Terms of Sale

1. PURCHASE AND SALE

1. Sale of Products and Services. These Terms and Conditions of Sale (these “Sales Terms”) are the only terms that govern the sale of products (the “Products”) and/or services (the “Services”) by DWFritz Automation, LLC (“DWFritz”) and affiliates to the purchaser (“Client”) named in the proposal, purchase order, sales order, service order, order form, acceptance of order, statement of work, or similar written document accepted by both parties to which these Sales Terms are attached (the “Order”). These Sales Terms, together with the Order and any documents attached thereto or incorporated therein by reference, shall be referred to herein as this “Agreement”.
  This Agreement comprises the entire agreement between the parties with respect to the sale of the Products and/or Services specified in the Order and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, whether written or oral. This Agreement supersedes any of Client’s general terms and conditions of purchase, regardless of whether or when Client has submitted its purchase order or such terms. DWFritz expressly rejects Client’s general terms and conditions of purchase, and fulfillment of the Order does not constitute acceptance of any of Client’s terms and conditions or serve to modify or amend these Sales Terms. Acceptance of the Order by Client is a prerequisite to the purchase of Products or Services and shall operate as an acceptance of these Sales Terms, which are expressly incorporated into the Order.
2. Conflict or Inconsistency. In the event of any conflict or inconsistency between these Sales Terms and the Order, (a) the Order shall govern with respect to (i) identification and description of the Products and Services purchased, including any deliverables; specifications; quantities; prices; acceptance procedures and criteria; payment terms; and (ii) matters related to method of shipment, delivery dates, and timing, and (b) these Sales Terms shall govern with respect to all other matters.
3. Changes and Substitutions. Client-requested order changes, including those affecting the identity, scope, and delivery of the Products or Services, must be documented in writing and are subject to DWFritz’s prior approval and adjustments in price, scheduling, and other affected terms and conditions. In any event, DWFritz reserves the right to reject any change that it deems unsafe, technically inadvisable, or inconsistent with established engineering or quality guidelines and standards, or incompatible with DWFritz’s design or manufacturing capabilities. DWFritz further reserves the right to substitute using the latest superseding revision or series or equivalent Product having comparable form, fit, and function.

2. PRICES/TAXES/OTHER FEES

Prices (also identified as “investments”) listed in or quoted in the Order or any proposal or price sheet provided by DWFritz are in U.S. dollars and do not include any sales, value added, inventory, use, transportation or other taxes, fees or charges, which are the sole responsibility of Client. Taxes or other fees or charges now or hereafter imposed on the sale, delivery, transportation, or proceeds of the Products or Services will (except for DWFritz’s income taxes), be for the account of Client, and if paid (or required to be paid) by DWFritz, will be added to the price payable by Client. If Client is exempt from any tax or charge, it is Client’s duty to furnish DWFritz with an appropriate exemption certificate.

3. LATE CHARGES AND SCHEDULE PENALTY

Payment terms are net 30 days, unless otherwise noted in the Order. A LATE CHARGE of 1½% per month (an ANNUAL PERCENTAGE RATE of 18%) will be assessed on the unpaid balance until paid in full. Solely at DWFritz’s option, late payments will result in a day-for-day schedule delay.

4. SECURITY INTEREST

To secure payment of all amounts due from Client to DWFritz under this Agreement, Client hereby grants to DWFritz a lien on and security interest in and to all of Client’s right, title, and interest in, to, and under the Products, wherever located and whenever existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modification thereof, as well as the products and proceeds of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the Oregon Uniform Commercial Code. At DWFritz’s request, Client will promptly sign financing statements and any other documents appropriate to perfect and/or continue the security interest.

5. DELIVERY

Shipping dates and delivery dates and times are estimates only and are not guaranteed by DWFritz. DWFritz will not be liable for any delays, loss, or damage in transit. DWFritz will prepare Products for shipping Delivered at Place, Client (DAP, Client) INCOterms®, 2010. DWFritz is responsible for preparing Products for shipment & on-loading at DWFritz dock, located at 9600 SW Boeckman Rd., Wilsonville, Oregon 97070 (the “place of shipment”), unless otherwise agreed to in writing by DWFritz. Client is responsible for shipment of equipment in full to final destination. Client is responsible for all duty and customs clearance associated with this shipment. Any storage fees associated with delays incurred during customs clearance will be covered by the Client. DWFritz may, in its discretion and without liability or penalty, ship the Products all at one time or in portions. DWFritz’s breach in the delivery of any partial shipment will not give Client the right to refuse or receive any other shipment. All errors, clerical or otherwise, are subject to correction by DWFritz.

