General Terms and Conditions for the Sale and Purchase of Goods
1) Scope and validity
1.1. The agreement between Extravega New York LLC (hereinafter, “Extravega” or the “Seller”) and the buyer (hereinafter, the “Buyer” and, collectively with Extravega, the “Parties”) shall be deemed to be validly entered into only upon (i) the written and/or express acceptance (including, by way of e-mail or submission of a purchase order) by the Buyer of the offer (hereinafter, the “Offer”) made by Extravega, which also implies the acceptance of this general terms and conditions for the sale and purchase of goods (hereinafter, the “GTC” or the “Terms and Conditions”) and (ii) the subsequent sending to the Buyer by Extravega of a written order confirmation (hereinafter, the “Order Confirmation” and, together with the Offer and the GTC, the “Agreement”).
1.2. Without prejudice to the foregoing, this Terms and Conditions apply in respect of the Agreement entered into by ExtraVega and the Seller in relation to a purchase order or a work statement and shall be deemed in addition to the terms and conditions set forth in the Offer (if any). The terms and conditions set out in this GTC shall be binding between the Seller and the Buyer and supersede and replace any possible Buyer’s terms and conditions or previous agreement for the Goods (as defined below) in scope, provided that, however, the sale of any Goods is expressly conditioned on Buyer’s unconditional assent to this Terms and Conditions. Any amendment or modification of the Agreement shall not become binding unless agreed upon in writing in the Order Confirmation or in another legal instrument duly signed by the Parties which shall make explicit reference to the Offer and the Terms and Conditions, provided that, however, Extravega shall be entitled to unilaterally integrate or amend this Terms and Conditions upon prior written notice to the Buyer. Unless expressly stipulated under this Terms and Conditions or required under applicable law, the Seller expressly rejects any incorporation attempt by the Buyer of any other terms and conditions, whether from the Buyer or from what is common practice, and whether such attempt is made in relation to offering, correspondence, website, order acceptance, counterparty compliance inquiries, invoicing or other means.
2) Offer and terms of conclusion of the agreement
2.1. The Offer is prepared by Extravega on the basis of the requests and technical information (if any) provided by the Buyer and thereafter it shall transmit to the Buyer for its perusal the Offer alongside this General Terms and Conditions.
2.2. The Offer prepared by ExtraVega does not constitute a binding legal document and does not impose any commitment on the part of the Buyer until it is accepted by the Buyer (together with this Terms and Conditions) pursuant to Section 1.1 above.
2.3. Unless otherwise specified in the Offer, Extravega’s Offer shall expiry 30 (thirty) days from the date on which the Offer was sent to the Buyer.
2.4. The Agreement between the Buyer and ExtraVega is deemed to be entered into at Extravega’s registered offices, located at 39 West 38th Street, Suite 6E, NY10018, New York (NY), USA.
2.5. Unless otherwise specified in the Offer (e.g. in the event that the shipping and installation activities are also performed by ExtraVega), the Seller shall deliver the Goods to the Buyer EWX (Ex Works) shipping point (Incoterms 2010), which shall be Extravega’s headquarters. The Buyer shall bear and pay all delivery costs and charges. Partial deliveries are permitted and Seller may also deliver the Goods (as defined below) in advance of the delivery schedule set out in the Offer and/or in the Order Confirmation. Title and risk of loss shall pass to Buyer upon delivery in accordance with EXW terms – Incoterms 2010. No return of special, custom-made or made-to-order Goods will be permitted. Seller’s breach of the Agreement shall not affect the passing of the risk of loss to Buyer notwithstanding any provision of law to the contrary.
