Clean Room Terms and Condition of Sales
The following constitute the standard terms and conditions of sale (T&Cs) of Zinter Handling, Inc., (ZHI), which are effective as of January 1, 2019. They are a material part of any contract entered into by ZHI with any Customer regarding: (1) custom designed and manufactured cleanroom cranes, and (2) services. All ZHI proposals, Customer purchase orders, and contracts with Customers for cleanroom cranes and/or services shall be subject to the following T&Cs.
1. Acceptance of Proposal and the Standard Terms and Conditions:
1.1. Customer evidences its acceptance of ZHI’s T&Cs by: (1) placing an order with ZHI for products and/or services; (2) accepting ZHI’s Proposal and any amendments thereto, (collectively referred to as “ZHI’s Proposal”); and/or (3) sending ZHI written or electronic communication evidencing its acceptance of ZHI’s Proposal.
1.1-1. If Customer’s boilerplate documents state, in words or substance, that it rejects all or any part of ZHI’s Proposal and/or T&Cs, then any subsequent payment by Customer will conclusively establish Customer’s decision to accept ZHI’s Proposal and T&Cs notwithstanding Customer’s boilerplate documents to the contrary.
1.2. By accepting ZHI’s Proposal and/or placing an order with ZHI, Customer agrees to be bound to and comply with the terms set forth in: (a) ZHI’s Proposal, (b) ZHI’s T&Cs, and (c) all specifications, drawings, plans, and other documents referred to in ZHI’s Proposal. Once accepted, ZHI’s Proposal shall be a binding contract between ZHI and Customer.
1.3. Neither ZHI’s Proposal nor ZHI’s subsequent performance of its Proposal shall constitute an acceptance by ZHI of any term or condition prepared by Customer and referenced in Customer’s documents (i.e., purchase order, offer to purchase, offer to sell, quotation, proposal, SOW, agreement or contract) which contradicts or is in any way inconsistent with ZHI’s Proposal and/or T&C’s. No other terms and conditions, modification, or additional condition, or contradictory term, either written or oral, related to this transaction and/or contract, shall be binding upon ZHI.
1.4. Reference in ZHI’s Proposal to any Customer prepared document (i.e., request for proposal, offer to purchase, or offer to sell) shall in no way constitute a modification of ZHI’s Proposal or ZHI’s T&Cs.
1.5. Any attempted acknowledgment of ZHI’s Proposal and T&Cs containing terms and/or conditions inconsistent with or in addition to the provisions of ZHI’s Proposal and T&Cs shall not be binding upon ZHI and are expressly rejected by ZHI.
1.6. ZHI’s Proposal may be withdrawn by ZHI at any time prior to acceptance by Customer. It shall be deemed withdrawn if not accepted by customer within the time period set forth in ZHI’s Proposal. If ZHI’s Proposal does not set forth a deadline by which Customer must accept it, then ZHI’s Proposal shall be deemed withdrawn on the 30th day following the date of the Proposal if not accepted before then.
2. Prices and Payments:
2.1. ZHI’s Prices: The price shall be quoted in U.S. Dollars unless another currency is agreed upon by both ZHI and Customer in the accepted Proposal. Unless stated otherwise, all quotations\orders will be subject to price changes. In the event of an increase in one or more of the cost factors, which was not foreseen when the Agreement was entered into, ZHI will have the right to pass on these higher costs to the Customer. In the event that the price increase is more than 15%, the Customer will have the right to terminate the Agreement, by registered letter, within 5 working days of the price increase having been made known.
2.2. ZHI’s Prices Exclude All Government Charges: ZHI’s total price shall not be deemed to include any government charge, including but not limited to: (a) tariffs, (b) sovereign, state, and/or local sales, use, excise, value added, privilege, payroll, occupational and any other taxes, (c) government fees, or (d) duties applicable to the goods and services to be furnished by ZHI. Customer shall be solely responsible to pay any and all government charges. Customer agrees to reimburse ZHI for the payment of all government charges which ZHI paid on Customer’s behalf. If ZHI’s Proposal expressly states that ZHI will be responsible to pay any government charge, then ZHI’s obligation will be to pay the amount of the government charge in effect at the time of ZHI’s Proposal. Any increases in that government charge following ZHI’s Proposal date shall be the Customer’s responsibility as set forth above.
