The Order or Special Order (as the case may be), Acceptance and these Terms (collectively, this "Agreement") comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer's general terms and conditions of purchase regardless whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer's Order or Special Order does not constitute acceptance of any of Buyer's terms and conditions and does not serve to modify or amend these Terms.
1.1 In these Terms unless the context otherwise requires the following words shall have the following meanings:
Acceptance means the Seller’s written acceptance of an Order or Special Order (as the case may be);
Account means a credit account held by the Buyer with the Seller;
Business Day means a day other than a Saturday, Sunday or a federal or West Virginia state holiday;
Buyer means the buyer with whom the Seller is contracting for the supply of the Goods;
Force Majeure Event means any act, event, omission or accident beyond the Seller’s reasonable control including strikes, labor stoppages or slowdowns, lockouts or other industrial disputes (whether involving the workforce of the Seller or any other person), failure of transport network, act of God, war, invasion, hostilities (whether war is declared or not), terrorism, riot, civil unrest or commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, embargo or blockade, national or regional emergency, shortage of adequate power, accident, breakdown of plant or machinery, fire, flood, storm, chemical or biological contamination, sonic boom, explosions, collapse of building structures, earthquakes, loss at sea, epidemics, pandemics or similar events, natural disasters or extreme adverse weather conditions;
Goods means the goods the quantity and description of which are specified in the Order or Special Order (as the case may be) and confirmed in the Acknowledgment (or any part of them) to be sold by the Seller to the Buyer;
Governmental Authority means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of law), or any arbitrator, court or tribunal of competent jurisdiction.
Order means an order for Goods placed by the Buyer with the Seller, excluding a Special Order;
Price has the meaning given to it in Section 5.1;
Quotation means the Seller’s verbal or written quotation for the Goods;
Seller means Armorgard USA Inc., a Delaware corporation; and
Special Order means an order for Goods that are not normally stocked and/or are required to be specially made or obtained by the Seller for the Buyer.
1.2 In these Terms unless the context otherwise requires:
1.2.1 headings shall not be deemed to affect the interpretation of these Terms;
1.2.2 any reference to a statutory provision shall include references to that provision as from time to time modified or re-enacted (save to the extent that modifications or re-enactments made after the date of the Agreement impose any new or extended liability or restriction on the Seller or Buyer);
1.2.3 any reference to a person includes any person, firm or company or other legal entity;
1.2.4 the singular includes the plural and vice versa and any gender includes any other gender; and
1.2.5 any phrase introduced by the terms including, include, in particular or any similar expression shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
2 BASIS OF SALE
2.1 The Order or Special Order (as the case may be) constitutes an offer by the Buyer to purchase the Goods in accordance with these Terms. The Order or Special Order (as the case may be) shall only be deemed to be accepted when the Seller issues an Acceptance of the Order or Special Order (as the case may be), at which point the Agreement shall come into existence.
2.2 The Seller’s employees or agents are not authorized to make any representations or warranties or recommendations or give any advice concerning the Goods unless expressly confirmed by an authorized representative of the Seller in writing.
2.3 All drawings, descriptive matter, and advertising issued by the Seller and any descriptions or illustrations contained in the Seller’s catalogues or brochures are issued or published for the sole purpose of giving an approximate idea of the Goods described in them. They will not form part of the Agreement. Seller makes no representations or warranties regarding such drawings, descriptive matter, and advertising.
2.4 Any typographical, clerical or other error or omission in any sales literature, Quotation, price list, Acceptance, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
2.5 Any Quotation is valid for 30 days from its date or until earlier acceptance by the Buyer, after which time it may be amended or withdrawn by the Seller without giving prior notice to the Buyer.
3 ORDERS AND SPECIFICATIONS
3.1 Subject to Section 4, the quality and description of the Goods and any specification for them shall be as described in the Order or Special Order (as the case may be) and confirmed in the Acceptance.
3.2 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any Order (including any applicable specification) it submits, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Agreement in accordance with its terms.
