DCM FABRICATION TERMS AND CONDITIONS
Except as expressly agreed to in writing by a duly authorized representative of DCM Fabrication, Inc. (“Seller”), specifically referring to and amending, or replacing, these [ME[1] Terms and Conditions (“Terms and Conditions”), these Terms and Conditions govern all aspects of the fabrication, delivery, provision and/or sale by Seller, to any individuals or entities (“Buyer”), of any Goods (defined below) ordered by, or provided to any Buyer (including without limitation any Good purchased pursuant to an Order Form (defined below) (collectively, all such transactions are deemed to be an “Order” for the purposes of these Terms and Conditions)). Buyer accepts that these Terms and Conditions govern any transaction relating to Goods whether Buyer is acting on their own behalf as one or more individuals, on behalf of another person, or on behalf of any legal entity that such person represents (whether or not such person is duly authorized to represent such entity). Unless set worth in a separate written agreement signed by a duly authorized representative of Seller, Seller’s only obligation is to provide the goods and shall not be providing services of any kind (including without limitation any design services). Any terms and conditions provided by Buyer are expressly rejected and are null and void.
Seller may revise these Terms and Conditions or add additional terms and conditions that from time to time to reflect changes in the law or to the Goods. Seller will post the revised Terms and Conditions on this website with a “last updated” date. PLEASE REVIEW THE SITE ON A REGULAR BASIS TO OBTAIN TIMELY NOTICE OF ANY REVISIONS BEFORE EXECUTING ANY NEW ORDERS WITH SELLER. IF YOU CONTINUE TO ORDER GOODS AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS AND CONDITIONS. You agree that we shall not be liable to you or to any third party for any modification of these Terms and Conditions.
In consideration of the mutual covenants and agreements hereinafter set forth and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1. Sale of Goods.
Seller shall sell to Buyer and Buyer shall purchase from Seller the Goods set forth in the applicable ordering document which has been expressly accepted and agreed to in writing by an authorized representative of Seller (“Order” or “Order Form”) in the quantities and at the Prices (as defined in Section 6) and subject to these Terms and Conditions.
2. Delivery.
(a) The Goods will be delivered within a reasonable time after the date of these Terms and Conditions, subject to availability of finished Goods and materials Seller requires as well as any clarifications and/or further instructions Seller deems necessary is its reasonable discretion to finish the Goods. Seller shall not be liable for any delays in delivery of the Goods, loss and/or damage in transit.
(b) Except as expressly set forth in an Order Form: (a) Seller shall deliver the Goods to as set out in the Order Form (the “Delivery Point”) using Seller’s standard methods for packaging and shipping such Goods; (b) Buyer shall take delivery of the Goods within 7 days of Seller’s written notice that the Goods have been delivered to the Delivery Point.; and (c) all Prices are EXW Delivery Point, IncoTerms and Conditions® 2010.
(c) Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of the quantity purchased under these Terms and Conditions.
(d) If for any reason Buyer fails to accept delivery of any of the Goods on the date fixed pursuant to Seller’s notice that the Goods have been delivered at the Delivery Point, or if Seller is unable to deliver the Goods at the Delivery Point on such date because Buyer has not provided appropriate instructions, documents, licenses, and/or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
3. Non-Delivery.
The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive documentary evidence proving the contrary. Seller shall not be liable for any non-delivery, or late delivery, of Goods (even if caused by Seller’s negligence) unless Buyer gives written notice to Seller of the non-delivery within 7 days of the date when the Goods would in the ordinary course of events have been received. Any liability of Seller for non-delivery, or late delivery, of the Goods shall be limited to delivering the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered. The immediately preceding sentence is Buyer’s sole remedy with respect to any non-delivery, or late delivery, of Goods.
4. Title and Risk of Loss.
Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point. As collateral security for the payment of the purchase price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title, and interest of Buyer in, to, and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the New York Uniform Commercial Code.
