Japan based Licensed Sake distributor and Japanese Sake exporter of smaller Artisan breweries with generations of history and awards, targeting Sake importers Japan based Licensed Sake distributor and Japanese Sake exporter of smaller Artisan breweries with generations of history and awards, targeting Sake importers

Shipping Terms and Conditions by the Invoice

              1. Order
                This Agreement is between the entity that made the Invoice payment, (“Buyer”) and Mirabliss LLC with its registered business and office address at 〒615-0002京都府京都市右京区西院東今田町34番地 ハウスイザワ2C号 (“Agent”) and covers the purchase and shipping of Products.
              2. Acceptance and Effect
                This Agreement is effective upon the acceptance of a quote, sending of the Invoice, payment of the Invoice, shipment of any Products, or commencement of work pursuant to the Invoice; whichever is earlier.
              3. Packing, Shipment and Returns of Products
                a. Packing.
                Agent will pack Products for shipping to the shipping address on the Invoice. Buyer is responsible for ensuring address details are correct. Buyer will notify Agent immediately of a change of address and Agent will make best efforts to make corrections but as the order has been processed Agent can not guarantee corrections. Agent will provide proper and adequate packaging in accordance with best commercial practice.
                b. Shipping and marking.
                Agent shall mark all containers with necessary shipping information. Buyer agrees that Agent is not liable and has no responsibility for any information that the Buyer incorrectly provides or fails to provide.
                c. Quantities.
                For over-shipped quantities, Agent will have sole discretion to (i) allow Buyer to keep Products, or (ii) bear the expense of return shipping charges, or (iii) bear the expense for destruction of Products.
                d. Returns and Damaged goods
                If the delivered Products differs from Invoice Products, or the glass bottle is broken, Agent has the option to (i) replace it or (ii) refund the cost of products, such a decision being at Agent sole discretion. Damaged Products must be confirmed by the 3rd party shipping company used for the transportation of Products. Please contact us within 8 days after the product arrives. Third party shipping company will provide evidence of damaged goods. If Agent chooses to send replacement Products, Agent will bear the cost of freight only for sending the replacement Products. If Products to be exchanged is out of stock, you may have to wait until it becomes available. Damage or loss by the customer is not covered by the above items. Please note that we cannot accept refunds/returns other than the above. Product images shown online, in brochure and all and any other marketing and sales material are for illustration purposes only and may not be an exact representation of the product. Agent reserves the right to change product images and specifications at any time without notice.
              4. Insurance
                Third party insurance of Products is highly recommended. Buyer agrees that Agent has no responsibility whether Buyer chooses to obtain insurance or not, nor the cost of the insurance, nor the amount of insurance coverage the Buyer obtains. If the Buyer elects to forego insurance, Agent will bear no responsibility for damaged goods and refunds or exchange of products shall only be accepted if the delivered product is different from the application product. Agent responsibility, in all instances, will be limited to an amount no more than the amount of Buyer insurance coverage less any applicable deductibles, excesses, coinsurance or similar stipulations that reduce the insurance payout.
              5. Price
                The price for Products is the price stated on the Invoice. Unless otherwise specified on the Invoice, price does not include, among other things, taxes (except Japan sales tax), duties and levies, handling, transportation, containers, crating, boxing, storage, or other packing expenses, and any shipping charges to Buyer address on the Invoice.
              6. Taxes
                Buyer will pay Agent any sales, use or value added taxes it owes due to the Invoice and which the law requires Agent to collect from Buyer. Unless Incoterm is stipulated as DDP on the Invoice, Buyer is responsible for payment of own import country duties / tariffs / taxes etc.
              7. Invoices and Payment
                a. If payment is not in advance, payment shall be made to Agent as stated in the “Payment Terms” on the Invoice.
                b. The Invoice shall include the following information: Invoice Number, description of items, quantities and price.
              8. Delivery
                (i). Agent will take all reasonable steps to ensure Buyer receives Products in a timely manner, Buyer acknowledges that many factors are beyond the control of Agent, and that Agent responsibility for the timeliness of any delivery is limited to those delays it could have reasonably foreseen or that were within its control.
                (ii). With respect to Products internationally shipped Agent cooperate with Buyer customs broker as directed by Buyer including providing requested shipping documentation in timely manner.
              9. Products held by Shipper
                Unless otherwise agreed in writing, Products delivered to Shipper (as hereinafter defined) address on the Invoice must be picked up by Buyer within 3 days. Failure to pick up within 3 days may include, among other things, storage fees and other logistics fees. “Shipper” shall mean Shipper used for the transportation of Products, business partners, affiliates, subsidiaries and any business Shipper has dealings with for storage of Products.
