Terms & Conditions | The Stone Project

Revision 01-03-2023

SUPPLIER: The Stone Project, LLC.

10 New Maple Ave. Suite 307

Pine Brook, NJ 07058

These terms and conditions together with notes and/or special notes set forth on the face of a governing proposal, invoice and/or sales order (collectively “Terms”) apply to all Customer orders fulfilled by The Stone Project LLC. (“Supplier”) and except as otherwise modified in writing by Supplier, shall govern the transaction between Supplier and the party to whom the proposal, invoice, or sales order any being a (“Proposal”) is addressed (“Customer”). Supplier’s acceptance of any order is limited to and expressly conditioned upon Customer’s acceptance of these Terms, notwithstanding any conflicting term or condition of Customer’s purchase order, acknowledgment, or any other document or communication to the contrary.

1- Supplier’s Proposal; Applicability of Terms. Except as otherwise set forth in Section 4(c) below, all prices specified are valid for sixty (60) days following the date of the Proposal. If a Proposal is accepted by Customer, the Terms will govern Supplier’s sale to Customer of the products listed in the Proposal and any other products Supplier may sell to Customer after the date of the Proposal in transactions that are not governed by separate terms and conditions of sale. All such products are collectively called the “Products.”

2- Customer’s Acceptance; Binding Contract. The Terms will become a binding contract between Supplier and Customer if, and on the date when, Customer accepts a Proposal and the Terms by signing and returning a copy of the Proposal to Supplier. Customer shall include with such acceptance (i) the location to which the Products are to be shipped and (ii) any up-front payments required by the Terms in accordance with Section 7. Supplier may, at any time prior to the date on which Customer so accepts a Proposal and the Terms, withdraw or amend these Terms.

3- Certain Defined Terms. The following terms have the following meanings:

“Bill and Hold Products” means Products purchased by Customer and held by Supplier because Customer, for any reason, has failed to: (i)provide shipment instructions to Supplier, (ii) pick up such Products as scheduled, or (iii) accept delivery of the Products.

“Law” means any law, statute, treaty, regulation, rule, order, judgment, writ, decree, injunction or directive of any national, federal, state, local or other governmental authority or any court, administrative agency, commission, department, subdivision or other instrumentality.

4- Entire Agreement; Customer’s Order Irrevocable; Price Increases; Backorders.

a. Entire Agreement; Other Terms Void. The Terms, together with the proposal, contain the entire agreement between Customer and Supplier related to the Products and supersede (i) any boiler plate terms referenced in a Customer purchase order or orders for the Products, and (ii) any previous communications, representations or agreements, whether verbal or written, related to the Products and (ii) any terms and provisions inconsistent with the Terms shall be null and void. The Terms shall not be amended, changed, supplemented, or waived except by means of a written instrument signed by the party to be bound. If there is a conflict between these Terms and the terms of any notes or special notes set forth on the Proposal, said notes and/or special notes shall govern.

b. Customer’s Order Irrevocable. All deposits on orders are non-refundable. Once Customer accepts a Proposal and the Terms, or places a subsequent order, Customer shall not have any right to cancel its order or reduce the quantity of Products ordered under any circumstances, even if Supplier increases its prices pursuant to Section 4(c).

c. Price Increases. In the event there are any changes in taxes, tariffs, or other similar charges that are enacted after the date of the Proposal (“Tariff Increase”), Supplier may unilaterally increase the price of Products in an amount reasonably necessary to cover any such Tariff Increase, including, without limitation, escalation, delay damages, costs to re-procure, costs to change suppliers, costs of manufactured equipment or goods, or other costs of any kind resulting from the Tariff Increase. Supplier shall not be liable for any additional costs or damages associated with any delay(s) resulting from a Tariff Increase. In the event of a Tariff Increase that occurs after Supplier’s shipment of Product for which Customer has already remitted payment, Supplier will invoice Customer for any increase in price resulting from the Tariff Increase and Customer shall pay each such invoiced amount net thirty (30) days following the date of the relevant invoice.

d. Backorders. Supplier’s lead-time for supplying Products shall be as specified in the Proposal. All estimated lead-times are from receipt of the signed Proposal and deposit. If the quantity of any Products listed in the Proposal or subsequently ordered by Customer exceeds Supplier’s available inventory of such Products, Supplier will fulfill Customer’s order to the extent of Supplier’s available inventory of such Products, backorder the remainder of such Products and fulfill the remainder of Customer’s order when a sufficient quantity of Products is available to Supplier. Supplier’s lead time for supplying backordered Products shall be extended for the period reasonably required by Supplier to obtain such Products, and supply such Products to Customer, and Supplier shall have no liability to Customer for such delay. Supplier may increase the price of backordered Products in accordance with Section 4©. Customer shall not have any right to revoke its order for backordered Products.

