By accessing and browsing any website owned and/or operated by JM Swank, LLC, (collectively the “Site”) you accept, without limitation or qualification, the Legal Policy set forth in the following Terms and Conditions, as well as any other law or regulation that applies to the Site, the Internet or the Worldwide Web.
Terms and Conditions
Content Ownership. The content or other materials on the Site including, but not limited to, all text, audio, images and other materials or elements (collectively the “Content”) are owned and copyrighted by JM Swank, its licensors or others with all rights reserved. You should assume that the Content is copyrighted and owned by JM Swank unless otherwise noted, and you may not use the Content, except as provided in this Legal Policy, without the prior written permission of JM Swank.All trademarks, trade names and logos and all related product names, design marks and slogans which appear on the Site are either the trademarks or service marks (registered or unregistered) of JM Swank or its licensors unless otherwise stated herein. JM Swank and its licensors expressly reserve all intellectual property rights in all Content on the Site. No license is granted to you in connection with such Content contained on the Site.In its sole discretion, JM Swank or its licensors may seek to enforce their intellectual property rights to the fullest extent of the law, including the possibility of seeking criminal prosecution.
User Conduct. JM Swank maintains the Site for your personal entertainment, information, education, and communication only and grants you permission to use the Site and to download Content, but only for noncommercial, personal use: provided, however, that you retain all copyright and other proprietary notices contained on the Content, that you do not distribute, modify, copy (except as set forth above), transmit, display, reuse, reproduce, publish, license, create derivative works from, transfer, sell or otherwise use Content without the prior written permission of JM Swank, and that you do not download or use any images of people or places (“Images”) displayed on the Site for any purpose. The download or use of any such Images by you, or anyone else authorized by you, is prohibited unless specifically permitted by the prior written authorization of JM Swank. Any unauthorized use of such Images may violate copyright laws, trademark laws, the laws of privacy and publicity, and related communications regulations and statutes.Additionally, you agree to not to engage in any of the following activities on the Site:
- Upload, post or transmit any informational content that is unlawful, threatening to another person or entity, infringing, defamatory, false, misleading, abusive, harassing, libelous, vulgar, obscene, pornographic, profane, invades the privacy of another, or is otherwise objectionable;
- Intentionally or unintentionally violate or encourage conduct that would be considered a violation of any local, state or federal law, either civil or criminal;
- Impersonate another user, person or entity, including any official or employee of JM Swank;
- Upload, post or transmit any informational content that is the copyrighted, patented or trademarked intellectual property of another, or the trade secret of or confidential information of another; and
- Use the Site to advertise or perform any commercial solicitation.
Links to Third-party Sites. The Site may contain links to other Internet sites not under the ownership or editorial control of JM Swank. Such links are provided for your convenience only and are not express or implied warranties, endorsements or approvals by JM Swank of any products, services, advice or information available from such sites. JM Swank does not warrant and specifically disclaims any and all responsibility or liability for your use of such sites, and you hereby release JM Swank and its subsidiaries, affiliates, officers, directors and agents from any and all such responsibility or liability for the same. If you establish a link to such sites, you do so at your own risk and without the permission of JM Swank. Check the Uniform Resources Locator (“URL”) address provided in your Worldwide Web browser to see if you are still in a JM Swank Site or have moved to another third-party site.