              10. Transfer of risk
                Agent risk ends, and the Buyer risk begins, when the first carrier receives the goods from the Agent.
              11. Import Refusal and Product Labels
                a. Notwithstanding the Incoterms on the Invoice, Agent shall never be liable for Products being refused import clearance on the grounds that Products are refused entry due to Buyer (including but not limited to):
                (i) Not understanding their country rules and regulations for the importation of alcohol.
                (ii) Not having the correct documentation, licences and legal status for the importation of alcohol.
                (iii) Refusing to pay tariffs / duties / taxes etc.
                b. Product Labels
                Unless otherwise stipulated or agreed upon in writing, Buyer is responsible for changing Product labels to ensure Product labels abide by country rules and regulations and do not infringe copyright, Intellectual Property held by any third party. Agent is not liable for refusal of import due to incorrect Product labels.
                Any and all costs related to, among other things, the return of Products or destruction of Products due to conditions a. and b. above shall be payable by Buyer in addition to a 30,000 yen Agent handling fee.
              12. Force Majeure
                Agent shall not be liable for any delay or failure to deliver any or all of Products, in the event of delay or failure caused by, among other things; governmental regulations, labor disputes, strikes, war, riots, insurrection, civil commotion, mobilization, explosion, fire, flood, accident, disease, storm or any act of God, failure of crops or supplies, delays of common carriers, embargoes, or any other causes beyond Agent reasonable control or that Agent could have been reasonably foreseen. Similarly, Buyer shall not be liable for failure to take delivery of Products for any of the above causes, or other causes beyond Buyer reasonable control if Buyer renders it commercially impracticable for Buyer to receive or use the goods on a timely basis.
              13. Warranties
                a. Agent warrants that Products delivered, the packaging and labelling and any other performance pursuant to the Invoice, will: (i) be free of infringement of property rights of third Parties, including without limitation, any patent, trademark, trade name, copyright or right of publicity, or misappropriate any trade secret or violate any license or any other rights; (ii) be fit for consumption; (iii) be of merchantable quality; and (iv) be of grade conformity commensurate with Products referred to on the Invoice.
                b. Buyer warrants that they hold all the correct documentation, licences and legal status for the importation of Products.
              14. Product quality
                Quality changes, (including but not limited to): odor, color changes, flavor twists; may occur during transportation and do not correspond to defective Products. Agent will transport Products according to pre-agreed communications with Buyer and stipulated on Agent quote and invoice under Shipping Incoterms and Packing Type. Quality changes are deemed to be outside of Agent responsibility and control.
              15. Public and Product Liability
                Agent does not manufacture Product and among other things, does not open, alter or interfere with the product in any way. Buyer indemnifies Agent and waives all rights in all circumstances to hold Agent liable for Public and Product Liability claims.
              16. Independent Party
                At all times during this Agreement and any extension or renewal hereof, Agent shall provide Products as an independent party and Agent shall not act or represent the Buyer nor act as an agent, representative, employee, or in any other capacity, on behalf of Buyer.
              17. Assignment
                Buyer and Agent shall not assign or delegate its rights and obligations under this Agreement or any part hereof without the prior written consent of the non-assigning or non-delegating party.
              18. Non Solicitation/Poaching
                Buyer agrees that during the time under this Agreement, and for a period of 24 months thereafter, that it will not to directly or indirectly contact, deal with, transact, or otherwise be involved with any company Agent purchases Products from. Buyer agrees not to directly or indirectly circumvent, avoid, or bypass Agent regarding future business transactions and revenue with any company Agent purchases Products from. In the event Buyer circumvents the Agent, either directly or indirectly, and as a result Agent loses any future business transactions and/or revenue Buyer agrees it shall pay liquidated damages to Agent in an amount equal to two times the yearly revenue Agent would have been entitled to receive had the circumventing action not taken place.
              19. Termination
                Buyer may terminate this Agreement in whole or in part at any time and without cause. Termination must in writing and is effective 30 days after the date of sending by electronic means (email, social network messaging), or 30 days after the date Agent receives notice by registered mail to Agent registered office. Upon the effective termination date, Agent will inform Buyer of the extent to which it has completed its performance under this Agreement. Buyer will pay Agent for Products, associated costs and services performed through to the effective date of termination provided that Buyer will not be obligated to pay more than the total payment due had Agent completed or provided Products. Buyer will have no further payment obligation in connection with any termination.
