Effective: 9/27/24

TERMS AND CONDITIONS OF SALE

1.                          ENTIRETY. These Terms and Conditions of Sale and all documents referenced herein (collectively, the “Terms”) are the only terms and conditions which govern the sale of goods (“Goods”) and/or services (“Services” and together with Goods, the “Deliverables”) by Western Builders Supply, Inc. (“Seller”) to the buyer (“Buyer”), including, without limitation, through any websites to which these Terms apply (the “Websites”), and supersede all other terms and conditions, oral or written, and all other communications between the parties suggesting additional or different terms. These Terms represent the final and complete understanding of the parties and may be amended or cancelled only by mutual written agreement. Acceptance is expressly limited to these Terms. Any proposal for additional or different terms or any attempt by Buyer to vary these Terms is hereby deemed material and is objected to and rejected. No terms of any document or form submitted by Buyer shall be effective to alter or add to these Terms. The earlier of Seller’s commencement of performance or Buyer’s receipt of any of the Deliverables shall constitute acceptance of these Terms. BY PLACING AN ORDER FOR DELIVERABLES, BUYER AFFIRMS THAT BUYER IS OF LEGAL AGE TO ENTER INTO THESE TERMS, AND BUYER ACCEPTS AND IS BOUND BY THESE TERMS. BUYER AFFIRMS THAT BUYER PLACES AN ORDER ON BEHALF OF AN ORGANIZATION OR COMPANY, BUYER HAS THE LEGAL AUTHORITY TO BIND ANY SUCH ORGANIZATION OR COMPANY TO THESE TERMS.

2.                          ORDER ACCEPTANCE AND CANCELLATION. Buyer agrees that Buyer’s order is an offer to buy, under these Terms, all Deliverables listed in Buyer’s order. All orders are subject to Seller’s acceptance. Seller may choose not to accept orders at Seller’s sole discretion. Buyer acknowledges that any confirmation email with Buyer’s order number and details of the items Buyer has ordered serves only to confirm Seller’s receipt of Buyer’s order and not as Seller’s acceptance of Buyer’s order.

3.                          PRICES. Prices quoted are in U.S. Dollars and based on the price at the time of quotation and are subject to change without notice. Clerical errors are subject to correction without liability.

4.                          TAXES. Prices do not include any sales, use, excise, privilege, ad valorem, or other taxes, duties, tariffs or assessments now or hereafter imposed or levied (“Taxes”) by or under the authority of any foreign, federal, state, provincial, or local law, rule, or regulation (collectively, “Law”) concerning the Deliverables or the manufacture or sale thereof. If Seller pays any such Taxes, Buyer shall, upon demand, immediately reimburse Seller for such amounts.

5.                          TERMS OF PAYMENT. All payments are due within 20 days from date of invoice. Orders are subject to acceptance in writing by Seller. All payments shall be made without abatement, deduction, discount or setoff. Late payments are subject to a service charge of the lesser of 1.5% per month or the highest rate permitted under applicable Law. Buyer shall be liable for all costs and expenses related to collection of past due amounts, including, without limitation, attorneys’ fees and costs. As collateral security for the payment of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all right, title and interest of Buyer in 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). This security interest constitutes a purchase money security interest under the UCC. Upon demand, Buyer shall pay all costs and expenses with respect to the administration and enforcement of the foregoing security interest. If, in Seller’s judgment, the financial condition of Buyer does not justify continuance on the terms of payment above, Seller may require full or partial payment in advance or otherwise adjust the terms including ceasing to supply Buyer.

6.                          DELIVERY. Delivery shall be made FOB shipping point at Seller’s facility and title and risk of loss passes to Buyer at such time. Delivery/performance dates are estimates only. Seller shall not be liable for any claim, loss, expense, or damage of any kind whatsoever for delays, or loss or damage in transit. Claims for loss or damage shall be made solely against the carrier. 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 Buyer’s purchase order.