EXCLUSION OF LIABILITY. NEITHER JM SWANK NOR ANY OF ITS SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, NOR ANY OF THEIR RESPECTIVE AGENTS WILL BE LIABLE FOR ANY DAMAGES OR INJURY THAT ACCOMPANY OR RESULT FROM YOUR USE OF ANY JM SWANK SITE, AND YOUR USE OF ANY JM SWANK SITE IS AT YOUR OWN RISK. THIS INCLUDES (BUT IS NOT LIMITED TO) DAMAGES OR INJURY CAUSED BY ANY OF THE FOLLOWING: USE OF (OR INABILITY TO USE) THE SITE; USE OF (OR INABILITY TO USE) ANY SITE TO WHICH YOU HYPERLINK FROM OUR SITE; FAILURE OF PERFORMANCE; ERROR; OMISSION; INTERRUPTION; DEFECT; DELAY IN OPERATION OR TRANSMISSION; COMPUTER VIRUS; LINE FAILURE; INTRUSION, HACKING OR VIOLATION OF ANY JM SWANK SITE BY ANY THIRD PARTY; OR ANY ILLEGAL ACTIVITIES OF ANY THIRD PARTIES. JM SWANK DOES NOT WARRANT THE SECURITY OF ANY INFORMATION YOU TRANSMIT TO IT AT ANY JM SWANK SITE.JM SWANK IS NOT LIABLE FOR ANY DAMAGES, INCLUDING BUT NOT LIMITED TO THE FOLLOWING: DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, OR OTHER DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THE USE OF THE SITE OR THE CONTENT THEREIN WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FURTHERMORE, JM SWANK IS NOT LIABLE EVEN IF IT HAS BEEN NEGLIGENT OR IF OUR AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR BOTH.THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU TO THE EXTENT THAT APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTAL DAMAGES. JM SWANK TOTAL LIABILITY TO YOU FOR ALL LOSSES, DAMAGES, CAUSES OF ACTION OR OTHERWISE WILL NOT BE GREATER THAN THE AMOUNT THAT YOU PAID TO ACCESS THE SITE.
DISCLAIMER. THE CONTENT OF ANY JM SWANK SITE IS PROVIDED “AS IS” AND JM SWANK DISCLAIMS ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE FOLLOWING WARRANTIES:
- THE CONTENT IS OF ANY PARTICULAR LEVEL OF QUALITY OR FIT FOR A PARTICULAR PURPOSE;
- THE CONTENT IS ERROR-FREE AND ACCURATE;
- THE FUNCTIONAL ELEMENTS CONTAINED IN THE CONTENT WILL BE UNINTERRUPTED OR ERROR-FREE;
- DEFECTS WILL BE CORRECTED;
- THE SITE OR THE SERVERS THAT MAKE THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS;
- SUCCESSFUL RESULTS OR OUTCOMES WILL RESULT FROM PROPERLY FOLLOWING ANY INSTRUCTIONS, DIRECTIONS OR RECIPES CONTAINED IN THE CONTENT;
- THE CONTENT ON THIS SITE IS NON-INFRINGING; AND/OR
- THE SITE IS SECURE FROM TAMPERING, HACKING OR INTRUSION BY THIRD PARTIES.
IN ADDITION TO THE ABOVE YOU (AND NOT JM SWANK) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION OF ANY EQUIPMENT, HARDWARE, SOFTWARE OR OTHER ITEMS NECESSARY TO USE THE SITE OR VIEW THE CONTENT.
EXCEPTION: IN CERTAIN STATES, THE LAW MAY NOT ALLOW US TO DISCLAIM OR EXCLUDE WARRANTIES, SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
Export Control. Software and other materials from the Site may be subject to United States Export Control. The United States Export Control laws prohibit the export of certain technical data and software to certain territories. No software from the Site may be downloaded or exported in violation of any such laws. JM Swank does not authorize the exportation of any software or technical data from the Site to any jurisdiction prohibited by the United States Export laws.
Cautionary Language Regarding Forward Looking Information. The Site may contain statements, estimates or projections that constitute, “forward-looking statements” as defined under U.S. federal securities laws. Generally, the words “believe,” “expect,” “intend,” “estimate,” “anticipate,” “project,” “will” and similar expressions identify forward-looking statements, which generally are not historical in nature. Forward-looking statements are subject to certain risks and uncertainties that could cause actual results to differ materially from JM Swank historical experience and its present expectations or projections. These risks include, but are not limited to, JM Swanks’ ability to finance expansion or acquisition plans, share repurchase programs and general operating activities; changes in the applicable business environment, including actions of competitors and changes in consumer preferences; regulatory and legal changes; fluctuations in the cost and availability of raw materials; interest rate and currency fluctuations; changes in economic and political conditions; our ability to penetrate developing and emerging markets; the effectiveness of our advertising and marketing programs; litigation uncertainties; adverse weather conditions; and other risks discussed in JM Swanks’ filings with the Securities and Exchange Commission (the “SEC”), including its Annual Report on Form 10-K, which filings are available from the SEC. You should not place undue reliance on forward-looking statements, which speak only as of the date they are made. JM Swank undertakes no obligations to publicly update or revise any forward-looking statements.