5. Inspection and Rejection of Nonconforming Goods.
(a) Buyer shall inspect the Goods within 7 days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller in its reasonable discretion. “Nonconforming Goods” means only the following: (i) Goods shipped are materially different than identified in these Terms and Conditions, or an applicable Order Form; or (ii) Good’s label or packaging incorrectly identifies its contents.
(b) If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the Price for such Nonconforming Goods at the pro rata contract rate. Buyer shall ship, at its expense and risk of loss, the Nonconforming Goods to Seller’s facility located at 63 Flushing Avenue, Bldg 280, Suite 509 Brooklyn, New York 11205. If Seller exercises its option to replace Nonconforming Goods, Seller shall, after receiving Buyer’s shipment of Nonconforming Goods, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Goods to the Delivery Point.
(c) Buyer acknowledges and agrees that the remedies set forth in Section 5(b) are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under Section 5(b), all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under these Terms and Conditions to Seller.
6. Price.
Buyer shall purchase the Goods from Seller at the price (the “Price”) set forth in the Order Form. If the Price should be increased by Seller before delivery of the Goods to a carrier for shipment to Buyer (for example, including but not limited to, if the cost of raw materials, transport, or other factors increases), then these Terms and Conditions shall be construed as if the increased Price were originally inserted in the Order Form, and Buyer shall be invoiced by Seller on the basis of such increased Price; provided that, Seller shall provide reasonable documentation to support such increase. All Prices are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs, and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property, or other assets.
7. Payment Terms and Conditions.
Except as set forth in an Order Form, Buyer shall pay all invoiced amounts due to Seller 30 days from the date of Seller’s invoice. Buyer shall make all payments hereunder by as set out in the Order Form. Buyer shall pay interest on all late payments at the lesser of the rate of 2% per month or the highest rate permissible under applicable law, calculated daily and compounded monthly. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees.
8. No Setoff.
Buyer shall not, and acknowledges that it will have no right, under these Terms and Conditions, any other agreement, document, or law, to withhold, offset, recoup, or debit any amounts owed (or to become due and owing ) to Seller or any of its affiliates, whether under these Terms and Conditions or otherwise, against any other amount owed (or to become due and owing) to it by Seller or its affiliates, whether relating to Seller’s or its affiliates’ breach or non-performance of these Terms and Conditions or any other agreement between Buyer or any of its affiliates, and Seller or any of its affiliates, or otherwise.
9. Warranties.
(a) Seller warrants to Buyer that for a period of 1 year from the date of shipment of the Goods (”Warranty Period”), such Goods will materially conform to the specifications set forth in the Order Form and Seller’s published specifications in effect as of the date of these Terms and Conditions and will be free from material defects in material and workmanship.
(b) EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 9(a), SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. SELLER IS FABRICATING THE GOODS BASED ON THE SPECIFICATIONS PROVIDED BY BUYER AND IS NOT PROVIDING SERVICES AND SHALL HAVE NO LIABILITY IN RELATION TO THE DESIGN OR ANY OTHER SERVICES TO BUYER.
(c) Products manufactured by a third party (“Third-Party Product”) may constitute, contain, be contained in, incorporated into, attached to, or packaged together with, the Goods. Third-Party Products are not covered by the warranty in Section 9(a). For the avoidance of doubt, SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(d) The Seller shall not be liable for a breach of the warranty set forth in Section 9(a) unless: (i) Buyer gives written notice of the defect, reasonably described and documented, to Seller within 7 days of the time when Buyer discovers or ought to have discovered the defect (which in no case shall be later than 14 days after Seller has delivered the Goods to the Delivery Point); (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller reasonably verifies Buyer’s claim that the Goods are defective.
(e) The Seller shall not be liable for a breach of the warranty set forth in Section 9(a) if: (i) Buyer makes any further use of such Goods after giving such notice; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use, or maintenance of the Goods; or (iii) Buyer alters or repairs such Goods without the prior written consent of Seller.
