GENERAL TERMS AND CONDITIONS OF SALE
Specific or modified requirements shall be negotiated on an individual basis along with those terms not contained herein
1. General. CCMA, LLC ("Seller") and the person or entity to whom Seller's offer, sales contract, order acknowledgement or invoice is addressed ("Buyer") are collectively referred to herein as the "Parties". All offers and sales by Seller to Buyer are expressly conditioned on Buyer's acceptance of these terms and conditions. Buyer agrees that the first to occur of the following clauses (a) though (d) will conclusively constitute Buyer's acceptance of these terms and conditions: (a) Buyer issues any instructions to Seller for the delivery of any products covered by the offer, sales contract or order acknowledgement to which these terms and conditions are attached, (b) Buyer accepts or pays for any such products, (c) Buyer executes such offer, sales contract or order acknowledgement or (d) the passage of five days after Seller first delivers to Buyer the offer, sales contract or order acknowledgement to which these terms and conditions are attached and Buyer fails to deliver written notice to Seller of Buyer's objection to these terms and conditions. Any purchase order or other communication from Buyer that contains terms or conditions in addition to or inconsistent with these terms and conditions will not apply to the purchase of any of Seller's products by Buyer or be used to waive, modify, vary, explain or supplement all or any part of these terms and conditions and are hereby objected to and rejected by Seller, unless acceptance of those terms and conditions is made in writing by an authorized officer of Seller.
2. Prices. Unless stated otherwise, (a) all prices, charges and payments hereunder are payable in U.S. dollars and must be made in immediately available funds, (b) Buyer must pay interest on any unpaid balance after the applicable due date at the highest rate permitted by law (c) prices are subject to change without notice and orders calling for future delivery will be billed according to the price in effect at the time of delivery, (d) written quotations automatically expire thirty calendar days from the date issued and are subject to termination by notice within that period and (e) prices do not include any applicable transportation costs or property, sales, use, privilege or export taxes, custom duties or any other applicable tax, fee or charge imposed on or measured by any transaction between the Parties and Buyer will be responsible for paying such taxes, fees and costs.
3. Buyer's Credit. Seller's obligations to Buyer are subject to the limit of Buyer's credit as determined by Seller in its sole discretion. Seller may at any time limit, modify or cancel the credit of Buyer and may demand payment in cash before shipment or delivery of any products without affecting Buyer's obligations hereunder.
4. Disclosure of Agency and Waiver of Liability. If on Seller's offer, sales contract, order acknowledgement, invoice or other communication, Seller is designated "as agent" for a third party, such designation indicates that Seller is selling products to Buyer as an agent of such third party. In such a case, the Parties acknowledge and agree that (a) Seller will not be responsible for any action or omission on the part of such third party which results in the delivery of any products being delayed or not made or any loss, damage, inconvenience or injury to Buyer or any other party, (b) Buyer must pursue any remedies Buyer may have for such delay, failure, loss, damage, inconvenience or injury directly against such third party and Seller will have no liability with respect thereto and (c) Seller will be afforded all protections as an agent under applicable law.
5. Shipment; Risk of Loss; Title. Shipment dates are estimated and Seller will not be liable for late shipments. If freight must be prepaid, payment will be made for the account of Buyer. Seller may make delivery installments, separately invoiced and payable without regard to subsequent deliveries. Delay in delivery of any installment will not relieve Buyer of its obligations to accept the initial or any remaining installments. If shipments are delayed by Buyer, invoices may be rendered on the dates Seller is prepared to make shipments. Products will be shipped F.O.B. point of origin, with all risk of loss for the products passing to Buyer upon delivery to carrier; provided, however, that products held by Seller as a result of Buyer's inability or refusal to accept delivery will be held at Buyer's risk, cost and expense. Title to the products will pass to Buyer upon Seller's receipt of the entire purchase price therefore.
6. Force Majeure. Seller will not be liable for any delay or failure in performance of any order, in the delivery or shipment of any product or for any damages or losses suffered by Buyer or any third party which are caused by, or in any manner arises from, directly or indirectly, any labor disturbances, embargos, riots, storms, fires, explosions, acts of God or public enemies, inability to obtain products from a supplier, accidents or breakdown to, or mechanical failure of, machinery or equipment, changes in economic conditions, delays or interruptions in transportation, or any other causes beyond Seller's control. Upon any such delay or failure, Seller may, in its sole discretion and without any liability to Buyer, delay the performance of, partially perform, or cancel any affected order in whole or in part.