Content Submitted by Users. Any communication or material you transmit to JM Swank at the Site by electronic mail or otherwise, including any data, questions, comments, suggestions, or the like is, and will be treated as, non-confidential and non-proprietary. Anything you transmit or post may be used by JM Swank or its subsidiaries and affiliates for any purpose, including, but not limited to, reproduction, disclosure, transmission, publication, broadcast and posting. Furthermore, JM Swank is free to use any ideas, concepts, know-how, or techniques contained in any communication you send to the Site for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products using such information. JM Swank will not compensate you in any way for any such information, nor will the information be returned to you.
Health-related Information. Information accessible on this Site is for information only and is not intended to be a substitute for professional medical advice. JM Swank does not endorse or warrant the validity of any such health-related statements contained on the Site or any such information contained in third-party sites referenced in the Site. Information is general in nature and may be helpful to some persons but not others, depending upon their personal medical needs. You should always consult with your physician prior to changing or undertaking a new diet or exercise program. Never disregard professional medical advice or delay in seeking it because of something you have read on the Site.
Site Security. Users are prohibited from violating or attempting to violate the security of the Site, including without limitation, (a) accessing data not intended for such user or logging onto a server or an account which the user is not authorized to access; (b) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; (c) attempting to interfere with service to any user, host or network, including, without limitation, via means of submitting a virus to the Site, overloading, flooding, spamming, mail bombing or crashing; (d) sending unsolicited email, including promotions and/or advertising of products or services; (e) forging any TCP/IP packet header or any part of the header information in any e-mail or newsgroup posting; (f) by using any device, software or routine to interfere or attempt to interfere with the proper working of the Site or any activity being conducted on the Site; or (g) by using or attempting to use any engine, software, tool, agent or other device or mechanism (including, without limitation, browsers, spiders, robots, avatars or intelligent agents) to navigate or search the Site other than the search engine and search agents available from JM Swank on this Site and other than generally available third party Web browsers (e.g., Netscape Navigator, Microsoft Explorer). Violations of system or network security may result in civil or criminal liability. JM Swank may investigate occurrences that potentially involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who are involved in such violations.
Choice of Law. This Legal Policy and your use of this Site is governed by the laws of the State of Delaware in the United States of America, without regard to its choice of law provisions.
General Terms. This Legal Policy constitutes the entire agreement between you and JM Swank and governs your use of any JM Swank Site. The failure of JM Swank to exercise or enforce any right or provision of this Legal Policy shall not constitute a waiver of any such right or provision. If any provision of this Legal Policy is found by a court of competent jurisdiction to be invalid, then such provision shall be eliminated from the Legal Policy and the surviving terms shall remain in full force and effect. Any claims arising under this Legal Policy must be brought within one (1) year after such claim or action or action arose or be forever barred.
January 1, 2018
JM SWANK, LLC
TERMS AND CONDITIONS OF SALES
These JM Swank, LLC General Terms and Conditions (these “Terms and Conditions”) apply to all orders (each, an “Order”) submitted by you or any of your affiliates (each, and collectively, “Buyer”) for goods (“Goods”).
SELLER HEREBY EXPRESSLY REJECTS ANY ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS PREVIOUSLY PROPOSED OR DEMANDED BY BUYER, WHETHER OR NOT CONTAINED IN ANY OF BUYER’S ORDERS OR OTHER BUSINESS FORMS, AND SUCH ADDITIONAL OR DIFFERENT TERMS OR CONDITIONS SHALL BE VOID AND OF NO EFFECT UPON SELLER. SELLER RESERVES THE RIGHT, IN ITS SOLE AND ABSOLUTE DISCRETION, TO MODIFY OR REPLACE THESE TERMS AND CONDITIONS AT ANY TIME, AND SUCH MODIFICATION OR REPLACEMENT SHALL APPLY TO ALL ORDERS FOR GOODS AFTER THE DATE OF SUCH MODIFICATION OR REPLACEMENT. IT IS BUYER’S RESPONSIBILITY TO REVIEW THESE TERMS AND CONDITIONS EACH TIME BUYER ORDERS GOODS FROM SELLER.
Price: Notwithstanding any term or condition to the contrary in an Order for Goods, the applicable prices for such Goods shall be the prices set forth in Seller’s written acknowledgment of the Order (each, “Seller’s Order Acknowledgement”). In the event that demurrage fees or other fees and costs (including any subsequent undercharge claims) are payable in connection with any shipment of Goods, Buyer agrees that it shall be responsible for reimbursing Seller for such fees and costs.
