Supplier Standards

Supplier Standards, Terms, and Conditions

Izzy & Liv LLC (“us,” “we,” “Company,” or “our company”) has expectations for all our suppliers and vendors and their agents (“you” or “Suppliers”) (individually you and we may be referred to as “Party” or collectively as “Parties”). You are responsible for compliance with these Supplier Standards, Terms, and Conditions (“Standards” “Terms” “Agreement”) throughout your business and supply chain. You agree, without exception, that acceptance of a purchase Purchase Order, sending products (“Merchandise”) to us, or signing a supplier agreement will serve as your affirmative acceptance of this Agreement and your ongoing affirmation of compliance.

THIS AGREEMENT CONTAINS VERY IMPORTANT INFORMATION REGARDING YOUR RIGHTS AND OBLIGATIONS, AS WELL AS CONDITIONS, LIMITATIONS, AND EXCLUSIONS THAT MIGHT APPLY TO YOU. PLEASE READ IT CAREFULLY. THESE TERMS REQUIRE THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

IF YOU DO NOT AGREE TO BE BOUND TO ALL OF THESE TERMS, DO NOT SELL OR PROVIDE ANY MERCHANDISE OR SERVICES TO US. YOUR FULL ACCEPTANCE OF THESE TERMS IS AN ESSENTIAL CONDITION TO OUR PURCHASING FROM YOU.

WE RESERVE THE RIGHT TO REVISE THESE TERMS, INCLUDING OUR SUPPLIER CODE OF CONDUCT, AT ANY TIME WITH OR WITHOUT NOTICE TO YOU. IT IS YOUR RESPONSIBILITY TO FREQUENTLY CHECK THESE TERMS FOR UPDATES PRIOR TO ACCEPTING AN PURCHASE ORDER FROM US. PLEASE READ OUR SUPPLIER CODE OF CONDUCT (“CODE OF CONDUCT”) LOCATED AT https://cdn.shopify.com/s/files/1/0736/4179/files/Izzy_Liv_Supplier_Code_of_Conduct_v2.2.2022.pdf?v=1723137458

The terms in this Agreement shall precede any conflicting terms contained in any related agreement, purchase Purchase Order, sales Purchase Order, or bill of lading, unless the conflicting document has been issued by us and explicitly states that the conflicting terms take precedence over this Agreement.

Article I. Supplier Selection and Qualifications

You and the Merchandise you provide to us must meet or exceed all of our selection and qualification standards, including the following:

S.-based Suppliers must furnish a valid Federal Taxpayer Identification Number (“TIN”). Non-U.S. suppliers must provide current W-8 “Certificate of Foreign Status” when requested.
You agree to provide us, upon demand, with current, complete, and accurate Material Safety Data Sheets (“MSDSs”) for any Merchandise.
Merchandise must have a batch or lot number so that it may be tracked.
Merchandise manufactured outside the United States must include the country of origin on its packaging, documentation, and/or other appropriate locations. This information should be similar in format to that used by US customs to identify foreign ports (e.g., MADE IN CHINA).
Merchandise must be packaged individually for one end-user. The packaging must be air-tight, sealed, and properly padded so that its contents does not leak or become damaged during handling or transit to us or our customers.
Merchandise must be properly stored in accordance with the stated storage conditions. If the Merchandise is found to be damaged due to improper storage, you will bear all costs associated with testing, reworking or replacement.
You agree to provide us with a report regarding the quality of the Merchandise, if requested.
If you estimate that our purchases from you will account for 20% or more of your gross yearly sales on a calendar year basis, you agree to notify us in writing within 30 days of learning about the possibility.

All products must be properly identified as meeting these standards. This identification must be made in accordance with the specifications of our company.

Article II. Product Sampling and Testing

We may require that you provide a sample package of the Merchandise to us, at your expense. Samples must be properly marked and identified and include supplier name and contact information, lot/batch number(s), material type and grade, and part number.

