Terms and Conditions of Purchase

  1. ACCEPTANCE AND ENTIRE AGREEMENT. Phoenix Equipment Corporation (hereinafter referred to as “Phoenix”) shall not be bound by this Purchase Order ("order") until the vendor named on the face hereof ("Seller") shall become bound hereby. Seller shall be bound by this Order, including these Terms and Conditions, when it executes and returns the acknowledgment copy hereof or when it delivers to Phoenix any of the Materials, products or services ("Material") ordered herein and Phoenix accepts such Material. THIS ORDER MAY BE ACCEPTED ONLY IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED HEREIN. ANY ACCEPTANCE BY SELLER WHICH IS QUALIFIED OR WHICH CONTAINS ANY DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS SHALL CONSTITUTE AN ACCEPTANCE, BUT SUCH QUALIFICATION OR DIFFERENT OR ADDITIONAL TERMS OR CONDITIONS SHALL BE INAPPLICABLE AND OF NO EFFECT TO PHOENIX. This Order, including these Terms and Conditions shall constitute the agreement between Phoenix and Seller with respect to Material to be purchased herein and this order specifies the full understanding of the parties hereto and sets forth a complete allocation of the risks between them. No oral statements or representations of any kind by Phoenix shall be deemed to be a part of this Order, and Phoenix shall not be bound by same. There are no agreements, understandings, or covenants between Phoenix and Seller of any kind, expressed or implied, oral or otherwise, which have not been set forth or referenced herein. No modification of, addition to, or waiver of any of the Terms and Conditions herein (whether such modifications are typewritten or otherwise printed,) will be effective (regardless of whether Phoenix shall have accepted any Material ordered herein and delivered by Seller) unless agreed to in writing by a duly authorized officer of Phoenix, Phoenix and Seller agree that no course of prior dealings between the parties or usage of trade inconsistent with the terms and conditions herein shall be relevant to give particular meaning to supplement or qualify any of the Terms and Conditions of this Order. All specifications, data, drawings samples or other descriptions ("Specifications") submitted to Seller with this Order are incorporated herein by reference and made a part hereof.

  2. DELIVERY AND RISK OF LOSS. Immediate shipment is required unless otherwise specified herein. Seller shall bear the risk of loss until the specific quantities of Materials ordered are actually received by Phoenix, whether or not the Materials are held by a third party to be delivered without being moved. Shipments sent under any other delivery Terms are subject to Phoenix's rejection and will be made at Seller's risk. The specific quantity of Material ordered must be delivered in full and may not be altered without Phoenix's prior written consent. Any unauthorized quantity shall be received subject to Phoenix's rejection and returned to Seller at Seller's risk and expense, including Seller's invoice price and delivery charges, both to and from the original destination.

  3. IDENTIFICATION OF SHIPMENTS. All packages, cases, bundles, etc. shall be marked with Phoenix's Order number, which Order number is specified herein.

  4. CANCELLATION. Phoenix reserves the right to cancel the order in its entirety, or to reduce the quantity of Material covered by this Order, with or without cause by hand delivery, mail or facsimile notice of cancellation to Seller specifying the extent of such cancellation. Upon cancellation due to the default of Seller, Phoenix shall be required to pay for such Material previously accepted by Seller and Phoenix shall retain against Seller all remedies provided herein. Upon cancellation for convenience of Phoenix, Phoenix's exclusive liability, if any shall be limited to the following damages: (a) the purchase price for the Material, or (b) the actual cost (exclusive of profits) incurred by Seller and properly attributed by generally accepted accounting principles to the cancelled portion of the Order. Unless otherwise authorized in writing by Phoenix, Seller shall not make commitments for, nor commence manufacture of, Material in advance of the time necessary to permit shipment on delivery dates, and for purposes of computing Seller's actual costs hereunder no amounts shall be included on account of any such advance commitments or manufacture.

  5. CHANGES. Phoenix reserves the right at any time to make changes in any one or more of the following: (a) Specifications where the Material to be furnished is to be specially manufactured or provided for Phoenix; (b) methods of shipment or packing; (c) place of delivery; and (d) time of delivery. If any such change causes an increase or decrease in the cost of or the time required for performance of this Order, an equitable adjustment shall be made in the Order price or delivery schedule or both. Any claim by Seller for adjustment under this clause shall be deemed to be waived unless asserted in writing within ten (10) days from receipt by Seller of the change. Price increases, extensions of time for delivery or deviations from the Specifications submitted by Phoenix shall not be binding on Phoenix unless evidenced by an amended Order which is issued and signed by an officer of Phoenix.

