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TOY FACTORY, LLC

GENERAL TERMS AND CONDITIONS FOR SALE OF GOODS

 

THIS AGREEMENT, CONSISTING OF THESE GENERAL TERMS AND CONDITIONS AND THE ATTENDANT PROPOSAL, QUOTATION, AND ORDER ACKNOWLEDGMENT IS BINDING UPON TOY FACTORY, LLC, HEREINAFTER “SELLER”, AND THE CUSTOMER, HEREINAFTER “BUYER”, AND IS THE ENTIRE AGREEMENT BETWEEN THE PARTIES AS TO GOODS.

 

1. Definitions:  “Goods” means all plush toys, whether licensed goods or otherwise, materials, supplies, documentation and other products Seller has agreed to supply to Buyer under this Agreement.

2. Acceptance:  The sale of Goods is expressly conditioned on Buyer’s acceptance of Seller’s Terms and Conditions as stated herein and on the typed portion of the attendant quotation or order acknowledgement.  Any additional or different terms proposed by Buyer in any documents are expressly objected to without need of further notice of objection and are of no effect and will not be binding upon Seller.  No pre-printed facility entry form shall modify these Terms and Conditions even if signed by Seller’s representative.  Any oral or written representation, warranty, course of dealing or trade usage not contained in these Terms and Conditions or the Agreement shall not be binding on either party.  Any order for Goods and/or Buyer’s receipt of Goods shipped under this Agreement shall constitute assent to these Terms and Conditions.  In the case of any conflict between the terms and/or conditions of Buyer’s order and these Terms and Conditions as expressed herein, these Terms and Conditions shall control.

3. Scope:  Buyer is solely responsible for receiving, storing, and maintaining all Goods.  Seller will provide Buyer with appropriate price quotations should Buyer request Seller to perform services other than sale and delivery of the Goods.  These Terms and Conditions apply only to the sale of Goods.  Any services contracted for between Buyer and Seller may be subject to additional or differing terms and conditions.

4. Prices:  Unless otherwise specified in writing, all quoted prices are firm for sixty (60) days from the date of offer as reflected in the quotation or proposal.  Seller reserves the right to change the price quotation for Goods to Seller’s price in effect for Goods at the time an order is released to final manufacture.  Prices for Goods not manufactured by Seller will be the price of such Goods at the time the Goods are shipped to Buyer.

5. Documentation:  Seller shall provide Buyer with the data/documentation which is specifically titled in the quotation or order acknowledgement.

6. Changes:  Buyer’s changes made after formation of this Agreement that affect the schedule or other requirements of Goods to be provided or that otherwise affect the scope of this Agreement shall be submitted in writing by Buyer and shall become binding only if approved in writing by Seller’s cognizant representative.  All charges and delays resulting from such changes shall be solely determined by Seller and shall be binding upon Buyer.

7. Termination, Suspension, and Breach:  Unless the Goods have been shipped, Buyer may cancel its order or terminate or suspend performance under this Agreement at Buyer’s convenience by providing written notice to Seller that Seller determines is adequate at its home offices subject to the following reasonable and conclusive charges which shall be solely determined by Seller:

Buyer will reimburse Seller for any direct or indirect cancellation charges incurred by Seller, including without limitation reasonable profits and all costs and expenses incurred by Seller to prepare the Goods for satisfaction of Buyer’s order.  Further, all orders cancelled will be subject to a restocking fee to be determined by Seller in its sole discretion, but in no event will such fee be less than twenty five percent (25%) of the purchase price of the Goods.  For custom orders, Seller reserves the right to charge Buyer a non cancellation fee equal to up to one hundred percent (100%) of the purchase price of the Goods, with the specific amount of such non cancellation fee to be determined in the sole discretion of Seller.  Any non cancellation fee will be communicated to Buyer and Seller will have the right to keep the non cancellation fee (in addition to any other remedies it may have pursuant to this Section) in the event Buyer cancels such custom order.  Further, at time of system staging 100% cancellation charge shall be applied to all canceled items.

Seller may suspend or discontinue delivery of any further Goods to Buyer if Buyer fails to make a payment to Seller for the Goods to be delivered or any Goods previously delivered.  Suspended or discontinued delivery will continue until Seller receives full payment therefor from Buyer or if Seller receives assurances adequate to Seller of performance from Buyer.

