ENC® Terms & Conditions of Sales

1. ENTIRE AGREEMENT
As used herein, “Agreement” collectively means:
1. These Terms and Conditions of Sale (these “Terms” );
2. The ENC Order Agreement attached hereto (the “Order” );
3. The pre-shipper documents and other specifications and drawings for the vehicles set forth in the Order (the “Specifications” ); and
4. All addenda, schedules, exhibits, and other documents attached to these Terms and the Order.
All addenda, schedules, exhibits, and other documents attached to these Terms are incorporated herein by reference.
In the event of any conflict between the terms or provisions of the documents comprising this Agreement, the following order of precedence shall govern and control:
1. First, the Order;
2. Second, these Terms;
3. Third, the Specifications; and
4. Fourth, all other addenda, exhibits, and schedules to these Terms.

2. PRICE; TAXES; PAYMENT
Buyer shall purchase the vehicles from ENC at the prices set forth in the Order (the “Purchase Price” ).
The Purchase Price is exclusive of, and Buyer is solely responsible for, and shall pay, all sales, use, value-added, excise, and other taxes and all tariffs, duties, or other charges (collectively, “Taxes” ) with respect to, or measured by, the manufacture, sale, shipment, use, or Purchase Price of the vehicles; provided, however, Buyer shall not be responsible for any taxes imposed on, or with respect to, ENC’s income, revenues, or gross receipts.
If ENC is required by any governmental authority or agency to collect and pay any Taxes on Buyer’s behalf, ENC may invoice Buyer for such amounts, which Buyer shall pay upon receipt of ENC’s invoice.
Buyer shall pay the Purchase Price for the vehicles in accordance with the payment schedule set forth in the Order.
In the event that Buyer fails to pay any amount when due under this Agreement, such past-due amount shall accrue interest from the date due until paid in full at a rate equal to the lesser of:
(a) one and one-half percent (1.5%) per month (18% per annum); or
(b) the maximum rate permitted by applicable law,
compounded monthly.
The payment of interest on past-due amounts shall not constitute a waiver of ENC’s right to exercise any other remedy available under this Agreement or at law or in equity, including, without limitation, the right to terminate this Agreement for a Payment Failure pursuant to Section 13.

3. DELIVERY; DELIVERY SCHEDULE; METHOD OF DELIVERY
ENC shall deliver the vehicles to the location designated in the Order (the “Delivery Location” ) in accordance with the delivery schedule stated in the Order (the “Delivery Schedule” ); provided, however, no delay in the delivery of any vehicle shall act to relieve Buyer of its obligations under this Agreement, including accepting delivery of any remaining vehicles.
Unless otherwise agreed to by the parties in writing, each vehicle shall be driven to the Delivery Location by a third-party driving service selected by ENC (the “Driving Service” ).
ENC shall be responsible for ensuring that the Driving Service possesses all licenses, qualifications, and insurance necessary to perform such driving services in a safe and professional manner.
Vehicles driven to the Delivery Location by the Driving Service shall bear dealer or temporary tags properly affixed thereto.
The Purchase Price includes all costs and expenses of the Driving Service.
As between ENC and Buyer, ENC shall be responsible for all loss or damage to the vehicles during transportation by the Driving Service.
Upon arrival of a vehicle at the Delivery Location, Buyer shall execute the Driving Service’s standard bill of lading or other receipt acknowledging that delivery of such vehicle has been completed, and all risk of loss or damage to such vehicle shall automatically transfer to Buyer at that time.
Buyer shall provide ENC with copies of all bills of lading and other delivery receipts executed by Buyer.