  6. WARRANTIES. Seller warrants that it is has good title, free and clear of any and all liens and encumbrances to the Material to be furnished hereunder; that the Material to be furnished hereunder will be in full conformity with the Specifications submitted by Phoenix and/or submitted to Phoenix by Seller and accepted by Phoenix; will be in full conformity with any sample or model from which material was ordered; will be free from all defects, including defects in Material workmanship or design; will be merchantable; and will be fit and suitable for the intended use and particular purpose. These warranties shall be in addition to all express warranties given by Seller to Phoenix; Seller warrants that the sale or use of Material to be furnished hereunder, alone or in combination, will not infringe upon or contribute to the infringement of any trademark, patent or right thereunder. Seller agrees that the foregoing warranties shall survive delivery and will not be deemed to be waived by reason of acceptance or payment by Phoenix.

  7. DELAYS. It is expressly understood by Seller that Phoenix is relying on timely performance by Seller and will incur obligations to third persons in reliance upon timely performance by Seller and may sustain substantial losses by reason of any failure of same. TIME IS THEREFORE OF THE ESSENCE IN THE FULFILLMENT OF THIS ORDER. If delivery of the Material is not completed within the time period(s) specified on the face hereof, Phoenix reserves the right, without liability, in addition to all of its other rights and remedies at law or in equity including any loss resulting from obligations incurred to third persons in reliance upon Seller's timely performance. Seller shall furnish Phoenix in writing with all available information regarding possible delays in the production or delivery of the Material to be furnished hereunder, including delays or threatened delays caused by actual or potential labor disputes. Any provision herein for delivery of Material by installments shall not be construed as making the obligations of Seller severable.

  8. COMPLIANCE WITH LAWS. Seller represents that it has and will continue during the performance of this Order to comply with the provisions of all federal, state and local laws and regulations, including, but not limited to those relating to labor relations minimum wages, maximum hours of employment and equal employment opportunity now in effect or hereafter enacted, and to refrain from any violation as a result of which liability may accrue to Phoenix and agrees, upon request, to furnish Phoenix a certificate to such effect in such form as Phoenix may from time to time require. Seller warrants that the Material to be furnished hereunder which is subject to the "Occupational Safety and Health Act" of 1970, as amended ("OSHA"), or the rules and regulations thereunder, will conform at time of delivery to Phoenix, to all applicable standards and requirements set forth in said Act or rules and regulations and that the use by Phoenix or its customers of such Material will not cause Phoenix or its customers to be in violation of said Act or the rules and regulations Seller certifies compliance with the "Fair Labor Standards Act" of 1938, as amended, in the performance of this Order.

  9. INDEMNIFICATION. Seller shall defend, indemnify and hold harmless Phoenix, its officers, directors, shareholders, employees, successors, assigns, agents , customers and the users (hereinafter referred to as indemnities) of the Material purchased herein of and from any and all liability, or any loss, damage or expense which may be incurred or suffered by the Indemnities by virtue of any suit or claim of any kind arising out of, connected with or resulting from the purchase, sale, use or consumption of Material (including but not limited to, claims or suits by Phoenix against Seller for breach of one or more of Seller's Warranties herein, negligence, alleged non-compliance of Material with OSHA or any other law or regulation specified in paragraph 8 hereof or infringement of patent or trademark for Material produced and/or sold by Seller in accordance with designs, Materials, Specifications or processes supplied, determined or requested by Seller) alone or in combination with any other goods, Materials, products or services. Seller shall pay any and all judgments rendered against the indemnities as a result of the foregoing and shall pay all costs and expenses incurred by the indemnities in defending any action brought against them as a result thereof, including attorney's fees, court costs and expenses incurred as result of litigation. If requested by the Indemnities, Seller shall at its own cost and expense defend any and all such actions in the event of any claim by Phoenix or third parties that the "goods" furnished hereunder fail to fully conform with the Specifications, the burden shall be on Seller to prove that the Materials do so conform. The indemnifiable losses shall include losses arising from claims against any indemnities brought by subsequent users of the Materials sold hereunder, it being understood that Phoenix is a used equipment reseller and intends to resell the Materials to subsequent users.