7.                          INSPECTION. Buyer shall inspect the Goods upon receipt and Services upon performance, and Buyer shall immediately notify Seller in writing of any claims that the Deliverables are different than identified in Buyer’s purchase order whereupon Seller shall determine the remedy pursuant to Section 13. Failure to give such written notice upon receipt will constitute irrevocable acceptance by Buyer of all Deliverables.

8.                          CHANGES OR CANCELLATION. Changes in specifications or designs to any Deliverables, changes in delivery or performance schedules or reschedules or cancellations of orders are not permitted unless Seller has accepted same in writing, has determined the additional charge to be made, if any, and the same has been paid by the Buyer. Once ordered, deliverables that are made to order, discontinued or custom products (“Special Order Goods”) may not be cancelled by Buyer. Seller reserves the right to cancel any purchase orders or releases thereunder, or terminate any agreement relating to purchase of Seller’s Deliverables, upon 10 days’ notice to Buyer.

9.                          RETURNS. Goods may not be returned without prior written authorization of Seller and compliance with Seller’s return policies and procedures then in effect.
To be eligible for credit, goods returned must comply with the following:

·      Goods must be current models.

·      Return must have appropriate authorization prior to shipment. Your Sales Representative should be contacted to initiate the Administrative Return Goods Authorization form (RGA). Authorization form must accompany product being returned.

·      Transportation/shipping charges must be prepaid. No exceptions.

·      Goods must be shipped to the appropriate address as indicated on RGA Form.

·      Discounting not allowed on amount of returned product.

·      Goods must be received in original packaging, unopened, and in resalable condition.

·      Returned goods are subject to 15% handling charge.

·      Credit on returned goods will be based on lower of purchased price or current price.

10.                    STORAGE. In the absence of agreed shipping dates, Seller may invoice Buyer and ship the Deliverables once they are ready for shipment. If, because of Buyer’s inability to take delivery on a mutually agreed delivery date, the Deliverables are not shipped, stopped in transit or returned, Seller may store them for Buyer at Buyer’s expense and title and risk of loss shall pass to Buyer when the Deliverables are placed in storage and such date shall constitute the date of shipment for purposes of beginning the warranty and payment periods.

11.                    SERVICE TERMS. (a) Services will be provided at Seller’s then current service rates; (b) If the site is not prepared for the Services upon Seller’s arrival, Seller may charge a service fee and for any delay and/or travel time; (c) Buyer shall provide Seller with advance notice of any rules, requirements and Laws; (d) Seller may refuse, without any liability, to provide Services and to allow Seller service personnel to suspend Services or vacate any site where, in Seller’s opinion, provision of Services would pose a risk to the safety of any person. In such event, Buyer is responsible for payment of any delay and/or travel time at Seller’s regular service rates; (e) Buyer is solely liable for all damages or injuries caused or contributed to by Buyer that may occur; and (f) Buyer must provide at least 72 hours’ notice of cancellation of any Service order. If Buyer cancels with less than 72 hours’ notice, Buyer is responsible for any costs incurred by Seller caused by such cancellation.

12.                    INSURANCE. 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 (including product liability) in a sum no less than $2 million per occurrence, $2 million products-completed operations aggregate and $2 million general aggregate with insurance carriers having an AM Best rating of “A- VIII” or better. 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. Buyer shall provide Seller with 30 days’ advance written notice in the event of a cancellation or material reduction of coverage in Buyer’s insurance policy. Except where prohibited by law, Buyer shall waive, and shall require its insurer to waive, all rights of subrogation against Seller’s insurers and Seller.

