These terms and conditions of sale (these "Terms") govern the sale of products ("Products") by Tecno Display, Inc., a Nevada corporation (hereinafter called "Tecno Display"), to the buyer named on the quotation signed by buyer ("Purchaser"). These Terms, together with a signed quotation by Purchaser that contains the associated description of the Products and quantity and price terms and Tecno Display's invoices, regardless of whether signed electronically using an online electronic signature tool, physically, or otherwise (collectively, the "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 Purchaser's general terms and conditions of purchase regardless whether or when Purchaser has submitted its purchase order or such terms. Fulfillment of Purchaser's order does not constitute acceptance of any of Purchaser's terms and conditions and does not serve to modify or amend these Terms. By signing Tecno Display's quotation, the Purchaser accepts these Terms and agrees to be bound by the Agreement. Purchaser shall be deemed to have full knowledge of these Terms. Purchaser is hereby notified of Tecno Display's express rejection of any terms inconsistent with these Terms or to any other terms proposed by Purchaser in accepting Tecno Display's quotation. Neither Tecno Display's subsequent lack of objection to any terms, nor the delivery of the Products, shall constitute an agreement by Tecno Display to any of Purchaser's terms. Purchaser and Tecno Display are "Merchants" as defined in the Uniform Commercial Code ("UCC").
In the event of any conflict or inconsistency between the Agreement and the terms and conditions contained in Purchaser's order or in any other form issued by Purchaser or Tecno Display, whether or not any such form has been acknowledged or accepted by Tecno Display, the Agreement shall prevail.
Unless otherwise stated, Tecno Display's quotation shall be null and void unless accepted by Purchaser within thirty (30) days from the date of quotation.
3. PRICES / COST OF TRANSPORTATION
Prices do not include any taxes, freight, handling, duty or other similar charges, payments of which shall be the sole responsibility of Purchaser. Purchaser, however, shall not be responsible for any taxes imposed on, or with respect to, Tecno Display's income, revenues, gross receipts, personnel or real or personal property or other assets. Unless otherwise stated in the quotation, quoted prices are subject to change by Tecno Display with or without notice until Purchaser's acceptance. Prices are subject to correction for error. Unless otherwise stated, all prices are f.o.b. factory in Sparks, Nevada, and include domestic packing. Tecno Display may cancel Purchaser's order in full or in part without liability other than to return any deposit or prepayment which is unearned by reason of the cancellation.
Customary methods of shipping and a shipping provider will be selected by Tecno Display, in its sole discretion, and may be identified as a separate line item on the quote or provided to Purchaser after Purchaser's order; such shipping will be at Purchaser's sole expense. In an effort to provide excellent customer service, Tecno Display will make shipping arrangements with its select shipping provider and will cause Products to be shipped to Purchaser. Special methods of shipping or a different shipping provider may be used upon Purchaser's request and at Purchaser's additional expense provided reasonable notice of Purchaser's shipping requirements are given by Purchaser to Tecno Display prior to shipment. Purchaser bears the risk of ensuring the shipping method selected by Purchaser is appropriate for Purchaser's needs.
4. TERMS OF PAYMENT
Purchaser shall pay all invoiced amounts due to Tecno Display per the payment terms set forth in the quotation accepted by Purchaser. Purchaser 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. Purchaser shall reimburse Tecno Display for all losses, expenses and costs incurred in collecting any sums owing by Purchaser, including, without limitation, attorneys' fees. In addition to all other remedies available under these Terms or at law (which Tecno Display does not waive by the exercise of any rights hereunder), Tecno Display shall be entitled to suspend the manufacture or delivery of any Products if Purchaser fails to pay any amounts when due hereunder and such failure continues for 5 days following written notice thereof. Purchaser shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Tecno Display, whether relating to Tecno Display's breach, bankruptcy or otherwise. If default is made in any of the payments herein, Purchaser agrees that Tecno Display may retain all payments which have been made on account of the purchase price as liquidated damages. Payment may only be made via wire transfer, a check, online via ACH, or any other method requested by Tecno Display. Purchaser is responsible for a $30 fee for each returned check that Purchaser submits.
