Terms and Conditions for the Purchase of Goods and Services
Offsetdruckerei Schwarzach Gesellschaft mbH (hereinafter "Principal")

I. Scope of Application

  1. These terms and conditions for the purchase of goods and services ("Terms") are binding in respect of all - also future - contracts concluded between Principal and Contractor in respect of supplies and other services of any kind made and provided to Principal.
  2. For the avoidance of doubt, these Terms are applicable also to future transactions with the Contractor, even if these Terms are not specifically incorporated by reference in a particular case. Any understandings (amendments, modifications) that derogate, by way of exception, from these Terms, are applicable only to the transaction for which Principal has confirmed them in writing.
  3. These Terms are also applicable if Contractor installs or assembles deliverables in accordance with an order.

II. Ordering Process

  1. The date on which Principal places an order, yet in case orders are placed orally or on the phone, the date on which an order is confirmed by Contractor, shall be the order date.
  2. Contractor's quotes (including project costs) are free and should be understood only as an invitation to make an offer for the conclusion of a contract (purchase order). Furthermore, cost estimates, plans, test certificates for technical equipment and any other documents shall be binding and shall not be remunerated, unless explicitly agreed otherwise in writing.
  3. Information the Contractor provides in its offer on the quantity and condition of the goods or details of workmanship shall strictly correspond to the respective inquiry. Prices for goods billed by weight are based on their net weight without packaging and packaging aids (e.g. mesh boxes, pallets, sleeves).
  4. Orders, contracts and supply requests as well as changes and modifications thereof, including amendments of the underlying contract and these Terms and this written form requirement, shall be valid only if made in writing. This shall also apply to any termination. Remote data transmission (email) or fax also meet the written form requirement.
  5. If the order does not include any prices or indicates only reference prices, Contractor shall disclose binding prices in the confirmation of an order, which shall, however, require Principal's written request.
  6. In case of framework agreements, individual orders will be placed with Contractor
  7. Should the confirmation of an order derogate from the contents of the order, this fact must be clearly stated and Principal's written consent obtained. Principal reserves the right to cancel an order if the order was not consensually accepted within 14 days.
  8. Orders must be confirmed two business days after having been placed, at the latest.
  9. If Principal does not receive the confirmation of an order in due time and if Contractor nevertheless already dispatches the goods, a contract will be concluded on the basis of these Terms.
  10. Any documents addressed to Principal, including but not limited to confirmations of orders, dispatch notes, delivery notes and invoices, must contain the order number, the order date, Principal's article number as well as any information Principal is using to identify an order in detail. In case of call orders, Contractor shall also indicate the respective data of the corresponding calls.
  11. In case of intra-Community supplies, item number and net weight must be indicated

III. Prices, Terms of Payment, and Billing

  1. The prices that are indicated in the purchase order or were agreed with Contractor are fixed prices and may not be changed during the agreed deadline for the provision of supplies or in case of call orders. Principal does not acknowledge price variation clauses.
  2. Prices do not include statutory value added tax. Changes in tax laws or any other change of circumstances do not entitle Contractor to increase the prices subsequently, and any fluctuations in exchange rates shall be borne by Contractor. Principal shall be free to make payments at exchange rates applicable on the order date or on the due date. Invoices must be sent by separate post. Invoices on works and services must be accompanied by confirmed pay slips or time sheets.
  3. Where billing according to hourly or daily rates was agreed, travel times and waiting times as well as travel expenses will not be remunerated separately.
  4. Services are billed after complete performance.
  5. Unless otherwise agreed, payments are made within 14 days, subject to a 3% cash discount, or within 30 days net, after receipt of the goods or acceptance of services. If the invoice arrives later than the goods, the deadline for the cash discount shall be calculated from the date on which the invoice arrived, rather than the date of arrival of the goods. Principal may deduct a cash discount even if he applies the payment towards its own claims.
  6. Payment can also be made by set-off against Principal's counterclaims.
  7. Contractor may set off claims against Principal's claims or exercise a retention right only if the counterclaim or the retention right was acknowledged by Principal or finally established by a court.
  8. If the Contractor is a consortium, it shall indicate a bank account into which all payments under the contract will be made with debt-discharging effect.
  9. Principal's VAT number is ATU 36917707. Contractor is liable for the correct application of value added tax provisions applicable to the respective delivery process, and for any subsequent payment of VAT established during tax audits due to incorrect information provided by Contractor.