2.6. In the event that the Goods (as defined below) are realized and/or manufactured by Extravega on the basis of specific technical and commercial requests made by the Buyer (or by the Buyer’s external consultants or employees on his behalf), Extravega makes no warranty with respect to such Goods (including with respect to their duration) other than the warranty that such Goods correspond with the description included in the Offer and any specification set out therein and disclaims any and all warranties, whether express or implied, including in relation to their intended use, as well as the implied warranties of merchantability and fitness for a particular purpose. In addition, Extravega shall not be liable for any defect deriving, either directly or indirectly, from the inaccuracy of the indications and/or requests made or provided by the Seller. Seller’s personnel are not authorized to alter this disclaimer of warranty. It is expressly understood that any technical advice furnished by Seller with respect to the production or use of the Goods is given without charge, and Seller assumes no obligation or liability for the advice given or results obtained, all such advice being given or accepted at Buyer’s risk. Seller is not an engineering firm. Any issues, concerns, specifications or requirements for Buyer’s use of the Goods is beyond Seller’s knowledge and Buyer agrees no reliance is given to any suggestion or advice given by Seller. Buyer represents that it has consulted with or had an opportunity to consult with engineers and any such other expert or specialist and has satisfied itself that the specifications required for the Goods ordered are satisfactory for its use. Seller has not been provided with and has made no advice, recommendations or representation that the Goods specified are adequate for the purpose Buyer intends. Any portion of the Goods (as defined below) necessary for their manufacturing or realization and not specifically indicated by the Buyer will be realized and/or manufactured by Extravega or third parties (including Extravega’s affiliates or subsidiaries) according to commonly accepted industry practices and standards and will be deemed accepted by the Buyer together with its acceptance of the Offer. It remains understood that all Goods purchased by the Buyer and not manufactured and altered by ExtraVega are sold only with the warranties provided by the manufacturer of such Goods, if any (which Seller shall, to the extent possible, pass onto the Buyer) with the express exclusion of any other warranty on the part of the Seller, apart from Seller’s warranty that the Goods are furnished free and clear of any liens of third parties created by the Seller. Seller’s sole obligation to Buyer hereunder, and the sole and exclusive remedy of Buyer for breach of warranty shall be, at Seller’s discretion, to repair or replace the nonconforming Goods or issue Buyer credit for the purchase price of the nonconforming Goods, where within the warranty period: 1) Seller has received written notice by Buyer of any nonconformity, and 2) after Seller’s written authorization to do so Buyer has returned the nonconforming Goods to Seller at Buyer’s sole costs and expenses and 3) Seller has determined that the Goods is nonconforming and that such nonconformity is not a result of misuse, mishandling, neglect, accident, improper assembly, modifications, soldering, or other misuse by Buyer.
The foregoing limited warranties and remedies are exclusive and are made expressly in lieu of all other warranties express or implied, either in fact or by operation of law, statutory or otherwise, including warranties of merchantability, fitness for use and noninfringement. seller neither assumes nor authorizes any other person to assume for seller any other warranty or liability in connection with the sale, installation or use of products
3) Payment Terms
3.1. The payment terms related to the Goods (as defined below) are indicated in the Offer and/or in the Order Confirmation and/or in Extravega’s invoices sent by the Seller to the Buyer and under no circumstances the Buyer shall be entitled to make payments in manner other than via bank wire transfers or cash orders.
3.2. Buyer shall pay interest on all late payments (with respect to the payments’ deadlines set out in the Offer and/or in the Order Confirmation) at the lesser of the rate of 5% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees and court costs. In addition to all other remedies available under these Terms and Conditions or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to (i) suspend the delivery of any Goods (as defined below) if Buyer fails to pay any amounts when due under the relevant Offer and/or Order Confirmation and (ii) apply liquidated damages in the amount of 5% (fivepercent) of the overall value stated in the Offer and/or in the Order Confirmation in the event that Buyer fails to pay any amounts when due under the relevant Offer and/or Order Confirmation and such failure continues for more than 30 (thirty) days following written notice thereto.
3.3. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise. If Buyer disputes any invoice or portion thereof, it shall notify Seller in writing, upon penalty of forfeiture, within 10 (ten) days of receipt of said invoice, detail the reason for the dispute, provided that, however, Buyer shall pay all amounts (including disputed ones) in accordance with the payment terms set out in the relevant Offer and/or Order Confirmation. All charges not timely disputed in writing shall be deemed to be undisputed and shall be due and payable as set forth above.
