Terms Of Service

These terms and conditions of sale (“Terms and Conditions”) are applicable to any order placed by any purchaser of products (herein referred to as “Buyer”) with and accepted by Brook and Whittle Limited (referred to herein as “Seller”):

1. AGREEMENT:

Seller, upon acceptance of an order placed by Buyer, will supply the products specified in the order to Buyer, pursuant to these Terms and Conditions. Seller’s acceptance of such order is expressly limited to the terms and conditions of any written agreement executed by Seller and Buyer and these Terms and Conditions. Terms additional to or different from these terms and conditions, including but not limited to terms contained in Buyer’s purchase order or Buyer’s standard terms and conditions of purchase, are deemed material and hereby rejected unless otherwise accepted by Seller in writing. Orders regularly placed, verbal or written, cannot be canceled except upon terms that will compensate Seller against all costs, expenses and losses incurred by Seller in reliance of the order. Order cancellations must be in writing.

2. QUOTATION:

A quotation not accepted within thirty (30) days is subject to review. Estimates are based upon the anticipated hours of work and cost of materials and supplies necessary to produce work in accordance with preliminary copy, style and specifications. The quoted price is exclusive of the following: (i) freight charges unless state otherwise in writing and; (ii) any sales, excise or other taxes of any nature whatsoever imposed by any government authority.

3. SHIPPING TERMS:

All products will be shipped F.O.B. Seller’s facility. Risk of loss and/or damage and title to the products will transfer to the Buyer on delivery to the carrier.

4. FREIGHT:

Unless a carrier has been specified on the Buyer’s purchase order, Seller will select a carrier for Buyer, with the express understanding that the carrier is not an agent of Seller. Orders may be shipped in one (1) or more installment(s), which the Buyer agrees to accept and be invoiced for, unless Buyer has provided Seller with prior, written notification that partial shipments will not be accepted. All products will be packed by Seller in accordance with standard commercial practices. Unless otherwise specified, the price quoted is for a single shipment, without storage, F.O.B. Seller’s facility. Charges related to delivery from Buyer to Seller, or from Buyer’s supplier to Seller, are not included in any quotations unless specified. Special priority pickup (including air freight) or delivery service will be provided at current rates upon Buyer’s request and at Buyer’s expense.

5. PAYMENT TERMS:

If credit worthiness has been approved in advance, Seller will grant payment terms of net thirty (30) days. It is then required that the full invoice be paid no later than thirty (30) days from the date of the invoice. All Seller invoices are issued upon shipment of the product.

6. OVER-RUNS AND UNDER-RUNS:

Over-runs and under-runs not to exceed 10% on quantities ordered, or any other percentage that Seller agrees to in writing, shall constitute acceptable delivery.Seller will bill for actual quantity delivered within this tolerance. If Buyer requires guaranteed minimum quantities, the percentage of over-run tolerance must be doubled, or additional costs may be charged.

7. SCHEDULING AND DELAYS:

Any time quoted by Seller for delivery is an estimate only. Seller is not liable for or in respect of any loss or damage arising from any delay in filling any order, failure to deliver or delay in delivery. However, if Seller delays shipment of all or any products for more than five (5) business days after the estimated delivery date (the “Delayed Shipment Date”), then Buyer may, as its sole remedy therefor, cancel the related purchase order with respect to the delayed products by giving Seller notice within two (2) business days prior to the Delayed Shipment Date. No delay in the shipment or delivery of any products relieves Buyer of its obligations under these Terms and Conditions or any written Agreement between Seller and Buyer, including without limitation accepting delivery of any remaining installment(s) of products.

8. LATE PAYMENTS; INVOICE DISPUTES:

Except for invoiced payments that Buyer has successfully disputed, Buyer shall pay interest on all late payments calculated daily and compounded monthly at the lesser of the rate of six percent (6%) or the highest rate permissible under applicable law. Buyer shall also reimburse Seller for all reasonable costs incurred by Seller in collecting any late payments, including attorney’s fees. Buyer shall notify Seller in writing of any dispute with any invoice (along with a reasonably detailed description of the dispute) within five (5) business days from Buyer’s receipt of such invoice. Buyer will be deemed to have accepted all invoices for which Seller does not receive timely notification of disputes and shall pay allundisputed amounts due under such invoices when due. The Parties shall seek to resolve any such disputes expeditiously and in good faith. Notwithstanding anything herein to the contrary, Buyer shall continue performing its obligations to Seller during any such dispute, including, without limitation, Buyer’s obligation to pay all due and undisputed invoice amounts.

9. WARRANTY:

Seller warrants that the goods and services sold hereunder will conform to the description in the applicable order form, will be free of defects in material and workmanship, and will be of Seller’s standard quality. This warranty is expressly in lieu of any other warranties of whatever nature, express or implied, arising from operation of law, trade usage or course of dealing, including any warranty of merchant ability or fitness for a particular purpose, other than those warranties implied by and incapable of exclusion, restriction or modification under applicable law. Buyer’s remedy for Seller’s breach of this warranty shall be limited to, at Seller’s option, (i) replacing the products ordered; or (ii)returning the purchase price paid by the Buyer. In no event shall Seller be liable for incidental, special or consequential damages, including profits (or profits lost). Buyer assumes all risk and liability for all loss, damage or injury to person or property resulting from the use of said products in manufacturing processes or in combination with other substances or otherwise. Seller shall not be liable for any claims relating to or arising from the end use of the products. Claims for defects, damages, or shortages must be made by the Buyer in writing within a period of thirty (30) days after delivery of all or any part of the order. Failure to make such claim within the stated period shall constitute irrevocable acceptance and an admission that they fully comply with terms, conditions, and specifications.