(f) Subject to Section 9(d) and Section 9(e) above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part(s)) or (ii) credit or refund the Price of such Goods at the pro rata contract rate, provided that if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
(g) THE REMEDIES SET FORTH IN SECTION 9(f) SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 9(a).
10. Limitation of Liability.
(a) IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (i) WHETHER SUCH DAMAGES WERE FORESEEABLE, (ii) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (iii) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (iv) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS SOLD HEREUNDER, or $1,000.00 WHICHEVER IS LESS.
11. Compliance with Law.
Buyer is in compliance with and shall comply with all applicable laws, regulations, and ordinances. Buyer has and shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under these Terms and Conditions.
12. Indemnification.
Buyer shall indemnify, defend, and hold harmless Seller and its officers, directors, managers, shareholders, members, partners, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under these Terms and Conditions, and the cost of pursuing any insurance providers, relating to any claim of a third party or Seller arising out of or occurring in connection with the products purchased from Seller or Buyer’s negligence, willful misconduct, or breach of these Terms and Conditions. Buyer shall not enter into any settlement without Seller’s or Indemnified Party’s prior written consent.
13. Insurance.
During the term of these Terms and Conditions, Buyer shall, at its own expense, maintain and carry insurance in full force and effect which includes, but is not limited to, commercial general liability in a sum no less than $1,000,000.00 with financially sound and reputable insurers. Upon Seller’s request, Buyer shall provide Seller with a certificate of insurance from Buyer’s insurer evidencing the insurance coverage specified in these Terms and Conditions. The certificate of insurance shall name Seller as an additional insured. Buyer shall provide Seller with 10 days’ advance written notice in the event of a cancellation or material change in Buyer’s insurance policy. Except where prohibited by law, Buyer shall require its insurer to waive all rights of subrogation against Seller’s insurers and Seller.
14. Termination.
In addition to any remedies that may be provided in these Terms and Conditions, Seller may terminate these Terms and Conditions with immediate effect upon written notice to Buyer, if Buyer: (a) fails to pay any amount when due under these Terms and Conditions; (b) has not otherwise performed or complied with any of the Terms and Conditions of these Terms and Conditions, 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.
15. Confidential Information.
All non-public, confidential, or proprietary information of Seller, including, but not limited to, trade secrets, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, disputes, or rebates, disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic, or other form or media, and whether or not marked, designated, or otherwise identified as “confidential,” in connection with these Terms and Conditions is confidential, solely for the use of performing these Terms and Conditions and may not be disclosed or copied unless authorized by Seller in writing. Upon Seller’s request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this Section. This Section shall not apply to information that is: (a) in the public domain; (b) known to the Buyer at the time of disclosure; or (c) rightfully obtained by the Buyer on a non-confidential basis from a third party.
16. Entire Terms and Conditions.
These Terms and Conditions, including and together with any related exhibits, schedules, attachments, and appendices, constitute the sole and entire agreement of the Parties with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, regarding such subject matter.
17. Survival.
Subject to the limitations and other provisions of these Terms and Conditions: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of these Terms and Conditions; and (b) Sections 10, 11, 12, 13, 15, 16, 17, 18, 21, 22, 23, 24, 25, 26, 27, 28 and 29 of these Terms and Conditions, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of these Terms and Conditions. With respect to confidential information that constitutes a trade secret under applicable law, the rights and obligations set forth in Section 16 hereof shall survive the expiration or earlier termination of these Terms and Conditions until, if ever, such confidential information loses its trade secret protection other than due to an act or omission of Buyer. All other provisions of these Terms and Conditions shall not survive the expiration or earlier termination of these Terms and Conditions.
18. Notices.
All notices, requests, consents, claims, demands, waivers, and other communications under these Terms and Conditions must be in writing and addressed to the other Party at its address set forth in the Order Form (or to such other address that the receiving Party may designate from time to time in accordance with this Section). Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Terms and Conditions, a notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.
