|
<br />Page 6
<br />
<br />DAMAGES OR REMEDIES NOT AVAILABLE UNDER,
<br />OR IN EXCESS OF, THE EXPRESS TERMS OF THESE
<br />TERMS OR THE AGREEMENT. THE ARBITRATION
<br />AWARD WILL BE PRESENTED TO THE PARTIES IN
<br />WRITING, AND UPON THE REQUEST OF EITHER
<br />PARTY, WILL INCLUDE FINDINGS OF FACT AND
<br />CONCLUSIONS OF LAW. THE AWARD MAY BE
<br />CONFIRMED AND ENFORCED IN ANY COURT OF
<br />COMPETENT JURISDICTION. BUYER AND SUPPLIER
<br />HEREBY CONSENT AND SUBMIT TO THE
<br />AFOREMENTIONED ARBITRATION AND THE
<br />JURISDICTION OF ANY LOCAL, STATE OR FEDERAL
<br />COURT LOCATED WITHIN HOUSTON, TEXAS, AS
<br />JURISDICTION FOR REVIEW OR CHALLENGE OF
<br />THE ARBITRATION RESULTS AND WAIVE ANY
<br />RIGHT SUCH PARTY MAY HAVE TO TRANSFER
<br />THE VENUE TO ANY OTHER JURISDICTION. THE
<br />PARTIES EXPRESSLY RESERVE ALL RIGHTS TO
<br />PURSUE INJUNCTIVE RELIEF IN ANY COURT
<br />LOCATED IN HOUSTON, TEXAS. THE PARTIES
<br />ACKNOWLEDGE AND AGREE THAT THIS
<br />AGREEMENT INCLUDES ACTIVITIES IN
<br />INTERSTATE COMMERCE (AND, ACCORDINGLY,
<br />THE FEDERAL ARBITRATION ACT OF THE UNITED
<br />STATES SHALL CONTROL AND APPLY TO ALL
<br />ARBITRATIONS CONDUCTED HEREUNDER,
<br />NOTWITHSTANDING ANY STATE LAW PROVISIONS
<br />TO THE CONTRARY).
<br />26. NOTICES. All notices, request, consents, claims,
<br />demands, waivers and other communications hereunder
<br />(each, a “Notice”) shall be in writing and addressed to the
<br />parties at the addresses set forth on the face of the
<br />Quotation or to such other address that may be designated
<br />by the receiving party in writing. All Notices shall be
<br />delivered by personal delivery, nationally recognized
<br />overnight courier (with all fees pre-paid), facsimile (with
<br />confirmation of transmission), email or certified or registered
<br />mail (in each case, return receipt requested, postage prepaid).
<br />Except as otherwise provided in the Agreement, a Notice is
<br />effective only (i) upon receipt of the receiving party (and
<br />confirmation of such receipt in respect of facsimile or email
<br />transmissions), and (ii) if the party giving the Notice has
<br />complied with the requirements of this Section.
<br />27. SEVERABILITY. If any of these Terms or other
<br />terms or provision of the Agreement are determined to be
<br />invalid, illegal or unenforceable in any jurisdiction, such
<br />invalidity, illegality or unenforceability shall not affect any
<br />other term or provision or invalidate or render unenforceable
<br />such term or provision in any other jurisdiction.
<br />28. CLERICAL ERRORS. Seller reserves the right to
<br />correct all stenographic or clerical errors or omissions in any
<br />documents (whether Quotations, invoices or other documents).
<br />29. SURVIVAL. Any provision of the Agreement that
<br />by its nature should apply after any termination or expiration
<br />of the Agreement, including (but not limited to) the following
<br />provisions: Compliance with Laws, Confidentiality,
<br />Governing Law / Jurisdiction and Survival, shall survive any
<br />such termination or expiration.
<br />30. PUBLISHED DATA. All published dimensions,
<br />weights, temperatures, pressure ratings and other Product
<br />data are approximate.
<br />CANCELLATION, CHANGE ORDERS AND
<br />RETURNED GOODS POLICY ADDENDUM
<br />As guidance and further clarification on the applicable
<br />terms and conditions relating to change orders or
<br />cancellations, Bray will accept changes and cancellations
<br />generally subject to Buyer agreement to pay all costs and
<br />expenses incurred by Bray for the order, including,
<br />without limitation, costs and expenses relating to
<br />engineering, financing costs (including those for any
<br />performance or warranty obligations), restocking, order
<br />administration, supplies, freight, duties and inspection.
<br />For standard product, Bray will generally apply a twenty-
<br />five percent (25%) cancellation fee unless such amount is
<br />not sufficient to recapture Bray’s fees and expenses (e.g.,
<br />financing costs, freight, duties, etc.) relating to the order.
<br />For non standard products (i.e., product with unique
<br />feature(s) or specifically designed for the applicable
<br />purchase), the cancellation charge will usually be the
<br />purchase price of the product(s). For any such agreed
<br />cancellation or change, Bray will calculate the specific
<br />amount of such costs and expenses incurred to the date of
<br />such cancellation or change and advise Buyer of the
<br />applicable amount owed. For any standard product
<br />returns, exceptional costs such as freight, duties and
<br />financing costs will be added to any standard cancellation
<br />fee. For any non standard product returns, the
<br />cancellation charge will additionally include amounts
<br />incurred in connection with the return.
<br />Specific terms and conditions relating to the foregoing
<br />and the events and circumstances relating to the novel
<br />coronavirus COVID-19: Bray will agree to delay the
<br />delivery of orders beyond a previously agreed delivery
<br />date as long as the Buyer pays an additional storage fee of
<br />five percent (5%) relating to such applicable order(s);
<br />provided, however, that the applicable order(s) must
<br />nevertheless be shipped and invoiced by no later than
<br />ninety (90) days after the previously agreed delivery date
<br />or the applicable order(s) will be deemed canceled and the
<br />cancellation charge (as outlined above) therefor shall be
<br />charged.
<br />
|