Shipping T&C - 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 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

Order made by an Invoice

1. Order
This Agreement is between the entity that made an 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 (“Supplier”) and covers the purchase and shipping of Products.

2. Acceptance and Effect
This Agreement is effective upon the acceptance of a quote, sending of an invoice, payment of an 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.
Supplier will pack Products for shipping to the shipping address on an Invoice. Buyer is responsible for ensuring address details are correct. Buyer will notify Supplier immediately of a change of address and Supplier will make best efforts to make corrections but as the order has been processed Supplier can not guarantee corrections. Supplier will provide proper and adequate packaging in accordance with best commercial practice.
b. Shipping and marking.
Supplier shall mark all containers with necessary shipping information. Buyer agrees that Supplier is not liable and has no responsibility for any information that the Buyer incorrectly provides or fails to provide.
c. Quantities.
c. Quantities.
For over-shipped quantities, Supplier 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 is damaged, Supplier has the option to (i) replace it or (ii) refund the cost of products, such a decision being at Supplier 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. Supplier will bear the cost for transportation for sending replacement Products. If Products to be exchanged is out of stock, you may have to wait until it becomes available. Please note. In addition, 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.

4. Insurance
Third party insurance for the full value of Buyer Products is highly recommended. Buyer agrees that Supplier 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, Supplier 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. Supplier 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 an Invoice, price does not include 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 an Invoice.

6. Taxes
Buyer will pay Supplier any sales, use or value added taxes it owes due to an Invoice and which the law requires Supplier to collect from Buyer. Unless Incoterm is stipulated as DDP on an 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 Supplier as stated in the “Payment Terms” on an Invoice.
b. An Invoice shall include the following information: Invoice Number, description of items, quantities and price including applicable taxes.

8. Delivery and Transfer of Ownership and Responsibility
a. Deliveries.
(i). Supplier will take all reasonable steps to ensure Buyer receives Products in a timely manner, Buyer acknowledges that many factors are beyond the control of Supplier, and that Supplier 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 Supplier cooperate with Buyer customs broker as directed by Buyer including providing requested shipping documentation in timely manner.
b. Responsibility.
Supplier is responsible for damage of Products until delivered to the address on the Invoice.

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. Import Refusal and Product Labels
a. Notwithstanding the Incoterms on Invoice, Supplier 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. Supplier 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 / destruction of Products due to conditions a. and b. above shall be payable by Buyer in addition to a 15,000 yen Supplier handling fee.

11. Right To Inspect and Reject
Buyer reserves the right to inspect Products within a reasonable time after delivery to the shipping address on a Purchase Order. In addition to all other rights provided by law, Buyer may reject any Products that: (i) are damaged, or (ii) do not conform to the Products listed on a Purchase Order. Buyer agrees that Supplier, at their sole discretion, has the option to (i) replace such rejected Products in a timely manner, or (ii) refund or credit Buyer account for the purchase price of such rejected Products.

12. Force Majeure
Supplier 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 Supplier reasonable control or that Supplier 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. Supplier warrants that Products delivered, the packaging and labelling and any other performance pursuant to a 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 items referred to on an Invoice.
b. Buyer warrants that they hold all the correct documentation, licences and legal status for the importation of Products.

14. Independent Party
At all times during this Agreement and any extension or renewal hereof, Supplier shall provide Products as an independent party and Supplier shall not act or represent the Buyer nor act as an agent, representative, employee, or in any other capacity, on behalf of Buyer.

15. Assignment
Buyer and Supplier 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.

16. Non Solicitation/Poaching
Buyer agrees that during the time under this Agreement, and for a period of 6 months thereafter, that it will not to directly or indirectly contact, deal with, transact, or otherwise be involved with any company Supplier purchases Products from. Buyer agrees not to directly or indirectly circumvent, avoid, or bypass Supplier regarding future business transactions and revenue with any company Supplier purchases Products from. In the event Buyer circumvents the Supplier, either directly or indirectly, and as a result Supplier loses any future business transactions and/or revenue Buyer agrees it shall pay liquidated damages to Supplier in an amount equal to two times the yearly revenue Supplier would have been entitled to receive had the circumventing action not taken place.

17. 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 the date of Supplier receiving by registered mail. Upon the effective termination date, Supplier will inform Buyer of the extent to which it has completed its performance under this Agreement. Buyer will pay Supplier 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 Supplier completed or provided Products. Buyer will have no further payment obligation in connection with any termination.