4. INSPECTION AND ACCEPTANCE
(a) Inspection and Acceptance by Buyer
Buyer shall inspect each vehicle no later than ten (10) days after its arrival at the Delivery Location (the “Inspection Period” ) and shall either accept or, only if such vehicle is a Nonconforming Vehicle , reject the vehicle.
As used herein, a “Nonconforming Vehicle” means only a vehicle that:
1. Does not conform to the Specifications;
2. Has been damaged during transportation to the Delivery Location; or
3. Is subject to a defect or nonconformity covered by the warranties described in these Terms.
Buyer will be deemed to have accepted each vehicle unless, prior to the expiration of the applicable Inspection Period, Buyer provides ENC with written notice that the vehicle is a Nonconforming Vehicle, stating with reasonable specificity all damage, defects, or nonconformities that Buyer contends affect such vehicle, and furnishing such other written evidence or documentation as may be reasonably requested by ENC (including providing access to the vehicle for inspection by ENC).
If Buyer timely notifies ENC in accordance with this Section 4, ENC shall determine whether the vehicle in question is subject to any damage, defects, or nonconformities that would make it a Nonconforming Vehicle.
If ENC determines that such vehicle is a Nonconforming Vehicle, ENC shall, at its option:
1. Repair such vehicle in order to make it a conforming vehicle;
2. Replace such vehicle with a conforming vehicle; or
3. Refund to Buyer the Purchase Price paid by Buyer for such Nonconforming Vehicle, following return of such vehicle to ENC.
Provided, however, Buyer may not return any vehicle to ENC without first receiving a Return Vehicle Authorization ( “RVA” ) from ENC.
If ENC exercises its option to replace a Nonconforming Vehicle, ENC shall have the replacement vehicle delivered to the Delivery Location, at ENC’s expense and risk of loss, in accordance with Section 4(b) of these Terms.
THE REMEDIES SET FORTH IN THIS SECTION 4(a) ARE BUYER’S EXCLUSIVE REMEDY FOR THE DELIVERY OF NONCONFORMING VEHICLES, SUBJECT TO BUYER’S WARRANTY RIGHTS UNDER SECTION 8(b) OF THESE TERMS.

(b) Governmental Agency’s Inspection
The parties acknowledge that each vehicle may be required to pass an inspection by the governmental or regulatory agency governing transportation-related affairs in the state of Buyer’s location, such as the Department of Transportation (the “DOT” and its inspection, the “DOT Inspection” ).
Buyer shall be responsible for coordinating all aspects of the DOT Inspection for each vehicle with the local DOT, at Buyer’s sole cost and expense.
Buyer shall endeavor to have each vehicle undergo the DOT Inspection as soon as possible after taking possession of the vehicle at the Delivery Location, but in no event more than thirty (30) days after delivery of the vehicle to the Delivery Location, unless the delay in the DOT Inspection was caused by the local DOT.
ENC shall provide reasonable cooperation and assistance to Buyer in connection with each DOT Inspection.

(c) Limited Right of Return
Except as expressly authorized herein, Buyer shall have no right to return to ENC any vehicle delivered to Buyer pursuant to this Agreement.

5. RISK OF LOSS; TRANSFER OF TITLE
(a) Risk of Loss or Damage
Buyer shall bear and be liable for all risk of loss or damage with respect to a vehicle at such time as the vehicle is delivered to Buyer by the Driving Service.
Delivery with respect to a vehicle is complete when it arrives at the Delivery Location.
Buyer shall insure each vehicle in its possession in accordance with the minimum insurance requirements stated in attached Addendum A .
Buyer hereby covenants and agrees that it shall not commence using or operating a vehicle for commercial purposes until:
• title to the vehicle has passed to Buyer in accordance with Section 5(b); and
• Buyer has fully registered and plated the vehicle with the appropriate federal and state governmental authorities in accordance with applicable law.

(b) Transfer of Title; Issuance of Manufacturer Statements of Origin; Vehicle Registration
Notwithstanding anything in this Agreement to the contrary, title to and ownership of a vehicle shall not transfer to Buyer until ENC has issued Buyer a Manufacturer Statement of Origin (“MSO”) for such vehicle.
Prior to the issuance of an MSO by ENC, title to and ownership of a vehicle shall remain vested in ENC.
ENC shall issue an MSO to Buyer for a vehicle only after Buyer has fully paid for such vehicle, in collected funds, in accordance with the payment terms stated herein.
Upon receipt of an MSO for a vehicle, Buyer shall promptly register and plate such vehicle, at Buyer’s sole cost and expense, with the appropriate federal and state governmental authorities pursuant to applicable law.

6. VEHICLE MANUALS
Within thirty (30) days after delivery of the first vehicle in the Order to Buyer, ENC will provide Buyer with a hard-copy or electronic copy of ENC’s standard:
• Operator’s Manual;
• Service Manual; and
• Parts Manual,
regarding the use, operation, and routine maintenance of the vehicles (collectively, the “Vehicle Manual” ).
Buyer shall comply with the Vehicle Manual and all reasonable instructions provided by ENC from time to time regarding the use, operation, and maintenance of the vehicles.
Buyer shall use and operate each vehicle in compliance with all applicable laws.

