Warranty and Terms of Sale

THE APPLICABLE PURCHASE AGREEMENT, QUOTE, INVOICE, CREDIT APPLICATION, PURCHASE ORDER, AGREEMENT, AND/OR ANY DOCUMENT(S) ANCILLARY TO THE FOREGOING (COLLECTIVELY, THE “AGREEMENT”), BY AND BETWEEN THE ENTITY OR PERSON NAMED AS THE “CUSTOMER,” “PURCHASER,” OR “BUYER” (THE “BUYER”) IN THE AGREEMENT AND GASTRONICS, INC., AN OHIO CORPORATION, TOGETHER WITH ITS AFFILIATED ENTITIES (COLLECTIVELY, “GASTRONICS” OR “COMPANY”), (WHICH AGREEMENT IS INCORPORATED INTO AND MADE A PART OF THESE TERMS AND CONDITIONS) IS SUBJECT TO THE FOLLOWING TERMS AND CONDITIONS OF SALE (“TERMS AND CONDITIONS”). THESE TERMS AND CONDITIONS TAKE ABSOLUTE PRECEDENCE AND PREVALENCE OVER ANY TERMS AND CONDITIONS OF THE BUYER. EXECUTION AND/OR ACCEPTANCE, AS THE CASE MAY BE, OF THE AGREEMENT BY BUYER AND/OR ANY ACCEPTANCE BY BUYER OF SERVICES AND/OR GOODS SHALL CONSTITUTE ASSENT BY THE BUYER TO THESE TERMS AND CONDITIONS. BUYER ACKNOWLEDGES THAT BUYER HAS READ AND UNDERSTANDS THESE TERMS AND CONDITIONS AND AGREES TO BE BOUND BY THESE TERMS AND CONDITIONS. IN THE EVENT OF ANY INCONSISTENCIES BETWEEN THE AGREEMENT (OR ANY DOCUMENT ANCILLARY TO THE AGREEMENT) AND THESE TERMS AND CONDITIONS, THESE TERMS AND CONDITIONS SHALL CONTROL. GASTRONICS AND BUYER EXPRESSLY AGREE THAT GASTRONICS MAY MODIFY THESE TERMS AND CONDITIONS FROM TIME TO TIME, AND SUCH MODIFICATIONS SHALL BE BINDING UPON  THE BUYER AS OF THE DATE OF SUCH MODIFICATIONS.

1. Definitions. Capitalized terms not otherwise defined in these Terms and Conditions shall have the meanings ascribed to them in the Agreement.

a. Affiliate: Affiliate means, with respect to either Gastronics or Buyer, any other entity which controls, is controlled by, or is under common control with Gastronics or Buyer, as the case may be. The term “control” means the power, directly or indirectly, to direct or cause the direction of Gastronics’ or Buyer’s management and/or policies, whether through the ownership of voting securities, by contract, or otherwise.

b. Buyer: The person, firm, corporation or other entity named as Buyer, Purchaser, and/or Buyer in the Agreement, together, jointly and severally, with its Affiliates.

c. Goods: Products and/or Goods, as set forth in the Agreement, offered, sold and provided to Buyer by Gastronics.

d. Gastronics: Gastronics, Inc., an Ohio corporation, together with its Affiliates.

e. Services: Services, as set forth in the Agreement, offered and  provided to Buyer by Gastronics.