2.3. ZHI’s Prices Exclude Transportation Costs: Unless otherwise stipulated in ZHI’s Proposal, goods are priced to exclude transportation costs and any charges for demurrage.
2.4. Payment Terms: The payment terms set forth in ZHI’s Proposal shall be controlling. If there is no Proposal, or there are no payment terms set forth therein, then the following standard payment terms shall apply.
2.4-1. Cleanroom Cranes: For custom designed and manufactured cleanroom cranes:
2.4-1-1. Initial Deposit: a thirty percent (30%) deposit is due upon ZHI’s receipt of Customer’s purchase order. Unless prior arrangements are made, approval drawings will not be released prior to receipt of this deposit. Customer’s payment of this deposit again constitutes Customer’s decision to accept ZHI’s Proposal and T&Cs notwithstanding Customer’s boilerplate documents.
2.4-1-2. Progress Payment: a sixty percent (60%) progress payment shall be due immediately following Customer’s receipt of ZHI’s confirmation that the product is ready to be shipped. Unless prior arrangements are made, materials will not be shipped to Customer prior to receipt of this payment.
2.4-1-3. Final Payment: the ten percent (10%) balance will be invoiced Net 30 Days upon substantial completion.
2.4-2. Services: ZHI’s standard payment terms for credit qualified customers who contract with ZHI for services shall be Net 30 Days.
2.5. Time is of the essence with respect to Customer’s payment of all deposits or other sums due ZHI. Interest on any overdue balance shall be charged at the rate of twelve percent (12%) per annum, simple interest from the invoice date to the date of payment.
2.6. Credit Card. Customer understands and agrees that all final charges will be based upon the appropriate Zinter Handling rate sheet, quotation, or invoice. If freight is prepaid by us we add a 15% handling fee to the cost of the freight. The total amount charged will include a 4% convenience fee.
3. ZHI’s Drawings:
3.1. Customer’s Responsibilities. The following shall be Customer’s responsibilities with respect to all drawings supplied by ZHI:
3.1-1. Review Drawings. It is Customer’s responsibility to timely and carefully review and verify all drawings submitted by ZHI for approval with or without note. If necessary, approval drawings will be revised one time free of charge, and resubmitted either as confirming or for final approval. Subsequent changes will incur reasonable charges for our time, and professional fees (if any). Customer acknowledges and understands that ZHI’s drawings shall take precedence over quotations, purchase orders, contracts, and specifications, should one conflict with the other. If drawings are not rejected by customer within 72 hours of submittal, then the drawings are deemed accepted by customer unless withdrawn by ZHI.
3.1-2. Additional Information. If Customer requires additional information or dimensions, then it shall be Customer’s responsibility to timely and clearly notify ZHI’s project manager of its needs in this regard.
3.1-3. Clearances. All required clearances must be provided and verified by Customer.
3.1-4. Building’s Structure. It is the responsibility of Customer to verify that the building structures, including floors & foundations, have sufficient strength to safely resist imposed loads. ZHI shall have the right, but not the obligation, to inspect Customer’s facilities to confirm that the product ZHI designed will be able to perform its intended purpose. If ZHI determines, in its sole discretion, that the Customer’s facilities are such that the ZHI product will not be able to perform its intended purpose, then ZHI reserves the right to withdraw its Proposal and cancel the parties’ deal. If ZHI makes this election, it shall refund the Customer’s deposit without interest and shall have no further liability to Customer.
3.1-5. Local Codes. It is the responsibility of Customer to determine compliance with local codes, and to procure any necessary permits.
