Terms and Conditions
FELLER LLC’S GENERAL TERMS AND CONDITIONS
Whether initiated by telephone or other oral communications, Buyer’s letter, e-mail or other electronic transmission making offer to purchase, whether captioned or identified as an offer, offer to purchase, purchase order, including a blanket (volume) order or master order or otherwise, proposing to purchase goods (herein the “Offer to Purchase”) from Feller LLC, a North Carolina limited liability company (“Seller”), or by Seller’s forms of quote, proposal, sales order, or otherwise communicated by Seller, and notwithstanding any conflicting or contrary, additional, or different provisions of Buyer’s Offer to Purchase, or of any notice of acceptance, confirmation of purchase or of sale issued by Buyer, or other form of response or communication to Seller by Buyer, however captioned or described, received by Seller after the first communication by Seller to Buyer of these Terms, the sale of goods (“Goods”) by Seller to Buyer (including if applicable as described on the reverse side hereof) shall be governed by the terms expressed in this Terms.
Contract Formation. No contract shall be formed on any Offer to Purchase unless and until Seller has provided written acceptance in a form which expressly includes these Terms.
Terms of Agreement. Seller’s acceptance of any offer by Buyer to purchase the Goods is expressly conditional upon Buyer’s assent to all the terms and conditions herein, including any terms additional to or different from those contained in Buyer’s Offer to Purchase. Buyer waives any right it might otherwise have to rely on any term endorsed upon, delivered with, or contained in any document of Buyer that is inconsistent with, in addition, to or different from terms as stated in this Terms. These Terms apply to and are incorporated into: all purchase agreements with Seller however captioned or described, all Seller’s offers and quotations, and all deliveries and services provided by Seller. No variation to these terms and conditions may be made other than in a writing signed by authorized representatives of the parties and any variations to any particular purchase agreement shall not apply to other purchase agreement unless expressly confirmed in writing as to such other purchase agreement, and thus shall not establish a course of dealing.
The accompanying quotation/confirmation of sale/invoice (the “Sales Confirmation” and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
Blanket (Volume) Order or Master Order. A blanket (volume) or master Offer to Purchase by Buyer must include the predetermined quantity of Goods. If the Offer to Purchase is designated by Buyer as a blanket order or master order, Buyer shall be obligated to purchase those quantities of Goods which it specifically requests under separate subsequent release orders issued by Buyer to Seller within the one (1) year from the date of the Agreement. At the time of acknowledgment of the Offer to Purchase by a Sales Confirmation, Seller will identify in writing its current procurement lead times for the Goods in order to complete the blanket order or master Offer to Purchase. Subject to current procurement lead times for the Goods and subsequently to a Sales Confirmation, Seller agrees to keep inventory of at least twenty five percent (25%) of the ordered Goods set forth in the blanket or master Offer to Purchase for the duration of one (1) year from the Agreement. Buyer hereby agrees that any Goods not released within the one (1) year of the Agreement by release orders issued by Buyer will be automatically shipped and invoiced by Seller to Buyer. Notwithstanding the above, if Seller terminates the Agreement earlier, as set forth herein, Seller may decide in its sole discretion to retain and sell the remaining Goods to a third party or to ship and invoice Buyer. For the avoidance of doubt, all sections of the Terms of this Agreement shall apply to a blanket (volume) or master Offer to Purchase, unless expressly stated otherwise by Seller herein.
Taxes. Prices on the specified products are exclusive of all city, state, and federal excise taxes, including, without limitation, taxes on manufacture, sales, receipts, gross income, occupation, value added taxes (VAT), use and similar taxes. Wherever applicable, any tax or taxes will be added to the invoice as a separate charge to be paid by Buyer to Seller.
Terms of payment. (a) Buyer shall pay all invoiced amounts due to Seller within 30 days from the date of Seller's invoice. Buyer shall make all payments hereunder by wire transfer/check/ACH and in US dollars.
(b) Buyer shall pay interest on all late payments at the lesser of the rate of 1.5% 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. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods if Buyer fails to pay any amounts when due hereunder and such failure continues for 30 days following written notice thereof.
(c) 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.
Delivery. (a) International Chamber of Commerce Incoterms 2020, Ex Works (EXW) shall apply. Buyer is responsible for all expense of shipment and carriage, including any arrangements made through Seller. Stated delivery dates should be regarded as approximate only. The Goods will be delivered within a reasonable time after the receipt of Buyer's purchase order, subject to availability of finished Goods. Seller shall not be liable for any delays, loss, or damage in transit.
