Terms & Conditions
Nexelle Technologies and Electric LLC Terms and Conditions – Version 1, September 2025
1. General.
A. These terms and conditions are incorporated into and made a part of the offer and order confirmation by Nexelle Technologies and Electric LLC (hereinafter referred to as Nexelle). as provided to the named buyer (the “Buyer”) for goods and/or services (“Goods and Services”) including, without limitation, any material management, assembly and services, and engineering and design services (whether performed by Nexelle or a subcontractor). These terms and conditions shall be considered accepted if the Buyer of Goods and Services orders from Nexelle and reference is made to them in an offer from Nexelle following a quote provided by the Buyer or in an order confirmation following an order by Buyer (together the “Agreement”). Any terms and conditions or similar instruments of the Buyer are explicitly excluded. The provision of an offer does not constitute an acceptance by Nexelle of any quote or counteroffer of Buyer, and Nexelle hereby rejects any additional, different, or inconsistent terms, conditions or limitations contained in or incorporated by reference in any forms, purchase orders, or other documents of Buyer unless expressly agreed to by Nexelle .
B. If Buyer has submitted or will submit additional and/or different terms and conditions to Nexelle , Nexelle ’s subsequent performance will not be construed as either acceptance of Buyer’s additional and/or different terms and conditions or Buyer’s counteroffer, nor will Nexelle ’s subsequent performance be viewed as a willingness to accept any provision of the Uniform Commercial Code, as adopted by any State or Commonwealth, that is contrary or in addition to any of the terms and conditions hereof.
2. Prices.
A. Unless otherwise agreed to by Nexelle in writing, Nexelle ’s prices for the Goods and Services will be the prices stated on the accompanying offer or order confirmation, except that Nexelle reserves the right to additional compensation in the event of a delay in shipment on the part of the Buyer, in which case any product or labor price escalations will be identified to the Buyer prior to invoice.
B. The prices of any and all Goods and Services shall be confidential, and Buyer shall not disclose such prices to any unrelated third party. Nexelle and Buyer acknowledge and agree that money damages for any and all breaches of Buyer’s obligation not to disclose the price of any Goods or Services is both incalculable and insufficient and that any such breach would irreparably harm Nexelle . Therefore, in the event of an actual or prospective breach of the obligation of Buyer not to disclose the prices of any Goods and Services, Nexelle shall be entitled to a permanent and/or a preliminary injunction to prevent or remedy such breach and shall have the right to specific enforcement of this Agreement against Buyer in addition to any other remedies to which Nexelle may be entitled at law or in equity.
C. In compliance with 42 USC 1320 a-76(b)(3)(a), Nexelle will provide to Buyer specific information of discounts as required by law or requested by the buyer.
3. Limited Warranty for Drawing and Specifications. Unless Nexelle has expressly agreed otherwise in writing, it is Buyer’s responsibility to ensure that the Goods and Services are the ones that it has requested and that all specifications and quantities are correct. Subject to the terms and conditions set forth herein in Sections 9 to 11, Nexelle warrants that, at the time of delivery or performance, the Goods and Services provided to Buyer materially meet drawings and specifications in so far as such are provided to and acknowledged by Nexelle . BESIDES THE AFORESAID EXPRESS LIMITED WARRANTY, Nexelle HEREBY EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, THAT GOODS AND SERVICES CONFORM TO ANY PARTICULAR FUNCTIONALITY REQUIRED BY BUYER AS EXPRESSLY SPECIFIED, SHOWN ON DRAWINGS, OR DESIGNED BY BUYER.
4. Shipment of Goods: Performance of Services.
A. Shipment of all Goods shall be made F.O.B. (a) Nexelle ’s facility, (b) Nexelle ’s supplier’s facility when products are shipped direct from the manufacturer or (c) as otherwise indicated per Nexelle ’s quotation. Buyer shall bear the risk of loss and damage to Goods after delivery to the point of shipment.
B. Any shipping dates for Goods or performance dates for Services given in advance of actual shipment of Goods or performance of Services are Nexelle ’s best estimates for informational purposes only, and deliveries of Goods and performance of Services will be made subject to prior orders on file with Nexelle . Unless otherwise agreed to by Nexelle in writing, Nexelle may, in its sole discretion, use any commercial carriers for shipment of the Goods. Nexelle will use its reasonable efforts to comply with Buyer’s requests as to method and route of transportation, but Nexelle reserves the right to use an alternate method or route of transportation, whether or not at a higher rate.