If Client is unable or fails for any reason to promptly take delivery of any Products that DWFritz has notified Client are ready for shipment, DWFritz’s storage costs will be added to the price payable by Client. Such Products will be considered “shipped” for billing purposes and will be invoiced according to the original agreed upon terms. Client assumes all risk of loss in connection with the same. Products that are placed on hold by Client prior to completion will be invoiced for work completed to date and will be payable according to standard payment terms.

With respect to the Services, Client shall (i) cooperate with DWFritz in all matters relating to the Services and provide such access to Client’s premises, and such office accommodation and other facilities as may reasonably be requested by DWFritz, for the purposes of performing the Services; (ii) respond promptly to any DWFritz request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for DWFritz to perform Services in accordance with the requirements of this Agreement; and (iii) provide such materials or information as DWFritz may reasonably request to carry out the Services in a timely manner and ensure that such customer materials or information are complete and accurate in all material respects.

6. INSTALLATION

DWFritz will not be responsible for installing or obtaining installation of any goods unless specifically otherwise agreed to by DWFrtiz in writing.

7. ON-SITE START – UP

DWFritz will not be responsible for on-site start-up of any goods unless specifically otherwise agreed to by DWFritz in writing.

8. LIMITED WARRANTY AND REMEDY

1. Standard Warranty. DWFritz warrants that, for a period of one year from the date of delivery of Products to Client or the performance of Services for Client, as the case may be (the “Standard Warranty Period”), (i) any new Products purchased under the Order shall be free of defects in materials and workmanship and shall materially conform to the specifications set forth in the Order when used under normal conditions and in accordance with the Instructional Documentation (defined below) in effect on the date such Products are delivered to the Client, (ii) the Client will receive good and valid title to such Products free and clear of any encumbrances or liens other than the lien of DWFritz as provided in this Agreement, and (ii) any Services provided under the Order shall be performed in a professional and workmanlike manner. The foregoing warranty (the “Standard Warranty”) shall apply only to Client as the original purchaser of any Products or Services unless resale of the Products or Services is authorized in writing by DWFritz.
2. Warranty Exclusions.
  The Standard Warranty (a) only applies to new Products and (b) shall not be extended to any upgrade, refurbishment, or modification to any of the Products.
  Any warranty made by DWFritz (including without limitation the Standard Warranty) shall not apply to any of the following: (i) any consumable parts, unless the defect in materials or workmanship is present at the time of sale; (ii) any parts (including without limitation replacement parts) supplied by a third party, unless the defect is caused by DWFritz’s failure to incorporate such parts into the Products in a professional and workmanlike manner; (iii) cosmetic damage, including without limitation scratches; (iv) damage caused by accident, abuse, neglect, negligence, misuse, fire, earthquake, Client’s negligence, or other external cause; (v) damage caused by services performed (including upgrades) or modifications made by anyone other than DWFritz; (vi) damage caused by Client’s use of the Products or Services with any third-party product or service that has not been approved in writing by DWFritz; (vi) damage caused by Client’s disabling or failing to use any safety features of the Products; (vii) damage caused by Client’s failure to comply with the Instructional Documentation, including without limitation failure to perform any required maintenance described therein; (viii) defects caused by normal wear and tear or otherwise due to the normal aging of the Products; or (ix) Products whose serial number has been removed or defaced.
