THESE STANDARD TERMS AND CONDITIONS (the “Terms”) set forth herein constitute a legal agreement between you, the individual or entity identified in the Order Confirmation (as defined below) as the “Buyer” and Innovative Solar Solutions LLC a Limited Liability Company located at 2917 State HW 7, Bainbridge, NY 13733 (“SunMaxx Solar”). These Terms refers to Buyer and SunMaxx Solar collectively as the “Parties” and each individually as a “Party.”
SUNMAXX SOLAR MAY, AT ITS SOLE DISCRETION, CHANGE, UPDATE, AMEND OR MODIFY THESE TERMS (THE “MODIFICATIONS”) AT ANY TIME AND WITHOUT NOTICE TO BUYER, SUCH CHANGES, UPDATES, AMENDMENTS OR MODIFICATIONS SHALL BE IN EACH ORDER CONFIRMATION, AND THE NON-CANCELLATION OF BUYER’S PURCHASE ORDER WITHIN TWENTY-FOUR (24) HOURS FOLLOWING THE DELIVERY OF SUCH ORDER CONFIRMATION BY SUNMAXX SOLAR CONSTITUTES BUYER’S ACCEPTANCE OF SUCH MODIFICATIONS AS SET FORTH IN SUCH ORDER CONFIRMATION. IT IS BUYER’S OBLIGATION TO REVIEW THE TERMS STATED IN EACH ORDER CONFIRMATION FOR ANY SUCH MODIFICATIONS.
1. Applicability. These Terms will govern Buyer’s purchase of the goods listed in the Order Confirmation (the “Contracted Goods”). The term “Order Confirmation” shall mean the written documentation issued by SunMaxx Solar to Buyer to confirm receipt of an order (the “Purchase Order” and as defined in Section 6 below) placed by Buyer.
2. Acceptance. Buyer is acknowledging that Buyer has read, understood and agreed to be legally bound by these Terms. Further, Buyer represents and warrants that the person executing the Purchase Order on Buyer’s behalf is duly authorized to do so. No Purchase Order is binding upon SunMaxx Solar, unless an Order Confirmation is delivered to Buyer by SunMaxx Solar.
3. Pricing. SunMaxx Solar shall supply, and Buyer shall purchase, the Contracted Goods at the price specified in the Order Confirmation plus any applicable tax. Buyer shall (i) assume and pay, or cause to be paid, any and all such Taxes (as defined herein); or (ii) provide SunMaxx Solar with a tax exempt certificate acceptable to the appropriate taxing authorities (provided that, as between Buyer and SunMaxx Solar, Buyer shall remain solely liable for any and all such Taxes and shall pay any Taxes subsequently deemed unpaid by such taxing authority). Under this Section, “Taxes” shall collectively mean any and all local, state, federal, foreign or other taxes or charges by any governmental authority including without limitation sales, use, value-added, excise, customs, export, import, withholding or similar duties, tariffs, or charges, and any related penalties and interest.
4. Price Escalation. In the event that SunMaxx Solar’s cost to import, produce, procure and / or transport the Contracted Goods increases, Buyer agrees that the Purchase Price shall be increased by an amount equal to said increases. The aforementioned price adjustment shall be effective upon Buyer’s receipt of written notice of same from SunMaxx Solar. A revised order confirmation may be issued to Buyer hereunder.
5. Product Substitution. SunMaxx Solar reserves the right to substitute substantially equivalent or superior goods, as determined by SunMaxx Solar, for the Contracted Goods. In the event such substitution is necessary, SunMaxx Solar may provide Buyer with reasonable notice.
6. Purchase Orders. Buyer shall place orders for the Contracted Goods by issuing a Purchase Order to SunMaxx Solar, which shall: (i) designate the SunMaxx Solar article number, product description, quantity, metric unit, finish color and price for the Contracted Goods; (ii) a purchase order number; (iii) a unique project name; (iv) specify the billing and ship-to addresses with any special shipping and handling instructions; and (v) provides the Buyer’s name and contact information. The Purchase Order shall be deemed accepted by SunMaxx Solar upon delivery of a written Order Confirmation to Buyer. SunMaxx Solar reserves the right to refuse acceptance of any submitted Purchase Order for any reason. SunMaxx Solar shall not be liable for any losses, claims and/or damages resulting from Buyer’s failure to verify the accuracy and completeness of the order confirmation Nor FOR buyer’s Reliance on a purchase order Not Confirmed by SunMaxx Solar. Additional charges will apply for special shipping and handling requests.