The occurrence of any of the following events shall constitute a material breach of this Agreement, entitling the non-breaching party to terminate this Agreement: (1) failure by either party to substantially perform any of the material obligations under this Agreement if the right to cure is given through written notice and it not carried out by breaching party within 30 days of receiving notice; or (2) either party becomes insolvent, files for bankruptcy, or otherwise admits its inability to pay its debts as they mature.

8.   Setoffs:   Seller will have the right to setoff and apply any funds received from Buyer for the benefit of any other overdue accounts or amounts owed to Seller by Buyer.

9. Tax, Costs, Insurance:  Quoted prices are exclusive of all city, state  federal, or foreign sales, use, excise or other taxes or charges payable with respect to the sale, purchase, delivery, storage, processing, use, consumption or transportation of any of the Goods.  All government charges upon the Goods tendered by this Agreement, including, but not limited to, use, occupation, VAT, income, export and import taxes, shall be paid by Buyer or, in lieu thereof, Buyer shall furnish Seller with a tax exemption certificate acceptable to the authority imposing the tax on Seller.  However, Buyer will reimburse Seller for any taxes incurred by it on the sale of Goods to the extent such tax exemption certificate proves to be insufficient to the applicable taxing authority for any reason.  Such reimbursement must occur within ten (10) days from the date Seller becomes aware of the invalidity of such tax exemption certificate.  Quoted prices exclude shipping or transportation costs or insurance costs.  Prices include standard packaging only.  Any special handling or packaging requests will result in additional charges to Buyer.

10. Credit:  The amount of credit offered by Seller to Buyer is contingent upon Seller’s opinion of Buyer’s capacity, ability, and willingness to promptly pay for Goods received under the terms of this Agreement.  Provided that, in Seller’s opinion, there is a material adverse change in Buyer’s financial condition and/or Buyer has not, within the agreed time, fully paid for Goods and/or services previously supplied under this and/or another Agreement(s) with Seller, Seller reserves the right to revoke Buyer’s credit and/or suspend performance on this and/or other orders for Goods and services without liability to Seller

11. Inspection:  Buyer may reject Goods it inspects only to the extent it discovers a defect materially impairing the value of the Goods.  Any claims regarding material defects must be made within thirty (30) days from the date of Buyer’s receipt of the Goods or Buyer will be deemed to have waived such claims.  Any lesser defects are governed by the terms of Seller’s applicable standard limited warranties.  To the extent any damage to the Goods has occurred during shipping, Buyer’s exclusive remedy will be to file a claim with the carrier.

12.  Shipment and Risk of Loss:  With the exception of resale products as defined in Clause 15 below, all sales are ExWorks (pursuant to Incoterms 2000) Seller’s Factory.  Shipping contracts made by Seller shall be to Buyer’s account.  All claims for loss or damage after risk of loss has passed to Buyer shall be filed by Buyer with the carrier.  Buyer shall be liable to Seller for the full price of the Goods, irrespective of loss or damage in transit.

A. Transportation Expenses:  The Buyer shall pay Transportation expenses.  Seller shall select the carrier.  Full insurable values shall be declared with the resultant insurance premiums being paid by Buyer.  Shipping and insurance charges shall be prepaid by Seller and added to the Buyer’s invoice at cost, unless otherwise specified by Buyer.

B. Schedules:  Dates quoted by Seller are estimated based upon Buyer’s specified requirements at time of order acceptance.  Delays in receipt of approvals and/or information, changes that result in delays, or requested deferment of schedules may cause additional expense to Seller.  Accordingly, Seller shall be entitled to an extension of time, and reimbursement of costs as defined in Clause 6 entitled “Changes”.  The change in price shall be evenly divided among any invoices remaining to be issued.

13. Payments:  Invoices will be issued by Seller as of the date of shipment.  Seller offers no discount periods and all payments are due 20 days after the invoice date, except as noted below or otherwise agreed upon in writing.  Payments due Seller will be paid to Seller at its principal office in San Antonio, Bexar County, Texas and must be in U.S. Dollars.  A monthly service charge of 1.5% may be charged on amounts owed by Buyer to Seller that have not been paid within 20 days of invoice date, subject to maximum amount permitted by law.  If any overdue amounts have been handed over to an attorney for their collection, Buyer will reimburse Seller for all costs of collection and associated attorneys’ fees (with such costs and fees being not less than thirty percent (30%) of the total overdue amount payable).