Buyer’s Financial Security: In the event that Seller determines at any time, in its sole and absolute discretion, that Buyer’s financial strength or creditworthiness is unsatisfactory, Seller shall have the right, at its sole election, to withhold further shipments of Goods, require immediate cash payments for past and future shipments and/or require other security satisfactory to Seller.
Payment Terms; No Right of Set-Off: Unless otherwise specified in Seller’s Order Acknowledgement or invoice with respect to an Order, payment terms applicable to such Order shall be NET 30 DAYS from the invoice date. If Buyer fails to pay any invoice in full on or by the due date set forth in such invoice, Seller shall have the right, in its sole and absolute discretion to: (a) charge Buyer interest on the unpaid amounts at an annual percentage rate of eighteen percent (18%), or the highest rate permitted by law; (b) declare the entire balance of Buyer’s account immediately due and payable; and/or (c) foreclose on any security interest that Seller may have in the Goods, in each case, subject to any right Buyer may have pursuant to applicable law to cure such nonpayment. Buyer agrees to reimburse Seller for all costs of collection incurred by Seller, including, without limitation, actual attorneys’ fees and costs. Under no circumstances shall Buyer have a right of set-off against payments owed to Seller or any of its affiliates.
Blanket Purchase Orders: If an Order for Goods acknowledged by Seller’s Order Acknowledgement provides that delivery of such Goods from Seller to Buyer is required or authorized in separate lots to be separately shipped to Buyer, Buyer may only reject such portion of such lot or shipment that is Nonconforming (as defined below) pursuant these Terms and Conditions, and Buyer may not reject any other portion, in each case, unless such right of rejection is expressly stated in Seller’s Order Acknowledgement with respect to such Goods.
Shipping; Delivery; FOB, Carrier: Unless an Order acknowledged by Seller’s Order Acknowledgement sets forth definitive shipping dates, Buyer shall furnish written shipping instructions to Seller in ample time for Seller to execute delivery of the Goods pursuant to the applicable Order acknowledged by Seller’s Order Acknowledgement and in a manner that will reduce the quantity of the Goods described in such Order proportionately over the term of such Order. Unless otherwise expressly agreed upon in writing by Seller, Goods will be shipped to Buyer by any common carrier that Seller deems satisfactory. Unless FOB, Buyer’s facility is specified in an Order acknowledged by Seller’s Order Acknowledgement, title and risk of loss to the Goods purchased under such Order shall pass from Seller to Buyer when the Goods are placed by Seller with the common carrier, and Buyer hereby assumes all responsibility for shortages, losses, delays or damage in transit thereafter. Delivery of Goods is not guaranteed to the destination, and claims for shortages or damages in transit must be made by Buyer to the carrier before the Goods are unloaded. Time of delivery is not of the essence. Acceptance by Buyer of any Goods shall constitute a waiver by Buyer of any claim for damages on account of any delay in delivery of such Goods.
Cancellation of Orders by Seller: Notwithstanding Seller’s Order Acknowledgement with respect to an Order, Seller reserves the right to cancel such Order as it applies to Goods remaining unshipped up to the following percentages of the total weight of the Goods ordered over the term of such Order: twenty-five percent (25%) through the first quarter of the term; fifty percent (50%) through the second quarter of the term; and seventy-five percent (75%) through the third quarter of the term. Notwithstanding Seller’s Order Acknowledgement with respect to an Order, Seller also reserves the right to limit the quantity of Goods shipped under such Order, on a quarterly basis, to twenty-five percent (25%) of the total weight of the Goods ordered.
Inspection and Acceptance; Returns and Re-stocking Fees: Buyer shall inspect all Goods immediately upon receipt of shipment of such Goods at its facility. WITH RESPECT TO EACH SHIPMENT OF GOODS TO BUYER, BUYER SHALL BE DEEMED TO HAVE ACCEPTED SUCH GOODS, UNLESS BUYER SENDS WRITTEN NOTICE OF REJECTION OF THE GOODS, SPECIFYING IN DETAIL THE GROUNDS FOR SUCH REJECTION, TO SELLER AT SELLER’S ADDRESS FOR NOTICES, AS SET FORTH IN THESE TERMS AND CONDITIONS, IN EACH CASE, WITHIN TEN (10) DAYS FROM THE DATE OF BUYER’S RECEIPT OF THE SHIPMENT. Goods, once accepted by Buyer, including, without limitation, any Non-conforming Goods (as defined below) may not be returned without the prior written approval of Seller, in its sole and absolute discretion, and, if Seller provides such written approval, Buyer agrees to pay Seller a restocking fee of twenty-five percent (25%) of the invoice price for the returned Goods.