13.                    LIMITED WARRANTIES.

a.                          Unless otherwise provided by Seller in its written warranty, Seller warrants that (i) Goods designed and manufactured by Seller will be free from defects in material and workmanship for a period of 12 months after shipment; and (ii) Services will be performed in a timely and competent manner in accordance with industry standards. THESE ARE SELLER’S ONLY WARRANTIES AND BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN THIS SECTION A. SELLER DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE. If during the warranty period, Buyer notifies Seller in writing that the Deliverables are not in conformity with the warranty and Seller agrees, after Seller’s inspection (at its option), then: (a) for Goods, Seller will repair, replace or refund the total amount received by Seller therefor, at its sole option, provided Buyer returns such Goods to Seller’s plant for inspection; and (b) for Services, Buyer’s sole remedy is for Seller, at its sole option, to re-perform the Services or credit Buyer’s account therefor. These shall be Buyer’s exclusive remedies for Seller’s liability. Any claims not made during the warranty period are deemed waived. Seller’s warranty does not attach to Deliverables or parts not manufactured by Seller. Any contract created between Seller and Buyer is subject to the specific conditions that (a) Seller is not obligated to provide insurance or indemnify Buyer, and (b) there are no flow-downs from any person or entity including the federal government that become part of the contract.

b.                          Upon the occurrence of any event described in Section 15(e)(i)-(vi) without the prior written consent of Seller, this warranty shall be void. Not in limitation of the foregoing, Seller shall not be liable for a breach of the warranty set forth in Section (a) if: (i) Buyer makes any further use of such Deliverables after Buyer gives 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 Deliverables; or (iii) Buyer alters or repairs such Deliverables without Seller’s prior written consent.

c.                          SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO BUYER.

d.                          BUYER AFFIRMS THAT SELLER SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY BREACH OF WARRANTY CLAIMS OR FOR ANY DAMAGES ARISING OUT OF THE MANUFACTURER’S FAILURE TO HONOR ITS WARRANTY OBLIGATIONS TO BUYER.

e.                          Products manufactured by a third party (“Third-Party Product”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the products. Third Party Products are not covered by the warranty in Section (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.

14.                    LIMITATION OF LIABILITY. SELLER SHALL NOT BE LIABLE TO BUYER OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OF USE, REVENUE, OR PROFIT, OR LOSS OF DATA, OR DIMINUTION IN VALUE, OR FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR SPECIAL DAMAGES OR ANY OTHER LOSSES, DAMAGES OR EXPENSES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY AMOUNT, INCLUDING, WITHOUT LIMITATION, WITH REGARD TO ANY CLAIMS ARISING OUT OF OR RELATED TO THE WEBSITES, IN EXCESS OF THE PRICE RECEIVED BY SELLER FOR THE DELIVERABLES WITH RESPECT TO WHICH SUCH LIABILITY IS CLAIMED.

BY ACCESSING THE WEBSITES, THEIR CONTENTS, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITES, OR BY PROCURING OR USING ANY OF THE DELIVERABLES, BUYER UNDERSTANDS THAT BUYER MAY BE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, BUYER ACKNOWLEDGES THAT BUYER HAS READ AND UNDERSTAND, AND HEREBY EXPRESSLY WAIVES, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA, AND ANY SIMILAR LAW OF ANY STATE OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”

THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.

15.                    INDEMNIFICATION. Buyer shall defend, indemnify and hold Seller, its affiliates and their respective officers, directors, members, managers, representatives, agents and employees harmless from and against all claims, suits, demands, losses, liabilities, damages (including injury and death) and expenses (including reasonable attorneys’ fees) (collectively, “Losses”), arising out of or relating to: (a) Buyer’s or its agents provided specifications, design, structure, operation, material or method of making Deliverables (“Buyer’s Specifications”), including without limitation, any resulting violation of intellectual property or proprietary rights; (b) Buyer’s use, misuse or disposal of Deliverables, the Websites, or materials; (c) Buyer’s non-compliance with any Law; (d) breach of these Terms by Buyer; and (e) Deliverables subjected to: (i) improper installation or storage; (ii) accident, damage, abuse or misuse; (iii) abnormal operating conditions or applications; (iv) operating conditions or applications above the rated capacity of the Deliverables; (v) repairs or modifications made to all or part of the Deliverables without the prior written consent of Seller; or (vi) a use or application other than or varying in any degree from the specifications and Seller’s instructions.

