perlick.com • [email protected] • 800.558.5592 100 Agreement, in whole or in part, or (c) becomes insolvent, files a petition for bankruptcy, or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization, or assignment for the benefit of creditors. 21. SURVIVAL. The parties’ rights and obligations, which by their nature would continue beyond the expiration or termination of this Agreement, including but not limited to those regarding indemnification, compliance with laws, warranties, limitations on liability, confidentiality, and non-solicitation of employees, will survive any termination or expiration of this Agreement. 22. EXCUSE FROM PERFORMANCE. Seller shall not be liable for any costs, expenses, or damages of any nature (whether general, consequential, incidental, punitive, liquidated, or otherwise) if performance or delivery of any Offering is rendered impracticable by any accident, breakdown, sabotage, riot, insurrection, war, delay, interruption in or failure of sources or subcontractors to supply materials and equipment, strike, labor or transportation problem, act of God, or other cause or condition, whether of like or different nature, that is beyond Seller’s reasonable control, or orders, contracts, priorities, directives, requisitions or requests of the federal or state governments, whether or not voluntarily assumed. If any such event renders Seller’s delivery or performance of any Offering impracticable, at Seller’s option, (a) the date of delivery or performance shall be extended for a period equal to the time lost by reason of the delay, or (b) Seller will be excused from performance and Buyer shall promptly, upon Seller’s request, pay Seller for any Offerings then completed (whether fully or partly completed). 23. INSURANCE. During the term of this Agreement, Buyer shall, at its own expense, maintain and carry insurance in full force and effect in amounts and types satisfactory to Seller. Upon Seller’s request, Buyer shall provide Seller with a certificate of insurance evidencing Buyer’s insurance coverage. Buyer shall provide Seller with thirty (30) days’ advance written notice in the event of a cancellation or material change in Buyer’s insurance policy. Under no circumstances will Seller be required to provide additional insured status to Buyer nor will Seller’s insurer be required to waive subrogation rights against Buyer or Buyer’s insurer. Seller will only be required to maintain insurance that is consistent with its own internal policies. 24. NOTICES. Any notice relating to this Agreement must be in writing and will be considered given within three (3) days after it is deposited, postage prepaid, with a registered mail service and addressed to the other party at the address given in this Agreement; or, if delivered by hand, when so delivered. 25. ASSIGNMENT; DELEGATION. Buyer may not assign, whether voluntarily or involuntarily, by merger, consolidation, dissolution, change of control, or otherwise this Agreement or any of Buyer’s rights hereunder nor delegate any of Buyer’s obligations under this Agreement without Seller’s written consent. Any purported assignment or delegation in violation of this Section will be void. Seller may assign this Agreement and any of Seller’s rights hereunder and delegate any of Seller’s obligations under this Agreement. If Seller assigns this Agreement or delegates any obligations under this Agreement (whether in whole or in part), Buyer shall, as relates to such part that was assigned or delegated, release Seller from all liability under this Agreement and hold the assignee solely responsible for performance of all such assigned or delegated obligations. 26. APPLICABLE LAW. The validity, construction, and enforcement of this Agreement is governed by and interpreted under the laws of the State of Wisconsin, including, without limitation, its provisions of the Uniform Commercial Code. The United Nations Convention on Contracts for the International Sales of Goods (CISG) does not apply to this Agreement. Any controversy or claim arising out of or in connection with this Agreement will be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on any award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Any such arbitration will occur in Milwaukee, Wisconsin and will be conducted in the English language. Notwithstanding the foregoing, any claim by Seller for collection of unpaid amounts may be pursued through any available method and in any available venue without first proceeding to arbitration pursuant to this Section, including without limitation through litigation in the State or Federal courts located in the State of Wisconsin, and Buyer hereby irrevocably submits to the personal jurisdiction of such courts. Buyer shall pay Seller any collection fees and all attorneys’ fees incurred by Seller in enforcing this Agreement or defending against any claim for breach of this Agreement. 27. AMENDMENT; WAIVER. No amendment or modification of any term or condition will be valid or binding upon Seller unless approved by Seller in a writing hand-signed by Seller. Unless Seller expressly indicates otherwise in such hand-signed writing, such modification is effective only in that instance and only for the purpose for which it is made and is not to be construed as a modification on any future occasion or of any future order or agreement. Clerical and stenographic errors are subject to correction by Seller. No waiver by Seller of any of the terms of this Agreement is effective unless explicitly set forth in a writing signed by Seller. The failure of Seller to insist upon a strict performance of any term of this Agreement will not be considered as a continuing waiver of any such term or condition, or any other term or condition, or any of Seller’s rights. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. 28. SEVERABILITY. If any term of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, such determination will not affect the remainder of this Agreement, which will remain in full force and effect. 29. INDEPENDENT CONTRACTORS. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement may be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties. No party has the authority to contract for or bind the other party in any manner whatsoever. 30. NO THIRD-PARTY BENEFICIARIES. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or will confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement. TERMS AND CONDITIONS
