Vuba Stone, LLC Terms and Conditions of Sale

In these Conditions, the following words and phrases have the following meaning: 

“Affiliate” means with respect to any person, any other person that directly or indirectly Controls, is Controlled by, or is under common Control with such person.

“Buyer” means the person or entity that buys or agrees to buy the Goods from the Seller.

“Conditions” means the terms and conditions contained herein which shall be incorporated into the Contract in their entirety.

“Contract” means a legally binding contract between the Seller and the Buyer for the sale and purchase of Goods ordered by the Buyer and accepted by the Seller in accordance with and subject to these Conditions of sale.

“Control” means the direct or indirect ownership of more than fifty percent (50%) of the voting securities or other ownership interests of an entity, or the possession of the power to direct the management and policies of such entity, whether through ownership, contract or otherwise. The terms “Controls,” “Controlled,” and “Controlling” shall have corresponding meanings, and a “Change of Control” means any transaction or series of related transactions resulting in a person no longer having Control of an entity, or another person acquiring Control of such entity.

“Default” has the meaning given to it in Section 13.

“Force Majeure Event” means any circumstance not within a party’s reasonable control including: acts of God, flood, storm, drought, earthquake or other natural disaster; epidemic or pandemic; terrorist attack, civil war, civil commotion or riots, war, threat of or preparation for war, armed conflict, imposition of sanctions, embargo, or breaking off of diplomatic relations; nuclear, chemical or biological contamination or sonic boom; any law or any action taken by a government or public authority, including imposing an export or import restriction, quota or prohibition; collapse of buildings, breakdown of plant or machinery, fire, explosion or accident; any labor or trade dispute, difficulty or increased expense in obtaining workers, materials or transportation, including shipping delays affecting transportation to the United States, strikes, industrial action or lockouts; non-performance by suppliers or subcontractors (other than by companies in the same Group as the party seeking to rely on this Section); and interruption or failure of utility service.

“Goods” means the goods or materials that are the subject of the Contract between the Seller and the Buyer as listed in an Order. 

“Group” means with respect to an entity, such entity and its Affiliates, including any entity that directly or indirectly Controls, is Controlled by, or is under common Control with such entity.

“Intellectual Property” means any and all intellectual property and proprietary rights of any kind anywhere in the world, whether registered or unregistered, including: (i) patents, patent applications, inventions, discoveries and improvements; (ii) trademarks, service marks, trade names, trade dress, logos, domain names, goodwill and the right to sue for passing off or unfair competition; (iii) copyrights and works of authorship, including software, databases, documentation, drawings, specifications and other materials; (iv) trade secrets, know-how and confidential information; (v) database rights; (vi) design rights, including registered and unregistered design rights; and (vii) all applications, registrations, renewals, extensions, continuations, continuations-in-part, divisionals, reissues, re-examinations and rights to apply for any of the foregoing. Such rights include rights arising under the laws of the United States and any other jurisdiction worldwide.

“Order” means an order for Goods made by the Buyer in accordance with Section 1.

“Price” means the price specified in the Seller’s acknowledgment or otherwise

communicated to the Buyer and agreed in writing by the parties.

“Seller” means Vuba Stone, LLC, a Delaware limited liability company, with offices at 1619 Diamond Springs Road, STE F, Virginia Beach, VA 23455.

“Taxes” means sales, use, goods and services, excise, gross receipts, customs, import, export, withholding, or similar taxes, duties, tariffs, fees, assessments, or other governmental charges of any kind.

The Seller reserves the right to update these Conditions from time to time. Any updated terms shall apply to orders placed after the date on which the updated terms are published on the Seller’s website or otherwise notified to the Buyer in writing. Existing orders shall be governed by the terms in force at the date the order was accepted by the Seller.

1.         Acceptance of Order

(i)        All Goods are sold or supplied by the Seller upon the following terms and conditions and these Conditions apply in preference to and supersede any terms and conditions referred to or offered by the Buyer.

(ii)       The Seller is under no obligation to accept the Buyer’s Order. Prices, offers and products are subject to availability and may change at any time prior to acceptance of the Buyer’s Order. All prices placed by the Seller on its website (currently located at www.vuba-stone.com) constitute an invitation to treat. By submitting an electronic or online Order, the Buyer submits an offer to enter into a sales contract with the Seller.