(b) Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to Seller's facility located at Feller LLC, 9100 Industrial Blvd. NE, Leland, NC 28451 (the “Delivery Point”) using Seller's standard methods for packaging and shipping such Goods. Buyer shall take delivery of the Goods within seven (7) days of Seller's written notice that the Goods have been delivered to the Delivery Point. Buyer shall be responsible for all loading costs and provide equipment and labor reasonably suited for receipt of the Goods at the Delivery Point.
(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer's purchase order.
(d) If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller's notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance). In such event, Seller may resell the Goods at any time to a third party, in which case Buyer shall reimburse Seller for any shortfall below the purchase price agreed in the purchase agreement with Buyer, and for all costs and expenses incurred by Seller in relation to storage and re-sale.
(a)The quantity of any installment of Goods as recorded by Seller on dispatch from Seller's place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary.
(b) Seller shall not be liable for any non-delivery of Goods (even if caused by Seller's negligence) unless Buyer gives written notice to Seller of the non-delivery within seven (7) days of the date when the Goods would in the ordinary course of events have been received.
(c)Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
Quantity. If Seller delivers to Buyer a quantity of Goods of up to 10% more or less than the quantity set forth in the Sales Confirmation, Buyer shall not be entitled to object to or reject the Goods or any portion of them by reason of the surplus or shortfall and shall pay for such Goods the price set forth in the Sales Confirmation adjusted pro rata.
Quotations limited. A quotation for the Goods given by Seller shall not constitute an offer. A quotation shall only be valid for a period of thirty (30) days from the date of issuance of the quotation.
Conditions. In addition to any legal standards excusing performance due to impracticability, Seller’s duty to perform is expressly conditioned upon the market price of copper not exceeding $5.00 per pound (US) and Seller’s ability to obtain the necessary raw materials to fulfill its obligations.
Materials. Materials furnished by Seller are to be within the limits and of the sizes published by Seller and subject to Seller’s standard tolerances for variations.
Inspection and Rejection of Nonconforming Goods.
(a) Buyer shall inspect the Goods within fifteen (15) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only the following: (i) product shipped is different than identified in Buyer's purchase order; or (ii) product's label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller's facility located at Feller LLC, 9100 Industrial Blvd. NE, Leland, NC 28451. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer's shipment of Nonconforming Goods, ship to Buyer, at Buyer's expense and risk of loss, the replaced Goods to the Delivery Point.
(c)Buyer acknowledges and agrees that the remedies set forth in this Section (b) are Buyer's exclusive remedies for the delivery of Nonconforming Goods. Except as provided under this Section (b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
Adjustment. If Buyer gives written notice of alleged defect in the Goods within the time allowed under these Terms, it shall give Seller an opportunity to take samples of the Goods, if requested by Seller. An independent evaluator, selected by Seller at its discretion, shall then be instructed to test the samples taken by t Seller or any samples retained by Seller before shipment to Buyer, at Buyer’s expense, in order to establish whether the defects in the Goods claimed by Buyer exist. The independent evaluator shall be instructed by Seller on the testing method to be followed, which shall be in accordance with the sampling and testing procedures customary in the industry. The independent evaluator's factual conclusions in respect of the defects alleged by Buyer shall be accepted by and binding on the parties as conclusive evidence of the quality of the Goods. Without Seller’s written consent, Buyer shall not return Goods to Seller. The costs of return shipment and of any additional evaluation undertaken by Buyer or at the direction of Buyer shall be borne by Buyer unless otherwise agreed in writing or this Terms.
Title and Risk of Loss. Title passes to Buyer upon delivery of the Goods at the Delivery Point or upon payment, whichever is later. Risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the North Carolina Uniform Commercial Code.
Force Majeure. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations of Buyer to make payments to Seller hereunder), when and to the extent such failure or delay is caused by or results from acts beyond the impacted party’s (“Impacted Party”) reasonable control, including, without limitation, the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemics or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or actions; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) national or regional emergency; and (g) strikes, labor stoppages or slowdowns, or other industrial disturbances; and (h) shortage of adequate power or transportation facilities; and (i) other similar events beyond the reasonable control of the Impacted Party. The Impacted Party shall give notice within five (5) days of the Force Majeure Event to the other party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the
cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this Section, either party/the other party may thereafter terminate this Agreement upon seven (7) days’ written notice.
Limited Warranty. (a) Seller warrants to Buyer that for a period of 12 months from the date of shipment of the Goods (“Warranty Period”), that such Goods will materially conform to Seller's published specifications in effect as of the date of shipment under the corresponding Individual Transaction.
