1. Applicability
(a) This purchase order is an offer by Elite Turning and Machining (the “Buyer”) for the purchase of the goods specified on the face of this purchase order (the “Goods”) from the party to whom the purchase order is addressed (the “Seller”) in accordance with and subject to these terms and conditions (the “Terms” and, together with the terms and conditions on the face of the purchase order, the “Order”). The Order, together with any underlying agreement executed by both parties and/or documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. The Order expressly limits Seller’s acceptance to the terms of the Order and any underlying agreement executed by both parties. Any proposal that includes different or additional terms that vary from the Order are hereby rejected. Notwithstanding the forgoing, any such counterproposals by the Seller shall not operate as a rejection of the Order. The Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller’s general terms and conditions of sale or any other document issued by Seller in connection with the Order.
(b) The Terms apply to any repaired or replacement Goods provided by Seller hereunder.
(c) Buyer is not obligated to any minimum purchase or future purchase obligations under the Order. In no event shall the Order be deemed a requirements contract.
2. Acceptance
Any of the following acts by Seller shall constitute acceptance of the Order: (a) Seller’s acceptance of the Order; (b) initiation of any aspect of performance, or notification to Buyer that Seller is commencing performance under the Order; (c) shipping of any Goods; or (d) acceptance of any form of payment under the Order. Seller shall acknowledge the Order (commercial or rated) in writing within 2 business days. It is Seller’s responsibility to notify Buyer within this timeframe with any exceptions, otherwise, the Order will be deemed accepted and binding. Failure to acknowledge the Order does not release Seller from the contractual obligations of the Order. Buyer may withdraw the Order at any time before it is accepted by Seller.
3. Delivery Date
Seller shall deliver the Goods in the quantities and on the date(s) specified in the Order or as otherwise agreed in writing by the parties (the “Delivery Date”). If Seller fails to deliver the Goods in full on the Delivery Date, Buyer reserves the right to terminate the Order without penalty by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses attributable to Seller’s failure to deliver the Goods on the Delivery Date. Seller shall be solely responsible for any expenses related to expedited delivery incurred by Seller. Buyer has the right to refuse delivery of quantities exceeding those set in the Order by date.
4. Quantity
Seller is required to contact the Buyer in the event of any delivery quantity discrepancy to the Order requirement and for reconciliation prior to the delivery of parts. Buyer reserves the right to reject shipment if the quantity does not match the Order. Any such rejected Goods shall be returned to Seller at Seller’s risk and expense. Without limiting the forgoing, if Seller ships Goods in excess of the quantities listed in the Order, Buyer may, in its sole discretion, return such excess Goods to Seller at Seller’s risk and expense.
5. Shipping Terms
Delivery shall be made DDP (Incoterms 2020) Buyer’s facility or such other address as Buyer may list in the Order. Seller shall give written notice of shipment to Buyer when the Goods are delivered to a carrier for transportation. Seller shall provide all shipping documents, including the commercial invoice, packing list, and any other documents necessary to release the Goods to Buyer within 1 business day after Seller delivers the Goods to the transportation carrier. Buyer’s Order number must appear on all shipping documents, shipping labels, bills of lading, invoices, correspondence and any other documents pertaining to the Order.
6. Title
Title shall pass when the Goods are accepted by Buyer.
7. Packaging
The Goods shall be packed for shipment according to Order or as otherwise instructed by Buyer in writing. If there are no instructions, goods shall be packed for shipment in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Seller’s expense.
8. Amendment and Modification
No change to the Order is binding upon Buyer unless in a writing signed by an authorized representative of Buyer, specifically stating that it amends the Order.
9. Inspection and Rejection of Nonconforming Goods
The Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective in material, workmanship or otherwise. Buyer reserves the right to charge a processing fee of $250 per nonconformance. Without limiting any of Buyer’s rights and remedies under law or equity, if Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) cancel all or any portion of the Order without penalty; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to deliver replacement Goods within 3 business days, without limiting any of Buyer’s rights and remedies under law or equity, Buyer may replace them with goods from another source and charge Seller the cost thereof and cancel the Order without penalty. If Buyer rejects any Goods as non-confirming or defective, and Seller fails to inform Buyer in writing of the manner in which Seller desires that Buyer dispose of such non-conforming Goods within 48 hours of notice, Buyer may dispose of the non-conforming Goods without liability to Seller. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller’s obligations under the Order and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions. The Seller agrees to grant right of access to Buyer, Buyer’s customer, and regulatory authorities to the applicable areas of all facilities at any level of the supply chain involved in the Order and to all applicable records within 48 hours of notification. Buyer’s payment for any non-conforming Goods will not constitute acceptance by Buyer, limit or impair Buyer’s right to exercise any rights or remedies, or relieve Seller of responsibility for the non-conforming Goods.
10. Most Favored Customer
Seller represents and warrants that the Price is the lowest price charged by Seller to any of its external buyers for similar volumes of similar Goods. If Seller charges any other buyer a lower price, Seller must apply that price to all Goods under the Order.
11. Payment Terms
(a) Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with the Terms. Unless otherwise noted on the face of the Order or in any agreement signed by Buyer with respect to the Goods, payment terms are net 60 days from the later of (a) receipt of a true, correct and complete invoice and (b) complete delivery of the Goods unless otherwise directed by Buyer. Payments are not scheduled based upon the date of Seller’s invoice. Payment will be deemed to have been made when deposited in the mail or when an electronic funds transfer has been confirmed as initiated, whichever is earlier. Any applicable discount period will be computed from the date of Buyer’s receipt of a true, correct and complete invoice to the date payment is deemed made with respect to such invoice by Buyer. It is the Sellers responsibility to resolve any invoice discrepancies at the time of Order and not at the time of invoice. Invoice will only be paid at the Order amount. Seller shall, under no circumstances, stop production on this or any other order regardless of disputes under review.
(b) The price of the Goods is the price stated in the Order (the “Price”). Unless otherwise specified in the Order, the Price includes all packaging, transportation, insurance, and customs fees mandated by the Incoterms pursuant to Section 5. No increase in the Price is effective from the time of Order acknowledgment, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer along with revision to the PO.
12. Set-off
Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller.
13. Warranties
Seller warrants to Buyer that for a period of 3 months from the Delivery Date, all Goods will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer; (c) be fit for their intended purpose and operate as intended; (d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; (f) not be counterfeit, (g) not infringe or misappropriate any third party’s patent or other intellectual property rights, and (h) comply with the requirements set forth in the Order. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the breach of this warranty. If Buyer gives Seller notice of any breach of the warranties set forth in this Section, Seller shall, at its own cost and expense, promptly replace or repair the Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the Goods to Seller and the delivery of repaired or replacement Goods to Buyer.
Without limiting the foregoing, Seller will not provide to Buyer any Goods that are, or Seller reasonably suspects are, or contain an unauthorized copy, imitation, substitute or modified component which is represented as genuine (such Goods, “Counterfeit Goods”). If Buyer discovers that Seller has provided a Counterfeit Good, Buyer will provide notice to Seller of such Counterfeit Good. If Seller discovers or reasonably suspects that Seller has provided a Counterfeit Good, Seller will provide notice to Buyer of such Counterfeit Good. Promptly upon the occurrence of either of the events specified in this paragraph, Seller will, at Seller’s sole expense, replace such Counterfeit Goods with a Good that is not a Counterfeit Good.
14. General Indemnification
Seller shall defend, indemnify and hold harmless Buyer, its subsidiaries, affiliates, successors or assigns and its respective directors, officers, shareholders and employees and Buyer’s customers (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the Goods or Seller’s negligence, willful misconduct or breach of the Order. Seller shall not enter into any settlement without Indemnitee’s prior written consent.
15. Intellectual Property Indemnification
Seller shall, at its expense, defend, indemnify and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnitee’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Indemnitee’s prior written consent. Should Buyer’s use, or use by its distributors, subcontractors or customers, of any Goods be enjoined, be threatened by injunction, or be the subject of any legal proceeding, Seller shall, at its sole expense, either: (i) substitute fully equivalent non-infringing Goods; (ii) modify the Goods so that they no longer infringe but remain fully equivalent in functionality; (iii) obtain for Buyer, its distributors, subcontractors or customers the right to continue using the Goods; or, (iv) if none of the foregoing is possible, refund all amounts paid for the infringing Goods.
16. Confidentiality
The contents of this purchase order, acknowledgement, and any other document(s) required are intended and expressly limited for use by customer and Elite Turning and Machining and not to be shared, used, or distributed to any party outside of these two parties.
17. Compliance with Laws, Executive Orders, and Regulations
(a) Seller warrants that the goods and services supplied hereunder will have been produced or provided in compliance with, and Seller will comply with, all applicable laws, orders, rules, regulations, ordinances and conventions, including without limitation, those that relate to equal employment opportunity, wages, hours and conditions of employment, discrimination, occupational health/safety, motor vehicle safety, environmental matters, and anti-bribery, including without limitation, the US Foreign Corrupt Practices Act, US Anti-Kickback Act, and the UK Bribery Act. At Buyer’s request, Seller shall certify in writing its compliance with the applicable local state or federal laws. Seller shall indemnify and hold Buyer harmless from and against any loss, cost, damage, expense or liability claim (including attorney’s fees and other cost of defense) arising from or relating to Seller’s violation of this Section.
(b) No Goods shall contain any mineral that directly or indirectly finances any armed group that has been identified as a perpetrator of human rights abuses, including without limitation those defined as conflict minerals in the rules issued under Section 13(p) of the Securities Exchange Act of 1934. Furthermore, Seller recognizes, consistent with the public policy underlying enactment of the Conflict Minerals provision (Section 1502) of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”), the significant legal and non-legal risks associated with sourcing tin, tantalum, tungsten and gold (the “Conflict Minerals”) from the Democratic Republic of the Congo and adjoining countries (“DRC countries”). Accordingly, Seller commits to comply with Section 1502 of Dodd-Frank and its implementing regulations. In particular, Seller commits to have in place a supply chain policy and processes to undertake (1) a reasonable inquiry into the country of origin of Conflict Minerals incorporated into products it provides Buyer; (2) due diligence of its supply chain, as necessary, to determine if Conflict Minerals sourced from the DRC countries directly or indirectly support unlawful conflict there, and (3) risk assessment and mitigation actions necessary to implement the country of origin inquiry and due diligence procedures. Seller shall take all other measures as are necessary to comply with the Act and its implementing regulations, as they may be amended over time. Seller shall provide updated Conflict Minerals Reporting Template (CMRT) no later than February 15th of each year. The CMRT template can be found at: www.responsiblemineralsinitiative.org
(c) If the Order shows on its face that it is placed in support of a U.S. Government funded prime contract or subcontract, or if the Buyer otherwise notifies the Seller that the Order is placed under a U.S. Government prime contract or subcontract, the Seller will be required to follow the applicable Code of Federal Regulations (CFR), Federal Acquisition Regulations (FAR), and the Department of Defense Federal Acquisition Regulation Supplement (DFARS). These clauses apply to all firm-fixed price (FP), cost reimbursable (CR) and time and material/labor (TM/LH) purchase orders as appropriate.
(d) Seller agrees to flow-down, as required, all applicable CFAR, DFARS, and FAR clauses to their lower tier suppliers.
18. Termination
Buyer may terminate the Order, in whole or in part, at any time with or without cause by providing written notice to Seller. In addition to any remedies that may be provided under the Terms, Buyer may terminate the Order with immediate effect upon written notice to the Seller, before the acceptance of the Goods, if: (a) Seller becomes insolvent or makes a general assignment for the benefit of creditors; (b) a petition under any bankruptcy act or similar statute is filed by or against Seller; (c) Seller fails to make delivery of the Goods within the time specified in the PO; (d) Seller fails to make progress under the Order so as to endanger performance under the Order in accordance with its terms and fails to remedy such condition within five (2) business days of receipt of notice from Buyer of such condition; (e) Seller’s financial condition endangers performance under the Order in accordance with its terms and fails to remedy such condition within five (5) business days of receipt of notice from Buyer of such condition; (f) Seller undergoes a Change of Control; (g) Seller is sanctioned, suspended or debarred by the government; or (h) Seller violates any provision of the Order and fails to correct such violation within ten (10) business days of receipt of notice of such violation. If Buyer cancels the Order pursuant to this Section 17, Buyer will not be liable to Seller for any amounts other than for the purchase price of any conforming Goods received and accepted by Buyer prior to the date of such termination.
“Change of Control” means (i) the sale, transfer, distribution, lease, license or other disposition or assignment of all or substantially all of Seller’s assets or any asset material to Seller’s performance under the Order to any third party; (ii) (A) any acquisition of Seller or any of its controlling affiliates by any third party by any reorganization, dissolution, merger, consolidation, or (B) the exclusive license to Seller’s technology, to the extent such technology is material to Seller’s performance under the Order; (iii) any transfer of the Order by Seller by merger, consolidation, or dissolution; or (iv) the acquisition by a third party or parties of ownership, including beneficial ownership, or power to vote a controlling share of the voting stock in Seller or its controlling affiliates.
19. Suspension.
Buyer may direct Seller in writing to suspend all or any portion of the Order for a period of time not to exceed one hundred twenty (120) days. Any such suspension may be extended by the written agreement of the parties. Seller will promptly comply with the terms of any such suspension and take all reasonable measures to mitigate the costs allocable to the suspended portion of the Order. Seller will promptly commence work on the suspended portion of the Order upon receipt of written notice from Buyer.
20. Insurance
During the term of the Order and for a period of 24 months thereafter, Seller shall, at its own expense, maintain and carry insurance in full force and effect in at least the minimum amounts stated herein: (a) Commercial General Liability (“GCL”) insurance, with limits of at least $3,000,000 combined single limit for bodily injury and property damage per occurrence and $5,000,000 annual aggregate; and (b) Workers’ Compensation Statutory for the jurisdiction where the work is to be performed, including Employers’ Liability, $2,000,000 each person/accident. Seller and Seller’s subcontractors shall furnish, prior to the start of work or at such other time as Buyer requires, certificates or adequate proof of the foregoing insurance. Such insurances will be maintained with insurers that have an AM Best rating of no less than A- VII or equivalent. The policies shall be endorsed to provide thirty (30) days written notice of cancellation to Buyer. Seller agrees that Seller, Seller’s insurer(s) and anyone claiming by, through, under or on Seller’s behalf shall have no claim, right of action or right of subrogation against Buyer and Buyer’s customer(s) based on any loss or liability insured against under the foregoing insurance. The foregoing insurance obligations shall not be construed as limiting Seller’s liability hereunder.
21. Waiver
No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party against whom the waiver is sought to be enforced. Except as otherwise set forth in the Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
22. Confidential Information
(a) “Confidential Information” means any information disclosed by one party to the other party, whether transmitted in oral, written or graphical form or obtained by observation or otherwise during plant or facility visits, including, without limitation, all engineering, statistical, technical, process, method or commercial data, information or know-how, including, without limitation, that relating to research, development, manufacturing, customer lists, trade secrets, Intellectual Property, drawings, models, prototypes or samples and all information regarding pricing, business plans, product lines, methods of business operation and the general business operations and financial information, together with any analyses, compilations, studies or other documents or records prepared by a party or any of its employees or representatives pertaining to such information.
Notwithstanding the foregoing, Confidential Information shall not include any information that: (i) was previously known to the receiving party, as can be documented by contemporary written evidence, free of any obligation to keep confidential and free of any restriction on use or disclosure; (ii) is or becomes generally known to the public other than as a result of a breach of any obligation of confidentiality by the receiving party; (iii) is or becomes available to the receiving party on a nonconfidential basis from a source other than the disclosing party, provided that such source is not bound by any contractual, legal or fiduciary obligations prohibiting the disclosure or transfer of the Confidential Information; or (iv) is independently developed by the receiving party without use of or reference to the Confidential Information of the other party, as documented by contemporary written evidence.
(b) With respect to Confidential Information, the receiving party will: (i) use the Confidential Information solely for performance of its obligations under the Order and reproduce the Confidential Information only to the extent necessary for such purposes; (ii) disclose the Confidential Information to its responsible employees or representatives, but only to the extent necessary to carry out the purpose of the disclosure pursuant to the Order; (iii) hold the Confidential Information in confidence, restrict disclosure of the Confidential Information solely to those employees or representatives with a need to know the Confidential Information and not disclose, transfer or offer to disclose or transfer any Confidential Information to any other person or entity without the prior written consent of the disclosing party; and (iv) advise its employees or representatives receiving Confidential Information of their obligations with respect to the Confidential Information and exercise a degree of care not less than the care used by the disclosing party to protect its Confidential Information, but in no event less than a reasonable degree of care.
(c) Confidential Information shall be deemed the property of the disclosing party and the receiving party will return or destroy, in the discretion of the disclosing party, all Confidential Information received in tangible form immediately upon request; provided, however, that the receiving party shall not be required to return or destroy any Confidential Information stored on backup media created and subject to destruction in the ordinary course. Any Confidential Information not so returned or destroyed will remain subject to the confidentiality obligations set forth herein for as long as such Confidential Information is retained.
(d) If the receiving party is compelled by lawful process to disclose any Confidential Information, such party will provide the other party with prompt written notice of any such demand so that the disclosing party may seek a protective order or other appropriate remedy or waive compliance with the provisions of these Terms. If, failing the entry of a protective order or other appropriate remedy or the receipt of a waiver hereunder, the receiving party is, in the opinion of its legal counsel, legally required to disclose the Confidential Information, such party may disclose that portion of the Confidential Information which its legal counsel advises that it is legally required to disclose and will use its best efforts to obtain assurance that confidential treatment will be accorded to that portion of the Confidential Information which is being disclosed. In no event will the receiving party oppose action by the disclosing party to obtain a protective order or other appropriate remedy or reliable assurance that confidential treatment will be accorded to the Confidential Information.
(e) Each party hereby acknowledges and agrees that in the event it breaches the covenants contemplated by this Section 21, the non-breaching party will suffer irreparable harm for which it will have no adequate remedy at law and that such party may seek equitable relief, including restraining orders and injunctions, without having to show damages or post bond. The non-breaching party’s right to seek and obtain equitable relief does not prevent or limit it from seeking other lawful and/or equitable relief against the breaching party for a breach of the covenants contemplated by this Section 21.
(f) In the event the parties have agreed to a separate agreement relating to protection of Confidential Information, or similar information of a proprietary nature, such agreement shall be incorporated by reference and the provisions affording greater protection to such information shall control.
23. Intellectual Property Rights
(a) “Intellectual Property” means inventions, discoveries and improvements, know-how, works of authorship, technical data, drawings, specifications, process information, reports and documented information and computer software. “Background Intellectual Property” means all Intellectual Property created, conceived or developed by either party without access to any Intellectual Property or Confidential Information of the other party either prior to the Order or other than in the performance of the Order. “Foreground Intellectual Property” means all Intellectual Property created, conceived or developed by either party in the performance of the Order or resulting from access to any Intellectual Property or Confidential Information of the other party. “Joint Intellectual Property” means Intellectual Property jointly created, conceived or developed by the parties in the performance of the Order.
(b) Each party will retain all right, title and interest in and to their respective Background Intellectual Property, subject to any licenses that may be granted in the Order. Buyer hereby grants to Seller a fully paid-up, non-exclusive license to use Buyer’s Background Intellectual Property, Foreground Intellectual Property, and Joint Intellectual Property solely for the purposes of designing, manufacturing, selling or otherwise providing the Goods under the Order. Seller hereby grants to Buyer a worldwide non-exclusive, royalty free license to use Seller’s Background Intellectual Property to the extent necessary for Buyer to use the Goods and to complete its obligations under any contracts between Buyer and Buyer’s customer(s).
(c) Buyer will be the sole and exclusive owner of all Foreground Intellectual Property and Joint Intellectual Property and Buyer will retain any and all rights to file any patent applications or other registrations thereon. Seller hereby agrees to grant and grants to Buyer any and all license rights in Seller’s Background Intellectual Property required for Buyer to use the Foreground Intellectual Property and Joint Intellectual Property. Seller hereby irrevocably assigns, transfers, and conveys to Buyer all right, title and interest in and to all Seller Foreground Intellectual Property and Joint Intellectual Property.
24. Force Majeure
Neither party shall be liable to the other for any delay or failure in performing its obligations under the Order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes or industrial disturbances. Seller’s economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under the Order. If a Force Majeure Event prevents Seller from carrying out its obligations under the Order for a continuous period of more than 30 days or threatens Buyer’s commitments to Buyer’s customer(s), Buyer may terminate the Order without penalty by giving written notice to Seller. Seller and Buyer hereby acknowledge the on-going COVID-19 pandemic and agree that such pandemic shall not excuse performance hereunder absent new lockdowns or other governmental measures that render performance impossible.
25. Assignment
Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Order without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder.
26. Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in the Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from the Order.
27. No Third-Party Beneficiaries
The Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
28. Governing Law
All matters arising out of or relating to the Order shall be governed by and construed in accordance with the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of New York. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this contract.
29. Submission to Jurisdiction; Waiver of Objection to Venue
Any legal suit, action or proceeding arising out of or relating to the Order shall be instituted in the federal courts of the United States of America or the courts of the State of New York in each case located in the County of Monroe, State of New York, and each party irrevocably submits to the exclusive personal jurisdiction of such courts in any such suit, action or proceeding. Each party hereby waives any objection based on Forum Non Conveniens and any objection to venue of any action instituted hereunder in any of the aforementioned courts and consents to the granting of such legal or equitable relief as is deemed appropriate by such court.
30. Cumulative Remedies
The rights and remedies under the Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
31. Notices
All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of the Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the Order, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
32. Severability
If any term or provision of the Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
33. Survival
Provisions of the Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of the Order.
34. Business Continuity
Seller shall develop and maintain a Business Continuity (Disaster Recovery) Plan acceptable to Buyer for the recovery and continuation of business related to the design, development, certification, manufacture. Sale, use and/or support of the Goods furnished hereunder, in the event of a disaster or emergency. Such plan shall, among other things. Prevent or limit the interruption of the supply of Goods in conformity with the requirements set for herein and guarantee that no more than 45 days will be required to resume deliveries to Buyer. Supplier shall furnish a copy of Business Continuity Plan to Buyer upon request.
35. Miscellaneous
The Order, together with these Terms and the exhibits, schedules, other attachments, and documents incorporated herein by reference are the sole and exclusive statement of the parties’ understanding and agreement with respect to the transactions contemplated hereby, notwithstanding any other terms that might be contained in any acknowledgement or other document received from Seller or submitted to Buyer. (a) If there is an irreconcilable conflict among the provisions of the Order and its exhibits, schedules, other attachments, and documents incorporated herein by reference the following order of precedence applies: any document executed by both parties after execution of the Order that is expressly intended to amend or supersede the terms of the Order; (b) the face of the Order and any supplemental terms attachments included or incorporated by reference; (c) these Terms; and (d) other documents agreed to in writing by the parties.