14. Security Agreement:  Buyer grants to Seller a security interest in all Goods being purchased by Buyer.  The security interest granted by Buyer is given to secure payment of the full purchase price and all other charges due and owing Seller by Buyer.  This security interest constitutes a “purchase money security interest” pursuant to the Uniform Commercial Code.  These Terms and Conditions constitute a contract and security agreement, and Buyer hereby authorizes and appoints Seller as its attorney-in-fact to sign on Buyer’s behalf appropriate financing statements and to file those financing statements with the appropriate agency to perfect the security interest herein granted.  Buyer shall pay all collection and foreclosure costs incurred by Seller in collecting under this provision including all attorneys’ fees incurred in such collection and foreclosure.

15. Resale Products:  Resale products are Goods (that are sold with Seller’s Goods) which are not manufactured by Seller and which are supplied as an accommodation to Buyer.  Seller’s responsibility for resale products is limited to reasonable commercial effort to arrange for procurement and shipping.  Unless otherwise agreed, all prices are F.C.A. resale product manufacturer’s factory.  Standard documentation shall be only as supplied by the resale product manufacturer.

SELLER MAKES NO WARRANTY FOR RESALE PRODUCTS, EITHER EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.  THE SOLE WARRANTY SHALL BE THAT OF THE RESALE PRODUCT MANUFACTURER.

Buyer agrees that Seller has no liability for resale products beyond the services within Seller’s direct control necessary to reasonably discharge the above stated responsibility and that Seller shall not be liable for delays caused by resale product manufacturer.  Buyer further agrees that Buyer’s SOLE AND EXCLUSIVE REMEDY for Seller’s breach of the stated responsibility shall be limited to the difference between the resale product manufacturer’s price to Seller and Seller’s price to Buyer for resale products in such breach.

16. Limited Warranty:  There is no warranty by Seller with respect to any Good’s (i) uninterrupted or error-free operation; (ii) actual performance, other than the Good’s capability to meet Seller’s specifications therefor; (iii) removal or installation from a worksite or process, or failure to provide a suitable installation environment; (iv) electronic components or associated accessories (including without limitation circuit boards and integrated circuits); (v) maintenance, adjustments, minor repairs and other inspection requirements, preventative or otherwise; or (vi) use under inappropriate conditions or not in accordance with operating instructions.  There is no warranty for labor expenses associated with field repairs or the repair or replacement of defective parts in the Goods.  There is no warranty for Goods determined to be, in Seller’s sole discretion, damaged as a result of (a) misuse, neglect or accident; (b) improper application, installation, storage or use; (c) improper or inadequate maintenance or calibration; (d) operation outside of the published environmental specification; (e) damage caused by disasters such as fire, flood, wind and lightning (f) improper site preparation or maintenance; (g) unauthorized repairs or replacements; (h) modifications negligently or otherwise improperly made or performed by persons other than Seller; (i) Buyer supplied software or supplies; (j) use in conjunction with or interfacing with unapproved distribution channels.  Seller warrants, to its original customer only, that Goods and their component parts are free from defects in material and workmanship for three (3) months from the date of shipment.  If a failure to conform to specifications or a defect in materials or workmanship is discovered within this period, Seller must promptly be notified in writing, which notification, in any event must be received no later than thirty (30) days from the date of shipment to Buyer.  Within a reasonable time after such notification, Seller will correct any failure to conform to specifications or any defect in materials or workmanship, or in lieu of such repair, and at its sole option, shall replace the Goods.  Such repair is at Seller’s expense.  All warranty service will be performed at service centers designated by Seller.  Prior to any obligation of Seller to perform any limited warranty service as set forth herein, Buyer must have paid all invoices to Seller in full, whether or not they are specifically related to the Goods at issue THE ABOVE ARE THE BUYER'S EXCLUSIVE REMEDIES FOR BREACH OF WARRANTY.

