SUPPLIER’S TERMS AND CONDITIONS. This purchase order constitutes the exclusive statement of Buyer’s offer to Supplier to purchase the goods or services specified herein. Any additional or different terms or conditions stated by Supplier in acknowledging receipt of this purchase order or in any other writing are hereby objected to and shall be void unless expressly agreed to in writing by Buyer.
1.Order of Precedence – The rights and obligations of the parties to this contract shall be subject and governed by these Terms and Conditions, any purchase orders, specifications, or other supplementary agreements or terms (including but not limited to as non-disclosure agreements, quality agreements, and supplier codes of conduct (collectively, “Supplementary Documents”) as are and/or will be incorporated by reference. To the extent of any inconsistency between (z) the Supplementary Documents and these Terms and Conditions, the Supplementary Documents shall control.
2.Order Acceptance - Any of the following acts by Supplier shall constitute acceptance of this order and all of its terms and conditions: (a) signing and returning a copy of this order; (b) delivery of any of the goods or services ordered; (c) informing Buyer in any manner of commencement of performance; or (d) returning Supplier’s own form of acknowledgement.
3.Price and Delivery – Supplier shall furnish the items called for by this order in accordance with the prices and delivery schedule specified on the face of this order. Supplier warrants that the prices charged are competitive with those offered to other purchasers, and if Supplier at any time sells or offers items to another purchaser for a lesser price, Supplier will reduce its price to Buyer correspondingly. Time is of the essence to the Buyer, and the delivery schedule specified on this order must be strictly observed by Supplier both as to time and quantities. Buyer is not obligated to accept partial deliveries or excess deliveries. In addition to its right to terminate, Buyer may require Supplier, at Supplier’s sole cost and expense, to ship any of the items covered by this order by air or expedited method or by such other means as may be designated by Buyer if Supplier fails to meet the specified delivery schedule until all deficiencies are corrected and deliveries are on schedule.
4.Packing, Marking and Shipping – All items shall be appropriately packaged, marked, and otherwise prepared in accordance with instructions or specifications referred to or incorporated by reference in this contract. In the absence of such instructions or specifications, the best commercial practice for shipments shall be followed (a) to assure safe arrival at destination, (b) for storage and for protection against the elements and transportation, (c) to comply with carrier regulations appropriate to the method of shipment used, and (d) a manner to obtain the lowest reasonable shipping rates. The Supplier shall bear all costs for cartage, boxing, or containers as required unless advance written notice of packaging costs is given to Buyer before Buyer issues purchase order. Each package must be legibly marked on the outside with Buyer’s part number and quantity and include a packing slip specifying the applicable Buyer Order number, part number(s), quantity, date code (where applicable), and design revision number (where applicable), with each date code segregated by container. Buyer’s count will be accepted as final on all shipments not accompanied by a packing slip. No additional charges (e.g., boxing, loading, handling, storage, or insurance) will apply, and no price increase by Supplier will be effective unless specifically agreed to in advance by Buyer in writing. Buyer is not responsible for freight costs unless specified in the Order, in which case Buyer’s designated carrier and shipping method must be used. Over shipments, including minimum requirements without advance agreement, or deliveries more than five days in advance of scheduled delivery dates are at Supplier’s risk, and Buyer at its option may retain any or all such items (with invoicing deferred until scheduled delivery date) or reject and return them at Supplier’s expense. Buyer will not be liable for Supplier’s commitments or production arrangements in excess of the amount or in advance of the time necessary to meet the acknowledged delivery schedule, and Supplier is authorized to manufacture only up to the quantities shown in Buyer’s authorized releases.
5.Title and Risk of Loss – Unless this contract or other terms, specifications or documents incorporated by reference specifically provides for earlier passage of title, title to goods covered by this contract shall pass to Buyer upon final acceptance by Buyer. Unless this contract or other terms, specifications, or documents incorporated by reference specifically provide otherwise, the transportation of goods to be delivered by Supplier to Buyer shall be F.O.B. destination and all risk of loss of or damage to the goods covered by this contract shall remain with Supplier until final acceptance by Buyer or receipt of the goods by Buyer at the destination specified in this contract, whichever is later. If the contract specifies the transportation of goods to be delivered by Supplier to Buyer as F.O.B. Supplier, loss or damage to the goods shall remain with Supplier until Supplier delivers the goods to an authorized carrier for shipment to Buyer. The foregoing notwithstanding, risk of loss of or damage to goods which fail to conform to the requirements of this contract as to give a right of rejection shall remain with Supplier until cure by Supplier or final acceptance by Buyer.