C. Unless otherwise agreed to by Nexelle in writing, Buyer will pay all insurance costs in connection with delivery of the Goods, if any, and be responsible for filing and pursuing claims with carriers for loss of, or damage to, Goods in transit.
D. Unless otherwise provided for in the Agreement, Buyer is responsible for obtaining at its sole cost and expense any and all necessary licenses and permits for the Goods and Services, including, without limitation, any licenses and permits for transportation.
E. If Buyer is unable to receive the Goods when they are tendered, Buyer will be liable to Nexelle for any losses, damages, or additional expenses incurred or suffered by Nexelle as a result of Buyer’s inability to receive the Goods.
F. Buyer immediately will inspect all Goods upon its receipt of them and will be deemed to accept the Goods upon receipt. Any claims for shortages or discrepancies will be waived by Buyer unless made in writing to Nexelle within five days of receipt of the Goods.
G. For wire and cable, delivery length tolerance is ± 5%. Cutting and Reel charges will apply when other than standard manufacturer lengths are requested and delivery lead-times may be adjusted.
H. To the extent that title to a Good passes to Buyer before full payment and to ensure compliance with all of its obligations hereunder, the Buyer grants to Nexelle a security interest until all amounts due have been paid in full, in each case in good, collected, and indefeasible funds (the "Release Date") in (a) all Goods purchased hereunder; (b) without in any way limiting any restrictions hereinafter, any and all leases, chattel paper, instruments, accounts and security deposits relating in any way to such Goods; and (c) in all proceeds thereof (the "Collateral"). The Buyer acknowledges that the security interest granted under this Section 4.H. is a purchase money security interest under the Uniform Commercial Code as enacted in the State of South Carolina ("UCC"). The Buyer expressly authorizes, ratifies, and confirms past or future filings of one or more UCC financing statements or other documents by Nexelle or its designees to the extent deemed necessary or desirable by Nexelle . Such financing statements or documents may describe the Collateral in the manner in which Nexelle determines best protects Nexelle 's interests in the Collateral and facilitates the future sale of Goods or Services, regardless of whether such description is greater in scope than the Collateral in which the Buyer grants to Nexelle a security interest. Nexelle and its designees are specifically authorized to file financing statements in advance of performance, and the Buyer acknowledges that any such filing is authorized and ratified as of the date of such filing (it being acknowledged and agreed, however, that no such filing expands the scope of any Collateral in which the Buyer grants to Nexelle a security interest). In case Buyer integrates or otherwise utilizes the Goods in connection with the creation or modification of products or improvement of property (collectively, the "New Products"), Nexelle shall retain all available rights in the Goods. Buyer shall at its sole cost ensure that the New Products are jointly owned by Nexelle and Buyer until the Release Date. THE BUYER SHALL NOT SELL, PLEDGE, TRANSFER, OR ASSIGN THE GOODS (FOR SECURITY OR OTHERWISE) UNTIL THE RELEASE DATE. Until the Release Date, Buyer shall carefully store, maintain, and insure the delivered Goods; shall protect such Goods against theft, breakage, fire, water, and other risks, and moreover shall take all reasonable measures in order that Nexelle 's rights and interests in such Goods are neither compromised nor cancelled. Until the Release Date, the Buyer must keep the Goods identifiably separate from other goods not supplied by Nexelle . The Buyer agrees that until the Release Date, Nexelle and its designees have the right, with or without prior notice to the Buyer, to enter upon any of Buyer’s premises to inspect the Collateral. In the event Buyer (a) breaches any representation, warranty, or covenant under the Agreemenet; (b) defaults under any other present or future agreement between the Buyer and Nexelle ; (c) shall be legally dissolved, adjudicated insolvent or bankrupt or cease to pay its debts as they mature, make a general assignment for the benefit of or enter into an arrangement with creditors, (c) shall apply for or consent to the appointment of a receiver, trustee, or liquidator of it or a substantial part of its property, (d) shall take action to dissolve or terminate its legal existence, or authorize or file a voluntary petition in bankruptcy or under any similar law, or consent to such a petition; or (e) suffer such a petition or proceeding of the type described in subsection (d) to be instituted against it which remains undismissed for a period of sixty (60) days; then Nexelle may, in its sole discretion, exercise any and all remedies available under applicable law or in equity, including, without limitation, (i) enter any premises where any Collateral may be located and repossess, disable or take possession of such Collateral (and/or any attached or unattached parts) by self-help, summary proceedings, or otherwise without liability for rent, costs, damages, or otherwise; (ii) use Buyer's premises for storage without rent or liability; (iii) sell, lease, or otherwise dispose of, or realize value from, any or all of the Collateral at private or public sale, in bulk or in parcels, with or without notice except to the extent required by applicable laws, and without having the Collateral present at the place of sale or in Buyer’s possession; and (iv) upon application to a court of competent jurisdiction, seek the immediate appointment of a receiver for all or part of the Collateral, whether such receivership is incidental to a proposed sale of such Collateral, pursuant to the UCC or otherwise. No remedy referred to this Section 4.H. is intended to be exclusive, but all remedies shall be cumulative and in addition to any other remedy referred to above or otherwise available to Nexelle at law or in equity. In all cases, the Buyer will be responsible for Nexelle ’s costs and expenses in exercising its rights.