Seller’s Limited Warranty: Seller warrants that, as of the date of shipment of Goods pursuant to an Order acknowledged by Seller’s Order Acknowledgement, Seller has not caused such Goods, solely while in Seller’s care, custody or control, to be adulterated, misbranded or otherwise not permissible to be introduced into interstate commerce under the Federal Food, Drug and Cosmetic Act, as amended, or any other applicable federal, state or municipal statutes, ordinances, rule or regulations (such Seller’s warranties are collectively, “Seller’s Limited Warranty”). SELLER MAKES NO OTHER WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT TO THE GOODS AND WITH RESPECT TO THE GOODS AND EXPRESSLY DISCLAIMS ALL SUCH OTHER WARRANTIES, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSES. The provisions of this paragraph shall survive the termination or expiration of Buyer’s business relationship with Seller.
Non-Conforming Goods; Sole Remedy; Process for Warranty Claims: In the event that any Goods shipped to Buyer fail to comply with Seller’s Limited Warranty (such Goods, “Non-conforming Goods”): (a) Buyer shall provide written notice of such Non-conforming Goods, specifying in detail the grounds for such non-conformance, to Seller at Seller’s address for notices, as set forth in these Terms and Conditions, in each case, within ten (10) days from the date of Buyer’s receipt of the shipment of the Non-conforming Goods; and (b) Buyer’s sole and exclusive remedy shall be to receive a credit from Seller to Buyer’s account in the amount of Seller’s invoice price for such Non-conforming Goods. In the event that Buyer fails to provide written notice of any Non-conforming Goods as required pursuant to clause (a) of this paragraph, including, without limitation, by the expiration of the ten (10)-day period specified in such clause (a), Buyer shall be deemed to have accepted, and waived and released any claim or right of recovery with respect to, such Non-conforming Goods. The provisions of this paragraph shall survive the termination or expiration of Buyer’s business relationship with Seller.
Notices to Seller: Any notices to Seller required or permitted under these Terms and Conditions shall be in writing and deemed properly given when sent via facsimile transmission and/or certified mail, return receipt requested, and addressed as follows: JM Swank, LLC, 395 Herky Street, North Liberty, Iowa, 52317, Attention: Quality Assurance. Any such notices shall be deemed given on the date received by Seller.
Confidential Information: Buyer agrees that is shall not disclose any proprietary or confidential information (which shall include, without limitation, pricing information) of Seller or any of its affiliates to any third party. The provisions of this paragraph shall survive the termination or expiration of Buyer’s business relationship with Seller.
Force Majeure: Seller shall not be liable for any failure or delay in performance where such failure or delay has been occasioned by fire, flood, earthquake, embargo, act of terrorism, war, accident, act of God, crop failure or shortage, strike or other labor disturbances, voluntary or involuntary compliance with any valid or invalid law or regulation of any governmental entity, lack of transportation facilities, or other cause beyond the control of Seller (each, a “Force Majeure Event”). In the event that any shipment of Goods pursuant to an Order acknowledged by Seller’s Order Acknowledgement, is delayed or made impossible, whether in whole or in part, due to a Force Majeure Event, Seller shall have the right, without penalty or liability, to cancel such Order or to reduce or pro-rate the quantity of Goods shipped to Buyer under such Order.
Buyer’s Default: In the event that Buyer (a) fails to make any payment to Seller when due; (b) fails to perform any of its obligations under these Terms and Conditions or any other agreement between Seller and Buyer; or (c) makes an assignment for the benefit of its creditors, a petition under any state or federal bankruptcy or insolvency law is filed by or against Buyer, or a receiver of Buyer’s property is appointed, Seller shall have the right, in addition to all other rights and remedies to which Seller may be entitled under applicable law or in equity, to immediately terminate any Order acknowledged by Seller’s Order Acknowledgment and/or withhold further deliveries of Goods to Buyer, in each case, upon written notice to Buyer.