  10. INSPECTION. Phoenix and its authorized representatives, shall have the right to inspect, test and approve the Materials to be furnished under this Agreement at any time within thirty (30) days after delivery of same and, if rejected, the Materials shall be returned to Seller at Seller's risk and expense. Seller will bear all costs of replacing or correcting any Materials furnished by Seller which are rejected and returned to Seller. If Seller fails to replace or repair the rejected Materials, then Phoenix may have said Materials replaced or corrected and charge the additional costs incurred to Seller.

  11. PHOENIX'S REMEDIES. The rights and remedies of Phoenix set forth shall be cumulative and in addition to any rights and remedies provided by law or equity, including those contained in the Illinois Uniform Commercial Code. Phoenix's waiver of any right or remedy hereunder shall not affect any rights or remedies subsequently arising under the same or similar provisions herein, nor shall it operate as a waiver of the provision or Condition under which such rights arose. Phoenix shall have the right to reduce and set off against amounts payable hereunder any indebtedness, claim for indemnity made pursuant to paragraph 9 or other claim which Phoenix may have against the Seller, however and whenever arising.

  12. PAYMENT. Phoenix reserves the right to withhold payment until Material has been received and inspected and does not waive the right to deduct the usual cash discount (calculated from the later of the date of receipt of the goods, or the date of the invoice) unless otherwise specified herein. Shipments sent C.O.D. without Phoenix's prior written consent shall not be accepted and shall be made at Seller's risk.

  13. PACKING. No charge shall be made by Seller for packing, crating, boxing, shipping or storage, unless otherwise stated herein. If Phoenix is to be charged for shipping, Material shall be packed in standard commercial containers capable of safe delivery to Phoenix at the lowest lawful transportation and insurance rates. Packing slips must be included in all packages. Original bills of lading must be mailed to Phoenix with invoice on date of shipment.

  14. TAXES AND OTHER CHARGES. All taxes, levies and other charges which Phoenix is responsible to pay shall be stated separately in Seller's invoices.

  15. PROPERTY FURNISHED TO SELLER BY PHOENIX. All equipment and other items furnished to Seller by Phoenix, or specifically paid for by Phoenix for use in the performance of this Order, shall be and remain the property of Phoenix, shall be subject to removal upon Phoenix's instructions, shall be used only in filling Orders from Phoenix, shall be held at Seller's risk and shall be kept insured by Seller at Seller's expense while in its custody or control in an amount equal to the replacement cost thereof, with the insurance proceeds payable to Phoenix. Seller shall keep confidential all Specifications furnished by Phoenix or prepared by Seller specifically in connection with the performance of this Order, and shall not divulge or use such Specifications for the benefit of any other party, except as required for the efficient performance of this Order. Seller shall not make copies or permit copies to be made of Specification without the prior written consent of Phoenix. Upon completion of this Order, Seller shall thereafter make no further use, either directly or indirectly, of any such Specifications or of any information.

  16. ENIVIRONMENTAL MATTERS. Seller warrants and represents that any and all residues, or substances which may be hazardous and/or toxic as determined by any federal state or local enforcement agency, whether now in existence or hereinafter created, shall have been removed and purged from the material to be furnished. Hereunder, prior to shipment or release to Buyer, Seller certifies compliance with all applicable federal, state and local requirements in the removal and purging of all such hazardous and/or toxic substances.

  17. GOVERNING LAW. This Order shall be construed according to the laws of the State of New Jersey. The parties agree that venue for any claim or controversy arising from or relating to this agreement or performance or breach thereof shall be exclusively laid and limited to the Superior Court of the State of New Jersey located in Monmouth County, New Jersey or the Federal Courts located in Trenton, New Jersey. If any action, claim or suit is brought by Phoenix against Seller hereunder and Seller is not otherwise subject to service of process in New Jersey, Seller agrees to and does hereby irrevocably appoint the Secretary of State of the State of New Jersey as Seller's agent for the acceptance of service of process therein, and a copy of such process shall be mailed by Phoenix to Seller at Seller's last known address.

  18. NONASSIGNABILITY. Neither this Order nor any interest hereunder, including monies due or to become due hereunder shall be assignable or transferable by Seller, in whole or in part, without the prior written consent of Phoenix.