2. Order; Pricing. Buyer may order Services and/or Goods pursuant to these Terms and Conditions and/or the Agreement by delivering to Gastronics a written purchase order specifying the specific Services and/or Goods being ordered, the quantity, delivery date and delivery address. For such orders, the Buyer and Gastronics may use email confirmation, separate purchase orders or other applicable documentation that may be negotiated between the Buyer and Gastronics, however, all such transactions shall be governed by these Terms and Conditions. All purchase orders are subject to acceptance by Gastronics’ authorized representative, and the order shall be effective only when accepted by Gastronics in writing (which may be communicated by email). No order can be validly accepted orally. Gastronics shall provide Buyer with the Services and/or Goods for the prices set forth in the Agreement. Any prices quoted to Buyer shall only be valid for thirty (30) days from the date of such quote and only to the extent such quote is written. Gastronics reserves the right to revise any such quotation. Prices estimated are based on inputs provided from the Buyer and are not limited to weight, material(s) selected, packaging specifications, validation requirements, production quantities, quality requirements, production environment, or value-added services. Pricing and other items may be adjusted at any
time for any reason, including, without limitation, part weight changes, raw material price fluctuations, changes in ordering volumes, quality requirements, energy prices, labor rates, facility costs, exchange rates, or any other factors. In the event Gastronics materially increases pricing in its sole discretion solely as a result of Gastronics’ act or omission and for no other reason whatsoever, including, without limitation, the act or omission of the Buyer, Gastronics shall provide Buyer with thirty (30) days’ prior written notice, within which time Buyer shall have the option to terminate the Agreement after the completion of any order in process and payment in full of any and all amounts owed by Buyer hereunder.

3. Payment/Security Interest. All payments shall be in legal tender of the United States of America. In the event Buyer fails to make payment in full within the time period set forth on the Agreement, or within the time period expressly agreed upon in writing by the parties (absence of any such written agreement to the contrary, all payments shall be made net thirty (30) days from the date of invoice), such failure to pay on time constitutes a material breach of contract by Buyer and permits Gastronics to suspend further delivery under any contract between Buyer and Gastronics. If Gastronics has to take any legal action(s) to collect any amount due hereunder, Buyer shall pay all court costs, legal expenses and reasonable attorneys’ fees incurred by Gastronics in bringing and/or prosecuting such action(s). Gastronics shall have a purchase money security interest in all goods sold to Buyer in order to secure payment of all amounts due to Gastronics from Buyer and Gastronics shall have the right to file UCC financing statements in order to perfect such security interest and to exercise all rights of a secured party under the Uniform Commercial Code, as adopted in the State of Ohio, upon the failure by Buyer to pay when due all sums owing to Gastronics. Buyer shall have no right, unless specifically authorized in writing by Gastronics, to assert any right of offset or setoff or credit toward the payment of any monies that may become due Buyer under any Agreement any amounts which may now or hereafter be owed to Gastronics.

4. Taxes, Duties and Tariffs. All prices are quoted exclusive of taxes, duties and tariffs. All taxes, duties and tariffs applicable to any Agreement referenced herein, including, but not limited to, Ohio or other applicable sales or use taxes, duties and tariffs are additional and to the extent legally permissible shall be paid by Buyer.

5. Shipping. All prices quoted are F.O.B. Gastronics’ facility referenced in the Agreement. All freight and shipping costs shall be the responsibility of Buyer. Risk of loss or damage in transit shall be borne by Buyer; in the event Gastronics transports Goods to Buyer’s facilities using private carriers, loss and damage claims shall be made directly with carrier.

6. Finance Charge and Storage Fees. A finance charge of the lesser of 1 and 1/2% per month, 18% Annual Percentage Rate, or the highest rate permitted by law, shall be charged on all amounts unpaid 30 days after the date of any invoice. In the event Buyer fails or refuses, for whatever reason, to accept delivery of Goods which it has purchased from Gastronics and which Gastronics has indicated it is prepared to deliver, Gastronics shall have the right to assess storage, handling and similar fees and expenses incurred by Gastronics as a result of Buyer’s refusal or inability to accept delivery of the Goods.

7. Cancellation. Any order pursuant to an Agreement cannot be cancelled, terminated or modified by Buyer, in whole or in part, after Gastronics’ acceptance of the order, as set forth herein above, nor shall Gastronics’ release or shipment of Goods or provision of Services be delayed by Buyer except with Gastronics’ written consent, and then only upon terms and conditions then to be agreed upon which shall include protection of Gastronics against all losses and expenses caused by such delay.

8. Force Majeure. Gastronics shall not be liable for any delay or failure to perform in whole or in part caused by fires, floods, strikes, work stoppages, accidents, casualties, pandemics, inability to procure materials, delays in transportation, shortage of cars or trucks, or any other causes beyond Gastronics’ control.