(iii)      The Seller will confirm that it has received such Order without undue delay (the “Acknowledgment”). The Acknowledgment does not signify that the Buyer’s offer has been accepted. If the Seller decides to accept an Order (whether placed by internet, telephone, fax or email), the Buyer will receive an Order acceptance at which point the Order will become a binding Contract.

(iv)     The Buyer acknowledges that it has not relied on any statement, promise or representation made or given on behalf of the Seller which is not set forth in these Conditions.

(v)       Each Order shall form a separate Contract, and cancellation or termination of any individual Contract shall not entitle the Buyer to terminate or repudiate any other Contract.

2.         Description

(i)        The Seller shall be entitled to make such alterations to the materials, specifications, production and packaging of the Goods as the Seller may think fit provided that such alterations do not have a material effect on the quality or performance of such Goods (which will include but is not limited to any such alteration as is required so that such Goods conform to applicable statutory requirements or regulations).

(ii)       Illustrations, brochures, descriptions, samples, demonstration products and general literature relating to the Goods are intended as a general guide only and shall not form part of any Contract between the Seller and the Buyer for such unless otherwise expressly agreed in writing signed on behalf of the Seller by an authorized representative of the Seller.

(iii)      By entering into the Contract, the Buyer acknowledges that it is not relying on any advice, statement, representation, or warranty regarding the use, quality, performance, or suitability of the Goods, and waives any claim based on any such representation, unless the representation was made fraudulently or is expressly set forth in writing and signed by an authorized representative of the Seller.

(iv)     The Seller’s employees are not authorized to make any representations that will bind the Seller, and the Seller is not liable for any such unauthorized representations.

(v)       The Buyer’s rights under applicable law remain unaffected by this Section 2 except to the extent that the modification of such rights is permitted under applicable law.

3.         The Price

(i)        The Price of any Goods shall be as quoted on the Seller’s website (currently located at www.vuba-stone.com) or any quote given in writing by the Seller to the Buyer with respect to an Order, except in cases of obvious error, and subject always to Sections 1(i) and (ii).  

(ii)       Delivery costs are at the discretion of the Seller, and prior to the Seller’s acceptance of the Order, the Seller reserves the right to adjust delivery costs on three (3) days’ notice.

(iii)      The Seller may increase the price of any undelivered Goods by providing written notice to Buyer prior to delivery. Buyer may, within seven (7) days after receiving such notice, cancel the applicable Order with respect to the affected undelivered Goods by providing written notice to Seller.

(iv)     Unless otherwise stated on acceptance, the Price of the Goods shall include the Seller’s costs of standard packing. 

(v)       The Price is quoted Ex Works (Incoterms® 2020) and is exclusive of delivery, carriage, insurance, and Taxes, all of which shall be payable by the Buyer, unless the Seller agrees in writing to arrange delivery, in which case the Seller may charge for it separately.

(vi)     Containers and/or packages are not returnable unless so stated in the Seller’s quotation, Acknowledgment or otherwise agreed in writing by the Seller.

4.         Payment

(i)        Unless otherwise stated on the Seller’s invoice or otherwise agreed in writing, payment for the Goods shall be made before the Goods are dispatched. 

(ii)       Time for payment shall be of the essence, and failure by the Buyer to pay the Price or any installment thereof when due shall entitle the Seller to one or more of the following:

(a)        treat such failure as a repudiation of the whole Contract by the Buyer;

(b)        require the Buyer to make immediate payment of all monies due or to become due;

(c)        charge interest at the lesser of: (1) five percent (5%) per annum above the Prime Rate published from time to time by The Wall Street Journal; and (2) the maximum rate permitted by applicable law, from the due date until payment in full; and/or

(d)        recover its reasonable costs of collection, including reasonable attorneys’ fees, in connection with any unpaid amounts.

(iii)       The Buyer shall make all payments due in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise.

(iv)     All payments shall be clearly identified by invoice numbers and deemed to be made in the order in which they were issued.

(v)       All amounts payable to the Seller shall become due immediately upon termination of the Contract.  For international Orders, the Seller may require the Buyer to provide an irrevocable letter of credit from a bank acceptable to the Seller or a credit insurance policy naming the Seller as beneficiary as a condition of accepting the Order.

5.         Delivery

Unless otherwise agreed in writing between the Seller and the Buyer, the following provisions shall apply:

(i)        Delivery of the Goods shall take place when the Goods are made available for collection by the Buyer at the Seller's facility in accordance with Section 5(iii).