5. Payment.
A. All payments for Goods and Services must be made in United States currency. Payments for Goods and Services will be made by such means as Nexelle may specify, such as by check or wire transfer, provided that Nexelle may refuse, in its sole discretion, payment by any means, including, without limitation, credit cards.
B. Payment for Goods and Services is due Net 30 days from the date of Nexelle ’s invoice; provided, however, that Nexelle reserves the right to require partial or full payment before order entry, shipment, or delivery of special order product noted, as applicable, on the quotation.
C. Nexelle shall have the right to offset any and all amounts due and owing from Nexelle to Buyer under this Agreement, including, without limitation, any chargebacks or rebates, against any amounts due and owing from Buyer to Nexelle under this Agreement.
D. If Buyer defaults in payment, Buyer will be liable for all collection costs incurred by Nexelle including, but not limited to, attorneys’ and collection agency fees, and all related disbursements.
E. If Buyer does not pay when payment is due, past due amounts are subject to an interest charge of one percent (1%) per month or the maximum percentage rate permitted by law, whichever is less.
F. Credit Cards will be accepted at the time of the order from the Buyer. Credit cards are not eligible for any payment discounts or special terms.
6. Taxes. The purchase price of the Goods and Services does not include transportation taxes and sales, use, excise, import or any similar tax or other governmental charge arising pursuant to or in connection with the sale, purchase, processing, delivery, storage, use, consumption, performance or transportation of the Goods and Services, unless expressly so stated that taxes are included in the quotation. Buyer is responsible for payment of all federal (excluding income taxes) and State taxes that may be applicable to this Agreement and to the sale and/or furnishing of the Goods and Services. Any taxes paid by Nexelle will be added to the invoice for Goods provided and Services rendered.
7. Cancellation. Buyer may cancel its order for Goods and Services, but only if Nexelle agrees to such cancellation in writing and only after Buyer pays reasonable charges for expenses already incurred and commitments made by Nexelle in connection with the placement of such order(s). In addition to any other remedies that Nexelle may have in law, Nexelle may terminate or suspend the Agreement or any part thereof if the Buyer (i) fails to pay any amount by the due date and such failure continues for fourteen (14) days after the Buyer’s receipt of a written notice demanding payment ("Notice of Demand") from Nexelle ; (ii) has not otherwise performed or complied with any of the terms and conditions of the Agreement in whole or in part; and/or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors. If the Agreement is terminated as specified in this Section 7, Nexelle will have an immediate right to re-possession of the Goods held by the Buyer and for which the full purchase price has not been paid as of the date of termination; and all other outstanding amount owed to Nexelle by the Buyer shall be due and payable by the Buyer on demand by Nexelle , per the terms of the Notice of Demand from Nexelle .
8. Return Of Product. All returns will be pursuant to Nexelle ’s instructions. Buyer must contact Nexelle for a Return Material Authorization (RMA) prior to returning any product. All returns must reference an RMA number along with the original invoice number and the reason for the return. Non-warranty returns of normal stock products will be subject to Nexelle ’s return policies in effect at the time, including applicable restocking and transportation charges and other conditions of return. Products must be in their original cartons, unopened, unused or installed, and in resalable condition. Special or made to order Goods will only be returnable subject to manufacturer’s approval and their specific returned material policies.