7. REPRESENTATIONS
Each party represents and warrants to the other party that:
1. It is duly organized, validly existing, and in good standing as a corporation or other entity under the laws of its jurisdiction of incorporation or organization.
2. It has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder.
3. The execution of this Agreement by its representative whose signature is set forth at the end hereof has been duly authorized by all necessary corporate action of such party.
4. When executed and delivered by such party, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against it in accordance with its terms and conditions.

8. WARRANTIES
(a) ENC’s Limited Vehicle Warranty. Each vehicle sold by ENC pursuant to this Agreement shall be covered by ENC’s standard Limited Warranty attached hereto (the ” Vehicle Warranty “). The Vehicle Warranty sets forth exclusive remedies for all claims or demands based uponcovered defects with respect to the vehicles and that, upon expiration of the applicable warranty period, all responsibility or liability of ENC with respect to such claims, defects or non-compliance shall terminate. ENC shall not be responsible for any costs or expenses relating to warranty service or repairs performed by a third party unless express written authorization has been granted by ENC prior to the performance of such service or repairs. Buyer acknowledges that the vehicles incorporate parts, components, or other items manufactured by third parties, including, without limitation, motors, transmissions, HVAC systems and axles (collectively, ” Third Party Parts “). With respect to Third Party Parts, ENC’s sole obligation and Buyer’s exclusive remedy shall be to assign to Buyer any assignable original equipment manufacturer’s warranty applicable to the Third Party Parts, and to provide reasonable assistance to Buyer to submit and process a warranty claim with the original equipment manufacturer. THE WARRANTY SET FORTH IN THEWARRANTY SHEET ATTACHED HERETO IS THE SOLE ANDEXCLUSIVE WARRANTY OF ENC REGARDING THEVEHICLES. ENC MAKES NO OTHER REPRESENTATIONS, WARRANTIES OR GUARANTEES, EXPRESS OR IMPLIED, OFANY KIND REGARDING THE VEHICLES OR OTHERWISE, AND HEREBY DISCLAIMS ALL OTHER EXPRESS, IMPLIEDOR STATUTORY REPRESENTATIONS OR WARRANTIESREGARDING THE VEHICLES, INCLUDING, WITHOUTLIMITATION, ANY IMPLIED WARRANTY OFMERCHANTABILITIES, FITNESS FOR A PARTICULARPURPOSE, OR NONINFRINGEMENT OF A THIRD-PARTY’SRIGHTS.
(b) Optional Extended Warranties. If Buyer has purchased one or more third party extended warranties(each an ” Extended Warranty “) through ENC for any vehicle, the terms and conditions of such Extended Warranty(i es) shall be attached or added hereto. ENC shall provide services under each Extended Warranty in accordance with, and subject to, the terms and conditions thereof. If no terms and conditions of Extended Warranty are attached or added hereto, then there shall be no Extended Warranties applicable to the vehicles.

9. INSURANCE
Buyer shall comply with the minimum insurance requirements attached hereto.
10. CONFIDENTIAL INFORMATION
All non-public, confidential or proprietary information of ENC, including, but not limited to, trade secrets, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer information, vendor information, pricing, discounts or rebates (collectively,” Confidential Information “) disclosed or made available by ENC to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as ” confidential ” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed or copied by Buyer unless authorized in advance by ENC in writing. Buyer shall safeguard and protect ENC’s Confidential Information in the same manner that it protects the confidentiality of its similar confidential Information, but in no event shall Buyer exercise less than reasonable care in protecting ENC’s Confidential Information. ENC shall remain the exclusive owner of its Confidential Information. No disclosure of Confidential Information by ENC shall be construed as an assignment, license or other transfer of any Confidential Information by ENC to Buyer or any other person or entity. Upon ENC’s request, Buyer shall promptly return (or at ENC’s direction, destroy and certify to such destruction) all documents and other materials received from ENC that contain, are based on, or incorporate any Confidential Information of ENC. This Section 10 does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. The return or destruction of ENC’s Confidential Information shall not relieve Buyer of its obligations of confidentiality and non-use under this Section10.

