The following "Terms and Conditions" shall govern all purchases of goods and services by RevZilla Motorsports, LLC, or any of its affiliates or any of its or their respective purchasing groups, divisions, segments, contractors, or agents ("Buyer") from the supplier ("Supplier") under the Purchase Order (the "Purchase Order") to which the Terms and Conditions are attached, incorporated on the back hereof, or otherwise incorporated by referenced.
OFFER AND ACCEPTANCE.
The Purchase Order constitutes an offer or counteroffer (an "Offer") by Buyer to buy the goods and services identified on the Purchase Order (together with any samples, prototypes and other deliverables required to be provided under the Purchase Order, the "goods and services") from Supplier, subject to and limited to the terms and conditions on this document and the attachments to these Terms and Conditions. This Offer expires thirty (30) days after its date, unless this Offer has been accepted by Supplier or revoked by Buyer prior to acceptance by Supplier. This Offer may be accepted by Supplier executing the Purchase Order and returning a signed copy to Buyer, or by any other commercially reasonable means of acceptance by Supplier, including by shipment of goods, performance of services, or otherwise.
DELIVERY AND PERFORMANCE.
Time is of the essence with respect to performance of the Purchase Order, including, without limitation, delivery of conforming goods and performance of conforming services under the Purchase Order. The delivery date(s) set forth in the Purchase Order is (are) the required delivery date(s) (or in the case of services, the delivery and performance date(s)) at Buyer's designated facility, unless otherwise expressly set forth in the Purchase Order. Buyer reserves the right to refuse all or any portion of the goods or services and/or to terminate all or any portion of the Purchase Order if Supplier fails to deliver timely any portion of the goods, or to perform timely any portion of the services, in accordance with the Purchase Order. If Supplier's delivery of conforming goods will not meet the required delivery d ate(s) for any reason, Supplier shall provide Buyer with written notice of such delay and, unless Buyer terminates the Purchase Order as a result of such breach, ship the conforming goods via the most expeditious available method of transportation, and any additional cost resulting from such method of transportation shall be borne by Supplier. Acceptance of any initial shipments of goods or performance of services shall not bind Buyer to accept future shipments of goods or performance of services, nor deprive it of the right to return goods already accepted, including due to any failure of such goods to conform to the provisions of the Purchase Order or by reason of defects, latent or patent, or other breach of warranty. Delivery of goods under the Purchase Order shall not be deemed to be complete until all of the goods contemplated by the Purchase Order have been actually received and accepted by Buyer, notwithstanding delivery to any carrier, and performance of services under the Purchase Order shall not be deemed to be complete until all of the services contemplated by the Purchase Order have been fully performed, received, and accepted by Buyer. Goods received in advance of Buyer's delivery schedule may, at Buyer's option, be returned at Supplier's expense or be accepted and payment withheld until the delivery date(s) set forth in the Purchase Order. Supplier shall not unreasonably anticipate delivery by purchasing materials or manufacturing quantities earlier than or in excess of what is reasonably required to meet Buyer's delivery schedule.
PACKING AND SHIPPING.
The shipping terms for all goods shipped from a location within the United States are F.O.B. (as that term is defined and used in section 2-319 of the Uniform Commercial Code) Buyer's designated facility or such other location as is designated by Buyer. The shipping terms for all goods shipped from a location outside the United States are DDP (as that term is defined under INCOTERMS 2010) Buyer's designated facility or such other location as is designated by Buyer. For the avoidance of doubt, Supplier shall be responsible for the costs of shipping the goods to the applicable destination, and if Buyer makes arrangements to pay such shipping costs, Buyer shall have the right to offset such costs against amounts owing to Supplier under the Purchase Order. Buyer shall have the right to route all shipments; provided, however, that if Buyer does not route any particular shipment, Supplier shall ensure that (a) all freight shipments, carload or less carload, to be made by route taking lowest rate, and (b) delivery is made by truck or other means of transportation except freight, express or parcel post, delivery is to be guaranteed and delivery charges prepaid by Supplier. Prior to each shipment, Supplier shall contact Buyer for the purpose of allowing Buyer to consult with Supplier regarding the terms of such shipment. Immediately upon shipment, Supplier shall provide Buyer with written notice of shipment, specifying complete shipping and routing information. All goods shall be suitably packed, marked with the Purchase Order number and other information specified by Buyer, shipped in accordance with the shipping instructions set forth in the Purchase Order and otherwise prepared for shipment in accordance with the requirements of the carrier so as to obtain a competitive transportation cost. No charge shall be made to Buyer for boxing, packing, crating, carting or transportation unless separately itemized on the Purchase Order. Packing slips shall accompany each shipment, showing the order number, quantity and description of the goods; and the last copy must state "Order Complete." In the event no such packing slip accompanies any shipment, the count or weight or other measure of Buyer shall be final and conclusive. Buyer shall not be obligated to accept any shipments in excess of the ordered quantity, and any excess or advance shipments may be returned to Supplier, or stored by Buyer, at Supplier's expense. Buyer shall have the right to purchase any such excess or advance shipments from Supplier at the purchase price designated in the Purchase Order. Regardless of shipping terms, all risk that the goods may be lost, damaged, stolen or delayed in transit shall be borne by Supplier until conforming goods have been actually received, inspected, tested and accepted by Buyer. Supplier shall be liable to Buyer for any loss or damage resulting from Supplier's failure to act so as to provide adequate protection during shipment. Additional expenses, charges or claims incurred as a result of deviation from the specified route, noncompliance with other shipping instructions or improper description of the shipment in shipping documents shall be borne by Supplier. All invoices, bills of lading, packaging, cases, shipping tags and similar documents shall set forth the applicable destination, and, Purchase Order number. Originals of all shipping costs and expenses much accompany invoices for pre prepaid shipments. Except for delays that are excused under this Agreement, Supplier shall be solely liable for any and all costs and expenses for air shipments required because of delivery delays.
All goods supplied and services performed pursuant hereto shall be subject to inspection and test by Buyer and its contractors and agents, and acceptance or rejection by Buyer. Such inspection and testing of the goods and/or services by Buyer and its approved contractors and agents may be completed at any time and at any place, whether during or after manufacture as to goods, or during or after performance as to services, and notwithstanding the terms of delivery, performance, or payment, or, as to goods, that title has not passed to Buyer. Payment for goods or services prior to inspection shall not constitute acceptance of such goods or services. Any inspection, testing, or other evaluation by Buyer shall in no way affect, waive, or invalidate any of Supplier's warranties in respect of the goods and services or any of Buyer's other rights or remedies hereunder, at law, in equity or otherwise.
PRICING AND PAYMENT. The full, fixed purchase price for the goods and services, including, without limitation, performance of all of Supplier's obligations under the Purchase Order, is set forth on the Purchase Order. If no pricing is set forth on the Purchase Order, then the purchase price shall be the last price charged by Supplier for the goods and services. Supplier shall notify Buyer in writing in advance of accepting the Purchase Order in the event that the pricing set forth on the Purchase Order is higher than Supplier's pricing current in effect for the goods and services covered by the Purchase Order. The purchase price payable under the Purchase Order shall be paid in accordance with the payment terms set forth on the Purchase Order. Without limiting the foregoing, (a) Supplier shall issue each invoice after delivery of the applicable conforming goods or performance of the applicable conforming services, but in no event later than thirty (30) days after such delivery or performance (in either case, unless the Purchase Order otherwise sets forth a different payment schedule), and (b) as to goods, the original and one copy of a Bill of Lading or comparable shipping document for the delivery of goods must accompany Supplier's invoices. Payment of such invoices shall be subject to a pro rata reduction by Buyer for any (w) shortage in the goods shipped, (x) nonconforming goods delivered by Supplier, (y) failure-to perform services, or (z) nonconforming services performed by Supplier. Any discount period shall be calculated from the date of receipt by Buyer of an appropriate invoice. Upon and during any breach of the Purchase Order by Supplier, Buyer may withhold payment of the price. Invoices shall be sent to Buyer at the following address:
RevZilla Motorsports, LLC
4020 S 26th St
Philadelphia, PA 19112
TAXES. Buyer shall not be liable for, and Supplier shall pay, all federal, state, local and foreign taxes, duties, customs, assessments and other fees and charges of any nature whatsoever imposed by any governmental authority arising in connection with the sale, purchase, transportation, use or possession of the goods and services, except those taxes expressly identified on the face of the Purchase Order as being payable by Buyer.
Supplier certifies, covenants, agrees, represents and warrants that all goods (and the materials, parts or components comprising such goods) delivered pursuant to the Purchase Order shall be (i) new and not used, remanufactured or refurbished, unless otherwise expressly specified on the Purchase Order, (ii) free from defects in design, material and workmanship, conform to all specifications, instructions, samples, drawings, and standards of quality and performance provided by Buyer, (iii) free from any and all liens and encumbrances, (iv) suitable for their intended purpose and (v) fit and safe for consumer use and comply with all applicable Federal Motor Vehicle Safety standards. If Supplier breaches this warranty, Supplier shall, at Buyer's option, promptly repair or replace the nonconforming goods or refund any and all amounts paid by Buyer to Supplier in respect of such nonconforming goods. Supplier shall be solely liable for all transportation and storage costs incurred by Buyer or Supplier in connection with returning or storing any nonconforming goods to be repaired or replaced by, or returned to, Supplier. After Buyer notifies Supplier of any nonconforming goods, Supplier shall bear all risk of loss with respect to such nonconforming goods.
Supplier certifies, covenants, agrees, represents and warrants that all services shall be performed (i) in accordance with all specifications and instructions provided by Buyer, (ii) in a professional and competent manner in accordance with industry standards and to the satisfaction of Buyer and (iii) using properly qualified and trained employees of Supplier; provided, however, that where the Purchase Order specifies a particular standard or criterion for performance of such services, this warranty shall not diminish that standard of performance; provided, further, that Supplier shall retain the discretion and control with respect to the manner and means of performing such services and shall at all times remain an independent contractor. If Supplier breaches this warranty, Supplier shall, at a minimum and at its own expense, either: (y) re-perform the services to the satisfaction of Buyer; or (z) refund the fees paid for said non-conforming services. Supplier will not use any third party material in the course of providing the services, without such third party's express written consent.
Supplier certifies, covenants, agrees, represents and warrants that (i) neither the goods and services (including, without limitation, any software, firmware or equipment), nor the use thereof, will in any way infringe or contribute to the infringement of any patent, copyright, trademark, service mark, trade secret or other proprietary right in the United States or elsewhere, and no claim, action or suit alleging any such infringement or contribution to infringement is pending or threatened against Supplier, its employees, agents, suppliers or contractors; (ii) Supplier has full power and authority to grant all of the rights granted by it in the Purchase Order; and (ii) any and all royalties, fees and costs for such rights are set forth on the face of the Purchase Order, and except as otherwise expressly set forth on the face of the Purchase Order, no royalties, fees or other costs are payable to Supplier or any third party for any such rights.
All of the certifications, covenants, agreements, representations and warranties of Supplier together with its service warranties and guaranties, if any, shall run to Buyer and Buyer's affiliates and customers. Buyer's approval of designs furnished by Supplier shall not relieve Supplier of its obligations under this Section 7 or otherwise under the Purchase Order. The goods and services to be provided under the Purchase Order are intended for the manufacture and sale of the products of Buyer and its affiliates, and in which Buyer and its affiliates have built a substantial and valuable reputation for quality and efficiency. As a result, any nonconforming goods or services provided by Supplier may occasion special damage to Buyer and its affiliates. All rights and remedies of the Buyer and its affiliates hereunder shall be in addition to any other rights and remedies provided at law, in equity, or otherwise.
Buyer may at any time by written or electronic notice make changes within the general scope of Purchase Order, including, without limitation, with respect to any one or more of the following: (a) drawings, designs or specifications, (b) methods of shipments or packing, (c) quantities, (d) delivery schedules, (e) place of delivery, and (f) instructions with respect to the rendition of services. To the extent any such change increases or decreases the cost of, or the time required for, the performance of the Purchase Order, Supplier or Buyer, as the case may be, shall be entitled to a reasonable and equitable adjustment in the price and/or delivery schedule; provided, however, that under no circumstances shall Buyer be responsible for any raw materials purchased by Supplier in excess of the quantities released or for the fabrication of parts in advance of the lead times necessary to provide the goods and services in accordance with the terms set forth in the Purchase Order. The burden of proving entitlement to any adjustment under this paragraph shall be borne by the party requesting the adjustment. Any claim for adjustment by Supplier under this paragraph must be made within thirty (30) days after Buyer delivers the written notification of the change, and otherwise shall be deemed waived. Price increases or extension of delivery schedules shall not be binding upon Buyer unless evidenced by a Change Order issued and signed by an authorized officer of Buyer.
Supplier shall indemnify, defend and hold harmless Buyer and its affiliates, and its and their respective directors, officers, employees, agents, insurers, customers, successors and assigns (collectively, the "Buyer Indemnified Parties"), from and against any and all liabilities, damages and expenses (including, without limitation, attorneys' fees and legal costs) that they, or any of them, may sustain or incur as a result of (i) any actual or alleged breach of any representation, warranty or covenant made by Supplier in the Purchase Order, including, without limitation, Section 12 hereof, (ii) any actual or alleged claim that the goods or services provided to Buyer under the Purchase Order, or that the operation, possession or use of the Deliverables or receipt of Intellectual Property Rights, infringes upon any third party's Intellectual Property Rights (an "Intellectual Property Infringement"), or (iii) any actual or alleged injury to or death of any person, or any actual or alleged damage to or loss of any property, arising out of or relating to (x) any goods provided by Supplier, its employees, agents, suppliers or contractors, (y) any services performed by Supplier, its employees, agents, suppliers or contractors or (z) the negligent acts or omissions or intentional misconduct of Supplier, its employees, agents, suppliers or contractors.
In addition, in the event of an Intellectual Property Infringement, Supplier will be required at its own expense and option either to: (i) procure the right for Buyer and its affiliates to continue using the goods or services; (ii) make such alteration, modification or adjustment to the goods or services so that they become non-infringing without incurring a material diminution in function in Buyer's reasonable estimation; or (iii) replace the good or services at no cost to Buyer with non-infringing substitutes provided that the substitutes do not entail a material diminution in function in Buyer's reasonable estimation. If none of the foregoing is commercially reasonable, Buyer may return the infringing good or service and Supplier will promptly refund the sum of all payments made by Buyer hereunder for such good or service, and any good or service, dependent thereon, within thirty (30) days of such return.
INSURANCE. For a period commencing on the date of the Purchase Order and expiring three (3) years after delivery of the goods and performance of the services, Supplier, at its sole cost and expense, shall procure and maintain the insurance coverages and coverage levels, in such amounts, under such forms of policies, upon such terms, for such periods and written by such companies, as reasonably required from time to time by Buyer to insure the Buyer Property and/or to protect Buyer from Supplier's failure to comply with its indemnification and other insurable obligations under the Purchase Order, including, at a minimum, those insurance coverages set forth in other parts of the Purchase Order. In all cases, such insurance policies shall provide for the waiver of the insurer's right of subrogation against Buyer and Supplier. All policies of insurance shall include Buyer as an additional named insured and provide for at least thirty (30) days' prior written notice of cancellation or modification to be given to Buyer. At any time and from time to time upon Buyer's request, Supplier shall promptly provide Buyer with certificate(s) of such insurance or other evidence satisfactory to Buyer as to Supplier's compliance with this paragraph. Supplier's compliance with this paragraph shall not release Supplier from, or limit in any way, Supplier's obligations or liabilities under the Purchase Order.
Supplier acknowledges that prior to or during performance of the Purchase Order, Supplier may be given access to, or may otherwise acquire, obtain or develop, information and data, including engineering data, technical data, customer information and pricing information, equipment, tools, gauges, patterns, designs and drawings that is proprietary to Buyer or otherwise is comprised of components, designs or data that is proprietary to Buyer (collectively, the "Buyer Proprietary Information, Tools and Designs"). Supplier shall not (a) use any of the Buyer Proprietary Information, Tools and Designs for any purpose other than performance of its obligations under the Purchase Order; or (b) disclose or make available any of the Buyer Proprietary Information, Tools and Designs to any person or entity other than those of its employees or agents who have a definable need to have access to such Buyer Proprietary Information, Tools and Designs in order to allow Supplier to perform its obligations hereunder. The obligations of Supplier under this Section 12 are continuing and shall survive the completion or earlier termination of the Purchase Order, and are also binding on Supplier's employees, officers, directors, agents, advisors and affiliates. Upon expiration or termination of this order, Supplier shall return all such Buyer Proprietary Tools, Designs and Data, including copies thereof, to Buyer or make such other disposition thereof as may be directed or approved by Buyer in writing. Supplier will not make any press release, publication, advertisement, or other type of announcement arising out of or otherwise relating to the Purchase Order without Buyer's prior written approval. In addition, Supplier shall not use any of the Buyer Marks (as defined below) or identifying descriptions in any publication, broadcast, advertisement, promotions or other public or private document or any other type of announcement without Buyer's prior written consent.
For purposes of this Agreement:
"Intellectual Property Rights" or "Intellectual Property" as the context requires, means all of the following worldwide intangible legal rights, whether or not filed, perfected, registered or recorded and whether now or hereafter existing, filed, issued or acquired: (i) patents, patent applications and patent rights, with respect to both utility patents and design patents, including any and all continuations, divisionals, reissues, reexaminations or extensions thereof; (ii) mask rights and rights associated with works of authorship, including but not limited to copyrights, copyright applications, copyright registrations and moral rights; (iii) rights relating to the protection of trade secrets and confidential information, including but not limited to rights in know-how, technical data, specifications, techniques, industrial property, customer, vendor and prospect lists and all associated information or databases and other confidential or proprietary information, including without limitation any confidential or proprietary information disclosed by one Party to the other; (iv) industrial design rights; (v) trademark rights and all related goodwill; and (vi) any rights analogous to those set forth in the preceding clauses and any other proprietary rights relating to intangible property; and
"Deliverables" means the tangible items, including without limitation any and all finished or draft documents, works in progress, reports, analyses, test results, field data, notes, plans, metrics, designs, drawings, specifications, computer data and computer programming (including all source code), any other data, inventions, discoveries, improvements, customizations, configurations, interfaces, enhancements, modifications, patentable subject matter, writings, works of authorship, copyrightable subject matter, ideas, concepts, information, techniques, know-how and show-how, whether or not patentable, copyrightable or otherwise legally protectable, that Supplier may create as a result of or in connection with the goods and services, together with all related Intellectual Property Rights therein.
All Deliverables are and will remain the sole and exclusive property of Buyer as "works made for hire" pursuant to 17 U.S.C. §101 and § 201(b) for which Buyer is deemed the author and copyright owner. To the extent that any Deliverables are not deemed "works made for hire," Supplier hereby assigns, and agrees to assign, to Buyer all right, title and interest in and to any and all such Deliverables, whether or not protected by statute, that are conceived, created, made, developed or acquired by Supplier in the performance of its obligations under the Purchase Order. Supplier will cooperate with and assist Buyer in the application for and the execution of any applications and/or assignments reasonably necessary to obtain any patent, copyright, trademark or other protection for any portion or component of the Deliverables as Buyer deems appropriate. Supplier will treat all Deliverables as Confidential Information. Neither Buyer's ownership of the Deliverables and the Intellectual Property Rights therein, nor the assignment of rights set forth in this Section 14(b), shall grant Buyer any rights in or to Supplier's Intellectual Property beyond the license set forth in Section 14(d) and as otherwise expressly set forth in the Purchase Order.
All Provider Intellectual Property is and will remain the sole and exclusive property of Provider.
Provider hereby grants to Buyer and its affiliates a perpetual, irrevocable, worldwide, non-exclusive, royalty-free, fully paid-up right and license to make, have made, use, sell, reproduce, distribute, modify, display, access, import, export and sublicense any Provider Intellectual Property therein as provided to Buyer or incorporated in any Deliverables or services and as necessary for Buyer or any affiliate to exercise its rights in and use of the Deliverables and services.
In the event that any of the goods and services from Supplier include certain software embedded therein, used therewith or relating thereto (the "Software"), then the following shall apply:
Supplier hereby grants to Buyer and its affiliates a perpetual, irrevocable, world-wide, non-exclusive license to use the Software for its business activities. For the purposes of this Section, the term "use" means to copy, install, access, execute, operate, distribute, archive and run the Software for test, development, production, archival, emergency restart, and disaster recovery purposes.
In addition to any other warranties provided in the Purchase Order, Supplier further represents and warrants as follows: (i) the Software does not contain any virus or similar code that may destroy, modify, alter, or cause the destruction, modification or alteration, in whole or in part, of any of Buyer's equipment, devices, software, or data; and (ii) the Software will materially conform to Supplier's generally available documentation for the greater of (a) six (6) months (or such greater period of time as may be provided in the Agreement) from the date of delivery to Buyer or (b) for so long as Buyer purchase support and/or maintenance for the Software from Supplier.
COMPLIANCE WITH LAWS.
Supplier hereby represents, warrants, certifies and agrees that all work performed and all goods and services delivered to Buyer pursuant to the Purchase Order shall be performed, provided, manufactured, produced, packaged, labeled, shipped, delivered, invoiced, sold and - if required - registered in accordance and compliance with all applicable federal, national, state and local laws, orders, rules, ordinances and regulations, including without limitation the following (as each of the same may be amended from time to time) (unless and to the extent Supplier has demonstrated to Buyer's reasonable satisfaction that Supplier is exempt from any of the following):
sections 6, 7, and 12 of the federal Fair Labor Standards Act, as amended, and regulations and orders of the U.S. Department of Labor issued under section 14 of said Act;
the Federal Motor Vehicle Safety Laws;
the Federal Clean Air Act, Subchapter II, Emissions Standards for Moving Sources, 42 U.S.C. §§ 7521-7590;
Executive Order 11246, as amended, the Rehabilitation Act of 1973, as amended, Executive Order 13496 and its notice posting requirements, and the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended (unless the amount owing from Buyer to Supplier under the Purchase Order is less than $25,000); and
all rules, regulations, and relevant orders of the Secretary of Labor relating to Executive Order 11246, as amended, the Rehabilitation Act of 1973, as amended, Executive Order 13496 and its notice posting requirements, and the Vietnam Era Veterans' Readjustment Assistance Act of 1974, as amended (unless the amount owing from Buyer to Supplier under the Purchase Order is less than $25,000).
- Supplier covenants and agrees, regardless of size or location, that all goods provided to Buyer are compliant with the requirements of California Proposition 65, provide “clear and reasonable” warnings on products that exceed the exposure limit for any listed chemical, including but not limited to the lead-limits, present in the product.
Without limiting the foregoing, Supplier hereby represents, warrants, certifies and agrees that it shall comply with (to the extent applicable), and provide such cooperation as Buyer may request from time to time to assist Buyer with regard to actions that Buyer determines to take in response to, the requirements of (x) section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Action relating to "Conflict Materials" and the related rules and regulations issued by the U.S. Securities and Exchange Commission in connection therewith, (y) the California Transparency in Supply Chains Act of 2010 and the related rules and regulations issued by any governmental authority in the State of California in connection therewith and (z) similar laws, orders, rules, ordinances and regulations of other jurisdictions.
Without limiting Section 16 above, Supplier shall comply, and shall cause each of its employees, and approved agents, suppliers, and contractors to comply, with all a pplicable federal, state, local and foreign laws, regulations, codes, orders and standards, including, without limitation, the U.S. Foreign Corrupt Practices Act, as amended, during and in connection with t he performance of the Purchase Order (in the case of Supplier's approved agents, suppliers, and contractors, during and in connection with performance of their obligations to Supplier related to the performance of the Purchase Order). Without limiting the generality of the preceding sentence, Supplier shall remain, and shall cause each of its approved agents, suppliers, and contractors to remain, in compliance with all environmental, health, safety and labor laws, regulations, codes, orders and standards applicable to the operation and use of the facilities at which goods or services covered by the Purchase Order are manufactured, stored or performed. In addition to its other obligations under the Purchase Order, Supplier shall (a) conduct its business in an ethical and fair manner; (b) maintain facilities for its workers that provide a safe and healthy environment; (c) provide wages and benefits that conform to the prevailing industry standards; (d) not, directly or indirectly, exceed local work hour limits; (e) not, directly or indirectly, use any child labor (i.e., workers younger than 16 years of age or the compulsory age for school attendance) or purchase materials from any person or entity that uses child labor; (f) not, directly or indirectly, use prison or other forced labor or purchase materials from any person or entity that uses prison or other forced labor; (g) not, directly or indirectly, discriminate on the basis of race, color, national origin, gender, religion, disability, age, sexual orientation or similar factors that are unrelated to a person's ability to perform, or performance of, the applicable task; and (h) cause its approved agents, suppliers, and contractors to comply with the provisions set forth in items (a) through (g).
FORCE MAJEURE-Neither party shall be liable for any damage as a result of any delay in its performance due to any cause beyond its own reasonable control, including acts of God, sabotage, fire, floods, explosions, epidemics or quarantines, freight embargos, insurrections, occurrences commonly referred to as terrorist attacks and any armed hostilities associated therewith, war and/or continuance of war, or any similar events (but specifically excluding strikes, slowdowns or other work stoppages associated with labor problems, none of which shall excuse any delay or default under the Purchase Order), provided, however, that the party affected thereby gives the other party written notice of the occurrence of any such event that is likely to cause any delay (such notice to be provided as promptly as possible and in any event within twenty-four (24) hours after such occurrence), setting forth in the notice its best estimate of the length of any delay, and provided further that such affected party shall use its best efforts to expeditiously overcome the effects of such event and to resume performance. In the event of any such excused delay, the time of performance shall be extended for a period equal to the time lost by reason of the delay; provided, however, that if Supplier provides notice to Buyer under this paragraph and either the notice contains an estimate that the delay resulting from the event will exceed ninety (90) days, or the delay actually experienced as a result of the event exceeds ninety (90) days, Buyer may, at any time prior to receipt of written notice from Supplier of the resumption of Supplier's performance, terminate the Purchase Order without liability to Supplier.
Without limiting any other provision of the Purchase Order or Buyer's rights under applicable law, Buyer may terminate the Purchase Order, in whole or in part, upon written notice to Supplier, (i) for its own convenience at any time, or (ii) in the event Supplier (y) breaches any provision of the Purchase Order, whether or not the breach is deemed "material," or (z) ceases to exist or makes an assignment for the benefit of creditors, or fails or is unable to pay its debts as they become due, or becomes the subject of any voluntary or involuntary bankruptcy, reorganization, liquidation or other insolvency proceeding, or applies for or consents to the appointment of a receiver for any of its property.
In the event Buyer terminates the Purchase Order (or any part thereof) for its own convenience under Section 20(a)(i), Buyer shall pay to Supplier all reasonable out-of-pocket costs incurred by Supplier in the performance of the Purchase Order (or the terminated part thereof) prior to such notice, as evidenced by reasonable documentation. In the event Buyer terminates the Purchase Order (or any part thereof) under Section 20(a)(ii), in addition to any other rights Buyer may have under the Purchase Order, at law, in equity or otherwise, Buyer may procure or otherwise obtain, upon such terms and in such manner as Buyer may deem appropriate, goods or services similar to those covered by the Purchase Order (or the terminated part thereof), and Supplier shall be liable to Buyer for any excess costs of such similar goods or services.
Upon any termination of the Purchase Order (or any part thereof), whether pursuant to this paragraph or otherwise, Supplier shall transfer title and deliver to Buyer or its designee, in the manner and to the extent requested in writing by Buyer, such completed or partially completed goods, articles and materials, parts, tools, dies, patterns, jigs, fixtures, plans, drawings, information and contract rights as Supplier has produced or acquired in connection with the performance of the Purchase Order (or the terminated part thereof), and Buyer shall pay to Supplier all reasonable out-of-pocket costs incurred by Supplier prior to Buyer's delivery of notice of termination as a result of the production or acquisition of such completed or partially completed goods, articles and materials, parts, tools, dies, patterns, jigs, fixtures, plans, drawings, information and contract rights, as evidenced by reasonable documentation (provided that Buyer has not previously paid such costs pursuant to the preceding sentence). Except as otherwise expressly set forth in this paragraph, Buyer shall not be responsible to Supplier for any compensation, reimbursement, profits or damages whatsoever as a result of any termination of the Purchase Order (or any terminated part thereof). Supplier shall continue performance of the Purchase Order to the extent the Purchase Order is not terminated by Buyer.
Supplier understands and agrees that Buyer's business operations are dependent on the receipt and use of the good and services, and that the inability to receive and use the good and services could result in irreparable damage to Buyer. Therefore, Supplier agrees that in the event of any termination of the Purchase Order for any reason, Supplier shall fully cooperate with Buyer in the transition to another licensor of replacement or substitute good and services. In the event Buyer terminates the Purchase Order under Section 20(a)(i), Supplier shall be paid at the rates set forth in Purchase Order, or as otherwise mutually agreed to by the parties. Otherwise, such services shall be provided by Supplier at no additional cost to Buyer. Buyer may seek specific performance of Provider's obligations under this Section 20(d), and Supplier hereby waives any defense that damages are an adequate remedy. Compliance with this Section 20(d) by either Party shall not constitute a waiver or estoppel with regard to any rights or remedies available to the Parties.
Sections 6, 7, 9, 10, 11, 12, 13, 14, 15, 20(d), 20(e) and 21 of the Purchase Order shall survive any expiration or termination of the Purchase Order and may be enforceable by Buyer and its affiliates, successors and assigns.
Upon effective acceptance by Supplier, the Purchase Order (including these Terms and Conditions and any other documents referenced or incorporated into the Purchase Order or these Terms and Conditions) shall constitute the entire agreement between the parties (except for any additional warranties given by Supplier) with respect to the purchase and sale of the goods and services identified herein, superseding any and all previous communications and negotiations, whether oral or in writing. These Term and Conditions are hereby incorporated in their entirety into the Purchase Order, and references in these Terms and Conditions to the Purchase Order shall be deemed to mean the Purchase Order incorporating these Terms and Conditions. Buyer hereby provides notice of objection to and rejection of any additional or different terms or provisions (except additional warranties given by Supplier) in any quotation, acknowledgment, invoice or other form or correspondence supplied by Supplier; such additional or different terms or provisions are hereby deemed to be material alterations and no such additional or different term or provision (except additional warranties given by Supplier) shall become part of the agreement between the parties. In the event of any conflict at any time between any provision contained in the Purchase Order (including these Terms and Conditions) and any term or condition or attempted limitation of warranty set forth in any communication from Supplier, it is agreed by Supplier that such provision in the Purchase Order (including these Terms and Conditions) shall control such conflict and govern the purchase contemplated by the Purchase Order.
The Purchase Order shall be construed and interpreted exclusively in accordance with the laws of the Commonwealth of Pennsylvania, U.S.A., excluding conflict of laws principles.
CONSENT TO JURISDICTION.
Supplier agrees that all actions or suits arising out of the Purchase Order shall be brought, heard and determined exclusively in either the Commonwealth of Pennsylvania, U.S.A. or the United States District Court for the Eastern District of Pennsylvania, U.S.A., and Supplier consents to personal and subject matter jurisdiction and venue in such courts and waives and relinquishes all right to attack the suitability or convenience of such venue or forum. Supplier waives personal service of any and all process upon it in any such action or suit and consents to all such service of process made by mail or by messenger directed to it at the address specified on the face of this document. Supplier acknowledges that all directions issued by the forum court, including, without limitation, all injunctions and other decrees, shall be binding and enforceable in all jurisdictions and countries.
The Purchase Order may not be modified or terminated orally, or by any course of performance, dealing, trade, or any course of conduct, and no modifications, amendments or changes to the Purchase Order shall be valid and binding unless made in writing and signed by an authorized officer of Buyer.
NON-WAIVER OF RIGHTS.
No waiver by Buyer of any of the provisions of the Purchase Order shall be effective unless explicitly set forth in writing and executed by an authorized officer of Buyer. Except as expressly otherwise set forth in the preceding sentence, no action taken pursuant to the Purchase Order shall be deemed to constitute a waiver by Buyer of compliance with any representations, warranties or covenants made by Supplier in the Purchase Order. The waiver by Buyer of a breach of any provision of the Purchase Order shall not operate or be construed as a waiver of any prior or subsequent breach.
RELEASE OF INFORMATION.
Supplier agrees that prior to the issuance of any publicity, or publication of any advertising, which in either case makes reference to the Purchase Order, or to Buyer, Supplier will obtain the written permission of Buyer with respect thereto (which permission Buyer may withhold in its sole discretion).
Supplier may engage subcontractors to assist Supplier in meeting its obligations under the Purchase Order, provided that the following conditions are met:
Supplier remains responsible to Buyer for the obligations and liability of each subcontractor;
Supplier hereby unconditionally guarantees to Buyer the complete and timely performance of all of each subcontractor's obligations under the Purchase Order;
Supplier requires each subcontractor to enter into confidentiality agreements regarding Buyer Proprietary Information, Tools and Designs, the terms of which at least meet Provider's obligations required under Section 12;
Supplier obligates each subcontractor to assign all of subcontractor's right, title and interest in and to any and all such work product produced in providing the goods or performing the services to Supplier to ensure Buyer 's ownership of all goods and services under the Purchase Order and obligates each subcontractor to cooperate with and assist Buyer, at Buyer's expense, in securing any documents necessary or desirable to register or otherwise protect any such rights; and
Supplier submits each subcontractor to Buyer for Buyer's review and approval (not to be unreasonably withheld) prior to any such subcontractor commencing any services under the Purchase Order and promptly removes same from the services at Buyer's request.
Except as permitted under Section 20(h), Supplier shall not assign or otherwise transfer any of its rights or obligations under the Purchase Order, in whole or in part, voluntarily or by operation of law, without the prior written consent of Buyer; any purported assignment or transfer in violation of this provision shall be void. Buyer may assign its rights and obligations under the Purchase Order, in whole or in part, voluntarily or by operation of law, without the prior written consent of Supplier. The Purchase Order is binding upon, and shall inure to the benefit of, Buyer and Supplier and their respective permitted successors and permitted assigns.
The rights and remedies set forth in any provision of the Purchase Order shall be in addition, and without prejudice, to all other rights and remedies to which Buyer may be entitled under any other provision of the Purchase Order, applicable law or otherwise, including, without limitation, any right to specific performance or injunctive relief.
The heading at the beginning of each numbered section hereof have been inserted for ease of reference only and are not part of the Purchase Order.
NOTICE OF LABOR DISPUTE.
Whenever any actual or potential strike, slowdown or other work stoppage associated with labor problems delays or threatens to delay the timely performance of the Purchase Order, Supplier shall immediately give Buyer written notice thereof, which notice shall include all relevant information with respect thereto and Supplier's best estimate of the length of any such delay.