General Terms and Conditions of Sale

SCOPE

These general terms and conditions apply to all proposals, quotations, acknowledgments and/or invoices submitted by MacArthur Corporation (“Seller”) for the sale of products and/or services (“Products”), to all purchase orders, order releases and/or similar documents received by Seller for the purchase of Products, which, for the avoidance of doubt, Seller reserves the right to reject, and to all Products sold by Seller, except as otherwise expressly provided in a signed document issued by Seller.

SELLER'S QUOTATIONS ARE EXPRESSLY MADE CONDITIONAL ON BUYER'S ASSENT TO THE ADDITIONAL OR DIFFERENT TERMS SET FORTH IN THE AGREEMENT WHICH REPRESENT THE SOLE AND EXCLUSIVE TERMS AND CONDITIONS UPON WHICH SELLER OFFERS TO SELL PRODUCTS TO BUYER.

Seller's quotations, including (1) these terms and conditions and (2) any documents (such as drawings or other specifications) expressly and to the extent incorporated by reference therein, are referred to herein as the “Agreement.” The Agreement also includes any amendments made from time to time by the parties, but these General Terms and Conditions of Sale shall not be amended, modified or rescinded, and no amendment, modification or rescission of the terms and conditions set forth herein will be binding upon Seller, unless such amendment, modification or rescission is agreed to in writing, makes express reference to amending these General Terms and Conditions of Sale, and is signed by an authorized representative of Seller.

Buyer's acceptance of the Agreement is limited to acceptance of the terms and conditions set forth in the Agreement. Any proposal for additional or different terms or any attempt by Buyer to vary in any degree any of the terms of this Agreement in Buyer's acceptance or purchase order are hereby objected to and rejected by Seller. THE TERMS OF THIS AGREEMENT ARE EXCLUSIVE.

PRICES

Seller's published prices, if any, are subject to change without notice, and Buyer should inquire as to their validity and request written confirmation or revision. Seller reserves the right to adjust its prices to, among other reasons, take account of any changes in specification made at the request of Buyer and agreed by Seller, any delay caused by Buyer, any increase in raw materials or economic costs, any changes in volumes and any other changes in assumptions from the quoted levels. All prices are in United States dollars.
Unless otherwise expressly provided by Seller in the Agreement, prices are inclusive of all discounts/productivity but do not include sales, excise, use, value-added or other similar taxes now in effect or hereafter levied, transportation charges (such as freight, insurance, shipping, storage, handling, demurrage or similar charges), engineering documentation, special packaging, marketing or testing, and Buyer shall pay all such charges, including applicable sales or other taxes levied with respect to Products and the Agreement (unless exempt therefrom), as well as any government fees levied on the inspection and/or installation of the Products, upon receipt of the related invoice from Seller and in accordance with this Agreement. In the event that the Agreement expressly provides that any of the foregoing charges are specifically included in the price, any charges attributable to increases in applicable rates after the date such price is quoted to Buyer shall be added to the price.
In the event Buyer requests changes to Products after the date of quotation, Seller may unilaterally increase prices to cover increased costs (plus reasonable overhead and profit) associated with such changes including, without limitation, increased costs of design, materials, and/or manufacturing. Seller shall be under no obligation to honor such Buyer requested changes. Where applicable, Seller may add to the price, and Buyer agrees to pay, for the price of additional Products and/or portions of Products made necessary by incomplete or inaccurate information supplied by Buyer.

PAYMENTS

Invoices may be rendered separately for each shipment (including any early shipment) made by Seller, and payment will be due net thirty (30) days after the date of shipment, unless a different period is stated elsewhere in the Agreement. E-Commerce orders shall be pre-paid using valid payment options including Visa (credit and debit cards), Mastercard (credit and debit cards), American Express, or Discover. Buyer shall be liable for the price of all Products substantially conforming to the Agreement that are within 10% of the quantity specified in Seller’s quotation, notwithstanding that Buyer may not have accepted or may have revoked acceptance of same, as well as the cost of new tooling and retooling required by Seller as a result of wear and tear. Buyer shall not be entitled to deduct, counterclaim or set off against the price of Products, or against any other amount owing under the Agreement including under any invoice, any claim or alleged claim arising out of the Agreement or any other transaction with Seller. If payment is not received by the due date, Seller reserves the right to (1) charge a service charge at the rate of 2% per month (or the maximum legal amount, if less) on the unpaid invoices from the due date thereof; (2) require future payments in advance of delivery; (3) refuse to make delivery of any Products or services without incurring any liability to Buyer; (4) terminate the Agreement; and/or (5) set-off any amount owing by Seller or its related entities to Buyer or to any Buyer related tity.
Seller shall have the right to stop delivery if Buyer is in arrears with payment. A failure to pay for an installment within the time for payment is an anticipatory material breach of other installments by Buyer.