Buyer’s Indemnification: Buyer acknowledges and agrees that Buyer shall be solely responsible for determining the adequacy of the Goods for Buyer’s proposed uses of such Goods. Buyer agrees to indemnify and hold Seller and its affiliates, and their respective officers, directors, managers, members, owners, partners, employees, agents, representatives, predecessors and successors harmless from and against any and all claims, lawsuits, demands, damages, liabilities, losses, costs and expenses, including, without limitation, actual attorneys’ fees and costs, arising out of or in connection with Buyer’s (a) sale, distribution, advertisement or other use of the Goods; (b) failure to comply with any applicable federal, state, foreign or local laws; or (c) breach of these Terms and Conditions. The provisions of this paragraph shall survive the termination or expiration of Buyer’s business relationship with Seller.
Limitations on Liability; No Consequential Damages. SELLER SHALL NOT BE LIABLE FOR ANY LOSS OR DAMAGE DIRECTLY OR INDIRECTLY ARISING FROM BUYER’S PURCHASE OR USE OF THE GOODS. SELLER SHALL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL OR INCIDENTAL, PUNITIVE OR SIMILAR DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS. SELLER’S TOTAL LIABILITY TO BUYER FOR DIRECT DAMAGES ARISING FROM ANY GOODS SHIPPED TO BUYER OR BUYER’S USE OF SUCH GOODS, SHALL BE LIMITED TO SELLER’S INVOICE PRICE FOR THE GOODS. THE PROVISIONS OF THIS PARAGRAPH SHALL SURVIVE THE TERMINATION OR EXPIRATION OF BUYER’S BUSINESS RELATIONSHIP WITH SELLER.
Arbitration; Governing Law; Venue; Waiver of Jury Trial: Any controversy or claim arising out of or relating to any Order, Seller’s Order Acknowledgment, invoice, these Terms and Conditions, or any other agreement between Seller and Buyer shall be settled by arbitration conducted in Iowa in accordance with the Iowa Arbitration Act, Code Ch. 679A, as may be amended from time to time. The rights of the parties hereunder shall be construed under and governed by the laws of the State of Iowa without regard to its conflicts of laws rules. Buyer and Seller acknowledge that although they intend arbitration to be mandatory, if the arbitration provisions contained in this paragraph are deemed unenforceable and litigation or other legal proceeding results, any such litigation or proceeding shall only be brought in either the state or federal courts located in Iowa, and the parties each hereby waive their right to object to such forum on the basis that it constitutes an inconvenient forum or that such courts lack jurisdiction. EACH OF BUYER AND SELLER HEREBY WAIVES ITS RIGHT TO TRIAL BY JURY IN ANY SUIT OR PROCEEDING ARISING UNDER ANY ORDER, SELLER’S ORDER ACKNOWLEDGEMENT, INVOICE, THESE TERMS AND CONDITIONS OR ANY OTHER AGREEMENT BETWEEN SELLER AND BUYER. Notwithstanding the foregoing, Seller shall have the right to seek injunctive relief, specific performance or similar relief from any state or federal court sitting in Iowa having jurisdiction thereof. The provisions of this paragraph shall survive the termination or expiration of Buyer’s business relationship with Seller.
Assignment: Buyer shall not assign these Terms and Conditions or any Order acknowledged by Seller’s Order Acknowledgement, or any other agreement between Seller and Buyer, whether in whole or in part, to any third party without the prior written consent of Seller, which Seller may withhold in its sole and absolute discretion.
Interpretation: Whenever possible, each provision of these Terms and Conditions shall be interpreted in such a manner as to be effective and valid under applicable law, but if any provision of these Terms and Conditions shall be prohibited by or invalid under applicable law, such provision shall be ineffective solely to the extent of such prohibition or invalidity, without invalidating the remainder of such provision or the remaining provisions of these Terms and Conditions.
Waiver: Any failure by Seller to exercise any right or remedy to which it may be entitled under any Order, Seller’s Order Acknowledgement, invoice, these Terms and Conditions or any other agreement between Seller and Buyer, shall not be construed as a waiver of such right or remedy unless such waiver is expressly stated in a writing signed by Seller, and any such waiver shall not be deemed to be a waiver of any other right or remedy.