3.3 The Seller reserves the right to make any changes to the specification of the Goods which are required to comply with any applicable statutory or regulatory requirements or which do not materially affect their quality or performance.
4 BESPOKE GOODS
4.1 A Buyer may place a Special Order for bespoke Goods. Any such Special Order must be made in writing and must be accompanied by a computer-aided design drawing of the Goods required, including such details and specification as the Seller requires. The content and accuracy of such drawing, details and specification shall be the Buyer’s sole responsibility and the Seller disclaims all liability to the Buyer in relation to the content or accuracy of such drawings, details and specification.
4.2 In relation to bespoke Goods, the Buyer shall be solely responsible for carrying out its own risk assessments regarding the use of the bespoke Goods and shall give the Seller such information as the Seller requires from time to time, at such times as the Seller may reasonably require, to enable the Seller to comply with any agreed timeframes for the manufacture of such bespoke Goods.
4.3 To the extent that Goods are to be manufactured in accordance with a specification supplied by the Buyer, the Buyer:
4.3.1 represents and warrants that it has the right to use such specification and supply it to the Seller;
4.3.2 grants the Seller a license to use such specification for the purposes of manufacturing the Goods; and
4.3.3 shall indemnify the Seller against all liabilities, claims, actions, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other reasonable professional costs and expenses) suffered or incurred by the Seller in connection with any claim made against the Seller for actual or alleged infringement of a third party’s intellectual property rights arising out of or in connection with the Seller’s use of such specification or from the Seller complying with the Buyer’s direction as the case may be. This Section 4.3 shall survive expiry or termination of these Terms.
4.4 The Buyer shall not without the Seller’s prior written consent be entitled to use any intellectual property of the Seller (including the Seller’s name and logo) for any purpose.
5.1 The Price of the Goods shall be the price stated in the Seller’s price list in force as of the date of Buyer’s Order or Special Order or, if a Quotation is given, the price stated in the Quotation.
5.2 Notwithstanding any other provision of the Agreement, the Seller reserves the right, by giving written notice to the Buyer at any time before delivery, to increase the Price to reflect any:
5.2.1 change in the type or quantities of the Goods which is requested by the Buyer; or
5.2.2 delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
5.3 All Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any Governmental Authority on any amounts payable by the Buyer. The Buyer shall be responsible for all such charges, costs and taxes; provided that the Buyer shall not be responsible for any taxes imposed on, or with respect to, the Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets.
5.4 The Price excludes the following, which the Buyer shall be additionally liable to pay to the Seller:
5.4.1 any delivery charge in respect of a request for delivery of the Goods at a specific time or place or by a specific means, including delivery of the Goods in a vehicle fitted with a tail-lift;
5.4.2 any charge pursuant to Section 7.9;
5.4.3 any delivery charge in respect of any Order or Special Order (as the case may be) which is less than the minimum order amount needed to qualify for free delivery (which shall be payable in addition to any charge under Section 5.4.1); and
5.4.5 all other costs and expenses other than those specifically referred to in the Price which the Buyer shall be additionally liable to pay to the Seller at the same time as the Price to which they relate.
6.1 If the Buyer is purchasing Goods from the Seller for the first time or the Buyer does not have an Account, the Buyer shall pay the Price at the time the Order or the Special Order (as the case may be) is placed.
6.2 If the Buyer has an Account and is within its Account credit limit, the Buyer shall pay the Price no later than 30 days from invoice date unless prior written agreement is given by the Seller.
6.3 If the Buyer has an Account but is over its Account credit limit, the Seller may (at its entire discretion):
6.3.1 increase the credit limit on the Account, in which case the payment terms of the Price under Section 6.2 shall apply;
6.3.2 require a payment to be made to reduce the credit on the Account to below the credit limit for the Account; or
6.3.3 require the Price to be paid in accordance with Section 6.1 (or such other time before the period set out in Section 6.2).
6.4 All payments shall be made in in US dollars by credit or debit card, check or wire transfer of immediately available funds to the bank account designated by the Seller in writing.
6.5 The Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with the Seller, whether relating to the Seller’s breach, bankruptcy or otherwise.