16.                    PATENTS. Provided Buyer has made all payments due Seller, Seller shall defend any suit brought against Buyer based upon a claim that the Deliverables infringe any United States patent issued as of the date of Seller’s quotation and shall pay any damages and costs finally awarded therein against Buyer, provided that Seller is notified promptly in writing of such suit and is given full authority, information and assistance by Buyer to defend or settle the suit. Notwithstanding anything to the contrary, Seller will have no liability to the extent that the suit is based upon: (i) modifications to any item made by or on behalf of the Buyer in a manner that causes the infringement; (ii) use of any item in combination with the Deliverables that causes the infringement; (iii) the failure of the Buyer to use corrections or enhancements to the Deliverables that are made available by Seller; (iv) Buyer’s Specifications; (v) Buyer’s distribution, marketing or use for the benefit of third parties of the Deliverables; or (vi) use not authorized under these Terms. If the Deliverables or any part thereof are deemed to infringe any such patent, Seller shall, at its expense and sole option either: (a) procure for Buyer the right to continue using said Deliverables or part; (b) replace them with non-infringing Deliverables or parts; (c) modify them so they become non-infringing; or (d) remove them and refund the purchase price for them depreciated over no more than 3 years.

17.                    TOOLING. In no event shall Buyer have any interest in any tools, jigs, dies, patterns, etc. (collectively, “Tooling”) which is made or obtained for the production of the Deliverables. Such Tooling shall remain the property of Seller.

18.                    CONFIDENTIALITY. All non-public or proprietary information of Seller, including all IP, quotations and pricing information, is confidential, solely for the use in performing hereunder and may not be disclosed, used or copied unless authorized by Seller in writing.

19.                    INTELLECTUAL PROPERTY. All drawings, know-how, designs, specifications, inventions, devices, developments, processes, copyrights, trademarks, patents and applications therefor, and other information or intellectual property disclosed or otherwise provided to Buyer by Seller and all rights therein, including without limitation, the Websites and their entire contents, features, and functionality (including but not limited to all information, software, text, displays, images, video, and audio, and the design, selection, and arrangement thereof) (collectively, “IP”) are and will remain the property of Seller. Buyer shall have no claim to, nor ownership interest in, any IP and such information, in whatever form and any copies thereof, shall be promptly returned to Seller upon written request from Seller. Buyer acknowledges that no license or rights of any sort are granted to Buyer hereunder in respect of any IP, other than the limited right to use the Deliverables purchased from Seller.

20.                    EXPORT COMPLIANCE. Any items provided by Seller are controlled by the United States Government and authorized for export only to the country of ultimate destination for use by the ultimate consignee or end-user(s) herein identified. They may not be resold, transferred, or otherwise disposed of, to any other country or to any person other than the authorized ultimate consignee or end-user(s), either in their original form or after being incorporated into other items, without first obtaining approval from the United States Government or as otherwise authorized by U.S. Law and regulation.

21.                    THE WEBSITES.

a.                          Information About Buyer and Buyer’s Visits to the Websites. All information Seller collects on the Websites is subject to Seller’s Privacy Policy, found at https://bigtimberfasteners.com/privacy-policy/. By using the Websites, Buyer consents to all actions taken by Seller with respect to Buyer’s information in compliance with the Privacy Policy.