9. Inspection and Claims. Buyer shall inspect all Goods within twenty (24) hours after delivery of such Goods. All claims of any nature shall be barred unless notice thereof is given to Gastronics at its address set forth in the Agreement, in writing by certified or registered mail, postmarked within ten (10) days after Buyer’s receipt of the Goods, and the Goods relating to such claims are held intact and properly protected, unless instructed otherwise by Gastronics, pending inspection by Gastronics’ authorized inspector.

Defective Goods may be returned to Gastronics only after inspection by Gastronics and upon receipt of written shipping instructions from Gastronics. FAILURE TO NOTIFY GASTRONICS OF ANY NONCONFORMING GOODS WITHIN TEN (10) DAYS OF BUYER’S RECEIPT OF SUCH GOODS SHALL CONSTITUTE ACCEPTANCE OF SUCH GOODS AND WAIVER OF ALL CLAIMS WITH RESPECT TO ANY NONCONFORMANCE.

10. Transportation and Risk of Loss. Upon the earlier of delivery to a common carrier or to Buyer or Buyers’ agents or representatives of any Goods, risk of loss or damage to such materials or goods shall pass to Buyer, and Gastronics shall have no further liability therefor.

11. Buyer’s Insolvency. Gastronics shall have the unrestricted right to cancel, withhold or delay its performance or delivery of any Goods or Services upon the happening of any of the following or any other comparable events, in which case Gastronics shall have no liability for any losses or damages claimed by Buyer: (i) Buyer’s insolvency; (ii) commencement of proceedings by, for or against Buyer under any law relating to bankruptcy or the relief of debtors; (iii) the appointment of a receiver or trustee for Buyer; (iv) the execution by Buyer of any assignment for the benefit of the creditors; or (v) the determination by Gastronics, in its sole judgment, that Buyer’s financial condition is such as to endanger Buyer’s performance of its payment or other obligations to Gastronics.

12. Limited Warranty. Gastronics warrants that Goods manufactured by shall be free from material defects in materials, workmanship, and performance for a period of one year from date of shipment from Gastronics. This warranty does not apply to any defects in products resulting from operation, misapplications and/or abuse, including rough handling, mechanical damage, alteration or repair by an unqualified person and/or procedures not in accordance with the corresponding manufacturers’ instruction manuals and specifications. Buyer acknowledges that continuous exposure, extreme exposure or regular overexposure to gas will reduce the life of the Goods and therefore the aforementioned warranty will not apply to Goods subject to these conditions. This warranty indicates the full extent of Gastronics’ liability, and Gastronics is not responsible for removal or replacement costs, local repair cost, transportation costs, or contingent expenses incurred without Gastronics’ prior written approval. THE AFORESAID IS THE ONLY WARRANTY GIVEN BY GASTRONICS. NO OTHER WARRANTY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY, NONINFRINGEMENT, OR FITNESS FOR ANY PARTICULAR PURPOSE IS MADE FOR ANY ITEMS SOLD, AND ALL OTHER WARRANTIES ARE HEREBY EXPRESSLY DISCLAIMED. NO AFFIRMATION OF GASTRONICS, BY WORDS OR ACTION, OTHER THAN AS SET FORTH IN THIS PARAGRAPH OR ANY WRITTEN WARRANTY OR CERTIFICATION FURNISHED BY GASTRONICS, SHALL CONSTITUTE A WARRANTY HEREUNDER.