4) Goods and products’ description and warranties
The Goods’ description indicated in the Offer shall be binding on the Parties and, consequently, the Buyer shall rely solely on such description prior to accepting the Offer pursuant to Section 1 above. Any difference or inconsistency possibly existing between the Goods provided and the Buyer’s sampling shall not have any legal effect and, in general, Extravega shall not be liable for any such inconsistency and the Buyer hereby agrees to waive and to not raise any claim inasmuch the sampling are agreed to have a purely indicative nature and purpose.
For the purposes of this Terms and Conditions, “Goods” means the goods, material and products (whether manufactured by Extravega or by third parties, including Extravega’s affiliates and subsidiaries) being purchased by the Buyer or to be supplied by Extravega as specified in the relevant Offer.
With respect to the Goods, the Seller warrants that they will be free from all liens and encumbrances and that they will not give rise to any infringement or misappropriation of any intellectual property rights of any third party.
5) Amendment to the Offer
5.1. Any possible amendment made by the Buyer to the Offer shall constitute and be qualified as a counteroffer whose validity is conditioned upon Extravega’s acceptance.
5.2. In the event that the Buyer, following the Offer and the GTC’s acceptance as well as the submission of the Order Confirmation, requires to amend and/or change any aspect (including quantity, quality, measures and/or technical characteristics) of the Goods provided and/or supplied by Extravega as indicated in the relevant Offer, no change to, or modification of, the items, specifications, terms, conditions and prices appearing on the Order shall be binding upon the Seller unless expressly agreed to in writing by the Seller and the Buyer, provided that in case of lack of an agreement on such changes the terms of the original Offer shall govern and bound the Parties.
5.3. Without prejudice to the provisions set out in Section 6.1 below, Buyer may cancel the Order Confirmation only with the prior written consent of the Seller, which Seller may withhold in its sole discretion. All cancelations will be subject to payment to Seller of reasonable and proper cancelation charges and/or liquidated damages, unless waived in writing by the Seller.
6) Buyer’s right of withdrawal
6.1. Upon the conclusion of the Agreement, Buyer shall be entitled to withdraw from such Agreement no later than 3 (three) calendar days from the date of the submission of the Order confirmation prior written notice to be given to the Seller.
6.2. In the event of any withdrawal from the Agreement by Buyer pursuant to Section 6.1 above, the Seller shall be entitled to apply towards the Buyer a withdrawal fee in the amount of 30% (thirtypercent) of the overall price stated in the Offer being such amount determined to be reasonable, fair and congruous in relation to the estimated costs incurred by Extravega with respect to the preparation and partial performance of the Agreement.
6.3. In the event of failure of the Buyer to exercise its right of withdrawal pursuant to Section 6.1 above, the Buyer shall be bound by the terms of the Offer and the Agreement, including the obligation to pay 100% (one hundred per cent) of the overall price indicated therein.
7) Prices and taxes
Unless otherwise specified in the Offer: (i) all prices included in the Offer are exclusive of VAT (if applicable) which shall be added and paid by the Buyer in accordance with the terms indicated in ExtraVega’s invoices, (ii) all contract prices for all Goods are exclusive of all sales, use and excise taxes and levies and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by the Buyer and (iii) any registration tax, stamp duty (including those applicable to bank drafts and bank receipts), custom duties and any other taxes and levies applied by any foreign country, as well as any other cost not explicitly included in the relevant Offer shall be borne by the Buyer and Buyer shall be responsible for all such charges, costs and taxes, provided that Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues or real or personal property. In the event that the Buyer may fall under the scope of application of any tax exemption, tax exclusion or tax relief, the Buyer, upon penalty of forfeiture, shall communicate such circumstances to Extravega prior to concluding the Agreement. The failure to do so will entail the loss of such benefit on the part of the Buyer.
8) Delivery terms
8.1. Unless otherwise specifically stated in an Offer (as confirmed by the Order Confirmation), any term or time period indicated therein shall be deemed not to have a binding nature but to merely serve an indicative/estimate purpose, provided that the Parties acknowledge that such circumstances have been duly taken into account for the determination of the terms and conditions (including the prices and payment terms) of the Goods.