(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION (A) SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; OR (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(c)Goods manufactured by a third party (“Third Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section (a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
(d) Seller shall not be liable for a breach of the warranty set forth in Section (a) unless: (i) Buyer gives written notice of the defect, reasonably described, to Seller within three (3) days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller's place of business at Seller's cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer's claim that the Goods are defective.
(e) Seller shall not be liable for a breach of the warranty set forth in Section (a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller's oral or written instructions as to the storage, installation,
commissioning, use or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
(f)Subject to Section (d) and Section (e) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller's expense, return such Goods to Seller.
(g) THE REMEDIES SET FORTH IN SECTION (F) SHALL BE BUYER'S SOLE AND EXCLUSIVE REMEDY AND SELLER'S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION (A).
Limitation of Liability.
(a)IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA 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 AGREEMENT, 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 GOODS SOLD HEREUNDER.
(c)The limitation of liability set forth inSection (b) above shall not apply to (i) liability resulting from Seller's gross negligence or willful misconduct and (ii) death or bodily injury resulting from Seller’s acts or omissions.
Insurance. During the term of this Agreement, Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability (including product liability) in a sum no less than USD one million $1,000,000.00 with financially sound and reputable insurers. Upon Seller's request, Buyer shall provide Seller with a certificate of insurance from Buyer's insurer evidencing the insurance coverage specified in these Terms. Buyer shall provide Seller with seven (7) days' advance written notice in the event of a cancellation or material change in Buyer's insurance
policy. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Seller's insurers and Seller.
Indemnification of Buyer. Buyer shall indemnify Seller and its affiliates, employees and agents against all liabilities, costs and expenses incurred in relation to any claims from third parties arising out of or in connection with any onward supply, processing, or use of the Goods by Buyer.
Timely Limitation of Warranty Claims. BUYER SHALL NOT BE ENTITLED TO BRING A WARRANTY CLAIM AGAINST SELLER ARISING OUT OF OR IN CONNCETION WITH THE PURCHASE AGREEMENT, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE MORE THAN TWELVE (12) MONTHS AFTER THE DATE ON WHICH THE RELEVANT CIRCUMSTANCES GIVING RISE TO A CLAIM AROSE, OR IF LATER, ON WHICH BUYER OUGHT REASONABLY TO HAVE BECOME AWARE OF THE CIRCUMSTANCES GIVING RISE TO CLAIM. Nothing in the purchase agreement shall limit or exclude Seller's liability for fraud or any liability to the extent that it cannot be limited or excluded under applicable law.
No Warranties for Technical Staff’s Advice. The advice of Seller’s technical staff is available to the trade, but Seller does not warrant or guarantee such advice, and Buyer is responsible for independent verification of any advice from Seller’s staff. Buyer shall not rely on, and Seller does not warrant, the accuracy and completeness of such advice, and all liability of Seller arising out of or in connection with such advice is excluded to the fullest extent permitted by law.
Suitability. Buyer is responsible for ensuring that the terms of and order, including any special order or custom order, and any applicable specifications for any special order or custom order, are complete and accurate and meet Buyer’s needs. Buyer is responsible for ensuring that the specifications stated by Seller as to Goods which are not special orders or custom orders meet Buyer’s needs.
Samples, drawings, advertising. Any samples, drawings or advertising produced by Seller and any descriptions or illustrations contained in Seller's catalogues or brochures are produced for the sole purpose of giving an approximate idea of the Goods referred to in them and shall not form part of the contract nor have any contractual force, except as to statement of compliance with a government regulatory or published industry standard.
Special orders. If any material shall be manufactured and/or sold by Seller to meet Buyer’s particular specifications or requirements (“Specification” or “Specifications”) and is not part of Seller’s standard line offered by it to the trade generally in the usual course of Seller’s business (a “Special Order”), the Goods are sold “as is” and Buyer shall indemnify Seller from, and defend and hold Seller harmless from and against, any Losses suffered,
incurred or sustained by Seller or to which Seller becomes subject, resulting from, arising out of or relating to any claim: (i) that the Goods infringe upon the proprietary or other rights of any third party (except as may have been caused by a modification by Seller); and (ii) of loss or damage resulting from the Goods and the use thereof.
Fitting-up charges. Fitting-up charges to Buyer will apply if quoted and when quoted cover part of the necessary tools and fixtures required for the particular work to produce Special Orders. Such tools and fixtures remain Seller’s sole property and shall be retained in Seller’s possession for use including filling orders of Buyer for a period of not less than two (2) years. There will be no additional charge for upkeep or replacement, but if, at any time, a period of two years has elapsed since the receipt of any order from Buyer requiring the use of such tools and fixtures, Seller may thereafter make any use or disposition of such tools and fixtures as Seller desires, without any accounting to Buyer for such use or disposition, or the proceeds thereof.
