Seller Terms & Conditions
KEY SELLER POINTS
SteepSteel is a marketplace for the purchase and sale of cell tower leases and cell tower lease related property (collectively “Property”) that enables sellers to list and advertise their items for sale to a global audience of buyers. The actual contract for sale is directly between sellers and buyers. SteepSteel is not a traditional auctioneer, but a web-based marketplace for promoting, listing and auctioning Property for sale.
SteepSteel primarily offers three listing formats:
Featured Event: A service where you authorize SteepSteel to list and advertise Property for sale to the highest bidder.
Daily Marketplace: A service where you authorize SteepSteel to list and advertise Property for sale to the highest bidder who meets or exceeds a reserve price that you set.
Fixed Price Marketplace: A service where you authorize SteepSteel to list and advertise Property for sale at a “Buy It Now” price.
You are responsible for the adhering to the lease terms until Property purchase has been closed by the buyer.
You are responsible for maintaining the Property in the same condition as documented in the listing details and the Inspection Report until it is received by the buyer.
You will need to provide all lien information to clear title and registration documentation and other information necessary to transfer Property.
Commissions and fees for use of SteepSteel’s marketplace to list and advertise Property for sale are payable by you as detailed in SteepSteel’s fee schedule (Schedule 1).
You will need to make Property documents available for shipping by the buyer no later than two (2) business days after the conclusion of the purchase contract with the buyer unless agreed otherwise by all parties to the transaction.
You shall not engage in shill bidding or manipulate the price in any way.
The seller points above provide an overview of our terms and conditions for participating as a seller in SteepSteel’s marketplace and are subject to the complete Seller Terms and Conditions below.
SELLER TERMS AND CONDITIONS
These Seller Terms and Conditions, including all schedules and other policies, establish the terms of your use of SteepSteel’s sites and services (e.g., www.SteepSteel.com, and any third party marketplace, as well as live, on-site events to be held by an SteepSteel company or affiliate) (together, the “Marketplace”) and are incorporated by reference into the applicable listing agreement (collectively, the “Agreement”) between you and SteepSteel for the listing and advertising of Cell Tower Lease(s) for sale to buyers in the Marketplace.
If you (“Seller”) are located within the European Union, Middle-East and Africa, you are contracting with SteepSteel, an entity organized under the laws of Texas. If you are located in Canada you are contracting with SteepSteel. In the United States and for all other areas not otherwise mentioned above, you are contracting with SteepSteel.
The Seller Terms were last revised on March 1, 2017.
1. STEEPSTEEL’S SERVICES
1.1. Services of SteepSteel. Under the terms of this Agreement, SteepSteel offers you the use of the Marketplace, which functions as a platform on which SteepSteel can list and advertise Property for sale on your behalf to potential buyers (“Buyers”). You hereby authorize SteepSteel to complete auctions offline or cancel bidding at any time SteepSteel determines is appropriate based on SteepSteel’s interpretation of the market and the bidding to date. All SteepStele auctions are “sealed bid” auctions unless otherwise agreed to in writing. Each party is acting on its own behalf, and SteepSteel is not a party to the subsequent purchase contract for Property that is entered into between you and the Buyer. Nor does SteepSteel represent either party in the conclusion of such purchase contract. In consideration of your use of the Marketplace for the listing and advertising of Property for sale, commissions and fees as listed in Schedule 1 are payable by you.
1.2. Exclusive Listing. The Marketplace shall be the exclusive listing site for Property and you shall not offer for sale or sell the Property in any other manner until the earlier of (a) the date such Property is sold via the Marketplace or (b) the date you withdraw the Property from the Marketplace (but in such event no less than ninety (90) days). By entering into a listing agreement for use of the Marketplace, you hereby extend an irrevocable offer to sell the Property, as applicable, (a) to a Buyer who is the highest bidder and who meets or exceeds the opening bid or reserve price, or (b) to a Buyer who commits to purchase Property at the Buy Now price.
1.3. Conclusion of Purchase Contract; Bill of Sale. After the winning bid for Property has been established by SteepSteel or the Buyer has committed to purchase the Property at the Buy Now price, the bid or purchase commitment of Buyer will be automatically accepted by the Seller and a purchase contract between you and Buyer is automatically concluded (“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 or other notification that is generated automatically by the Marketplace. Subject to your receipt of payment for the Leases or Properties, you at your own expense shall deliver a bill of sale, agreed upon deed, assignment of lease, grant of easement of any other such documentation as may be reasonably necessary to transfer the Property to Buyer. Unless otherwise agreed, the Property listing will only show your “SteepSteel Seller ID”, but not your formal identity, business name and/or address details. This information will only be provided to Buyer at the conclusion of the Purchase Contract.