13. Limitation of Remedy. GOODS MAY ONLY BE DEEMED DEFECTIVE OR NOT IN CONFORMITY UPON A DETAILED EXAMINATION BY GASTRONICS, WHICH SUCH EXAMINATION SHALL CONCLUSIVELY DISCLOSE SUCH GOODS TO HAVE BEEN DEFECTIVE OR NOT IN CONFORMITY. BUYERS’ EXCLUSIVE REMEDIES WITH RESPECT TO ANY GOODS THAT ARE FOUND TO BE DEFECTIVE OR OTHERWISE NOT IN CONFORMITY WITH ANY WARRANTY SET FORTH HEREIN SHALL BE LIMITED TO, AT GASTRONICS’ SOLE OPTION: (A) REPLACEMENT OF ANY DEFECTIVE OR NONCONFORMING GOODS; (B) A CREDIT TO BUYER’S ACCOUNT FOR SO MUCH OF THE PURCHASE PRICE AS RELATES TO ANY DEFECTIVE OR NON­ CONFORMING GOODS; OR (C) A REFUND TO BUYER OF THE PURCHASE PRICE FOR ANY DEFECTIVE OR NONCONFORMING GOODS. BUYER SHALL RETURN THE ALLEGEDLY DEFECTIVE OR NONCONFORMING GOODS TO GASTRONICS AT ITS MANUFACTURING FACILITIES WITH TRANSPORTATION CHARGES PREPAID FOR EXAMINATION PRIOR TO GASTRONICS’ ELECTION OF REMEDY.

14. Limitation of Liability. GASTRONICS AND ITS AFFILIATES, SUBSIDIARIES, SHAREHOLDERS, DIRECTORS, INVESTORS, EMPLOYEES, AGENTS, SUPPLIERS, AND CONTRACTORS (COLLECTIVELY, THE “SELLER PARTIES”) SHALL NOT BE LIABLE TO BUYER OR ANY OTHER PERSON/ENTITY, DIRECTLY OR INDIRECTLY, FOR ANY CLAIMS, DEMANDS, SUITS, COSTS, EXPENSES (INCLUDING ATTORNEYS’ FEES), LOSSES, JUDGMENTS, DAMAGES, LIABILITIES OR OBLIGATIONS, OF ANY KIND OR NATURE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA OR LOSS CAUSED BY A COMPUTER OR ELECTRONIC VIRUS, ARISING IN ANY MANNER FROM OR IN CONNECTION WITH THE SERVICES AND/OR THE GOODS, EVEN IF THE SELLER PARTIES HAVE BEEN PROVIDED NOTICE OF THE POSSIBILITY OF SUCH LOSSES/DAMAGES.  THE SELLER PARTIES SHALL NOT BE LIABLE FOR AND DISCLAIM ANY AND ALL LOST PROFITS AND ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, WHETHER ARISING OUT OF THE SERVICES, THE GOODS, OR THE PERFORMANCE BY THE SELLER PARTIES HEREUNDER OR ANY AGREEMENT OR DOCUMENT ANCILLARY HERETO.  IN THE EVENT OF TERMINATION FOR ANY REASON, THE SELLER PARTIES SHALL NOT BE LIABLE TO BUYER FOR COMPENSATION, INDEMNIFICATION, REIMBURSEMENT OR DAMAGES ON ACCOUNT OF ANY LOSS OF PROSPECTIVE PROFITS OR ANTICIPATED SALES OR ON ACCOUNT OF EXPENDITURES, INVESTMENTS, LEASES OR COMMITMENTS MADE IN CONNECTION WITH THE TRANSACTIONS CONTEMPLATED HEREIN OR THE ANTICIPATION OF EXTENDED PERFORMANCE HEREUNDER.  NOTWITHSTANDING THE FOREGOING, BUYER’S EXCLUSIVE REMEDY AGAINST THE SELLER PARTIES, AND THE SELLER PARTIES’ SOLE OBLIGATION, FOR ANY AND ALL CLAIMS, WHETHER FOR BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, SHALL BE LIMITED TO EITHER REPAIR OR REPLACEMENT OF THE NONCONFORMING GOODS OR REFUNDING THE AMOUNTS PAID BY BUYER TO THE SELLER PARTIES  DIRECTLY ATTRIBUTABLE TO NON-CONFORMING GOODS OR SERVICES.  IN NO EVENT SHALL THE SELLER PARTIES HAVE ANY LIABILITY FOR DELAYS IN SHIPMENTS, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER SUCH CLAIM IS BROUGHT IN TORT, BREACH OF CONTRACT, BREACH OF WARRANTY OR OTHER THEORY OF LAW OR EQUITY.