              20. Confidentiality Information and Non Disclosure
                Buyer and Agent acknowledge that in their course of dealings, they may acquire from the other, confidential, proprietary or similar information about the other party’s company, its business activities and operations, its employees, trade secrets or any other information which by its sense or nature should reasonably be considered confidential (the “Confidential Information”). Buyer and Agent agree that the Confidential Information will only be disclosed to Buyer and Agent employees, agents or consultants with a need to know and who are under a written obligation to keep such information similarly confidential. Buyer and Agent will not disclose the Confidential Information to any third Parties.
              21. Return of Materials
                Buyer and Agent agree that upon termination of this Agreement, they will on request, return to the disclosing party all drawings, blueprints, notes, memoranda, specifications, designs, writings, software, devices, documents and any other material containing or disclosing any confidential or proprietary information of the disclosing party.
              22. Governing Law
                This Agreement and all acts and transactions pursuant hereto and the rights and obligations of Buyer and Agent hereto shall be governed, construed and interpreted in accordance with the laws of Japan, without giving effect to principles of conflicts of law. Buyer agrees that the Kyoto District Court, Japan shall have the exclusive jurisdiction to adjudicate any controversy or claim arising out of or related to this Agreement. Notwithstanding any other rights of Buyer and Agent, Buyer and Agent may seek injunctive relief in any court of competent jurisdiction against improper use or disclosure of Confidential Information.
              23. Dispute Resolution.
                In all cases, Buyer and Agent shall use their best good faith and efforts to resolve disputes before the commencement of legal proceedings.
              24. Severability
                If any provision of this Agreement shall be held to be illegal, invalid or unenforceable under present or future laws, such provisions shall be fully severable, this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement; and, the remaining provisions of this Agreement shall remain in full force and effect.
              25. Limitation of Liability
                UNLESS OTHERWISE AGREED TO BY BUYER AND SUPPLIER ELSEWHERE HEREIN, IN NO EVENT SHALL BUYER OR SUPPLIER BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, BUSINESS INTERRUPTION, LOSS OF OR UNAUTHORIZED ACCESS TO INFORMATION, DAMAGES FOR LOSS OF PROFITS, INCURRED BY THE OTHER UNDER THE INVOICE, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
              26. Indemnification
                To the extent provided by law and this Agreement, Buyer and Agent s shall, at its own cost and expense, indemnify, defend, and hold harmless, the other, its Affiliates and Representatives (as later defined), officers, directors, employees, agents, successors and assigns, from and against any and all claims, damages, losses, and expenses (including attorneys’ fees and court costs) which arise directly or indirectly out of (a) any breach of this Agreement, or (b) the gross negligence or wilful misconduct of Buyer or Agent, their Affiliates and Representatives, officers, directors, employees, agents, successors and assigns.
              27. Entire Agreement
                This Agreement is the final, complete and exclusive Agreement of Buyer and Agent with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, communications and Agreements, whether written or oral, between Buyer and Agent relating to the subject matter hereof and all past courses of dealing or industry custom. No modification of or amendment to this Agreement shall be effective unless in writing and signed by both Buyer and Agent.
              28. Binding Effect; Affiliates
                This Agreement shall include and be binding upon and inure to the benefit of Buyer and Agent and their respective heirs, successors, permitted assigns, Affiliates (as hereinafter defined) and Representatives. “Affiliate” shall mean, with respect to Buyer and Agent, any entity that controls or is controlled by Buyer or Agent or is under common control with Buyer or Agent. For purposes of this definition, an entity shall be deemed to control another entity if it owns or controls, directly or indirectly, at least fifty percent (50%) of the voting equity of another entity (or other comparable interest for an entity other than a corporation). “Representative” means a Buyer’s or Agent’s Affiliates and their managers, employees, agents, advisors, consultants, attorneys, accountants, financial advisors, and other independent contractors.
              29. No Waiver
                Buyer or Agent delay or failure to exercise any right or remedy will not result in a waiver of that or any other right or remedy.
              30. Headings
                The headings used in this Agreement and its division into articles, sections, schedules, exhibits, appendices, and other subdivisions do not affect its interpretation are for convenience only and shall not be used to limit or construe the contents of any of the sections of this Agreement.
              31. Survival
                Buyer and Agent agree that any term or condition of this Agreement which by its sense or nature should be deemed to survive the expiration or termination of this Agreement will so survive.