6.Buyer Property and Technical Information – If a separate non-disclosure agreement has been executed between Supplier and Buyer, the terms of the non-disclosure agreement will control. Any provisions related to confidential information contained in this Agreement shall be construed as supplementary to and not replacements for the terms of an executed non-disclosure agreement. All confidential and/or proprietary information regarding Buyer, its business, products, customers, and requirements; all designs, drawings, Specifications, software, molds, dies, tooling, equipment, processes, materials, and technical, engineering, or other data and/or information that are furnished to Supplier by Buyer or developed at Buyer’s expense; and all related intellectual property and proprietary rights (collectively, “Buyer Property”) are and will be the exclusive property of Buyer. Such confidential information or Buyer Property will be held in strict confidence and may not be reproduced, copied, or used except as strictly required to fulfill Buyer’s Orders. Standard goods (and their related standard designs, specifications hardware, software, processes, and tooling) manufactured by Supplier and sold to Buyer without being designed, customized, or modified for Buyer do not constitute Buyer Property. Buyer Property and any product or service purchased hereunder shall be deemed to be work-for-hire made pursuant to a written instrument exclusively for Buyer. To the extent that any Buyer Property, product or service purchased hereunder is not considered a work-for-hire or Supplier retains any rights therein, Supplier agrees to and hereby grants, assigns and conveys to Buyer all of its right, title and interest, if any, and in all copyrights and other intellectual property rights, including the sole right to sue for infringement thereof. Supplier irrevocably waives any claim or rights to any Buyer Property and agrees to protect and hold the same in trust for the benefit of Buyer, to limit access thereto to its Representatives having a need therefor to fulfill Buyer’s Orders, and to protect and safeguard the same against loss, damage, or unauthorized use or disclosure, and to deliver the same to Buyer at any time upon its request. Supplier agrees to take any actions or execute any documentation reasonably requested to confirm and perfect Buyer’s rights in Buyer Property or to seek protection thereof. To the extent Supplier fails to do so, Supplier hereby appoints the officers and counsel of Buyer as its attorney in fact to execute documents and take actions on behalf of such party and its Representatives, successors and assigns for such limited purposes, which appointment is a power coupled with an interest. All Buyer Property, and all products, parts, or other items manufactured, developed, or produced utilizing Buyer Property, will be supplied, and used solely for the benefit of Buyer and not for the benefit of Supplier or third parties. Supplier acknowledges that any breach of this Section may cause Buyer irreparable harm for which recovery of damages would be inadequate, and that immediate injunctive or other equitable relief is appropriate and available to Buyer to prevent any violation.
7.Invoicing and Payment – Buyer will accept ordered items unless notice of rejection is given within a reasonable time. Rejection may be by individual unit or by lot, and Supplier’s delivery of nonconforming goods will entitle Buyer to terminate the balance of that particular Order. Acceptance does not constitute a waiver of any of Supplier’s warranties or Buyer’s rights, and any acceptance of nonconforming deliveries will not constitute a waiver of Buyer’s right to require that further deliveries be in accordance with this contract, to require correction of any non-conformance, or to pursue damages therefor. If any defect or non-conformity is not apparent on examination, resulting in deterioration of final product, Buyer may return such items for replacement upon discovery of the defect. Following delivery, Supplier will provide a complete and correct invoice for each shipment. Invoices must be mailed promptly in accordance with the instructions on the face of this order. If any invoice fails to match the applicable Order in regard to price, quantity, revision, delivery terms, or otherwise, the Order will prevail. Payment of invoice shall not constitute acceptance of the items ordered and shall be subject to appropriate adjustment for failure of Supplier to meet the requirements of this order. Buyer may withhold payment of any amount it may reasonably dispute in good faith until such dispute is resolved and may set off against amounts owed to Supplier any amounts owed by Supplier or its affiliates to Buyer. Except as otherwise provided in this contract, Supplier represents that the prices stated shall include any and all applicable federal, state, and local taxes which cannot be excluded by action of Supplier or operation of law. Supplier represents that the price stated excludes all such taxes which can be excluded by action of Supplier or by action of law. Any tax not so excluded shall be entered on invoices as a separate line item.