11. LIMITATION OF LIABILITY
(a) EXCEPT AS OTHERWISE PROVIDED INSUBSECTION
(c) OF THIS SECTION 11, IN NO EVENTSHALL ENC OR ANY OF ITS AFFILIATES OR SUBSIDIARIESBE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANYCONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, ENHANCED, EXEMPLARY OR PUNITIVE DAMAGES(INCLUDING ANY DAMAGES FOR LOST PROFITS ORREVENUE, LOSS OF USE, DOWN TIME, BUSINESSINTERRUPTION, DIMINUTION IN VALUE, OR LOSS OFBUSINESS OPPORTUNITY), ARISING OUT OF, RELATINGTO, OR IN CONNECTION WITH ANY BREACH OF THISAGREEMENT, REGARDLESS OF (I) WHETHER SUCHDAMAGES WERE FORESEEABLE, (II) WHETHER OR NOTENC WAS ADVISED OF THE POSSIBILITY OF SUCHDAMAGES, AND (III) THE LEGAL OR EQUITABLE THEORY(CONTRACT, TORT OR OTHERWISE) UPON WHICH THECLAIM IS BASED.
(b) EXCEPT AS OTHERWISE PROVIDED INSUBSECTION
(c) OF THIS SECTION 11, IN NO EVENTSHALL ENC’S AGGREGATE LIABILITY ARISING OUT OF ORRELATING TO THIS AGREEMENT AND THE VEHICLES, WHETHER ARISING OUT OF OR RELATING TO BREACH OFCONTRACT, TORT (INCLUDING NEGLIGENCE) OROTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAIDTO ENC PURSUANT TO THIS AGREEMENT FOR THE VEHICLES WHICH ARE THE SUBJECT MATTER OF THECLAIM, OR $2,000,000, WHICHEVER IS LESS.
(c) THE FOREGOING LIMITATIONS AND EXCLUSIONSSHALL APPLY EVEN IF THE REMEDIES AFFORDED TOBUYER UNDER THIS AGREEMENT FAIL OF THEIRESSENTIAL PURPOSE. BUYER ACKNOWLEDGES THAT ENCHAS RELIED ON THE FOREGOING EXCLUSIONS ANDLIMITATIONS AND BUYER EXPRESSLY ACKNOWLEDGESTHAT THIS SECTION 11 IS ESSENTIAL IN THEESTABLISHMENT OF PRICING FOR THE VEHICLES. THELIMITATIONS ON, AND EXCLUSIONS FROM, LIABILITY SETFORTH IN THIS SECTION 11 SHALL APPLY TO THEMAXIMUM EXTENT PERMITTED BY APPLICABLE LAW; PROVIDED, HOWEVE THE LIMITATIONS ON, ANDEXCLUSIONS FROM, LIABILITY SET FORTH IN THISSECTION 11 SHALL NOT APPLY TO THE EXTENT OF ENC’SWILLFUL MISCONDUCT.

12. INTELLECTUAL PROPERTY RIGHTS
(a) ” Intellectual Property Rights ” means all
(i) patents, patent disclosures and inventions (whether patentable or not); (ii) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, together with all of the goodwill associated therewith; (iii) copyrights and copyrightable works(including computer programs), mask works, and rights in data and databases; (iv) trade secrets, as defined by applicable law; (v) confidential information and other know-how and processes; and (vi) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the fore going, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the laws of any jurisdiction throughout any part of the world.
(b) Buyer acknowledges and agrees that:
(i) all Intellectual Property Rights of ENC are and shall remain the sole and exclusive property of Sel1 er; (ii) Buyer shall not acquire any ownership or other interest in any of ENC’s Intellectual Property Rights under this Agreement;(iii) nothing in this Agreement shall constitute or be construed to be a transfer of or license to use, display, copy, modify, adapt or otherwise exploit ENC’s Intellectual Property Rights; (iv) any goodwill derived from the use of ENC’s Intellectual Property Rights inures solely to the benefit of ENC; and (v) Buyer may not use any of ENC’s Intellectual Property Rights unless authorized in writing, solely for the purpose of performing its obligations under this Agreement, and only in accordance with the instructions of ENC.
(c) Buyer agrees and covenants that it shall not:
(i) take any action that may interfere with any of the rights of ENC in or to its Intellectual Property Rights, including ENC’s ownership or exercise thereof; (ii) challenge any right, title or interest of ENC in or to its Intellectual Property Rights; (iii) make any claim or take any action adverse to ENC’s ownership of its Intellectual Property Rights; (iv) apply for any patent anywhere in the world with respect to ENC’s Intellectual Property Rights; and/or(vii) alter, adapt, translate, decompile, disassemble, copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to work around or discover any part of the Confidential Information or Intellectual Property Rights of ENC.