  19. SEVERABILITY. The Terms and Conditions set forth on the face hereof shall be deemed severable, and if one or more such Terms and Conditions shall be declared void or unenforceable the remaining Terms and Conditions shall nevertheless continue in effect.

  20. In the event any party institutes legal proceedings to enforce their respective rights arising out of this agreement, the prevailing party shall be entitled to the award of attorney's fees and court costs, plus cost of executing, enforcing and/or collecting any judgment at all trial and appellate levels.

  1. TERMS AND CONDITIONS CONTROL. The following terms and conditions ("Terms and Conditions"), are agreed to by Phoenix Equipment Corporation ("Vendor") and the buyer ("Buyer"). Vendor's acceptance of any order is subject to the Terms and Conditions. No contrary, additional or different terms, provisions or conditions shall be binding on Vendor unless accepted by Vendor in writing.
  2. COMPLETE AGREEMENT. This document represents the full and final agreement of the parties regarding these Terms and Conditions.
  3. MODIFICATION. Buyer acknowledges that these Terms and Conditions will control as to the matters they pertain to and agrees that (i) no modification or waiver of these Terms and Conditions shall be effective unless made by an authorized representative of Vendor in writing addressed to Buyer with specific reference to these Terms and Conditions; (b) no course of action on the part of Vendor shall be deemed to modify these Terms and Conditions; and (c) Vendor's acknowledgment or acceptance of anything in writing from Buyer which is in conflict with these Terms and Conditions (including any purchase orders including different terms or conditions) and any subsequent delivery of Goods shall not constitute a modification or waiver of these Terms and Conditions.
  4. GOODS SOLD. The final invoice shall cover the specific quantities of items listed on the face thereof (the "Goods").
  5. ACCEPTANCE BY BUYER. Buyer shall accept or reject Vendor's sales proposal within ten (10) calendar days from the date thereof. Buyer's acceptance of any proposal, however, shall not result in a contract of sale, and Vendor shall not be bound by any invoice, until such invoice has been approved by a duly authorized representative of Vendor.
  6. TERMS OF PAYMENT. The purchase price for the goods sold shall be as shown on the face of the invoice, F.O.B. Vendor's place of business, unless otherwise agreed to in writing by the parties. The purchase price shall be payable in United States currency in accordance with the terms outlined in the invoice. All invoices rendered in accordance with the agreed terms which are not paid within 30 days shall be subject to interest at the rate of 1.25% per month from the date of the invoice until it is paid. In the event of the suspension of work on the Goods or of delivery as a result of instructions of Buyer, or lack of instructions, the sales price may be increased to cover any extra expense thereby incurred by Vendor.
  7. DELIVERY. Vendor shall deliver all Goods to a carrier for transport to Buyer's place of business or to such other destination as directed in writing. All shipping and transportation costs shall be borne by Buyer. Buyer shall bear all risk of loss with respect to the Goods from the moment the Goods are delivered to the carrier.
    2. Any affirmation of fact or promises made by Vendor shall not be deemed to create an express warranty that the Goods shall conform to such affirmation or promise. Any descriptions, samples and specifications with respect to goods offered for sale herein are not warranted by Vendor to be accurate or complete. If a model or sample was shown to Buyer, such model or sample was used merely to illustrate the general type and quality of goods sold by Vendor and not to represent that the Goods would necessarily conform to such model or sample. Any description is for the sole purpose of identifying the Goods and no affirmation, promise, description, sample or model shall be deemed part of the basis of the bargain. VENDOR STRONGLY RECOMMENDS THAT BUYER CONDUCT AN ON-SITE INSPECTION OF THE GOODS SOLD HEREUNDER. VENDOR SHALL NOT BE RESPONSIBLE FOR THE CONSEQUENCES OF BUYER'S FAILURE TO INSPECT THE GOODS OR FOR ANY INACCURACIES, INSUFFICIENCIES, OR OMISSIONS IN SUCH DESCRIPTIONS, SAMPLES AND/OR SPECIFICATIONS. The employees or representatives of Vendor are not authorized to make any statement or representation as to the quality, character, size, condition, quantity, etc. of the goods offered for sale inconsistent with these Terms and Conditions. Any such statements made will not be binding on Vendor or be grounds for any subsequent claim. Vendor makes no warranty that Buyer holds or will hold the goods free of the claim of any third person that may arise from alleged patent or trademark infringement. Buyer assumes all risk and liability for the results obtained by the use of the Goods in any subsequent manufacturing or fabricating process or use by the Buyer.