        Shipping Terms and Conditions by the Purchase Order

              1. Order
                This Agreement is between the buying entity on the Purchase Order, (“Buyer”) and Mirabliss LLC with its registered business and office address at 〒615-0002京都府京都市右京区西院東今田町34番地 ハウスイザワ2C号 (“Agent”) and covers the purchase and shipping of Products.
              2. Acceptance and Effect
                This Agreement is effective upon receiving the Purchase Order, shipment of any Products, or commencement of work pursuant to the Purchase Order; whichever is earlier.
              3. Packing, Shipment and Returns of Products
                a. Packing.
                Agent will pack Products for shipping to the shipping address on the Purchase Order. Buyer is responsible for ensuring address details are correct. Buyer will notify Agent immediately of a change of address and Agent will make best efforts to make corrections but as the order has been processed Agent can not guarantee corrections. Agent will provide proper and adequate packaging in accordance with best commercial practice.
                b. Shipping and marking.
                Agent shall mark all containers with necessary shipping information. Buyer agrees that Agent is not liable and has no responsibility for any information that the Buyer incorrectly provides or fails to provide.
                c. Quantities.
                For over-shipped quantities, Agent will have sole discretion to (i) allow Buyer to keep Products, or (ii) bear the expense of return shipping charges, or (iii) bear the expense for destruction of Products.
                d. Returns and Damaged goods
                If the delivered Products differs from the Purchase Order Products, or the glass bottle is broken, Agent has the option to (i) replace it or (ii) refund the cost of products, such a decision being at Agent sole discretion. Damaged Products must be confirmed by the 3rd party shipping company used for the transportation of Products. Please contact us within 8 days after the product arrives. Third party shipping company will provide evidence of damaged goods. . If Agent chooses to send replacement Products, Agent will bear the cost of freight only for sending the replacement Products. If Products to be exchanged is out of stock, you may have to wait until it becomes available. Damage or loss by the customer is not covered by the above items. Please note that we cannot accept refunds/returns other than the above. Product images shown online, in brochure and all and any other marketing and sales material are for illustration purposes only and may not be an exact representation of the product. Agent reserves the right to change product images and specifications at any time without notice.
              4. Insurance
                Third party insurance of Products is highly recommended. Buyer agrees that Agent has no responsibility whether Buyer chooses to obtain insurance or not, nor the cost of the insurance, nor the amount of insurance coverage the Buyer obtains. If the Buyer elects to forego insurance, Agent will bear no responsibility for damaged goods and refunds or exchange of products shall only be accepted if the delivered product is different from the application product. Agent responsibility, in all instances, will be limited to an amount no more than the amount of Buyer insurance coverage less any applicable deductibles, excesses, coinsurance or similar stipulations that reduce the insurance payout.
              5. Price
                The price for Products is the price stated on the Purchase Order. Unless otherwise specified on the Purchase Order, price does not include, among other things, taxes (except Japan sales tax), duties and levies, handling, transportation, containers, crating, boxing, storage, or other packing expenses, and any shipping charges to Buyer address on the Purchase Order.
              6. Taxes
                Buyer will pay Agent any sales, use or value added taxes it owes due to the Purchase Order and which the law requires Agent to collect from Buyer. Unless Incoterm is stipulated as DDP on the Purchase Order, Buyer is responsible for payment of own import country duties / tariffs / taxes etc.
              7. Invoices and Payment
                a. If payment is not in advance, payment shall be made to Agent as stated in the “Payment Terms” on the Invoice.
                b. The Invoice shall include the following information: Purchase Order number, Invoice Number, description of items, quantities and price.
              8. Delivery
                (i). Agent will take all reasonable steps to ensure Buyer receives Products in a timely manner, Buyer acknowledges that many factors are beyond the control of Agent, and that Agent responsibility for the timeliness of any delivery is limited to those delays it could have reasonably foreseen or that were within its control.
                (ii). With respect to Products internationally shipped Agent cooperate with Buyer customs broker as directed by Buyer including providing requested shipping documentation in timely manner.
              9. Products held by Shipper
                Unless otherwise agreed in writing, Products delivered to Shipper (as hereinafter defined) address on the Purchase Order must be picked up by Buyer within 3 days. Failure to pick up within 3 days may include, among other things, storage fees and other logistics fees. “Shipper” shall mean Shipper used for the transportation of Products, business partners, affiliates, subsidiaries and any business Shipper has dealings with for storage of Products.
              10. Transfer of risk
                Agent risk ends, and the Buyer risk begins, when the first carrier receives the goods from the Agent.