9. Disclaimer of Warranties. Nexelle HEREBY EXPRESSLY DISCLAIMS AND EXCLUDES ANY AND ALL REPRESENTATIONS AND WARRANTIES, WHETHER WRITTEN OR ORAL, WHETHER EXPRESS OR IMPLIED, WHETHER ARISING BY CONTRACT, AT LAW, IN EQUITY, BY STRICT LIABILITY OR OTHERWISE, WITH RESPECT TO THE GOODS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, ANY WARRANY AGAINST DEFECTS IN DESIGN, MATERIALS AND WORKMANSHIP, ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, ANY WARRANTY OF GOOD TITLE, AND ANY WARRANTY AGAINST INFRINGEMENT OF THIRD PARTY INTELLECTUAL PROPERTY, INCLUDING, WITHOUT LIMITATION, ANY PATENTS, TRADEMARKS, OR COPYRIGHTS. Nexelle shall,
however, if given prompt written notice by Buyer of any claim of alleged patent, trademark or copyright infringement with respect to any Goods use its reasonable efforts to secure for Buyer such indemnity rights as the manufacturer may offer with respect to such Goods. Nexelle warrants all services performed by their service technicians will be done in a workmanlike manner, in accordance with industry standards, in a manner consistent with all user manuals, package inserts and other labeling. All employees and agents of Nexelle will abide by the policies and procedures of Buyer while on its premises.
10. Exclusive Remedy. Buyer’s EXCLUSIVE remedy against Nexelle for any claim for, or arising out of, any Goods tendered to Buyer is the repair or replacement of the Good, or alternatively, at Nexelle ’s sole election, a refund of the purchase price of the Good. Buyer’s EXCLUSIVE remedy against Nexelle arising out of any defect in, or in connection with, any Service provided hereunder is the re-performance of that Service or, at Nexelle ’s sole election, a refund of the purchase price of the Service. These remedies will only be available to Buyer for one year after the Good is tendered or Service is provided to Buyer, and Nexelle ’s obligations under this Section 10 will be void unless Buyer provides Nexelle with notice of the defect in the Good or Service within 30 days of discovery of the defect. Any Good returned to Nexelle for repair, replacement or refund under this Section 10 will be returned by Buyer in accordance with Nexelle ’s return material authorization (RMA) procedures then in effect (see Section 8). Returns for a refund may be subject to restocking fees. The exclusive remedy set forth in this Section 10 does not apply in respect of defects due to or arising from: (i) incorrect or negligent handling, disregard of operating or maintenance instructions, overloading, unsuitable operating conditions, defective building work, lightning, accident, neglect, faulty erection, acts of God, causes beyond Nexelle ’s control, and unauthorized repairs or alterations; (ii) normal wear and tear; and (iii) an actions which are in conflict with Nexelle ’s instructions. Buyer shall be solely liable for any defects and damages described in the preceding sentence.
11. Limitation of Liability. EXCEPT FOR INDEMNIFICATION AS SET FORTH IN SECTION 12, AND NOTWITHSTANDING ANYTHING ELSE CONTAINED HEREIN TO THE CONTRARY, IN NO EVENT WILL: (A) Nexelle BE LIABLE TO BUYER FOR ANY CIRCUMSTANTIAL, CONSEQUENTIAL, CONTINGENT, EXEMPLARY, INCIDENTAL, INDIRECT, LIQUIDATED, MATERIAL, PUNITIVE, SPECIAL, SPECULATIVE OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, SALES OR REVENUES, COST OF REPLACEMENT GOODS, LOST BUSINESS OR BUSINESS INTERRUPTIONS, OR ATTORNEYS FEES OR COURT COSTS ARISING IN ANY MANNER PURSUANT TO OR IN CONNECTION WITH THIS QUOTATION, THE GOODS OR THE SERVICES (EVEN IF Nexelle IS MADE AWARE OF THE POTENTIAL FOR SUCH DAMAGES); AND (B) Nexelle ’S TOTAL LIABILITY RELATED TO ANY GOOD OR SERVICE EXCEED THE PURCHASE PRICE OF SUCH GOOD OR SERVICE.
12. Indemnification and Insurance.
A. Nexelle agrees to indemnify and hold harmless Buyer from and against any and all claims, actions, liabilities, loss or damages, solely caused by Nexelle , for the loss of or damage to any property or for bodily or personal injuries, including death resulting therefrom, sustained by any person or persons, which loss, damage or injuries result from or arise out of Nexelle ’s performance of this agreement.
