1. Parties, Products Defined, and Other Terms. The relationship between any buyer or purchaser as described in any sales or purchase instruments or agreements entered (collectively “Buyer”) with Fibertech, Inc. and its affiliated and related companies and subsidiaries (collectively “Fibertech”) for the purchase of any goods, equipment, materials, merchandise, services, items or products (collectively “Products”) covered thereby is conditioned upon the Buyer’s acceptance of the terms and conditions contained in this instrument, the initial invoice and subsequent invoices, as they may be amended and supplemented from time to time (collectively “Contract”). The terms and conditions affixed to the account application (if one has been completed), and the terms and conditions found at www.fibertechinc.net/terms/Terms-and-Conditions-of-Sale, (collectively the “Terms”). Fibertech and Buyer are independent contracting parties, not principals or agents, partners, or joint venturers. Neither party has the authority to enter into any Contract, or make any warranty or representation on behalf of the other party, except where and to the extent specifically authorized to do so in writing. Fibertech’s acceptance of Buyer’s order is made expressly conditional on Buyer’s assent to these Terms, and Buyer’s receipt of delivery, payment for, or use of Products shall constitute assent to these Terms. Upon Fibertech’s acceptance of Buyer’s order, these Terms, together with Buyer’s order, shall together comprise the “Order”. Notwithstanding inconsistent, supplemental, additional, or different terms contained in Buyer’s purchase order, acknowledgement, acceptance or other document, any Order shall be governed solely and exclusively by these Terms and Fibertech expressly objects to any different terms proposed by Buyer. Fibertech may revise these Terms at any time, from time to time, with such revisions to take effect when published at Fibertech’s website.
2. Payment Terms. Unless otherwise agreed upon between the parties, Buyer shall pay the net amount as set forth on the invoice within NET 30 days of Buyer’s receipt of Fibertech’s invoice. Buyer shall assume, in addition to the purchase price, all taxes, however designated, levied or based on such price of the Products or on this Contract, including, but not limited to, state and local sales, use, privilege or excise taxes based on gross revenue, and any taxes or amounts in lieu thereof paid or payable by Fibertech in respect of the foregoing, exclusive, however, of taxes on net income. Fibertech’s quoted price does not include taxes. Any tax (other than on Fibertech’s income), excise, duty or governmental charge imputed to the Products or Fibertech’s acquisition, storage, or shipment of the Products, shall be for the account of Buyer. Buyer acknowledges and agrees all delinquent balances will be assessed a late fee charge of eighteen percent (18%) per month, and will continue to accrue each month on unpaid balances until paid in full. Buyer shall have no right of deduction or set off against sums due Fibertech for Products which have either been delivered or which Fibertech has undertaken to deliver.
3. Confidential Information. Fibertech and Buyer acknowledge that information to be provided by Fibertech to Buyer with respect to Fibertech’s business, and information to be provided by Buyer to Fibertech with respect to Buyer’s business and the business of either party’s affiliated companies, is of independent economic value, both actual and potential, and Fibertech and Buyer recognize that disclosing this information could give an economic value to others and could be a serious detriment to Fibertech and Buyer. This confidential information includes, but is not limited to, any and all tangible and intangible information in whatever form or medium available furnished by Fibertech to Buyer and furnished by Buyer to Fibertech, including, but not limited to, computer programs, trade secrets, the fact that discussions between Fibertech and Buyer are taking place and the nature of such discussions, any and all data, designs, drawings, specifications, methods, processes, techniques, projects, operations, services, trade secrets, marketing, business, technical, or financial information, business records and plans, financial statements and information, customer lists and records, computer programs, receipts and expenditures, know-how, patents and patent lists, referral sources, vendors, management activities, formulas, test results, sales figures, employee names, accounting, pricing, salary information, business plans and strategies, negotiations of contracts, inventories and discoveries, mailing lists and/or any other information related to the operation of Fibertech or Buyer’s business (collectively “Confidential Information”). Buyer further acknowledges that improper use or revelation of the Confidential Information by it could give an economic value to others and could cause serious injury to Fibertech. Buyer further acknowledges that Buyer could not obtain such information outside of Buyer’s relationship with Fibertech. Buyer covenants and agrees that Buyer shall not, directly or indirectly, use or disclose to anyone except authorized personnel of Fibertech or whether or not for its benefit or otherwise, any such Confidential Information concerning Fibertech, either during the term or after the expiration of the term of this Contract. This obligation of Buyer shall not apply to any knowledge or information or any part thereof disclosed to Buyer which (i) is now public knowledge or which becomes public knowledge through no violation of this Contract; (ii) is lawfully within Buyer’s possession, as documented, prior to disclosure by Fibertech; or (iii) is lawfully disclosed to Buyer by a third party not under similar obligation to Fibertech. Buyer further covenants and agrees that (i) all confidential memoranda, notes, lists, customer lists, customer information records and other confidential documents (and all copies thereof) containing Confidential Information made or compiled by Buyer or made available to Buyer concerning Fibertech, shall be the property of Fibertech, and (ii) if such documents are in the possession or control of Buyer, Buyer shall deliver them, at the sole cost of Buyer, to Fibertech promptly following the term of this Contract or at any other time upon request of Fibertech. Buyer shall promptly notify Fibertech in any event prior to disclosure to any third person, if it receives any request for access to Confidential Information in any legal proceedings. The confidentiality provisions of this paragraph shall survive the termination of this Contract.