15. Complete Agreement. These Terms and Conditions and the Agreement constitute the entire agreement between the parties hereto with respect to the subject matter hereof and any negotiations, representations, affirmations of fact, courses of prior dealings, promises or conditions not expressly incorporated herein or therein shall not be binding upon Gastronics. No waiver, alteration or modification of any of the provisions of the Agreement shall be binding unless in writing and signed by an authorized representative of Gastronics.

16. Choice of Forum. Any dispute arising hereunder or relating to any Goods or Services shall be brought only in a court of general jurisdiction located in Cuyahoga County, Ohio. Buyer irrevocably consents to the jurisdiction and venue of such courts.

17. Limitation of Action. In no event may any claim by Buyer relating to any Goods or Services be brought more than one (1) year after the earlier of the date of delivery of such Goods or Services or the date such claim arose.

18. Nonwaiver. No waiver or failure to enforce compliance with these Terms and Conditions and/or the Agreement by Gastronics shall constitute a waiver of Gastronics’ right to insist upon strict compliance with these Terms and Conditions and/or the Agreement thereafter.

19. Controlling Law. These Terms and Conditions and/or the Agreement shall be deemed made in the State of Ohio. These Terms and Conditions and/or the Agreement and any dispute arising therefrom shall be governed by the laws of the State of Ohio without regard to choice or conflicts of law principles.

20. Headings. The headings used are solely for the convenience of the parties and shall have no force or effect upon the interpretation of any provision hereof.

21. Confidentiality. All information and documentation provided by Gastronics to Buyer, or from Buyer to Gastronics, is strictly confidential and may not be disclosed, reproduced or disseminated by the recipient to any third party without in each case obtaining the prior written consent of the disclosing party; provided, however, that the foregoing shall not apply to disclosure required as a matter of law or in connection with any legal action arising out of the commercial transactions between Gastronics and Buyer.

22. Technical Advice. Gastronics assumes no and expressly disclaims any obligation or liability for any technical advice furnished to Buyer, including, without limitation, technical advice with respect to Gastronics’ Goods and/or the use thereof, all such technical advice being given and accepted at Buyer’s risk. Gastronics will not be liable for any damages of any kind arising out of or relating to the use of or the inability to use the information provided, including but not limited to any special, direct, indirect, incidental or consequential damages including, but not limited to, demurrage charges, cost of shipment, downtime, lost profits or lost sales, whether foreseeable or not, regardless of whether Gastronics has been advised of the possibility of damages.

23. Intellectual Property. Buyer shall have no rights with respect to any of Gastronics’ existing or subsequently-acquired or developed Intellectual Property, as defined below, rights or trade secrets or confidential information of Gastronics, and Buyer hereby acknowledges that it shall not acquire any rights in respect thereof and that all such trade secrets and any such confidential information are and shall remain vested in or controlled by Gastronics. “Intellectual Property” for purposes of these Terms and Conditions means (i) patents, patent applications, provisional applications, patent disclosures, including all ideas, inventions and improvements disclosed therein, and all reissues, continuations, continuations in part, divisions and reexaminations thereof; (ii) trademarks, service marks, trade names, trade dress, logos, slogans, domain names, including all goodwill appurtenant thereto, and all registrations and applications for registrations thereof and all renewals and extensions thereof; (iii) copyrights and mask works and all registrations and applications for registration thereof; (iv) computer software, software applications and platforms, websites, disks, disk drives, data, data bases and user documentation and audio visuals, domain names, and text materials; (v) all trade secrets, research and development materials, processes, procedures, know how, ideas discoveries, inventions, customer lists, supplier lists, formulas, drawings and designs, technical data, marketing, financial and business plans; (vi) advertising materials currently or in the future utilized by the Gastronics; and (vii) copies and tangible embodiments thereof (in whatever form or medium), and related documentation and goodwill. Buyer acknowledges and agrees that Gastronics owns the exclusive right, title and interest and into all of Gastronics’ Intellectual Property. Buyer shall not at any time do or permit to be done any act or thing which impairs or may impair the rights of Gastronics with respect to Gastronics’ Intellectual Property. Buyer will never represent that it has any ownership in any of Gastronics’ Intellectual Property. Buyer expressly agrees that all of the use and goodwill of the Intellectual Property shall accrue to the sole benefit of Gastronics. Buyer represents and warrants to Gastronics that Buyer owns or has obtained all rights in the Buyer IP necessary and sufficient to allow Gastronics to provide the Goods referenced herein to the Buyer. To the extent applicable, Buyer hereby grants to Gastronics, and Gastronics hereby accepts from Buyer, a royalty-free, perpetual license to use the Buyer IP in the course of providing the Goods or Services to the Buyer. For purposes  of these Standard Terms of Sale, “Buyer IP” shall mean the Intellectual Property of the Buyer provided by Buyer to Gastronics and used to provide and/or create (as the case may be) the Goods or Services.