DELIVERY; FORCE MAJEURE

Whether or not Seller prepays shipping charges, title to each shipment of the Products sold hereunder and risk of loss thereon shall pass to Buyer when Seller or its agent delivers such shipment to a common carrier or licensed trucker consigned to Buyer or its agent, but such shipment shall remain subject to Seller's rights of stoppage in transit, rights of reclamation and other legal rights of Seller. Seller's breach of the Agreement shall not affect the passing of the risk of loss to Buyer notwithstanding any provision of law to the contrary.
Where a shipping/delivery date is specified by Seller, that date reflects Seller's estimate for the probable time required for completion of Buyer's order, based on Seller's then-current manufacturing capacity and scheduling. Where a lead time is specified by Seller, such lead time is based on a five-day work week (e.g., a ten-day lead time amounts to two calendar weeks). All shipping dates are approximate and shall be computed from the date of entry of the order on Seller's books. All shipping/delivery dates and lead times are further subject to Seller's prompt receipt from Buyer of all drawings, information, and approvals necessary to provide the Products and satisfaction of any other conditions under the Agreement.
If shipment of any Products or other performance by Seller is delayed at the request of or due to the fault of Buyer, Seller may at its option hold the Products at the place of manufacture at the risk and expense of Buyer from the time the Products are ready for shipment. In the event of any such delay to shipment, full and final payment for an item shall be due and payable thirty (30) days after Buyer is notified that the item is ready for shipment and an invoice issued for such Products. If Seller is unwilling to accommodate Buyer by holding such item, then Buyer agrees to accept shipment immediately. Delivery rescheduled at Buyer's request, if agreed to by Seller, may be subject, at Seller’s option, to an additional charge of 2% of the selling price if rescheduled within ten (10) days immediately preceding the then-current scheduled delivery date, which will be invoiced at the time of shipment.
All inspection, delivery, and other dates for Seller's performance are estimates only. In addition, Seller shall not be in default or liable, directly or indirectly, because of Seller's delay or failure to deliver or perform arising or resulting, in whole or in part, from (1) any cause beyond Seller's control or beyond the control of Seller's suppliers or contractors, including but not limited to embargo, governmental regulation, seizures, acts of God, insurrections, war, the adoption of any law, ordinance, regulation, late receipt of order having full manufacturing details, ruling or order, or inability or delay in obtaining materials, (2) the lack of usual means of transportation, fires, floods, explosions, strikes, labor disputes or any other accidents, contingencies, or events, at Seller's or any of its supplier's plants or elsewhere (whether or not beyond Seller's control) which directly or indirectly interfere with, or render substantially more burdensome, Seller's production, delivery, or performance, or (3) delays by Buyer in inspecting and acceptance, in furnishing requested specifications, materials, tooling or information, in making payments, or otherwise. In the event of any such delay or failure in performance, Seller shall have such additional time within which to perform its obligations under the Agreement as may reasonably be necessary under the circumstances; and Seller shall also have the right, to the extent necessary in Seller's reasonable judgment, to apportion fairly, among itself and its various customers in such manner as Seller may consider equitable Products then available for delivery. If, as a result of any such contingency, Seller is unable to perform under the Agreement in whole or in part, then, to the extent that it is unable to perform, the Agreement shall be deemed terminated without liability to either party, but shall remain in effect as to the unaffected portion of the Agreement, if any. This section shall be effective even as to circumstances which exist at the time of quotation or as of the date of the Agreement.