(ii)       The delivery date or dates are estimates only and time for delivery shall not be of the essence. The Seller shall not be liable for any indirect or consequential loss (including loss of profits) arising from delay in delivery. If the Seller fails to deliver the Goods within thirty (30) days of the estimated delivery date or dates, the Buyer may cancel the Order for the undelivered Goods by written notice to the Seller, and the Seller shall refund any advance payment made for such Goods within fourteen (14) days of cancellation.

(iii)      Unless otherwise agreed in writing, the Goods shall be delivered Ex Works (EXW) Seller’s facility (Incoterms® 2020). Risk of loss, damage, or deterioration of the Goods shall pass to the Buyer when the Goods are placed at the Buyer’s disposal at the Seller's facility, not loaded on any collecting vehicle. The Buyer shall be responsible for loading, carriage,  insurance, and all export or import formalities and costs. Any assistance by the Seller with loading shall be at the Buyer's risk and expense.

International Orders and Shipping

(i)        For deliveries outside the United States, delivery shall be on Ex Works (Incoterms® 2020) terms unless otherwise agreed in writing. The Buyer shall bear all costs of carriage, insurance, export and import duties, tariffs, customs brokerage, GST, HST, PST, or other import Taxes, and clearance in the destination country.

(ii)       The Buyer shall act as importer of record and shall be responsible for import licenses, permits, product registrations, labeling (including any bilingual English/French labeling required in Canada where applicable), and compliance with local product safety and chemical regulations. The Seller shall provide safety data sheets and product documentation reasonably requested by the Buyer.

(iii)      The Buyer shall comply with U.S. export-control and sanctions laws, including the Export Administration Regulations (EAR) and sanctions administered by the Office of Foreign Assets Control (OFAC), and shall not re-export the Goods in violation of those laws. The Seller may cancel or suspend any Order that would breach those laws.

(iv)     Invoices shall be issued in USD unless otherwise agreed in writing. The Buyer shall bear all bank charges, currency-conversion costs, and withholding taxes, and shall gross-up payments so that the Seller receives the full amount otherwise payable.

(v)       The Seller may require advance payment, an irrevocable letter of credit, or credit insurance as a condition of accepting an international Order.

(vi)     For deliveries outside the United States, retention of title shall be governed by the law of the place of delivery to the extent mandatory. The Buyer shall take all steps reasonably required to preserve the Seller’s security interest.

(vii)    The Buyer shall provide proof of export and import documentation within thirty (30) days after delivery upon the Seller’s request.

(viii)   The parties have expressly required that these Conditions and related documents be drawn up in English. 

(ix)     The Buyer shall comply with the U.S. Foreign Corrupt Practices Act (FCPA) and applicable local anti-bribery laws, including, for Canada, the Corruption of Foreign Public Officials Act.

(x)       Notwithstanding Section 5(ii), if delivery is delayed by customs clearance, import or export procedures, border inspections or closures, carrier or customs broker delays, or other regulatory requirements beyond the Seller’s reasonable control, the estimated delivery date or dates referred to in Section 5(ii) shall be extended by a period equal to the duration of such delay. The Seller shall not be liable for any loss or damage arising from or in connection with such delay. The Seller shall use commercially reasonable efforts to notify the Buyer promptly upon becoming aware of any such delay and shall provide an updated estimated delivery date where practicable. For the avoidance of doubt, the Buyer’s right to cancel the Order pursuant to Section 5(ii) shall not arise until thirty (30) days after the expiration of any extension period granted under this Section.

6.         Property

(i)        Title to the Goods shall remain with the Seller until payment in full has been made to the Seller by the Buyer for:

(a)        the Goods; and

(b)        all other sums which are due or which become due to the Seller from the Buyer. 

(ii)       The Buyer hereby grants to the Seller a purchase money security interest (“PMSI”) in the Goods and all proceeds thereof to secure payment of the Price. The Buyer authorizes the Seller to file UCC financing statements and any amendments thereto in any jurisdiction as the Seller deems necessary to perfect its security interest.

(iii)      To the extent the Goods are used in the Buyer’s manufacturing process or incorporated into other products before payment in full, the Seller’s security interest shall attach to the resulting products and all proceeds thereof, to the extent permitted by applicable law.