b.                          Accessing the Website and Account Security. Seller reserves the right to withdraw or amend the Websites, and any service or material Seller provides on the Websites, in Seller’s sole discretion without notice. Seller will not be liable if for any reason all or any part of the Websites is unavailable at any time or for any period. From time to time, Seller may restrict access to some parts of the Websites, or the entire Websites, to users, including registered users.  Buyer is responsible for both: (i) making all arrangements necessary for Buyer to have access to the Websites; and (ii) ensuring that all persons who access the Websites through Buyer’s internet connection are aware of these Terms and comply with them. To access the Websites or some of the resources they offer, Buyer may be asked to provide certain registration details or other information. It is a condition of Buyer’s use of the Websites that all the information Buyer provides on the Websites is correct, current, and complete. Buyer agrees that all information Buyer provides to register with the Websites or otherwise, including, but not limited to, through the use of any interactive features on the Websites, is governed by Seller’s Privacy Policy, and Buyer consents to all actions Seller takes with respect to Buyer’s information consistent with Seller’s Privacy Policy. If Buyer chooses, or is provided with, a username, password, or any other piece of information as part of Seller’s security procedures, Buyer must treat such information as confidential, and must not disclose it to any other person or entity. Buyer also acknowledges that Buyer’s account is personal to Buyer and agrees not to provide any other person with access to the Websites or portions of them using Buyer’s username, password, or other security information. Buyer agrees to notify Seller immediately of any unauthorized access to or use of Buyer’s username or password or any other breach of security. Seller has the right to disable any username, password, or other identifier, whether chosen by Buyer or provided by Seller, at any time in Seller’s sole discretion for any or no reason, including if, in Seller’s opinion, Buyer violated any provision of these Terms.

c.                          Prohibited Uses. Buyer may use the Websites only for lawful purposes and in accordance with these Terms. Buyer agrees not to use the Websites:

·      In any way that violates any applicable federal, state, local, or international law or regulation (including, without limitation, any laws regarding the export of data or software to and from the United States or other countries).

·      For the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise.

·      To transmit, or procure the sending of, any advertising or promotional material, including any “junk mail,” “chain letter,” “spam,” or any other similar solicitation.

·      To impersonate or attempt to impersonate Seller, a Seller employee, another user, or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing).

·      To engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Websites, or which, as determined by Seller, may harm Seller or users of the Websites, or expose them to liability.

Additionally, Buyer agrees not to:

·      Use the Websites in any manner that could disable, overburden, damage, or impair the Websites or interfere with any other party’s use of the Websites, including their ability to engage in real-time activities through the Websites.

·      Use any robot, spider, or other automatic device, process, or means to access the Websites for any purpose, including monitoring or copying any of the material on the Websites.

·      Use any manual process to monitor or copy any of the material on the Websites, or for any other purpose not expressly authorized in these Terms.

·      Use any device, software, or routine that interferes with the proper working of the Websites.

·      Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.

·      Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Websites, the server on which the Websites are stored, or any server, computer, or database connected to the Websites.

·      Attack the Websites via a denial-of-service attack or a distributed denial-of-service attack.

·      Otherwise attempt to interfere with the proper working of the Websites.

d.                          Reliance on Information Posted. The information presented on or through the Websites is made available solely for general information purposes. Seller does not warrant the accuracy, completeness, or usefulness of this information. Any reliance Buyer places on such information is strictly at Buyer’s own risk. Seller disclaims all liability and responsibility arising from any reliance placed on such materials by Buyer or any other visitor to the Websites, or by anyone who may be informed of any of their contents. The Websites may include content provided by third parties, including materials provided by other users, and third-party licensors, syndicators, aggregators, and/or reporting services. All statements and/or opinions expressed in these materials, and all articles and responses to questions and other content, other than the content provided by Seller, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of Seller. Seller is not responsible, or liable to Buyer or any third party, for the content or accuracy of any materials provided by any third parties.

e.                          Changes to the Websites. Seller may update the content on the Websites from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Websites may be out of date at any given time, and Seller is under no obligation to update such material.

f.                             Links from the Websites. If the Websites contain links to other sites and resources provided by third parties, these links are provided for Buyer’s convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. Seller has no control over the contents of those sites or resources, and accepts no responsibility for them or for any loss or damage that may arise from Buyer’s use of them. If Buyer decides to access any of the third-party websites linked to the Websites, Buyer does so entirely at Buyer’s own risk and subject to the terms and conditions of use for such websites.