13. TERMINATION
(a) Events of Termination. This Agreement may be terminated as follows:
(i) By ENC, upon written notice to Buyer, if Buyer fails to pay any amount when due under this Agreement and such failure continues uncured for a period often(10) days after the payment due date (a ” Payment Failure “);(ii) By a party if the other party is in material breach of any term, condition or other provision of this Agreement (other than committing a Payment Failure), and either the breach cannot be cured or, if the breach can be cured, it is not cured by the breaching party within thirty (30) days after receipt by the breaching party of a written notice from the other party describing such breach; or(iii) By a party if the other party: (A) ceases conducting business in the normal course; (B) becomes insolvent; (C) makes a general assignment for the benefit of its creditors; (D) suffers or permits the appointment of a receiver or trustee for its business or assets; or (E) avails itself of, or become subject to, any proceeding under any bankruptcy, reorganization, arrangement of debt, insolvency, readjustment of debt or receivership law or statute.
(b) Effect of Termination.
(i) The termination of this Agreement shall not:(A) affect the obligation of a party to pay the other party any amounts due hereunder as of the date of such termination; (B) release a party from any liability or obligation which at the time of such termination shall have already accrued to the other party or which thereafter may accrue in respect of any act or omission occurring prior to such termination. In addition, termination of this Agreement will not constitute a waiver of a party’s rights, remedies or defenses under this Agreement, at law, in equity or otherwise, or affect the survival of any right, duty or obligation of a party which is expressly stated elsewhere in this Agreement to survive such termination or which by its nature should apply beyond such termination.(ii) Any notice of termination under this Agreement automatically operates as a cancellation of any deliveries of vehicles to Buyer that are scheduled to be made subsequent to the effective date of termination. With respect to any vehicles that are still in transit upon termination of this Agreement, ENC may require, in its sole discretion, that all sales and deliveries of such vehicles be made on either a cash-only or certified-check basis.

14. FORCE MAJEURE; ALLOCATION
ENC shall not be liable, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term or condition of this Agreement, when and to the extent such failure or delay is caused by or results from the following force majeure events ( each a ” Force Majeure Event “): acts of God; flood, fire, explosion, earthquake, or natural disaster, epidemic, pandemic, viral or bacterial outbreak; war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riots or other civil unrest; governmental orders, laws, emergency proclamations, or quarantine restrictions; action by any governmental authority or agency; national or regional emergency; shortage or unavailability of materials; shortage or unavailability of labor, strikes, labor stoppages or slowdowns or other industrial disturbances; shortage or unavailability of adequate power or transportation facilities; and/or other events (whether or not foreseeable or similar in type or nature to the previously listed Force Majeure Events) beyond the control of ENC. ENC shall give written notice to Buyer as soon as practicably possible after the commencement of a Force Majeure Event, stating the period of time the occurrence is expected to continue. ENC shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized: provided, however, ENC may allocate its inventory of available vehicles and other goods during any Force Majeure Event in such manner and to such persons or entities as ENC may determine from time to time, in its sole discretion. ENC shall resume performance of its affected obligations as soon as reasonably practicable after the removal of the cause of the Force Majeure Event. If ENC’s failure or delay remains uncured for a period of ninety (90) consecutive days following the commencement of the Force Majeure Event, then Buyer may there after terminate this Agreement upon ten (10) days’ written notice to ENC.

15. GOVERNING LAW
This Agreement, and all the rights and duties of the parties arising out of, in connection with, or relating in any way to the subject matter of this Agreement and the transactions contemplated by it, shall be governed by, construed, and enforced in accordance with the laws of the State of California, without regard to principles of conflict of law. Further, the parties here by exclude 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.