6.6 In the event of late payment, without limiting any other right or remedy available to the Seller, the Seller may at its discretion:
6.6.1 charge interest on the overdue amount at the lesser rate of 1.5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly; and/or
6.6.2 suspend any further deliveries to the Buyer if such failure continues for five (5) days following written notice thereof.
6.7 The Buyer shall reimburse the Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
7.1 Unless agreed otherwise in writing or the Buyer collects the Goods from the Seller’s premises, the Goods shall be supplied Delivered at Place (Incoterms 2020) to such address as the Buyer specifies (the “Delivery Point”) using Seller's standard methods for packaging and shipping such Goods.
7.2 Delivery of the Goods shall be completed either at the time the Buyer collects the Goods at the Seller’s premises or on the Goods’ arrival at the Delivery Point. Unless otherwise agreed in writing, the Buyer shall be responsible for loading the Goods at the Seller’s premises or unloading the Goods at the Delivery Point and shall provide equipment and labor reasonably suited to unload the Goods at the Delivery Point.
7.3 If the Buyer does not have an Account:
7.3.1 Goods shall only be made available for collection or dispatched by the Seller once payment has been received in full;
7.3.2 unless otherwise agreed in writing, the Seller shall use its commercially reasonable efforts to ensure that Goods are made available for collection or delivered to the Buyer within ten (10) Business Days of receipt of payment for such Goods.
7.4 If the Buyer has an Account:
7.4.1 Goods shall be made available for collection or dispatched as soon as reasonably practicable after receipt of Buyer’s Order; and
7.4.2 unless otherwise agreed in writing, the Seller shall use commercially reasonable efforts to ensure that Goods are made available for collection or delivered to the Buyer within ten (10) Business Days after the date of the Order.
7.5 Subject to Section 5.4.1, the Buyer may request delivery of the Goods at a certain time or place or by a specific means.
7.6 Any dates specified by the Seller for delivery of the Goods are intended to be an estimate and time for delivery shall not be of the essence. The Seller shall not be liable for any loss or damage occurring through any failure or inability to meet such dates. The Goods may be made available for collection or delivered by the Seller in advance of the specified delivery date by giving reasonable notice to the Buyer.
7.7 Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the Goods shipped whether such shipment is in whole or partial fulfilment of Buyer's Order
7.8 If, for any reason, on the date for delivery the Buyer fails to collect or accept delivery of any of the Goods due to the Buyer’s fault:
7.8.1 risk of loss to the Goods will immediately pass to the Buyer;
7.8.2 the Goods will be deemed to have been delivered; and
7.8.3 the Seller may, at its option, store the Goods until actual delivery whereupon the Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
7.9 If the Buyer does not have the equipment or facilities to unload the Goods on delivery, the Seller reserves the right to charge a reasonable sum in respect of unloading the Goods on the Buyer’s behalf.
7.10 The Buyer shall not be entitled to object to or reject the Goods if the Seller delivers up to and including 5% more or less than the quantity of Goods ordered, but a pro rata adjustment shall be made to the Order or Special Order invoice (as the case may be) on receipt of written notice from the Buyer that the wrong quantity of Goods was delivered.
7.11 The Seller shall not be liable for any non-delivery of the Goods (even if caused by the Seller’s negligence) unless the Buyer gives writing notice to the Seller of the non-delivery within seven (7) days of the date when the Goods would in the ordinary course of events have been received. The Seller’s liability for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or issuing a credit at the pro rata rate against any invoice respecting such Goods.
7.12 The Buyer shall inspect the Goods with seven (7) days of receipt (the “Inspection Period”). The Buyer will be deemed to have accepted the Goods unless it notifies the Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by the Seller. “Nonconforming Goods” means only the following: (i) the Goods shipped are different than identified in the Buyer’s Order; (ii) product’s label or packaging incorrectly identifies its contents; or (iii) the Goods are damaged, lost or there is a shortfall.