1.4. Opening Bid and Scheduling. For Featured Events, SteepSteel will set the opening bid for the Leases or Properties and the schedule of listing opening times. For the Daily Marketplace, you have the option of setting a reserve price (not to exceed 120% of estimated market value as determined by SteepSteel without prior approval by SteepSteel) and scheduling the listing opening time for Property. You may lower the reserve price for a listing once during a Daily Marketplace listing period, but you may not add a reserve price after the opening time. All Property listings in the Daily Marketplace will be scheduled to run for thirty (30) to forty (40) consecutive days, at the discretion of SteepSteel. In the event Property remain unsold after thirty-five (35) days, SteepSteel will automatically drop the reserve price by 5% to continue the listing or you may elect, without penalty, to remove the Leases or Properties from the Daily Marketplace. For the Fixed Price Marketplace, SteepSteel will set the Buy Now prices and schedule the listing opening times. Any unsold items will cascade to a Featured Event for disposition. Timing of the cascade will be managed by SteepSteel.
1.5. No Guarantee on Proceeds; No Shill Bidding. There is no guarantee as to the gross proceeds that may be realized from a listing on the Marketplace. You may not manipulate in any way or by any means the sale price of Leases or Properties, including bidding on your own Leases or Properties to artificially raise the final sales price. In the event of price manipulation, SteepSteel will (a) ban you from future use of the SteepSteel Marketplace, (b) cancel any involved transaction(s), and (c) charge you a Shill Bidding Fee.
1.6. Property Availability; Risk of Loss. You agree to have the Property transfer documents available for delivery to the Buyer no later than two (2) business days after conclusion of the Purchase Contract. If the Lease or Property documents are not available, you will be subject to pay a Post-Closing Delay Fee. Further, if you fail for any reason to transfer the Property to the Buyer after a Purchase Contract is concluded, you will be subject to a Seller Default Fee in addition to any other rights or remedies that SteepSteel or Buyer may have. The responsibility and risk of loss for Property shall be and remain with you (and not SteepSteel or Buyer) until receipt by you of all proceeds from the sale of Property. Thereafter, the Property shall be and remain at the risk of Buyer or Buyer’s designated agent (and not SteepSteel or you).
1.7. Authorization to Use Marks. In connection with your use of the Marketplace, you agree that SteepSteel may use your name, trademark, logos, service marks and other designations (“Marks”) to list you as a reference customer and to advertise, promote and market the Property. You hereby grant to SteepSteel, and represent and warrant that you have a right to grant, a non-exclusive, worldwide license to use, publicly display and perform, reproduce, and distribute the Marks, solely as permitted in this Agreement, including distributing e-mails to potential Buyers that incorporate Marks.
1.8. Specific Performance. In addition to any other remedies that may exist, if you cancel a listing within two (2) weeks prior to the listing Opening Time or if you fail to have the Property available for shipping no later than two (2) business days following the conclusion of the Purchase Contract with Buyer, you hereby acknowledge and agree that (a) the damages to SteepSteel’s business reputation, brand and customers are significant and irreparable, (b) an adequate remedy at law for such breach is inadequate, and (c) SteepSteel may seek enforcement of this Agreement by means of specific performance or injunction, without any requirement to post a bond or other security.
2. PROPERTY LISTINGS
You may not list goods that are illegal to use or possess under any applicable law, rule or regulation. SteepSteel reserves the right, in its sole discretion, to (a) refuse to list any Property at any time, (b) withdraw any Property listing from the Marketplace, (c) review and verify a listing’s information and description, or (d) cancel any transaction that it deems to be suspicious or fraudulent and report it to applicable authorities. The information you provide during the Property listing process, combined with the Inspection Report and disclosures, constitute the listing details for the Property (“Listing Details”). You agree to fully, completely and accurately disclose to SteepSteel all information relating to the Leases or Properties of which you are aware. Any information (including brand name or other indication of origin or manufacture) that you provide related to the Properties must be complete and accurate, and you shall be responsible for any inaccuracies, errors or omissions. Listing Details on the Marketplace may not include links to or a description of other items that you may have for sale outside of the Marketplace.
