Buyer Terms and Conditions
These Buyer Terms and Conditions (the “Agreement”), including all schedules and other policies, establish the terms of your use of Terra Point LLC’s (“Terra Point”) sites and services (through www.TerraPoint.com and/or any third party marketplace) (together, the “Marketplace” and/or the “Site”) to bid on and purchase equipment and other items (“Equipment”). The listing of items on the Marketplace is further referred to as an “Advertisement(s)”. Terra Point, LLC is a limited liability company formed under Delaware law and is registered with the Texas Secretary of State. Terra Point is bonded with International Sureties in the Northern and Eastern Districts of Texas (under bond # 016031968) and with the Southern and Western Districts of Texas (under bond # 016032297).The Buyer Terms were last revised on February 9, 2018.
Introduction: About Terra Point
Terra Point is an online platform for sellers to list and advertise their used heavy equipment for sale to a global audience of buyers. The actual contract for sale is directly between the seller and buyer.
Using Terra Point:
Terra Point primarily offers five listing formats:
I. ACCEPTANCE OF TERMS. Before you (“Buyer”) attempt to buy any Equipment from a Seller through the Marketplace, Terra Point requires that you read and accept the Buyer Terms. BY CHECKING ON THE SPACE NEXT TO “ACCEPT TERMS & CONDITIONS”, YOU HEREBY REPRESENT THAT YOU HAVE READ, UNDERSTOOD AND ACCEPTED THE BUYER TERMS AND ALL OTHER TERMS AND CONDITIONS INCORPORATED HEREIN BY REFERENCE AND THAT YOU WILL BE FINANCIALLY RESPONSIBLE FOR YOUR USE OF THE MARKETPLACE AND PURCHASE OF EQUIPMENT. If you choose not to accept the Buyer Terms, you may not bid on or purchase Equipment on Terra Point’s Site. If you have any questions, please contact mailto:firstname.lastname@example.org.
II. TERRA POINT’S SERVICES
A. Terra Point Services. Under the terms of this Agreement, Terra Point offers you the use of the Marketplace, which functions as a platform on which Sellers can list and advertise Equipment for sale to potential Buyers. Terra Point does not represent either party in the execution of such purchase contract. Each party is acting on its own behalf, and Terra Point is not a party to the subsequent purchase contract for Equipment that is entered into between you and the Buyer.
B. Listing Period. Terra Point will determine the period of time that the Reserve listing is published on the website and available for Buyers to submit bids (the “Reserve Period”).
C. Inspection Prior to Bidding. Where a listing permits inspection of the Equipment, you should inspect the Equipment prior to bidding. Items offered for sale via our Marketplace are used and may contain defects. If you bid without having inspected the Equipment, you do so at your own risk. You or your agents are responsible for final verification of the Equipment purchased at the time of removal.
D. Prohibited Activity. Price manipulation of the bidding in any way, including bidding on your own Equipment, to artificially raise the final sales price is STRICTLY PROHIBITED. In the event of price manipulation, Terra Point may, at its discretion, terminate any transactions that you are involved in, fine you for your conduct and ban you from future use of the Marketplace.
E. Binding Offer to Purchase. You acknowledge and agree that bidding on the Marketplace is the legal equivalent of an irrevocable offer to purchase. Unless the transaction is prohibited by law or regulation or the Buyer Terms, once you have placed a bid, you may not retract your bid and are therefore obligated to complete the following transactions:
F. Offers and Countering Bids. For Make Offer listings, you may submit a bid for less than the Asking Price. The Seller may but has no obligation, to accept, decline or counter each bid submitted. In the event that the Seller counters your bid (“Counter Offer”), you have up to two (2) business days to accept. Counter Offers may be automatically rescinded earlier than two (2) business days if the Seller issues another Counter Offer or accepts another bid. However, in no event shall a Counter Offer be rescinded after it is accepted by you.