SELLER DISCLAIMS ANY AND ALL WARRANTIES OR REPRESENTATIONS WITH RESPECT TO THE GOODS PROVIDED HEREUNDER, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW, CUSTOM, ORAL OR WRITTEN STATEMENTS OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, FREEDOM OF INTERFERENCE WITH ENJOYMENT, QUALITY, ACCURACY, COMPLETENESS, FITNESS OF RESULTING WORK PRODUCT, OR THAT THE PRODUCTS OR SERVICES WILL GENERATE CERTAIN RESULTS, OR WILL FULFILL ANY OF BUYER’S PARTICULAR PURPOSES OR NEEDS.  SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE DESIGN, SALE, OR USE OF ITS PRODUCTS.  SELLER’S WARRANTIES WILL NOT BE ENLARGED BY, NOR WILL ANY OBLIGATION OR LIABILITY OF SELLER ARISE DUE TO SELLER PROVIDING TECHNICAL DIRECTION, FACILITIES OR SERVICE IN CONNECTION WITH ANY GOODS.

17. Force Majeure:  Seller shall not be liable for its failure to perform under this Agreement or for any direct or consequential damages caused, either directly or indirectly, as a result of:  (i) any act of God, including but not limited to natural disasters such as floods, earthquakes or tornadoes; (ii) failure of supplies or transportation, or governmental action; (iii) damages resulting from or under the conditions of labor disputes, strikes, riot, insurrection, civil commotion or war; (iv) damages or improper operation due to intermittent power line voltage, frequency, electrical spikes or surges, unusual shock or electrical damage; (v) accident, fire or water damage, corrosive atmosphere or causes other than ordinary use; or (vi) any other causes beyond Seller’s reasonable control.

19. Intellectual Property:  All title to and ownership of all proprietary rights including all patent rights, copyrights, trademarks, trade secrets and other intellectual property and any inventions shall remain the property of Seller upon completion or termination of the Agreement.  Buyer acknowledges that all Goods and the intellectual property associated with such Goods, including all designs, code, content, protocols, and documentation provided by Seller in conjunction with the Goods are Seller's property and are protected by U.S. and international copyright, trademarks, patents and other proprietary rights and laws relating to Intellectual Property Rights. "Intellectual Property Rights" means, collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including, without limitation, moral or similar rights.  Seller grants Buyer a non-exclusive, revocable, royalty-free, and non-transferable license to use any patent rights, copyrights, trademarks, trade secrets or other intellectual property and any inventions associated with the Goods, but only as required in order to make fair use of the Goods contracted for under this Agreement.  Buyer may not delete, alter, or remove any copyright, trademark, or other proprietary rights notice Seller has placed on the Goods. Buyer may not modify, reverse-engineer, decompile, disassemble, or otherwise discover the Goods, or attempt to do so for any reason.  Buyer does not have the right to and may not create derivative works of or improvements to the Goods.  All modifications or enhancements to the Goods remain the sole property of Seller.  All intellectual property rights not expressly granted by this Agreement are expressly reserved to Seller.

20.   Confidentiality:  Seller and Buyer will not, without the prior written consent of the other, either (a) disclose any confidential, proprietary or commercially sensitive information of the other that the party may be exposed to in the course of this relationship to anyone other than those officers, employees, agents, or subcontractors who need to know it in connection with performance of this Agreement and have agreed to be bound by these obligations of confidentiality or (b) use the other’s confidential information for any purpose other than performance of this Agreement.  Confidential information shall include, but is not limited to, all data, diagrams, reports, drawings, specifications, records, technical information, documents, or other commercially sensitive information concerning either party’s operations, processes or goods which are provided and/or acquired or handled by either party in connection with this Agreement unless that confidential information was already known to the receiving party, is available to persons in the public domain, is lawfully acquired by either party from a third party or other source, or is required by law or legal process to be disclosed provided that the receiving party immediately notify the other party of such disclosure prior to disclosure and cooperates with any attempts by the disclosing party to avoid such disclosure.  Proprietary information shall include, but not be limited to, any information, data or know-how in whatever form that is related to the operations of either party including pricing information, marketing information, terms and conditions of any proposed or actual agreement between the parties and their clients or customers, and either party’s policies and practices.