3.2. Customer’s Approval of Drawings. In certain situations, and at ZHI’s option, it may require Customer’s signature in the approval box which will be set forth on a ZHI drawing. Customer will be notified in writing if its signature in the approval box will be required by ZHI. In this situation, Customer understands that materials will not be released for procurement prior to receipt of approved drawings and any progress payments due. Delays in this regard may affect delivery.
3.3. Changes to Drawings. Following receipt of approved drawings, any changes must be requested on a “Project Change Request Form.” ZHI’s project manager will respond to the form with estimated impact on price and schedule, for Customer’s review and approval.
4. Delivery and Passage of Title:
4.1. Delivery. Dates of delivery are approximate only. ZHI shall not be liable for delays in manufacture or delivery, or failure to manufacture or deliver, due to causes beyond its immediate control, including but not limited to strikes, government interference, accidents, supply shortages, purchaser’s interference, purchaser’s breach, supplier interference or due to any other causes of a like or different nature beyond ZHI’s immediate control. For sales requiring delivery within the continental United States, unless otherwise stated in ZHI’s Proposal, all goods will be shipped by ZHI to the designated destination via the method agreed to by the Customer. For sales requiring delivery outside of the continental United States, unless otherwise stated in ZHI’s Proposal, all goods will be shipped by ZHI FCA named point as defined by Incoterms 2010. In any case where the shipment is delayed by Customer, payment shall become due at the time when ZHI is prepared to make shipment. Customer shall be held accountable for any additional costs ZHI incurs as a result of such delay. Any equipment held for Customer shall be at Customer’s risk. Customer shall be obligated to pay a storage charge to cover storage and handling on all delayed shipments in an amount to be negotiated by the parties in good faith. If the parties cannot agree on a reasonable storage charge, then Customer will be obligated to pay ZHI a storage charge of $500.00/week.
4.2. Passage of Title & Risk of Loss. Unless otherwise stipulated in ZHI’s Proposal, any and all risk, damage and loss to the equipment shall be borne by Customer from the time of delivery by ZHI to the carrier, and ZHI shall be free from responsibility and/or liability for any damage to, or loss of equipment occurring thereafter. Title to the equipment shall not pass to Customer until payment has been made in full, and default in payment shall entitle ZHI to retake possession thereof, in addition to any and all other remedies permitted at law and/or equity. Customer (and/or successive users), and not ZHI, shall be solely liable for any and all damages caused by and/or resulting from the equipment and/or use of the equipment from the time of delivery by ZHI to the carrier and thereafter.
5. Installation, Repairs & Inspections:
5.1. Installation. Unless otherwise specified in ZHI’s Proposal, installation is the responsibility of Customer. In transactions where ZHI is contracted to install equipment, ZHI’s Proposal will set forth the terms of installation and shall be binding upon Customer. All installation estimates are based on wide-open easy access to job site. Customer shall route electrical and/or air supply required to the subject equipment. Removal of any obstructions (conduit, ducts, lights, pipes, etc.) is the responsibility of Customer. ZHI expressly disclaims any and all liability related to installation not performed by it, and Customer agrees not to sue ZHI as to any dispute, claim or matter arising out of or related to any installation not performed by ZHI.
5.2. Repairs. Unless otherwise specified in ZHI’s Proposal or otherwise covered by an applicable, unexpired ZHI warranty, all subsequent repairs to equipment is the responsibility of Customer. In non-emergency situations, if ZHI is contracted to repair equipment, ZHI will submit a Proposal setting forth the terms of the repair which shall be binding upon Customer. In emergency situations, ZHI may agree to perform repairs pursuant to an oral agreement with Customer which will set forth the terms of the repair which shall be binding upon Customer. In all situations, these Terms and Conditions will be applicable to the oral contract and binding upon Customer. All repair estimates will be based on wide-open easy access to job site. ZHI expressly disclaims any and all liability related to repairs not performed by it, and Customer agrees not to sue ZHI as to any dispute, claim or matter arising out of or related to any repairs not performed by ZHI.