IV. Delivery

  1. The deadline for the provision of supplies or services commences on the order date. If no deadline is agreed, supplies or services shall either be provided immediately or on a target date that may have been agreed.
  2. Where the provision of supplies or services is expected to be delayed, Contractor shall promptly notify Principal in writing, stating the reasons for and the expected duration of the delay. Section XI. applies accordingly.
  3. Supplies or services may be provided prior to the agreed target date, or partial deliveries may be made, only with Principal's explicit request. Principal may not suffer any disadvantage from such a supply or service; the deadline for payment and the deduction of the cash discount according to Section III. (5) does not start prior to the originally agreed target date.
  4. Principal reserves the right to postpone the target date for supplies and services and must inform the Contractor thereof in writing, via fax or email, not later than two weeks prior to the agreed date.
  5. Costs and risks of transport until delivery at Principal's location or the agreed place of delivery shall be borne by Contractor (INCOTERMS 2010 – "DDP"). The risk of loss of or damage to the goods will transfer to Principal only with the delivery of the goods. C.O.D. consignments will not be accepted. A shipment must be accompanied by a packing slip and a separate delivery note for each order number, indicating order number and article number, and a copy of the drawing attached to the order, if necessary. Each shipment must be accompanied by an original delivery note. The delivery note must be easily visible and put into a pocket on the front of the package. Non-compliance with the requirements of this general SHIPPING AND PACKAGING POLICY can trigger complaints and will adversely affect the supplier's evaluation. Furthermore, extra costs that are thereby incurred will promptly be charged to the supplier. The supplier shall explicitly agree with Principal any on deviations from this SHIPPING AND PACKAGING POLICY. Furthermore, Principal reserves the right to agree on item-specific packaging regulations with the supplier.
  6. The delivered items shall be handed over to Principal's authorized employees on the place of destination. In terms of quantity, items are taken over once they arrive at the place of destination; in terms of quality, takeover takes place not until they are processed or used. Principal's employees are not authorized to confirm the absence of quality defects upon acceptance of the items. However, should an employee nevertheless issue a statement to confirm acceptance of the items in proper condition, such a statement does not confirm the absence of quality defects. Section 377 of the Austrian Commercial Code (UGB) (complaints) does not apply.
  7. Contractor shall take out any necessary and reasonable insurance to cover his potential liability from a business and supply relationship with Principal. Contractor shall appropriately ensure the delivered items against damage of every kind and prove the conclusion of these insurance contracts at Principal's request; if an insured event occurs, Contractor shall assign to Principal the claims under these insurance policies at Principal's request. Unless Contractor produces documentary evidence to prove the conclusion of these insurance policies immediately on demand, Principal may take out any such insurance for the Contractor's account if a one-month deadline passes without Contractor having complied.
  8. Products that are subject to special product legislation must be properly classified, packed and labelled.
  9. When technical equipment and devices are delivered, Principal's operating staff must be trained without extra compensation (e.g. covered by the agreed compensation). In case delivered equipment and devices must be assembled by third parties, the confirmation of an order must be accompanied by the necessary assembly plans in German.
  10. Supplies from other countries must at least contain labels in German; operating rules and instructions must be drawn up in German.
  11. Contractor warrants to observe all foreign trade regulations applicable to a shipment and to independently obtain all necessary export licenses at its own cost and expense.
  12. Furthermore, Contractor shall observe our quality management and environmental protection requirements.

V. Packaging and Shipment

  1. Contractor shall properly pack, label and ship the ordered goods (works) at its cost and risk, regardless of the Incoterm that was agreed; the same applies unconditionally also to dangerous goods. In this context, Community law and Austrian provisions shall be complied with at all times. Should Principal, by way of exception, pay for the cost of packaging according to a written agreement, the cost price thereof shall be calculated and indicated separately in the invoice; in this case as well, Contractor shall assume the risk for the consequences of inappropriate or improper packaging or labelling. Contractor undertakes to hold harmless and indemnify Principal in case Principal is held liable by third parties due to inappropriate or improper packaging, labelling and/or shipment of the goods (works).
  2. Contractor shall be liable for all consequences resulting from any defect or defective condition of packaging. Items damaged in transit will be returned to Contractor on a freight forward basis, and it is up to Contractor to settle the claim with the forwarding agent, if necessary.
  3. Contractor shall either dispose of at its own cost and risk or take back for disposal any deliverables that qualify as "hazardous waste" after they were used for their intended purpose, or any residues of these deliverables. If Contractor breaches this obligation, Principal may procure the disposal of these deliverables by third parties at Contractor's cost and risk.
  4. Goods shipped in pallets must be delivered in Contractor's own EUR pallets (brand-new), which will be exchanged upon handover. The Euro pallet requirement V2 dated 21 August 2012 shall apply.
  5. Wood used for packaging must correspond to EU phytosanitary provisions applicable from time to time.
  6. Principal reserves the right to return packaging to the Contractor; its value will be credited provided that Contractor does not incur any costs due to its return.