21. General Provisions:  (a) Neither party shall have the right to assign its rights or obligations under this Agreement except with the written consent of the other party, provided, however, that a successor in interest by merger, by operation of law, assignment, purchase, or otherwise of the entire business of either party, shall acquire all interest of such party hereunder.  Any prohibited assignment shall be null and void.  (b) There are no understandings, Agreements or representations, expressed or implied, not specified in this Agreement.  (c) No action, regardless of form arising out of transactions under this Agreement, may be brought by either party more than two (2) years after the cause of action has accrued.  (d) No representative of Seller has any authority to modify these Terms and Conditions unless the modification is contained in a written instrument signed by a duly authorized Vice President of Seller.  (e) This Agreement is formed and shall be construed under the laws of the State of Texas and any claims, lawsuits, or other actions under this Agreement shall be filed and pursued in Texas in the courts of Bexar County.  (f) All stenographic, typographical and clerical errors in quotations and specifications may be corrected at any time by Seller.  (g) Buyer fully indemnifies Seller for any claims, demands, complaints, or actions of third parties, Buyer or any of Buyer’s employees, independent contractors, or agents including but not limited to claims for personal injury or property damage, and any costs, expenses, or damages incurred as a result thereof which are based on the negligence, gross negligence, or intentional misconduct of any party.

22. Electronic Data Interchange.   Buyer and Seller may execute an order acknowledgement by transmitting and receiving the data contained in the order acknowledgement electronically rather than in paper form.  To provide the legal validity and enforceability of such order acknowledgement, Buyer and Seller further agree the data transmitted herein will be considered “in writing” and to have been “signed.”  Buyer and Seller agree not to contest the validity or enforceability of an order acknowledgement because of the electronic origination, transmission, storage or handling of such order acknowledgement.  Any computer printout of the data contained in the order acknowledgement will be considered an “original” when maintained in the ordinary course of business and will be admissible as between Buyer and Seller to the same extent and under the same conditions as other business records maintained in documentary form.  Buyer and Seller agree to properly use those security procedures which are reasonably sufficient to ensure that a transmission of the data contained in an order acknowledgement is authorized and to protect its business records and data from improper sources.

23.  Limitation of Liability:  IN NO CASE SHALL SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES BASED UPON ANY LEGAL THEORY WHETHER OR NOT SUCH DAMAGES ARE FORESEEABLE.  SUCH DAMAGES INCLUDE, BUT ARE NOT LIMITED TO, LOSS OF PROFITS, LOSS OF SAVINGS OR REVENUE, LOSS OF USE OF THE PRODUCT OR ANY ASSOCIATED EQUIPMENT, COST OF CAPITAL, COST OF ANY SUBSTITUTE GOODS, FACILITIES OR SERVICES, DOWNTIME, THE CLAIMS OF THIRD PARTIES INCLUDING CUSTOMERS, INJURY TO PROPERTY AND, UNLESS PRECLUDED UNDER APPLICABLE STATE LAW, BODILY AND PERSONAL INJURY.  Seller’s total liability for any and all losses and damages arising out of any and all causes whatsoever including, without limitation, defects in the Goods, services, or documentation supplied under this Agreement or breach of this agreement, shall in no event exceed the purchase price of the applicable item(s).

24. Dispute Resolution:  Any controversy, claim, demand, complaint, or action, hereinafter “Claim”, whether based on contract, tort, statute or other legal or equitable theory arising out of or related to this Agreement (including any amendments, annexations, and extensions) or the breach thereof shall be settled by consultation between the parties.  In the event of failure of such consultations within sixty (60) days (unless otherwise extended by mutual agreement of the parties) after receipt of the written notice of such Claim, then any such Claim shall be settled by arbitration in accordance with the section 151.001 et seq. of the Texas Civil Practices and Remedies Code.  The complaining party shall file a petition in the applicable district court, or other court of original jurisdiction, and that petition shall be abated pending the decision of the arbitrator.  The arbitration shall be conducted in compliance with the Texas Rules of Civil Procedure and the Texas Rules of Evidence.  The arbitration shall be held in San Antonio, Texas or such other location as may be convenient and agreed to in writing by the parties.  The arbitration shall determine the Claim of the parties and render a final award in accordance with the substantive law of the State of Texas.  The arbitrator shall set forth the reasons for the award in writing, and shall, at the request of either party, prepare findings of fact and conclusions of law to be provided to each party.  An award or ruling by the arbitrator shall be entered as a judgment of record in the abated judicial proceeding and shall be fully subject to appeal as if it was tried in the court the petition was initially filed in.