5.3. Inspection. Following all installations and repairs performed by ZHI, Customer agrees to permit ZHI to perform an inspection of the equipment pursuant to the guidelines set forth in CMAA Section 78-4.1. Thereafter, it shall be Customer’s responsibility to inspect the equipment pursuant to the guidelines set forth in CMAA Sections 78-4.2 (Pre-Shift), 4.3 (Frequent), and 4.4 (Periodic). In the event that Customer refuses to permit ZHI to perform a post-installation/repair inspection, or otherwise fails to perform the inspections recommended by CMAA Section 78-4, then Customer shall be obligated to defend, hold harmless, and indemnify ZHI against any claim which may result in any way from Customer’s foregoing refusal, failure, acts and/or omissions.
5.4. Customer’s Equipment. If Customer requests that ZHI use Customer’s equipment, tools, facilities, operators and/or employees or contractors during the provision of any installation or services in an effort to save costs or for any other reason, and ZHI agrees to accommodate Customer’s request, then Customer will be solely responsible for any injury to a person (including death) or damage to property (including Customer’s and/or ZHI’s property) arising out of such use, whether or not such claim is based on the condition of such equipment, tool or facility or on the alleged negligence of Customer’s operator and/or employee or contractor. Customer will defend ZHI and hold it harmless with respect to all claims arising from the use and operation of Customer’s said equipment, operators, and/or employees or contractors.
6. Confidential Information:
6.1. ZHI. All drawings, plans, equipment design and concepts prepared by ZHI in conjunction with its work shall remain the confidential, proprietary, intellectual property of ZHI. Customer may be provided with a copy of certain drawings and/or plans, but, except as required for the efficient performance of ZHI’s Proposal, it may not copy, reproduce, or disseminate to any third party, in whole or in part, any ZHI drawing or plan. If any copy or reproduction is made by Customer, notice referring to the requirements of this paragraph shall be provided thereon. Customer shall also keep confidential any technical process or economic information derived from ZHI drawings, specifications, and/or other data furnished by ZHI in connection with ZHI’s Proposal. Customer shall not divulge, directly or indirectly, ZHI’s confidential information for the benefit of any other party.
6.2. Customer. Any knowledge or information which Customer shall have disclosed or may hereafter disclose to ZHI, and which in any way relates to the goods or services offered by ZHI’s Proposal, shall not, unless otherwise specifically agreed to in writing by ZHI, be deemed to be confidential or proprietary information of Customer, and shall be acquired by ZHI, free from any restrictions, other than a claim for patent infringement.
7. Changes: Following Customer’s acceptance of ZHI’s Proposal, and other than a cancellation as discussed below, Customer may not make any changes to ZHI’s Proposal without the prior written consent of an authorized ZHI representative.
8. Cancellation: Following Customer’s acceptance of ZHI’s Proposal, Customer may cancel its order at any time. Upon cancellation, however, ZHI shall be entitled to charge Customer a cancellation fee equal to the sum of: (a) thirty percent (30%) of the total price quoted in ZHI’s Proposal, plus (b) all out of pocket expenses ZHI incurred prior to its receipt of Customer’s notice of cancellation, plus (c) all cancellation charges ZHI receives from its suppliers and consultants as a result of Customer’s cancellation. ZHI shall be entitled to use all deposits paid pursuant to ZHI’s Proposal to satisfy the cancellation charges. Customer shall be responsible to pay ZHI any cancellation charges in excess of the said deposits. Interest on any overdue balance shall be charged at the rate of twelve percent (12%) per annum, simple interest from the invoice date to the date of payment.
9. Load Testing: A load test is intended to “prove” a system's ability to withstand a capacity (minimum) load being imposed. Test loads shall not exceed 125% of the rated capacity of the equipment being tested. This includes the building structures that support said equipment. This testing not only verifies the manufactured components of the system, but also the proper installation of the system as a whole.
9.1. ZHI, as the company performing the load test, assumes no responsibility or liability for damage to the equipment being tested, or damage to the building, or damage to other items within the building, nor for injury to any person in the building that results from failure of the equipment being tested and/or failure of a building structure as a direct or indirect result of said testing. It is the Customer’s responsibility to make sure floors and foundations can withstand loads imposed by the test weights along the path of ingress\egress and under the entire test area.