(iv)     Until payment in full is made:

(a)        the Buyer shall hold all Goods separately from its own goods and maintain them in good condition, clearly identified as subject to the Seller’s security interest;

(b)        the Buyer shall maintain insurance covering the Goods for their full replacement value against all risks customarily insured against by prudent owners of similar goods, with the Seller named as loss payee or additional insured as its interest may appear; and

(c)        the Buyer grants to the Seller, its agents, and employees an irrevocable right and license, upon reasonable notice and during normal business hours, to enter any premises where the Goods are or may be stored to inspect them and, following a Default, to recover them.

(v)       If the Buyer resells the Goods (or products incorporating the Goods) before payment in full to the Seller, the Buyer shall hold the proceeds of such resale for the benefit of the Seller, and the Seller’s security interest shall attach to such proceeds. The Buyer’s right to resell the Goods in the ordinary course of business shall automatically cease if any of the events in Section 13 occur.

(vi)     The Buyer shall cooperate with the Seller in taking any steps reasonably required to perfect or enforce the Seller’s security interest under applicable law, including executing any documents or filings as the Seller may request.

7.         Lien

To the fullest extent permitted by applicable law, the Seller shall, in respect of all unpaid debts due from the Buyer under the same or any other contract, have a general lien on all Goods and property of the Buyer in its possession (although such Goods or some of them may have been paid for) and shall, after expiration of fourteen (14) days’ written notice to the Buyer, be entitled to dispose of such Goods and property as it deems fit and apply the proceeds towards such debts.

8.         Shortages and Damage and/or Loss in Transit

(i)  Unless otherwise agreed in writing between the Buyer and the Seller, the Seller may deliver against any Order an excess and/or deficiency up to ten percent (10%) of weight or volume ordered without any liability whatsoever to the Buyer save that the Price shall be adjusted accordingly.

(ii)If the Seller fails to make delivery or makes defective delivery of any one (1) installment of an Order, such failure or defective delivery shall not affect the Contract as regards other installments.

(iii)             The right of the Buyer to set off the value of any shortage, defective Goods or Goods not otherwise conforming to the Contract shall be restricted to the specific invoice for the Goods in question and shall not apply to previous or future invoices and/or Orders.

9.         Aggregates

(i)  The Buyer accepts that the Seller sources aggregate products from naturally occurring deposits. As with all natural products, variations in color and finish may occur. The Seller makes every effort to ensure consistency with product color, yet variations between product batches, and even within the same product batch, can occur. The Seller will accept no liability for shading differences when the products are laid. The color of new aggregate products will inevitably differ from products that have been laid for a length of time.

(ii)The Buyer must:

(a)        ensure that when batches of aggregates are sent to a customer pursuant to an order, the aggregates sent are from the same batch as labeled by the Seller;

(b)        keep records identifying the batches sent to each customer;

(c)        when accepting an order from a customer, make inquiries as to whether the customer has used the Seller’s products previously and whether the order is for aggregates to continue an existing job; and

(d)        if the customer is ordering additional aggregate for an ongoing job, ensure that the aggregate supplied in accordance with the current order is from the same batch as the aggregate previously supplied to the customer.

10.      Rust Staining

The Buyer accepts that natural aggregates may contain small amounts of iron which can produce rust staining when exposed to air and water. Standard resin bound surfacing blends contain aggregates selected for infrequency of incidence of staining, but iron may be present in any natural aggregate. The presence of iron cannot be identified before use and any resulting stains are not, and should not be regarded as a product defect. The performance of surfacing which exhibits rust staining is not usually affected by the stains.

11.      Force Majeure

(i)            Neither party shall be liable for any failure or delay in performing its obligations under the Contract to the extent that such failure or delay is caused by a Force Majeure Event.

(ii)           The affected party shall notify the other party in writing as soon as reasonably practicable of the Force Majeure Event, its expected duration, and the obligations affected. The affected party shall use all commercially reasonable efforts to mitigate the effect of the Force Majeure Event.

(iii)          If the Force Majeure Event continues for more than sixty (60) days, either party may terminate the affected Order(s) by giving thirty (30) days’ written notice. The Seller shall refund any advance payment received for Goods not yet delivered. 