18. Confidentiality Information and Non Disclosure
Buyer and Supplier 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 Supplier agree that the Confidential Information will only be disclosed to Buyer and Supplier employees, agents or consultants with a need to know and who are under a written obligation to keep such information confidential. Buyer and Supplier will not disclose the Confidential Information to any third Parties.

19. Return of Materials
Buyer and Supplier 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.

20. Governing Law and Dispute Resolution
a. Governing Law
This Agreement and all acts and transactions pursuant hereto and the rights and obligations of Buyer and Supplier 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 Supplier, Buyer and Supplier may seek injunctive relief in any court of competent jurisdiction against improper use or disclosure of Confidential Information.

b. Dispute Resolution.
In all cases, Buyer and Supplier shall use their best good faith and efforts to resolve disputes before the commencement of legal proceedings.

21. 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.

22. 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 THIS PURCHASE ORDER, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

23. Indemnification
To the extent provided by law and this Agreement, Buyer and Supplier 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 Supplier, their Affiliates and Representatives, officers, directors, employees, agents, successors and assigns.

24. Entire Agreement
This Agreement is the final, complete and exclusive Agreement of Buyer and Supplier 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 Supplier 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 Supplier.

25. Binding Effect; Affiliates
This Agreement shall include and be binding upon and inure to the benefit of Buyer and Supplier and their respective heirs, successors, permitted assigns, Affiliates (as hereinafter defined) and Representatives. “Affiliate” shall mean, with respect to Buyer and Supplier, any entity that controls or is controlled by Buyer or Supplier or is under common control with Buyer or Supplier. 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 Supplier’s Affiliates and their managers, employees, agents, advisors, consultants, attorneys, accountants, financial advisors, and other independent contractors.

26. No Waiver
Buyer or Supplier delay or failure to exercise any right or remedy will not result in a waiver of that or any other right or remedy.

27. 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.

28. Counterparts
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

29. Survival
Buyer and Supplier 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.

Order made by Purchase Order

1. Order
This Agreement is between the buying entity on a 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 (“Supplier”) and covers the purchase and shipping of Products.

2. Acceptance and Effect
This Agreement is effective upon receiving a Purchase Order, shipment of any Products, or commencement of work pursuant to a Purchase Order; whichever is earlier.

3. Packing, Shipment and Returns of Products
a. Packing.
Supplier will pack Products for shipping to the shipping address on a Purchase Order. Buyer is responsible for ensuring address details are correct. Buyer will notify Supplier immediately of a change of address and Supplier will make best efforts to make corrections but as the order has been processed Supplier can not guarantee corrections. Supplier will provide proper and adequate packaging in accordance with best commercial practice.
b. Shipping and marking.
Supplier shall mark all containers with necessary shipping information. Buyer agrees that Supplier 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, Supplier 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 Purchase Order Products, or is damaged, Supplier has the option to (i) replace it or (ii) refund the cost of products, such a decision being at Supplier 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. Supplier will bear the cost for transportation for sending replacement Products. If Products to be exchanged is out of stock, you may have to wait until it becomes available. Please note. In addition, 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.

4. Insurance
Third party insurance for the full value of Buyer Products is highly recommended. Buyer agrees that Supplier 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, Supplier 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. Supplier 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 a Purchase Order. Unless otherwise specified on a Purchase Order, price does not include 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 a Purchase Order.

6. Taxes
Buyer will pay Supplier any sales, use or value added taxes it owes due to a Purchase Order and which the law requires Supplier to collect from Buyer. Unless Incoterm is stipulated as DDP on a 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 Supplier as stated in the “Payment Terms” on an Invoice.
b. An Invoice shall include the following information: Purchase Order number, Invoice Number, description of items, quantities and price including applicable taxes.

8. Delivery and Transfer of Ownership and Responsibility
a. Deliveries.
(i). Supplier will take all reasonable steps to ensure Buyer receives Products in a timely manner, Buyer acknowledges that many factors are beyond the control of Supplier, and that Supplier 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 Supplier cooperate with Buyer customs broker as directed by Buyer including providing requested shipping documentation in timely manner.
b. Responsibility.
Supplier is responsible for damage of Products until delivered to the address on Purchase Order.