9.2. ZHI shall retain responsibility for its own equipment and for the actions of its own personnel, as well as for any product that was manufactured by it.
9.3. The area immediately under and adjacent to the load testing shall be cleared of all persons and equipment, as possible. All precautions must be taken.
9.4. The proper use and maintenance of overhead lifting equipment in accordance with ANSI, ASME, and OSHA standards are the continuing responsibility of Customer. ZHI assumes no liability for damages resulting from future equipment failures.
9.5. Customer’s Responsibility. It is Customer’s responsibility to load test. Load testing is not included in ZHI’s scope of work unless specifically listed in ZHI’s Proposal.
10. Limitation of Liability: ZHI shall be liable only for direct damages resulting from its acts or omissions in an amount not to exceed $5,000,000. In no event will ZHI be liable for any indirect, special, consequential, liquidated, exemplary or punitive damages, nor will ZHI be liable for any lost profits.
11. Licensed Engineers or Other Design Professionals: Customer is advised that ZHI does not employ licensed engineers or other design professionals. If the services of a licensed engineer or other design professional are required to perform the scope of work set forth in ZHI’s Proposal, then ZHI will enter into an independent contractor arrangement with a duly qualified and licensed design professionals who shall perform the needed engineering services under ZHI’s Proposal, but who shall not be under the direction or control of ZHI.
12. Warranties:
12.1. All warranties shall extend only to Customer who is in privity of contract with ZHI. Customer, and not ZHI, shall be solely responsible for informing users of the equipment of all limitations of warranty and liability as set forth herein.
12.2. Limited Warranty:
12.2-1. ZHI warrants its products against defects in material and workmanship for a period of one year from the date of shipment, or 2080 hours in service, whichever expires first. This Limited Warranty is effective provided: (a) Customer notifies ZHI in writing of the defect immediately after it becomes known to Customer, and (b) no alterations, repairs, or services have been performed by Customer or third parties on the Product without written approval by ZHI.
12.2-2. Any equipment or components of the Product not of ZHI’s own manufacture and/or specified by the Customer is sold under only such warranty as the maker thereof gives ZHI and ZHI is able to enforce, but such items are not warranted by ZHI in any way.
12.2-3. No warranty referred to herein applies when the problem results from: (a) normal wear and tear, abuse, improper power supply, improper storage, eccentric loading, side-pulling, overloading, chemical action, abrasive action, improper maintenance, moisture, or excessive heat; (b) repairs by persons other than an authorized representative of ZHI; (c) damage to equipment resulting from accident, abuse, or act of God; (d) the use of unauthorized repair parts or accessories; or (e) anything other than a defect in workmanship and materials by ZHI.
12.2-4. ZHI’s obligation under this Limited Warranty is limited to the repair or replacement of parts only, at its option, FOB point of manufacture. ZHI shall, in no event, be liable to the user/Customer under this Limited Warranty, or otherwise for labor claims, expenditures of losses arising from operational delays or work stoppages or damages to property or people caused by defective products or for consequential or indirect damage of any nature whatsoever.
12.2-5. ZHI may, at its sole discretion, elect to provide service at Customer’s location, as a courtesy. Should this courtesy be extended to Customer, it shall be responsible to supply: (a) lifts, ladders, etc.; (b) easy wide-open access to the Product; (c) safe working environment; and (d) dedicated safety watch. Customer will always be responsible for travel expenses and freight expenses, as well as time lost due to delays caused by the Customer, or its representatives. Customer will always be responsible for reimbursement of the difference between ZHI’s standard current hourly rate and any overtime or other higher rate due, as a result of non-standard working hours being required by Customer.
12.2-6. This Limited Warranty may be voided, at the sole discretion of ZHI, should payment for goods received by Customer fail to be made as per those terms mutually agreed upon at time of purchase. Under no circumstances will warranty service be provided prior to Customer’s account being current.