ACCEPTANCE

Buyer shall accept, and provide payment as required herein, for any tender of Products which substantially conform to the description of the Products set forth in the Agreement and which are within 10% of the quantity specified in Seller’s quotation. Seller shall not be required to conduct Product testing, unless specific procedures have been specified in the Agreement and designated as Seller’s responsibility. On request, Seller will quote to Buyer additional charges required to conduct any additional acceptance procedures requested by Buyer. Buyer shall be deemed to have accepted drawings, specifications, technical documentation, samples, prototypes and Products unless Buyer gives Seller notice in writing stating with specificity all defects and nonconformities upon which Buyer will rely to support its rejection (1) in the case of defects discoverable through inspection, within seven (7) days after receipt of the Products or (2) in the case of defects not discoverable through inspection, within thirty (30) days or other reasonable time established by Seller after receipt of the Products. Failure to so act shall constitute an irrevocable acceptance by Buyer of the Products. ALL DEFECTS AND NON-CONFORMITIES WHICH ARE NOT SPECIFIED WITHIN THE THE APPLICABLE PERIODS DESCRIBED ABOVE ARE WAIVED. If Buyer rejects any tender of the Products or other items and if requested by Seller, Buyer shall return them to Seller, pursuant to Seller's direction. In the case of Buyer acceptance of non-conforming Products, Buyer shall immediately notify Seller whether or not Buyer will continue to accept similarly non-conforming Products and failure to do so shall constitute a waiver by Buyer of specification requirements for said Products. In any event, when Products have been altered from their original state, Buyer shall be deemed to have accepted such Products. Buyer's acceptance of Products tendered under this Agreement shall be final and irrevocable. No attempted revocation of acceptance shall be effective, and Buyer shall be limited to the remedies specifically provided in the Agreement.
If the Agreement requires, or Seller requests in writing, inspection or testing, Buyer shall provide at the place of manufacturer at its own expense, one or more qualified and authorized employees to inspect and/or test the Products, check them for general compliance with the Agreement, and authorize shipment. If Buyer fails to do so within seven (7) days of the date of notification by Seller that the Products are ready for shipment, then Seller may, in its own discretion, determine that Buyer has waived the right of inspection, testing and/or acceptance prior to shipment of the Products. Correction of defects or non-conformities, which would likely have been discovered by Buyer's inspection and/or testing and otherwise covered by Seller's warranty, will be at Buyer's expense. Buyer shall also provide, at its cost and risk of loss, all materials, fixtures, tooling and other items necessary for any inspection and/or testing required by the Agreement or requested by Seller. If Buyer fails to supply such items within the time required, Seller may supply them at Buyer's expense. Equipment, parts and materials furnished by Buyer for Seller's testing and/or inspection will be returned to Buyer at Buyer's cost, unless Buyer authorizes their disposal. If the Products include the necessary fixtures and tooling, the inspection and/or testing at the place of manufacture may be performed on equipment similar to but other than that identified in the Agreement.
Any expense incurred by Buyer in the inspection or testing of Products shall be paid by Buyer, whether or not the Products have been rejected as defective or non-conforming or the Products have been accepted and a warranty claim has been made for correction of a defect or non-conformity.
Any claim by Buyer for shortages in any delivery must be in writing with satisfactory evidence delivered to Seller within thirty (30) days of receipt. Carriers are responsible for Products lost or damaged in transit. In the case of loss or damage to Products in transit, Buyer shall immediately notify the carrier or its agent in writing of such loss or damage and shall do all things necessary to assert and prosecute a claim solely against the carrier for such loss or damage.
Seller reserves the right to charge Buyer a restocking charge on returned Products up to twenty five percent (25%) of the invoice price of such returned Products. Returned Products must be returned to Seller in the original packaging and Buyer must first obtain a written consent from Seller to return the Products, which consent Seller may grant or withhold in its sole discretion. Seller may offset the restocking charge against any amounts Seller owes to Buyer.