              11. Import Refusal and Product Labels
                a. Notwithstanding the Incoterms on the Purchase Order , Agent shall never be liable for Products being refused import clearance on the grounds that Products are refused entry due to Buyer (including but not limited to):
                (i) Not understanding their country rules and regulations for the importation of alcohol.
                (ii) Not having the correct documentation, licences and legal status for the importation of alcohol.
                (iii) Refusing to pay tariffs / duties / taxes etc.
                b. Product Labels
                Unless otherwise stipulated or agreed upon in writing, Buyer is responsible for changing Product labels to ensure Product labels abide by country rules and regulations and do not infringe copyright, Intellectual Property held by any third party. Agent is not liable for refusal of import due to incorrect Product labels.
                Any and all costs related to, among other things, the return of Products or destruction of Products due to conditions a. and b. above shall be payable by Buyer in addition to a 30,000 yen Agent handling fee.
              12. Force Majeure
                Agent shall not be liable for any delay or failure to deliver any or all of Products, in the event of delay or failure caused by, among other things; governmental regulations, labor disputes, strikes, war, riots, insurrection, civil commotion, mobilization, explosion, fire, flood, accident, disease, storm or any act of God, failure of crops or supplies, delays of common carriers, embargoes, or any other causes beyond Agent reasonable control or that Agent could have been reasonably foreseen. Similarly, Buyer shall not be liable for failure to take delivery of Products for any of the above causes, or other causes beyond Buyer reasonable control if Buyer renders it commercially impracticable for Buyer to receive or use the goods on a timely basis.
              13. Warranties
                a. Agent warrants that Products delivered, the packaging and labelling and any other performance pursuant to the Purchase Order, will: (i) be free of infringement of property rights of third Parties, including without limitation, any patent, trademark, trade name, copyright or right of publicity, or misappropriate any trade secret or violate any license or any other rights; (ii) be fit for consumption; (iii) be of merchantable quality; and (iv) be of grade conformity commensurate with the Products referred to on the Purchase Order.
                b. Buyer warrants that they hold all the correct documentation, licences and legal status for the importation of Products.
              14. Product Quality
                Quality changes, (including but not limited to): odor, color changes, flavor twists; may occur during transportation and do not correspond to defective Products. Agent will transport Products according to pre-agreed communications with Buyer and stipulated on Agent quote and invoice under Shipping Incoterms and Packing Type. Quality changes are deemed to be outside of Agent responsibility and control.
              15. Public and Product Liability
                Agent does not manufacture Product and among other things, does not open, alter or interfere with the product in any way. Buyer indemnifies Agent and waives all rights in all circumstances to hold Agent liable for Public and Product Liability claims.
              16. Independent Contractor
                At all times during this Agreement and any extension or renewal hereof, Agent shall provide Products as an independent party and Agent shall not act or represent the Buyer nor act as an agent, representative, employee, or in any other capacity, on behalf of Buyer.
              17. Assignment
                Buyer and Agent shall not assign or delegate its rights and obligations under this Agreement or any part hereof without the prior written consent of the non-assigning or non-delegating party.
              18. Non Solicitation/Poaching
                Buyer agrees that during the time under this Agreement, and for a period of 24 months thereafter, that it will not to directly or indirectly contact, deal with, transact, or otherwise be involved with any company Agent purchases Products from. Buyer agrees not to directly or indirectly circumvent, avoid, or bypass Agent regarding future business transactions and revenue with any company Agent purchases Products from. In the event Buyer circumvents the Agent, either directly or indirectly, and as a result Agent loses any future business transactions and/or revenue Buyer agrees it shall pay liquidated damages to Agent in an amount equal to two times the yearly revenue Agent would have been entitled to receive had the circumventing action not taken place.
              19. Termination
                Buyer may terminate this Agreement in whole or in part at any time and without cause. Termination must in writing and is effective 30 days after the date of sending by electronic means (email, social network messaging), or 30 days after the date Agent receives notice by registered mail to Agent registered office. Upon the effective termination date, Agent will inform Buyer of the extent to which it has completed its performance under this Agreement. Buyer will pay Agent for Products, associated costs and services performed through to the effective date of termination provided that Buyer will not be obligated to pay more than the total payment due had Agent completed or provided Products. Buyer will have no further payment obligation in connection with any termination.