12.      Indemnity

The Buyer shall defend, indemnify, and hold harmless Seller and its Affiliates, and their respective directors, officers, employees, agents, and representatives, from and against any and all third-party claims, actions, demands, losses, damages, liabilities, judgments, settlements, penalties, costs, and expenses (including reasonable attorneys’ fees and other professional fees) arising out of or relating to (i) the Buyer’s breach of the Contract, or (ii) the negligent acts or omissions, willful misconduct, or failure or delay in performance by the Buyer or its employees, agents, or subcontractors, in each case to the extent giving rise to the applicable claim. The Seller shall promptly notify the Buyer in writing of any claim for which it seeks indemnification and shall provide reasonable cooperation and assistance, at the Buyer’s expense, in connection with the defense of such claim.

13.      Default

(i)            The Seller reserves the right (without prejudice to its other rights and remedies) either to terminate the Contract between the parties or to suspend further deliveries under it or require payment in advance or require return of Goods delivered in the event that:

(a)        the Buyer fails to pay for any one (1) Order when the same becomes due; 

(b)        the Buyer’s financial position becomes unsatisfactory to the Seller; 

(c)        the Buyer files a voluntary petition in bankruptcy, or an involuntary petition in bankruptcy is filed against the Buyer, or the Buyer makes an assignment for the benefit of creditors, or a receiver, trustee, or liquidator is appointed for any substantial part of the Buyer’s assets; 

(d)        the Buyer enters into any arrangement with or for the benefit of creditors, or the Buyer is generally unable to pay its debts as they become due, or the Buyer admits in writing its inability to pay its debts, or any similar proceeding is commenced under any applicable federal or state law; or

(e)        the Buyer is in material breach of any of these Conditions (noting that a material breach includes a breach of any of Sections 4, 6, 9(ii) or 12),

each a “Default”.

(ii)           Any suspension of deliveries or requirement for advance payment under this Section 13 shall not constitute a breach of the Contract by the Seller.

14.      Intellectual Property

(i)            All Intellectual Property subsisting in and/or protecting the Goods, their specifications, designs, formulations, branding, packaging, marketing materials, and any technical data or documentation provided by the Seller to the Buyer shall remain the exclusive property of the Seller or the relevant member of the Seller's Group and, except as expressly provided in the Distribution Agreement (where applicable), no rights are granted to the Buyer.

(ii)           The Buyer shall not: 

(a)        use the Seller’s trademarks, logos or branding except for the purpose of reselling the Goods in their original form; 

(b)        alter, deface or remove any trademark, label or packaging applied by the Seller; or 

(c)        register or apply to register any trademark, design or domain name that is identical or confusingly similar to any trademark of the Seller. 

(iii)          Upon termination of the Contract, the Buyer shall immediately cease all use of the Seller’s Intellectual Property.

15.      Warranties and Liability

(i)         No employee, agent, or representative of the Seller has authority, unless expressly approved in writing by an authorized officer of the Seller:

(a)        to modify or waive these Conditions, whether orally or in writing; or

(b)        to make any representation or warranty regarding the condition, quality, performance, merchantability, fitness for a particular purpose, or any other characteristic of the Goods.

(ii)           Except as expressly set forth in Section 15(v), no representation, warranty, or indemnity is given by the Seller that the Goods do not infringe any third-party Intellectual Property rights.

(iii)          Except as expressly set forth in Section 15(v), no representation, warranty, condition, or description is made or implied by the Seller as to the fitness of any Goods for a particular purpose, even if such purpose has been disclosed by the Buyer, and no warranty or condition shall be implied from the name, description, or designation of the Goods.

(iv)         Where samples have been provided to the Buyer, the Buyer shall be deemed to have tested and approved such samples for the specifications and purposes for which the Buyer intends to use the Goods.

(v)           The Seller warrants that, at the time of delivery, the Goods will materially conform to any specification or description set forth in the Seller’s quotation or acknowledgment of order.

(vi)         EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 15, THE SELLER MAKES NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, ALL OF WHICH ARE DISCLAIMED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.

(vii)        Nothing in these Conditions shall exclude or limit any liability or right that cannot be excluded or limited under applicable law.

(viii)       Nothing in these Conditions shall limit or exclude the Seller’s liability for:

(a)        death or bodily injury caused by the Seller’s negligence;

(b)        fraud or fraudulent misrepresentation; or

(c)        breach of the warranty of title under Section 2-312 of the Uniform Commercial Code.

(ix)         Subject to Section 15(viii), the Seller’s aggregate liability to the Buyer arising out of or relating to any Contract shall not exceed the total Price paid or payable by the Buyer under the Contract giving rise to the claim.