24. Injunctive Relief. The parties hereby acknowledge and agree that the extent of damages in the event of a breach of the restrictive covenants contained in these Terms and Conditions may be difficult or impossible to ascertain and that there may be no adequate remedy at law in the event of any such breach. Consequently, in the event of such breach, the non-breaching party shall be entitled, in addition to any other remedies it may have at law, to seek an injunction or other equitable relief to enforce any or all of the covenants contained in these Terms and Conditions. The breaching party expressly waives (i) the defense that a remedy in damages will be adequate and (ii) any requirement in an action for specific performance or injunction for the posting of a bond.

25. Reservation Of Remedies. The rights, powers and remedies that may be given or reserved to the parties by these Terms and Conditions shall be cumulative and in addition to all other and further remedies provided by law. These Terms and Conditions shall not be construed to deprive the parties of any other rights, powers and other remedies otherwise given by law or at equity. No delay or failure by Gastronics in exercising any right or remedy and no partial or single exercise of such right or remedy shall constitute a waiver by Gastronics of such right or any other rights in these Terms and Conditions. No consent by Gastronics to a breach of any express or implied term of these Terms and Conditions shall constitute a consent to any prior or subsequent breach of the same or any other term.

26. Indemnification. Buyer agrees to indemnify and hold harmless Gastronics and its Affiliates from and against all claims, demands, or actions regardless of legal theory, including the costs and expenses incurred in the defense thereof, brought against Gastronics, whether based on an act, omission or negligence of Buyer, or its agents, employees or customers, in connection with Buyer’s or its customer’s subsequent sale, consumption or use of the Goods, or upon any defect in the Goods, caused by Buyer, its agents, employees or customers.

27. Gastronics’ Performance Excused Upon Buyer’s Breach. In addition to the rights and remedies conferred upon Gastronics by law or in equity, in the event that Buyer fails to make payment of any amount due hereunder, Gastronics shall have the right to immediately suspend performance and fulfillment order for Goods and/or Services and to institute legal proceedings to collect the balance due, and in such event Buyer agrees to pay all collection costs incurred by Gastronics, including its attorneys’ fees.

28. Assignment or Delegation. Buyer shall not assign or delegate any or all of its duties or rights hereunder without the prior written consent of Gastronics.

29. Relationship. Neither party nor any other agents or employees, officers, directors or shareholders shall be deemed a representative or agent of the other, nor shall either party hold itself out as a representative or agent of the other beyond the scope of the Agreement and/or these Terms and Conditions, and, neither of them shall have any right or authority to conduct any business in the name of, or for the account of or on behalf of the other. The parties hereto agree and understand that, solely with respect to the Agreement and/or these Terms and Conditions, Gastronics will be and act as an independent contractor of Buyer, Buyer and Gastronics are separate entities and that there is no master/servant, partnership, joint venture, principal/agent, or employer/employee relationship between the parties.

30. Export Regulations. Buyer acknowledges that certain Goods sold by Gastronics hereunder and any documentation and other technology of Gastronics may be subject to application export control and sanction laws, regulations, and orders. Buyer certifies, represents, and warrants that it is in compliance and shall take all necessary acts to remain in compliance with all applicable export and re-export control laws and regulations, including, without limitation, the Export Administration Regulations maintained by the U.S. Department of Commerce, trade and economic sanctions and regulations maintained by OFAC (defined below), and the International Traffic in Arms Regulations maintained by the U.S. Department of State. Buyer hereby agrees to defend, indemnify and hold Gastronics harmless from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorney’s fees and costs) arising from or related to any breach of the foregoing certification.