7. Form Conflicts. To the extent that any conflict or discrepancy exists between these Terms and those of any sales quotation, Purchase Order, invoice or other similar document, these Terms shall control.
8. Cancellation. Buyer shall have the option to cancel a confirmed purchase order within twenty-four (24) hours after receipt of the Order Confirmation without penalty. In the event Buyer cancels an order more than twenty-four (24) hours after receipt of the Order Confirmation, SunMaxx Solar shall be entitled to a cancellation fee in an amount equal to: (i) ten percent (10%) of the purchase price listed in the Order Confirmation, plus (ii) actual costs spent for special order Contracted Goods, plus (iii) any amounts already paid by Buyer to SunMaxx Solar for the Contracted Goods. Buyer may be invoiced by SunMaxx Solar for said amount.
9. Invoicing. An invoice, reflecting any applicable discounts, shall be issued by SunMaxx Solar to Buyer for the Contracted Goods at the time of delivery.
10. Payment. Subject to any line of credit terms and/or an anticipated Rebate (as defined and detailed below), Buyer shall pay SunMaxx Solar all invoiced amounts in U.S. dollars, without right to offset, upon receipt of the invoice. To the extent that any Rebate amount received by SunMaxx Solar exceeds the anticipated Rebate amount, SunMaxx Solar shall immediately apply the balance to any accrued interest due and to any unpaid invoices of Buyer and then pay the excess balance to Buyer within a reasonable time. SunMaxx Solar may, at its option: (i) immediately terminate this Agreement and all rights of Buyer hereunder shall be terminated for non-payment, and/or (ii) Buyer shall pay a late payment charge computed at twelve percent (12%) per annum or the maximum interest rate permitted by Connecticut law on any past due amount. Further, SunMaxx Solar does not accept back charges of any type and/or for any reason, whether by Buyer’s invoice or not.
11. Pre-Judgment Attachment Remedy. In the event that Buyer fails to tender when due all amounts payable to SunMaxx Solar and SunMaxx Solar commences litigation to recover said amounts, Buyer consents to the entry of a prejudgment order of attachment with respect to any and all of Buyer’s assets within the jurisdiction of the Court issuing the order. SunMaxx Solar shall have the right to make application for this remedy on an ex parte basis, and Buyer expressly waives any and all statutory rights to notice of hearing and/or hearing in connection with said pre-judgment remedy under applicable state and/or federal law.
12. Arrears. SunMaxx Solar, at its sole discretion, may refuse to issue an Order Confirmation with respect to any Purchase Order and/or make fulfilled orders of Contracted Goods available for delivery if Buyer has one or more past due invoices with respect to earlier purchases of the Contracted Goods
13. Refund. In the event that Buyer overpays an invoice, SunMaxx Solar will issue a refund, without interest, to Buyer within thirty (30) days of Buyer’s notice to SunMaxx Solar of its entitlement to a refund of the overpaid amount.
14. Financial Instability. If at any time SunMaxx Solar reasonably determines that Buyer’s financial condition does not justify the continuation of SunMaxx Solar’s performance, SunMaxx Solar, at its sole discretion, may require full or partial payment for the Contracted Goods from Buyer or shall be entitled to suspend or terminate any performance without protest or penalty from Buyer. In the event of termination, the Parties’ obligations hereunder shall continue beyond such termination date for any confirmed Purchase Order not yet been fulfilled on or by the termination date until such confirmed Purchase Order and payment thereof is fulfilled by each respective Party. THE CREDIT TERMS PROVIDED BY SUNMAXX SOLAR TO BUYER ARE IN ITS SOLE DISCRETION AND CAN BE ELIMINATED AT ANY TIME BY SUNMAXX SOLAR.
15. Delivery Dates. The estimated delivery date for the Contracted Goods shall be specified on the Order Confirmation which is SunMaxx Solar’s reasonable estimate of the delivery date based on anticipated factory loads. However, SunMaxx Solar reserves the right to adjust the delivery schedule as may be commercially necessary to ensure delivery of the Contracted Goods in the specified quantities. SunMaxx Solar may, but has no obligation to do so, provide logistical assistance to Buyer.