22.                    FORCE MAJEURE. Seller shall not be liable for any delay in or failure to perform due to any event or contingency beyond its reasonable control (an event of “Force Majeure”), including acts of God, epidemics, acts of war whether declared or undeclared, blockades, labor disputes (whether of Seller’s employees or the employees of others), raw material shortages and material increases in costs of raw materials, including those material increases in costs resulting from the imposition of tariffs. In the event of Force Majeure, the time for performance will extend for such time as reasonably necessary to enable Seller to perform. Seller may, during any period of shortage due to any of the above circumstances, allocate its available supply of Deliverables among itself and its purchasers in such manner as Seller, in its sole judgement, deems fair and equitable.

23.                    TERMINATION. Seller shall have the right to cease work or terminate these Terms or any purchase order, in whole or in part, at any time, without liability, if: (i) Buyer breaches or defaults under these Terms or any other agreement it has with Seller; (ii) a petition under any applicable law relating to bankruptcy, insolvency, or reorganization is filed by or against Buyer; (iii) Buyer executes an assignment for benefit or creditors; (iv) a receiver is appointed for Buyer or any substantial part of its assets; or (v) Seller shall have any reasonable ground for insecurity with respect to Buyer’s ability to perform and Buyer is unable to provide Seller with adequate assurance within 10 days after written request therefor by Seller. In all cases, Seller’s rights are cumulative, are not exclusive and in addition to all other rights and remedies it may have at law or in equity. No termination shall affect any accrued rights or obligations of either party as of the effective date of such termination.

24.                    WAIVER. All waivers by Seller shall be in writing. Failure of Seller at any time to require Buyer’s performance of any obligation hereunder shall not affect Seller’s right to require performance of that obligation. No delay or omission in the exercise of any right, power, or remedy hereunder shall impair such right, power, or remedy or be considered to be a waiver of any default or acquiescence therein.

25.                    GOVERNING LAW. Any dispute arising out of or related to these Terms will be governed by and construed in accordance with the laws of the State of Illinois without regard to any rules on conflicts of laws and exclusively litigated in either (i) a state or federal court located in Cook County, Illinois, or (ii) a state or federal court located in the state of Seller’s principal place of business, at Seller’s sole discretion.

26.                    SEVERABILITY. The unenforceability or invalidity of any clause in these Terms shall not have an impact on the enforceability or validity any other clause in these Terms. Any unenforceable or invalid clause shall be regarded as removed from these Terms to the extent of its unenforceability and invalidity.

27.                    GEOGRAPHIC RESTRICTIONS. Seller makes no representation that the Deliverables or the Websites, or any content, products, or materials available on or through on the Deliverables or the Websites, are appropriate or available for use in locations outside the United States. Those who choose to access or use the Deliverables or the Websites from other locations do so on their own initiative and at their own risk. If Buyer chooses to access or use the Deliverables or the Websites from outside the United States, Buyer is responsible for compliance with local laws in Buyer’s jurisdiction, including, but not limited to, the taxation of products purchased over the Internet. Any offer for any product, service, and/or information made in connection with the Websites is void where prohibited.

28.                    MISCELLANEOUS. Buyer shall not assign any of its rights or obligations under these Terms or any purchase order without Seller’s prior written consent. Buyer shall comply with all applicable laws. There are no third-party beneficiaries. Provisions which by their nature should survive will remain in force after any termination or expiration of any sale of Deliverables. The section headings are included solely for the convenience of the parties.

29.                    NOTICES.

a.                          To Buyer. Seller may provide any notice to Buyer under these Terms by: (i) sending a message to the email address Buyer provides. Notices sent by email are effective when Seller sends the email. It is Buyer’s responsibility to keep Buyer’s email address current.

b.                          To Seller. To give Seller notice under these Terms, Buyer must contact Seller as follows: (i) by facsimile transmission to 866.251.6300; or (ii) by personal delivery, overnight courier or registered or certified mail to Western Builders Supply, 53 N 15th St Ste #1, Billings, MT 59101. Notices provided by personal delivery are effective immediately. Notices provided by facsimile transmission or overnight courier are effective one business day after they are sent. Notices provided by registered or certified mail are effective three business days after they are sent.