GENERAL EXPRESS WARRANTIES

Seller warrants to Buyer only, subject to the terms of this Agreement, that: (1) the portions of the Products manufactured by Seller shall be free from manufacturing defects in materials and workmanship under normal use and service; and (2) the Products will be free and clear of all liens, encumbrances, and other claims except for Seller's reservation of a security interest in the Products prior to receipt of payment in full. Unless otherwise expressly provided elsewhere in the Agreement, the warranty period for Products is twelve (12) months from the date of delivery or a maximum of eighteen (18) months from the date of completion and notification to ship, whichever occurs first. Products which are supplied by other vendors and which are resold by Seller hereunder without alteration or change shall only have the warranty furnished by said vendor, which, to the extent permitted by said vendor, Seller passes on to Buyer. Seller retains the right to change the dimensions, composition, design, performance, color and appearance of the Products without liability if, in its judgment, the change is non-material. Products which are manufactured by Seller may include new parts or serviceable used parts that are functionally equivalent to new parts. Seller may, in its discretion, also rely on any generally accepted industry standards.
Seller's warranties are conditioned upon: (1) installation, maintenance and normal use in conformity with instructions furnished by Seller from time to time, if any; (2) the Products not having been subjected to misuse, neglect, or accident, or to alteration, improper installation, repair or improper testing in any respect which, in the judgment of Seller, adversely affects the condition or operation of the Products; and (3) the Products being stored at 50% relative humidity and 72 degrees Fahrenheit.

LIMITATION OF WARRANTIES; DISCLAIMER OF IMPLIED WARRANTIES

THE LIMITED EXPRESS WARRANTIES IN THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, AND SELLER DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, AND NON-INFRINGEMENT.
All descriptions, shipping specifications and illustrations of the Products in catalogues, brochures and price lists otherwise provided by Seller and not expressly and specifically incorporated in the Agreement were and are for general guidance only, and Seller is not responsible for any errors or omissions therein or for any loss or damage resulting from reliance thereon. Seller does not warrant that it or the Products are in compliance with any industry standards, guidelines, or procedures, or with the requirements of any safety or environmental code or regulation of any federal, state, municipality or other jurisdiction unless otherwise specifically provided in the Agreement. Buyer affirms that it has not relied upon Seller's skill or judgment to select or furnish Products for any particular purpose beyond the specific express warranties in this Agreement.
Notwithstanding Section 6, where Products are manufactured in accordance with information, drawings, designs or specifications supplied by Buyer, or where Products of Seller are altered by Buyer or in accordance with Buyer’s instructions, then no warranty is given by Seller for such Products and Buyer shall indemnify Seller against all liabilities in relation to such Products infringing any intellectual property right and any defect in the Products due to faults or omissions in such information, drawings, designs, specifications or instructions.

LIMITATION OF REMEDIES AND SELLER’S LIABILITY

Seller's responsibility, and the sole and exclusive remedy of Buyer under Buyer's warranties, is, at Seller's option and subject to the terms hereof, to repair, to replace, or to keep the Products and refund/credit Buyer's account in the amount of the purchase price of, any defective or nonconforming Products which are returned or offered to be returned by Buyer to Seller during the warranty period, provided that: (1) Seller is promptly notified in writing with a detailed explanation of any alleged deficiencies upon discovery by Buyer that such Products fail to conform to the warranties in this Agreement; (2) Seller's examination of such Products shall disclose to Seller's satisfaction that such Products are defective or nonconforming under the warranties in this Agreement; and (3) shipment to Seller's facility (FOB Seller plant) or to a Seller designated location, at expense of Buyer. Buyer's remedies shall be limited (even in the event of Seller's default of its warranty obligations) exclusively to those provided in this Section.
NOTWITHSTANDING ANYTHING SET FORTH IN THIS AGREEMENT (INCLUDING ITS ATTACHMENTS), AND TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SELLER BE RESPONSIBLE OR LIABLE TO BUYER FOR ANY LOSS OF USE, REVENUE OR ANTICIPATED PROFITS, OR FOR ANY INCIDENTAL, CONSEQUENTIAL, INDIRECT, SPECIAL, CONTINGENT OR PUNITIVE DAMAGES IN CONNECTION WITH ANY BREACH OF WARRANTY OR OTHER BREACH OF SELLER'S OBLIGATIONS UNDER THIS AGREEMENT (INCLUDING ANY ATTACHMENTS HERETO). SELLER'S AGGREGATE LIABILITY FOR ANY DAMAGES OR CLAIMS ARISING OUT OF OR RELATING TO ANY PRODUCTS HEREUNDER SHALL IN NO EVENT EXCEED THE AMOUNT BUYER PAID FOR THE PRODUCT(S) GIVING RISE TO THE CLAIM OR DAMAGES. Buyer waives any causes of action or theories of liability including, but not limited to, those arising under contract, tort, strict liability, product liability, statutes, or otherwise, except as specifically provided by the UCC as modified and limited herein. The replacement or repair of Products by Seller does not give rise to any new warranty except the warranty period provided for herein shall be extended by the length of any period in which defective or non-conforming Products are in possession of Seller.
The Agreement is only for the benefit of the parties, except all disclaimers and limitations applicable to Seller shall be also for the benefit of Seller's parent, subsidiary and affiliate companies (and their respective officers, directors, employees, agents, contractors, and suppliers). If any other provision of the Agreement is determined to apply to other parties, all other provisions including limitations, waivers and disclaimers shall also apply.