VI. Quality Assurance, Sustainability and Environment

  1. To guarantee the contractually agreed quality, Contractor undertakes to carry out all quality control measures in accordance with the specifications. Contractor must at least hold ISO certification or have adopted another comparable quality management system. Contractor shall constantly seek to adopt measures and practices to improve quality and sustainable environmental and energy standards and adopt a quality assurance system intended to identify, correct and prevent defects. To ensure this, Contractor is obliged, inter alia, (i) to carry out regular inspections and tests, (ii) to carry out all quality control measures in accordance with the specifications and, in the absence of specifications, to adopt good commercial practices and legally prescribed practices, and (iii) to keep detailed records of inspections, documents and other data in respect of the production process and prevailing quality control procedures and quality, energy and environmental standards of the end products, and to make these records available to us at our request.
  2. Principal may inspect Contractor's quality, energy and environmental management during business hours with at least five business days' prior notice; that inspection may not delay or prevent the provision of products and/or services under any circumstances. Contractor will keep and make available to us on request detailed inspection records, documents and other data on Contractor's prevailing production processes, quality control procedures and quality standards.
  3. Contractor is obliged to ensure that its sub-suppliers also guarantee compliance with quality assurance measures and will allow Principal to carry out the inspections referred to in paragraph 2 at Principal's request.

VII. Records and Inspections

Contractor keeps precise records in a consistent manner (which can be inspected in an uncomplicated manner) on all matters regarding his obligations according to the agreement based on which the supplies are made, and according to these Terms, in line with generally accepted accounting principles and practices. Contractor will preserve these records for at least seven years from the date of the last payment according to the order to which these records belong. To the extent that these records are supposed to establish whether Contractor meets its obligations according to the relevant purchase order, authorized representatives of Principal shall be granted reasonable access to these records for inspection and examination during regular business hours, with Contractor providing all reasonable support in this context.

VIII. Purchase Commitment and Force Majeure

Principal is released from its purchase commitment in case of force majeure, including effects of war, riots, strikes, lockouts and transport interruptions and malfunctions - unforeseeable for Principal and beyond his control - in the sphere of Principal or its sub-suppliers throughout the duration and within the scope of the impact of these events. In these cases, Contractor is not entitled to any consideration or compensation for damage.

IX. Transfer of Risk

The risk transfers to Principal not until arrival of the deliverables at the receiving location indicated by Principal, fulfilment of all ancillary obligations by Contractor, including but not limited to delivery of all agreed documents and records (e.g. test certificates, operating manuals, instructions for use etc) and delivery to an authorized employee of Principal and proper takeover of the deliverables. The risk in respect of goods that were supplied inclusive of installation or assembly services will transfer with acceptance of the installed and assembled goods.