Product samples taken from received Purchase Orders will be subject to verification whenever we deem it necessary. This includes the use of appropriate testing procedures to determine that products meet stated requirements. Nonconforming products will be subject to the Defective Merchandise terms below.

Article III. Purchase Orders and Cancellations

You can only manufacture and ship the merchandise after you have received an Purchase Order. You agree to accept Purchase Orders and/or invoices from us electronically. An Purchase Order is only accepted if the merchandise is shipped in accordance with the Purchase Order. By accepting an Purchase Order, you agree to all of the terms and conditions, including the shipping, routing, and billing instructions as well as any supplemental instructions. All shipments of products will be deemed F.O.B Destination as per the Purchase Order and you will maintain responsibility of the products until we receive and accept them. This F.O.B. Destination designation shall not be superseded by any language on sales Purchase Orders, receipts, invoices, or bills of lading that state otherwise. If we do not accept a product after it is delivered, the ownership of it will remain with you and you are responsible for any costs associated with returning or storing rejected products.

Your invoice, confirmation memorandum or other writing cannot change the terms of any Purchase Order. If you do not comply with one or more terms of this Purchase Order, it will be seen as a breach of contract. This default will give us the right to take any actions we see fit according to this Agreement and/or under the law.

You are responsible for ensuring that all costs, discounts, allowances, and other terms of sale on all Purchase Orders are accurate.

Projections, past purchasing history, and representations about quantities to be purchased by us are not binding. We will not be responsible for any act or expenditure by you in reliance on them.

We have the option to terminate all or any portion of an Purchase Order before it is delivered.

You hereby grant us a worldwide nonexclusive license and right to use any trademarks used to identify the Merchandise so long as such Merchandise is actively being sold by us.

You give us permission to list your Merchandise, both individually and as part of a curated collection, for sale on our website, inserts, and any other marketing or commerce venues we deem useful. If you do not want us to list your Merchandise on our website or other marketing venues, you must say so in writing on the Purchase Order, be willing to accept this Merchandise back, and pay the original purchase price.

Article IV. Payment Terms

Unless otherwise agreed to in subsequent Purchase Orders, you agree to accept payment deposit, shipping and balance terms as outlined in the Purchase Order, with a final balance payment after delivery to our US warehouse, inspection, and acceptance of goods. If the Merchandise is damaged, faulty, incomplete, or does not comply with the Purchase Order, we reserve the right to either deduct money owing to you by the value of the non-conforming Merchandise plus reasonable damages, or reject your shipment outright.

The prices set forth in any Purchase Order are deemed to include all taxes.

Article V. Set-Off, Reservation of Account, and Credit Balance

We may set off against amounts payable under any Purchase Order all present and future indebtedness of you to us arising from this or any other transaction whether or not related to this Agreement. We may establish a reserve on your account to satisfy your real or anticipated obligations to us arising from any Purchase Order or this Agreement if we determine that your performance under an Purchase Order or this Agreement is likely to be impaired. We may withhold payment of your invoices if required by the circumstances. You agree that any credit balance will be paid in cash to us upon written request.

Article VI. Notices and Payments

You must send all notices and payments of money owed pursuant to this agreement and Purchase Orders to the following address:

Izzy & Liv, LLC

437 State Route 34

STE E

Matawan New Jersey 07747

invoices@izzyandliv.com

We will send all notices to you at the most recent email and physical address we have on file for you.

Article VII. Notice Regarding Assignments and Account Disputes

You shall provide us written notice of an assignment, factoring, or other transfer of its Account at least 30 days prior to such assignment, factoring, or other transfer taking legal effect. Such written notice shall include the name and address of the assignee/transferee, the date the assignment is to begin, and terms of the assignment, and shall be considered delivered upon receipt of such written notice by us. The assignment of any of your accounts shall not affect any of our rights outlined in this Agreement. Should an assignment occur, we expressly reserve the right to cancel any outstanding Purchase Orders with you and you agree to issue a full refund for all costs associated with those canceled Purchase Orders.