3. INSPECTIONS; RESTRICTIONS ON USE
3.1. Property Due Diligence. For all requested inspections, you agree to permit SteepSteel and/or its authorized representatives to examine the Property at a time and place specified in the listing agreement or as otherwise mutually agreed. SteepSteel shall produce an inspection report (“Inspection Report”) for Property inspected by SteepSteel. SteepSteel inspections are solely for the purpose of reporting on the visible condition of the Property’s features, condition or terms. SteepSteel inspections are NOT intended to detect latent or hidden defects or conditions that could only be found in connection with the physical dismantling of the Property or the use of diagnostic Property techniques. Your failure to properly maintain the Property from the date of inspection until its removal from your location by buyer will void the inspection. If you alter or perform repairs or other maintenance to the Property after the inspection, another inspection will be required, and you will be subject to a Re-inspection Fee.
3.2. Ownership of Inspection Report. The Inspection Report is the sole and exclusive property of SteepSteel. Except as expressly stated, nothing in this Agreement shall be deemed to grant to any other party, by implication, estoppel or otherwise, license rights, ownership rights or any other intellectual property rights in the Inspection Report. You cannot use the Inspection Report for any other purpose without the prior written approval from SteepSteel.
3.3. Restrictions on Use of Property. From the time you provide Listing Details to the SteepSteel Marketplace or an inspection is performed by SteepSteel until the Property is shipped from its location by or on behalf of Buyer following conclusion of a Purchase Contract, you may not lease, rent, modify or alter the Property. In addition to any other rights and remedies that SteepSteel may have, a breach of this provision prior to the conclusion of a Purchase Contract for the Property may result in either of the following: (a) SteepSteel may remove the Property from the Marketplace and charge you a Removal Charge, or (b) SteepSteel may continue with the listing in which case if the Property was inspected previously by SteepSteel, you must have the Property re-inspected and pay SteepSteel a Re-Inspection Fee. If the Property was not inspected, you must supply updated Listing Details to SteepSteel and pay SteepSteel an additional Listing Fee. In the event of a breach of this provision is determined by SteepSteel in its reasonable discretion and the Property has been sold by a Purchase Contract, the transaction is subject to cancellation and you will be charged a Seller Default Charge in addition to reimbursement of transportation and other costs incurred by Buyer.
4.1. Disclosure of Liens. You are responsible for making full disclosure to potential Buyers of all liens, adverse claims and other title encumbrances and third party interests that may exist on or pertain to your Property. You will at your own cost and expense warrant and defend title to the Property on behalf of the Buyer, its successors and assigns, against the claims and demands of all persons. If your net proceeds from the sale of Cell Tower Lease(s) listed on the Marketplace are insufficient to discharge creditor claims on the Property, you are fully responsible for paying the outstanding debt balance immediately.
4.2. Government Liens. If any government body, including but not limited to tax administrations, the U.S. Small Business Administration or any other governmental entity, holds a lien or encumbrance on the Property, then you shall be responsible for the payment of any independent Cell Tower Lease(s) appraisals and documentation fees required to release such liens. You acknowledge and agree, and hereby authorize, that SteepSteel may, in its discretion, pay for such appraisals and documentation fees and deduct the amount from the proceeds due to you. If the net proceeds due to you are insufficient to pay the fees, you agree to promptly pay SteepSteel upon receipt of an invoice for the fees.
5. FEES AND PAYMENT
5.1. Fees. The commissions and fees payable to SteepSteel in consideration for using the Marketplace to list and advertise Property for sale are set forth in the listing agreement. SteepSteel’s standard Fee Schedule is detailed in Schedule 1. Seller may request any of the services outlined in Schedule 1 in association with the sale of Property and agrees to pay all fees due for services completed. The cost of the services will be deducted from amounts otherwise due Seller when available. Otherwise, service fees will be invoiced directly to Seller. SteepSteel may change its fees from time to time, in its sole discretion, with or without notice to you, but no such change shall apply retroactively to Property already subject to a listing agreement. It is your responsibility to check all applicable fees prior to entering into a listing agreement.
5.2. Payment of Proceeds. After the Purchase Contract is concluded between you and Buyer, the SteepSteel Marketplace will generate a third party invoice that is issued to Buyer on your behalf. Buyer is responsible for paying you the purchase price for the Property upon conclusion of a Purchase Contract, and you hereby instruct SteepSteel to act as a payment processor and facilitate receipt of the purchase price. Further, you hereby grant SteepSteel the right, in its own name, to enforce your right to payment. You agree that no monies shall be payable to you until paid by the Buyer. Once received by SteepSteel, any monies due to you, net of any commissions and fees due SteepSteel as detailed in this Agreement, shall be disbursed within fifteen (15) business days after conclusion of the Purchase Contract. You hereby consent to SteepSteel’s right to offset any other commissions and fees specified in this Agreement or that result from additional services requested by you, with any remainder to be paid within fifteen (15) days following receipt of an invoice. You acknowledge that Buyers may fail to perform or pay on a timely basis and that SteepSteel shall not have any liability to you for any act or omission of Buyers.