5- Shipping; Risk of Loss; Bill and Hold.

a. As specified in Section 2, Customer shall provide to Supplier the location to which Supplier shall ship the Products when acknowledging the Proposal. If Customer fails to so provide that location, time being of the essence, Supplier may, in its discretion, cancel Customer’s order for such Products or treat such Products as Bill and Hold Products subject to the provisions of Section 5(d). Customer may (i) change the location and method to which Supplier shall ship any Products and Customer is responsible for any change in cost of freight, (ii) subject to Section 5(c), specify that Customer will arrange for pickup of any Products or (iii) unless designated otherwise by Supplier, instruct Supplier to store any Products for a period not to exceed ninety (90) days (subject to the storage charges as provided in Section 5(b) prior to the scheduled date for shipment of such Products.

b. Unless designated otherwise by Supplier, all prices for Products are F.O.B. the facility of Supplier or facility of Supplier’s purveyors from which Products are shipped to Customer. Customer shall pay all taxes, customs and other duties and exchange, interest, banking, collection and other charges related to its purchases of Products, and, in the case of Bill and Hold Products, storage charges equal to the greater of Two Hundred Fifty Dollars ($250) per day or Ten Cents ($0.10) per square foot per day (collectively, “Related Charges”).

c. Supplier will ship the Products to the location specified by Customer pursuant to Section 2 or Section 6a. by a common carrier selected by Supplier or by other means of transport selected and provided by Supplier or Supplier’s purveyor, except to the extent that Supplier, in its discretion, permits Customer to pick up Products at Supplier’s location with a vehicle and driver acceptable to Supplier. Customer shall notify Supplier in writing pursuant to Section 6a if Customer desires to arrange for pickup and transportation of Products and shall specify in that written notice the vehicle and driver that Customer intends to use for such pick-up and transportation. Title to, and risk of loss of, any Products shipped to Customer will pass to Customer upon delivery of such Products to the carrier picking up the Products. Title to, and risk of loss of, any Products that Supplier permits to be picked up by or on behalf of Customer shall pass to Customer when such Products are picked up from Supplier’s facility or Supplier’s purveyor’s facility by or on behalf of Customer. Notwithstanding anything in this Section 6c to the contrary, Supplier shall have no obligation to inspect or determine the suitability of any vehicle or driver used to pick-up and transport the Products.

d. Where due to Customer’s conduct or omission, Supplier treats Products as Bill and Hold Products, then: (a) title and risk of loss of the Products shall immediately pass to Customer; (b) after thirty (30) days, Customer shall be deemed to have abandoned the Products; (c) Supplier may, at its option, store the Products subject to storage charges as provided in Section 5b as well as any other related costs and expenses (including, without limitation, any insurance costs) for which Customer shall be responsible; and (d) Supplier shall have the right to sell or dispose the abandoned property on thirty (30) days’ written notice to Customer, and in addition to all other remedies allowed by law, Supplier will retain all monies received and shall have the right to seek reimbursement from Customer of all expenses associated with storage, resale or disposal of the abandoned property. Where Supplier disposes of abandoned Products, Customer expressly indemnifies, holds harmless, waives, and releases Supplier from any and all claims, losses or damages resulting or relating to Supplier’s disposition of such abandoned Products.

e. Quantity of products shipped may vary due to packaging, full box count, or full slab measurements, and will be billed accordingly.

6- Payment

a. Customer shall pay to Supplier, together with Customer’s acceptance of the Proposal and prior to shipment of Products to Customer, the full amount of the price of the Products or the amount of any lesser up-front payment as set forth in by the Proposal. Supplier will invoice Customer for any balance of the purchase price for the Products and any Related Charges initially borne by Supplier at a time or times determined by Supplier in its discretion. Customer shall pay each such invoiced amount within the time specified in the Proposal or, if not specified in the Proposal, as specified in Supplier’s invoice or, if not specified in the Proposal or such invoice, net thirty (30) days following the date of the relevant invoice. Customer shall pay all amounts due to Supplier under the Terms in immediately available U.S. Dollars.

b. Notwithstanding any provision herein to the contrary, unless otherwise specified by Supplier in the Proposal, Customer shall pay all charges for air shipments at least five (5) business days before the scheduled date of shipment.