16. Delivery. SunMaxx Solar shall deliver the Contracted Goods F.O.B. Origin, freight collect (F.O.B. Origin, freight prepaid if SunMaxx Solar pays shipping) as designated by SunMaxx Solar. Expedited shipping is at Buyer’s sole expense. Risk of loss and title of the Contracted Goods shall pass to Buyer upon notification that the contracted goods are available for shipment. It is the responsibility of buyer to arrange for and obtain insurance for the shipment of the contracted goods. All losses, claims and/or damages sustained during the shipment of the contracted goods to buyer are the responsibility of buyer and/or third party shipper.
17. Storage. If, for any reason, Buyer fails to promptly pick up, arrange for shipment or pay for the Contracted Goods upon notification that the Contracted Goods are available for delivery, SunMaxx Solar may place some or all of the Contracted Goods in storage. All expenses incurred by SunMaxx Solar for the storage of the Contracted Goods, such as preparation, placement, handling, inspection, preservation, restocking, insurance, removal charges and any Taxes shall be payable by Buyer upon receipt of SunMaxx Solar’s invoice(s) for such storage charges. Upon payment of all amounts due hereunder and subject to the terms of Section 19 below, SunMaxx Solar shall then make the Contracted Goods available to Buyer for pick-up or third party shipment. In any event, risk of loss remains with Buyer while the Contracted Goods remain in storage.
18. Abandonment. If the Contracted Goods remain in storage for more than thirty (30) days due to the failure of Buyer to take possession of the Contracted Goods, Buyer will be deemed to have abandoned the Contracted Goods. In such case, title to the Contracted Goods shall be deemed to pass back to SunMaxx Solar whereupon SunMaxx Solar shall have the right, though not the obligation, to dispose of the Contracted Goods in any commercially reasonable manner, including resale to a third party and without liability to SunMaxx Solar from Buyer. If, after abandonment, Buyer desires to take possession of the Contracted Goods, Buyer will be required to submit a Purchase Order with SunMaxx Solar which be processed on a non-priority basis. In such case, all previously issued Purchase Order(s) and Order Confirmation(s) for the abandoned Contracted Goods shall be void under this Section.
19. Returns. SunMaxx Solar will not accept the return of any Contracted Goods that are conforming and non-defective unless such return has previously been agreed to in writing and signed by the SunMaxx Solar Customer Service Operations Manager. All permitted returns of the Contracted Goods shall be: (i) made within six (6) months of the invoice date; (ii) in its original packaging; and (ii) not broken or altered. A twenty percent (20%) restocking fee applies to all returns of conforming and non-defective goods and for abandoned Contracted Goods. Return shipping is at the expense of Buyer. The determination of whether any particular Contracted Goods are conforming and/or non-defective shall be made exclusively by SunMaxx Solar.
20. Warranty Claims. In addition to SunMaxx Solar’s right of indemnification by Buyer as provided herein, should SunMaxx Solar investigate a product defective or warranty claim made by the Buyer and / or the Buyer’s customer (the End-Purchaser”) which is later determined not to have been a SunMaxx Solar product defect as defined by the applicable product warranty documentation, but a defect due to defective installation procedures and / or poor quality workmanship on the part of the Buyer or for defective product not manufactured and / or sold by SunMaxx Solar, Buyer shall be liable to SunMaxx Solar for all costs incurred by SunMaxx Solar in investigating the claim, including reasonable attorney fees and expenses.
21. Limited Warranty. EXCEPT AS PROVIDED IN THE SunMaxx Solar PRODUCT
WARRANTY, WARRANTY OF TITLE OR INFRINGEMENT, SunMaxx Solar DOES NOT
MAKE OR GIVE ANY REPRESENTATIONS, GUARANTEES, WARRANTIES
OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES AS TO PERFORMANCE, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, AND WARRANTIES ARISING BY STATUTE OR OTHERWISE, OR FROM A COURSE OF DEALING OR USAGE OF TRADE.
Product and Limited Workmanship Warranty
22. Informational Disclaimers. Samples, descriptions, representations and any other information concerning the Contracted Goods contained in SunMaxx Solar’s catalogs, advertisements or other marketing materials are for general informational purposes only and are not binding upon SunMaxx Solar. No employee or other representative of SunMaxx Solar has any authority to make any other promise regarding SunMaxx Solar’s obligations for a failure of the Contracted Goods to conform to certain specifications or expectations. SunMaxx Solar shall not be obligated to provide any advice, assistance or support in connection with the Contracted Goods, and shall not be liable for any such advice, assistance or support that is provided to Buyer.