8.Quality Assurance - All items must be provided in strict conformance with all specifications provided by Buyer and/or generated by Supplier for the items in the order. Such specifications include requirements for product quality and regulatory compliance as may be outlined in supplementary agreements or communications. Supplier will provide and maintain adequate quality and inspection systems covering the items and related materials, processes, tooling, and workmanship, including without limitation appropriate incoming and periodic inspections to identify any damage or non-conformance, and will ensure that prompt corrective actions are taken to address any discrepancies found. Supplier will not assign, delegate, or subcontract any of its rights or duties under this contract without Buyer’s prior written consent. Supplier will inform Buyer promptly and take prompt action to remedy or otherwise address in a timely manner any problems, concerns or suggestions associated with the items, and will defend, indemnify, and hold harmless Buyer, its affiliates, agents, contractors, customers, successors and assigns, from any and all claims, demands, costs, losses, actions, suits, proceedings, damages, investigations, expenses (including without limitation court costs and reasonable attorneys’ fees) arising out of or relating to the design, quality or condition of, or any defect in, the items supplied hereunder.
9.Inspection – All articles sold and materials and work applied hereunder shall be of good quality and free from any defects and shall at all times be subject to inspection and rejection; however, neither the Buyer’s inspection nor failure to inspect or reject shall relieve the Supplier of any obligations hereunder. Such inspection shall not exclude any warranties in respect to such goods. All items may be inspected and tested by Buyer, its customers, higher tier contractors, and the U.S. Government at all reasonable times and places, including during manufacture or performance. In the event Buyer wishes to inspect or test any items covered by this order on Supplier’s premises, Buyer shall give Supplier reasonable notice and Supplier shall provide, without additional charge, reasonable facilities and assistance for such inspections and tests. Claims by Buyer that items are not in the quantity ordered, or are defective, inferior in quality, or otherwise not in conformity with Specifications will be communicated to Supplier within a reasonable time after discovery, and Buyer will have the right to reject or revoke acceptance of all nonconforming items, by individual Item(s) or by lot, and require that Supplier promptly replace or correct the same at Supplier’s expense, including freight charges. Goods which have been rejected or required to be corrected shall be removed or, if permitted or required by Buyer, corrected in place by and at the expense of the Supplier promptly after notice, and shall not again be tendered for acceptance unless the requirement for correction is made. Supplier shall be responsible for shipping costs of items returned to Supplier’s facilities for correction and delivery of the corrected items or replacements. Delivery of replacements shall be accompanied by written notice specifying that items are replacements. Items repaired or replaced hereunder will be warranted and subject to inspection to the same extent as those initially furnished. If Supplier fails to promptly remove such goods which are required to be removed or promptly to replace or correct such goods, Buyer (a) may, by contract or otherwise, replace or correct such goods and charge to the Supplier the costs incurred by Buyer, or (b) may terminate this contract for default as provided in Paragraph 25 (Default). Unless Supplier corrects or replaces such rejected goods within the delivery schedule, Buyer may require the delivery of such supplies at a reduction in price which is equitable under the circumstances. Failure to agree to such a reduction in price shall be subject to Paragraph 27 (Arbitration). No inspection, tests, approval, or acceptance of items ordered shall relieve Supplier from liability for (v) defects or other failure to meet the requirements of this order, (w) latent defects, (x) fraud, (y) such gross mistakes as may amount to fraud, or (z) failure by Supplier to meet its warranty obligations hereunder. The rights granted to Buyer under this paragraph are in addition to any other rights or remedies provided elsewhere in this order or by law.