16. ARBITRATION
Any claim or controversy arising out of or relating to this Agreement, or beach thereof, shall be settled by arbitration administered by the American Arbitration Association in Los Angeles, California in accordance with the Commercial Arbitration Rules of the American Arbitration Association. Each party shall initially bear its own costs, fees and expenses of arbitration, except that the prevailing party shall been titled to recover from the other party any and all costs and expenses incurred in connection with the arbitration, including reasonable attorneys’ fees. The arbitrator(s) determination and the basis for that determination shall be in writing and shall include an explanation of the basis for the determination. The determination of the arbitrator(s) shall be final and binding and judgment upon such determination may be entered in any court having competent jurisdiction. The arbitration proceedings and arbitration award shall be maintained by the parties as strictly confidential, except as otherwise required by court order or as is necessary to confirm, vacate, or enforce the award and for disclosure in confidence to the parties’ respective attorneys, tax advisors, or senior management personnel.

17. MISCELLANEOUS PROVISIONS
(a) Independent Contractors. The parties acknowledge and agree that their relationship is that of independent contractors and not partners, joint venturers, or principal and agent. Nothing in this Agreement is intended to make either party a general or special agent, legal representative, subsidiary, joint venturer, partner, employee or servant of the other for any purpose. Except as set forth in this Agreement, neither party is authorized to assume or create any obligation or responsibility, including but not limited to, contractual obligations and obligations based on warranties or guarantees, on behalf of or in the name of the other party
(b) Notices. Any and all notices, demands, and communications provided for herein or made here under shall be given in writing and shall be deemed delivered toa party
(a) when actually delivered to such party; or
(b) three (3) days after being mailed to such party by registered or certified U. S. Mail (postage prepaid, return receipt requested); or
(c) one (1) day after being sent by overnight courier, confirmed by receipt, in each case addressed to such party at the address set forth in the Order (or to such other address for a party as such party may have substituted by notice pursuant to this Section17
(b) ).
(c) Binding Effect. This Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and permitted assigns.
(d) Assignment. Buyer may not assign this Agreement or any of its rights or obligations here under without the prior written consent of ENC, which consent shall not be unreasonably withheld. Any purported assignment or delegation in violation of this Section 17
(d) shall be null and void. No assignment or delegation shall relieve Buyer of any of its obligations hereunder.
(e) Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
(f) Amendments. This Agreement may be altered, amended or supplemented only by an instrument in writing signed by a duly authorized officer or representative of each party.
(g) No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing here in, express or implied, is intended to or shall confer upon any third party any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
(h) Attorneys’ Fees. In the event any action or proceeding is commenced to enforce or interpret the terms and conditions of this Agreement, including the arbitral award, if applicable, the party determined by the applicable court to be in breach of this Agreement shall, upon demand, pay or reimburse the non-breaching party for all reasonable attorneys’ fees and costs and expenses of litigations incurred by the non-breaching party.
(i) Cumulative Remedies. Except for those remedies specified herein to be exclusive, the rights and remedies under this Agreement are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
(j) Equitable Remedies. Buyer acknowledges that a breach or threatened breach by Buyer of this Agreement, including any of its obligations under Section 10 or Section 11 of these Tenns, would give rise to irreparable harm to ENC for which monetary damages would not bean adequate remedy and hereby agrees that in the event of a breach or a threatened breach by Buyer of any such obligations, ENC shall, in addition to any and all other rights and remedies that may be available to it in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction (without any requirement to post bond).
(k) Counterparts. This Agreement may be executed simultaneously in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument, provided that all such counterparts, in the aggregate, shall contain the signatures of all parties hereto. The signature of a party transmitted by facsimile or email shall be considered the original signature of that party.
(l) Further Assurances. Subject to the terms and conditions of this Agreement, each party shall use commercially reasonable efforts to take, or cause to betaken, all action and to do, or cause to be done, all things necessary, proper or advisable to carry out the purpose and intent of this Agreement.
(m) Waiver. No waiver by a party of any provision of this Agreement shall be effective unless explicitly set forth in writing and signed by the party so waiving. No waiver by any party shall operate or be construed as a waiver in respect of any failure, breach or default not expressly identified by such written waiver, whether of asimilar or different character, and whether occurring before or after that waiver. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement shall operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
(n) Section Headings; Interpretation. The section headings in this Agreement are for convenience ofreference only and shall not be deemed to alter orotherwise affect the meaning or interpretation of any provision hereof. This Agreement shall be deemed to have been prepared jointly by the parties and shall not be construed against either party as the drafter hereof.