These terms may not limit any obligation of a party to defend, indemnify or hold harmless another party against a claim as provided above.  The parties hereby waive all rights to a trial by jury.  In addition, Buyer agrees the price it is agreeing to pay for the Goods reflects an analysis of the elimination of uncertainty regarding the jurisdiction and venue for any dispute.

25. Product Changes.  Seller, in its sole discretion, may modify the design and construction of its Goods and will have no obligation to retrofit previously sold Goods.

26. Buyer Data.  If any data supplied by Buyer, whether in the form of Buyer specifications or pursuant to any purchase order or other documentation, proves to be inaccurate, any warranties or other related obligations of Seller relying thereon will be void.

27. Export.  Buyer agrees to comply with all applicable export and re-export control laws and regulations, including the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions regulations maintained by the Treasury Department’s Office of Foreign Assets Control (“OFAC”) and the International Traffic in Arms Regulations (“ITAR”) maintained by the Department of State.  Buyer will be responsible for obtaining any license required under EAR, OFAC regulations or ITAR.  Seller  will identify in writing to Buyer those items, technology and software for which an export license is required and provide export classification and licensing information necessary for export documents, including but not limited to the appropriate Export Control Classification Number from the Commerce Control List, the applicability of license exceptions, license numbers and copies of licenses.  Buyer agrees to indemnify Seller for any fines, penalties, claims, losses, damages, costs (including legal costs), expenses and liabilities that may arise as a result of Buyer’s breach of this Section.

28. Disclaimer of UN Convention on International Sale of Goods.  In accordance with Article 6 of the United Nations Convention on Contracts for the Sale of Goods, Seller and Buyer specifically exclude and disclaim the application of such convention to this Agreement, including all terms, obligations, requirements, and duties that may be said to exist or arise from such convention.  In accordance with Article 3(2) of the Convention on the Limitation Period in the International Sale of Goods, Seller and Buyer exclude the application of such convention from this Agreement, including all terms, obligations, requirements and duties that may be said to exist or arise from such convention.

29. Governmental Procurement.  No governmental procurement regulations or contractual clauses will be binding upon either Seller or Buyer unless such regulations or clauses are mutually agreed to by Seller and Buyer.

30. Governmental Compliance.  Buyer acknowledges and certifies that to the extent required by law, rule or regulation, Buyer, its subcontractors, and their respective employees and agents, shall be required to comply with the following:  The Foreign Corrupt Practices Act, 15 U.S.C. §78dd-1 et seq.; The Immigration Reform and Control Act of 1986 and related regulations; the Equal Opportunity Clause prescribed in 41 CFR 60-1.4 (race, color, sex, national origin); the Affirmative Action Clause prescribed in 41 CFR 60-250-4 (veterans); the Affirmative Action Clause prescribed in 41 CFR 60 741.4 (handicapped workers); 43 CFR Chapter 1, Subpart 19.7 (Small Business and Small Disadvantaged Business Concerns); 48 CFR Chapter 1, Subpart 20.3 (Utilization of Labor Surplus Area Concerns); Executive Order 12138 (women-owned businesses); 41 CFR 60 1.40 (establishment of a written affirmative action program); 41 CFR 60 1.7 (filing the Employer Information report annually); 41 CFR 60 1.8 (non-segregated facilities); the Fair Labor Standards Act of 1938; and all relevant amendments of such laws, rules and regulations.

31. Survival.  Each of the representations, warranties, covenants and obligations set forth in these Terms and Conditions shall survive the sale of the Goods from Seller to Buyer for an indefinite period and each of Seller and Buyer will continue to be bound by these Terms and Conditions.

32. Nonwaiver:  Any failure by any party to strictly enforce the Terms and Conditions as stated in this Agreement or to exercise any rights acquired hereunder shall not constitute a waiver of such terms or rights and shall not affect the right of the party to enforce or exercise such terms or rights in the future.

33. Severability:  If any one or more of the provisions or subjects contained in the Agreement shall for any reason be held invalid, illegal, or unenforceable, it shall not affect the validity and enforceability of any other provisions or subjects.

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