10.Site Work - If any items involve operations by Supplier on the premises of Buyer, its affiliates, customers, or end users, Supplier will conduct such operations to minimize interference with operations at the site, will comply and cause its personnel, contractors, officers, representatives, and agents (collectively, “Representatives”) to comply with all applicable workplace procedures and health, safety and environmental requirements, and will take all necessary precautions to ensure that all work is carried out in a safe and proper manner so as to prevent injury to persons or property. Supplier will be responsible for the acts and omissions of its Representatives and for any injury to persons or property that occurs during the performance of work or services for Buyer.
11.Warranty - Supplier acknowledges that Buyer is relying on Supplier’s skill and judgment in providing goods and services suitable for Buyer’s intended use. In addition to any other express or implied warranties, Supplier warrants that (a) all items, including all goods and all materials, procedures, and equipment used in the performance of services, will be of good quality, material, and workmanship, free from defects (including latent defects) in design, and suitable for their intended use or purpose; (b) all services will be timely and diligently performed in a good and workmanlike manner and in conformance with Specifications, and any professional services provided by Supplier, if applicable, will be performed, findings obtained, and recommendations prepared in accordance with generally accepted engineering principles and practices; (c) all goods will be designed, manufactured, packaged, labeled, and delivered in conformance with Specifications, will be new and of merchantable quality and will not be used or made of refurbished materials unless approved in writing by Buyer; and (d) all items will be delivered with good title, free from any liens, encumbrances, claims or other obligations. Supplier further warrants that the items and their use do not and will not violate or cause Buyer to be in violation of any federal, state, or local law, regulation, rules, or order, or infringe or violate any third-party patent, trademark, copyright, trade secret, or other intellectual property or proprietary rights. These warranties run to Buyer, its customers, resellers, distributors, and end-users, and will survive inspection, testing, acceptance, and payment.
12.Supplies, Repair Parts - Supplier at its expense shall furnish, inspect, maintain, and repair all patterns, tools, dies, gauges and/or fixtures associated with the manufacture of items in accordance with good industry practice. If the items purchased constitute components used in Buyer’s products, Supplier will use best efforts to make such items available for purchase for a period of five years after they are discontinued on current models produced by Buyer, and for an additional period of three years, repair or replace such goods as are returned by Buyer. If Supplier is required, due to circumstances outside its control, to discontinue the supply of any Item, Supplier will provide Buyer with twelve (12) months’ advance written notice, and Buyer will have the opportunity to make one or more final bulk purchases at the most recent agreed price.
13.Insurance - Supplier will maintain at all times workers’ compensation, comprehensive general liability (including products/ completed operations and contractual liability), automobile, public liability, professional errors and omissions (if applicable), property damage and other appropriate insurance in accordance with good industry practice and in amounts sufficient to cover its activities and obligations under this contract (in amounts not less than $2,000,000 (or higher amounts as required by law) unless lower levels are agreed to by Buyer) with carriers acceptable to Buyer and rated by A.M. Best at or above A-. Upon Buyer’s request, Supplier will name Buyer as an additional insured. All such insurance will be primary coverage and Supplier waives, and will cause its insurers to waive, all rights of subrogation against Buyer. Supplier shall provide certificates of insurance showing such coverage prior to performing any work at Buyer’s premises or promptly upon Buyer’s request. All certificates of insurance will provide for 30 days notice to Buyer if the described policies are cancelled or materially modified before the expiration date stated on the certificate.
14.Changes from Buyer – Buyer may at any time, by written order, make changes in any of the following: (a) the drawings, designs and/or the specifications applicable to the items covered by this order, (b) the method of shipment and/or packing and (c) the place of delivery. Supplier shall be deemed to have accepted Buyer’s proposed changes without additional costs to Buyer and without extension of Supplier’s time for performance unless Supplier, within ten (10) days following receipt of Buyer’s notice of change, notifies Buyer in writing of the need for any equitable adjustment in the price of the items and/or the time for performance. Failure to agree to any equitable adjustment shall be a dispute subject to Paragraph 27 (Arbitration) of this contract.