23. Support Services. SunMaxx Solar shall not be obligated to provide any advice, assistance or support services in connection with the Contracted Goods. All services are provided on a commercially reasonable basis without any guarantees of success and only in an advisory capacity. SunMaxx Solar makes no warranties of any kind, express or implied, and accepts no liability in providing said services hereunder to Buyer. ALL said Services Provided to buyer does not release buyer from buyer’s obligation to carry out buyer’s own tests, quality control measures and independent engineering related to The contracted goods and buyer’s project.
24. Class Waiver. Buyer agrees that all claims or disputes between SunMaxx Solar and Buyer will be brought individually; that Buyer will not consolidate claims with the claims of any other individual, entity; that Buyer will not seek class or collective action treatment for any claim; that Buyer will not participate in any class or collective action against SunMaxx Solar or against any persons or entities associated with SunMaxx Solar. If at any time any member of Buyer is made a member of a class in any proceeding, that individual will “opt out” at the first opportunity, and should any third party pursue any claims on their behalf, those individuals shall waive their rights to any such monetary recovery. In other words, Buyer and any members of Buyer expressly waive their right to prosecute, participate in, or pursue a class or collective action and/or other joint proceeding against SunMaxx Solar.
25. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, SunMaxx Solar AND ITS AFFILIATES UNDER COMMON CONTROL WITH IT, DIRECTORS, OFFICERS, EMPLOYEES REPRESENTATIVES AND AGENTS SHALL HAVE NO LIABILITY WHATSOEVER FOR ALL CLAIMS ARISING HEREUNDER, NOTWITHSTANDING THE FORM IN WHICH ANY SUCH ACTION IS BROUGHT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), FUNDAMENTAL BREACH, BREACH OF WARRANTY OR OTHERWISE AND BUYER HEREBY WAIVES ANY RIGHT IT HAS TO ASSERT ANY SUCH CLAIM OR COMMENCE ANY SUCH ACTION.
26. Exclusion of Indirect Damages. WITHOUT LIMITING THE GENERAL SCOPE OF SECTION 28 ABOVE, SunMaxx Solar SHALL NOT BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES, THIRD PARTY CLAIMS, LOSS OF REVENUES, LOSS OF PROFITS OR LOSS OF SAVINGS EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE FORM IN WHICH ANY ACTION IS BROUGHT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), FUNDAMENTAL BREACH, BREACH OF WARRANTY OR OTHERWISE.
27. Indemnification. Buyer agrees to indemnify, hold harmless and promise to defend SunMaxx Solar (including its affiliates under common control with it, and its directors, officers, employees, representatives and agents) from, any and all liabilities, obligations, losses, claims, proceedings, actions, suits, costs, expenses (including, without limitation, attorneys fees and expenses) and damages of any nature (including but not limited to claims by any property owner and/or general contractors) in any way arising out of or relating to the Contracted Goods or any act or omission of Buyer’s affiliates under common control with it, directors, employees, representatives or agents. This Section does not apply to any cost or damage attributable to the gross negligence or intentional misconduct of SunMaxx Solar. Buyer’s obligations under this Section shall survive termination of any Purchase Order, Order Confirmation or any other agreement between the Parties.
28. Performance Delays. SunMaxx Solar shall not have any liability or be considered in breach of its obligations under these Terms if SunMaxx Solar’s performance is delayed or prevented due to: (i) causes beyond its reasonable control, including, without limitation, acts of Force Majeure (as defined below); (ii) acts or omissions by Buyer including failure to provide SunMaxx Solar with licensing, permitting, insurance and other similar information; (iii) the loss of or ineligibility for any rebate, grant or other funding by Buyer or the end-purchaser of Buyer; (iv) the Contracted Goods were placed into storage; (v) customs, import or export delays or (vi) Buyer’s failure to comply with any term set forth herein.
29. Force Majeure. The term “Force Majeure” shall include without limitation: (i) an act of God or the public enemy, fire, explosion, perils of the sea, flood, drought, war, riot, sabotage, accident, embargo; (ii) without limiting the foregoing circumstances, any circumstances of like or different character beyond the reasonable control of the party so failing; (iii) interruption of/or delay in transportation, inadequacy or shortage or failure of normal sources of supply of materials or equipment, breakdowns, labor trouble for whatever cause arising and whether or not the demands of the employees involved are reasonable and within said party’s power to concede; (iv) compliance by SunMaxx Solar or Buyer with any order, action, direction or request of any governmental officer, department, agency, authority or committee thereof (including any direction or order restricting or limiting the selling price of the Contracted Good(s) specified herein or of any material produced in conjunction therewith or in connection with which such materials are used, which renders it impossible for SunMaxx Solar, in its sole discretion, to make a reasonable profit on such production or use); or (v) any reduction of demand for one product produced in a co-product plant resulting in a limited supply of the Contracted Good(s), shall excuse the failure of the party so affected until such time as such occurrence shall have ceased to affect the party in question and shall absolve the affected party of liability to the other and the total quantity to be delivered hereunder shall be reduced by the quantity of the delivery or deliveries (or portions thereof) so omitted.