7. Warranty. SELLER MAKES NO WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE SALE OF ANY PRODUCTS HEREUNDER, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BUYER ACKNOWLEDGES THAT BUYER HAS NOT RELIED UPON ANY REPRESENTATION OR WARRANTY BY SELLER IN CONNECTION WITH THE SALE OF PRODUCTS HEREUNDER.
8. Limitation of Liability; Exclusion of Damages. Seller's liability with respect to any claim by Buyer or any third party arising out of or in any way relating to any product sold by Seller to Buyer (including, but not limited to, such product's sale, use or transportation) will be limited solely to the repair, replacement or credit of the purchase price of such product and any such claim must be made in writing with Seller within ten days of the delivery of such product. Buyer agrees that (a) the failure to make such claim with Seller within such ten-day period will constitute Buyer's unconditional acceptance of the product and (b) no claim may be made with respect to any product that has been processed or changed in any way from its original condition as delivered. SELLER WILL NOT BE LIABLE TO BUYER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES, LOST PROFITS OR OTHER LOSSES OF BUYER OR ANY THIRD PARTY ARISING OUT OF OR IN ANY WAY RELATING TO THE SALE, USE OR TRANSPORTATION OF ANY PRODUCT.
9. Statute of Limitations. Any action of any nature by Buyer against Seller must be commenced by Buyer within one year after the cause of action first accrued.
10. Confidential Information. Seller's technical, trade secret, proprietary or similar information (collectively, "Confidential Information") disclosed by Seller to Buyer or its officers, directors, employees or agents (collectively, "Representatives") and all copies thereof are the sole and exclusive property of Seller. Such disclosure will not be construed as granting to Buyer or its Representatives any right, title or interest of any kind in any Confidential Information. Upon Seller's request, Buyer will promptly deliver to Seller all Confidential Information in Buyer's possession which is in written or electronically-readable form, including all copies or extracts thereof or based thereon in its possession or in the possession of any of its Representatives. All Confidential Information will be kept confidential by Buyer and will not be disclosed to any person or entity without Seller's prior written consent. Buyer will be responsible for any breach of this covenant by Buyer or any of Buyer's Representatives and will indemnify Seller and its officers, directors, employees, agents, affiliates and customers (collectively, the "Seller Indemnified Parties") for any costs, expenses or losses incurred or suffered by any of them as a result of such breach.
11. Default. If Buyer (a) fails to pay any amount due to Seller when due, (b) fails to observe or perform any of its other obligations under these terms and conditions, (c) takes any action that in Seller's opinion adversely affects the name, reputation or goodwill of Seller or its products, (d) is an entity, the person(s) that controls Buyer on the date these terms and conditions are issued to Buyer no longer controls Buyer or (e) becomes insolvent, is adjudicated a bankrupt, voluntarily files or permits the filing of a petition in bankruptcy, makes an assignment for the benefit of creditors, seeks any similar relief under any bankruptcy laws or related statutes or a receiver is appointed for its assets, then, at Seller's sole option, all sums due or to become due from Buyer to Seller may become immediately due and payable, and concurrently, or in the alternative, Seller may terminate any existing order between the Parties in whole or in part, defer shipment or delivery of any products, sell any part of any undelivered products and exercise any other remedies available to Seller under applicable law.
12. Costs and Expenses; Indemnification. Buyer will be responsible for all costs and expenses, including attorneys' fees and disbursements, incurred by Seller in enforcing any term or condition herein and Buyer will indemnify and promptly reimburse Seller for such costs and expenses. Buyer agrees to indemnify and hold the Seller Indemnified Parties harmless from all costs, expenses and losses incurred by any of them which relate to or arise out of Buyer's or Buyer's customers use, handling, installation, sale, distribution or disposal of any products sold hereunder or Buyer's failure to perform any obligation hereunder.