8.2. Extravega shall be entitled to make partial deliveries of the Goods even in the absence of a specification included in the Offer and/or in the Order Confirmation.
9) Supply and Delivery
The Offer will indicate and specify the relative scope, including whether carriage and/or installation of the Goods (to be carried out pursuant to Section 14 below of this Terms and Conditions) to be provided are included or the Offer is limited to the mere supply of the Goods. In particular, in the event that the Offer refers to:
the supply of the Goods only: unless otherwise stated in the Offer, the Buyer will fully incur and bear the costs related to the transport and delivery of the Goods pursuant to the terms set out in Section 2.5 above, being understood that the Buyer will be liable in relation to any damage and/or loss of the Goods occurred during the transportation phase. The Buyer shall inspect and verify the quantity and the conditions/quality of the Goods upon delivery and, unless a specific claim is raised in relation to any alleged defect or error into the Goods’ supply within 3 (three) calendar days from the date of delivery, the Goods will be deemed fully accepted. Failure to act shall constitute an irrevocable acceptance of the Goods by the Buyer. All defect and non-conformities which are not so specified are waived;
the supply and carriage of the Goods: unless otherwise stated in the Offer, Extravega will be in charge of, and fully liable for, the expenses related to the transport and delivery of the Goods indicated in the Offer pursuant to the terms set out therein, provided that, upon delivery at the point agreed upon by the Parties, the Buyer shall inspect and verify the quantity and the conditions/quality of the Goods and, unless a specific claim is raised in relation to any alleged defect or error of the Goods’ supplied within 3 (three) calendar days from the date of delivery, the Goods will be deemed fully accepted. Failure to act shall constitute an irrevocable acceptance of the Goods by the Buyer. All defect and non-conformities which are not so specified are waived.
10) Delays in the collection of the Goods
10.1 In the event that Extravega’s Offer is limited to the mere supply of the Goods (without any assumption of obligations in relation to the carriage and/or installation of the Goods), the Seller shall inform the Buyer in writing in relation to the date starting from which the Goods are ready and available for collection at its warehouse (hereinafter, the “Ready for Collection Date”). The Buyer shall collect the Goods within 5 (five) workings days from the Ready for Collection Date (hereinafter, the “Goods’ Collection Term”). The Parties agree that the Goods’ Collection Term is of the essence and such term may be waived and/or amended only in writing either in the Offer or in another legally binding deed duly signed by Extravega.
10.2. Upon expiry of the Goods’ Collection Term without the Goods having been collected by the Buyer, Extravega will be entitled to apply, without any further notice, liquidated damages for the delay related to the Good’s collection in the amount of USD 5,00 (five) per square meter of occupancy, without prejudice, in any event, for Extravega’s right to seek further damages.
10.3. Following the expiry of a period of 30 (thirty) days from the end of the Goods’ Collection Term without the Goods having been collected by the Buyer, Extravega will be entitled to terminate the Agreement with immediate effect upon prior written notice, provided that, in any event, the Buyer’s obligation to pay the entire price stated in the Agreement shall remain valid and Extravega’s righ to seek further damages by reason of the early termination shall remain unprejudiced.
11) Non-Payments, Delayed payments and Default
11.1. In the event of failure and/or delay, even partially, in relation to the payment of the price stated in the Order Confirmation and/or in the Agreement and/or in the relevant invoices according to the terms and deadlines stated therein or if Buyer fails, with or without cause, to furnish Seller with instructions for, or refuses to accept deliveries of, any of the Goods sold under the Agreement, or is otherwise in default under or repudiates all or any part of the Agreement, Extravega shall be entitled, without any need to issue a formal notice, to (i) suspend the performance of the Agreement (including any activity related and/or associated thereto) until the receipt of the full payment of the arrear, (ii) defer shipment under the Agreement between Buyer and Seller until such default, breach or repudiation is removed, (iii) cancel any undelivered portions of the Goods in whole or in part, (iv) recover Goods in transit or delivered, retrieve delivered Goods, repossess all Goods which may be stored by Seller for Buyer’s account and otherwise enforce its remedies for Buyer’s default.
