Please read this document carefully. It contains important information about your rights and responsibilities as well as limitations and exclusions.
This Standard Terms and Conditions of Sale Agreement, (the “Agreement”), exclusively governs and contains all of the terms and conditions which apply to all sales of products or services by OMNOVA Solutions Inc. or any of its subsidiaries (“Seller”) to any buyer (“Buyer”) of such products or services, except that this Agreement will not apply: (a) to Seller products or services which are sold pursuant to an authorized written agreement signed by Seller and Buyer which contains complete, and expressly excludes all other, terms and conditions of sale; or (b) if and to the extent that an authorized Seller document in respect of specified products or services has been provided to Buyer, containing terms regarding pricing, payment, shipment, warranty, disclaimers, exclusions, limitations, or other particular terms which are different than this Agreement, then such terms shall be deemed incorporated into and modify or exclude conflicting provisions of this Agreement and this Agreement and such terms together shall constitute the complete agreement of the parties.
Buyer agrees that any order for, acceptance of, or payment for Seller products or services shall conclusively be deemed to constitute Buyer's acceptance of this Agreement. Each shipment of products by Seller shall be deemed a separate and independent transaction and no sale of products or services by Seller shall obligate Seller to continue the sale of products or services to Buyer. Seller may modify this Agreement at anytime without notice provided that no such modification shall apply in respect of any order for products or services which has been accepted by Seller.
Buyer agrees that all Buyer requests for quotation, purchase orders, requests for shipment and all other Buyer terms, documents, or oral statements, and all prior performance, courses of dealing, and industry practices are excluded and shall not apply to the purchase of any Seller products or services or be used to waive, modify, vary, explain, or supplement all or any part of this Agreement and are hereby objected to and rejected by Seller.
Prices are subject to change at anytime, except with respect to orders which have been accepted by Seller and outstanding quoted prices which shall be valid for the longer of 10 days or the period specified with the quote. All prices are based on the quantity indicated and are F.O.B. Seller facility. Any notice or instruction from the Buyer requesting a change in the quantity specifications, scope of work, or other terms, will not be effective unless accepted in writing by Seller, including appropriate adjustments to price, specifications, delivery date and other terms. Seller reserves the right to correct errors in pricing due to inaccurate or incomplete information, clerical mistakes or other causes. Prices do not include any tax or other governmental charge or assessment on the sale, shipment, production, or use of any products or services. Buyer shall pay or reimburse Seller, on demand, for any and all taxes, or other governmental charges or assessments (other than taxes on or measured by Seller’s income) which are based upon or measured by the sale, transportation, delivery, or use of the products or services under this Agreement. All drawbacks of duties paid on items used in the manufacture of the products delivered hereunder shall accrue to Seller, and Buyer agrees to furnish Seller with all documents and cooperation necessary to obtain payment of such drawbacks.
Terms of Payment.
Subject to the approval of Seller’s credit department, terms of payment shall be net 30 days from the date of Seller's invoice. If at any time Seller deems Buyer's credit unsatisfactory or in any way impaired, Seller reserves the right, among other remedies, to terminate or suspend supplying products or services to Buyer and/or to require payment by cash in advance or payment secured by an irrevocable letter of credit. Buyer shall make all payments in U.S. currency only and in full without any discount, set off or other reductions.
Discounts, rebates and similar items are allowed only on the sales value of products for which payment has actually been received by Seller within the applicable discount or rebate period. Transportation costs and other "add-on" charges are excluded from discount or rebate calculation. Buyer will not be allowed any discount, rebate or similar items on cancelled orders or returned products or while any past due invoice or other amounts owed to Seller remains unpaid. Any unearned discounts, rebates or similar items given by Seller will be repaid by Buyer on demand.
Upon any default in payment, Buyer shall pay Seller interest on the unpaid balance at the lesser of 12% interest per annum or the maximum interest rate permitted by law and all costs of collection, including attorneys’ fees and expenses. Seller shall have, and Buyer hereby grants to Seller, a purchase money security interest in all products purchased by Buyer and any product proceeds to secure payment of the purchase price and all other amounts due Seller, and Seller shall retain all rights and remedies of a secured party under the Uniform Commercial Code (or under comparable laws outside the United States) including the right to repossess or require Buyer return products for which Seller does not have payment. Upon the request of Seller, Buyer shall take such action as Seller may deem necessary or appropriate to protect, maintain, record or otherwise assure to Seller the foregoing security interest.