4. Compliance with Laws. Buyer agrees, represents and warrants that Buyer will comply with the applicable provision of any federal, state or local law or ordinance and all orders, rules and regulations issued thereunder, and any provisions, representations, or agreements, required thereby to be included in the Contract resulting from acceptance of this Contract, including but not limited to, clauses dealing with Equal Opportunity, Foreign Corrupt Practices Act, employment of veterans, employment of handicapped, and utilization of minority business enterprises, and such requirements are incorporated herein by reference.
5. Termination. Fibertech may, in Fibertech’s sole and unfettered discretion, at any time with or without cause, terminate any order related to this Contract in whole or in part by written notice to Buyer.
6. Inspection of Products. Buyer shall make an inspection of any Products delivered hereunder immediately upon receipt, and failure of Buyer to give written notice of any claims within seven (7) days after receipt of such Products shall be an unqualified acceptance of such Products and a waiver by Buyer of any and all claims with respect thereto. If any Products are defective or do not otherwise conform, Buyer shall give Fibertech written notice of such defect or non-conformity and a reasonable opportunity to cure, which opportunity shall be a minimum of 30 days after written notice of defect or non-conformity has been received by Fibertech.
7. Representations, Limited Warranties and Disclaimers. Fibertech represents and warrants the Products shall be free of defects in material and workmanship for a limited warranty period of thirty (30) days after delivery or as otherwise provided for in Fibertech’s Products’ literature for the particular Products in question, which literature is made a part hereof. Fibertech’s sole responsibility and Buyer’s sole remedy is any warranty claim is limited to repairing or replacing the defective Products. The warranty does not cover the following: periodic checks, maintenance, repair, and replacement of parts due to normal wear and tear; abuse or misuse, including, but not solely limited to, the failure to use the Products for their normal purposes or in accordance with Fibertech’s instructions on usage and maintenance; defects resulting from usage of the Products in conjunction with accessories that are not approved by Fibertech for use with the Products; and any defect due to materials, designs or specifications provided to Fibertech by Buyer. SAID EXPRESSED WARRANTIES ARE THE SOLE WARRANTIES PROVIDED AND FIBERTECH HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE OR USE.
8. Returned Products. No returned Products from any source will be accepted by Fibertech, without written approval, together with shipping instructions, from Fibertech. If permission is granted, the returned Products shall be in new and undamaged condition, and returned subject to a 20% handling charge, plus freight cost. Non-standard items or fabricated items are not returnable. Fibertech’s liability is conditional upon Buyer’s proper use, handling, and care of the Products. The grinding, processing or in any other manner altering or changing the form of the Products, or combining with other materials, shall constitute a waiver of all claims for defects. Buyer shall submit with its notification, a copy of the original invoice and pictures of the defects of the Product supplied by Fibertech and the Buyer’s finished good claimed to be defective and shall afford Fibertech the opportunity to inspect any Products in Buyer’s possession either by shipping Products back to Fibertech or Fibertech visiting Buyer’s location. It is the Fibertech’s discretion to determine if defective Products will be repaired, replaced or a credit will be issued for the invoiced price of the Product. Fibertech is not responsible for any loss, damage, or expense other than that of the Product itself.