13. Cancellation. Any contract or order may be cancelled by Buyer only with the prior written consent of Seller and upon reimbursement to Seller for all costs, expenses and losses incurred by Seller as a result of such cancellation, including a reasonable profit and overhead.
14. Governing Law; Jurisdiction; Venue. Seller's offer, sales contract, invoice, these terms and conditions, Seller's order acknowledgment and any other document delivered by Seller to Buyer will be governed by and construed according to the laws of the State of New York, without reference to the principles of conflicts of law. Each of the Parties hereby irrevocably and unconditionally (a) consents to submit to the exclusive jurisdiction of the United States District Court for the Western District of New York or the applicable state court located in the State of New York, County of Erie for any action or proceeding arising out of or relating to the sale of Seller's products to Buyer, (b) waives any objection to the laying of venue of any such action or proceeding in such courts and (c) waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
15. Entire Agreement; Amendment; Waiver. Seller's offer, sales contract or invoice, these terms and conditions and Seller's order acknowledgement constitute the entire agreement between the Parties with respect to the sale of Seller's products to Buyer, superseding all prior representations, agreements or understandings, written or oral, between the Parties with respect to such sale. These terms and conditions cannot be amended orally or by any course of conduct by either Party, but may only be amended by a written agreement executed by the Parties. The failure by Seller to (a) enforce any provision hereof will not be construed as a waiver of such provision or of Seller's right to enforce such provision and (b) object to provisions contained in any purchase order or other communication from Buyer will not be construed as a waiver of these terms and conditions nor an acceptance of any such Buyer provisions.
16. Security Interest. Buyer hereby grants to Seller a priority lien and security interest in products sold to Buyer and in all proceeds of such products to secure Buyer's obligations to Seller hereunder. Buyer appoints each officer of Seller as an attorney-in-fact for Buyer for the purpose of executing and filing each financing statement or other documents necessary to perfect such security interest. Upon the failure of Buyer to pay the purchase price for any products when due, or to perform any of Buyer's obligations under these terms and conditions, Seller will (a) without any judicial process, have the right to enter upon Buyer's premises and take possession of any such products or to receive such products from Buyer upon Seller's demand and (b) have all other rights and remedies of a secured party under the Uniform Commercial Code of the State of New York and any other applicable law.
17. Successors and Assigns; Assignment; Severability. These terms and conditions will be binding upon the Parties and their respective successors and assigns; provided, however, that Buyer may not assign any of its rights or duties hereunder without Seller's prior written consent, which consent may be withheld in Seller's sole discretion. If any of the provisions of these terms and conditions are held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining provisions of these terms and conditions will remain in full force and effect.
GENERAL TERMS AND CONDITIONS OF PURCHASE
General: CCMA, LLC ("Buyer") and the person or entity to whom Buyer's purchase order or purchase contract (each an "Order") is addressed ("Seller") are collectively referred to herein as the "Parties". All purchases by Buyer from Seller are expressly conditioned on Seller's acceptance of these terms and conditions. Seller agrees that the first to occur of the following clauses (a) though (d) will conclusively constitute Seller's acceptance of these terms and conditions: (a) Seller accepts or fails within five days of receipt to object in writing to any of Buyer's instructions for specifications, delivery, shipping or billing with respect to any of the products covered by the Order, (b) Seller delivers any products covered by the Order, (c) Seller executes the Order or (d) the passage of five days after Buyer first delivers the Order to Seller and Seller fails to deliver written notice to Buyer that Seller objects to these terms and conditions. Issuance of an Order does not represent acceptance of any terms or conditions previously specified by Seller in any quotation or otherwise. Any purchase order acknowledgement, invoice, quotation or other communication from Seller that contains terms or conditions in addition to or inconsistent with these terms and conditions will not apply to the purchase of any products under the Order or be used to waive, modify, vary, explain or supplement all or any part of these terms and conditions and are hereby objected to by Buyer, unless acceptance of those terms and conditions is made in writing by an authorized officer of Buyer.