G. Execution of Purchase Contract; Bill of Sale. Terra Point is the final judge for the determination of winning bids (“Final Sale Price” or “Final Selling Price”).
Terra Point shall not be liable for any errors or omissions relating to such determination, whether by Terra Point, the Seller, or another third party. Once a winning bid for a piece of Equipment is established by Terra Point or a Buyer has agreed to purchase Equipment at the Buy It Now Price, Asking Price, or some other negotiated price through a Counter Offer, a contract to purchase is automatically formed between Seller and Buyer (“Purchase Contract”). All applicable terms and conditions of this Agreement shall apply to the Purchase Contract. Buyer and Seller will be notified of the conclusion of the Purchase Contract by an email generated by Terra point. All applicable terms and conditions of this Agreement shall apply to the Purchase Contract. TERRA POINT DOES NOT GUARANTEE THAT BIDS PLACED ON THE MARKETPLACE WILL BE RECEIVED AND PROCESSED IN A TIMELY MANNER.
H. Bid Cancellations. Terra Point reserves the right to withdraw, postpone, reject or void (collectively referred to as “Cancel”) any and all bids and listings which it believes (i) have not been made in good faith, (ii) are intended to manipulate the listing process or (iii) are prohibited by any applicable law or regulation. Terra Point’s determination to Cancel any bid, listing, or sale may be made in Terra Point’s sole discretion, with or without notice to the parties. Terra Point shall have no liability to you as a result of any such Cancellation.
I. Intellectual Property. The Site and its entire contents, features, and functionality (including but not limited to all information, software, text, displays, photographs, images, video, and audio, and the design, selection, and arrangement thereof), including all intellectual property, are owned by Terra Point, its affiliates, suppliers, licensors, or other providers of such materials and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. Neither these Terms (nor your access to the Site) transfers to you or any third party any rights, title or interest in or to the Site or its contents, features, or functionality, except for the limited access rights expressly set forth in these Terms. Terra Point and its affiliates, suppliers, and licensors reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms. The use of any such property for any other reason, on any other website, or the modification, distribution or republication of this material without the prior written permission from Terra Point is strictly prohibited.
J. California Diesel Vehicle Regulation. This disclosure applies to self-propelled, diesel-fueled vehicles with equal to or greater than twenty-five (25) horsepower: An on-road heavy-duty diesel or alternative-diesel vehicle operated in California may be subject to the California Air Resources Board Regulation to Reduce Particulate Matter and Criteria Pollutant Emissions from In-Use Heavy-Duty Diesel Vehicles. It, therefore, may be subject to exhaust retrofit or accelerated turnover requirements to reduce emissions of air pollutants. Please visit the California Air Resources Board website at http://www.arb.ca.gov/dieseltruck for more information. Furthermore, any off-road diesel vehicle may be subject to the California Air Resources Board In-Use Off-Road Diesel Vehicle Regulation when operated in California. Thus, off-road diesel vehicles may be subject to retrofit or accelerated turnover requirements to reduce emissions of air pollutants. Please visit the California Air Resources Board website at http://www.arb.ca.gov/msprog/ordiesel/ordiesel.htm for more information.
III. FEES AND TAXES
A. Transaction Fee. Buyer agrees to pay a transaction fee (“Transaction Fee”) for each piece of Equipment purchased from a Seller through the Marketplace. Terra Point may decide, in its sole discretion, to change or add fees from time to time, with or without providing notice to you. Other fees that may be payable by you are detailed on the Marketplace.
B. Transaction Fee. Buyer agrees to pay a transaction fee (“Transaction Fee”) for each piece of Equipment purchased from a Seller through the Marketplace. Terra Point may decide, in its sole discretion, to change or add fees from time to time, with or without providing notice to you. Other fees that may be payable by you are detailed on the Marketplace.