31. FCPA; Anti-Bribery. In carrying out its responsibilities hereunder, Buyer shall comply with all applicable anti-bribery laws including, but not limited to, the U.S. Foreign Corrupt Practices Act, as revised (“FCPA”), and the Organization for Economic Cooperation and Development Anti-Bribery Convention, as implemented in the Territory. Buyer understands that the FCPA generally prohibits the promise, payment or giving of anything of value either directly or indirectly to any government official for the purpose of obtaining or retaining business or any improper advantage. For purposes of this section, “government official” means any official, officer, representative, or employee of any non U.S. government department, agency or instrumentality (including any government-owned or controlled commercial enterprise), or any official of a public international organization or political party or candidate for political office. Buyer represents and warrants that, in connection with its purchase of the goods referenced herein, (i) neither it nor any of its representatives are governmental employees or officials or candidates for political office and Buyer will advise Gastronics of any change in such representation; (ii) Buyer and its representatives have not and will not make, offer, or agree to offer anything of value to any government official, political party, or candidate for office; (iii) Buyer will comply with all provisions of the FCPA and the regulations thereunder as amended from time to time; and (iv) Buyer agrees to indemnify, defend, and hold Gastronics harmless for damages and expenses resulting from a violation of the foregoing by Buyer or its representatives.

32. OFAC. Pursuant to United States Presidential Executive Order 13224 (“Executive Order”), Buyer may be required to ensure that it does not transact business with persons or entities determined to have committed, or to pose a risk of committing or supporting, terrorist acts and those identified on the list of Specially Designated Nationals and Blocked Persons (“List”) generated by the Office of Foreign Assets Control (“OFAC”) of the U.S. Department of the Treasury. The names or aliases of these persons or entities (“Blocked Persons”) are updated from time to time. Buyer certifies, represents and warrants to Gastronics that: (a) it is not acting, directly or indirectly, for or on behalf of any person, group, entity or nation named by any Executive Order of the United States Treasury Department as a terrorist, “Specially Designated National and Blocked Person” or any other banned or blocked person, entity, nation or transaction pursuant to any Law that is enforced or administered by the Office of Foreign Assets Control; and (b) it is not engaged in this transaction, directly or indirectly on behalf of, or instigating or facilitating this transaction, directly or indirectly on behalf of, any such person, group, entity or nation. Buyer hereby agrees to defend, indemnify and hold Gastronics harmless from and against any and all claims, damages, losses, risks, liabilities and expenses (including attorney’s fees and costs) arising from or related to any breach of the foregoing certification.

33. Notices. All notices, requests, directions, approvals or other communications to be provided in any Agreement or these Terms and Conditions will be in writing and will be deemed to have been sufficiently given (i) upon receipt if delivered in person; (ii) upon delivery if by an internationally-recognized mail service (e.g., FedEx), overnight courier, or certified or registered mail, postage pre-paid, return receipt requested; or (iii) on the date transmitted if by email; provided that the original will promptly follow by internationally-recognized mail service or overnight courier. All notices will be sent to the applicable party at the address(es) on the signature page of the Agreement (or as otherwise instructed in writing by such party).

34. Waiver of Jury Trial. TO THE EXTENT ALLOWED BY APPLICABLE LAW, GASTRONICS AND BUYER MUTUALLY, EXPRESSLY, IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY FOR ANY PROCEEDINGS, WHETHER IN LAW OR IN EQUITY, ARISING OUT OF OR IN CONNECTION WITH AN AGREEMENT, THESE TERMS AND CONDITIONS, OR ANY CONDUCT OR COURSE OF DEALING OF THE PARTIES, STATEMENTS (WHETHER ORAL OR WRITTEN) OR ACTIONS OF ANY PERSON. THIS WAIVER IS A MATERIAL INDUCEMENT TO GASTRONICS TO PERFORM UNDER ANY AGREEMENT.