11.2. Without prejudice, and in addition, to the provisions set out in Section 3.2 and 11.1 above, in the event that the payment terms stated in the Offer envisage a deferred payment scheme or a series of instalment payments, the failure and/or the delay with respect to the payment of even of a single instalment or a single phase of the deferred payment scheme, Extravega will be entitled to accelerate the payment terms of the Offer and/or bill and declare due and payable such amounts upon prior written notice to the Buyer and the Buyer will be under the obligation to pay the full price of the Agreement in a single tranche within 10 (ten) calendar days from the receipt of the notice.
11.3. It remains understood that the ownership of the Goods indicated in each Offer will remain vested in Extravega and will pass to the Buyer only upon the payment of the full price by the Buyer.
11.4. In the event of failure and/or delay, even partially, in relation to the payment of the price stated in the Order Confirmation and/or in the Agreement and/or in the relevant invoices according to the terms and deadlines stated therein, the Seller will be entitled to terminate this Agreement with immediate effect upon prior written notice to the Buyer. Buyer shall remain liable for all damages suffered or incurred by Seller in any such circumstances, including, without limitation, for work in process and raw material. Seller shall be awarded incidental damages including, without limitation, reasonable profits and costs such as actual reasonable attorney fees in any proceeding to enforce its remedies in which it obtains relief for damages or injunctive relief. All rights granted to Seller in the Agreement and by law are cumulative, provided Seller shall be entitled to only a single full recovery.
12) Suspension of the performance and partial impossibility
12.1. Upon prior written notice to the Buyer, Seller reserves the right to either (i) suspend the performance of any obligations arising under the Agreement in any even for a period not exceeding 60 (sixty) calendar days until payment or adequate assurance of performance is received or (ii) cancel and/or terminate the Agreement or (iii) require full or partial payment or adequate assurance of performance from Buyer, in any of the foregoing without liability to Seller in the event of: (a) Buyer’s insolvency, (b) Buyer’s filing of a voluntary petition in bankruptcy or for insolvency or insolvency-like procedures, (c) the appointment of a receiver or trustee for Buyer, (iv) the execution by Buyer of an assignment for the benefit of creditors or (v) the occurrence of other events which are able to materially jeopardize, according to the Seller’s reasonable discretion, the Buyer’s ability to fulfill its obligations under this Agreement (including, without limitation, the initiation of enforcement proceedings, issuance of bill protests or the admission to a debt restructuring procedure).
12.2. In the event of a non-temporary shortage of certain materials and/or tools (not attributable to the Seller’s conduct) necessary for the manufacturing and/or supply of the Goods, the Buyer shall be entitled, if feasible depending on the technical characteristics of the Goods, to either (i) unilaterally reduce the scope of application of the Offer/Agreement (and the related prices accordingly) or (ii) partially terminate the Agreement, provided that, in such event, the Buyer shall not be entitled neither to seek any reimbursement nor to withdraw from or terminate the Agreement and it shall pay for the Goods already supplied and/or delivered in accordance with the contractual terms stated in the relevant Agreement.
13) Force Majeure
Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Terms and Conditions, for any failure or delay in fulfilling or performing any term of this Terms and Conditions and/or the Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, revolution, insurrection, epidemic (including the related orders, legislative acts or administrative decision of any nature made or issued by any competent authority), lockouts, strikes or other labor disputes (whether or not relating to either party’s workforce), or restraints or delays affecting carriers (including import or export restrictions) or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
14) Installation and defects
14.1. In the event that the Offer’s scope of application (as incorporated into the Agreement) also includes the installation of the Goods, the following activities and the related costs will be on Buyer’s account and fully borne by the latter unless otherwise specified in writing in the Offer: (i) assistance with respect to the installation phase, (ii) masonry, (iii) labourers, (iv) dumping and displacement of the Goods or other products in the construction site, (v) Goods’ elevating, (vi) distribution of installation compartments for every staircase, (vii) scaffolding, (viii) clearance and cleaning operations of the premises, (ix) custody and warehousing of Extravegas’ or Extravega’s personnel materials, tools and equipment in proper warehouses.