C. Payment of Transaction Fee and Purchase Price. Buyer shall submit the Final Selling Price, applicable taxes, vehicle registration taxes, and any and all other fees (including but not limited to Transaction Fees) within three (3) business days after conclusion of the Purchase Contract. Seller may choose to have Terra Point act as a facilitator for the purpose of processing the purchase pf the Equipment and collecting the purchase price, in which case Seller (as mandator) would instruct Terra Point (as a mandatory) so that Terra Point can enforce the Seller’s right to payment vis-a-vis the Buyer. In such case, full payment of the amounts noted above shall be posted to a secure payment account designated by Terra Point. Buyers from the United States and Canada must tender payments via wire transfer (preferred method) or credit card (only applicable where the full payment is USD/CAD 5,000.00 or less). Any foreign currency exchange fees or charges are Buyer’s responsibility. BUYERS FROM OUTSIDE THE UNITED STATES AND CANADA MUST TENDER ALL PAYMENTS VIA WIRE TRANSFER. All amounts that are due and payable must be paid in full prior to releasing any Equipment for pick-up or transport. After receipt of payment and completion of any additional, required documents, you and Seller will be notified that the Equipment is available for pick-up via an email.
D. Taxes and Compliance with Laws. All bids and offers for Equipment must be net of any taxes imposed with respect to the purchase. Buyer shall be responsible for all expenses and taxes incurred in connection with the sale of Equipment or for establishing to Terra Point’s satisfaction, on behalf of the Seller, a valid exemption certificate from such taxes. You acknowledge and agree that Terra Point is providing a service in the calculation, reporting and remittance of sales or use taxes for transactions that arise in connection with your use of the Marketplace, and you ultimately remain liable for any sales or use tax liability. Terra Point calculates and collects sales tax on items sold from the U.S. and Canada based on the state and local tax rates in effect at the location of the items purchased. Terra Point disclaims any and all liability in respect of Seller’s use of the Marketplace and sale of any Equipment resulting in any taxes (whether direct, indirect, local or federal), fines or penalties being levied on you. You are responsible for providing Terra Point with any necessary documentation (e.g., Bills of Lading, export documents, etc.) to support sales tax treatment of the transaction, within ten (10) business days from your date of purchase. If you have an exemption certificate and fail to submit it at the time of sale, you must provide the necessary documentation within ten (10) business days from your date of purchase in order for Terra Point to process a refund. After such time, you will need to submit any refund request directly to the state for which the original sales tax was collected and remitted by Terra Point. In the event your credit card is charged for taxes on a purchase that is subsequently exempted from such tax, the amount shall be refunded to your credit card used in the purchase. It is your responsibility to satisfy yourself of any charges, taxes (whether direct, indirect, local or federal) or related obligations becoming applicable in respect of the transactions that you enter into on the Marketplace. You further acknowledge and undertake to make yourself aware of and comply with all laws that may be applicable to your access and use of the Marketplace, and your execution of a transaction on the Marketplace. Terra Point disclaims any and all liability in respect of your use of the Marketplace and your purchase of any Equipment resulting in any taxes (whether direct, indirect, local or federal), fines or penalties being levied on you. You agree to indemnify Terra Point and its affiliates (and the officers, directors, agents and employees thereof) against any tax, cost or expense in the event that you fail to provide Terra Point with a valid exemption certificate or other supporting documents necessary to calculate tax in relation to a transaction and for any tax, cost or expense arising from your failure to satisfy any laws or regulations in relation to a transaction.
IV. COMPLETION OF TRANSACTIONS
A. Removal of Equipment. As per the Purchase Contract, Seller shall deliver the Equipment from Seller’s premises. You are responsible for removing such Equipment and the cost thereof, including but not limited to the dismantling, loading and shipping of the Equipment, unless otherwise noted in the listing. You shall remove the Equipment from Seller’s premises within eight (8) business days after availability of the Item Release unless otherwise stated in the listing, after which you may be responsible for payment of Storage Fees, and in some cases payment of cost to transport Equipment to an alternate location, as detailed on the Marketplace and incorporated herein by reference. Unless otherwise noted in the listing, standard Storage Fees are 25.00 (USD), or the equivalent thereof, per day, beginning on the 9th day after availability of the Item Release, with the total amount not to exceed 1,500.00 (USD). If you arrange transportation of Equipment with one of Terra Point’s transportation partners on the Marketplace, you acknowledge and agree that Terra Point shall not be liable for any acts or omissions arising from any such transportation arrangements.