9. Freight. The price for freight is not included in the price for the Products. The Buyer shall pay all freight on all orders for Products, FOB Fibertech’s plant. Any freight quoted is only an estimate at the time the order is taken and is subject to change. Shipping dates are approximate and conditional upon availability of Products. Fibertech does not guaranty delivery on a specific date and time.
10. Intellectual Property. Fibertech shall own all means, patents, utility models, rights in invention, copyright and neighbouring and related rights, database rights, moral rights, design rights, trademarks, trade names and get-up, goodwill, know-how, confidential information and other intellectual property rights, whether registered or unregistered and including all applications for the grant of the foregoing and all rights or forms of protection having similar or equivalent effect to any of the foregoing which may subsist anywhere in the world (collectively, “Intellectual Property”) in the Products. Buyer is not granted any rights or licence in respect of the Intellectual Property or the Products, other than the right to use or resell the Products in the Buyer’s ordinary course of business and otherwise in accordance with the terms and conditions of this Contract. Buyer shall not use, copy, adapt, transmit, distribute, modify, publish, reverse engineer, create derivative works based upon, distribute, licence, sell, transfer, publicly perform, broadcast, communicate to the public or otherwise exploit the Intellectual Property or the Products except as expressly permitted in this Contract or otherwise without the Fibertech’s prior written consent. Fibertech makes no representation that Buyer’s use or resale of the Products, whether alone or in combination with another material or substance, will not infringe any third party patent or intellectual property rights. Buyer assumes all risk of infringement by accepting the Products.
11. Technical Support. Fibertech may, at its option, provide complimentary technical support, advice, products processing consultations, and other information to Buyer in conjunction with Buyer’s Products purchase (the “Technical Support”). Buyer represents that it is a sophisticated party and shall utilize its independent skill and expertise in the application of any Technical Support. Buyer shall utilize any Technical Support at its own risk. IN ACCORDANCE WITH THIS CONTRACT, BUYER AGREES FIBERTECH’S LIABITIY (AND BUYER’S SOLE AND EXCLUSIVE REMEDY) FOR ANY AND ALL DAMAGES ARISING FROM, FIBERTECH’S TEHCNICAL SUPPORT, SHALL BE LIMITED TO DIRECT DAMAGES ACTUALLY INCURRED BY BUYER, AND IN NO INSTANCE SHALL BE MORE THAN THE PRICE PAID BY BUYER FOR THE PRODUCTS. IN NO EVENT SHALL FIBERTECH BE LIABLE FOR ANY SPECIAL, PUNITIVE, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES (INCLUDING LOSS OF PROFITS), LOSSES OR EXPENSES OF ANY KIND OF BUYER OR OF ANY OF BUYER’S CUSTOMERS, INCLUDING, WITHOUT LIMITATION, PRODUCTION COSTS, CLAIMED LOSS OF ANTICIPATED PROFITS, INJURY TO CREDIT, REPUTATION OR GOOD WILL.
12. Force Majeure. Fibertech shall have no liability or obligation to Buyer of any kind, including, but not limited to, any obligation to deliver Products as a result of causes, conduct or occurrences beyond Fibertech’s reasonable control, including, but not limited to, commercial impracticability, fire, flood, act of war, terrorism, civil disorder or disobedience, act of public enemies, problems associated with transportation (including car or truck shortages), acts or failure to act of any state, federal or foreign governmental or regulatory authorities, material shortage, pandemic, labor disputes, strikes, or failure of suppliers to make timely deliveries of materials, goods or services to Fibertech.
13. Federal Acquisition Regulations; No Medical Devices. Fibertech will not sell or sample Products for any application which is (i) governed at any level by the Federal Acquisition Regulations, 48 C.F.R. 1.001-99.999; or (ii) intended for use as a Class III medical device as defined in 21 C.F.R. 862-892. Any Buyer purchasing Products for use in a federal contract (including federal subcontracts) or for manufacture of a Class III medical device must notify Fibertech of Buyer’s intended end use at time of Buyer’s order. If Buyer fails to notify Fibertech in accordance with this Section, BUYER SHALL INDEMNIFY FIBERTECH AGAINST ANY AND ALL CLAIMS, LIABILITIES, OR EXPENSES (INCLUDING FINES AND PENALTIES AND LEGAL FEES) ARISING DIRECTLY OR INDIRECTLY FROM BUYER’S FAILURE TO PROVIDE SUCH NOTICE.