You shall defend indemnify and hold us harmless from any and all lawsuits, claims, demands, actions, damages (including reasonable attorney fees, court costs, obligations, liabilities or liens) arising from or related to the assignment, transfer or factoring of your Account. You release and waive any right, claim or action against us for amounts due and owing under this Agreement where you have not complied with the notice requirements of this provision. Notices must be sent to the addresses specified in the “Notices” section of this Agreement.

Article VIII. Most Favored Customer

You represent and warrant that the price for the Merchandise is the lowest price charged by you to any of your external buyers for similar volumes of similar Merchandise. If you charge any other buyer a lower price, you agree to automatically apply that lower price to all Merchandise under this Agreement. If you fail to meet the lower price, we, at our discretion, may end any open Purchase Orders without liability and in accordance with the termination clauses in this Agreement.

Article IX. Merchandise Load and Count Responsibilities

You are solely responsible for monitoring your shipping process. When shipping via freight, you are required to close the trailer, seal it with a seal, and document the seal number on all copies of the Bill of Lading. All such shipments will be calculated according to Shipper Load and Shipper Count, even if they are not so labeled. If you fail to seal the trailer, or fail to reference and identify the seal on all copies of the Bill of Lading, and shortages occur, you agree to be liable for such shortage. You agree that this contractual provision will override any contrary term, clause, notation, or other provision, in the Bill of Lading or any other writing.

Article X. Remedies for Late Deliveries, Defective Merchandise, and Other Breaches

THE TIME SPECIFIED IN AN PURCHASE ORDER FOR DELIVERY OF MERCHANDISE IS OF THE ESSENCE OF THIS AGREEMENT AND IF FULLY CONFORMING MERCHANDISE IS NOT DELIVERED WITHIN THE TIME SPECIFIED, WE RESERVE THE RIGHT, AT OUR OPTION AND WITHOUT LIMITATION, TO CANCEL THE PURCHASE ORDER AND/OR REJECT ANY LATE MERCHANDISE.

Additionally, in the event of an actual or reasonably anticipated breach of this Agreement, for up to five years after discovering such breach, or until the expiration of any applicable statutes of limitations, whichever is longer, we may exercise any other remedies provided for in this Agreement or provided by applicable law in, including but not limited to the following:

A reduction in Purchase Purchase Order price, or an invoice to you to be paid immediately, either of which shall be determined at our sole discretion, in Purchase Order to fully account for:

Advertising costs associated with including your information in any flyers, booklets, inserts, emails, ads, videos, or other communications with our customers.
Printing or distribution costs associated with communications with customers regarding delayed Merchandise.
Additional handling and/or rush fees of at least 2% per day of Merchandise not fully received, calculated as a percentage of the total Purchase Purchase Order value.
Legal, accounting, or any other professional service fees we incur resulting from your breach of contract.

Requiring you at your sole expense to directly provide to customers on a one-on-one basis answers to customer inquiries, repairs, or replacements of defective Merchandise, whichever we decide in our sole discretion is in the best interest of our customers. If requested by us, you agree to grant a full refund or credit to us of the price actually paid by any customer of Company for any such item in lieu of replacement with respect to any item. You warrant that all solutions will be handled in a reasonable timeframe, which will in no case exceed 10 business days.
Cancellation of all or any part of any undelivered Purchase Order without notice, including but not limited to the balance of any remaining installments on a multiple-shipment Purchase Order. You agree to provide a full refund within 30 days the amount of the canceled Purchase Order.
Rejection (or revocation of acceptance) of all or any part of any delivered shipment. Upon rejection or revocation of acceptance of part or all of a shipment, we may return the Merchandise or hold it at your risk and expense. Payment of any invoice shall not limit our right to reject or revoke acceptance. Our right to reject and return or hold Merchandise at your expense and risk will also extend to Merchandise that is returned to us by our customers. If we reject or revoke acceptance of the Merchandise you will be responsible for all expenses we incur related to unpacking, examining, repacking, storing, and reshipping such Merchandise.
Interest on any outstanding amounts that you owe to us at the rate of 12% per annum or such lower rate as may be permitted under applicable law for any obligations you owe to us.
All attorneys’ fees and collection costs we incur while enforcing our rights under this Agreement.
Other remedies in equity and law that will fully compensate us for damages caused by your breach.