Any shipping date or delivery date stated represents Tecno Display's estimate of when the Products will be shipped or delivered, and depend upon Tecno Display's prompt receipt of all necessary information and payment from Purchaser. Tecno Display and the shipping company may extend delivery schedules without liability to Tecno Display. If Purchaser causes Tecno Display to delay shipment or completion of the Products, Tecno Display will be entitled to any and all extra costs and expenses resulting from the delay. Tecno Display is not liable for any delays, added costs, losses, or damage in transit, and failure to deliver within the time estimated will not be a material breach of the Agreement on Tecno Display's part.
Without limiting the foregoing, Tecno Display may, but will not be required to, shorten lead times and deliver Products more quickly than originally estimated, in accordance with Purchaser requests. Each shipment of Products to be delivered is to be considered a separate sale and Purchaser will pay the agreed price for each shipment without regard for any failure to deliver any subsequent shipment of such Products. Tecno Display's breach or default in the delivery of any particular shipment will not give Purchaser the right to refuse to receive any other shipment. Any back-ordered products will be considered a separate shipment. Time is not of the essence for delivery and Purchaser is not entitled to reject an otherwise conforming tender made within a reasonable time. Any failure by Purchaser to pay for any shipment within the time stated for payment is an anticipatory material breach with regard to other shipments. Once Tecno Display commences production of products and/or provision of services and/or determines a shipping or delivery date with regard to the same, Tecno Display will be entitled to provide, ship, and/or deliver such products and/or services and receive payment therefor and Purchaser may not revise the timing for receipt.
6. FORCE MAJEURE
Tecno Display shall not be responsible or liable for any loss or damage incurred by Purchaser resulting from causes beyond the reasonable control of Tecno Display including, but without limitation, acts of God, war, invasion, insurrection, riot , the order of any civil or military authority, fire, flood, weather, acts of the elements, delays in transportation, unavailability of equipment or materials, breakdown, sabotage, lock-outs, strikes or labor disputes, faulty castings or forgings, or the failure of Tecno Display's vendors to meet their obligations. The acceptance of delivery of the Products by Purchaser shall constitute a waiver of all claims for loss or damage due to any delay whatsoever.
7. SHIPMENT/DAMAGES OR SHORTAGES IN TRANSPORT/RISK
Except for obligations stated under Section 12 herein, Tecno Display's responsibility for Products ceases upon delivery to or pick up by the carrier. In the event of loss or damage during shipment, Purchaser's claim shall be against the carrier only. Tecno Display will, however, give Purchaser any reasonable assistance to secure adjustment of Purchaser's claim against the carrier provided immediate notice (no later than 24 hours from delivery) of such claim is given by Purchaser to Tecno Display. Shipments must be thoroughly inspected by Purchaser at the time of receipt and prior to signing any delivery receipt. If the delivered Products contain a shortage or the delivered Products are nonconforming, defective, or incomplete ("Nonconforming Products"), then the Purchaser must refuse the delivery and must specifically note the alleged issue(s) with the Nonconforming Products on the bill of lading. Signing a delivery receipt will be prima facie evidence to the fact that the entire contents of the shipment were received complete, in good condition without damage, and consistent with the specifications of Purchaser's order.
If Purchaser timely and properly refused delivery of any Nonconforming Products, then Tecno Display will, in its sole discretion, (i) replace the Nonconforming Products with conforming Products; (ii) credit or refund the purchase price for the Nonconforming Products, together with any reasonable shipping and handling expenses incurred by Purchaser; or (iii) repair or modify the Nonconforming Products. Upon receipt of the Nonconforming Products, Tecno Display will promptly refund the monies owed, repair or modify the Nonconforming Products, or ship the replacement Products to Purchaser at Tecno Display's expense, with Tecno Display retaining the risk of loss until delivery. Purchaser acknowledges and agrees that the remedies set forth in this Section 7 are Purchaser's exclusive remedies for the delivery of Nonconforming Products under the Agreement. Except as provided under Section 7, all sales of Products to Purchaser are made on a one-way basis and Purchaser has no right to return Products purchased to Tecno Display.
If Purchaser refuses to accept tender or delivery of any Products in violation of these Terms, returns any Products without authorization from Tecno Display, or Tecno Display is unable to ship the Products because Purchaser has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Products shall pass to Purchaser; (ii) the Products shall be deemed to have been delivered; (iii) Tecno Display, at its option, may store the Products until Purchaser picks them up, whereupon Purchaser shall be liable for all related costs and expenses (including, without limitation, storage and insurance); and (iv) Tecno Display may deem the Products abandoned pursuant to applicable law. The Products shall be installed by and at the risk and expense of Purchaser.