Prices: Seller's prices for the products covered by an Order will not be higher than the last quoted prices or last prices charged to Buyer unless otherwise agreed to by Buyer in writing. Seller warrants that the prices for the products sold under the Order are not less favorable than those currently extended to any other customers of Seller for the same or similar products. Seller will be responsible for paying any applicable transportation costs or property, sales, use, privilege or export taxes, custom duties or any other applicable tax, fee or charge imposed on or measured by the purchase of products under an Order. No additional charges of any kind, including, but not limited to, any form of service, interest, finance or late charges, or any charges for insurance, handling, boxing, packing or loading will be allowed, unless specifically agreed to in writing by Buyer.
Purchasing for Resale as Seller's Agent: The Parties hereby agree that this section will apply only if, and that Buyer will be considered as purchasing the products under the Order for resale by Buyer to its customers as Seller's agent if, (a) the Parties have entered into a written agency agreement or (b) the Parties have an understanding under which Seller has advised Buyer orally or in writing that Buyer may sell Seller's products to Buyer's customers on a trial basis and, that if such sales are successful, Seller will enter into a written agency agreement with Buyer and, under this clause (b), Buyer will be considered to be Seller's agent until Seller notifies Buyer in writing that Buyer may no longer act as Seller's agent. In either of these circumstances, the Parties acknowledge and agree that (a) Buyer may notify Buyer's customers that Buyer is acting as Seller's agent, (b) Buyer will not be responsible for any action or omission on the part of Seller which results in the delivery of any products purchased under the Order to Buyer's customers being delayed or not made or any loss, damage, inconvenience or injury to Buyer's customers, (c) Buyer's customers will have the right to pursue any remedies they may have for such delay, failure, loss, damage, inconvenience or injury directly against Seller and Buyer will have no liability with respect thereto and (d) Buyer will be afforded all protections as an agent under applicable law. The Parties further agree that this section and the remaining sections of these terms and conditions will govern in the event of any conflict with the terms of any written agency agreement between the Parties.
Delivery; Risk of Loss; Title: Time is of the essence in the shipment and delivery of Seller's products under the Order. Seller will not make delivery earlier than the date or dates shown on the Order or in installments or partial deliveries without the prior written consent of Buyer. If products are delivered in advance of a scheduled delivery date, Buyer may return them or store them, in either case at Seller's expense. Seller will promptly notify Buyer whenever Seller is not able to deliver the quantities specified on the date or dates specified; provided, however, that such notice will be informational only and its receipt by Buyer will not be construed as a waiver by Buyer of any delivery schedule or designated delivery date or any rights or remedies provided to Buyer by these terms and conditions or applicable law. Acceptance by Buyer of late deliveries will not relieve Seller of the obligation to make future deliveries on schedule. Products delivered under an Order in excess of the quantity specified may be retained by Buyer at no additional cost to Buyer. Seller will retain all risk of loss for products sold under the Order until the products are delivered to Buyer at the location or locations designated on the Order and Buyer has inspected and accepted them. Title to the products will pass to Buyer upon their delivery to such location or locations.
Packing and Shipping: The Order number must be plainly marked on all invoices, packages, bills of lading and shipping orders. Shipping memoranda or packing lists must accompany all products and bills of lading or shipping receipts must accompany each invoice for products sold. Buyer's count or weight will be conclusive on all shipments. All products will be packaged by Seller so as to insure safe arrival at their ultimate destination.
Inspection and Claims: Buyer reserves the right to reject defective or non-conforming products delivered under the Order. Any payment for such products or any delay in inspecting them, giving notice of rejection or in returning them will not constitute acceptance of such products. Products rejected by Buyer will be returned or stored by Buyer at Seller's expense. Buyer will inspect products delivered under the Order for obvious damage, defect or shortage upon receipt and will notify Seller of any such damage, defect or shortage identified by Buyer within a reasonable time. If any such products are found to be defective in material or workmanship or otherwise not in conformity with the requirements of the Order, Buyer, in addition to any other rights which it may have under applicable law, will have the right, at its option (a) to reject and return such products at Seller's expense, in which event such products will not be replaced by Seller without prior written authorization from Buyer or (b) upon notice to Seller, to take such actions as may be required to cure all defects and/or bring the products into conformity with all of the requirements of the Order, in which event all costs and expenses thereby incurred by Buyer will be for Seller's account. Any and all expenses incurred by Buyer in the exercise of its rights under this clause will be promptly reimbursed by Seller.