X. Warranty and Liability

  1. We do not accept disclaimers of any kind, including any limitation of Contractor's liability, including but not limited to claims of warranty or compensation of damage, unless these were explicitly negotiated in detail and recorded in writing. The same applies, for example, to changes of the legal burden of proof, an abbreviation of deadlines etc.
  2. Contractor shall be liable for any fault of its sub-suppliers in the same way as for its own fault. Furthermore, Contractor is liable that supplies from sub-suppliers appointed by him are made at the conditions agreed with Principal.
  3. Contractor will fully hold harmless and indemnify Principal if Principal is held liable by third parties under product liability provisions due to defective materials. Furthermore, Principal is entitled to recover all costs and expenses incurred in this connection, especially due to recall campaigns initiated. To the extent necessary and reasonable, Contractor will be informed of the type and scope of recall campaigns. Principal will inform Contractor without delay if product liability claims are made and will neither make payments nor acknowledge claims without consulting Contractor. This shall not affect any further legal claims vis-à-vis Contractor.
  4. Contractor is obliged to provide full and easily comprehensible instruction manuals in German and in English, to keep all necessary documents, to monitor products closely and, if necessary, to recall defective products at its cost and expense, to surrender the manufacturing documentation without delay, to provide any reasonable assistance, and to name the producers or importer within 14 days.
  5. The deliverables shall have the guaranteed characteristics and provide the agreed services. Workmanship and material must correspond to the state of the art as well as all relevant laws and standards. Deliveries must be free of defects which eliminate or diminish their value or fitness for customary use or use assumed or indicated when the order was placed. Contractor shall notify without delay any deviations or defects that were discovered (even after delivery). That information must be accompanied by all relevant data, including but not limited to the type of defect and the order and product numbers concerned.
  6. If Contractor breaches pertinent applicable laws, including but not limited to applicable foreign trade provisions, Contractor will accept liability and hold harmless and indemnify Principal and/or its subsidiaries for and against any fines, orders, and related costs.
  7. Quality, measurements and weights of supplied materials are determined exclusively according to EN standards. All supplies must fully correspond to the legal accident prevention regulations and safety regulations applicable at the time of supply (CE conformity).
  8. If a deliverable lacks characteristics that were guaranteed or demanded by Principal, if accident prevention regulations or other safety regulations were not complied with or if any other defects are detected in a deliverable, Principal may demand that free corrective action be taken or a new deliverable be supplied, regardless of the severity of a defect. If this is impossible, Principal may cancel the contract or reduce the purchase price. If Principal demands corrective action, Contractor shall remove the defects without delay at its own risk and expense. Contractor shall exchange defective parts of a supply or service against flawless parts at its risk and cost without delay, not later than within ten business days, if requested to do so. If the documentation contains errors, but no defects are detected in products or goods, except for the errors in the documentation, the documentation shall be corrected and delivered within five business days. If Contractor is not able to restore a flawless condition of products or goods within the deadlines mentioned before, paragraph 9 shall apply by analogy. During the entire limitation period, the Contractor shall have to prove that he is not responsible for any damage whatsoever. This shall not affect any claims to compensation of direct or indirect consequential damage of a defective supply. Unconditional acceptance of the goods does not constitute consent to any deviation.
  9. If Contractor does not fulfil its warranty obligation within the deadline described in these Terms or otherwise within a reasonable deadline, Principal may take corrective action or appoint third parties to take corrective action or otherwise procure replacements at Contractor's cost and expense, notwithstanding Principal's other contractual and legal claims. In urgent cases Principal itself may take corrective action and remove the detected defects without setting a deadline at Contractor's cost and expense.
  10. If defects cannot be removed on the spot, transport costs shall be borne by Contractor.
  11. The warranty period is three years from the day of the transfer of risk, unless longer deadlines are prescribed by law. Contractor expressly guarantees an absence of defects during the warranty period.
  12. Contractor waives its right to plead late notice of defects in case of obvious and hidden defects. Payments shall not be deemed a waiver of warranty claims.
  13. The preceding warranty provisions are also applicable if Contractor installs or assembles deliverables in accordance with an order. In this case, the warranty period starts with acceptance of the fully assembled items according to the written acceptance record.
  14. Any order or contractual agreement between the parties does not create an employment contract. For the avoidance of doubt, it is therefore agreed that Contractor is independently responsible for all employer's obligations imposed by the competent authorities in respect of the fulfilment of contractual obligations and in respect of any taxable income of the Contractor. Furthermore, we do not accept any liability for the payment of wages, per diems, income taxes, social security contributions and insurance contributions of the Contractor. Contractor will fully hold harmless and indemnify the Principal in this respect.
  15. A lump-sum amount of €250.00 is charged to Contractor for handling and processing justified complaints acknowledged by Contractor. Complaints are justified if the goods and/or services supplied do not correspond to the purchase order and/or Contractor's acknowledgment of order (which - if different from the order - will be valid only if confirmed by Principal), or to the prescribed specifications.