Even if we have the right to cancel shipment or to reject or revoke acceptance of Merchandise, you agree to immediately tell us if there is an actual or anticipated problem with delivering all or any part of an Purchase Order in full compliance with the required date and Purchase Order specifications. If we accept shipments of late merchandise, we do not waive, but we expressly reserve, all rights and remedies, including those associated with late shipments.

Unless we explicitly agree to the contrary in writing, you will not have the right to make a partially conforming delivery as a substitute for nonconforming Merchandise.

Article XI. Representations, Warranties, and Guarantees

By accepting an Purchase Order, you represent, warrant, and guarantee that:

The Merchandise will be delivered new, unused, undamaged, free from defects, fit for its intended purposes, and not be remanufactured, recondition, or refurbished.
The Merchandise will comply with all specifications in the Purchase Order and will be equal to or better quality than the related samples you provided to us.
The Merchandise will be genuine and not counterfeit, adulterated, misbranded, falsely labeled, falsely advertised, or falsely invoiced.
The Merchandise will be labeled and advertised in accordance with the laws, rules, and regulations promulgated by the Food and Drug Administration (FDA), Federal Trade Commission (FTC), Federal Communications Commission (FCC), Consumer Product Safety Commission (CPSC), Occupational Safety and Health Administration (OSHA), Environmental Protection Agency (EPA), California Proposition 65, and other applicable federal, state, and local authorities.
Reasonable and representative tests of the Merchandise will be or have been made in accordance with applicable laws and regulations.
The Merchandise will not infringe upon or violate any patent, copyright, trademark, trade name, trade dress, trade secret or, without limitation, any other rights belonging to others, and all royalties owed by you, if any, have been paid to the appropriate licensors.
All weights, measures, sizes, legends, or descriptions on the Merchandise will be accurate, be true, and fulfill all conditions of this Agreement and applicable laws, rules, regulations, ordinances codes and standards.
The Merchandise will be suitable for its intended use and non-sophisticated consumers.
When applicable, Merchandise will have UPC compliant twelve (12) digit manufacturer-assigned codes.
The Merchandise will have no other impediments or restrictions, legal or otherwise, that limit, prohibit, or prevent you from selling and delivering the Merchandise to us, or limit, prohibit, or prevent us from reselling the Merchandise to our customers.
The Merchandise will be mined, produced, manufactured, assembled, and packaged in compliance with the Code of Conduct.
The Merchandise will not be transshipped for the purpose of mislabeling, evading quota or country of origin restrictions, or avoiding compliance with the Code of Conduct.

It will be within our sole discretion to determine whether you have breached the above-mentioned representations, warranties, and guarantees.

Nothing in this Agreement or related Purchase Order shall be deemed a waiver of any representations, warranties, or guarantees that are afforded to us in either law or equity.