14. Additional Deliveries. Fibertech shall not be obligated to deliver in any month more than a proportionate part of the maximum quantity specified in a Order, determined by dividing such maximum quantity ordered by the total number of months included in the Order. If Buyer fails to take in any month all of such proportionate part, the undelivered quantity may, at Fibertech’s sole and unfettered election, be cancelled from the Contract.
15. Indemnification. TO THE FULLEST EXTENT PERMITTED BY LAW, BUYER SHALL DEFEND, INDEMNIFY, AND HOLD HARMLESS FIBERTECH, ITS EMPLOYEES, AFFILIATES, AGENTS, AND REPRESENTATIVES, FROM ANY AND ALL CLAIMS, DEMANDS, SUBROGATION CLAIMS BY BUYER’S INSURERS, CAUSES OF ACTION, CONTROVERSIES, LIABILITIES, FINES, REGULATORY ACTIONS, LOSSES, COSTS, EXPENSES (INCLUDING, BUT NOT LIMITED TO ATTORNEYS’ FEES, EXPERT WITNESS EXPENSES AND LITIGATION OR ARBITRATION EXPENSES), WHETHER BASED ON STATUTORY OR COMMON LAW, TORT (INCLUDING NEGLIGENCE) OR CONTRACT LAW, WHETHER FOR PERSONAL INJURY, DEATH, OR PROPERTY CLAIMS, ARISING FROM OR IN CONNECTION WITH:
a. THE ACTS OR OMISSIONS OF THE BUYER AND BUYER’S EMPLOYEES, AGENTS OR REPRESENTATIVES;
b. THE SPECIFICATIONS PROVIDED BY BUYER;
c. THE BUSINESS RELATIONSHIP BETWEEN THE PARTIES;
d. THE NEGLIGENCE OF BUYER;
e. THE BUYER’S BREACH OF THIS CONTRACT; AND/OR
f. THE BUYER’S USE, MODIFICATION OR ALTERATION OF THE PRODUCTS,
INCLUDING BUT NOT LIMITED TO ANY PATENT, TRADEMARK, COPYRIGHT OR OTHER INTELLECTUAL PROPERTY LAW CLAIMS, AND ANY ENVIRONMENTAL LAW CLAIMS (COLLECTIVELY “CLAIMS”). THIS OBLIGATION TO INDEMNIFY, DEFEND, RELEASE, AND HOLD HARMLESS SHALL SURVIVE TERMINATION OR ANY EXPIRATION OF THIS CONTRACT AND SHALL APPLY WHETHER OR NOT IT IS ALLEGED THAT THE FIBERTECH IN ANY WAY CONTRIBUTED TO THE CLAIMS OR IS LIABLE DUE TO A NON DELEGABLE DUTY. NOTWITHSTANDING THE FOREGOING, THE BUYER SHALL NOT HAVE ANY INDEMNITY OBLIGATION TO THE FIBERTECH WITH RESPECT TO ANY CLAIMS THAT RESULT SOLELY FROM THE NEGLIGENCE OF FIBERTECH AND THIS INDEMNITY PROVISION DOES NOT PURPORT TO INDEMNIFY FIBERTECH SOLELY FOR ITS OWN NEGLIGENCE, BUT RATHER FOR THE NEGLIGENCE OR CONDUCT, WHETHER SOLE OR CONCURRENT, OF BUYER. BUYER, FOR ITSELF AND ITS INSURERS, EXPRESSLY WAIVES ANY AND ALL LIMITATIONS OR LIABILITY CAPS, IF ANY, ON BUYER’S CONTRIBUTION LIABILITY TO FIBERTECH, AND ANY AND ALL STATUTORY OR COMMON LAW LIEN RIGHTS OR CLAIMS AGAINST FIBERTECH, ARISING FROM ANY APPLICABLE WORKERS COMPENSATION OR DISABILITY ACTS, WHICH BUYER MIGHT OR COULD ASSERT AGAINST FIBERTECH OR FIBERTECH’S INSURERS IN THE EVENT OF THE PERSONAL INJURY OR DEATH OF BUYER’S EMPLOYEES, REPRESENTATIVES OR AGENTS. WITHOUT LIMITING THE FOREGOING, BUYER, FOR ITSELF AND ITS INSURERS, ALSO WAIVES ANY CLAIMS, LIENS OR OTHER RIGHTS IT MAY HAVE AS A RESULT OF BEING SUBROGATED TO ANY RIGHTS OF ITS EMPLOYEES, REPRESENTATIVES OR SERVANTS.