XI. Default, Withdrawal and Penalty

  1. If there is any delay in the provision of a supply or service or if supplies or services are not in conformity with the terms of the contract, Principal may either withdraw from the contract or insist on performance, either immediately or by setting a deadline of 14 days, notwithstanding any further rights. Principal shall have the same rights if bankruptcy proceedings are opened in respect of Contractor's assets or if an application for bankruptcy was dismissed for lack of assets to cover the costs.
  2. Furthermore, in case of any delay or the provision of supplies or services not in conformity with the terms of the contract, instead of insisting on performance, Principal may demand a penalty equal to not more than 25% of the total order sum (which may not be reduced by court order) or, besides late performance, a penalty equal to 1% of the total order sum for each commenced day by which the deadline for the provision of supplies or services was exceeded, up to a maximum of 25%. Notwithstanding the amount of the order sum, Principal may demand that penalty and recover any damage exceeding that amount, even if Principal accepts the delayed supply or service.
  3. The penalty is also due if Contractor cannot be blamed for the delay in meeting the deadline for supplies or services. However, if the delay is due to force majeure or circumstances within Principal's sphere of risk, Contractor will still be required to pay the penalty, although if Contractor promptly notifies and, upon request, proves such circumstances, the deadline for supplies or services or the target date for the provision of supplies and services will be extended by the period during which these circumstances prevail; except where unreasonable, the agreed penalty will then ensure that the extended deadline or postponed target date is met. Lawful strikes and the fact that materials, parts or finished products are qualified as rejects shall not be events of force majeure.
  4. The above provisions on penalties in case of late performance apply unconditionally also to penalties that were agreed for other reasons (for example to secure special characteristics).
  5. Principal may withdraw from the contract not later than six weeks prior to the agreed target date for the provision of supplies or services (prior to the expiration of the agreed deadline for supplies or services); in this case, Contractor may not recover any damages.

XII. Compliance, Environment and Energy Standards

  1. Contractor undertakes to comply with Principal's code of conduct and environmental and energy standards, as well as any applicable and governing laws and provisions, including but not limited to anti-trust, competition, and anti-corruption laws, at all times during the term hereof. Principal's code of conduct and environmental and energy standards may be inspected at Principal's premises at any time and will be provided upon request.
  2. Neither Contractor nor the individuals acting on its behalf, including but not limited to executives, employees or representatives, will make or offer improper payments or gifts, direct or indirect, to third parties, including to their employees or executives or to officials, representatives of a state agency or authority, or to a political party or their candidates.
  3. Contractor ensures compliance by its own contractors with principles at least comparable to those of Principal's code of conduct and environmental and energy standards. Principal reserves the right to visit Contractor at any time with prior written notice during business hours to inspect compliance with the terms of this agreement and all applicable laws and regulations, including the code of conduct and the environmental and energy standards. In case of non-compliance, Principal reserves the right to terminate this agreement at any time and with immediate effect by written notice to Contractor.

XIII. Property Rights

  1. The agreed price covers the acquisition of industrial property rights, including but not limited to patents, in as far as their acquisition is necessary for the free use of the deliverable, for its renewal, in its entirety or in part, and for its resale, by Principal and its customers.
  2. Any licenses that are necessary shall be procured by Contractor at its own cost and expense. Contractor's inventions during the execution of the contract may be used without charge and restrictions. Contractor shall be liable for the non-infringement of third party property rights. Contractor undertakes to hold harmless and indemnify Principal for any infringement of third-party property rights. Any work results of Contractor that are based on information provided by Principal and/or its subsidiaries, including but not limited to drawings, specifications and data, shall be the property of Principal and/or its subsidiaries.

XIV. Transfer and Assignment

Contractor's supply obligation may not be transferred to third parties without Principal's prior written consent. Contractor may not assign its claim against the Principal arising from the supply or service contract to third parties, without prior written consent. Any transfer or assignment contrary to these terms shall be legally null and void.

XV. Sub-suppliers

  1. Contractor undertakes to inform the Principal in writing of all sub-suppliers supplying or supporting Contractor in connection with the fulfilment of its contractual obligations. Principal shall approve in writing any sub-suppliers not mentioned in the agreement or purchase order, but may not withhold its consent without good cause.
  2. Should Principal give its consent, Contractor shall ensure that the subcontracts provide for Contractor's ability to fulfil its obligations without any restrictions.
  3. Contractor ensures for Principal the right to inspect at any time any work currently performed at the location of the Contractor and/or sub-suppliers and to receive information on the current status of work on site.
  4. Irrespective of the party providing products and/or services, Contractor shall always be the responsible party. At the same time, the fact that Principal has approved a sub-supplier shall not release Contractor from its obligations arising from its agreement with the Principal.