14.2. In case of application of the provisions set out in Section 14.1 above, the Parties hereby covenant that, upon completion of the installation of the Goods, Extravega will inform in writing the Buyer of the occurrence of such circumstance. Starting from such date, the Buyer will be entitled to issue a specific claim in case of alleged existence of defects or flaws within 5 (five) working days, upon penalty of forfeiture. The failure to issue a claim within such timeframe will be deemed as, and entail, a full and unconditional acceptance of the Goods.
14.3. In the event of issuance of such claim by the Buyer within the peremptory term set out in Section 14.2 above, Extravega, upon verification and validation of the aforementioned claim, will repair the defect within 30 (thirty) days from the date of acceptance of the claim.
15) Confidentiality and Privacy
15.1. All non-public, confidential or proprietary information of the Seller, including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Terms and Conditions and/or the Agreement is confidential, shall be used solely for the performance of this Terms and Conditions and/or the Agreement and may not be disclosed or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section 15. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. The confidentiality obligations set out in this Section 15.1 shall survive the termination of this Terms and Conditions and/or the Agreement for a period of 3 (three) years.
15.2. Furthermore, where personal data are shared by either Parties in relation to, and for the purposes of, the performance of this Terms and Conditions and, in general, the Agreement, the receiving Party shall comply with applicable data protection law.
16) Governing Law and Jurisdiction
16.1. All matters arising out of or relating to this Terms and Conditions and/or the Agreement are governed by and construed in accordance with the internal laws of the State of New York, without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. If the Agreement includes the sale of Goods and the Buyer is located outside of the United States of America, the United Nations Convention on Contracts for the International Sale of Goods shall apply.
16.2. Any legal suit, action or proceeding arising out of or relating to this Terms and Conditions and/or the Agreement shall be instituted and commenced in the federal courts of the United States of America or the courts of the State of New York in each case located in the City of New York.
17.1 These Terms and Conditions may only be amended or modified in a writing which specifically states that it amends these Terms and Conditions and is signed by an authorized representative of each Party. Notwithstanding the foregoing, Extravega is entitled to unilaterally amend this Terms and Conditions upon prior written notice to the Buyer.
17.2 No waiver by Seller of any of the provisions of this Terms and Conditions and/or the Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Contract operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
17.3 Buyer shall not assign any of its rights or delegate any of its obligations under this Terms and Conditions and/or the Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Terms and Conditions and/or the Agreement.
17.4 The relationship between the Parties is that of independent contractors. Nothing contained in this Terms and Conditions and/or in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
17.5. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth on the face of the Offer and/or the Order Confirmation or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Terms and Conditions, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
17.6 If any term or provision of this Terms and Conditions and/or the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Contract or invalidate or render unenforceable such term or provision in any other jurisdiction.
17.7 Provisions of these Terms and Conditions which by their nature should apply beyond their terms will remain in force after any termination or expiration of these Terms and Conditions including, but not limited to, the following provisions: Confidential Information, Governing Law and Jurisdiction and this “Survival” subsection.
17.8 These General Terms and Conditions, as supplemented and integrated by the Offer and the Order Confirmation, constitute the entire agreement between Buyer and Seller relating to the subject matter hereof, and supersede all prior and contemporaneous discussions, understandings, and agreements related to the subject matter hereof.
18) Limitation of liability
18.1 IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS CONTRACT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER OR, AS TO SERVICES, FOR THE AMOUNTS PAID TO SELLER FOR SERVICES PERFORMED HEREUNDER.
(c) This limitation of liability is a material basis for the Parties’ bargain and reflects the bargained-for allocation of risks between Seller and Buyer, without which Seller would not have agreed to provide the Products or services at the price charged.