PURCHASE ORDER TERMS AND CONDITIONS (Rev. 2, 3/01/2010)
1. Formation; Offer; Acceptance: The purchase order, together with these Terms and Conditions, including when applicable; supplements, drawings, specifications and miscellaneous attachments (the “Documents”) make up the (“Order”) which is an offer by Process Equipment, Inc. (DBA processbarron) including its affiliates and subsidiaries (“Buyer”) to the party to whom such Order is addressed including such party’s affiliates and subsidiaries (“Seller”) to enter into the agreement it describes. An Order does not constitute an acceptance by Buyer of any offer or proposal by Seller, whether on Seller’s quotation, acknowledgement, invoice or otherwise. In the event that Seller’s quotation or proposal is held to be an offer, that offer is expressly rejected and is replaced in its entirety by the offer made up of the Order. A contract is formed when Seller accepts the offer of Buyer. The Order shall be deemed accepted by Seller; by acknowledgement, performance of services, commencement of work, shipment of Goods, or any other conduct of Seller that recognizes the existence of a contract pertaining to the Order. Acceptance is expressly limited to these Terms and Conditions and such terms and conditions as are otherwise expressly referenced on the face of the purchase order. No purported acceptance of any Order on terms and conditions which modify, supersede, supplement or otherwise alter these Terms and Conditions shall be binding upon Buyer and such terms and conditions shall be deemed rejected and replaced by these Terms and Conditions unless Seller’s proffered terms and conditions are accepted in a physically signed writing (a “Signed Writing”) by a duly authorized officer of Buyer.
2. Applicability of Terms and Conditions: Except as otherwise set forth on the purchase order, these Terms and Conditions (the “Terms and Conditions”) apply to the purchase by Buyer of all Goods and/or services from Seller as described on the face of each purchase order including all Documents supplied with or expressly referenced on the face of such purchase order describing such Goods (collectively, “Goods”). The term “Goods” throughout these Terms and Conditions includes; raw materials, components, intermediate assemblies, tooling, molds, equipment and end products and all services, whether or not performed in connection with any of the foregoing items.
3. Price: Price shown on the purchase order is firm and not subject to increase, including specifically any increase based upon changes in raw material or component pricing and labor or overhead, unless specifically agreed to by Buyer on the face of the purchase order or in a Signed Writing by a duly authorized officer of Buyer.
4. Materials and Components: All raw materials supplied by Seller must have supporting CMTR’s for acceptance. Raw and/or finished materials or components may be supplied by Buyer to Seller in order to complete the work defined on the Order. Any shortages or damaged items shall be noted on the delivering carrier’s documents and acknowledged immediately by appropriate method to Buyer. Seller will be liable for any and all replacement or repair costs, including transportation, if these guidelines are not followed. Loss of materials and/or components due to errors in fabrication, negligence or other reasons caused by Seller shall be to Seller’s account. All materials and components supplied by Buyer, whether unprocessed, partially processed, completed or installed and still at Seller’s facilities will remain the property of Buyer and will not be attached or otherwise claimed by other parties or the government entities as a part of Seller’s assets. Seller shall, at its own expense, return all delivery receipts, CMTR’s, etc. to Buyer for all materials and components received at Seller’s facilities.
5. Assembly: Where the Order specifies the degree of assembly and disassembly required, Seller must comply without exception, otherwise it is understood that all equipment will be assembled to the fullest extent possible (as determined by Buyer) and tested in Sellers shop in accordance with applicable industry standards and practice to insure that all parts fit and equipment functions properly, then disassembled only to the extent necessary to facilitate good and safe shipping practices. Seller shall comply with these requirements at no extra charge to Buyer.
6. Identification; Packaging: All Goods supplied pursuant to each Order that are construed as a completed part shall, at a minimum, permanently bear Buyer’s purchase order number, part and job number and Seller’s part number, date of manufacture and all other markings as may be requested on the Order. For all shipments overseas or domestic, all materials, components and equipment shall be packaged for protection during transit under all conditions including; multiple handling, storage and exposure to all elements of weather. All crates, cartons, boxes and pallets shall be well made, of good materials, durable, and constructed of the proper lumber type, grade and thickness for the type of shipment and well banded with steel straps. In the event Seller fails to comply with these requirements, Seller shall be liable for all damages, repackaging and transportation costs.