c. Customer shall not exercise, and hereby waives, any right of setoff, offset or deduction Customer has, or may in the future have, against any amounts due to Supplier under the Terms or otherwise.

d. If Customer fails to pay when due any amounts payable by Customer to Supplier, under the Terms or otherwise, in addition to any other rights Supplier may have under the Terms and applicable Law, (i) such overdue amounts shall be subject to a service charge at the rate of 1.5% per month or the maximum legal rate, whichever is lower, (ii) Supplier may cancel or delay any future shipments of Products to Customer without any liability to Customer and (iii) Supplier may accelerate payment of any other amounts owed by Customer to Supplier, under the Terms or otherwise, and such amounts shall become immediately due and payable. Customer will pay to Supplier any amounts charged to Supplier by its banks plus a service charge of Twenty Dollars ($20) for any Customer checks that are returned by Supplier’s bank or are otherwise invalid or dishonored.

e. If Supplier accepts partial payment of any amount due to Supplier under the Terms, Supplier hereby reserves, and shall be deemed to have reserved, its rights in connection with such acceptance in accordance with Section 1-308 and 9-207 of the New Jersey Uniform Commercial Code, regardless of whether Supplier notes such reservation of rights in the course of such acceptance.

f. Notwithstanding anything in the Proposal to the contrary, Supplier may at any time and in its discretion (I) extend credit to Customer, (ii) withhold or withdraw credit from Customer or (iii) require Customer to pay in cash all or any portion of the purchase price for any Products and any Related Charges (A) upon delivery of such Products or (B) at any earlier time. Notwithstanding any action or inaction by Supplier permitted by this Section 7f, Customer’s obligations under the Terms shall remain in effect, unchanged.

g. Any property of Customer in Supplier’s possession at any time including Bill and Hold Products and Products to be delivered to Customer shall be deemed held by Supplier’s security for Customer’s obligations to Supplier under this agreement or arising in any other manner and Supplier shall have the rights pertaining to such property of a secured party under Chapter 9 of the New Jersey Uniform Commercial Code.

7. Inspection of Products; Waiver of Objections

a. Customer shall inspect all Products delivered to Customer or picked up by or on behalf of Customer immediately upon such delivery or pickup for (i) any discrepancy in the quantity of such Products from that specified in the Proposal and (ii) any damage visible without removing the packaging of such Products (collectively, “Initial Discrepancies”). Customer shall list any such Initial Discrepancies in writing and have the delivery driver, or, if such Products are picked up by or on behalf of Customer, a representative of Supplier purveyor supplier, sign and date such list before leaving the delivery or pickup location. Prior to the close of business at the location of delivery or pickup on the day of delivery or pickup, Customer shall send such signed list of Initial Discrepancies to Supplier by email with confirmation of Customer shall, at Supplier’s request, permit Supplier to inspect any alleged Initial Discrepancies at the place where the Products are located during normal business hours.

b. Customer shall (I) inspect all Bill and Hold Products for Initial Discrepancies within Ten (10) days after the date on which Customer notifies Supplier that Supplier’s holding such Products and (ii) notify Supplier in writing of any Initial Discrepancies related to such Products before the close of business on that tenth (10th) day.

c. Customer shall (I) further inspect all Products within Five (5) days following the date on which such Products are delivered to, or picked up by or on behalf of, Customer for (y) any non-compliance of such Products with the specifications therefore and (z) any damage visible only after removing the packaging of such Products (collectively, “Follow-Up Discrepancies,” and together with Initial Discrepancies, “Discrepancies”), (ii) notify Supplier in writing on or before the close of business on that Fifth (5th) day of any such Follow-Up Discrepancies and (iii) at Supplier’s request, permit Supplier to inspect any alleged Follow-Up Discrepancies at the place where the Products are located during normal business hours.

d. To the extent that (I) the Products are installed or altered in any way or (ii) Customer fails to notify Supplier of, and permit Supplier to inspect, any Discrepancies pursuant to Section 8a, b or c, as applicable, time being of the essence, Customer shall be deemed to have waived its right to object to such Discrepancies in such Products. Unless otherwise specified in the Proposal, installation, including the appropriate sealing and use of maintenance materials, is the sole responsibility of the Customer. For setting specifications, we recommend that you contact an adhesive manufacturer such as Laticrete or Mapei.