8. TITLE; SECURITY INTEREST
Except as specifically set forth in Section 7 of these Terms, title to the Products passes from Tecno Display to Purchaser upon Purchaser's payment in full for the Products. As collateral security for the Purchaser's obligations under the Agreement (payment or otherwise), Purchaser grants to Tecno Display a lien on and security interest in and to all of the right, title and interest of Purchaser in, to and under the Products, 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 Nevada Uniform Commercial Code. Tecno Display may file any financing statement and/or take any other action permitted by applicable law to perfect and enforce such security interest.
9. SPECIFICATIONS AND DRAWINGS
Purchaser may request in writing on the purchase order that the Products reflect certain specifications or design, which request must include specifics pertaining to color scheme, finishes, electrical requirements, measurements, hardware, and tolerances. All descriptive material, drawings and particulars of finishes and dimensions contained in Tecno Display's quote, Purchaser's purchase order, or any other documents, are intended merely to present a general idea of the Products and Tecno Display will not be liable for any misrepresentation or inaccuracy therein. If a Purchaser does not make any request pertaining to specifications or design, Tecno Display will use a standard anodized aluminum frame color with a laminate color selected by Tecno Display in its sole discretion. If Purchaser requests Products with a wood grain, Tecno Display has the right, in its sole discretion, to select the direction of the wood grain.
Regardless of the appearance of products online, in Tecno Display's catalog, purchase order, quotation, or any other document, the Purchaser must accept Products as satisfactory fulfillment of the Agreement notwithstanding variations to the appearance of the Products, including but not limited to, design, finishes, or color scheme (which do not affect their quality) which are reasonable, or attributed to any change in construction techniques or design within the limitations which are imposed by availability of materials and components and by production techniques.
No responsibility is accepted by Tecno Display for the accuracy or correctness of any information supplied by the Purchaser (and the Purchaser confirms that the information is accurate and suitable). The Purchaser shall be responsible for checking and approving any drawings provided by Tecno Display to ensure they satisfy the needs of the Purchaser. Tecno Display has no liability for Products that have had designs / drawings checked and / or approved that are subsequently found to not meet the needs of the Purchaser.
By agreeing to purchase the Products, Purchaser gives Tecno Display the right to enter Purchaser's premises, upon reasonable notice, to photograph the Products and use images of Products in Tecno Display's marketing materials.
10. PRODUCT RETURNS; CANCELLATION
No returns or refunds may be made for any reason, unless pursuant to Section 7 or Section 12 of these Terms. Cancellation or modification of all or part of any order are subject to Tecno Display's prior written consent in each instance. If cancellation or modification is allowed, Purchaser agrees to pay to Tecno Display all expenses incurred and damage sustained by Tecno Display on account of the cancellation or modification, plus a reasonable profit and overhead.
Purchaser shall defend, indemnify, and hold harmless Tecno Display and its employees, officers, directors, agents, affiliates, successors and assigns (collectively, the "Indemnified Parties") from and against any and all claims, suits, actions, demands, damages, losses, liabilities, penalties, fines, costs and expenses (including, without limitation, legal fees) whatsoever that are incurred by or made against any of the Indemnified Parties and that arise from (i) the acts, omissions, negligence or willful misconduct of Purchaser; (ii) any breach of the Agreement by Purchaser; or (iii) any claim by Purchaser, any of its customers or any successor holder of any of the Products, or any other person or entity, related to any products sold by Tecno Display, or the purchase, installation, or use of such products, or any undertakings, acts or omissions relating to such products, to the extent such claim is not based upon a product defect proven to have been caused solely by Tecno Display's gross negligence.
12. WARRANTY; DISCLAIMERS AND LIMITATION OF LIABILITY
Tecno Display warrants solely to Purchaser the electrical components of the Products to be free from defects in materials and workmanship, under normal use and service, for a period of 12 months from the date of shipment from Tecno Display ("Warranty Period"). If, prior to the expiration of the Warranty Period, Purchaser notifies Tecno Display in writing of any breach of this limited warranty and, upon Tecno Display's receipt of the defective component or Product, then Tecno Display's sole and exclusive obligation, and Purchaser's sole remedy for failure of any Product to conform to the above warranty is, at the option of Tecno Display, repair or replacement by Tecno Display or its suppliers of any product or part found to be defective; reimburse Purchaser for cost of repair and purchase of the defective part; or refund the monies paid by Purchaser for the non-conforming product. Purchaser must establish the product's purchase date by means satisfactory to Tecno Display in its sole discretion. Purchaser will bear the costs of access, de-installation, re-installation and transportation of the components and Products to Tecno Display and back to Purchaser.