Shipping; Delivery; Risk of Loss; Handling; Packaging.
Seller will use commercially reasonable efforts to make shipments on date(s) agreed by Seller. Shipments are made F.O.B. Seller’s facility. All products shall be deemed to be delivered and risk of loss shall pass to Buyer at such time as product is loaded onto a transportation carrier vehicle. Buyer is free to arrange and pay for its own shipping and handling F.O.B. Seller's facility. Buyer shall pay, and be exclusively liable for, all costs of shipping, handling, delivery, and any related insurance. All claims by Buyer for damage, loss or delays in transit shall be made by Buyer against the carrier, and Seller shall have no responsibility or obligations with respect to any such damage, loss, or delay. If Seller arranges transportation for Buyer, such arrangements shall be at Buyer's sole risk and expense, and transfer of title and risk of loss as specified above shall not be affected. Buyer shall pay any increase in transportation costs that are charged to Seller subsequent to its invoice to Buyer, including any fuel surcharges. From time to time, Seller may receive certain discounts and rebates from its freight carriers, which may be retained in whole or in part by Seller.
Seller reserves the right to ship prior to the scheduled shipping date and to ship to and invoice Buyer for a quantity of products, which may vary up to 10 percent (10%) over or under the quantity requested by Buyer (except that laminate products ordered in quantities of 2,500 yards or less may vary up to 20 percent (20%) over or under the quantity requested by Buyer), and Buyer shall accept delivery and pay for such revised quantity.
All products will be packed for shipment in accordance with Seller's standard practices. If Seller ships products in returnable containers or equipment, Buyer will promptly unload and return such containers and equipment in the same condition as delivered (normal wear and tear excepted) and within the tariff or contracted period free of demurrage or extra detention charges. All applicable demurrage or extra detention charges on such containers or equipment shall be for Buyer’s account including demurrage which occurs on any leased track or railroad property track and any switching charges. Buyer is responsible to inspect such containers and equipment for damage caused by the carrier and to promptly notify carrier and Seller of any damages found.
Acceptance; Cancellation; Return.
Acceptance of any shipment of products shall be presumed conclusively to have occurred fifteen days following delivery of products to Buyer, unless Buyer has accepted the products prior to that date. Buyer shall carefully inspect all deliveries of products upon receipt and report to Seller promptly any alleged error, shortage, defect or nonconformity of such products. Buyer waives any claim or right to revoke acceptance if Buyer fails to so inspect and report promptly. For all nonstandard goods any non-acceptance or cancellation of any order for products which is not consented to in writing by Seller shall entitle Seller to recover cancellation charges which includes the full price of the products or services as well as all other costs incurred by Seller related to development, design, manufacture, or sale of such products. Standard products regularly maintained in stock by Seller which can in the normal course of business be resold by Seller and which are in re-sellable condition may, with Seller’s written consent, be returned by Buyer for credit less a restocking charge. All returned products must be shipped to Seller, freight prepaid, at Buyer's risk of loss or damage.
Limited Warranty; Disclaimer.
Subject to the limitations and conditions contained in this Agreement, Seller warrants to Buyer for a period of 90 days after shipment that as of the date of shipment the products sold under this Agreement conformed to the technical specifications provided with the product, or if not so provided then the applicable published technical specifications for such products, if any. No warranty is given if there are no applicable published specifications.
Seller's prices are based upon this limited warranty and any different or greater warranty coverage which Buyer requests may require a price adjustment. This limited warranty extends only to Buyer and to no other person. This limited warranty does not cover and excludes, without limitation: (i) any failure, losses, damages, deficiencies, costs or expenses arising or relating to any misuse (including use with incompatible materials, abnormal conditions of use and use for purposes not intended for the product), accident, abuse or neglect; normal wear and tear; improper storage, handling, installation, maintenance or application of the product or other materials or items used with the product; and any similar acts, events or circumstances; (ii) products made with materials or parts supplied by Buyer or manufactured to Buyer’s specifications; (iii) products which have been altered, repaired, modified, or serviced by anyone other than Seller; (iv) products for which Buyer has not paid in full; (v) products which are sold as obsolete, off-spec, seconds or substandard, and (vi) any other claim or matter not within the scope of the limited warranty.