8- Warranty; Disclaimer of Warranties; Supplier’s Cure; Limited Remedies

a. SUPPLIERWARRANTS TO CUSTOMER THAT THE PRODUCTS WILL BE THE QUANTITY AND TYPE OF PRODUCT PROVIDED IN THE PROPOSAL AND WILL BE FREE OF ANY SECURITY INTEREST OR OTHER LIEN. (EXCEPT AS OTHERWISE SET FRO THE HEREIN) SUPPLIER DOES NOT WARRANT AND HEREBY SPECIFICALLY DISCLAIMS THAT ITS PRODUCTS MEET ANY WRITTEN SPECIFICATIONS OF CUSTOMER (UNLESS AN AUTHORIZED OFFICER OF SUPPLIERHAS AGREED IN WRITING TO MEET SUCH CUSTOMER SPECIFICATIONS), AND SPECIFICALLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, RELATED TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

b. Product samples and the statements in Supplier’s brochures and advertising materials are for informational purposes only and are to be used only as a general guide for product specification. The color of natural stone products and the percentage, size, and shape of markings on such products will vary, which variation can be further exaggerated when materials are from multiple production runs or different manufacturers. The pattern and shade of man-made products will also vary. All Product sizes are nominal, not actual.

c. DO NOT ASSUME that tiles will line up, especially if they are from different manufacturers. To increase the likelihood of materials lining up: (i) choose rectified, mono-caliber tiles; AND (ii) if necessary, increase grout joint width or trim materials. If the project calls for different materials to line up, it is advisable that the installer do a dry lay prior to installation. Note that standards for tile manufacture allow for size variation from one tile to the next. Tile size ranges are within the acceptable ranges defined by National Stone Institute and (Tile Council of North America). These are the industry standards.

d. Natural and man-made products of the type sold by Supplier inevitably contain irregularities and defects. Products containing irregularities or defects (x) that are beyond the control of Supplier, (y) that Supplier cannot prevent by the exercise of reasonable care or (z) that are natural to or inherent in any particular Product, shall not be deemed to be defective, and Customer shall have no recourse to Supplier for such irregularities or defects in such Products.

e. CUSTOMER HEREBY ASSUMES FULL RESPONSIBILITY FOR SELECTING PRODUCTS THAT MEET CUSTOMER’S REQUIREMENTS AND INSPECTING SUCH PRODUCTS.

f. Supplier may cure any Discrepancy consisting of a shortage in quantity of any Products by delivering a conforming quantity of Products to Customer, by a common carrier selected by Supplier or other means of transport selected and provided by Supplier or Supplier’s purveyor, as soon as reasonably practicable after Customer notifies Supplier in writing of such shortage pursuant to Section 8a, b or c, as applicable, in which case Customer shall have no further recourse to Supplier.

g. Customer shall not have any right to return any Products to Supplier or exchange any Products with Supplier unless Discrepancies exist in such Products. Customer’s sole remedy for any Discrepancies other than a shortage in quantity of Products shall be to return the affected Products to Supplier at Customer’s expense. Customer shall not return any Products to Supplier without first obtaining written return authorization from a duly authorized representative of Supplier. Customer shall ship the returned Products to Supplier in accordance with any shipping instructions contained in such written return authorization and shall include a copy of such written return authorization with the returned Products. FOR CUT-TO-SIZE AND SPECIAL ORDERED PRODUCTS THE SUPPLIERWILL NOT ACCEPT ANY RETURN OF PRODUCT. For any and all products, installation equals acceptance.

h. Upon its receipt of returned Products, Supplier will determine the extent to which Discrepancies exist in such returned Products, including by performing any Product tests deemed required by Supplier, in its discretion. To the extent that Supplier determines that Discrepancies exist in any returned Products, Supplier, in its discretion, will either (I) refund the purchase price and any Related Charges paid to Supplier for such Products and, only if Customer complied with the shipping instructions in Supplier’s return authorization, reimburse Customer for the shipping charges incurred by Customer to return such Products to Supplier in accordance with such shipping instructions or (ii) deliver conforming Products to Customer at Supplier’s expense within Forty-five (45) days following Supplier’s receipt of such returned Products, or such longer period as Supplier reasonably requires to obtain and deliver conforming Products, and in each case Customer shall have no further recourse to Supplier. To the extent that Supplier determines that no Discrepancies exist in any returned Products, Customer (x) shall remain liable to Supplier for the purchase price of such Products and shall not be entitled to any refund or reimbursement for return shipping charges, (y) shall pay to Supplier, on demand, Supplier’s fully burdened cost of inspection and any testing and (z) shall arrange for such Products to be removed from Supplier’s facility at Customer’s sole expense within 20 days after Supplier notifies Customer of such determination or pay to Supplier, on demand, a minimum restocking fee of 25% of the purchase price for such Products (or greater at Supplier’s sole discretion).