Without limiting the generality of the foregoing, TECNO DISPLAY'S WARRANTY DOES NOT COVER ANY OTHER DEFECTS, INCLUDING BUT NOT LIMITED TO, light bulbs; woodwork; textile materials; product misuse, tampering or misapplication; improper installation; or application of improper voltage.
This warranty ceases to be effective if the Products are altered or repaired other than by persons authorized or approved by Tecno Display to perform such work. Repairs or replacement deliveries do not interrupt or prolong the Warranty Period. The warranty ceases to be effective if Purchaser fails to operate and use the Products sold hereunder in a safe and reasonable manner and in accordance with any written instructions from the manufacturers.
EXCEPT AS EXPRESSLY DESCRIBED ABOVE IN THIS SECTION 12, THE PRODUCTS SOLD BY TECNO DISPLAY ARE SUPPLIED "AS IS" AND WITH ALL FAULTS AND WITHOUT ANY WARRANTY WHATSOEVER. TECNO DISPLAY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (INCLUDING, WITHOUT LIMITATION, IN ADVERTISING MATERIALS, OR OTHER DESCRIPTIVE LITERATURE), WITH RESPECT TO THE PRODUCTS INCLUDING WARRANTIES AS TO THEIR QUALITY, PERFORMANCE, CONDITION, VISUAL IMPERFECTIONS, COLOR OR TEXTURE ABNORMALITIES, MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING IN THE AGREEMENT TO THE CONTRARY, TO THE FULLEST EXTENT PERMITTED BY LAW, Tecno DISPLAY WILL NOT BE LIABLE FOR ANY LOSSES OF ANY KIND; CLAIMS OF ANY KIND; OR INDIRECT, PUNITIVE, INCIDENTAL, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF REVENUE OR PROFITS) OF ANY KIND OR NATURE WHATSOEVER ARISING OUT OF, IN CONNECTION WITH OR RESULTING FROM THE SALE GOVERNED BY THE AGREEMENT OR THE PRODUCTS, INCLUDING, BUT WITHOUT LIMITATION, THE MANUFACTURE, REPAIR, HANDLING, INSTALLATION, POSSESSION, USE, OPERATION OR DISMANTLING OF THE PRODUCTS BY THE PURCHASER OR ANY CUSTOMER OR SUCCESSOR HOLDER OF ANY PRODUCT; BY THE PERFORMANCE OR FAILURE OF Tecno DISPLAY TO PERFORM UNDER THE AGREEMENT; BY ANY OTHER ACT OR OMISSION OF Tecno DISPLAY; OR BY ANY OTHER CAUSE WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE TO PURCHASER OR COULD HAVE BEEN REASONABLY FORESEEN BY PURCHASER, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, STRICT LIABILITY, BREACH OF WARRANTY OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
IN NO EVENT WILL TECNO DISPLAY'S TOTAL LIABILITY TO PURCHASER FOR ANY CLAIM UNDER AN AGREEMENT EXCEED THE SUM PAID TO TECNO DISPLAY BY PURCHASER FOR THE PRODUCTS SUPPLIED UNDER THE AGREEMENT IN CONNECTION WITH WHICH THE CLAIM ARISES.
NO ACTION MAY BE BROUGHT BY PURCHASER FOR ANY BREACH OF THESE TERMS MORE THAN 190 DAYS AFTER RECEIPT BY THE PURCHASER OF THE PRODUCTS SOLD BY Tecno Display THAT GAVE RISE TO SUCH CAUSE OF ACTION.
No waiver by Tecno Display of any of the provisions of the Agreement is effective unless explicitly set forth in writing and signed by Tecno Display's General Manager. No failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from these Terms operates or may be construed as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
14. INTELLECTUAL PROPERTY
Purchaser will obtain no right whatsoever in any copyright, patent, trademark, trade secret, or other intellectual property right of Tecno Display, whether in consequence of the Agreement, any transaction or dealing between Tecno Display and Purchaser, or otherwise. Tecno Display reserves all such rights to itself.