Seller's sole and exclusive liability and Buyer’s exclusive remedy for any breach of the limited warranty shall be (at Seller's option) to repair, replace or credit the purchase price to Buyer's account for any such products which fail to conform, subject to Buyer: (i) promptly notifying Seller in writing that such products failed to conform to the limited warranty with a detailed explanation of the alleged non-conformities, (ii) if directed by Seller, returning such products or a sample of such products to Seller at Buyer’s expense, and (iii) Seller's examination of such products establishing Seller's satisfaction that such alleged nonconformity existed as of the date of shipment and did not result from causes excluded from the limited warranty. If Seller elects to repair or replace such products, Seller shall have a reasonable time to do so and the repaired or replaced products shall be covered by the foregoing limited warranty for the remainder of the original limited warranty period. If Seller determines that any products(s) so returned are not covered by the limited warranty, Seller reserves the right to charge Buyer for all costs and expenses incurred by Seller in examining and handling such product(s). Failure by Buyer to give such written notice within the applicable limited warranty period shall be deemed an absolute and unconditional waiver by Buyer of any claim for breach of such limited warranty and shall fully and completely release and discharge Seller from any obligation or liability under the limited warranty.
THE FOREGOING LIMITED WARRANTY IS THE SOLE AND EXCLUSIVE WARRANTY GIVEN BY SELLER WITH RESPECT TO PRODUCTS SOLD OR SERVICES PROVIDED BY SELLER. SELLER MAKES NO AND DISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESSED OR IMPLIED, ARISING BY OPERATION OF LAW OR OTHERWISE INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY; ANY IMPLIED WARRANTY OF FITNESS FOR ANY PARTICULAR PURPOSE; ANY IMPLIED WARRANTY OF NON-INFRINGEMENT; ANY IMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE; ANY IMPLIED WARRANTY ARISING FROM ANY USE OF ANY PRODUCTS, OR SELLER'S AND/OR BUYER'S CONDUCT IN RELATION TO THE PRODUCTS WHETHER OR NOT THE PURPOSE OR USE OF THE PRODUCTS OR SERVICES HAS BEEN DISCLOSED TO SELLER AND WHETHER OR NOT THE PRODUCTS OR SERVICES ARE SPECIFICALLY DESIGNED AND/OR MANUFACTURED BY SELLER FOR BUYER’S USE OR PURPOSE.
Buyer acknowledges that, except as expressly provided in this Agreement, no representative of Seller is authorized to give or make any other representation or warranty or modify the above limited warranty in any way and that no Seller samples, tests, trials, data, catalogs, brochures or other publications and no statement, advice, recommendation, or instruction made or assistance given by Seller in connection with any products or services shall constitute a representation or warranty or a waiver or modification by Seller of this Agreement. Except for the above limited warranty, Buyer assumes all risk and liability from Buyer’s use of the products and acknowledges that it does not rely on, and waives any claim relating to, any such samples, tests, trials, data, catalogs, brochures, publications, statement, advice, recommendation, or instruction regarding the products given to Buyer by Seller.
Buyer acknowledges that all Seller products and services are sold with the understanding that it is the sole and exclusive responsibility of Buyer to determine the suitability of the products and services for Buyer's intended purposes. Buyer acknowledges that Seller has no control over Buyer’s use of the products and that Seller has made no warranties, guarantees, or assurances as to the results that may be obtained from the use of the products whether used singly or in combination with other items.
Buyer acknowledges and agrees that all Seller products are sold with the understanding that the disclaimers, limitations, and disclosures in Paragraph 5, 6 and 7 apply to subsequent purchasers or users of the products as well as any Buyer products which incorporate the products. Buyer shall obtain from any subsequent purchaser or user of the products appropriate terms which give Seller the protection and benefit of the disclaimers, disclosures, and limitations in Paragraph 5, 6, and 7.
Buyer represents and warrants that it has complied and agrees that it will comply with all applicable laws and regulations pertaining to the products including, without limitation, laws and regulations pertaining to transportation, storage, use, installation, resale, export, and import of the products. Buyer shall have sole responsibility to obtain any transportation, storage, use, export, import or other licenses or permits required under applicable laws and regulations.