7. Shipping; Bill of Lading: Seller agrees to load and ship Goods in accordance with Buyer instructions and the involved carrier in a manner to secure the lowest transportation cost. Seller shall not charge for handling, packaging (including bracing for shipment), storage, transportation (including duties, taxes, fees, etc.), or drayage of Goods unless otherwise approved by Buyer on the purchase order or in a Signed Writing by a duly authorized officer of Buyer. Seller shall adhere to shipping instructions specified on the purchase order and will be held strictly accountable for deviations including all added expense. Buyer has the right to recoup loss or withhold and/or redirect payment due to Seller deviations of the above. Premium shipping expenses and/or other related added expenses necessary to meet delivery schedules set forth on the purchase order shall be Seller’s sole responsibility unless the delay or expense was solely the result of Buyer’s negligence. Seller shall provide to Buyer with each shipment a bill of lading and/or packing list showing the purchase order number, Buyer’s part and job number, Seller’s part number, quantity of pieces in shipment, number of crates, cartons, boxes, pallets or containers in shipment, Seller’s name and vendor number, the bill of lading number and the country of origin. Seller shall promptly forward to Buyer the signed original bill of lading or other shipment receipt for each completed shipment in accordance with Buyer’s instructions and carrier requirements. Should Buyer elect to provide bill of lading to Seller, Seller must use that BOL exclusively with no additional documents or markings to identify Seller (blind shipping). When using Buyer BOL all other requirements stated above shall remain the responsibility of the Seller.
8. Delivery; Delay: Delivery shall be made both in quantity and at time specified on the purchase order. Quantity and time of delivery are of the essence of each Order. In the event that delivery is delayed due to circumstances beyond Buyer’s control, Supplier shall make all reasonable efforts to store and protect equipment for the term as agreed to by Buyer and Seller at no additional cost to Buyer.
9. Transfer of Risk and Property: Unless otherwise stated on the purchase order or in a signed writing by a duly authorized officer of Buyer and notwithstanding any agreement concerning payment of goods or freight expenses, delivery shall not have occurred, and title and risk of loss shall not have shifted to Buyer until the Goods have been delivered to Buyer’s applicable facility and have been accepted at that facility by Buyer and/or Buyer’s customer.
10. Order Status: Unless otherwise stated on the purchase order, Seller shall furnish status of engineering, material procurement, production and delivery information to Buyer on a minimum two week basis. Failure to do so could result in Breach of contract.
11. Liquidated Damages: Time is of the essence. In the event Seller fails to deliver Goods or services as described on each purchase order line by the time specified therein, and because the cost of actual damages for such late delivery would be difficult and impractical to determine, Seller agrees that as liquidated damages, and not as a penalty, to pay Buyer the amount of five percent (5%) of the purchase order line value in question for each week of late delivery with fractions of a week counted as a full week. Liquidated damages are not to exceed 10% of the total purchase order value and may be deducted from the Seller’s invoice(s).
12. Invoices: All invoices for Goods shipped pursuant to each Order must reference the purchase order number, Buyer’s part and job number and Seller’s part number. All applicable sales, use, excise, and similar taxes and all prepaid freight charges shall be shown separately on invoices. Separate invoices must be submitted for each purchase order. Invoices will not be approved for payment until Buyer has received from Seller detailed packing lists, bills of lading and original receipted freight bills. Buyer’s standard payment terms apply starting at receipt of invoice including all related documentation. Consideration is given to discounted invoices.
13. Payment Terms: Except as otherwise set forth on the purchase order, invoices are payable thirty (30) days after receipt of a correct and valid invoice. If a payment date falls on a non-business day, payment will occur on the following business day. On all purchase orders over $1,000,000.00, or at Buyer’s request, Seller shall furnish Buyer forms of complete and partial lien waivers from Seller and from its suppliers and subcontractors as a condition of payment.