3. Exclusive Remedy.
  Client’s sole and exclusive remedy, and DWFritz’s entire liability, for breach of the Standard Warranty shall be, at DWFritz’s election: (a) with respect to non-conforming Products, to repair or replace the non-conforming Products at DWFritz’s manufacturing facility located at 9600 SW Boeckman Rd., Wilsonville, Oregon 97070 or to refund the purchase price for the non-conforming Products, and (b) with respect to non-conforming Services, to reperform the non-conforming Services or to refund the purchase price for the non-conforming Services.
  The Standard Warranty does not apply to any defect unless Client has notified DWFritz about the defect in writing with reasonable specificity prior to expiration of the Standard Warranty Period. Any lawsuit or other action by Client for any alleged breach of the Standard Warranty must be brought withing 90 calendar days after the end of the Standard Warranty Period.
  “Instructional Documentation” means any user guides, manuals, instructions, safety warnings or procedures, or other documents provided by DWFritz to Client in writing that explain how to install, use, operate, implement, or maintain the Products.
4. Special or Extended Warranties. From time to time, DWFritz may offer extended or special warranties for select Products and Services. Purchase of such extended or special warranties may be at an additional cost. Any such extended or special warranty shall apply only if specified as an item being purchased in the Order; otherwise, the Standard Warranty described above shall be the sole warranty with respect to all Products and Services purchased hereunder.
5. Disclaimer of Other Warranties. TO THE FULLEST EXTENT PERMITTED BY LAW, THE STANDARD WARRANTY AND THE REMEDIES SET FORTH HEREIN ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REMEDIES AND CONDITIONS, WHETHER ORAL, WRITTEN, STATUTORY, EXPRESS, OR IMPLIED (EXCEPT FOR ANY EXTENDED OR SPECIAL WARRANTIES PURCHASED BY CLIENT). OTHER THAN THE STANDARD WARRANTY (AND ANY EXTENDED OR SPECIAL WARRANTIES PURCHASED BY CLIENT), DWFRITZ MAKES NO, AND EXPRESSLY DISCLAIMS ALL, EXPRESS OR IMPLIED WARRANTIES WHATSOEVER WITH RESPECT TO THE PRODUCTS OR SERVICES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, IN EACH CASE, WHETHER ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. CLIENT ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY MADE BY DWFRITZ, OR ANY OTHER INDIVIDUAL OR ENTITY ON DWFRITZ’S BEHALF, EXCEPT FOR THE STANDARD WARRANTY AND ANY EXTENDED OR SPECIAL WARRANTIES PURCHASED BY CLIENT. IN THE EVENT SUCH WARRANTIES CANNOT BE DISCLAIMED, TO THE FULLEST EXTENT PERMITTED BY LAW, DWFRITZ LIMITS THE DURATION AND REMEDIES OF SUCH WARRANTIES TO THE DURATION OF THE STANDARD WARRANTY PERIOD AND THE REPAIR OR REPLACEMENT REMEDY DESCRIBED IN SECTION 9.1 ABOVE.
6. RESALE OF THIRD-PARTY BRANDED PRODUCTS AND SERVICES. NOTWITHSTANDING ANY OTHER PROVISION IN THIS AGREEMENT, DWFRITZ MAKES NO REPRESENTATIONS, PROVIDES NO INDEMNITIES (INTELLECTUAL PROPERTY OR OTHERWISE), AND DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AND SHALL HAVE LIABILITY TO CLIENT RELATIVE TO ANY THIRD-PARTY BRANDED PRODUCT OR SERVICE (INCLUDING TRAINING) WHICH MAY BE RESOLD OR SUBLICENSED BY DWFRITZ TO CLIENT AS A DISCRETE ITEM UNDER THIS AGREEMENT.

9. INTELLECTUAL PROPERTY

1. Definitions. As used herein:
  1. “DWFritz IP” means all inventions, designs, drawings, specifications, techniques, models, data, databases, algorithms, source code, object code, documentation, diagrams, research, developments, processes, procedures, know-how, techniques, materials, and other works of authorship or innovation, and all Intellectual Property Rights related thereto, that (i) were in existence and owned by DWFritz before the effective date of this Agreement, and all improvements, modifications and derivative works thereof, or (ii) were made or discovered by DWFritz after the effective date other than in connection with DWFritz’s delivery or provision of Products or Services for Client under this Agreement; or (iii) are developed by DWFritz in the course of this Agreement but are unrelated to the Client’s products or processes.
  2. “Client IP” means all Intellectual Property Rights that were in existence and owned by Client before the effective date of this Agreement, and all improvements, modifications and derivative works thereof.
  3. “Developments” means all Intellectual Property Rights first developed specifically and uniquely for Client as described in an Order; provided, that “Developments” does not include any DWFritz IP.
  4. “Intellectual Property Rights” means any and all tangible and intangible: (i) rights associated with works of authorship throughout the world, including but not limited to copyrights, neighboring rights, moral rights, and all derivative works thereof; (ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) mask work rights; (v) patents, designs, algorithms and other industrial property rights; (vi) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and (vii) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
2. Ownership. DWFritz will continue to own all right, title and interest in and to all DWFritz IP. Client will continue to own all right, title and interest in and to all Client IP, and subject to DWFritz’s continued ownership of all DWFritz IP, Client will own all right, title and interest in and to all Developments.
3. Licenses. DWFritz hereby grants to Client a nonexclusive, royalty-free, perpetual, limited license to use the DWFritz IP (if and to the extent included in the Products or Services delivered hereunder) to the extent necessary for Client to use the Products or Services delivered by DWFritz to Client hereunder for Client’s intended business purposes, as contemplated by the Order. The foregoing license is expressly conditioned upon payment in full for the Products and/or Services and will immediately and automatically terminate if Client does not pay the purchase for the Products or Services in full when due. Client hereby grants to DWFritz a nonexclusive, royalty free, unlimited license to use the Client IP for the sole purpose of developing, manufacturing, or delivering Products or Services under this Agreement.
4. Reverse Engineering. Client agrees not to directly or indirectly reverse-engineer, decompile, disassemble, or attempt to derive the composition or underlying information, structure, or ideas of DWFritz IP, except as required for operation, use, or maintenance of the Products purchased by Client hereunder.

10. CONFIDENTIALITY

1. Definition of “Confidential Information”. “Confidential Information” means any information or data that either party (the “Disclosing Party”) discloses to the other party (“Receiving Party”) or information or data about the Disclosing Party or its business or technology that the Receiving Party otherwise learns or acquires as a result of the parties’ performance under this Agreement that the Disclosing Party designates as confidential or which Receiving Party should reasonably know is deemed confidential due to the nature of the information or the circumstances surrounding its disclosure, whether such information is of a technical, business or other nature, and regardless of form or media now known or later developed, including by way of example and without limitation, information concerning current or proposed projects, concepts, ideas, business models, processes, methods, trade secrets, finances, know-how, inventions, discoveries, designs, technical specifications, software, source code, strategies, and financial information. “Confidential Information” includes, without limitation, (a) information regarding third parties which Disclosing Party is obligated to keep confidential; (b) information disclosed in documents; (c) information disclosed orally; (d) information that is observed; and (e) analyses, compilations, studies or other information or documents that contain or are derived from Confidential Information, even if prepared by Receiving Party. “Confidential Information” excludes any information that Receiving Party demonstrates (i) is or becomes generally known or available to the public through no failure on the Receiving Party’s part to preserve its confidentiality; (ii) is already in the possession of the Receiving Party, with no obligations of confidentiality, at the time of disclosure; (iii) is disclosed to the Receiving Party by a third party who has the right to disclose it without restriction on its further disclosure or use; or (iv) is independently developed by the Receiving Party without use of or reference to any Disclosing Party’s Confidential Information.
2. Use. The Receiving Party will use the Confidential Information solely for the purposes of exercising such Receiving Party’s rights and performing such Receiving Party’s obligations under this Agreement.
3. Obligation of Confidentiality. The Receiving Party shall keep all Confidential Information secret and confidential and shall not, without the prior written consent of Disclosing Party, disclose it to anyone except to a limited group of the Receiving Party’s own employees, consultants, vendors, or other agents or representatives (collectively, the “Representatives”) who are actually engaged in, and need to know such Confidential Information for, the permitted uses described in Section 11.2 above, each of whom must be advised of the confidential nature of the Confidential Information and of the terms of this Agreement and must agree to abide by such terms. The Receiving Party shall be responsible for any breach of this Agreement by any of the Receiving Party’s Representatives.
4. Return and Non-Use of Confidential Information. Upon termination of this Agreement or request from Disclosing Party, the Receiving Party will destroy or return to Disclosing Party all materials (including all copies in all forms and media) that contain, relate to, or constitute Confidential Information, and upon the Disclosing Party’s request certify in writing that the Receiving Party has done so.
5. Procedures in Case of Request for Disclosure. This Agreement will not be construed to prohibit disclosure of Confidential Information to the extent that such disclosure is required by law or valid order of a court or other governmental authority; provided however, that if Receiving Party is subpoenaed or otherwise compelled by valid law or a court order to disclose Confidential Information of Disclosing Party, prior to disclosure, the Receiving Party shall first give prompt written notice to Disclosing Party of the receipt of any subpoena or other request for such disclosure sufficiently in advance to permit Disclosing Party to contest the subpoena or requested disclosure and/or seek a protective order requiring that the Confidential Information so disclosed be used only for the purposes for which the order was issued; and provided further that the Receiving Party shall provide Disclosing Party with reasonable assistance with any such action.
6. Ownership. All Confidential Information will remain the sole and exclusive property of Disclosing Party or the applicable third party, as the case may be.
7. Other Agreements. In the event the parties have previously entered into a separate agreement containing confidentiality, nondisclosure, nonsolicitation, noncompetition, or similar terms, the parties’ rights and obligations under this Section 11 shall be in addition to, and not in lieu of, the parties’ rights and obligations under such other agreement. In the event of a conflict or inconsistency between this Agreement and such other agreement, the terms of this Agreement shall govern to the extent of such conflict or inconsistency.

11. MARKETING MATERIALS

Client understands and agrees that DWFritz may display or include drawings, photographs, videos, descriptions, specifications, and technical and other information about DWFritz products and services (including Products and Services sold to Client hereunder) on its website and in brochures and other marketing materials and media for promotional and other business purposes; provided, however, that DWFritz will not publish or disclose any Client IP, which shall be treated as Confidential Information of Client subject to Section 11. DWFritz may include Client’s name in a general list of clients, but will not associate Client with any specific products, services, or projects without Client’s prior written consent, such consent not to be unreasonably withheld, conditioned, or delayed.

12. LIMITATIONS OF LIABILITY

DWFRITZ’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE NOT EXCEED THE PURCHASE PRICE CLIENT HAS PAID FOR ALL PRODUCTS AND SERVICES PURCHASED UNDER THIS AGREEMENT. DWFRITZ SHALL NOT, IN ANY EVENT, BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF GOODWILL, DIMINUTION IN VALUE, OR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, OR ENHANCED DAMAGES, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, (A) REGARDLESS OF WHETHER (I) SUCH DAMAGES WERE FORESEEABLE, (II) WHETHER CLIENT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (III) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (B) NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.

Notwithstanding anything to the contrary contained herein, DWFritz shall have no obligation, liability, or indemnification obligation related to any loss, injury, death, or damage caused by Client’s: (a) negligent acts, (b) misuse of the Products or disabling or failing to use any safety features of the Products, or (d) failure to comply with the Instructional Documentation

13. INDEMNIFICATION

1. Mutual Indemnification Obligation. Each party shall indemnify, defend, and hold harmless the other party from and against all liabilities, obligations, costs, losses, and damages (including reasonable attorney’s fees) arising from any claims or causes of action, whether in law or equity or sounding in contract, tort, or otherwise, caused by the indemnitor’s (a) violation of law, (b) grossly negligent or reckless acts or omissions, or (c) material breach of this Agreement.
2. Conditions to Indemnification. The obligations set forth in this Section shall apply only if the indemnitee (a) notifies the indemnitor in writing of a claim promptly upon learning of or receiving the same and (b) provides the indemnitor with reasonable assistance requested by the indemnitor, at the indemnitor’s expense, for the defense and settlement, if applicable, of any claim. The indemnitee’s failure to perform any obligations or satisfy any conditions under this Section shall not relieve the indemnitor of its obligations hereunder except to the extent that the indemnitor can demonstrate that it has been materially prejudiced as a result of such failure.
3. Control of Defense. After receipt of notice, the indemnitor shall be entitled, if it so elects, at its own cost, risk and expense: (a) to take control of the defense, investigation, and compromise or settlement, if applicable, of such lawsuit or action; and (b) to employ and engage attorneys of its own choice to handle and defend the same. If the indemnitor fails to assume the defense of such claim within ten (10) business days after receipt of notice of the claim, the indemnitee against which such claim has been asserted will (upon delivering notice to such effect to the indemnitor) have the right to undertake, at the indemnitor’s cost and expense, the defense, compromise or settlement of such claim on behalf of and for the account and risk of the indemnitor; provided, however that such claim shall not be compromised or settled without the written consent of the indemnitor. In the event the indemnitee assumes the defense of the claim, the indemnitee will keep the indemnitor reasonably informed of the progress of any such defense, compromise or settlement. Notwithstanding the foregoing, the indemnitee shall be entitled to conduct its own defense at the cost and expense of the indemnitor if the indemnitee establishes that the conduct of its defense by the indemnitor would reasonably be likely to prejudice materially the indemnitee due to a conflict of interest between the indemnitee and the indemnitor; and provided further that in any event, the indemnitee may participate in such defense at its own expense.

14. EXPORT REGULATION

The Products and Services sold under the Order may be subject to US export control laws, including the US Export Administration Act and its associated regulations. Client shall not, directly or indirectly, export, re-export or release the Products or Services to, or make them accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation.

15. FORCE MAJEURE.

DWFritz will be entitled to an extension of time for performance, and DWFritz will have no liability to Client for any loss, damage, or delay, arising out of or resulting from DWFritz’s failure to perform under this Agreement, in each case, due to any cause or condition beyond its reasonable control, including without limitation acts of God, acts of civil or military authority, fires, floods, earthquakes, or other national disasters, strikes, labor stoppages or slowdowns, or other industrial disturbances, war, riots, vandalism, terrorism, epidemics or pandemics (including any responses thereto such as quarantine restrictions), governmental rule or order, transportation delays, inadequate transportation services, or transportation embargoes, telecommunications breakdowns, power outages or shortages, lack of warehouse or storage space, inability to obtain competent labor or satisfactory quality or quantity of materials from usual sources, or Client’s acts or omissions (including without limitation lack of complete data or incorrect data provided by Client). In the event of such delay, DWFritz’s performance date(s) will be extended for such length of time as may be reasonably necessary to compensate for the delay.

16. GENERAL

1. Governing Law. This Agreement will be governed by and construed in accordance with the internal laws of the state of Oregon. Venue for any action or proceeding shall exclusively be in the federal and state courts located in Multnomah County, Oregon, and the parties hereby waive any claim or defense that such forum is not convenient or proper. Each party hereby agrees that any such court shall have personal jurisdiction over it and consents to service of process in any manner authorized by Oregon Law.
2. Equitable Relief. The parties agree that any material breach of this Agreement by either party or its directors, officers, employees, affiliates, agents, advisers, attorneys, accountants, consultants, bankers, or other representatives may cause immediate and irreparable harm, for which monetary damages would be inadequate or difficult to ascertain. The parties therefore agree that upon the existence of any such breach or threatened breach, the non-breaching party may immediately seek a temporary restraining order or other appropriate form of equitable relief, without posting a bond or other form of security, from any court having jurisdiction over the matter. This paragraph will not limit either party’s rights to obtain monetary damages in addition to or as substitution for such equitable relief.
3. Severability. If any term or provision of this Agreement or the application of it to any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this Agreement and the application of such term or provision to persons or circumstances other than those to which it is held invalid or unenforceable shall not be affected thereby, and each term or provision of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
4. Amendments. Any amendment to this Agreement must be in writing and signed by both parties.
5. Waiver of Breach. The waiver by either party of a breach of any term or provision of this Agreement shall not be construed as a waiver of any subsequent breach of the same or any other term or provision by either party.
6. Assignment. Neither this Agreement, nor any right hereunder or interest herein, may be assigned or transferred by either party, including without limitation assignment by operation of law or via a change of control, without the express written consent of the other party, which consent shall not be unreasonably withheld, conditioned, or delayed; provided, however, that either party may assign this Agreement in connection with the sale of all or substantially all of its assets.
7. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
8. No Third-Party Beneficiaries. This Agreement benefits solely the parties to this Agreement. Nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
9. Notices. All notices hereunder shall be in writing and delivered to the addresses set forth on the Order or to such other address as either party may designate by written notice to the other party, and any such notice shall be deemed given (a) upon personal delivery to the party to be notified if delivered by hand or courier; or (b) three (3) days after deposit in the mail, postage prepaid.
10. Headings. Section headings are used in these Sales Terms for reference purposes only and shall not affect the interpretation or meaning of these Sales Terms.