Buyer acknowledges that it has received and is familiar with Seller's labeling and literature concerning the products (including but not limited to instructions, information, warnings and, if applicable, Material Safety Data Sheets) and agrees to familiarize itself with all information and precautions and, in a timely manner, forward such information to its employees, agents, contractors, customers and others who will purchase, handle, use, process, install, sell or be exposed to such products. Buyer agrees that it will not knowingly sell or transfer the products to persons using or proposing to use the products for purposes which are unsafe or prohibited by law.
Buyer hereby assumes complete responsibility for: (a) having qualified personnel with requisite skills, training and experience to sell, select, use, handle, install, and/or dispose of the products, (b) the suitability of the products for the use intended by Buyer or Buyer’s customer; (c) identifying, issuing and following all required instructions, labeling requirements and warnings concerning the sale, use, transportation, processing, installing, and/or disposal of products. Nothing contained in this Agreement shall be construed to void or diminish any warnings, notices, instructions, or other information provided by Seller or its representatives or agents pertaining to product characteristics or the safe or appropriate use, handling, storage, installation, transport or disposal of products.
In producing product sold hereunder, Seller shall comply with the Fair Labor Standard Act of 1938, as amended; Title VII of the Civil Rights Act of 1964, as amended; and the Equal Employment Act of 1972, as amended; provisions of Executive Order 11246, as amended, ADEA of 1967, as amended; Vocational Rehabilitation Act of 1970, Vietnam Era Veterans Act and Equal Pay Act, as amended. No government procurement regulations or contract clauses are binding on either party except to the extent required by law.
Limitations on Remedies.
IN NO EVENT WHATSOEVER SHALL SELLER OR ANY OF ITS EMPLOYEES, AGENTS OR SUPPLIERS HAVE ANY LIABILITY, WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, BREACH OF STATUTORY DUTY, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHERWISE, IN AN AMOUNT IN EXCESS OF THE AMOUNT ACTUALLY RECEIVED BY SELLER FROM BUYER AS PURCHASE PRICE FOR THE PRODUCTS OR SERVICES WHICH ARE THE SUBJECT OF A CLAIM. IN NO EVENT WHATSOEVER SHALL SELLER OR ANY OF ITS EMPLOYEES, AGENTS OR SUPPLIERS HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING BUT NOT LIMITED TO ANY DAMAGES ARISING FROM OR RELATING TO ANY INJURY TO PERSONS; LOSS OF VALUE OR USE (INCLUDING WITHOUT LIMITATION, DIMINUTION IN VALUE OR STIGMA DAMAGES); LOSS OF ANTICIPATED REVENUE OR PROFIT; COST OF CAPITAL; DAMAGE TO OR LOSS OF OTHER PROPERTY OR EQUIPMENT; CLAIMS MADE BY END-USERS; OR COST OF SUBSTITUTE SUPPLIES, FACILITIES OR SERVICES.
Any claim against Seller permitted under this Agreement and not brought within 6 months after the cause of action accrues shall be deemed waived by Buyer. Buyer agrees never to institute, file, initiate, prosecute or maintain any claim, demand, cause of action, action, suit, administrative or other proceeding (at law, in equity or otherwise), alleging any warranty or representation, or seeking any remedy, except for those warranties expressly provided in, or remedies permitted by, this Agreement.
Tooling; Materials Supplied by Buyer.
Unless otherwise agreed in writing, all costs for tooling and similar items (including design and development costs) which are incurred by Seller to make products for Buyer will be paid by Buyer in addition to the price of the products and are due and payable upon completion of the tooling or similar items. Unless otherwise agreed in writing, all such tools and similar items shall be and remain the exclusive property of Seller and Buyer shall not have any rights to ownership, possession or removal, nor to prevent their disposal or use by Seller for others.
Buyer represents and warrants that any specifications, designs, drawings, tooling, equipment, materials, or other items furnished by or on behalf of Buyer to Seller for use in connection with production of products by Seller can be used by Seller to produce products for Buyer without liability to any other person. Buyer shall bear all costs of delivering such specifications, designs, drawings, tooling, equipment, materials and other similar items to Seller's facility. Seller shall not be liable for loss, damage, maintenance, repair or renewal of any tooling or similar item or any equipment furnished by Buyer, regardless of cause except to the extent (but only to the extent) caused solely by Seller’s gross negligence.