5.3. Taxes. You shall be responsible for the payment of any tax or duty that is your responsibility as a seller of the Property.
5.4. VAT. All bids and offers must be net of any VAT imposed with respect to the sale or purchase transaction. Buyers are liable for all such taxes for all purchases. The amount of the successful bid for Property shall be exclusive of VAT, and the price payable by the successful Buyer shall be increased by the VAT chargeable to Buyer for such Property. In addition, all commissions, fees and other amounts payable to SteepSteel arising pursuant to this Agreement are calculated without regard to VAT, and the amount payable by Buyer shall be increased by the relevant amount of VAT that may be chargeable. To list and advertise Property for sale on the Marketplace, even if you would otherwise be entitled to raise a VAT invoice addressed to Buyer for the purchase of Property, you agree not to raise such an invoice and instead to accept a VAT invoice raised promptly by SteepSteel on your behalf after conclusion of the Purchase Contract. The invoice will be issued to Buyer after you have reviewed and approved the invoice by means of an automated process. SteepSteel is acting as a payment processor only, and you are responsible for ensuring that the correct VAT rate is applied and any VAT that is due for the purchase of the Property under the Purchase Contract. You are required to enter your VAT registration number on becoming a registered user of the SteepSteel Marketplace, and you shall immediately notify SteepSteel if that number ceases to be valid for any reason. You shall indemnify SteepSteel and its affiliates, officers, directors, agents and employees against any tax, cost or expense relating to your and/or Buyer’s failure to satisfy any VAT chargeable in relation to a Purchase Contract. For the purposes of these Seller Terms, “VAT” means value added tax as provided for in the EU VAT Directive 2006/112/EEC or similar tax in countries outside the EU.
6. YOUR OPTIONS AFTER BUYER DEFAULT.
If the Buyer fails to pay in accordance with the Purchase Contract, the Buyer is considered to be in default. In the event of a Buyer default, you may at your own risk and account rescind the Purchase Contract with Buyer after which you may elect any one of the following options:
6.1. Offer Property to Second Highest Bidder. If there was more than one bidder for the defaulted Property, you may elect to offer the Property to the second highest bidder. If the second highest bidder accepts, a Purchase Contract for the Property will be concluded by the Marketplace, and you will receive proceeds based on that second bidder’s highest bid, less any applicable commissions and fees payable to SteepSteel;
6.2. Re-list the Property. You may elect to relist the Property in a subsequent online listing within thirty (30) days of the buyer default without incurring an additional Listing Fee. In such case, all other terms and conditions continue to apply; or
6.3. Withdraw the Property. You may elect, without penalty, to withdraw the Property from listing on the Marketplace.
7. REPRESENTATIONS AND WARRANTIES
You represent and warrant that: (a) no Property shall be fraudulent, stolen or counterfeit, (b) you are duly authorized to enter into the listing agreement, (c) you are solvent and have not made any assignment, proposal or other proceeding for the benefit of your creditors, and (d) you own all right, title and interest in and to the Property is free and clear of all liens or other encumbrances, except as otherwise disclosed by you to SteepSteel in writing.
You agree to indemnify and hold harmless SteepSteel, 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. SteepSteel 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. You shall have sole control of the defense or settlement of any claim or demand, provided that SteepSteel, at its option and expense, may participate and appear on an equal footing with you. 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.
9. DISCLAIMER; LIMITATION OF LIABILITY.
TO THE FULLEST EXTENT PERMITTED BY LAW, THE MARKETPLACE PROVIDED BY OR THROUGH STEEPSTEEL 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. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL STEEPSTEEL 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 STEEPSTEEL OR AN AUTHORIZED REPRESENTATIVE THEREOF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. LEGAL DISPUTES
10.1. Governing Law; Jurisdiction and Venue. For disputes between you and SteepSteel, this Agreement shall be governed by the laws of the State of Texas. In all cases, this Agreement shall be governed by the laws of the jurisdiction noted above 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. You agree that the following courts maintain personal jurisdiction over you in the event that the arbitration provisions of this Agreement are found not to apply to you or in connection with seeking equitable relief from a court of competent jurisdiction: (a) a state or federal court in the County of Montgomery, Texas.
10.2. Dispute Resolution and Arbitration. In the event of a dispute between you and SteepSteel, you agree to attempt to resolve the dispute with SteepSteel’s Customer Care department for at least ten (10) business days before taking any other action. Following such period, you and SteepSteel agree that any dispute, claim or controversy arising out of or relating to this Agreement shall be settled by binding arbitration as specified below.