INDEMNIFICATION

Buyer shall indemnify, defend and hold harmless Seller, and Seller's parent, subsidiary and affiliate companies, and their respective shareholders, officers, directors, employees, representatives and agents, from and against any and all third party claims, damages, and expenses (including reasonable attorney fees) under theories of tort, product liability, negligence (ordinary or gross), warranty, contract, statute or otherwise arising out of the use, storage, sale, processing or other disposition of the Products, supplies or materials used in connection with the Products, or goods manufactured with the Products, (1) if the action or inaction of Buyer or its employees, customers or agents, or Buyer's design specifications, were a material or proximate cause of injuries or damages giving rise to claims against Seller, and/or (2) if the claim asserted is inconsistent with the limitation of warranties, limitation of liability and/or limitation of remedies set forth in this Agreement.

CANCELLATION AND BREACH

If (1) Buyer fails to pay the price when due or otherwise breaches the Agreement or any other contract with Seller or any Seller related company; (2) Buyer is unable to pay its debts as they become due or Buyer otherwise becomes insolvent or suspends payment or threatens to do so or ceases to do business; (3) Buyer takes steps to propose any composition or arrangement involving Buyer and its creditors generally, obtain an administration order or appoint any receiver in relation to Buyer or any of its property, wind-up or dissolve Buyer or change who has control of Buyer; or (4) Buyer reasonably believes that any of the foregoing may occur, then, in addition to any rights of Seller to terminate the Agreement for cause, Seller may, without prejudice to its other rights hereunder or otherwise, at any time by notice to Buyer and without opportunity to cure (unless required by applicable law), do any one or more of the following: (a) modify payment terms hereunder; (b) bill and declare due and payable all undelivered Products under the Agreement and/or any other agreement between Seller and Buyer; (c) terminate, cancel and/or rescind the Agreement or any release and/or any other contracts between Buyer and Seller and/or suspend any deliveries to be made under the Agreement or any release and/or any other contracts between Buyer and Seller; (c) recover Products in transit and/or revoke any authority to sell, use or consume any delivered Products and require Buyer to return to Seller any such Products and, if Buyer fails to do so, Buyer shall reimburse Seller for all costs to obtain re-possession of such Products and costs to re-sell any such Products without giving notice; and/or (d) require Buyer to reimburse Seller for costs related to any purported cancellation or failure to take delivery, including without limitation the cost of any material, labor, plant, tools and any overheads used, or intended to be used, for Buyer’s orders. In addition, Seller may, without prejudice to its other rights hereunder or otherwise, at any time by 30 days’ written notice to Buyer, terminate, cancel and/or rescind the Agreement or any release. Buyer shall remain liable for all damages suffered or incurred by Seller in any such circumstances. Seller shall be awarded incidental damages including, without limitation, reasonable profits and costs such as actual reasonable attorney fees in any proceeding to enforce its remedies in which it obtains relief for damages or injunctive relief. All rights granted to Seller in the Agreement and by law are cumulative, provided Seller shall be entitled to only a single full recovery.
Seller shall not be liable for any action taken pursuant to a good faith exercise of any of its rights under the Agreement or law.

SECURITY INTEREST; POWER OF ATTORNEY

In addition to any security interest granted by the UCC, Buyer hereby grants a security interest to Seller in all Products and documents related thereto and proceeds and products therefrom to secure all obligations of Buyer to Seller, whether or not arising under the Agreement. Buyer shall sign financing statements evidencing the security interest as reasonably requested by Seller, or Seller may file a copy of the Agreement or portion thereof as a financing statement. Buyer grants Seller an irrevocable power of attorney to sign Buyer's name to a financing statement if necessary or convenient to perfect Seller's security interest. Buyer shall provide a landlord's waiver of any lien rights at the premises to which the Products are to be installed. In case of a default by Buyer, Seller may enter the premises of Buyer and others to repossess or render inoperable all Products in which it has a security interest. In case of a default by Buyer, Buyer hereby irrevocably appoints Seller as its agent to obtain possession of the Products and documents related thereto. Buyer shall not sell, exchange, transfer, convey, mortgage, pledge, hypothecate, or grant a security interest in any Products or the proceeds thereof (including cash, accounts, contract rights, instruments and chattel paper) which are the subject of this Agreement if payment therefor shall not have been made in full to Seller.

TIME PERIOD FOR BUYER CLAIM

Any proceeding by Buyer for breach of the Agreement or any other right against Seller arising from or in connection with payment by Buyer or the Agreement cannot be filed or maintained unless: (1) it is commenced within one (1) year after the cause for action has accrued; (2) Buyer has given timely written notice to Seller of its claim as provided herein; and (3) Buyer deposits any unpaid portion of the purchase price for Products with the tribunal pending final adjudication. An action shall accrue no later than shipment of the Products.

ASSIGNMENT

Buyer shall not assign this Agreement or any interest therein or any rights thereunder without the prior written consent of Seller, and any purported assignment without such consent shall be void.

INTELLECTUAL PROPERTY

Unless otherwise agreed, Buyer acknowledges that any information disclosed to Seller is subject only to Buyer’s patent rights, without any other restrictions on Seller’s use, including reproduction, modification, disclosure or distribution of the information. Buyer agrees not to label any such information with a notice asserting that the information is proprietary or confidential to Buyer. In addition, Buyer agrees not to assert any claim (other than a claim for patent infringement) against Seller, Seller’s customers or their respective suppliers with respect to any information that Buyer has disclosed or may disclose to Seller in connection with the Products.
All proposals, plans, specifications, models, tools, patterns, processes, fixtures, designs and other information furnished by Seller or Seller’s parent, subsidiary or affiliate companies in bidding, negotiating and performing the Agreement are proprietary to Seller and shall not be shown or disclosed to any third party or used by Buyer except as may be necessary for the selection or use of the Products. Seller is not obligated to furnish detailed or shop working drawings, engineering calculations, computer programs or other information for any Products or part thereof unless specifically required by the Agreement.
All intellectual property rights, designs, samples, tooling, drawings, models and similar items used or developed by or on behalf of Seller in relation to the Products are and shall remain the property of Seller, and such materials shall be returned by Buyer on demand, be treated as confidential and not be used, copied or disclosed to any third party without Seller’s prior written consent. No right or license is granted to Buyer under any intellectual property right except the right to use or re-sell the Products in the ordinary course of Buyer’s business. For the avoidance of doubt, set up charges, tooling, dies, plates, design, art prep and art revisions are owned exclusively by Seller unless otherwise agreed by Seller in a signed writing.

GENERAL

This Agreement constitutes the entire agreement between the parties and supersedes all prior agreements and understanding between them relating to the subject matter hereunder, and no modification of this Agreement shall be binding on either party unless it is in writing and signed by both parties.
No waiver of any provision of this Agreement shall be effective unless made in writing. No waiver of any breach of any provision of this Agreement shall constitute a waiver of any subsequent breach of the same or of any other provision of this Agreement.
Buyer and Seller agree that this Agreement shall be governed by, subject to, and construed in accordance with the laws of the State of Michigan without regard to its conflicts of laws provisions. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the courts of the State of Michigan in each case located in the City of Grand Blanc and County of Genesee, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. The parties irrevocably and unconditionally waive any objection to venue of any suit, action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such suit, action or proceeding has been brought in an inconvenient forum.
The provisions of this Agreement are severable and if any one or more such provisions are judicially determined to be illegal or otherwise unenforceable, in whole or in part, the remaining provisions or portions of this Agreement shall nevertheless be binding on and be enforceable by and between the parties.