30. Legal Fees and Costs. Should SunMaxx Solar engage the services of a collection agency and / or an attorney to enforce any of its rights hereunder or should Buyer fail to make timely payment of any amount due to SunMaxx Solar hereunder and such action becomes necessary to collect such amount, SunMaxx Solar shall be entitled to recover from Buyer all costs incurred in connection with such actions, including its reasonable attorneys’ fees and expenses.
31. Independent Contractor. SunMaxx Solar’s relationship with Buyer is that of an independent contractor, and nothing herein is intended, or should be construed, to create a partnership, agency, joint venture or employment relationship between the Parties. Under no circumstances shall Buyer, its agents or respective employees represent themselves as SunMaxx Solar employees or agents. Neither Buyer nor any of its employees or contractors are eligible to receive any employee benefits from SunMaxx Solar, and Buyer is responsible for any expenses paid or incurred by Buyer its employees or contractors.
32. Buyer Representations. Buyer warrants to SunMaxx Solar that it: (i) is experienced, competent and qualified to install the Contracted Goods as a sophisticated user; (ii) it will install, store and maintain the Contracted Goods in a neat and professional manner in accordance with all applicable SunMaxx Solar manuals; (iii) it will follow established trade practices in the area for the installation of the Contracted Goods; (iv) it will adhere to all applicable laws, rules, regulations, ordinances, building codes, or other lawful requirements for the installation of the Contracted Goods; and (v) has established a quality control program to ensure that the Contracted Goods will be properly installed in accordance with this Section.
33. Default and Termination. The occurrence of any one or more of the following shall be deemed an event of default hereunder: (i) the failure of Buyer to comply with any term of these Terms, any Order Confirmation or any other agreement with SunMaxx Solar; (ii) the making by Buyer of an assignment for the benefit of its creditors; (iii) the institution of proceedings in a court of competent jurisdiction for the reorganization, liquidation, or involuntary dissolution of Buyer; or (iv) the taking advantage by Buyer of any debtor relief proceedings under any present or future law, whereby the liabilities or obligations of Buyer are or are proposed to be reduced or payment thereof deferred. Upon any such event of default, SunMaxx Solar may, at its option, (i) immediately terminate all transactions with Buyer and all rights of Buyer under any Purchase Order, Order Confirmation and hereunder shall be terminated; (ii) withhold or suspend its performance hereunder, including, without limitation, withholding any delivery of Contracted Goods any Purchase Order or Order Confirmation; (iii) accelerate all of obligations of Buyer to SunMaxx Solar; and (iv) exercise any other remedies available to it pursuant to law or equity, and Buyer shall pay to SunMaxx Solar upon demand a sum equal to the amount expended by SunMaxx Solar thereof, including any court costs and legal fees and interest as allowed herein. All remedies shall be non-exclusive and SunMaxx Solar shall be entitled to exercise at any or all remedies from time to time. Any such actions by SunMaxx Solar shall not relieve Buyer from its obligations to fully perform the covenants contained herein. In the event of any event of default, SunMaxx Solar shall be authorized, in addition to any other remedies, to recover its costs, fees, damages and any other monies due it by withholding and/or offsetting monies due Buyer. Any action by Buyer for breach by SunMaxx Solar, must be commenced within (1) one year of the date of delivery as set for in Section 17 hereof, or due date of delivery in the event of non-delivery, of the particular shipment upon which such action is based.