              20. Confidentiality Information
                Buyer and Agent acknowledge that in their course of dealings, they may acquire from the other, confidential, proprietary or similar information about the other party’s company, its business activities and operations, its employees, trade secrets or any other information which by its sense or nature should reasonably be considered confidential (the “Confidential Information”). Buyer and Agent agree that the Confidential Information will only be disclosed to Buyer and Agent employees, agents or consultants with a need to know and who are under a written obligation to keep such information similarly confidential. Buyer and Agent will not disclose the Confidential Information to any third Parties.es.
              21. Return of Materials
                Buyer and Agent agree that upon termination of this Agreement, they will on request, return to the disclosing party all drawings, blueprints, notes, memoranda, specifications, designs, writings, software, devices, documents and any other material containing or disclosing any confidential or proprietary information of the disclosing party.
              22. Governing Law
                This Agreement and all acts and transactions pursuant hereto and the rights and obligations of Buyer and Agent hereto shall be governed, construed and interpreted in accordance with the laws of Japan, without giving effect to principles of conflicts of law. Buyer agrees that the Kyoto District Court, Japan shall have the exclusive jurisdiction to adjudicate any controversy or claim arising out of or related to this Agreement. Notwithstanding any other rights of Buyer and Agent, Buyer and Agent may seek injunctive relief in any court of competent jurisdiction against improper use or disclosure of Confidential Information.
              23. Dispute Resolution.
                In all cases, Buyer and Agent shall use their best good faith and efforts to resolve disputes before the commencement of legal proceedings.
              24. Severability
                If any provision of this Agreement shall be held to be illegal, invalid or unenforceable under present or future laws, such provisions shall be fully severable, this Agreement shall be construed and enforced as if such illegal, invalid or unenforceable provision had never comprised a part of this Agreement; and, the remaining provisions of this Agreement shall remain in full force and effect.
              25. Limitation of Liability
                UNLESS OTHERWISE AGREED TO BY BUYER AND SUPPLIER ELSEWHERE HEREIN, IN NO EVENT SHALL BUYER OR SUPPLIER BE LIABLE TO THE OTHER FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION, BUSINESS INTERRUPTION, LOSS OF OR UNAUTHORIZED ACCESS TO INFORMATION, DAMAGES FOR LOSS OF PROFITS, INCURRED BY THE OTHER UNDER THE PURCHASE ORDER, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
              26. Indemnification
                To the extent provided by law and this Agreement, Buyer and Agent s shall, at its own cost and expense, indemnify, defend, and hold harmless, the other, its Affiliates and Representatives (as later defined), officers, directors, employees, agents, successors and assigns, from and against any and all claims, damages, losses, and expenses (including attorneys’ fees and court costs) which arise directly or indirectly out of (a) any breach of this Agreement, or (b) the gross negligence or wilful misconduct of Buyer or Agent, their Affiliates and Representatives, officers, directors, employees, agents, successors and assigns.
              27. Entire Agreement
                This Agreement is the final, complete and exclusive Agreement of Buyer and Agent with respect to the subject matter hereof and supersedes and merges all prior or contemporaneous representations, discussions, proposals, negotiations, conditions, communications and Agreements, whether written or oral, between Buyer and Agent relating to the subject matter hereof and all past courses of dealing or industry custom. No modification of or amendment to this Agreement shall be effective unless in writing and signed by both Buyer and Agent.
              28. Binding Effect; Affiliates
                This Agreement shall include and be binding upon and inure to the benefit of Buyer and Agent and their respective heirs, successors, permitted assigns, Affiliates (as hereinafter defined) and Representatives. “Affiliate” shall mean, with respect to Buyer and Agent, any entity that controls or is controlled by Buyer or Agent or is under common control with Buyer or Agent. For purposes of this definition, an entity shall be deemed to control another entity if it owns or controls, directly or indirectly, at least fifty percent (50%) of the voting equity of another entity (or other comparable interest for an entity other than a corporation). “Representative” means a Buyer’s or Agent’s Affiliates and their managers, employees, agents, advisors, consultants, attorneys, accountants, financial advisors, and other independent contractors.
              29. No Waiver
                Buyer or Agent delay or failure to exercise any right or remedy will not result in a waiver of that or any other right or remedy.
              30. Headings
                The headings used in this Agreement and its division into articles, sections, schedules, exhibits, appendices, and other subdivisions do not affect its interpretation are for convenience only and shall not be used to limit or construe the contents of any of the sections of this Agreement.
              31. Survival
                Buyer and Agent agree that any term or condition of this Agreement which by its sense or nature should be deemed to survive the expiration or termination of this Agreement will so survive.