10. RETURNS AND CANCELLATIONS:

Seller’s products are made to order. Accordingly, Seller does not permit non-warranty sales returns. In addition, should the Buyer cancel or suspend an order, or reduce a quantity related to any order, then any work already in progress will be delivered and invoiced in accordance with the earlier instruction of the Buyer. Buyer shall make the payment required by such invoice in accordance with these terms and conditions.

11. BUYER MATERIALS:

Buyer represents and warrants that any matter it furnishes for performance of services by Seller (i). does not infringe any copyright or trademark or other Intellectual Property Rights of any third party; (ii) is not libelous or obscene; (iii) does not invade any persons right to privacy; and (iv) does not otherwise violate any laws or infringe the rights of any third party. Buyer warrants that it has the right to use and to have Seller use on behalf of Buyer any data provided to Seller or its Affiliates by Buyer including specifically Buyer names,identifying information, addresses and other contact information and related personal information.

12. INTELLECTUAL PROPERTY:

The Parties acknowledge and agree that the Intellectual Property of each Party shall remain the property of each Party. Each Party grants the other a limited, personal, non-exclusive, non-transferable, non-sublicensable and non-assignable license to display, host or otherwise use each Party’s Intellectual Property in connection with the performance of its obligations under this Agreement. No other right is given to Intellectual Property except in connection with the performance of obligations under these Terms and Conditions “Intellectual Property” is defined as all intellectual property rights of any kind including but not limited to copyrights, trademarks, service marks, designs, patents, trade secrets, trade, business, domain or company names, rights in Confidential Information, know-how and other proprietary rights (whether or not any of these are registered and including any application, or right to apply, for registration) and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of these, which may subsist anywhere in the world.

13. CONFIDENTIAL INFORMATION:

“Confidential Information” includes any information that parties receive or otherwise have access to incidental to or in connection with this order which is designated in writing as confidential, or which a reasonable person would understand to be confidential in the context in which such information is provided. Confidential Information shall be and remain the property of the disclosing party. Confidential Information shall not include information which (i) was in the possession of the receiving party at the time it was first disclosed by the disclosing party; (ii) was in the public domain at the time it was disclosed to the receiving party; (iii) enters the public domain through sources independent of the receiving party and through no breach of this provision by the receiving party; (iv) is made available by the disclosing party to a third party on an unrestricted, non-confidential basis; (v) was lawfully obtained by the receiving party from a third party not known by the receiving party to be under an obligation of confidentiality to the disclosing party; or (vi) was at any time developed by the receiving party independently of any disclosure by the disclosing party. Confidential Information may be used to the extent necessary to perform this Agreement and the Parties shall not disclose Confidential Information to any third party, except to its agents (who have been made aware of the confidentiality nature of the information) as necessary to perform the Parties’ obligations hereunder. In no event shall Buyer acquire any right, title or interest in and to any product or process information, including related know how, either existing or developed during the course of the business relationship with Seller and Buyer, and in no event shall Seller acquire and right, title, or interest in and to any materials or information provided to it by Buyer.

14. ASSIGNMENT:

Except as otherwise provided, the order and these terms and conditions shall be binding upon and inure to the benefit of the Parties’ successors and lawful assigns.

15. STATUS:

Buyer and Seller are separate entities. Nothing in the order or this Agreement shall be construed as creating an employer-employee or joint venture relationship.

16. COMPLIANCE WITH LAW:

Each party shall comply with all state, federal and local laws and regulations applicable to its performance hereunder.

17. RESOLUTION OF DISPUTES:

These Terms and Conditions shall be governed by and interpreted in accordance with the laws of the State of Delaware. without regard to its choice of laws principles. The parties consent to the jurisdiction and venue of the federal or state courts located in New Castle County, Delaware for the resolution of all disputes related hereto.

18. FORCE MAJEURE:

Neither party shall be liable for any failure to perform or delay in performance (except for any obligations to make payments to the other party) when and to the extent that any such failure arises from acts of God, war, civil insurrection or disruption, riots, government act or regulation, strikes, lockouts, labor disruption, pandemics, cyber or hostile network attacks, inability to obtain raw or finished materials, inability to secure transport, strikes, labor stoppages or slowdowns or any cause beyond such party’s commercially reasonable control.

19. LIMITATION OF LIABILITY:

IN NO EVENT SHALL EITHER PARTY BE LIABLE HEREUNDER FOR INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES EVEN IF ADVISED IN ADVANCE OF THE POSSIBILITY FOR SUCH DAMAGES AND SELLER’S TOTAL LIABILITY FOR DAMAGES UNDER THIS AGREEMENT AND THE ORDER SHALL BE LIMITED TO THE TOTAL FEES DUE HEREUNDER FOR THE INVOICE UPON WHICH A CLAIM IS BASED.