15.Supplier Changes - Supplier shall not make any changes (a) in the design or manufacture of goods (including assemblies, subassemblies, parts, and components), or (b) in manufacturing locations without the prior written consent of Buyer. Supplier shall inform Buyer of any proposed change in design, material, components, or process relating to the items or performance of services that may affect form, fit, function, composition, safety, reliability, serviceability, performance, interchangeability, or regulatory compliance prior to implementation of such changes, and supporting data, if any, shall be sent to Buyer for evaluation. Supplier shall provide at least ninety (90) days advance notification of any such proposed change to allow Buyer to determine whether the changes may affect the quality, safety, or performance of the goods. Buyer’s written approval of such change proposed by Supplier must be obtained by Supplier prior to implementation of such change for any items supplied to Buyer.
16.Additions – No extra work, additions, or alterations will be paid for by Buyer unless performed pursuant to and in accordance with the written order of Buyer.
17.Compliance with Laws – Supplier warrants that all items supplied to Buyer are designed, produced, packaged, labeled, transported, and furnished and all services and work are performed in compliance with all applicable federal, state, and local laws, regulations, rules, codes, and requirements, including without limitation the Fair Labor Standards Act of 1938, as amended, the Occupational Safety and Health Act of 1970, as amended, and the standards, rules and regulations thereunder, the provisions of 41 C.F.R. Parts 60-2 and 60-20, concerning affirmative action programs and discrimination guidelines. and all other applicable laws, regulations, and requirements pertaining to (a) fair labor practices, non-discrimination, workers’ compensation, unemployment compensation, and immigration reform and control; (b) payment and withholding of income and other taxes, (c) export control and regulation, including without limitation the requirements of the International Traffic in Arms Regulations and the U.S. Export Administration Act, (d) the U.S. Foreign Corrupt Practices Act (“FCPA”), the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, and similar anti-bribery laws and requirements, and (e) applicable health, safety and environmental standards and requirements. Without limiting the foregoing, Supplier will comply and ensure compliance by its Representatives with applicable state, national, and international laws, rules and regulations relating to ethical and responsible standards of behavior, including, without limitation, those dealing with human rights, human trafficking and slavery, environmental protection, sustainable development, bribery and corruption, and will ensure that no items are manufactured or handled by child, indentured, forced, or prison labor. It is the Buyer’s strict policy and intention at all times to comply with the FCPA and other applicable laws, and Supplier acknowledges that Buyer’s Orders are conditioned upon Supplier’s representations and warranties herein. Any action by Supplier or its agents determined in good faith by Buyer to be in contravention of the FCPA or other applicable law shall result in termination of this contract.
18.Government Contracts – If the items covered by an Order are in pursuance of fulfilling a contract with the U.S. Government, Supplier agrees that the order and Supplier’s provision of items (and all subcontracts issued by Supplier with respect thereto) will be subject to the provisions of the Renegotiation Act of 1951 and regulations enacted thereunder, as applicable, including, without limitation, all provisions and regulations with respect to elimination of excessive profits through negotiation, and Supplier will ensure compliance with all applicable laws and regulations relating to non-discriminatory hiring, wage rates and other subjects pertinent to Supplier’s subcontract goods or services, and all terms and regulations associated with such acts, as well as all applicable flow-downs as specified in the order. To the extent applicable, Buyer incorporates by reference 29 CFR Part 471, Appendix A to Subpart A, as well as any E-Verify obligations described in FAR 52.222-54. Supplier certifies that it maintains no segregated employee facilities as provided in 41 C.F.R. Section 60-1.8, and will comply with all applicable requirements of 38 U.S. Code 4212, Executive Orders 11246, 11375, 11758 and 12086, 41 CFR 60-300.5(a), and 41 CFR 741.5(a), all as amended, and other applicable laws and Executive Orders relating to equal opportunity for employment on government contracts. Supplier shall provide evidence of the foregoing compliance to Buyer upon request. If the Government should terminate the contract work, Buyer reserves the right to cancel the order by written notice to Supplier. All claims and demands of Supplier arising from such cancellation shall be adjusted and paid upon the same terms, conditions and settlements as the claims and demands of Buyer are adjusted and paid by the U.S. Government following such termination. Supplier agrees that the Comptroller General of the United States shall, until the expiration of three(3) years after final payment under the prime contract with the U.S. Government, have access to and the right to examine any pertinent books, papers and records of Supplier invoicing the performance of or transactions relating to this order.