XVI. Access

  1. When entering Principal's premises, Contractor will observe all safety policies adopted by the Principal from time to time as well as any other policies that are in place at that time; copies of these policies will be provided upon request.
  2. Principal shall be allowed to enter Contractor's premises with reasonable prior notice and without incurring extra costs during regular business hours to inspect Contractor's work in connection with the products and/or services.

XVII. Documents Provided and Confidentiality

  1. Any documents such as descriptions, samples, drawings, models, tools, moulds and other items provided to Contractor shall remain Principal's property.
  2. Contractor may not use these documents either for its own purposes, nor make them available to third parties, unless in direct connection with processing an order. Contractor shall automatically return all documents, including any copies thereof, as soon as Contractor no longer needs them to provide the supplies and services, at the latest. Documents shall be returned free of charge.
  3. Contractor shall examine these documents immediately after receipt. Deviations from the above are permitted only with Principal's written consent. Contractor shall notify any technical or other defects inherent in these documents immediately after he has discovered these.
  4. Contractor undertakes to keep confidential any technical and commercial data referring to Principal that are not evident. This applies in particular to the documents referred to in paragraph 1 and to price indications and conditions.
  5. For the purpose of performing its contractual obligations, duties and other tasks, Contractor may only appoint persons who, before the start of their activities, have verifiably and explicitly been obliged to keep data and business secrets confidential.
  6. The obligation to keep all data and business secrets confidential and to transfer confidentiality to others survives unconditionally also after termination of the contractual relationship and includes also any data and business secrets that had been entrusted or otherwise made available to Contractor or to the persons referred to in paragraph 5 on the occasion of future further contract negotiations, even if these negotiations should not result in the conclusion of a contract.
  7. The disclosure of confidential information does not trigger any transfer of know-how and property rights or corresponding license awards. Contractor may not register any property rights in connection with any confidential information received.

XVIII. Moulds and Tools

  1. Any moulds and tools Contractor manufactured or procured on behalf of Principal shall transfer to Principal's sole property once they were manufactured or procured by Contractor. Instead of delivering the tools, Contractor will store them free of charge on behalf of Principal. The compensation for storage is included in the purchase price.
  2. Contractor shall be liable for any type of deterioration and loss of the tools and moulds during storage.
  3. Contractor undertakes to take out insurance at its own cost and expense against theft, fire, loss and any type of deterioration of the tools and moulds, and to provide documentary evidence upon request.
  4. Contractor will maintain the tools and moulds at its own expense.
  5. Contractor may neither pass on the tools and moulds to third parties, nor may Contractor use them for its own or another's purposes.
  6. Principal may make tools and forms available to third parties for the purpose of manufacturing parts, and to repair, renew or change tools and moulds for its own purposes or through third parties.
  7. Principal may remove tools from Contractor's possession, if parts are not properly or timely supplied. Tools may also be removed if Contractor demands higher prices for future orders of parts than those agreed for the initially supplied tools and moulds.

XIX. Minimum Wage

Contractor undertakes to pay the workers employed the determined minimum wage according to the legal requirements and conditions. Contractor's obligation to pay the minimum wage extends also to any staff employed by its (sub)contractors and their contractors. Contractor shall ensure that its (sub)contractors/contractors comply with the minimum wage requirement.

XX. Final Provisions

  1. Place of performance in respect of supplies and payments shall be Principal's domicile.
  2. All disputes arising from a contract - including disputes regarding its existence or non-existence - shall be subject to the exclusive jurisdiction of the courts having subject-matter jurisdiction at the Principal's registered offices.
  3. The contractual relationship shall exclusively be governed by and construed in accordance with the substantive laws of the Republic of Austria, to the exclusion of international private law and the UN Sales Convention.
  4. Should any term hereof be or become invalid or unenforceable, in whole or in part, the validity of the remaining terms shall not be affected. The parties will replace an invalid or unenforceable term by a valid and enforceable term which closest reflects the content and purpose of the invalid or unenforceable term.
  5. Amendments or modifications of these Terms are valid only if agreed in writing.