16. Hazardous Materials. The Products sold hereunder may be or become hazardous, whether singly or in combination with other goods or Products. Buyer will take all steps necessary to familiarize, inform and warn its employees, agents, customers, and contractors who may handle or come in contact with the Products of all the hazards pertaining to, and proper procedures for safe use of, the Product and the containers or equipment in which the Product may be handled, shipped, or stored. Buyer also undertakes to label as appropriate any materials which it makes or resells that includes the Product. BUYER WILL INDEMINIFY, DEFEND AND HOLD FIBERTECH HARMLESS FROM AND AGAINST ANY CLAIM, LIABILITY OR EXPENSE (INCLUDING ATTORNEY’S FEES) INCLUDING, BUT NOT LIMITED TO, INJURY OR DEATH ARISING DIRECTLY OR INDIRECTLY FROM BUYER’S FAILURE TO SO FAMILIARIZE, INFORM, OR WARN OF HAZARDOUS MATERIALS. THESE UNDERTAKINGS APPLY IN FULL MEASURE WHETHER FIBERTECH IS ALLEGED OR FOUND TO BE CONCURRENTLY, PARTIALLY OR JOINTLY NEGLIGENT OR AT FAULT OR LIABILITY WITHOUT FAULT IS SOUGHT TO BE IMPOSED ON FIBERTECH.
17. Disclaimer of Damages and Liability Limitations. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, TREBLE, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES RESULTING FROM LOSS OF USE, LOSS OF PROFITS, INTERRUPTION OR LOSS OF BUSINESS, LOST GOODWILL, LOST REVENUE AND LOST OPPORTUNITY) ARISING OUT OF ANY OF THE TERMS OR CONDITIONS OF THIS CONTRACT OR WITH RESPECT TO ITS PERFORMANCE HEREUNDER. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, FIBERTECH’S TOTAL LIABILITY FOR ANY LOSSES, LIABILITY, DAMAGES, OR OTHERWISE, RELATED TO AN INDEMNIFICATION OBLIGATION, RECALL, OR A BREACH OF THIS CONTRACT OR A BREACH OF ANY WARRANTY, EXPRESS OR IMPLIED, OR ANY OTHER CAUSE, INCLUDING BUT NOT LIMITED TO NEGLIGENCE, SHALL NOT EXCEED ONE HUNDRED TEN PERCENT (110%) OF THE PURCHASE PRICE PAID BY BUYER TO FIBERTECH UNDER THIS CONTRACT IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENTS GIVING RISE TO SUCH LOSSES, LIABILITY, DAMAGES OR OTHERWISE.
18. Arbitration and Governing Law. The parties acknowledge and agree that any and all disputes arising relating to this Contract, which exceed Fifty Thousand Dollars ($50,000), shall be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association, and any judgment rendered by the arbitrator may be entered in any court having jurisdiction thereof. Notwithstanding said Rules, any arbitration hearing to take place hereunder shall be conducted in Evansville, Indiana before one (1) arbitrator who shall be a licensed attorney with extensive experience in commercial law. This Agreement shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the State of Indiana (not including the choice of law rules thereof). Each party hereby consents to a single, consolidated arbitration proceeding of multiple claims, or claims involving more than two parties. Either party may apply to any court of competent jurisdiction for injunctive relief or other interim measures in aid of the arbitration proceedings, but not otherwise. Any such application shall not be deemed incompatible or a waiver of this section. The arbitrator shall be required to make written findings of fact and conclusions of law to support their award. Notwithstanding anything to the contrary in the Commercial Arbitration Rules and supplementary procedures, the arbitrators shall not be authorized or empowered to award punitive damages and the parties expressly waive any claim to such damages. Unless otherwise agreed to in writing, signed by the parties hereto, any and all disputes arising relating to this Contract which are less than Fifty Thousand Dollars ($50,000) shall be resolved in the Superior Court of Warrick County, State of Indiana, and each party hereto by performing under this Contract, consents to the exclusive exercise of jurisdiction and venue over any matter arising in connection with this Contract in said Court. In the event of any dispute, arbitration or litigation between the parties hereto involving this Contract or the respective rights of the parties hereunder, the party who does not prevail in such arbitration (or litigation as applicable) shall pay all the prevailing party’s reasonable attorneys’ and experts’ fees, costs and expenses incurred by the prevailing party in resolving said matter. As used herein the term ‘prevailing party’ shall include, but not be limited to, a party who obtains legal counsel or brings an action against the other by reason of the other’s breach or default and obtains substantially the relief sought whether by compromise, settlement, or judgment. THE PARTIES KNOWINGLY AND IRREVOCABLY WAIVE THE RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF THESE TERMS OR ANY ORDER INCORPORATING THEM.