    3. Because the end use of the Goods cannot be predetermined, Vendor takes exception to any and all requirements as are or may be set forth by O.S.H.A. with respect to the Goods. In the event that O.S.H.A. requires additions or modifications to the Goods before they may be used, it shall be the obligation of the Buyer, at its expense, to make such additions or modifications.
  9. SALES - USED EQUIPMENT. Buyer understands and acknowledges that the Goods described herein have been used by persons other than Vendor, and that, because the Goods have been used, they may bear or contain hazardous chemicals or other hazardous materials which may be or may become, by chemical reaction or otherwise, directly or indirectly hazardous to life, health, or property (by reason of toxicity, flammability, explosiveness or for other reasons during use, handling, cleaning, reconditioning, disposal or at any other time after the article leaves the possession and control of Vendor). Buyer acknowledges and agrees that Vendor is not responsible for delivering the Goods free of any such hazardous chemicals and materials and Buyer assume full responsibility for same. Buyer hereby discharges and releases Vendor from any and all liability directly or indirectly resulting from the presence of the aforesaid hazardous chemicals or materials, including and not limited to any and all liability directly or indirectly resulting from the failure of Vendor to give more specific warning with respect to individual articles or substances or from the inadequacy of any warning
  10. DISCLAIMER OF LIABILITY. Buyer acknowledges that the Goods sold herein may be dangerous if improperly used. Buyer acknowledges that, in order to insure the safe operation of the Goods, it must contact the original manufacturer to obtain up-to-date installation and operation information. Vendor will not be responsible for any loss or injury resulting from defects or alleged defects in the Goods sold or from the subsequent use of the items.
  11. INDEMNIFICATION. Buyer hereby agrees to defend, indemnify and hold harmless Vendor, its directors, officers, shareholders, employees, agents and representatives, and their collective successors and assigns (collectively, the “Vendor Parties”), from and against any and all liabilities, judgments, claims, settlements, losses, damages, penalties, obligations and expenses, including, without limitation, attorney's and professional fees and expenses, and costs of suit, incurred or suffered by any Vendor Party arising from, by reason of, or in connection with the Goods sold hereunder, including, without limitation, claims related to the Vendor’s disclaimers of liability hereunder including claims related to the matters covered under Sections 9 and 10 of these Terms and Conditions. This indemnification shall survive delivery of the Goods to Buyer and any subsequent sale or other transfer of the Goods to a third party.
  12. INSURANCE AND SAFETY RULES. Buyer shall not move, load, transport or otherwise handle the Goods on Vendor's premises without first having obtained insurance coverage satisfactory to Vendor. Such insurance shall include "Workers Compensation", employer's liability, public liability (bodily injury, property damage and contractual liability) and automobile liability (bodily injury and property damage) insurance. Certificates of insurance evidencing the aforementioned insurance coverages shall be furnished to and shall be approved by Vendor. Buyer shall comply with Vendor's plant safety rules and regulations.
  13. DELAYS/FORCE MAJEURE. Any date of shipment stated on the face hereof is approximate only and is based on Vendor’s production or inventory at the date hereof, and the times stated are subject to Vendor’s receipt of all necessary information from Buyer to permit timely completion or acquisition of the Goods. Vendor's ability to ship the Goods may be affected in case of an act of force majeure, such as an act of God, war, sabotage, accidents, riots, fire, explosion, flood, strike, lockout, injunction, inability to obtain fuel, power, raw materials, labor, containers or transportation facilities, accident, breakage of machinery or apparatus, national defense requirements, or any other cause beyond the control of Vendor. Vendor shall have no liability for the failure to ship or deliver goods in the event of such force majeure and Vendor's obligation to complete the delivery of Goods shall be suspended during such force majeure event and for a reasonable period of time thereafter. Buyer is not relieved from accepting delivery at the agreed price, and according to these Terms and Conditions, when such force majeure event is ended. If delivery is in installments, delay in delivery of any installments shall not relieve Buyer of its obligation to accept remaining deliveries.