15. ATTORNEY FEES
Purchaser will pay Tecno Display's reasonable attorneys' fees and other costs and expenses for any legal or equitable action undertaken by Tecno Display to enforce the Agreement.
16. REMEDIES CUMULATIVE
All rights and remedies of Tecno Display under these Terms are cumulative. No pursuit or receipt by Tecno Display of any particular remedy will constitute an exclusive election of remedies and Tecno Display will have the benefit of all remedies available at law or in equity.
Any signatures required by Tecno Display may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same agreement. A copy of a signature received through email, telefax transmission or other electronic means (including files in Adobe .pdf or similar format) shall bind the party whose signature is so received, and shall be considered for all purposes, as if such signature were an original.
18. CONFIDENTIAL INFORMATION
All non-public, confidential or proprietary information of Tecno Display, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Tecno Display to Purchaser, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential," in connection with the Agreement is confidential, solely for the use of performing the Agreement and may not be disclosed or copied unless authorized in advance by Tecno Display in writing. Upon Tecno Display's request, Purchaser shall promptly return all documents and other materials received from Tecno Display. Tecno Display shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Purchaser at the time of disclosure; or (c) rightfully obtained by Purchaser on a non-confidential basis from a third party.
Purchaser shall not assign any of its rights or delegate any of its obligations under the Agreement without the prior written consent of Tecno Display. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Purchaser of any of its obligations under the Agreement.
20. RELATIONSHIP OF THE PARTIES
The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
21. NO THIRD-PARTY BENEFICIARIES
The Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Agreement.
22. GOVERNING LAW
All matters arising out of or relating to the Agreement are governed by and construed in accordance with the internal laws of the State of Nevada without giving effect to any choice or conflict of law provision or rule (whether of the State of Nevada or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Nevada.
23. SUBMISSION TO JURISDICTION
Any legal suit, action or proceeding arising out of or relating to the Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of Nevada in each case located in the Washoe County and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
If any term or provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of the Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
In addition to any remedies that may be provided under these Terms, Tecno Display may terminate the Agreement with immediate effect upon written notice to Purchaser, if Purchaser: (i) fails to pay any amount when due under the Agreement and such failure continues for 5 days after Tecno Display's provision 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. In any circumstance where Tecno Display has the right to demand adequate assurance of Purchaser's performance (such as under Section 2-609 of the UCC, where applicable), Purchaser will provide such assurance within 10 days after demand by Tecno Display.
All notices, statements or other communications which are required or contemplated by the Agreement shall be in writing (unless otherwise expressly provided herein) and shall be either personally served at or mailed to the last known mailing address of the person entitled thereto (including by facsimile or other means of electronic communication as provided below). In addition, a copy of each such notice, statement or communication intended for a party shall be furnished to such single additional addressee for that party as may be specified herein or specified in a like notice. All such notices, statements and other communications (or copies thereof) shall be deemed furnished to the person entitled thereto (a) on the date of service, if personally served at the last known mailing address of such person, or (b) on the date on which mailed, if mailed to such person in accordance with the terms of this Section. For purposes hereof, an item shall be considered mailed if the sender can establish that it was sent by means including, but not limited to, the following: (i) by United States Postal Service, postage prepaid and email; or (ii) by air courier service (Federal Express or the like) and email. Sender shall obtain written confirmation or proof of such communication (such as a transmission report, written acknowledgment from the recipient, or other reliable proof of delivery). For purposes hereof, the last known mailing address of Tecno Display shall be as follows:
If to Tecno Display:
Tecno Display, Inc.
676 Dunn Cir
Sparks NV 89431
With a copy to:
Infinity Law Group
201 Spear St. #1100
San Francisco CA 94105
Any party may change the address to which such notices, statements and other communications (or copies thereof) are to be delivered or mailed, by furnishing written notice of such change to the other parties, in the manner specified above.
27. WAIVER OF JURY TRIAL
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THE AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THE AGREEMENT OR THE PRODUCTS. EACH PARTY TO THE AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT: (1) NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT OF A LEGAL ACTION; (2) EACH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER; (3) EACH PARTY MAKES THIS WAIVER VOLUNTARILY; AND, (4) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THESE TERMS AND ANY ORDER BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THESE TERMS.