12.2-7. THE FOREGOING IS EXPRESSLY IN LIEU OF ALL OTHER WARRANTIES WHATSOEVER, EXPRESS, IMPLIED AND STATUTORY, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. THIS IS A PRODUCT WARRANTY ONLY; THE SERVICES OF A TECHNICIAN OR ANY OTHER TRADE ARE NOT COVERED UNDER THIS OR ANY OTHER WARRANTY.
13. Breach:
13.1. Time is of essence regarding Customer’s payment obligations under the contract. In the event that Customer breaches its payment obligation, then ZHI may by written notice of breach to Customer, terminate the whole or any part of the contract, as well as any other contract existing between ZHI and Customer. Such termination shall become effective if Customer does not cure its failure to pay ZHI within a period of ten (10) days after Customer’s receipt of notice of default from ZHI.
Upon termination, ZHI shall be entitled to charge Customer a termination fee equal to the sum of: (a) thirty percent (30%) of the total price quoted in ZHI’s Proposal, plus (b) all out of pocket expenses ZHI incurred prior to Customer’s breach, plus (c) all cancellation charges ZHI receives from its suppliers and consultants as a result of Customer’s breach. ZHI shall be entitled to use all deposits paid pursuant to ZHI’s Proposal to satisfy the foregoing fees and charges. Customer shall be responsible to pay ZHI any fees and charges in excess of the said deposits.
13.2. In the event Customer fails to timely make payment and/or defaults on any payment on this transaction and/or contract, or fails to make timely payment and/or defaults on any other payment on any other transaction and/or contract with ZHI, then ZHI, in its sole discretion, may withhold shipment and/or delivery of any and all goods and services, on this or any other transaction and/or contract, until such time as Customer cures the default and makes the payment(s) due and owing to ZHI. In this event, ZHI shall not be deemed to be in default or breach of any transaction or contract by the exercise of such rights, and Customer shall not be entitled to any damages, consequential or otherwise, as a result of ZHI’s exercise of such rights and/or remedy.
13.3. Customer understands that any breach of the confidentiality restrictions set forth herein by it, or its agents, or representatives, may cause significant and irreparable harm to ZHI and its customers. In the event of a threatened breach, or breach by Customer or its agents or representatives, ZHI shall be entitled to obtain a permanent injunction in order to prevent or restrain any breach. This remedy shall be in addition to any other remedies or damages available at law or equity.
14. Insolvency: If Customer ceases to conduct its operations in the normal course of business, including inability to meet its obligations as they mature, or if any proceeding under the bankruptcy or insolvency laws is brought by or against Customer, or a receiver for Customer is appointed or applied for, or an assignment for the benefit of creditors is made by the Customer, ZHI may terminate the contract without liability. Upon termination, ZHI shall be entitled to charge Customer a termination fee equal to the sum of: (a) thirty percent (30%) of the total price quoted in ZHI’s Proposal, plus (b) all out of pocket expenses ZHI incurred prior to Customer’s breach, plus (c) all cancellation charges ZHI receives from its suppliers and consultants as a result of Customer’s breach. ZHI shall be entitled to use all deposits paid pursuant to ZHI’s Proposal to satisfy the foregoing fees and charges. Customer shall be responsible to pay ZHI any fees and charges in excess of the said deposits. Customer shall be responsible to pay ZHI any termination charges in excess of the said deposits. Interest on any overdue balance shall be charged at the rate of twelve percent (12%) per annum, simple interest from the invoice date to the date of payment.
15. Indemnity and Insurance: Customer shall take all necessary precautions to prevent the occurrence of any injury to persons or to property during the progress of ZHI’s work as described in ZHI’s Proposal and on Customer’s property. Customer shall be obligated to defend and indemnify ZHI against any claim which may result in any way from any act or omission of Customer, its agents, employees, or subcontractors, except to the extent that any such injury or damage is due solely and directly to ZHI’s act or omission. Customer shall maintain comprehensive general liability insurance with limits as reasonably required by ZHI. Customer shall furnish to ZHI a Certificate of Insurance completed by its insurance carrier certifying that insurance coverage is in effect and will not be canceled or materially changed during ZHI’s performance of the work described in ZHI’s Proposal.