  14. BUYERS' CREDIT. In the event Buyer fails to remit payment for any one shipment when same becomes due, Vendor reserves the right, among other remedies, either to terminate the contract or to suspend further deliveries. Should Buyer's financial responsibility become unsatisfactory to Vendor, the determination of such satisfaction to be vested in Vendor’s sole and absolute discretion, cash payments or security satisfactory to Vendor, also in its sole and absolute discretion, may be required by Vendor before future deliveries of Goods are made by Vendor.
  15. INSPECTION. INSPECTION. Buyer has inspected the Goods. and is relying on the results of that inspection in determining whether to purchase the Goods. Buyer further acknowledges that, except as specifically set forth herein, Vendor makes no representation or warranty as to the fitness, use or condition of the Goods.
  16. NONCONFORMITY. If upon receipt of the Goods by Buyer, the same shall not conform to Buyer’s order, Buyer shall notify Vendor in writing within five (5) days from receipt of the Goods and before any part of the Goods had been changed from its original condition. If Buyer does not serve Vendor with such notice within the five (5) day period, or changes the original condition of the Goods, any claim for non-conformity shall be deemed waived and the Goods deemed accepted in their current condition. Such notification shall provide detailed information as to the alleged non-conformity or shortage and Buyer shall hold the Goods for Vendor’s disposition and afford Vendor a reasonable opportunity to inspect the Goods. In no event shall the Goods be returned without Vendor’s consent. Under all circumstances, freight on returned Goods shall be paid by Buyer. Failure to comply with the terms of this paragraph shall constitute a waiver by Buyer of all claims with respect to any non-conformity or shortage of Goods and shall be conclusive evidence that Vendor has satisfactorily performed.
  17. LIMITATION OF DAMAGES. Vendor's liability to Buyer on any claim of any kind for any loss or damage arising out of, connected with, or resulting from the Goods, whether such claim is based upon Vendor’s negligence, performance, or breach hereunder, or upon the manufacture, sale, delivery, non-delivery, operation, or use of the Goods, or otherwise shall be limited to refunding any payments made by Buyer (i) with respect to Goods returned to and accepted by Vendor or (ii) with respect to Goods ordered but not shipped by Vendor upon Vendor’s cancellation of the invoice. In no event shall Vendor be liable for incidental, special, or consequential damages, lost profits, or any expenses of Buyer, including, but not limited to, costs of shipping.
  18. ASSIGNMENT. Buyer may not assign its rights or delegate its performance in whole or in part under any invoice without the prior written consent of Vendor. Any attempt to assign or delegate without Vendor’s written consent shall be void.
  19. GOVERNING LAW. All invoices and these Terms and Conditions shall be construed according to the laws of the State of New Jersey. The parties agree that venue for any claim or controversy arising from or relating to invoices, these Terms and Conditions or the performance or breach thereof shall be exclusively laid and limited to the state and federal courts of New Jersey.
  20. TAXES. All taxes assessed to any order are the responsibility of Buyer, including, but not limited to, local and regional sales taxes and personal property tax, or if applicable, Buyer is to provide Vendor with a valid tax exemption certificate. In the event that Buyer either fails to pay the tax or other charges as agreed above or fails to provide a valid exemption certificate, Buyer agrees to indemnify and hold Vendor harmless from any liability and expense by reason of Buyer's failure. Such indemnification shall include, but not be limited to, attorneys' fees and/or other legal expenses relating to such failure.
  21. REPAIR. Vendor is not obligated to do any repair work or modifications upon the Goods prior to sale or delivery. Any repair work or modifications performed by Vendor on the Goods prior to sale shall be performed as a result of the sole request of Buyer using designs and instructions provided by Buyer. Accordingly, Vendor shall not be liable for any alleged damages caused by or resulting from the repairs or modifications. VENDOR GIVES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE QUALITY, MERCHANTABILITY, WORKMANSHIP OR ANY OTHER MATTER WITH RESPECT TO ANY SUCH REPAIRS OR MODIFICATIONS.
  22. SEVERABILITY. If any provision of the invoice or these Terms and Conditions is determined illegal or unenforceable, it shall not affect the enforceability of any other provision or paragraph of the invoice or these Terms and Conditions.
  23. FEES AND COSTS. In the event any party institutes legal proceedings to enforce its respective rights arising out of the invoice and these Terms and Conditions, the prevailing party shall be entitled to the award of attorneys' fees and court costs, plus cost of executing, enforcing and/or collecting any judgment at all trial and appellate levels.