10.2.1. SteepSteel. All disputes which arise out of or in connection with this Agreement with SteepSteel shall be arbitrated and finally resolved through the American Arbitration Association (“AAA”) in accordance with the commercial arbitration rules of the AAA before a single, neutral arbitrator mutually agreed to by the parties, or if the parties cannot agree, by striking from a list of arbitrators supplied by the AAA. The place of arbitration shall be Houston, Texas. In any arbitration, the parties and the AAA shall comply with the following procedures: (a) the arbitration is a confidential proceeding, closed to the general public; (b) the arbitrator shall be empowered to hear and determine dispositive motions, including motions to dismiss and motions for summary judgment; (c) the arbitrator shall have the right to issue injunctions and attachments and other equitable remedies and award compensatory damages; and (d) any judgment on the award enforced by the arbitrator may be rendered in any court of competent jurisdiction.
10.2.2 English Controlling Language. All performance under this Agreement and the resolution of disputes including through arbitration 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, SteepSteel does so solely for your convenience.
10.3. Power of Arbitrator. The arbitrator shall have no power to award consequential, punitive, treble or any other manner of enhanced damages. The arbitrator shall issue a written opinion stating the essential findings and conclusions upon which the arbitrator’s award is based. The prevailing party in any arbitration shall have the right to an award of attorneys’ fees and costs. YOU AGREE THAT ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST BE COMMENCED WITHIN SIX (6) MONTHS AFTER THE DISPUTE AROSE, AND IF NOT COMMENCED TIMELY SHALL BE PERMANENTLY BARRED.
10.4. Improperly Filed Legal Disputes. Any claims that are filed or brought contrary to this Agreement shall be improperly filed and of no force and effect.
11. TERMINATION, RESCISSION AND DEFAULT.
SteepSteel shall have the right, in its sole discretion, to terminate this Agreement in whole or in part in the event (a) there are liens, encumbrances or adverse claims on or to any Property in addition to those that are listed in the listing agreement, (b) your net proceeds are insufficient to discharge creditor claims and pay SteepSteel’s fees after title is cleared, (c) your lien holders are unwilling to release liens and/or allow Property to be listed for sale, (d) you are in breach of the Agreement, (e) you have provided inaccurate, fraudulent, outdated or incomplete information during the registration or Listing process or thereafter, (f) you have violated applicable laws, regulations or third party rights, (g) SteepSteel believes in good faith that such action is reasonably necessary to protect the safety or property of other customers, SteepSteel personnel or third parties, or (h) for fraud prevention, risk assessment, security or investigation purposes. In the event of such termination, in addition to any other remedies available to SteepSteel, you shall pay SteepSteel (a) 25% of the estimated market value of Property, (b) the Listing Fee and (c) any costs incurred by SteepSteel.
12. AMENDMENT OF SELLER TERMS.
SteepSteel may modify, add or remove any portion of the Seller Terms from time to time, in its sole discretion, with or without notice to you, by posting such changes on the Marketplace. Once posted such changes shall come into full force and effect, however no change in commissions and fees payable to SteepSteel in consideration for using the Marketplace shall apply retroactively to Property already subject to a listing agreement. In addition to other forms of acceptance, use of the Marketplace constitutes acceptance of these Seller Terms, including continued use after such changes are posted. It is your responsibility to check periodically for changes to Seller Terms.
Any notice to SteepSteel must be in writing and must be sent via email to email@example.com and by registered mail or overnight courier to SteepSteel Attn: General Counsel, 1095 Evergreen Circle, Suite 200, The Woodlands, TX 77380. Notice to you must be in writing and shall be sent to the address provided by you in the listing agreement. Notice shall be deemed to have been given upon three (3) business days after posting by registered mail or one (1) day after delivery to an overnight courier. If you change your address, you are responsible for providing an updated address to SteepSteel.
By entering into this Agreement, you are consenting to have your personal data transferred to and processed in the United States.
This Agreement contains the entire agreement of the parties and supersedes all previous communications, representations, understandings and agreements, either oral or written, between us. In the event of a conflict between the Seller Terms and the listing agreement, the listing agreement shall control. This Agreement supersedes and replaces the terms in any Seller purchase order or other ordering document, and such documents shall be of no force or effect. 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. No partnership, joint venture, franchisor-franchisee, or agency relationship is intended or created by this Agreement. 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 SteepSteel’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 SteepSteel to assign this Agreement, you hereby appoint the officers of SteepSteel as your attorney-in-fact to execute all documents necessary to effect such novation. 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. 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.