(x)           SUBJECT TO SECTION 15(viii), THE SELLER SHALL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING ANY LOSS OF PROFITS, REVENUE, BUSINESS OPPORTUNITIES, OR GOODWILL.

16.      Data Protection

(i)            Each party shall comply with its obligations under all applicable federal and state data privacy and data security laws and regulations (including, without limitation, any applicable state consumer privacy laws).

(ii)           To the extent that personal information is shared between the parties in connection with the Contract, each party shall process such personal information only for the purposes of performing its obligations under the Contract and in accordance with applicable law.

(iii)          Each party shall implement and maintain reasonable administrative, technical, and physical safeguards to protect personal information shared in connection with the Contract against unauthorized access, use, or disclosure.

17.      Assignability

(i)            The Buyer shall not assign, novate, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any or all of its rights and obligations under the Contract without the prior written consent of the Seller (such consent not to be unreasonably withheld or delayed).

(ii)           The Seller may assign or transfer any or all of its rights and obligations under the Contract to any member of its Group or to any person to which it transfers that part of its business to which the Contract relates.

18.      Governing Law; Forum

(i)            To the fullest extent permitted by law, these Conditions and the Contract will be governed by and construed in accordance with the laws of the State of New York, USA, without regard to its conflicts of law principles or provisions.  Any suit, action or proceeding brought in connection with or arising under these Conditions and the Contract must be brought in a federal, state or local court of competent jurisdiction in New York County, New York.  

(ii)           Subject to the foregoing, the parties expressly consent to personal jurisdiction in New York County, New York, with respect to any suit, action or proceeding brought in connection with or arising under these Conditions and the Contract.

(iii)          Any party may seek interim injunctive relief or any other interim measure of protection in any court of competent jurisdiction.

(iv)         EACH PARTY HEREBY KNOWINGLY, VOLUNTARILY, AND IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT TO A TRIAL BY JURY IN ANY ACTION, CLAIM, SUIT, OR PROCEEDING ARISING OUT OF OR RELATING TO THESE CONDITIONS AND THE CONTRACT OR THE TRANSACTIONS CONTEMPLATED HEREBY.

19.      Notices

(i)            The parties agree to electronic communication and acknowledgment that all Contracts, Orders, notices, information and other communications that the parties provide to each other electronically comply with any legal or contractual requirement that such communications be in writing.

(ii)           All notices given by the Buyer to the Seller must be sent to Vuba Stone, LLC, 1619 Diamond Springs Road, STE F, Virginia Beach, VA 23455.

(iii)          The Seller may give notice to the Buyer at either the email or postal address provided by the Buyer when placing an Order.

(iv)         Notice will be deemed received and properly served twenty-four (24) hours after an email is sent or three (3) days after the posting of any letter.

20.      Entire Agreement

(i)            These Conditions and the Contract, together with the Distribution Agreement (where applicable) constitute the entire agreement between the parties with respect to the sale and purchase of the Goods and supersede all prior and contemporaneous agreements, understandings, negotiations, representations, and communications, whether written or oral, relating to the sale and purchase of the Goods; provided, however, that nothing in these Conditions or any Contract shall supersede, amend, or limit the Distribution Agreement, which shall prevail in the event of any conflict or inconsistency in accordance with its terms.

(ii)           Each party acknowledges that, in entering into the Contract, it is not relying upon any representation, warranty, statement, promise, or other assurance relating to the subject matter of the Contract except as expressly set forth in the Contract or these Conditions.

(iii)          Except in the case of fraud or fraudulent misrepresentation, neither party shall have any claim or remedy arising out of any representation, warranty, statement, or other assurance that is not expressly set forth in these Conditions. Nothing in these Conditions shall exclude or limit either party’s liability for fraud or fraudulent misrepresentation.

(iv)         Each party agrees that its sole and exclusive remedies with respect to any breach of the Contract shall be those available for breach of contract, except as otherwise expressly provided in these Conditions or as required by applicable law.

21.      No Third-Party Beneficiaries

The Contract is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein shall be construed as conferring any rights on any third party.  The parties may amend, rescind, or terminate the Contract without the consent of any third party.

22.      Severance

If any provision of these Conditions (or part thereof) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that part shall, to the extent required, be deemed not to form part of these terms and the validity and enforceability of the other provisions shall not be affected.