19. Severability.
If any term or provision of these Terms and Conditions is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of these Terms and Conditions or invalidate or render unenforceable such term or provision in any other jurisdiction; provided, however, that if any fundamental term or provision of these Terms and Conditions, is invalid, illegal, or unenforceable, the remainder of these Terms and Conditions shall be unenforceable. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the court may modify these Terms and Conditions to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
20. Amendments.
No amendment to or modification of or rescission, termination, or discharge of these Terms and Conditions is effective unless it is in writing, identified as an amendment to or rescission, termination or discharge of these Terms and Conditions, and signed by an authorized representative of each Party.
21. Waiver.
No waiver by any party of any of the provisions of these Terms and Conditions shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms and Conditions, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from these Terms and Conditions shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
22. Cumulative Remedies.
All rights and remedies provided in these Terms and Conditions are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise. Notwithstanding the previous sentence, the Parties intend that Buyer’s rights under Section 3, Section 6, and Section 10 are Buyer’s exclusive remedies for the events specified therein.
23. Assignment.
Buyer shall not assign, transfer, delegate, or subcontract any of its rights or obligations under these Terms and Conditions without the prior written consent of Seller. Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation, or subcontract shall relieve Buyer of any of its obligations hereunder. Seller may at any time assign, transfer, delegate, or subcontract any or all of its rights or obligations under these Terms and Conditions without Buyer’s prior written consent.
24. Successors and Assigns.
These Terms and Conditions are binding on and inures to the benefit of the Parties to these Terms and Conditions and their respective permitted successors and permitted assigns.
25. No Third-Party Beneficiaries.
These Terms and Conditions benefit solely the Parties to these Terms and Conditions and their respective permitted successors and assigns and nothing in these Terms and Conditions, express or implied, confers on any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms and Conditions.
26. Choice of Law.
These Terms and Conditions and all related documents including all exhibits attached hereto, and all matters arising out of or relating to these Terms and Conditions, whether sounding in contract, tort, or statute are governed by, and construed in accordance with and enforced under the laws of the State of New York, United States of America (including its statutes of limitations and N.Y. Gen. Oblig. Law § 5-1401), 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 York.
27. Choice of Forum.
Each Party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other Party in any way arising from or relating to these Terms and Conditions, including all exhibits, schedules, attachments, and appendices attached to these Terms and Conditions, and all contemplated transactions, including, but not limited to, contract, equity, tort, fraud, and statutory claims, in any forum other than the US District Court for the Southern District of New York or, if such court does not have subject matter jurisdiction, the courts of the State of New York sitting in Kings County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in the US District Court for the Southern District of New York or, if such court does not have subject matter jurisdiction, the courts of the State of New York sitting in Kings County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
28. WAIVER OF JURY TRIAL.
EACH PARTY ACKNOWLEDGES AND AGREES 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.
29. Counterparts.
These Terms and Conditions may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 19: (a) a signed copy of these Terms and Conditions delivered by facsimile, email, or other means of electronic transmission (including without limitation e-signature) is deemed to have the same legal effect as delivery of an original signed copy of these Terms and Conditions. Notwithstanding the above: (a) a signed invoice which refers to these Terms and Conditions (including without limitation a website link), (b) Buyer’s written or verbal instructions to proceed with any Order and/or Buyer providing and Seller accepting a valid Order Form shall be deemed to be acceptance of these Terms and Conditions by Buyer.
30. Force Majeure.
Any delay or failure of Seller to perform its obligations under these Terms and Conditions will be excused to the extent that the delay or failure was caused directly by an event beyond Seller’s control, without Seller’s fault or negligence and that by its nature could not have been foreseen by Seller or, if it could have been foreseen, was unavoidable (which events may include natural disasters, embargoes, explosions, riots, wars, acts of terrorism, strikes, labor stoppages or slowdowns or other industrial disturbances, and shortage of adequate power or transportation facilities).
31. Relationship of the Parties.
The relationship between the Parties is that of independent contractors. Nothing contained in these Terms and Conditions shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture or other form of joint enterprise, employment, or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. No relationship of exclusivity shall be construed from these Terms and Conditions.