B. Export. If you are in the United States and plan to export Equipment outside of the United States (“U.S.”), we, on behalf of Sellers recommend that you engage the services of a U.S. forwarding agent to prepare documents that are required by U.S. Customs Control. You are advised to have all such certificates and permits issued and completed prior to transporting the Equipment. These documents may include a power of attorney that authorizes a forwarding agent to complete the necessary Shipper Export Declaration (SED) and filing the Automated Export System (AES) record. Terra Point can, for a fee, provide equipment invoices or a notarized Bill of Sale to facilitate exports. Terra Point cannot provide Manufacturing Statements of Origin (MSO’s) on used equipment bought on the Marketplace nor can Terra Point be held responsible for lack of manufacturers’ identifying numbers or engine or serial numbers. You are required to provide all relevant shipping information with respect to the transaction to Terra Point by uploading the bill of lading and other requested documents to the Marketplace, in order to prove that you have fulfilled your obligation to remove the Equipment under the Purchase Contract.
C. Risk of Loss. The responsibility and risk of loss for Equipment shall be and remain exclusively with Seller until the earlier of: (i) Buyer’s or transportation provider’s (designated by Buyer) removal of the Equipment from the posted Equipment location or (ii) receipt by Seller of all proceeds from the sale of Equipment. Thereafter, the risk of loss for such Equipment shall be and remain with you or your designated transportation provider. At no point shall risk of loss pass to Terra Point. Unless otherwise dictated in the Agreement, Terra Point has no obligation to maintain insurance coverage pertaining to the Equipment in the possession of Terra Point for purposes hereunder.
D. Default. If you have not made full payment of the Final Selling Price and all other applicable fees to Seller within five (5) business days (which includes a two (2) business day grace period) following the conclusion of a Purchase Contract, you are in default and shall be subject to a Default Fee and Late Payment Fee, as detailed on the Marketplace. Upon Default, you agree that Terra Point may offset any such charges owed by you (including fees assessed in other transactions) from amounts paid by you and invoice you for the remainder, with the invoice to be paid within fifteen (15) days following the date of the invoice.
E. Abandonment of Equipment. Unless otherwise stated in the Equipment listing, failure to claim and remove Equipment within sixty (60) days following the Item Release shall be deemed as evidence of your intention to abandon the Equipment, and Terra Point may take action, on Seller’s behalf, that is adverse to your interest in the Equipment, including, but not limited to, any appropriate steps under the law to dispose of the Equipment.
F. Power of Attorney. You hereby appoint Terra Point and its authorized representatives as your attorney-in-fact for the sole purpose of executing a Bill of Sale, if required, to finalize transfer of ownership to you.
G. Liens and Encumbrances. Terra Point will identify and arrange for the release of liens and encumbrances on the Equipment listed on the Marketplace. If for any reason Terra Point is unable to clear the title to the Equipment, Terra Point’s sole liability, if any, shall be the return of any funds paid by you with respect to such Equipment.
V. TERMINATION. Without limiting any other remedies, Terra Point shall have the right, in its sole discretion, to terminate this Agreement in whole or in part in the event (i) that Terra Point determines that you have violated this Agreement (for example, violation of the prohibition on shill bidding), or (ii) Terra Point is unable to verify your bidder information. If you become dissatisfied with the Marketplace, in any way, your only recourse is to immediately discontinue use of the Marketplace.