16. Assignment and Subcontracting: ZHI, in its sole discretion, shall be permitted to assign and/or subcontract all or a part of the work as set forth in ZHI’s Proposal to competent third parties.
17. Proper Business Practices: Customer shall comply with all laws dealing with improper or illegal payments, gifts or gratuities, and Customer agrees not to pay, promise to pay or authorize the payment of any money or anything of value, directly or indirectly to any person for the purpose of illegally or improperly inducing a decision or obtaining or retaining business in connection with the Contract with ZHI
18. Customer’s Agreement to Not Solicit ZHI Employees for Employment:
18.1. Customer herby warrants to ZHI that during the course of ZHI’s work for Customer and for a period of two (2) years after the parties relationship ends, Customer will not take any actions which may be detrimental to ZHI, including, but not limited to: (a) making an offer of employment to ZHI employees; or (b) making disparaging comments about ZHI intended to induce an employee to terminate his/her relationship with ZHI.
18.2. The parties hereto understand that ZHI would not agree to perform any services for Customer absent the agreements set forth herein.
18.3. In the event that any of the foregoing agreements are breached by Customer, then the damages that ZHI will sustain as a result thereof will be difficult if not impossible to ascertain. Accordingly, the parties agree that in the event that any of the foregoing agreements are breached, then ZHI may elect to recover the lump sum of One Hundred Thousand Dollars ($100,000.00) from Customer as liquidated damages (and not as a penalty) in lieu of proving actual damages arising from said breach.
19. Compliance with Laws: Customer agrees to comply with the applicable provisions of any federal, state, provincial, or local law or ordinance and all lawful orders, rules, and regulations issued thereunder. In addition, Customer shall comply with good industry practices, including the exercise of that degree of skill, diligence, prudence and foresight which can reasonably be expected from a competent business in a manner consistent with all generally recognized international standards.
20. Patents: If any action or proceeding is commenced against ZHI which alleges that ZHI violated the patent rights of a third party based on information provided to ZHI by Customer, then Customer shall defend and indemnify ZHI in that lawsuit.
21. Packing, Preservation and Marking: All packing, preservation and marking requirements will be in accordance with the specification set forth in ZHI’s Proposal. If none are specified, ZHI will use the commercially accepted practices.
22. Governing Law: The Proposal and contract shall in all respects be governed by and interpreted in accordance with the substantive law of the State of New York, excluding its conflicts of law provisions. The Parties hereby exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
23. Dispute Resolution: ZHI and Customer shall attempt amicably to resolve any controversy, dispute or difference arising out of ZHI’s Proposal and contract. If they are unable to do so, either party may initiate litigation to resolve the disputed issues. Litigation arising from ZHI’s Proposal and contract may be brought only in the United States District Court for the Northern District of New York located in Albany, New York, or, if such court lacks subject matter jurisdiction, then in the Supreme Court of the State of New York in and for Saratoga County located in Ballston Spa, New York. The Parties hereby submit to the jurisdiction of said courts, and waive any defense of forum non-conveniens.
24. Legal Fees and Costs: If ZHI retains the services of an attorney to collect on any amount due, then Customer shall be liable to reimburse ZHI the reasonable legal fees, disbursements, and other court costs incurred to collect the balance due.
25. Entire Agreement: ZHI’s Proposal and the foregoing T&Cs are intended by the parties as a final expression of their agreement with respect to such terms as are included herein, and is intended also as complete and exclusive statement of the terms of their agreement. No course of prior dealings between parties and no usage of the trade shall be relevant to determine the meaning of this agreement even though the accepting or acquiescing party has knowledge of the performance and opportunity for objection. The invalidity, in whole or in part, of any of the foregoing articles or paragraphs of these T&Cs shall not affect the remainder of such article or paragraphs or any other article or paragraphs of ZHI’s Proposal.