (c) received by Buyer from a third party having a right to disclose it, as shown by Buyer’s contemporaneous written records. Buyer shall not, without the prior written consent of Seller: (i) use Confidential Information for any purpose other than as strictly required by this Agreement; and (ii) disclose or provide or permit access to Confidential Information except to its employees and agents as is necessary to fulfill Buyer’s obligations hereunder. Buyer shall protect Confidential Information against use or disclosure using the highest degree of care and sensitivity, and in any case at least the same protective measures as Buyer uses for its own highly confidential information. Buyer shall return Confidential Information to Seller upon Seller’s request. If there is any conflict between this Agreement and any other agreement signed by Buyer and Seller with respect to the treatment of Confidential Information, the provision that is more protective of Seller’s Confidential Information shall control.
18. NOTICES. All notices given by the Parties hereto shall be made in writing and delivered personally or sent by prepaid mail (by air-mail if the notice is being communicated internationally), or by or email addressed to the intended recipient at its address or at its electronic address provided such email is confirmed by the intended recipient as received. Regardless of the method of transmittal, the sending Party is responsible for obtaining a return receipt for the notice, demand, or communication.
19. GENERAL.
A. The Services and Products purchased hereunder do not include any license to any intellectual property rights owned or controlled by Seller. No right or license in any such rights shall be implied.
B. The rights and obligations of the Buyer and Seller hereunder shall be governed in all respects by the laws of the State of Delaware, U.S.A. without regard to its conflicts of law provisions. The exclusive forum for adjudication of any disputes shall be the federal or state courts of the State of Delaware, and Buyer and Seller hereby consent to personal jurisdiction and venue in such courts in any proceeding arising under or related to this Agreement. The United Nations Convention on the International Sale of Goods shall not apply to this Agreement.
C. This Agreement, including the terms hereof, constitute the entire agreement between Buyer and Seller and supersede any prior or contemporaneous representations, agreements, proposals, warranties, or understandings, oral or written, express or implied. No waiver, modification, amendment, rescission or other change to this Agreement shall be binding unless specifically agreed upon in writing by an authorized representative of Seller.
D. The invalidity of any part of these Terms and Conditions shall not affect the validity of the remainder. The failure of Seller at any time to assert any right hereunder shall not constitute a waiver of such right or prevent Seller’s subsequent assertion of the same or different rights.
E. Buyer may not assign this contract without the prior written approval of Seller.