VI. AMENDMENT OF BUYER TERMS. Terra Point may modify, add or remove any portion of the Buyer Terms, in whole or in part, from time to time with or without notice to you, by posting such changes on the Marketplace, which you agree is sufficient notice to you. Once posted such changes shall come into full force and effect; however no change in commissions and fees payable to Terra Point in consideration for using the Marketplace shall apply retroactively to Equipment already subject to a listing agreement. In addition to other forms of acceptance, use of the Marketplace constitutes acceptance of these Buyer Terms, including continued use after such changes are posted. It is your responsibility to check periodically for changes to Buyer Terms. Buyer may not amend this Agreement except by a writing signed by both you and Terra Point.
VII. DISCLAIMER; LIMITATION OF LIABILITY; INDEMNIFICATION
A. Disclaimer. TO THE FULLEST EXTENT PERMITTED BY LAW, THE MARKETPLACE PROVIDED BY OR THROUGH TERRA POINT IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. NEITHER SELLER NOR TERRA POINT MAKES ANY WARRANTY THAT THE EQUIPMENT WILL PROPERLY FUNCTION OR OPERATE UPON DELIVERY TO YOU NOR THAT IT WILL CONTINUE TO OPERATE OR FUNCTION FOR ANY PERIOD OF TIME AFTER DELIVERY. TERRA POINT EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY ACTS OR OMISSIONS OF OTHER USERS OF THE MARKETPLACE. IF YOU ARE DISSATISFIED WITH THE MARKETPLACE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE MARKETPLACE.
B. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL TERRA POINT BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, COVER, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, INCLUDING LOSS OF REVENUE, PROFITS, OR BUSINESS, ANY LOSS OF GOODWILL OR REPUTATION, OR THE COSTS OF SUBSTITUTE GOODS OR SERVICES, EVEN IF TERRA POINT OR AN AUTHORIZED REPRESENTATIVE THEREOF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL LIABILITY OF TERRA POINT TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE) ARISING FROM THIS AGREEMENT, THE PURCHASE OR USE OF EQUIPMENT, OR YOUR USE OF THE MARKETPLACE EXCEED, IN THE AGGREGATE, $100.00.
C. Indemnification. You agree to indemnify and hold harmless Terra Point, its affiliated companies and their respective officers, directors, employees, agents, successors and assigns (“Indemnified Parties”) from and against any claim or demand (including reasonable attorneys’ and experts’ fees and costs) made by any third party due to or arising out of your breach of this Agreement, your improper use of the Marketplace, or your violation of any law or the rights of a third party. Terra Point shall promptly notify you in writing of any threatened or actual claim or demand and reasonably cooperate with you to facilitate the settlement or defense thereof. Terra Point, at its option and expense, may participate in litigating the matter. You shall not settle any claim or demand without the written consent of the indemnified parties, with such consent not to be unreasonably withheld or delayed.
D. Release. In the event that you have a dispute with one or more users of Terra Point’s Marketplace, you release Terra Point (and our officers, directors, agents, subsidiaries and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. If you are a California resident, you expressly waive any rights you may have under California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” Having reviewed this provision, the Undersigned nevertheless waives the application of section 1542 of the Civil Code and voluntarily releases the Releasees form all liability for claims arising out of the matters set forth herein. THE UNDERSIGNED UNDERSTANDS AND ACKNOWLEDGES THAT THE SIGNIFICANCE AND CONSEQUENCES OF THIS WAIVER OF SECTION 1542 OF THE CIVIL CODE IS THAT EVEN IF THE UNDERSIGNED SHOULD EVENTUALLY SUFFER DAMAGES ARISING OUT OF THE ABOVE DESCRIBED ACTIVITIES, THE UNDERSIGNED WILL NOT BE PERMITTED TO MAKE ANY CLAIM FOR THOSE DAMAGES.