B. Buyer agrees to indemnify, defend, and hold harmless Nexelle from and against all claims, actions, liabilities, loss or damages, however caused, for loss of or damage to any property or for bodily or personal injuries, including death resulting therefrom, sustained by any person or persons, which loss, damage or injuries result from or arise out Buyer’s performance of this agreement.
C. Buyer agrees to maintain, at its own expense, comprehensive general liability insurance (professional liability) written by a responsible insurance carrier licensed to do business in South Carolina, or “self-insurance” coverage approved by a nationally recognized independent insurance consultant, which shall provide coverage for liability or injury to and/or death of, and/or damage to property of any person or persons with respect to the acts or omission of Buyer with policy limits of not less than One Million Dollars ($1,000,000.00) per occurrence and Five Million Dollars ($5,000,000.00) in the aggregate per year.
D. Nexelle agrees to maintain comprehensive general liability insurance with a company licensed to do business in South Carolina, which shall provide coverage for liability or injury to and/or death of, and/or damage to property of any person or persons with respect to the acts or omission of Nexelle , with policy limits of not less than One Million Dollars ($1,000,000.00) per occurrence and Five Million Dollars ($5,000,000.00) in the aggregate per year. Nexelle agrees to maintain appropriate Workers’ Compensation insurance.
13. Product Suitability. Goods sold by Nexelle are designed to meet stated U.S. safety standards and regulations. Because local safety standards and regulations may vary significantly, Nexelle cannot guarantee that the Goods meet all applicable requirements in each locality. Buyer assumes responsibility for compliance with such safety standards and regulations in the localities in which the Goods will be shipped, sold and used. Before purchase and use of any Goods, Buyer should review the product application, and national and local codes and regulations, and verify that the use and installation of the Goods will comply with them.
14. Ownership. Nexelle shall have and retain all right, title, and interest in and to any and all trade secrets, technical data, sales service and product plans, methodologies, techniques, designs, molds, tools, samples, systems, know-how, expertise and other proprietary information that it may use pursuant to or in connection with any Services, and Buyer shall not obtain a license to, or any other property rights in, any such Nexelle property pursuant to or in connection with this quotation and any Agreement arising therefrom. Any and all intellectual property rights (copyrights, patent rights etc.) that are created hereunder or related hereto, particularly on works, concepts, hardware, and individual software are the exclusive property of Nexelle .
15. Export Controls; Availability; Laws.
A. Certain Goods may be subject to export controls under the laws, regulations and/or directives of the United States and various other countries. Buyer must comply with such laws and regulations and not export, re-export or transfer these Goods to any country to which such export, re- export, or transfer is forbidden or without first obtaining all required authorizations or licenses.
B. Due to government regulations and product availability, not all goods sold by Nexelle may be available in every area.
C. Buyer hereby warrants and represents that it will comply with any and all Laws with respect to the purchase, use, and operation of any and all Goods and Services. For purposes hereof, “Laws” means any international, multinational, national, foreign, federal, state, municipal, local (or other political subdivision) or administrative laws, constitutions, statutes, codes, ordinances, rules, regulations, requirements, standards, policies or guidance having the force of law, treaties, judgments or orders of any kind or nature whatsoever, including, without limitation, any judgment or principle of common law.
16. Interpretation of the Agreement. None of Nexelle ’s or Buyer’s shareholders, directors, officers, partners, managers, employees, agents or representatives have any authority to orally modify or alter in any way the quotation and these Terms and Conditions. The terms, conditions, and limitations set forth herein can be modified, altered, or added to only by a subsequent written instrument signed by an authorized representative of Nexelle or by language included on the face hereof. Regardless of how many times Buyer purchases, or has purchased, goods and services from Nexelle by whatever means, each time Buyer accepts the Agreement, Buyer and Nexelle enter into a separate agreement that will be interpreted without reference to any other agreement between Buyer and Nexelle , or what Buyer may claim to be a course of dealing or course of performance that has arisen between Buyer and Nexelle . No inconsistent usage of trade or industry custom, if any, prior to, contemporaneous with or subsequent to the making of the Agreement will waive, vary, serve to explain or serve to interpret any of the terms, conditions and limitations of the Agreement. The Agreement is the sole and exclusive agreement with respect to the matters discussed herein and the provision of Goods and Services hereunder, (except for any contemporaneous writing agreed to in writing by Nexelle expressly modifying the terms and conditions hereof, which is hereby incorporated herein by reference and made a part hereof) and supersedes all prior and contemporaneous agreements and understandings, negotiations, inducements, representations or conditions, whether oral or written, whether express or implied, with respect to such matters. Failure by Nexelle to enforce any of the terms, conditions and limitations of the Agreement will not constitute a waiver of those terms, conditions and limitations or a waiver of any other terms, conditions or limitations of the Agreement, and the failure of Nexelle to exercise any right (whether provided by the Agreement, law, equity, or otherwise) arising from Buyer’s default under the Agreement will not constitute a waiver of that right or any other rights.