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. Import Refusal and Product Labels
a. Notwithstanding the Incoterms on Purchase Order , Supplier 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. Supplier 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 / destruction of Products due to conditions a. and b. above shall be payable by Buyer in addition to a 15,000 yen Supplier handling fee.

11. Right To Inspect and Reject
Buyer reserves the right to inspect Products within a reasonable time after delivery to the shipping address on a Purchase Order. In addition to all other rights provided by law, Buyer may reject any Products that: (i) are damaged, or (ii) do not conform to the Products listed on a Purchase Order. Buyer agrees that Supplier, at their sole discretion, has the option to (i) replace such rejected Products in a timely manner, or (ii) refund or credit Buyer account for the purchase price of such rejected Products.

12. Force Majeure
Supplier 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 Supplier reasonable control or that Supplier 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. Supplier warrants that Products delivered, the packaging and labelling and any other performance pursuant to a 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 items referred to on an Invoice.
b. Buyer warrants that they hold all the correct documentation, licences and legal status for the importation of Products.

14. Independent Contractor
At all times during this Agreement and any extension or renewal hereof, Supplier shall provide Products as an independent party and Supplier shall not act or represent the Buyer nor act as an agent, representative, employee, or in any other capacity, on behalf of Buyer.

15. Assignment
Buyer and Supplier 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.

16. Non Solicitation/Poaching
Buyer agrees that during the time under this Agreement, and for a period of 6 months thereafter, that it will not to directly or indirectly contact, deal with, transact, or otherwise be involved with any company Supplier purchases Products from. Buyer agrees not to directly or indirectly circumvent, avoid, or bypass Supplier regarding future business transactions and revenue with any company Supplier purchases Products from. In the event Buyer circumvents the Supplier, either directly or indirectly, and as a result Supplier loses any future business transactions and/or revenue Buyer agrees it shall pay liquidated damages to Supplier in an amount equal to two times the yearly revenue Supplier would have been entitled to receive had the circumventing action not taken place.

17. 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 the date of Supplier receiving by registered mail. Upon the effective termination date, Supplier will inform Buyer of the extent to which it has completed its performance under this Agreement. Buyer will pay Supplier 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 Supplier completed or provided Products. Buyer will have no further payment obligation in connection with any termination.

18. Confidentiality Information
Buyer and Supplier 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 Supplier agree that the Confidential Information will only be disclosed to Buyer and Supplier employees, agents or consultants with a need to know and who are under a written obligation to keep such information confidential. Buyer and Supplier will not disclose the Confidential Information to any third Parties.es.

19. Return of Materials
Buyer and Supplier 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.

20. Governing Law and Dispute Resolution
a. Governing Law
This Agreement and all acts and transactions pursuant hereto and the rights and obligations of Buyer and Supplier 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 Supplier, Buyer and Supplier may seek injunctive relief in any court of competent jurisdiction against improper use or disclosure of Confidential Information.
b. Dispute Resolution.
In all cases, Buyer and Supplier shall use their best good faith and efforts to resolve disputes before the commencement of legal proceedings.

21. 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.

22. 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 THIS PURCHASE ORDER, EVEN IF THEY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

23. Indemnification
To the extent provided by law and this Agreement, Buyer and Supplier 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 Supplier, their Affiliates and Representatives, officers, directors, employees, agents, successors and assigns.

24. Entire Agreement
This Agreement is the final, complete and exclusive Agreement of Buyer and Supplier 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 Supplier 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 Supplier.

25. Binding Effect; Affiliates
This Agreement shall include and be binding upon and inure to the benefit of Buyer and Supplier and their respective heirs, successors, permitted assigns, Affiliates (as hereinafter defined) and Representatives. “Affiliate” shall mean, with respect to Buyer and Supplier, any entity that controls or is controlled by Buyer or Supplier or is under common control with Buyer or Supplier. 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 Supplier’s Affiliates and their managers, employees, agents, advisors, consultants, attorneys, accountants, financial advisors, and other independent contractors.

26. No Waiver
Buyer or Supplier delay or failure to exercise any right or remedy will not result in a waiver of that or any other right or remedy.

27. 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.

28. Counterparts
This Agreement may be executed in two or more counterparts, each of which shall be deemed an original and all of which together shall constitute one instrument.

29. Survival
Buyer and Supplier 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.