Force Majeure: Buyer will not be liable for any delay or failure in performance of any obligation to Seller or to any third party or for any damages or losses suffered by Seller or any third party which are caused by, or in any manner arises from, directly or indirectly, any labor disturbances, embargos, riots, storms, fires, explosions, acts of God or public enemies, inability to obtain products from a supplier, accidents or breakdown to, or mechanical failure of, machinery or equipment, changes in economic conditions, delays or interruptions in transportation, or any other causes beyond Buyer's control or the control of any of Buyer's customers. Upon any such delay or failure, Buyer may, in its sole discretion and without any liability to Seller or to any third party, delay or partially perform its obligations to Seller or cancel the Order in whole or in part.
Warranties: In addition to all warranties implied by law, Seller expressly warrants to Buyer and its customers that all products furnished under the Order will (a) be free of all liens, claims or encumbrances in favor of third parties, (b) be merchantable and fit for their intended purposes, (c) free from defects in design, manufacturing, workmanship and materials and (d) conform to all specifications or other descriptions furnished to Seller. Such warranties will run to Buyer and its successors and assigns, to Buyer's customers and to any end-users of the products sold under the Order and such warranties will survive the inspection, delivery and acceptance of, and any payment for, such products by Buyer.
Limitation of Liability; Exclusion of Damages Other than the payment of the purchase price for products which is validly due to Seller in accordance with the terms of the Order and these terms and conditions, Buyer will have no liability with respect to any claim by Seller or any third party arising out of or in any way relating to any product sold by Seller to Buyer under an Order. BUYER WILL NOT BE LIABLE TO SELLER OR TO ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL OR INDIRECT DAMAGES, LOST PROFITS OR OTHER LOSSES OF SELLER OR ANY THIRD PARTY ARISING OUT OF OR IN ANY WAY RELATING TO THE SALE, USE OR TRANSPORTATION OF ANY PRODUCT PURCHASED UNDER AN ORDER.
Confidential Information Buyer's technical, trade secret, proprietary or similar information (collectively, Confidential Information) disclosed by Buyer to Seller or its officers, directors, employees or agents (collectively, "Representatives") and all copies thereof are the exclusive property of Buyer. Such disclosure will not be construed as granting to Seller or its Representatives any right, title or interest of any kind in any Confidential Information. Upon Buyer's request, Seller will promptly deliver to Buyer all Confidential Information in Seller's possession which is in written or electronically-readable form, including all copies or extracts thereof or based thereon in its possession or in the possession of any of its Representatives. All Confidential Information will be kept confidential by Seller and will not be disclosed to any person or entity without Buyer's prior written consent. Seller will be responsible for any breach of this covenant by Seller or any of Seller's Representatives and will indemnify Buyer and its officers, directors, employees, agents, affiliates and customers (collectively, the "Buyer Indemnified Parties") for any costs, expenses or losses incurred or suffered by any of them as a result of such breach.
Default If Seller (a) fails to timely delivery of any product under the Order, (b) fails to observe or perform any of Seller's other obligations under the Order or these terms and conditions, (c) takes any action that in Buyer's opinion adversely affects the name, reputation or goodwill of Buyer or its products, (d) is an entity, the person(s) that controls Seller on the date of the Order no longer controls Seller, (e) becomes insolvent, is adjudicated a bankrupt, voluntarily files or permits the filing of a petition in bankruptcy, makes an assignment for the benefit of creditors, seeks any similar relief under any bankruptcy laws or related law or a receiver is appointed for its assets or (f) breaches any representation or warranty made in these terms and conditions, then, Buyer may, at its sole option and without any liability to Seller, (i) refuse to accept further delivery of products under the Order, (ii) return to Seller at Seller's expense any products delivered to Buyer and recover all payments made to Seller for such products, (iii) cancel the Order and any other agreement between the Parties in whole or in part, (iv) delay or defer payment for any products and (v) exercise any other remedies available to Buyer under applicable law.