17. Force Majeure. Nexelle will not be liable for its failure to perform under the Agreement (including, without limitation, the failure to deliver any Goods or perform any Services) due to circumstances beyond its control, including, without limitation, fire, flood, earthquake, pestilence or similar catastrophe; war, act of terrorism, or strike; lack or failure of transportation facilities, shortage of suitable parts, materials or labor; any existing or future law, rule, regulation, decree, treaty, proclamation, or order of any governmental agency; inability to secure fuel, materials, supplies, equipment or power at reasonable prices or in sufficient amounts; act of God or the public enemy; or any other event or cause beyond Nexelle ’s reasonable control, including, without limitation, any delay caused by Buyer (each, a “Force Majeure Event”). If any Force Majeure Event prevents Nexelle ’s performance of any of its obligations under the quotation and subsequent Agreement, Nexelle will have the right to (a) change, terminate or cancel the Agreement, or (b) omit during the period of the Force Majeure Event all or any portion of the quantity of the Goods and/or Services deliverable during that period, whereupon the total quantities deliverable under the Agreement will be reduced by the quantity omitted. If Nexelle is unable to supply the total demands for any Goods and/or Services to be delivered under the Agreement due to a Force Majeure Event, Nexelle will have the right to allocate its available supply among its customers in whatever manner Nexelle deems to be fair and equitable. In no event will Nexelle be obligated to purchase materials from other than its regular sources of supply in order to enable it to supply Goods and/or Services to Buyer under the Agreement. No change, cancellation or proration by Nexelle will be deemed to be a breach of any clause, provision, term, condition, or covenant of the Agreement.
18. Choice of Law; Dispute Resolution. The negotiation, execution, performance, termination, interpretation and construction of the Agreement will be governed by the laws of the State of South Carolina, without consideration or applicability of any conflicts of law provisions.
The parties hereto shall attempt to resolve any dispute, controversy, or claim arising under or relating to the Agreement, or to a material breach, including its interpretation, performance, or termination. If the parties are unable to resolve such dispute, either party may refer the dispute to arbitration. The arbitration shall be conducted in accordance with the Commercial Rules of the American Arbitration Association, which shall administer the arbitration and act as appointing authority. The arbitration, including the rendering of the decision and/or award, shall take place in Greenville, South Carolina, and shall be the exclusive forum for resolving the dispute, controversy, or claim. The arbitrator shall make the final determination as to any discovery disputes between the parties. The award or decision of the arbitrator shall state the reasons upon which the award or decision is based, and shall be final and binding upon the parties. The prevailing party shall be entitled to compensation for the expense of the arbitration, including, but not limited to, the award of reasonable attorneys’ fees, at the discretion of the arbitrator. Both parties waive their right to any appeal under any system of law. The award shall be enforceable before any court of competent jurisdiction upon the application to such court by either party. The arbitrator shall have no authority to award any of the types of damages excluded by hereunder, and shall be so instructed by the parties. Notwithstanding anything to the contrary herein, any party may seek injunctive relief against the other party with any court of proper jurisdiction with respect to any and all preliminary injunctive or restraining procedures pertaining to this Contract or the breach of any relevant obligations, including but not limited to Section 2.B. Nothing contained in the Agreement will be construed to limit or waive any rights of Nexelle under applicable United States federal, state, or local laws. Any provision of the Agreement held to be invalid, illegal or unenforceable will be ineffective to the extent of such invalidity, illegality or unenforceability without affecting the validity, legality and enforceability of the remaining provisions hereof.