34. Export Control. Notwithstanding anything to the contrary herein, it is agreed and understood that the Contracted Goods may be installed only in North America. Export by Buyer of the Contracted Goods to any market outside of North America is strictly prohibited and any such export shall be deemed to be a material breach of this Agreement. To verify Buyer’s compliance with this provision of the Agreement, Buyer agrees to permit, upon request and reasonable notice, SunMaxx Solar (or its agent) to inspect Buyer’s warehouses and the sites where Buyer or any third party has installed the Contracted Goods; or in the alternative, at SunMaxx Solar’s option, to provide SunMaxx Solar with photographs and/or other technical details of the installation site. Without limiting the applicability of any other rights or remedies available to SunMaxx Solar, the following additional rights and remedies shall apply under this Section: (i) SunMaxx Solar shall have no obligation whatsoever to Buyer, end purchaser or any third party to honor any product warranty with respect to any of the Contracted Goods offered for sale or sold outside of North America (the “Exported Contracted Goods”), and any such warranty claims made with respect to the Exported Contracted Goods shall not be honored; (ii) SunMaxx Solar shall have no liability to Buyer for any losses of any kind, whether direct, indirect, incidental, consequential, foreseeable or unforeseeable, which may result from sale or use of the Exported Contracted Goods, including, but not limited, to losses relating to the lack of certification, suitability, or fitness of the Exported Contracted Goods for use in the local market where sold; (iii) Buyer shall indemnify, hold harmless and defend SunMaxx Solar and its affiliates and their officers, from and against any and all liabilities, obligations, losses, claims, damages, actions, suits, proceedings, investigations, demands, assessments, adjustments, settlement payments, costs and expenses (including reasonable legal fees and expenses), and deficiencies suffered, sustained, incurred or paid by SunMaxx Solar (collectively, the “Losses”) in connection with, resulting from, relating to the Exported Contracted Goods; (iv) Buyer agrees to promptly notify SunMaxx Solar in writing with respect to any claim, action, suit, proceeding or investigation under this Section and to promptly reimburse SunMaxx Solar for any Losses; (v) SunMaxx Solar, at its option, shall have the right to immediately terminate this Agreement, which termination shall be effective upon receipt by Buyer, and in such case Buyer shall not be entitled to an opportunity to cure the default; (vi) SunMaxx Solar, at its option, shall have the right to enter onto Buyer’s property, and using any commercially reasonable means available to it, repossess any and all of the Exported Contracted Goods sold pursuant to this Agreement; and (vii) Liquidated damages for a breach under this Section shall be fixed in the amount of one hundred twenty percent (120%) of the difference in price between the retail price of the Exported Contracted Goods if sold in North America and the retail price of the comparable product(s) sold in the local market where the Exported Contracted Goods were sold, or SunMaxx Solar’s actual damages, whichever is greater. The foregoing additional rights and remedies of this Section shall survive termination of these Terms.
35. SunMaxx Solar grants to Buyer a revocable, non-exclusive and royalty free right to use all SunMaxx Solar trademarked materials (the “Marks”), whether registered or unregistered, that are owned by or licensed to SunMaxx Solar, provided that: (i) such use is limited to and in connection with Buyer’s advertising and marketing efforts as SunMaxx Solar deems reasonably necessary or advisable; and (ii) SunMaxx Solar has provided Buyer with written approval to use said Marks. For purposes of this Section, the term “Marks” shall mean graphics, art, images, logos, photographs, videos, music, sounds and/or other printed materials that are protected by U.S. and/or German copyright laws and international treaties. SunMaxx Solar retains full ownership, rights, titles, and interests in all said Marks. All rights not expressly granted herein are reserved by SunMaxx Solar, including the right to revoke the right to use at any time without recourse or protest from Buyer.
36. Miscellaneous. These Terms shall be governed by and construed in accordance with the laws of the State of New York, and any claim arising under these Terms shall be resolved in the courts of the State of New York. Buyer irrevocably submits to the jurisdiction and venue of any state or federal court sitting in the State of New York over any suit, action, or proceeding arising out of or relating to this Agreement. Buyer irrevocably waives, any objection that any such suit, action, or proceeding has been brought in an inconvenient forum. These Terms will be binding upon and for the benefit of the Parties, their successors and permitted assigns. Buyer may not assign its rights or delegate its duties or obligations under these Terms without the prior written consent of SunMaxx Solar. Any attempt to make such an assignment or delegation without written consent will be void. Failure to enforce any provision of these Terms will not constitute a waiver of that or any other provision. If a court of competent jurisdiction holds any part of these Terms invalid, illegal or unenforceable, the validity, legality or enforceability of the remaining provisions will not be affected. This document contains the entire agreement between the Parties with respect to its subject matter and supersedes any previous understanding, commitments, or agreements, oral or written. All additions or modifications to these Terms must be in a writing signed by both Parties and referring expressly to these Terms. The headings in these Terms are for reference only and shall not affect interpretation of these Terms.
37. Effective Date. July 2014