19. Time Limitations on Claims. TO THE FULLEST EXTENT PERMITTED BY LAW, THE PARTIES ACKNOWLEDGE AND AGREE THAT NO SUIT OR CAUSE OF ACTION OR OTHER PROCEEDING SHALL BE BROUGHT AGAINST FIBERTECH MORE THAN ONE (1) YEAR AFTER THE DATE THE PRODUCTS WERE SOLD, WHETHER KNOWN OR UNKNOWN WHEN THE CLAIM ARISIS, OR WHETHER BASED ON TORT, CONTRACT, OR ANY OTHER LEGAL THEORY. FIBERTECH SHALL BE ENTITLED TO RECOVER FROM BUYER ALL REASONABLE LEGAL FEES, COURT COSTS, AND EXPENSES INCURRED IN CONNECTION WITH FIBERTECH ENFORCING THE TERMS OF THIS CONTRACT.
20. Severability, Non-Waiver & Interpretation. If any provision of this Contract is held to be invalid for any reason, the other terms and conditions hereunder shall remain in full force and effect, and such provision shall be enforced to the fullest extent permitted by law. Fibertech’s waiver of any breach, or failure to enforce any of this Contract, shall not be deemed to affect, limit or waive Fibertech’s right thereafter to require compliance with this Contract. Fibertech’s waiver, whether express or implied, of any breach of these Terms shall not be deemed to be a continuing waiver of any subsequent or continuing breach, whether of like or different nature, nor shall such waiver limit or waive, by reason of any course of performance, dealing, usage of trade or otherwise, Fibertech’s rights to enforce and compel strict compliance with these Terms. This Contract shall inure to the benefit of and be binding upon both Buyer and Fibertech, their legal representatives, successors and assigns, except as limited hereinbelow. IN THE EVENT OF CONFLICT BETWEEN THIS CONTRACT AND ANY OTHER INSTRUMENT ENTERED BY THE BUYER AND FIBERTECH, THE TERMS OF THIS CONTRACT SHALL HAVE PRIORITY, PREVAIL, AND BE CONTROLLING. THIS PROVISION, AND EACH AND EVERY OTHER PROVISION OF THIS CONTRACT MAY NOT UNDER ANY CIRCUMSTANCES BE MODIFIED, CHANGED, AMENDED OR PROVISIONS HEREUNDER WAIVED VERBALLY, BUT MAY ONLY BE MODIFIED, CHANGED, AMENDED OR WAIVED BY AN CONTRACT IN WRITING EXECUTED BY FIBERTECH. The parties have agreed and it is their intent that the battle of the forms Section 2-207 of the Uniform Commercial Code shall not apply to this Contract or to any invoice or acceptance form of Fibertech relating to this Contract. It is the parties’ intent that this Contract shall exclusively control the relationship of the parties, and in the event of any inconsistency between any purchase order, acceptance form or otherwise sent by Buyer to Fibertech and this Contract shall control. All rights granted to Fibertech herein shall be in addition to and not in lieu of Fibertech’s rights by operation of the law and the Fibertech’s remedies under this Contract shall be cumulative. As used in this Contract, the plural shall be substituted for the singular, and the singular for the plural, where appropriate; and words and pronouns of any gender shall be meant to include any other gender or entity. The subject headings herein have been placed and arranged for convenience and shall not be considered in any question of interpretation of this Contract. In the event that any of the provisions of this Contract shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provision shall be enforced to the fullest extent permissible and the remaining portion of this Contract shall remain in full force and effect.