Article XII. Indemnification

YOU AGREE TO PROTECT, DEFEND, HOLD HARMLESS, AND INDEMNIFY US, INCLUDING OUR OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS FROM AND AGAINST ANY AND ALL LAWSUITS, CLAIMS, DEMANDS, ACTIONS, LIABILITIES, LOSSES, DAMAGES, COSTS, AND EXPENSES (INCLUDING ATTORNEYS’ FEES AND COURT COSTS), REGARDLESS OF THE CAUSE OR ALLEGED CAUSE THEREOF, AND REGARDLESS OF WHETHER SUCH MATTERS ARE GROUNDLESS, FRAUDULENT, OR FALSE, THAT ARISE OUT OF ANY ACTUAL OR ALLEGED:

Misappropriation or infringement of any patent, trademark, trade dress, trade secret, copyright or other right relating to Merchandise;
Death of or injury to any person, damage to any property, or any other damage or loss, by whomsoever suffered, resulting or claimed to result in whole or in part from any actual or alleged use of or latent or patent defect in, such Merchandise, including but not limited to

any actual or alleged failure to provide adequate warnings, labels or instructions,
any actual or alleged improper construction or design of said Merchandise, or
any actual or alleged failure of said merchandise to comply with specifications or with any or your express or implied warranties;

Violation of any law, statute, ordinance, governmental administrative Purchase Order, rule or regulation relating to the Merchandise, or to any of its components or ingredients, or to its manufacture, shipment, labeling, use, or sale;
Act, activity, or omission of yours or any of your employees, representatives, or agents; and
Your breach of any term of this Agreement.

You agree to promptly notify us of the assertion, filing, or service of any lawsuit, claim, demand, action, liability or other matter that is or may be covered by this indemnity, and shall immediately take such action as may be necessary or appropriate to protect the interests of us and our officers, directors, employees, and agents. At our own sole discretion, we may select or replace counsel with other counsel of our own choosing. In such event, all fees and expenses of our new counsel, together with any and all expenses or costs incurred on account of the change of counsel, shall be paid or reimbursed by you as part of your indemnity obligations. We will always have the right to direct the defense of, and to accept or reject any offer to compromise or settle, any lawsuit, claim, demand or liability asserted against us or any of our officers, directors, employees or agents. Your duties and obligations under these Terms shall not be affected or limited in any way by our extension of express or implied warranties to our customers.

You agree that we shall be under no duty to inspect the Merchandise.

Article XIII. Recalls

If Merchandise is the subject of a recall, whether initiated by you, us, or a regulatory body (including the issuance of safety notices), you will be responsible for all matters and costs associated with the recall, including but not limited to:

Consumer notification and contact;
All expenses and losses incurred by us in connection with such recall, which may include, without limitation, refunds to customers, lost profits, transportation costs and other associated costs; and
Initial contact and reporting of the Recall to any government agency having jurisdiction over the affected Merchandise.

If a regulatory body initiates any inquiry or investigation relating to the Merchandise you agree to immediately notify us and take reasonable steps to resolve the matter without exposing us to any liability or risk.

Article XIV. Limitation of Damages

In no event will we be liable to you for any punitive, special, incidental or consequential damages of any kind (including but not limited to loss of profits, business revenues, business interruption and the like), arising from or relating to the relationship between you and us, including all prior dealings and agreements, or the conduct of business under or breach of this Agreement or any Purchase Order, our cancellation of any Purchase Order, or the termination of business relations with you, regardless of whether the claim under which such damages are sought is based upon breach of warranty, breach of contract, negligence, tort, strict liability, statute, regulation or any other legal theory or law. This limitation will apply even if you notify us of the possibility of damages or liability.

Article XV. Insurance Requirements

You are required to obtain and maintain the following insurance coverage from a reputable insurance carrier in the amounts and with the conditions listed below:

Commercial General Liability, including Contractual, Personal & Advertising Injury, Products, and Completed Operations coverage, with certificate holder named as Additional Insured as evidenced by attached endorsement or blanket additional insured coverage provided by the policy. Policy shall be occurrence based with limits of no less than $5,000,000 per occurrence, without any aggregate limits or $50,000,000 in the aggregate. Defense costs shall not apply against coverage limits. If we determine that you are a high-risk supplier, you shall maintain policy limits of not less than $10,000,000 per occurrence without any aggregate limits or $100,000,000 in the aggregate.
Statutory Workers’ Compensation Coverage if your employees will be entering our premises, with $1,000,000 in employers’ liability coverage and a waiver of subrogation where Permitted By Law.
If your employees or agents will be driving on our premises or making deliveries to our premises, automobile Coverage, with certificate holder named as Additional Insured as evidenced by attached endorsement or blanket additional insured coverage provided by the policy. Coverage shall be occurrence based with limits of no less than $5,000,000 per occurrence, without any aggregate limits or $50,000,000 in the aggregate.
You agree to provide at least thirty (30) days’ written notice prior to any cancellation of any policy of insurance maintained under these Terms.
Supplier’s insurance shall be considered primary, non-contributory and not excess coverage.
Defense costs shall not apply against coverage limits.

Certificate Holder should read: IZZY & LIV LLC, ITS SUBSIDIARIES & ITS AFFILIATES, 437 State Route 34 STE E, Matawan, NJ 07747

A copy of your current Certificate of Insurance with the above requirements must be submitted with this Agreement.

Article XVI. Term

The Term of this Agreement shall begin once you accept an Purchase Order from us, and it shall end either once all products and services have been delivered and accepted, or after one (1) year, whichever is later. This Agreement will automatically renew when you accept new Purchase Orders from us.

Article XVII. Arbitration For U.S Based Suppliers

THE TERMS OF THIS U.S.-BASED ARBITRATION SECTION SHALL APPLY IF YOU FALL UNDER THE JURISDICTION OF THE UNITED STATES OF AMERICA.

WITH REGARD TO ANY CLAIMS YOU MAY HAVE NOW OR IN THE FUTURE, ARISING OUT OF OR RELATING TO THIS AGREEMENT, OUR COMPANY, OUR PRODUCTS, OR OUR SERVICES, YOU HEREBY EXPRESSLY AGREE TO WAIVE ANY RIGHT TO TRIAL BEFORE A JURY OR JUDGE IN A COURT OF LAW AND TO PRESENT SUCH CLAIM ONLY THROUGH BINDING ARBITRATION IN ACCORDANCE WITH THE FOLLOWING:

THESE TERMS AND ALL RELATED DOCUMENTS, PROGRAMS, INCLUDING ALL EXHIBITS ATTACHED HERETO, AND ALL MATTERS ARISING OUT OF OR RELATING TO THESE TERMS, WHETHER SOUNDING IN CONTRACT, TORT, OR STATUTE, ARE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW JERSEY, UNITED STATES OF AMERICA, WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PROVISIONS THEREOF TO THE EXTENT SUCH PRINCIPLES OR RULES WOULD REQUIRE OR PERMIT THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THOSE OF THE STATE OF NEW JERSEY.

UNLESS REMEDIES HAVE BEEN EXPLICITLY PROVIDED FOR OTHERWISE IN THESE TERMS AND THE AGGRIEVED PARTY CHOOSES TO ENFORCE ITS RIGHTS IN ACCORDANCE AND EXCLUSIVELY WITH THOSE REMEDIES, AND EXCLUDING SUITS FOR INJUNCTIVE RELIEF AND THE ENFORCEMENT OF AN AWARD, THE ONLY MEANS FOR RESOLVING ADVERSARIAL DISPUTES ARISING OUT OF THESE TERMS SHALL BE AS FOLLOWS:

FOR ANY DISPUTE, CLAIM OR CONTROVERSY UNDER $25,000 IN VALUE ARISING OUT OF OR RELATING TO THESE TERMS, OR THE BREACH THEREOF, ANY SUCH DISPUTE SHALL BE RESOLVED BY ARBITRATION ADMINISTERED BY FAIRCLAIMS (WWW.FAIRCLAIMS.COM) IN ACCORDANCE WITH ITS SMALL CLAIMS RULES & PROCEDURES EFFECTIVE AT THE TIME A CLAIM IS MADE, AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.