Buyer will attempt to resolve any claim, dispute, or controversy (whether in contract, tort or otherwise) against Seller, arising out of or relating to this Agreement, or any Seller products or services (a “Dispute”) through negotiations with persons fully authorized to resolve the Dispute. If the parties are unable to resolve the Dispute through negotiation within a reasonable time after written notice from one party to the other that a Dispute exists, the Dispute will be settled by binding arbitration in accordance with the then current Center for Public Resources Rules for Non-Administered Arbitration. The arbitration hearing shall take place in Akron, Ohio, and will be governed by the United States Federal Arbitration Act to the exclusion of any inconsistent state laws. The arbitrators shall base their award strictly on the terms of this Agreement, shall have no authority to impose any remedy not permitted by this Agreement, and will follow the law and judicial precedents that a United States District Judge sitting in the Northern District of Ohio would apply to the Dispute. The arbitrators shall render their award in writing and will include the findings of fact and conclusion of law upon which their award is based. Judgment upon the arbitration award may be entered by any court of competent jurisdiction. The existence or results of any negotiation or arbitration will be treated as confidential. Notwithstanding the foregoing: (a) Seller will have the right to obtain from a court of competent jurisdiction a temporary restraining order, preliminary injunction or other equitable relief to preserve the status quo or prevent irreparable harm, although the merits of the underlying Dispute will be resolved in accordance with this paragraph 9, and (b) at the option of the Seller this paragraph shall not apply if Buyer has not paid in full for the products and services at issue or if a judicial action is commenced against Seller by a third party which arises from or relates to products or services provided by Seller to Buyer.
(a) Buyer shall hold in confidence any Seller proprietary and/or confidential commercial or technical information and shall protect any such information from any disclosure to others and shall not use such information other than in connection with the sale of products and services by Seller to Buyer. Upon request of Seller or termination of sales to Buyer, all such information in whatever form shall be returned to Seller immediately without retaining any copies thereof.
(b) If Buyer and Seller have entered into a written agreement, and no termination date is provided in such agreement, then Seller may terminate such agreement, with or without cause, upon reasonable advance written notice to Buyer, which in no event shall exceed thirty (30) days.
(c) Buyer acknowledges and agrees that Seller has acquired various patent rights, copyrights, trademarks, trade names, and other trade designations and intellectual property with respect to the products or services; that no right, title or interest in or to any such patents, copyrights, trademarks, trade names, and other trade designations and intellectual property shall pass to Buyer; and that all rights, benefits, and interest that arise from the use of any of such items shall belong and inure exclusively to the benefit of and Buyer hereby assigns all such rights, benefits and interests to, Seller.
(d) This Agreement shall survive any completion of the sale of or any cancellation or termination of any order of products or services. Failure by Seller to enforce any term or provision in this Agreement in any specific instance shall not constitute a waiver by Seller of that or any other term or provision, and Seller may enforce any such term or provision in any subsequent instance without limitation or penalty.
(e) Buyer agrees to indemnify, hold harmless and defend Seller (and its employees, subsidiaries, affiliates, successors, suppliers and agents) from and against any and all claims (whether based on contract, tort, strict liability or otherwise), judgments, liabilities, damages, losses, expenses and costs (including, but not limited to, court costs and attorneys' fees) incurred or suffered by Seller, which relate to or arise out of (i) Buyer's or Buyer’s customer use, handling, installation, sale, distribution or disposal of the products, or (ii) Buyer's breach of any representation, warranty or obligation hereunder. Buyer shall defend any such matter with counsel reasonably acceptable to Seller and shall not settle any such matter except with the consent of Seller which consent shall not be unnecessarily withheld. If Buyer fails to promptly and diligently investigate and defend or settle any claim, then Seller shall have the right, at Buyer’s cost, expense and risk, from that time forward to have sole control of the defense of the claim and the terms of any settlement or compromise.
(f) All notices, demands and other communications which may or are required to be given to or made by either party to the other in connection with this Agreement shall be in writing (including fax or other similar writing) and shall be deemed to have been duly given or made (i) if sent by certified mail, return receipt requested, five days after the posting thereof with first class postage attached, (ii) if sent by hand or overnight delivery, upon the delivery thereof, and (iii) if sent by fax, upon confirmation of receipt of such fax, in each case addressed to the business unit president and principal place of business of each party or to such other address as either party hereto may specify from time to time by notice to the other party.