Indemnification for Patent and Intellectual Property Infringement. Buyer shall hold Seller harmless from, and release and not make claim or suit against Seller because of, any suits, claims, losses, or other liability made against, or suffered by, Buyer arising from any claim of, or infringement of, patent, copyright, trademark, or other proprietary right, at common law, or claim of unfair trade or of unfair competition, resulting from, or occasioned by, Buyer’s use, possession, sale, or delivery of the merchandise sold to Buyer by Seller as a Special Order. To the extent that the Goods are to be manufactured in accordance with a Specification supplied by Buyer, Buyer shall indemnify Seller against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Seller in connection with any claim made against Seller for actual or alleged infringement of a third party's intellectual property rights arising out of or in connection with Seller's use of the Specification. This provision shall survive any termination of the Agreement for any reason.
Cancellation. An order once placed with and accepted by Seller can be cancelled only with written consent of Seller and upon terms that will indemnify Seller against loss.
Termination. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement with immediate effect upon written notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for seven (7) days after Buyer's receipt of written notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
Invoice Dispute. Buyer must submit any complaint concerning an invoice to Seller in writing, within fourteen (14) days of the receipt of the invoice, and any failure to do so shall mean that the invoice will be deemed to be accurate.
Price. Unless expressly stated otherwise in the purchase agreement, all prices agreed are denominated in U.S. Dollars and are exclusive of VAT and any other government levies imposed, which shall be paid by Buyer. Prices are fixed in accordance with Seller’s price lists in effect on the date of the order from Buyer to the extent that the Goods are included in the price list, or as otherwise stated in the purchase agreement. Prices agreed are based on the market conditions at the time Seller accepts Buyer's order. Seller has the right at any time by giving notice to Buyer to adjust the agreed price if cost factors that (co)determine the price (including, but not limited to, the market prices of Goods, ingredients, raw materials, transportation, personnel costs, insurance, exchange rates, taxes and other financial charges) are increased between the date of the purchase agreement and the delivery date. If the price increase amounts to more than 10% of the original price, Buyer may terminate the purchase agreement by written notice to Seller, provided that such notice is received within three (3) days of Seller's notice to Buyer of the increase to the price. Notwithstanding the above, the price agreed upon in a blanket (volume) or master Offer to Purchase shall remain in effect for the duration of such blanket (volume) or master Offer to Purchase.
Merger; negation of course of dealing, trade usage. This instrument is intended by the parties to be a final, exclusive, complete, and fully integrated expression of their agreement and its terms. NO COURSE OF PRIOR DEALINGS BETWEEN THE PARTIES AND NO USAGE OF THE TRADE SHALL BE RELEVANT TO SUPPLEMENT OR EXPLAIN ANY TERM USED HEREIN.
Severability. All provisions of the purchase agreement are independent and severable. If any provision of the purchase agreement is held by a court of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be severed from the other provisions of the purchase agreement and the remainder shall continue in full force and effect. The term “including” shall be construed to mean “including and not limited to.”
Governing Law, Jurisdiction and Venue. This Agreement shall be governed by and construed in accordance with the laws of the State of North Carolina, without regard to its conflict of laws provisions, and any action or lawsuit to construe or enforce its terms shall be filed and heard in New Hanover County, North Carolina, and each party agrees to submit to the jurisdiction and venue of the District and Superior Courts of New Hanover County, North Carolina, and that said Courts shall have exclusive jurisdiction and venue thereof. The application of the United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
Mediation. Except as to provisional remedies necessary to avoid immediate and irreparable harm, including application for a temporary restraining order and other injunctive relief, and initiating a claim-and-delivery action to recover personal property, in the event of a dispute hereunder, the parties agree to participate in mediation proceedings prior to recourse to the courts upon written notice from one party to the other party setting forth the details of such dispute and requesting mediation. If mediation is requested, the parties agree to meet in good faith within fifteen (15) days of such written notice to jointly remedy the dispute by negotiation toward agreement. If this meeting is not productive, then the parties shall promptly submit such dispute to mediation under the auspices of the American Arbitration Association (“AAA”), to be held in Wilmington, North Carolina, with an independent mediator acceptable to Seller and Buyer within twenty (20) days after the good faith meeting attempt failed. In the event the parties are unable to agree upon a mediator then the mediator shall be selected under the Mediation Procedures of the American Arbitration Association then in effect. In the event the mediation does not resolve such dispute, then the parties may exercise all their respective legal and equitable rights in a court of competent jurisdiction as provided herein.