FOR ANY DISPUTE, CLAIM OR CONTROVERSY AT LEAST $25,000.01 IN VALUE ARISING OUT OF OR RELATING TO THESE TERMS, OR THE BREACH THEREOF, ANY SUCH ARBITRATION ADMINISTERED BY FAIRCLAIMS (WWW.FAIRCLAIMS.COM) IN ACCORDANCE WITH ITS FASTTRACK RULES & PROCEDURES FOR CLAIMS OVER $25,000 EFFECTIVE AT THE TIME A CLAIM IS MADE, AND JUDGMENT ON THE AWARD RENDERED BY THE ARBITRATOR(S) MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.

EACH PARTY HEREBY EXPRESSLY CONSENTS TO ANY SUCH DISPUTES BEING SO RESOLVED BY THESE ARBITRATION TERMS, AND THAT ALL PROCEEDINGS BE EXCLUSIVELY CONDUCTED REMOTELY. IF REMOTE ATTENDANCE IS NOT AVAILABLE, ALL ARBITRATION HEARINGS SHALL BE CONDUCTED IN ANY SUITABLE FACILITY LOCATED IN THE MATAWAN, NEW JERSEY AREA. YOU HEREBY CONSENT TO ELECTRONIC SERVICE OF PROCESS, WITH SERVICE TO BE MADE TO THE EMAIL ADDRESS THAT WE HAVE ON FILE FOR YOU.

JUDGMENT ON THE AWARD RENDERED IN ANY ARBITRATION HEARING SHALL BE BINDING, NON-APPEALABLE, AND ENTERED IN ANY COURT HAVING JURISDICTION. THE ARBITRATOR SHALL HAVE THE POWER TO RULE ON HIS OR HER OWN JURISDICTION, INCLUDING ANY OBJECTIONS WITH RESPECT TO THE EXISTENCE, SCOPE, OR VALIDITY OF THE ARBITRATION TERMS OR TO THE ARBITRABILITY OF ANY CLAIM OR COUNTERCLAIM. THE ARBITRATOR SHALL HAVE THE POWER TO DETERMINE THEIR OWN JURISDICTION AND THE EXISTENCE OR VALIDITY OF A CONTRACT OF WHICH AN ARBITRATION CLAUSE FORMS A PART. SUCH AN ARBITRATION CLAUSE SHALL BE TREATED AS AN AGREEMENT INDEPENDENT OF THE OTHER TERMS OF THE CONTRACT. IF ANY PROVISION OF THIS ARBITRATION AGREEMENT IS FOUND UNENFORCEABLE, THE UNENFORCEABLE PROVISION SHALL BE SEVERED AND THE REMAINING ARBITRATION TERMS SHALL BE ENFORCED.

YOU FURTHER AGREE TO AND DO HEREBY WAIVE ANY RIGHT TO CLASS ARBITRATION AND AGREE, INSTEAD, TO CONDUCT AN ARBITRATION RELATED SOLELY TO ANY INDIVIDUAL CLAIMS YOU AND/OR ANY ENTITY RELATED TO YOU ASSERTS AGAINST US.

EACH PARTY SHALL BE RESPONSIBLE FOR ITS OWN COSTS ASSOCIATED WITH ARBITRATION.

IN THE EVENT THAT ARBITRATION IS INAPPLICABLE OR IMPOSSIBLE, ALL PARTIES AGREE THAT ESSEX COUNTY, NEW JERSEY WILL BE THE SOLE AGREED VENUE FOR LITIGATION NECESSARY TO ENFORCE THIS AGREEMENT. HOWEVER, NOTHING IN THIS AGREEMENT OR IN THESE ARBITRATION TERMS SHALL PREVENT ANY PARTY FROM APPLYING TO AND OBTAINING FROM ANY COURT HAVING JURISDICTION A TEMPORARY INJUNCTION, PRELIMINARY INJUNCTION, PERMANENT INJUNCTION, OR OTHER EQUITABLE RELIEF AVAILABLE TO PREVENT IMMEDIATE LOSS. ANY PARTY SHALL ALSO BE ENTITLED TO FILE IN ANY COURT HAVING JURISDICTION ANY SUIT NECESSARY TO ENFORCE A DECISION OR AWARD RESULTING FROM AN ARBITRATION PROCEEDING.