(g) Neither this Agreement nor any of the rights, interests or obligations hereunder shall be transferred, assigned or delegated (by operation of law or otherwise) by Buyer without the prior written consent of Seller. Any attempted transfer or assignment of this Agreement or any of the rights, interests, duties, or obligations hereunder by Buyer in violation of the terms hereof shall be void and of no force or effect. Nothing herein, expressed or implied, is intended or shall be construed to confer upon or give to any person, firm, corporation or legal entity, other than Buyer and Seller and their permitted assigns, any rights, remedies or other benefits under or by reason of this Agreement. Seller may transfer or assign this Agreement (by operation of law or otherwise) and delegate any of Seller’s rights, interests or obligations hereunder without the consent of Buyer.
(h) Except as expressly provided in this Agreement, this Agreement constitutes the complete agreement of the Buyer and Seller with respect to the purchase and sale of Seller products and services and supercedes all prior written or oral agreements or understandings, prior performance, courses of dealing and industry practices and except as expressly provided in this Agreement, this Agreement may not be changed, amended, terminated, augmented, rescinded or discharged (other than by performance), in whole or in part, except by a writing executed by Buyer and Seller which expressly references this Agreement.
(i) Any term or provision of this Agreement that is invalid or unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction. If the final judgment of a court of competent jurisdiction or arbitrator declares that any term or provision hereof is invalid or unenforceable, the court or arbitrator making the determination of invalidity or unenforceability shall have the power to reduce the scope, duration, or area of the term or provision, to delete specific words or phrases, or to replace any invalid or unenforceable term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Agreement shall be enforceable as so modified after the expiration of the time within which the judgment may be appealed.
(j) The relationship between Buyer and Seller under this Agreement is that of buyer and seller, and Buyer shall have no right and shall not attempt to enter into contracts or commitments in the name of or on behalf of Seller or to bind Seller in any respect whatsoever. Nothing herein shall be construed to make Buyer the joint venturer, partner, agent, servant, franchisee or employee of Seller, and Buyer shall not have the power to bind or obligate Seller.
(k) THIS AGREEMENT SHALL BE CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF OHIO WITHOUT REGARD TO ITS CONFLICT OF LAWS PROVISIONS, AND EACH PARTY HERETO SUBMITS TO THE EXCLUSIVE JURISDICTION OF ANY STATE OR FEDERAL COURT SITTING IN OHIO IN ANY ACTION OR PROCEEDING PERMITTED UNDER THIS AGREEMENT RELATING TO OR ARISING OUT OF SELLER PRODUCTS OR SERVICES OR ANY OFFER OR SALE OF SELLER PRODUCTS OR SERVICES. IN THE EVENT THIS TRANSACTION INVOLVES AN INTERNATIONAL SALE, THE PARTIES EXPRESSLY AGREE TO EXCLUDE FROM ALL PURCHASES AND SALES THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
(l) Seller will not be responsible or liable for any failure or delay in performance caused by acts of God or nature; intervention or acts of government; war, threat of war or conditions similar to war; acts of terrorism; equipment failures; inclement weather conditions; shortages or delays of transportation; blockades; sanctions or embargoes; strikes; lockouts; unexpected plant downtime; shortages of products or raw materials; unexpected increases in demand or other causes or circumstances beyond the reasonable control of Seller. Time is not of the essence in Seller’s performance. Seller shall not be required to resolve a strike, lockout, or other labor problem in a manner which it does not, in Seller’s sole discretion, deem advisable. Upon the occurrence of any event or circumstance referenced above the time for performance by Seller shall be extended for a period equal to the time lost by reason of the controversy, and Seller shall have the right to allocate products or services, in its sole discretion. Buyer waives any and all Seller liability resulting from such shortages or such allocation decision. This paragraph shall be effective and apply even though the contingency invoked by Seller shall have been in effect on the date a particular order for products was accepted by Seller. If Seller is delayed by acts of Buyer or by contractors or suppliers of Buyer, Seller shall be entitled to an equitable price adjustment in addition to extension of the time of performance.
(m) The Paragraph headings of this Agreement are inserted for convenience only and shall not constitute a part of this Agreement in construing or interpreting any provision hereof.