i. In the event Customer and Supplier resolve a future claim, the resolution of that claim shall be deemed to include a full release of Supplier from any and all liability related to the underlying claim, including, but not limited to, any and all claims on behalf of Customer for lost profits, or any other claim of any nature which Customer might have. If the parties sign a separate release agreement in connection with the resolution of a claim, the terms and conditions of that written agreement shall control.

9- Limitation of Liability

a. NOTWITHSTANDING ANYTHING IN THE TERMS TO THE CONTRARY, SUPPLIERSHALL NOT UNDER ANY CIRCUMSTANCES BE LIABLE TO CUSTOMER FOR ANTICIPATED PROFITS, LOST PROFITS OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES WITH RESPECT TO ANY CLAIM ARISING OUT OF THE TERMS, OR OTHERWISE RELATED TO THE PRODUCTS, REGARDLESS OF WHETHER SUCH CLAIM SOUNDS IN TORT, CONTRACT, BREACH OF WARRANTY OR ANY OTHER THEORY. THE REMEDIES GRANTED TO CUSTOMER IN SECTION 9 ARE CUSTOMER’S SOLE AND EXCLUSIVE REMEDIES. CUSTOMER ACKNOWLEDGES THAT SUCH REMEDIES ALLOCATE RISKS BETWEEN CUSTOMER AND SUPPLIERFAIRLY AND IN A MANNER WHICH UNDER NO CIRCUMSTANCES WILL CAUSE SUCH REMEDIES TO FAIL OF THEIR ESSENTIAL PURPOSE. IN ANY EVENT, SUPPLIER’S MAXIMUM AGGREGATE LIABILITY TO CUSTOMER FOR ANY CLAIM SHALL BE LIMITED TO THE PURCHASE PRICE PAID OR REPLACEMENT OF THE PRODUCTS, AT SUPPLIER’S SOLE DISCRETION.

b. Force Majeure. Supplier shall not be liable for delays or defaults in delivery to the extent that an act of God, accident, strike, lockout, fire, vendor delay in delivery, transportation delays and any other cause beyond Supplier’s control that causes such delays or defaults. Supplier’s time for delivery under the Terms shall be extended by the total of all such delays, and if any such delay exceeds Forty-five (45) days, Supplier may cancel affected deliveries in whole or in part without liability.

c. Compliance with Laws. Customer shall comply with all Laws applicable to Customer’s possession, use, resale or disposal of, or other activities related to, the Products. Customer is responsible for full compliance with Customer’s Federal, state and local health and safety laws and regulations. Customer is also responsible for adequately providing all relevant information and warnings related to health and safety to Customer’s employees and others who may be exposed to hazardous Chemicals and/or dust resulting from the fabrication and/or installation of the materials provided by Supplier. If Customer is a stone broker or distributor, Customer is also responsible for sending the applicable Safety Data Sheets to the fabricators/installers with whom Customers works.

d. Insurance. Customer shall at all times maintain adequate insurance for Customer’s materials and activities.

e. Customer Indemnity. Customer shall defend and indemnify Supplier and its members, managers, directors, officers, employees, agents and affiliates (collectively, the “Supplier Indemnified Persons”) against, and hold the Supplier Indemnified Persons harmless from, any and all Losses arising from or related to (i) any claims by or on behalf of any third party that relate to any Products and arise from or relate to events occurring after delivery of such Products to Customer or (ii) any breach of the Proposal and the Terms by Customer.

“Losses” means any and all losses including lost profits and consequential and incidental losses, claims, shortages, damages, Liabilities, fees, expenses and costs (including reasonable fees of attorneys and other professionals), assessments, taxes and insurance premium increases, including such items incurred in investigating, defending or asserting any claim.