7.13 If the Buyer timely notifies the Seller of any Nonconforming Goods, the Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods; or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by the Buyer in connection therewith. The Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to a facility designated by the Seller. If the Seller exercises its option to replace Nonconforming Goods, the Seller shall, after receiving the Buyer’s shipment of Nonconforming Goods, ship to the Buyer, at the Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
7.14 The Buyer acknowledges and agrees that the remedies set forth in Section 7.13 are the Buyer’s exclusive remedies for the delivery of Nonconforming Goods.
8 RETURNS AND CANCELLATION
8.1 Subject to the provisions of this Section 8, no Order or Special Order in respect of which an Acceptance has been issued may be cancelled by the Buyer except with the written agreement of the Seller and on terms that the Buyer shall indemnify the Seller in full against any and all loss (including loss of profit), damage, liability, claim, action, costs or expenses (including the cost of all labor and materials used), damages, charges and expenses incurred by the Seller in the performance of the Agreement up to (and including) the date of cancellation or as a result of cancellation.
8.2 Subject to Section 8.3, the Buyer shall be entitled to return Goods for any reason for up to thirty (30) days of the date of delivery of such Goods, in which case the Buyer shall be liable to pay the Seller 20% of the value of the Price, in addition to the actual cost incurred by the Seller in delivering the Goods to the Buyer and returning the Goods to the Seller.
8.3 The Buyer shall not be entitled to return bespoke Goods ordered under a Special Order unless the bespoke Goods do not comply with Section 10.1.
9 RISK AND TITLE
9.1 Title and risk of loss passes to the Buyer upon delivery of the Goods at the Delivery Point.
9.2 As collateral security for the payment of the Price of the Goods, the Buyer hereby grants to the Seller a lien on and security interest in and to all of the right, title and interest of the Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the West Virginia Uniform Commercial Code.
10 LIMITED WARRANTY
10.1 The Seller warrants to Buyer that for a period of seven (7) years from the delivery of the Goods (“Warranty Period”), such Goods will materially conform to the Seller’s published specifications at the time of delivery and will be free from material defects in workmanship.
10.2 EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 10.1, THE SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
10.3 Products manufactured by a third party ("Third Party Product") may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the limited warranty in Section 10.1. For the avoidance of doubt, THE SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
10.4 The Seller shall not be liable for a breach of the limited warranty in Section 10.1 if the:
10.4.1 defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice;
10.4.2 the Buyer alters or repairs the Goods without the written consent of the Seller;
10.4.3 defect arises from fair wear and tear (as determined by the Seller in its sole and absolute discretion), cosmetic rust, scratches, dents, or willful damage, negligence, abnormal working conditions or misuse, environmental or other external factors;
10.4.4 the Buyer makes any further use of the Goods after giving notice of a defect in writing to the Buyer;
10.4.5 defect arises as a result of the Seller following any drawing, design or specification supplied by the Buyer;
10.4.6 the defect or imperfection is of a minor or insignificant nature in respect of the Goods; or
10.4.7 the Goods differ from their description or specification as a result of changes made to ensure they comply with applicable statutory or regulatory requirements.
10.5 Subject to Section 10.3 and 10.4 and the Seller’s right to examine such Goods, if any of the Goods do not comply with the warranty in Section 10.1, the Seller’s liability shall be limited (at the Seller’s option) to the repair or replacement of such Goods (or the defective part(s) in question) or the refund of the Price (or a proportionate part of the Price), and the Seller shall have no further liability to the Buyer.
10.6 If the Seller so requests, the Buyer shall, at the Seller’s expense, return the Goods or the defective part(s) in question to the Seller. Any Goods replaced will belong to the Seller and any repaired or replacement Goods will be guaranteed on these terms.
10.7 THE REMEDIES SET FORTH IN THIS SECTION 10 SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND THE SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 10.1.
11 LIMITATION OF LIABILITY
11.1 Subject to Section 7.11, 10.4 and 11.2:
11.1.1 IN NO EVENT SHALL THE SELLER BE LIABLE TO THE BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, OR FOR AN CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORSEEABLE AND WHETHER OR NOT THE SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE
11.1.2 IN NO EVENT SHALL THE SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO THE SELLER FOR THE GOODS SOLD HEREUNDER.
11.1.3 the Seller shall not be liable to the Buyer for any loss incurred by the Buyer which arises as a direct or indirect result of any of the Goods being broken into or entry into any Goods being forced (including any attempts to do so).
11.2 The limitation of liability set forth in Section 11.1.1 shall not apply to: (i) liability resulting from the Seller’s gross negligence or willful misconduct and (ii) death or bodily injury resulting from the Seller’s acts or omissions.
12.1 The Seller may terminate the Agreement with immediate effect by giving written notice to the Buyer if:
12.1.1 the Buyer become insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings related to bankruptcy, receivership, reorganization or assignment for the benefit of creditors;
12.1.2 fails to pay any amount when due under this Agreement and such failure continues for 5 days after the Buyer’s receipt of written notice of nonpayment; or
12.1.3 the Buyer has not otherwise performed or complied with any of these Terms, in whole or in part, and such breach continues for 10 days after the Buyer’s receipt of written notice of breach
12.2 If this Section 12 applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to terminate the Agreement with immediate effect upon written notice to the Buyer, or suspend any further deliveries of Goods under the Agreement without any liability to the Buyer, and if Goods have been delivered but have not paid for the Price shall become immediately due and payable notwithstanding any previous agreement or arrangement to the contrary.
12.3 On termination of the Agreement for any reason the Buyer shall immediately pay to the Seller all of the Seller's outstanding unpaid invoices and interest.
12.4 Termination of the Agreement, however arising, shall not affect any of the parties' rights, remedies, obligations and liabilities that have accrued as at termination.
12.5 Terms which expressly or by implication survive termination of the Agreement shall continue in full force and effect.
13 FORCE MAJEURE
13.1 The Seller shall not be liable to the Buyer, nor deemed to have defaulted under or breached this Agreement, for any failure to perform or delay in performance of its obligations under the Agreement due to any Force Majeure Event. If any Force Majeure Event delays or prevents the Seller’s performance of its obligations for a continuous period of 3 months then either party may, at its discretion terminate the Agreement by written notice at the end of such period.
14.1 The Buyer shall not be entitled to assign the Agreement or any part of it without the prior written consent of the Seller.
14.2 The Seller may assign the Agreement or any part of it to any person.
15 COMPLIANCE WITH LAW
15.1 The Buyer shall comply with all applicable laws, regulations and ordinances. The Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under these Terms.
16.1 No amendment to these Terms or the Agreement shall be valid unless made in writing and signed by or on behalf of the Seller.
16.2 If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
16.3 This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
16.4 All notices under the Agreement shall be:
16.4.1 in writing and addressed, in the case of the Buyer, to the Delivery Point or by email to the email address provided as part of the Order or Special Order, and, in the case of the Seller, to its registered office or such other address as it notifies the Buyer from time to time, or by email to [email protected]
16.4.2 deemed to have been duly given when delivered to the address referred to in Section 15.4.1, if delivered by personal delivery during normal business hours of the recipient; or on the second Business Day following mailing, if sent by nationally recognized overnight courier (with all fees pre-paid); or at the time of transmission if sent by email.
16.5 The provisions of Section 16.4 shall not apply to the service of any proceedings or other documents in any legal action.
16.6 All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of West Virginia without giving effect to any choice or conflict of law provisions or rule (whether of the State of West Virginia or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of West Virginia.
16.7 Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of West Virginia in each case located in the City of Martinsburg and County of Berkeley, and each party irrevocably submits to the exclusive jurisdiction of such courts in any suit, action or proceeding.
16.8 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 the authority to contract for or bind the other party in any manner whatsoever.
16.9 No waiver by the Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by the Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
16.10 All non-public, confidential or proprietary information of the Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by the Seller to the Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by the Seller in writing. Upon the Seller's request, the Buyer shall promptly return all documents and other materials received from the Seller. The Seller shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer on a non-confidential basis from a third party.