19.Hazardous Substances – Supplier certifies that items will not be or include any misbranded or banned hazardous substance within the meaning of the Federal Hazardous Substances Act, that all chemical substances therein will be reported in compliance with all applicable inventory reporting requirements under the Toxic Substances Control Act, and that Supplier will comply with the Federal Clean Air Act in regard to ozone depleting chemicals including, without limitation, appropriate marking of any part of items in which CFC Class I ozone depleting chemicals are used. Supplier will notify Buyer whenever it has reason to be aware of any harmful ingredients or defects within or involving the items and, when required by applicable law, will provide material safety data sheets covering the items. Upon request, or whenever normally provided by Supplier, Supplier will provide certificates of analysis covering the items. Supplier shall, upon request, furnish Buyer a certificate as to the warranties and certifications set forth in this Section.
20.Conflict Minerals – Buyer is committed to being Democratic Republic of the Congo (“DRC”) conflict free in the procurement of materials used in its products. Supplier agrees to adopt and implement policies, due diligence frameworks, and management systems to ensure that minerals used in any goods supplied to Buyer are conflict-free and to timely provide, upon Buyer’s request and in a requested format, certain data concerning its supply chain that may be needed for applicable reporting obligations.
21.Regulated Substances – Supplier shall furnish to Buyer any information required to enable Buyer to comply with such laws, rules, and regulations in its use of the goods and services. Supplier agrees that, upon request of Buyer, it shall make substance compliance declarations including ROHS, REACH, California Proposition 65, and other applicable regulatory requirements, unless otherwise agreed with Buyer. Upon the passage or update of any law, rule, or regulation governing substances contained with Supplier’s goods or Work Product, Supplier shall use all reasonable efforts to comply with the requirements by the deadline proscribed. Buyer may reject deliveries that do not comply with these requirements to enable Buyer to transport, store, process, use and dispose of such goods and/or Work Product safely and in compliance with law.
22.Termination – Buyer may terminate all or any part of this order at any time, giving notice to Supplier in writing. An equitable adjustment in price and/or delivery schedule will be negotiated for materials completed or in process at the time of the change. IN NO EVENT SHALL BUYER BE LIABLE FOR LOST OR ANTICIPATED PROFIT, OR UNABSORBED DIRECT COSTS OR OEVERHEAD, NOR SHALL THE EQUITABLE ADJUSTMENT FOR SUCH TERMINATION EXCEED THE UNPAID BALANCE DUE UNDER THE CANCELLED ORDER.
23.Indemnification – Supplier shall indemnify and hold Buyer harmless from and against all liabilities arising out of any failure or alleged failure of Supplier, or any of its subcontractors, to perform or comply with (a) any of the terms and conditions of this Agreement, or (b) any federal or state law, statute, regulation, ruling, order, or directive.
24.Intellectual Property – Supplier will not infringe any copyright, patent, trademark, or other intellectual property rights of Buyer or any third party and will pay all royalties or license fees due with respect to the items or any part thereof. If any items furnished to Buyer become the subject of a claim of infringement or misappropriation of third-party rights, Supplier, at its expense, will either procure for Buyer and its customers the right to continue using the items, replace or modify them so that they are non-infringing, or refund Buyer’s full purchase price. By acceptance of this contract, Supplier agrees to indemnify Buyer and its customers against all claims, judgments, decrees, costs and expenses and attorney’s fees incident to any infringement or to any claimed infringement of any intellectual property arising out of the use or sale by Buyer and its customers of goods covered by this contract, or the sue thereof by Buyer in the manufacture and sale of goods. Supplier agrees that it will, upon request of Buyer, and at Supplier’s own expense, defend or assist in the defense of any action which may be brought against Buyer or its customers for such infringement or claimed infringement. The foregoing will not apply to any claim, suit or proceeding based solely on designs or intellectual property provided and owned by Buyer.
25.Default – (a) Subject to Paragraph 26 (Force Majeure), Supplier shall be in default of this contract if Supplier (i) fails to make delivery of goods or to perform the services within the time specified in this contract, or (ii) fails to perform any of the other provisions of this contract or so fails to make progress as to endanger performance of this contract in accordance with its terms. If Supplier fails to cure any such default within ten (10) days of written notice given by Buyer of the default, Buyer may terminate this contract. (b) In the event Buyer terminates this contract upon default by Supplier, Buyer may procure, upon such terms as Buyer may deem appropriate, replacement goods or services and Supplier shall be liable to Buyer for any excess cost for such replacement goods or services. (c) If after termination of this contract under this Paragraph 25 it is determined that the failure of Supplier to perform was due to an event of Force Majeure, the termination shall be deemed to have occurred pursuant to Paragraph 22 (Termination) and the rights and obligations of the parties with respect to the termination shall be governed by Paragraph 22. (d) The rights and remedies of Buyer provided in this paragraph shall not be exclusive and are in addition to any other rights and remedies provided by law or under this contract.
26.Force Majeure – Neither Buyer or Supplier shall be liable for any failure to perform in accordance with the terms of this order due to act of war, sabotage, strikes, fires, freight embargoes, floods, explosions, epidemics or other causes or events beyond the control and without the fault or negligence of Buyer or Supplier. In the event Supplier is unable to perform due to any of the foregoing events, Buyer shall be entitled, in addition to its right to terminate pursuant to Paragraph 22 (Termination), to (a) obtain the items covered by this order from such other sources as Buyer may determine for the duration of Supplier’s inability to perform and (b) adjust as needed, and without any obligation to Supplier, the quantity of the items specified by this order.
27.Arbitration – The parties agree to use every reasonable effort to settle any dispute or disagreement between them relative to this Agreement by amicable means and not to resort to legal action unless and until the parties have in good faith attempted to settle such dispute or disagreement in the foregoing manner. If this method of resolution should have proved to be impracticable or unsuccessful, any controversy or claim arising out of or relating to this Agreement shall be submitted to and be finally resolved by arbitration pursuant to the provisions of the United States Arbitration Act (9 US C. SECTION 1 ET SEQ.), to be conducted by the American Arbitration Association ("AAA"), with such arbitration to be held in Wilmington, Delaware, in accordance with the AAA's Commercial Arbitration Rules then in effect. Judgment may be entered thereon in any court of competent jurisdiction if necessary.
28.Notices – All notices required or permitted to be sent by either party shall be deemed sufficiently given if (a) hand-delivered to the other party, or (b) sent by overnight courier or email to the address for the recipient on the first page of this contract or as otherwise specified by a party by notice given to the other party. Any notice given by hand delivery or overnight courier shall be considered given when delivered. Unless the sender receives a delivery failure notification indicating that the electronic mail has not been delivered to the recipient, a notice given by email before 5.00 p.m. on a business day of the recipient will be taken as given on that day. Otherwise, the notice will be taken to be given on the next business day following the day the email is sent.
29.Waiver – No course of dealing of Buyer nor any delay or omission of Buyer to exercise any right or remedy granted under this order shall operate as a waiver of any right of Buyer, and every right and remedy of Buyer provided herein shall be cumulative and concurrent, unless otherwise expressly provided herein, and shall be in addition to every other right or remedy provided for herein or now or hereafter existing in law or in equity or by statute or otherwise. No waiver shall be binding on Buyer unless it is in writing and signed by an authorized representative of Buyer. Any such written waiver shall apply only to the specified default or instance.
30.Governing Law – This order shall be governed by the laws of the State of Delaware except for its conflict of laws rules.
31.Void Provisions – If any provision of this order is found to be illegal or otherwise unenforceable by any court or other judicial or administrative body, such provision shall be limited to the extent necessary so that it will not render this order unlawful or otherwise unenforceable and the remaining provisions of this order shall remain in full force and effect.
32.Assignment – No assignment or other transfer in whole or in part of this contract or of any monies due or to become due hereunder shall be binding upon Buyer without the prior written consent by Buyer. Any claim, demand, or request for payment under this contract shall be subject to setoff or recoupment for any present or future claims which Buyer or any of its affiliated companies may have against Supplier of any of its affiliated companies.
33.Entire Agreement – This contract manifests integration of the entire agreement of the parties and shall supersede all correspondence, negotiations, and agreements pertaining to the subject matter whether prior to or contemporaneous with this contract.