THE PARTIES AGREE THAT THE OBLIGATIONS CONTAINED WITHIN THIS SECTION WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT.

Article XVIII. Arbitration for Foreign Suppliers

THE TERMS OF THIS ARBITRATION FOR FOREIGN SUPPLIERS SECTION SHALL APPLY IF YOU DO NOT FALL UNDER THE JURISDICTION OF THE UNITED STATES OF AMERICA.

ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THESE TERMS, OR THE BREACH THEREOF, SHALL BE DETERMINED BY ARBITRATION ADMINISTERED BY THE INTERNATIONAL CENTRE FOR DISPUTE RESOLUTION (ICDR) IN ACCORDANCE WITH ITS INTERNATIONAL ARBITRATION RULES. THE NUMBER OF ARBITRATORS SHALL BE ONE. THE PLACE OF THE ARBITRATION SHALL BE VIA SECURE VIDEO CHAT, WHENEVER POSSIBLE. IF ELECTRONIC ATTENDANCE IS NOT AVAILABLE, THE PLACE OF ARBITRATION SHALL BE IN ANY SUITABLE FACILITY LOCATED IN ESSEX COUNTY, U.S.A. THE LANGUAGE OF THE ARBITRATION SHALL BE ENGLISH.

EACH PARTY SHALL BE RESPONSIBLE FOR ITS OWN COSTS ASSOCIATED WITH ARBITRATION.

THE PARTIES AGREE THAT THE OBLIGATIONS CONTAINED WITHIN THIS SECTION WILL SURVIVE ANY TERMINATION OF THIS AGREEMENT.

Article XIX. Waiver of jury Trial

EACH PARTY ACKNOWLEDGES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT, INCLUDING EXHIBITS, SCHEDULES, ATTACHMENTS, AND APPENDICES ATTACHED TO THIS 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 THIS AGREEMENT, INCLUDING ANY EXHIBITS, SCHEDULES, ATTACHMENTS OR APPENDICES ATTACHED TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED HEREBY.

Article XX. Class Action

YOU HEREBY IRREVOCABLY WAIVE YOUR RIGHT TO JOIN OR CONSOLIDATE CLAIMS OR DISPUTES AGAINST US WITH OTHER POTENTIAL OR ACTUAL CLAIMANTS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.

Article XXI. Relationship of the Parties

Nothing in this Agreement shall be construed to create a partnership, joint venture, employment, or agency relationship.

Article XXII. Forces Majeure

Neither we nor our assigns, employees, owners, agents, or other third-parties acting on our behalf will be liable or responsible to you, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in our performance under this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national, state, or local emergency, revolution, insurrection, epidemics, pandemics, lockouts, strikes, labor disputes (whether or not relating to our workforce), restraints or delays affecting carriers, inability or delays in obtaining supplies of adequate or suitable materials, telecommunication breakdowns, or power outages.

Article XXIII. Severability

If any term or provision of this Agreement is found by a duly appointed factfinder, arbitrator, or court of competent jurisdiction (“Factfinder”) to be invalid, illegal, or unenforceable, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement, provided that the unenforceable term or provision is not fundamental or material. Upon a determination that any fundamental term or provision is invalid, illegal or unenforceable, the Factfinder may modify this Agreement to effect the Parties’ original intent as closely as possible in Purchase Order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.

Article XXIV. Survival

The rights and obligations of the Parties in this Agreement which, by their nature, should survive termination or expiration of this Agreement, will survive any such termination or expiration of this Agreement.

Article XXV. Waiver

No waiver by either Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by both parties. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver