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Terms & Conditions

This privacy notice discloses the privacy practices for emeraldscientific.com, emeraldtest.com, community.emeraldscientific.com and consulting.emeraldscientific.com. This privacy notice applies solely to information collected by these websites. It will notify you of the following:

  1. What personally identifiable information is collected from you through the website, how it is used and with whom it may be shared.

  2. What choices are available to you regarding the use of your data.

  3. The security procedures in place to protect the misuse of your information.

  4. How you can correct any inaccuracies in the information.

CCPA Privacy Policy 

PRIVACY STATEMENT – CALIFORNIA

This PRIVACY NOTICE FOR CALIFORNIA RESIDENTS and applies solely to visitors, users, and others who reside in the State of California (“consumers” or “you”). We adopt this notice to comply with the California Consumer Privacy Act of 2018 (“CCPA”) and other California privacy laws.  Any terms defined in the CCPA have the same meaning when used in this notice.

Information We Collect

We collect information that identifies, relates to, describes, references, is capable of being associated with, or could reasonably be linked, directly or indirectly, with a particular consumer or device (“personal information”). In particular, we have collected the following categories of personal information from consumers within the last twelve (12) months:

Category

Examples

Collected

A. Identifiers.

A real name, alias, postal address, unique personal identifier, online identifier, Internet Protocol address, email address, and account name.

YES

Social Security number, driver’s license number, passport number, or other similar identifiers.

NO

B. Personal information categories listed in the California Customer Records statute (Cal. Civ. Code § 1798.80(e)).

A name, signature, Social Security number, physical characteristics or description, address, telephone number, passport number, driver’s license or state identification card number, insurance policy number, education, employment, employment history, bank account number, credit card number, debit card number, or any other financial information, medical information, or health insurance information. Some personal information included in this category may overlap with other categories.

YES

Signature, Social Security number, physical characteristics or description, passport number, driver’s license or state identification card number, insurance policy number, education, employment history, bank account number, credit card number, debit card number, or any other financial information, medical information, or health insurance information.

NO

C. Protected classification characteristics under California or federal law.

Age (40 years or older), race, color, ancestry, national origin, citizenship, religion or creed, marital status, medical condition, physical or mental disability, sex (including gender, gender identity, gender expression, pregnancy or childbirth and related medical conditions), sexual orientation, veteran or military status, genetic information (including familial genetic information).

NO

D. Commercial information.

Records of personal property, products or services purchased, obtained, or considered, or other purchasing or consuming histories or tendencies.

YES

E. Biometric information.

Genetic, physiological, behavioral, and biological characteristics, or activity patterns used to extract a template or other identifier or identifying information, such as, fingerprints, faceprints, and voiceprints, iris or retina scans, keystroke, gait, or other physical patterns, and sleep, health, or exercise data.

NO

F. Internet or other similar network activity.

Browsing history, search history, information on a consumer’s interaction with a website, application, or advertisement.

YES

G. Geolocation data.

Physical location or movements.

NO

H. Sensory data.

Audio, electronic, visual, thermal, olfactory, or similar information.

NO

I. Professional or employment-related information.

Current or past job history or performance evaluations.

NO

J. Non-public education information (per the Family Educational Rights and Privacy Act (20 U.S.C. Section 1232g, 34 C.F.R. Part 99)).

Education records directly related to a student maintained by an educational institution or party acting on its behalf, such as grades, transcripts, class lists, student schedules, student identification codes, student financial information, or student disciplinary records.

NO

K. Inferences drawn from other personal information.

Profile reflecting a person’s preferences, characteristics, psychological trends, predispositions, behavior, attitudes, intelligence, abilities, and aptitudes.

NO

Personal information does not include:

  • Publicly available information from government records.

  • De-identified or aggregated consumer information.

  • Information excluded from the CCPA’s scope, like:

    • health or medical information covered by the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and the California Confidentiality of Medical Information Act (CMIA) or clinical trial data;

    • personal information covered by certain sector-specific privacy laws, including the Fair Credit Reporting Act (FRCA), the Gramm-Leach-Bliley Act (GLBA) or California Financial Information Privacy Act (FIPA), and the Driver’s Privacy Protection Act of 1994.

We obtain the categories of personal information listed above from the following categories of sources:

  • Directly from our customers or their agents. For example, from documents that our customers provide to us related to the services for which they engage us.

  • Indirectly from our customers or their agents. For example, through information we collect from our customers in the course of providing services to them.

  • Directly and indirectly from activity on our website. For example, from submissions through our website or website usage details collected automatically.

  • From third-parties that interact with us in connection with the services we perform.

Use of Personal Information

We may use or disclose the personal information we collect for one or more of the following business purposes:

  • To fulfill or meet the reason for which the information is provided. 

  • To provide you with information, products or services that you request from us.

  • To provide you with email alerts, event registrations and other notices concerning our products or services, or events or news, that may be of interest to you.

  • To carry out our obligations and enforce our rights arising from any contracts entered into between you and us, including for billing and collections.

  • To improve our website and present its contents to you.

  • For testing, research, analysis and product development.

  • As necessary or appropriate to protect the rights, property or safety of us, our customersclients or others.

  • To respond to law enforcement requests and as required by applicable law, court order, or governmental regulations.

  • As described to you when collecting your personal information or as otherwise set forth in the CCPA.

  • To evaluate or conduct a merger, divestiture, restructuring, reorganization, dissolution, or other sale or transfer of some or all of our assets, whether as a going concern or as part of bankruptcy, liquidation, or similar proceeding, in which personal information held by us is among the assets transferred.

We will not collect additional categories of personal information or use the personal information we collect for materially different, unrelated, or incompatible purposes without providing you notice.

Sharing Personal Information

We may disclose your personal information for the purpose of order fulfillment.  When we disclose personal information for the a business purpose of order fulfillment, we enter a contract that describes the purpose and requires the recipient to both keep that personal information confidential and not use it for any purpose except performing the contract.

In the preceding twelve (12) months, we have disclosed the following categories of personal information for a business purpose:

Category A: Identifiers.

Category B: California Customer Records personal information categories.

We disclose your personal information for the purpose of order fulfillment in the following categories:

  • Our affiliates.

  • Vendors and/or manufacturers

  • Third parties to whom you or your agents authorize us to disclose your personal information in connection with products or services we provide to you.

In the preceding twelve (12) months, we have not sold any personal information.

Your Rights and Choices

The CCPA provides consumers (California residents) with specific rights regarding their personal information. This section describes your CCPA rights and explains how to exercise those rights.

Access to Specific Information and Data Portability Rights

You have the right to request that we disclose certain information to you about our collection and use of your personal information over the past 12 months. Once we receive and confirm your verifiable consumer request, we will disclose to you:

  • The categories of personal information we collected about you.

  • The categories of sources for the personal information we collected about you.

  • Our business or commercial purpose for collecting or selling that personal information.

  • The categories of third parties with whom we share that personal information.

  • The specific pieces of personal information we collected about you (also called a data portability request).

  • If we disclosed your personal information for a business purpose.

Deletion Request Rights

You have the right to request that we delete any of your personal information that we collected from you and retained, subject to certain exceptions. Once we receive and confirm your verifiable consumer request, we will delete (and direct our service providers to delete) your personal information from our records, unless an exception applies.

We may deny your deletion request if retaining the information is necessary for us or our service providers to:

  1. Complete the transaction for which we collected the personal information, provide a good or service that you requested, take actions reasonably anticipated within the context of our ongoing business relationship with you, or otherwise perform our contract with you.

  2. Detect security incidents, protect against malicious, deceptive, fraudulent, or illegal activity, or prosecute those responsible for such activities.

  3. Debug products to identify and repair errors that impair existing intended functionality.

  4. Exercise free speech, ensure the right of another consumer to exercise their free speech rights, or exercise another right provided for by law.

  5. Comply with the California Electronic Communications Privacy Act (Cal. Penal Code § 1546 seq.).

  6. Engage in public or peer-reviewed scientific, historical, or statistical research in the public interest that adheres to all other applicable ethics and privacy laws, when the information’s deletion may likely render impossible or seriously impair the research’s achievement, if you previously provided informed consent.

  7. Enable solely internal uses that are reasonably aligned with consumer expectations based on your relationship with us.

  8. Comply with a legal obligation.

  9. Make other internal and lawful uses of that information that are compatible with the context in which you provided it.

  10. To ensure your request to opt out of marketing communications.

Exercising Access, Data Portability, Deletion, and Opt-out Rights

Only you or a person registered with the California Secretary of State that you authorize to act on your behalf, may make a verifiable consumer request related to your personal information. You may also make a verifiable consumer request on behalf of your minor child.

You may only make a verifiable consumer request for access or data portability twice within a 12-month period. The verifiable consumer request must:

  • Provide sufficient information that allows us to reasonably verify you are the person or an authorized representative of the person we collected personal information on.

  • Describe your request with sufficient detail that allows us to properly understand, evaluate, and respond to it.

We cannot respond to your request or provide you with personal information if we cannot verify your identity or authority to make the request and confirm the personal information relates to you.  Making a verifiable consumer request does not require you to create an account with us.  We will only use personal information provided in a verifiable consumer request to verify the requestor’s identity or authority to make the request.

Response Timing and Format

We endeavor to respond to a verifiable consumer request within 45 days of its receipt.  If we require more time (up to 90 days), we will inform you of the reason and extension period in writing.  If you have an account with us, we will deliver our written response to that account.  If you do not have an account with us, we will deliver our written response by mail or electronically, at your option.  Any disclosures we provide will only cover the 12-month period preceding the verifiable consumer request’s receipt.  The response we provide will also explain the reasons we cannot comply with a request, if applicable.  For data portability requests, we will select a format to provide your personal information that is readily useable and should allow you to transmit the information from one entity to another entity without hindrance.

We do not charge a fee to process or respond to your verifiable consumer request unless it is excessive, repetitive, or manifestly unfounded.  If we determine that the request warrants a fee, we will tell you why we made that decision and provide you with a cost estimate before completing your request.

Non-Discrimination

We will not discriminate against you for exercising any of your CCPA rights. Unless permitted by the CCPA, we will not:

  • Deny you goods or services.

  • Charge you different prices or rates for goods or services, including through granting discounts or other benefits, or imposing penalties.

  • Provide you a different level or quality of goods or services.

  • Suggest that you may receive a different price or rate for goods or services or a different level or quality of goods or services.

Changes to Our Privacy Notice

We reserve the right to amend this privacy notice at our discretion and at any time. When we make changes to this privacy notice, we will notify you by email or through a notice on our website homepage.

Terms & Conditions:

A) Purisys LLC Reference Standards Terms and Conditions of Sale

1.           Entire Agreement; No Exclusivity; No Further Obligations; Not Returnable.  These Terms and Conditions of Sale (the “Terms”) contain the entire and exclusive agreement between the parties regarding the sale of analytical reference standards (“Product”) by Seller to Buyer to which these Terms relate.  All terms and conditions contained in any prior or subsequent oral or written communication, including, without limitation, terms and conditions contained in Buyer’s purchase order, which are different from or in addition to these Terms are hereby rejected and shall not be binding on Seller, and Seller hereby objects thereto.  Shipment of Product shall constitute an offer to Buyer to sell the Product on these Terms and Buyer’s acceptance of the Product shall constitute its acceptance of these Terms.  No addition to, or alteration or modification of, these Terms shall be valid unless made in a writing signed by an authorized representative of each party.  This sale is non-exclusive and Seller and its affiliates may sell Product to, and Buyer and its affiliates may purchase Product from, any third party without penalty or other obligation to the other party arising from the purchase and sale of Product hereunder.  Other than the purchase and sale of the specific quantities of Product to which these Terms relate, neither party has any obligation to enter into any further supply arrangements or is under any obligation of any kind to buy from or sell to the other any further Product as a consequence of this sale.  Seller analytical reference standards are not returnable with the exception of defective goods or shipments made in error by Seller. We cannot accept returns without prior authorization.

2.           Payment; Taxes.  The price for Product is the price in effect on the date of shipment, unless otherwise agreed by the parties. Payment for the full amount of each invoice shall be made to Seller, addressed as indicated on an invoice, in United States currency.  Payment shall be made within thirty (30) days from the date of invoice. All claims by Buyer shall be made by written notice to Seller in accordance with the provisions of Section 6 of these Terms, and no offset or deduction from any invoice is permitted.  In case of any late payment by Buyer, Buyer shall pay to Seller late payment interest on the amounts due and outstanding one and a half percent (1.5%) from the due date plus 5 days grace period until the sum is fully paid.  Seller’s right to claim any further damages shall remain reserved.  Acceptance by Seller of bank draft, check, or other media of payment is subject to immediate collection of the full face amount thereof.  Payment shall be by bank draft, check or wire transfer with immediately available funds unless arrangements have been made to pay by credit card or other method of payment.  Upon making arrangements, credit cards may be used and shall be subject to a 2% service charge.  In addition to the purchase price, Buyer shall pay Seller any and all governmental taxes, charges or duties of every kind (excluding any tax based upon Seller’s net income or net worth) that Seller may be required to collect or pay upon sale, transfer or shipment of Product (“Tax”).  In the event Seller is required to pay any Tax, Buyer shall reimburse Seller therefore.

3.           Breach; Termination.  If Buyer breaches these Terms or any other contractual obligation, in favor of Seller, (a) Seller may choose to defer any or all further shipments or other performance hereunder and performance of any other contractual obligation in favor of Buyer until Buyer cures its breach, or (b) Seller may immediately terminate the sale to which these Terms relate if Buyer fails to cure such breach within ten (10) days after receipt of written notice from Seller describing such breach.  In the event of a termination, all outstanding payment obligations or other indebtedness of Buyer to Seller shall be due and payable no later than fifteen (15) days after delivery of notice of termination. Acceptance by Seller of less than the full amount due shall not be a waiver of any of Seller’s rights hereunder or applicable law.  Seller shall have no obligation to pay any rebate, issue any credit or make any other payment of any kind to Buyer unless Buyer is fully in compliance with its payment and other obligations hereunder and any other contractual obligation in favor of Seller.  In addition, in the event that Buyer fails to make any payment when due, Seller shall have the right to offset any and all outstanding payment obligations or other indebtedness of Buyer to Seller against any outstanding payment obligations or other indebtedness that Seller or any of its affiliates may owe Buyer.

4.           Force Majeure.  Neither Seller nor Buyer shall be responsible for any delay or failure to make or take delivery of Product due to any cause beyond its reasonable control, including without limitation (a) fire, storm, flood, strike, lockout, accident, act of war or terrorism, riot, civil commotion, embargo, (b) any regulation, law, order or restriction of any governmental department, commission, board, bureau, agency, court, or other similar government instrumentality (“Governmental Authority”), or (c) inability of Seller to obtain any required raw material, energy source, equipment, labor or transportation, at 

prices and on terms Seller reasonably  deems practicable from Seller’s usual sources of supply.  Neither party is subject to any liability to the other for failing to perform during the period such inability exists, other than the obligation to pay money. Prompt written notice of the occurrence of any force majeure shall be given to the other party. Without limiting the generality of the foregoing, under no circumstances shall Seller be obligated to purchase Product from a third party for delivery to Buyer in the event of a force majeure, nor shall Seller be liable for any differential in price if Buyer elects to obtain an alternate supply.  Buyer may, within seven (7) days after receiving notice from the Seller of force majeure, elect to cancel its agreement to purchase any delayed shipment.  Quantities so affected may, at the option of either party, be eliminated from the sale to which these Terms relate without liability, but these Terms shall remain otherwise unaffected.

5.           Compliance with Laws; Responsibility.  Buyer shall comply with all applicable laws, statutes, ordinances and regulations of any Governmental Authority including, without limitation, the Foreign Corrupt Practices Act, (“Applicable Laws”).  In addition, Buyer assumes full liability and responsibility for the transportation, delivery, unloading, discharge, storage, handling and use of the Product, following tender thereof to Buyer.

6.           Warranties; Inspection; Claims.  Limited Warranty and Limitation of Liability.  Each Product is warranted to meet the specifications set forth on its label and in the Certificate of Analysis (COA), as of the time of shipment from Seller. THIS IS THE EXCLUSIVE STATEMENT OF WARRANTY, AND THERE ARE NO OTHER WARRANTIES WHICH EXTEND BEYOND THE DESCRIPTION PROVIDED ABOVE. Any change or modification to a Product subsequent to shipment from Seller, or any failure by the Buyer and/or user to use and/or store any Product not in accordance with the prescribed usage and storage instructions may adversely affect its stated specifications and shall serve to nullify the warranty. Due to the inherent uncertainty and, in general, lack of experimental data, the long-term stability of custom formulations or custom synthetic compounds cannot be guaranteed.

SELLER DOES NOT WARRANT ANY REFERENCE STANDARDS PRODUCTS THAT ARE RESOLD THROUGH AN UNAUTHORIZED DISTRIBUTOR.

EXCEPT AS SPECIFICALLY PROVIDED HEREIN, SELLER MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, EXPRESSED OR IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR ANY OTHER EXPRESS OR IMPLIED WARRANTIES PROVIDED BY APPLICABLE LAW, INCLUDING BUT NOT LIMITED TO THOSE UNDER THE UCC AND THE UN CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS. IN NO EVENT SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, COLLATERAL, OR CONSEQUENTIAL DAMAGES RELATING TO THE PURCHASE AND SUBSEQUENT POSSESSION, HANDLING AND USE OF A SELLER PRODUCT. THE MAXIMUM LIABILITY WHICH SELLER MAY INCUR UNDER THIS WARRANTY CLAUSE SHALL BE EQUAL TO THE PURCHASE PRICE PAID TO SELLER FOR THE SPECIFIC PRODUCT FOR WHICH A WARRANTY CLAIM IS MADE BY THE PURCHASER.

BUYER SHALL INSPECT THE PRODUCT SUPPLIED HEREUNDER IMMEDIATELY AFTER DELIVERY.  EXCEPT WITH RESPECT TO CLAIMS FOR SHORTAGES (WHICH MUST BE RECEIVED BY SELLER IN WRITING WITHIN FORTY-EIGHT (48) HOURS AFTER DELIVERY OF PRODUCT), BUYER'S FAILURE TO GIVE NOTICE TO SELLER OF ANY CLAIM WITHIN THIRTY (30) DAYS AFTER THE DATE OF DELIVERY SHALL CONSTITUTE UNQUALIFIED ACCEPTANCE OF THE PRODUCT AND A WAIVER BY BUYER OF ALL CLAIMS WITH RESPECT THERETO.  IF REQUESTED BY SELLER, BUYER SHALL RETURN THE NONCONFORMING PRODUCT TO SELLER STRICTLY IN ACCORDANCE WITH SELLER’S WRITTEN INSTRUCTIONS CONCERNING SHIPPING, HANDLING, INSURANCE, AND OTHER MATTERS AS TO WHICH SELLER ISSUES INSTRUCTIONS.  FAILURE TO COMPLY WITH THESE PROVISIONS SHALL INVALIDATE ANY CLAIM BY BUYER FOR BREACH OF WARRANTY.

7.           Intellectual Property.  All rights to and interests in Seller’s and its affiliates’ inventions, formulas, discoveries, methods, practices, procedures, engineering, designs, manufacturing information and other intellectual property including any improvements thereto (collectively, “IP”) will remain solely with Seller and its affiliates and no right or interest therein is transferred or granted to Buyer.  Buyer agrees that it does not acquire a license or any other right to Seller’s or its affiliate’s IP.  Without limiting the foregoing, Seller and its affiliates expressly reserve all patent rights related to the Product, including but not limited to therapeutic uses in end products, drug delivery technology, or otherwise.

8.           Limitation of Liability.  SELLER'S TOTAL LIABILITY AND BUYER'S EXCLUSIVE REMEDY FOR ANY CAUSE OF ACTION ASSOCIATED WITH THE SALE TO WHICH THESE TERMS RELATE, WHETHER BASED IN TORT, CONTRACT, STRICT LIABILITY OR ANY OTHER LEGAL THEORY IS EXPRESSLY LIMITED TO REPLACEMENT OF NONCONFORMING PRODUCT OR PAYMENT IN AN AMOUNT NOT TO EXCEED 200% OF THE PURCHASE PRICE OF THE PRODUCT FOR WHICH DAMAGES ARE CLAIMED, AT SELLER'S OPTION.  IN NO EVENT SHALL SELLER BE LIABLE FOR ANY OTHER DAMAGES INCLUDING, WITHOUT LIMITATION, INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES EVEN IF SELLER HAS BEEN ADVISED OF THE POSSIBILITY THEREOF.  SUCH EXCLUDED INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES INCLUDE LOSS OF PROFITS, LOSS OF PRODUCTION, LOSS OF USE, OR ANY OTHER INDIRECT DAMAGE OR LOSS OF ANY KIND OR CHARACTER TO BUYER, ITS CUSTOMERS, OR OTHER PERSONS OR ENTITIES.

9.           Indemnity.  Buyer shall defend, indemnify and hold harmless Seller from and against all claims, demands, causes of action, damages, losses, liabilities, costs, expenses (including reasonable attorneys’ fees), penalties, and judgments (each, a “Claim”) arising out of or related to (i) Buyer’s (or others’) processing, transportation, delivery, unloading, discharge, storage, handling, sale or use of any Product (or any product containing Product) following delivery to Buyer or (ii) Buyer’s violation of any Applicable Laws.

10.         Quota; Interruption; Allocation.  If applicable, Buyer has submitted to Seller a certificate of available Procurement Quota or a completed DEA (Drug Enforcement Administration) Form 222 for Product.  Buyer acknowledges that the production and supply of Product is contingent upon DEA rules, orders, or directives, related to manufacturing quota for Product, that may limit or restrict the manufacture or supply of Product by Seller to its customers (“Manufacturing Quota Restrictions”).  If Seller believes that a Manufacturing Quota Restriction is reasonably likely to result in a material reduction, suspension or delay in the delivery of Product to Buyer, Seller shall promptly consult with Buyer.  Buyer acknowledges that the day to day manufacturing operation of the facilities used by Seller to produce Product may be subject to interruptions, fluctuations, slow-downs, suspensions and reductions, due to a variety of reasons in the ordinary course of business or otherwise (“Manufacturing Interruptions”).  Whether due to a Manufacturing Quota Restriction or a Manufacturing Interruption, Seller may allocate its available supply of Product among its customers, itself, and its affiliates on such basis as Seller deems fair and reasonable if Seller is unable, for any reason, to supply the quantities of Product contemplated by the sale of Product to which these Terms relate.  Seller shall not be held liable to Buyer for any loss, cost, damage, expense, inconvenience or any other consequences that may arise from any Manufacturing Interruption or Manufacturing Quota Restriction.

11.         Credit.  If at any time the financial responsibility of Buyer, or the credit risk involved, shall become unsatisfactory to Seller, Seller may require cash or satisfactory security prior to subsequent shipments or deliveries hereunder.  The election by Seller to require such cash or security shall not affect the obligation of Buyer to take and pay for Product.  Buyer agrees to pay all costs and expenses, including reasonable attorneys’ fees, incurred by Seller in the collection of any sum payable by Buyer to Seller.

12.         Title; Risk of Loss.  Title and risk of loss shall pass to Buyer upon delivery to Buyer’s designated facility (FOB Destination - Freight Prepaid and Added). Seller reserves ownership until acceptance by Buyer of delivery of Product.

13.         Assignment; Survival.  Buyer shall not assign all or any portion of these Terms without Seller’s prior written consent.  These Terms shall bind and inure to the benefit of the successors and permitted assigns of the respective parties.  In order that the parties may fully exercise their rights and perform their obligations hereunder, any provisions that are required to ensure such exercise or performance (including any obligation accrued as of the termination date) shall survive the termination of these Terms.

14.         Governing Law; Dispute Resolution.  These Terms shall be governed by the laws of the State of Delaware, USA, excluding its conflict of laws principles.  The United Nations Convention on Contracts for the International Sale of Goods and the United Nations Convention on the Limitation Period in the International Sale of Goods, as amended, shall not apply to these Terms. Any controversy or claim arising out of or relating to this sale, including any such controversy or claim relating to Product involving any affiliate of a party (a “Dispute”), shall first be submitted to mediation to be held in Wilmington, Delaware, according to the Commercial Mediation Procedures of the American Arbitration Association (“AAA”) (see www.adr.org).  Such mediation shall be attended on behalf of each party for at least one session by a senior business person with authority to resolve the Dispute.  Any period of limitations that would otherwise expire between the initiation of a mediation and its conclusion shall be extended until 20 days after the conclusion of the mediation. Any Dispute that cannot be resolved by mediation within 45 days of notice by one party to the other of the existence of a Dispute (unless the parties agree to extend that period) shall be resolved by binding, non-appealable arbitration before a single arbitrator appointed in accordance with the Commercial Arbitration Rules of the AAA (“AAA Rules”; see www.adr.org  and the Federal Arbitration Act, 9 U.S.C. §1 et seq.. The arbitration shall be conducted in Wilmington, Delaware.  The arbitrator shall decide the Dispute in accordance with the substantive law of Delaware. The arbitrator may not award special, indirect, incidental, punitive or consequential damages (including, but not limited to loss of profits or loss of opportunity), nor may the arbitrator apply any multiplier to any award of actual damages, except as may be required by statute. The award of the arbitrator shall be issued within 30 days after completion of the arbitration hearing, and such hearing shall, unless otherwise agreed to by both parties, be completed within 30 days after commencement.  All discovery disputes shall be heard by the arbitrator, who may limit discovery in order to permit a timely commencement of the hearing. The arbitrator’s award may be entered in any court of competent jurisdiction.

15.         Miscellaneous.  Failure of either party to exercise any right it has hereunder on one occasion shall not operate or be construed as a waiver by such party of its right to exercise the same right on another occasion or any other rights it has.  Any amendment or supplement to, or waiver of, any provision of these Terms must be in a writing signed by the party against whom enforcement is sought. If any provision hereunder shall be adjudicated to be invalid or unenforceable, it is the parties’ intent that the remaining provisions of these Terms will remain in full force and effect, and the affected provision or portion thereof will be deemed modified so that it is enforceable to the maximum extent permissible to reflect as closely as possible the intentions of the parties as evidenced from the provisions herein.  The section headings used herein are intended for convenience of reference only and shall not be considered in interpreting these Terms.  Nothing herein shall be construed as creating any direct or beneficial right in or on behalf of any third party.