Costs and Expenses; Indemnification; Set-Off Seller will be responsible for all costs and expenses, including attorneys' fees and disbursements, incurred by Buyer in enforcing any term or condition herein and Seller will indemnify and promptly reimburse Buyer for such costs and expenses. Seller agrees to indemnify and hold the Buyer Indemnified Parties harmless from all costs, expenses and losses incurred by any of them which relate to or arise out of any defect in the products sold under the Order, Seller's default or breach of any of these terms and conditions or its representations and warranties made herein or any action or omission by Seller or Seller's agents or employees. Buyer will be entitled at all times to set-off any amount owing at any time from Seller to Buyer or any affiliate thereof against any amount payable at any time by Buyer or any affiliate thereof to Seller.
Statue of Limitations;Compliance with Laws Any action of any nature by Seller against Buyer must be commenced by Seller within one year after the cause of action first accrued. In furnishing products under the Order, Seller represents that Seller is currently in compliance and will continue to be in compliance with all applicable laws (including, but not limited to, compliance with all applicable export laws and the obtaining of all required licenses and other required documentation) and will defend, indemnify and hold harmless the Buyer Indemnified Parties from and against any and all liabilities, damages, costs and expenses which any of them may suffer or incur on account of Seller's failure to comply with any such law.
Changes Buyer may by written notice at any time prior to shipment, make changes to the Order concerning specifications, method of shipment or packing, quantities and place or time of delivery. To the extent any such change causes an increase or decrease in the cost of or time required for performance of the Order, an appropriate equitable adjustment will be made. Any claim by Seller for adjustment must be asserted in writing within fifteen days from receipt of the change. Seller will furnish such documentary evidence as Buyer may reasonably request substantiating the proposed adjustment. Failure to agree to an adjustment will not excuse Seller from proceeding with the Order as changed.
Cancellation Buyer may at any time by written notice cancel for its convenience or for Seller's default all or any part of the Order upon five days written notice to Seller. If the Order is canceled for Seller's default, Seller will have no claim against Buyer for any costs incurred or any profit with respect to the canceled portion of the Order and Seller will remain liable to Buyer for any damages suffered by Buyer on account of the default. If the Order is cancelled by Buyer for convenience, Seller will be paid an equitable amount to cover Sellers direct costs incurred prior to cancellation; provided, however, that no amount will be paid for any lost profits and the total amount will not exceed the price of the Order. Seller agrees to take all necessary steps to mitigate any losses Seller might incur due to such cancellation.
Governing Law; Jurisdiction; Venue The Order, these terms and conditions and any other document delivered by Buyer to Seller will be governed by and construed according to the laws of the State of New York, without reference to the principles of conflicts of law. All rights and remedies of Buyer, whether expressly provided by these terms and conditions or by applicable law, will be cumulative and nonexclusive and may be exercised singly or concurrently. Damages recoverable by Buyer under these terms and conditions will include all losses of every kind and nature including, but not limited to, lost profits, special, direct, indirect and consequential damages. Each of the Parties hereby irrevocably and unconditionally (a) consents to submit to the exclusive jurisdiction of the United States District Court for the Western District of New York or the applicable state court located in the State of New York, County of Erie for any action or proceeding arising out of or relating to the sale of Seller's products to Buyer, (b) waives any objection to the laying of venue of any such action or proceeding in such courts and (c) waives and agrees not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
Entire Agreement; Amendment; Waiver The Order and these terms and conditions constitute the entire agreement between the Parties with respect to the sale of Seller's products to Buyer under the Order, superseding all prior representations, agreements or understandings, written or oral, between the Parties with respect to such sale. These terms and conditions cannot be amended orally or by any course of conduct by either Party, but may only be amended by a written agreement executed by the Parties. The failure by Buyer to (a) enforce any provision hereof will not be construed as a waiver of such provision or of Buyer's right to enforce such provision and (b) object to provisions contained in any communication from Seller will not be construed as a waiver of these terms and conditions nor an acceptance of any such Seller provisions.
Successors and Assigns; Assignment; Severability These terms and conditions will be binding upon the Parties and their respective successors and assigns; provided, however, that Seller may not assign any of its rights or duties hereunder without Buyer's prior written consent, which consent may be withheld in Buyer's sole discretion. If any of the provisions of these terms and conditions are held by a court or other tribunal of competent jurisdiction to be unenforceable, the remaining provisions of these terms and conditions will remain in full force and effect