VIII. LEGAL DISPUTES
A. Governing Law; Jurisdiction and Venue. For disputes between you and Terra Point, this Agreement shall be governed by the laws of the State of Texas without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods and, if you are located in the United States, the Uniform Computer Information Transactions Act, do not apply. Any action against Terra Point arising from or relating to this Agreement or any bid or purchase hereunder shall be commenced in the appropriate Civil District Court of Travis County, Texas or, if applicable, the United States District Court for the Western District of Texas. In the event of any litigation arising from breach of this Agreement, or the services provided under this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred including staff time, court costs, attorneys’ fees, and all other related expenses incurred in such litigation.
B. English Controlling Language. All performance under this Agreement and the resolution of disputes shall be conducted in the English language. If a translation of this Agreement into any other language is required by law, the English version will prevail to the extent that there is any conflict or discrepancy between the English version and any translation. If this Agreement is provided to you in a language other than English, Terra Point does so solely for your convenience.
C. Limitation Period. YOU AGREE THAT ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST BE COMMENCED WITHIN SIX (6) MONTHS AFTER THE DISPUTE AROSE. OTHERWISE, SUCH CLAIM IS PERMANENTLY BARRED.
D. Improperly Filed Legal Disputes. Any claims that are filed or brought contrary to this Agreement are improperly filed and of no force and effect.
IX. NOTICES. Any notice to Terra Point must be in writing and must be sent via email to email@example.com and by registered mail or overnight courier to Terra Point, LLC, 1213 Ranch Road 620 South Suite 105 Lakeway, TX 78734, U.S.A. Any notice to you shall be given by email to the email address provided to you during registration as a Registered User, or as subsequently updated by you, or via posting on the Site, any of which you agree shall be sufficient notice to you. Notice shall be deemed to have been given to you upon twenty-four (24) hours after it has been sent or at the time the information was posted on the Site. If you change your email address, you are responsible for updating your account profile.
X. EXPORT CONTROL. As applicable, all Equipment is subject to U.S., Canadian, and other foreign export control laws and regulations, including but not limited to, the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, trade and economic sanctions maintained by the U.S. Department of Treasury Office of Foreign Assets Control (“OFAC”), and the International Traffic in Arms Regulations (“ITAR”) maintained by the U.S. Department of State. Terra Point will not allow participation from any person nor allow sales or shipments in violation of U.S. export and re-export control laws and regulations, including EAR, OFAC, and ITAR. You represent that you are not restricted from purchasing Equipment by any such laws and that you shall not take any actions in violation of these laws and regulations or, directly or indirectly, sell, export, re-export, transfer, divert, or otherwise dispose of any Equipment to any destination, entity, or person prohibited by these laws and regulations, without obtaining prior authorization from the competent government authorities as required by those laws and regulations.
XI. PRIVACY. Terra Point’s Privacy Statement, located at https://terrapoint.com/terms?section=privacyPolicy, is hereby incorporated by reference. By entering into this Agreement, you are consenting to have your personal data transferred to and processed in the United States.
A. Entire Agreement. This Agreement contains the entire agreement of the parties and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties.
B. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be struck out and the remaining provisions shall continue in full force and effect. The failure by either party to exercise or enforce any rights or provisions of this Agreement shall not constitute a waiver of such right or provision.
C. No Partnership or Joint Venture. No partnership, joint venture, franchisor-franchisee, or agency relationship is intended or created by this Agreement.
D. Assignment. You may not assign or transfer this Agreement or your obligations hereunder in whole or in part, whether by operation of law or otherwise, without Terra Point’s prior written consent. In the event of a permitted transfer, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. To the extent any novation is required for Terra Point to assign this Agreement, you hereby appoint the officers of Terra Point as your attorney-in-fact to execute all documents necessary to effect such novation.
E. Survival. All provisions in this Agreement regarding representations and warranties, indemnification, disclaimers, limitations on liability, and payment obligations for fees incurred prior to the termination date shall survive any termination of this Agreement.
F. Force Majeure. Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, market shortage of materials, fire, earthquake, flood or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to resume performance as soon as reasonably practicable.