“Liability” means any liability or obligation, whether known or unknown, asserted or unasserted, absolute or contingent, accrued or unaccrued, liquidated or unliquidated and whether due or to become due, regardless of when asserted.

e. Governing Law. The Terms and all matters related to the Products shall be governed by the Laws of the State of New Jersey, without giving effect to any choice or conflict of law provision or rule (whether in the State of New Jersey or any other jurisdiction) that would cause the Laws of any jurisdiction other than the State of New Jersey to apply AND THE PARTIES EXPRESSLY WAIVE THE RIGHT TO A JURY TRIAL THEREWITH.

f. Mandatory Binding Arbitration

I. Any dispute or claim arising out of, or in connection with, any provision of the Terms or the Products shall be finally and exclusively settled by binding arbitration in New Jersey, Morris County, New Jersey, in accordance with the rules of the American Arbitration Association, by one arbitrator appointed in accordance with those rules. The arbitrator shall have no power to amend the Terms and shall apply the Laws of the State of New Jersey to the resolution of such dispute or claim in accordance with Section 15.

II. Judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. Each party hereby submits to the non-exclusive jurisdiction of the New Jersey state and United States federal courts having subject matter jurisdiction in New Jersey, Morris County, New Jersey in any action or proceeding for entry of judgment on the award rendered by the arbitrator, and each party hereby waives any objection (Y) to the laying of venue in any such court or (Z) based on the inconvenience of any such court as a forum in any such action or proceeding.

III. Customer and Supplier will accept service by prepaid letter delivered by reputable courier in any arbitration proceeding involving Customer and Supplier.

IV. Notwithstanding the other provisions of this Section 16, the parties may apply to any court of competent jurisdiction for preliminary or interim equitable relief, or to compel arbitration in accordance with this Section 16, without breach of this Section 16.

V. Supplier shall not be compelled to participate in any consolidated or joint arbitration among Customer and any client of Customer or any third party, and Customer hereby waives any right to seek such participation. However, in accordance with this Agreement, Supplier may compel Customer to assert any claims Customer may have against Supplier in a consolidated arbitration among Customer, Supplier, and Supplier’s purveyors or other third parties.

VI. Customer shall pay all costs and expenses (including attorneys’ fees, court costs and other collections costs) incurred by Supplier in collecting all amounts due pursuant to the governing proposal, invoice or sales order and/or enforcing in enforcing Supplier’s rights under this Agreement.

g. Severability. The Terms shall be enforced to the fullest extent permissible under applicable Laws and public policies applied in each jurisdiction in which enforcement is sought. Accordingly, if any provision of the Terms would be held in any jurisdiction to be invalid, prohibited or unenforceable for any reason, such provision, as to such jurisdiction, shall be ineffective, without invalidating the remaining provisions of the Terms or affecting the validity or enforceability of such provision in any other jurisdiction. Notwithstanding the foregoing, if such provision could be more narrowly drawn so as not to be invalid, prohibited or unenforceable in such jurisdiction, it shall, as to such jurisdiction, be so narrowly drawn, without invalidating the remaining provisions of the Terms or affecting the validity or enforceability of such provision in any other jurisdiction.

h. No Waiver. No failure by either party to enforce any of the provisions of the Terms or any rights with respect thereto, or to exercise any election provided in the Terms, shall in any way be considered a waiver of such provisions, rights or elections or in any way affect the validity of the Terms. No failure by a party to enforce any such provisions, rights or elections shall prejudice that party from later enforcing or exercising the same or any other provisions, rights or elections it may have under the Terms.

i. Interpretation, Construction. The use in the Terms of the term “including” or “include” means “including” or “include,” “without limitation.” The words “herein,” “hereof,” “hereunder,” “hereby,” “hereto,” “hereinafter” and other words of similar import refer to the Terms as a whole, as they may be from time to time amended, modified, supplemented or restated, and not to any particular section, subsection, paragraph, subparagraph or clause contained in the Terms. All references to sections, subsections, paragraphs, subparagraphs or clauses mean such provisions of the Terms, except as otherwise stated. The title of, and the section headings in, the Terms are for convenience of reference only and shall not govern or affect the interpretation of any of the provisions of the Terms. The use herein of the masculine, feminine or neutral forms shall also denote the other forms, in each case as the context may require.

j. Electronic Signatures. Electronic signatures on the Proposal, the Terms and other documents related to Supplier’s sale of the Products to Customer shall be valid and binding. The parties hereby acknowledge and agree that their respective signatures delivered by email in electronic format (e.g., ".pdf" or ".tiff") on the Proposal, the Terms and other documents related to Supplier’s sale of the Products verify that the subject document has been executed by an authorized representative of that party with the intent to sign it and that said electronic signatures have the same legal effect as handwritten signatures for the purposes of validity, enforceability and admissibility. Each party hereby waive any defenses attempting to invalidate the enforceability of the document to which its electronic signature is affixed.

***** END *****