14. Compliance: Seller warrants that in the furnishing of materials, components, equipment, and in the performance of services required herein, Seller will comply without limitation to all applicable international, federal, provincial, state and local laws, ordinances and regulations, industrial codes, those concerning health, safety and employment of persons, and that Seller will obtain all necessary licenses and permits and pay all fees, taxes and other charges thereby required, and will furnish, upon Buyer’s request, such evidence of compliance with any such laws, ordinances and regulations and the payment of any such fees, taxes or charges as Buyer may request. Seller agrees to defend, save harmless and indemnify Buyer and Buyer’s customer from and against losses, damages, costs and expenses which occur by reason of any actual or alleged breach of this warranty.
15. Warranty: Encumbrances: Seller expressly warrants that all Goods covered by each Order will conform to all specifications, standards, drawings, samples or descriptions furnished to or by Buyer, and all industry standards, laws and regulations in force in countries where Goods or items equipped with such Goods are to be sold; and that all Goods will be merchantable, of good quality and workmanship and free from defects. In addition, Seller acknowledges that Seller knows of Buyer’s intended use and expressly warrants that all Goods will be fit and sufficient for the particular purpose intended by Buyer. All warranties will be effective for the longer of; (i) the period provided by applicable law, or (ii) one year from date of initial operation of equipment by Buyer’s customer, or (iii) eighteen (18) months from Buyer or Buyer’s customer acceptance of the applicable Goods, or (iv) as otherwise stated on the purchase or in a Signed Writing by a duly authorized officer of Buyer. Seller further warrants that any and all services to be performed hereunder shall be performed by qualified personnel, fully experienced in performing such services. Seller expressly warrants that, for all Goods under the Order, Seller shall convey good title to Buyer, free and clear of all liens, claims or other encumbrances and that Seller will defend, save harmless and indemnify Buyer and Buyer’s customer from and against all losses, damages, costs and expenses, which may occur by reason of any actual or alleged breach of this warranty.
16. Subcontracting: Seller shall not subcontract any of its duties or obligations under any Order without prior approval by Buyer on the face of the purchase order or in a Signed Writing by a duly authorized officer of Buyer. In the event Seller’s subcontracting of any work under any purchase order is approved by Buyer, as a condition to such approval, Seller shall provide Buyer with written evidence that the subcontractor agrees to be bound by these Terms and Conditions and the purchase order.
17. Quality: Seller shall meet all quality requirements of Buyer and all quality requirements of Buyer’s customer (when applicable). Seller agrees to participate in Buyer’s quality program and to comply with all quality requirements and procedures specified by Buyer, as revised from time to time. Buyer’s quality program can be found through links provided on the Buyer’s web site. Buyer, at Buyer’s sole discretion, may choose to evaluate and utilize Seller’s quality program if so desired. Seller will be held responsible for any and all costs associated with quality issue investigation, containment and remedial actions on account of Goods provided by Seller to Buyer. Seller is obligated to provide any and all reasonable support requested by Buyer to address immediately and correct concerns regarding the quality of Goods provided. Verification by Buyer or Buyer’s representative shall not; (i) shift responsibility for quality from Seller to Buyer, or (ii) absolve Seller of the responsibility to provide acceptable Goods, or (iii) preclude subsequent rejection of Goods by Buyer. Notwithstanding any verification by Buyer or Buyer’s representative, Seller remains fully liable for the quality of all work by subcontractors under the direction of the Seller.
18. Inspection and Testing: Seller shall comply with all inspection and testing instructions that may be contained on the Documents or as part of the purchase order. Buyer and Buyer’s customer reserve the right to inspect at Seller’s or its subcontractors or sub-supplier’s plant(s), all items of materials and equipment ordered pursuant hereto, and to witness any testing thereof. Buyer and Buyer’s customer also reserve the right to use an independent inspection agency to make any such inspection or to witness any such tests. When Buyer’s inspection has been requested, material or equipment shall not be packaged or shipped without Buyer’s written release for shipment or written waiver of inspection. All items of materials and equipment are subject to Buyer’s customer inspection for acceptance within a reasonable time after arrival at the ultimate destination. If any items of material or equipment or any workmanship are found to be defective, inferior or non-conforming with this Order, Buyer shall have the right to reject these items as nonconforming Goods. Neither making nor waiving inspection, nor failing to inspect or reject by Buyer shall relieve Seller of any of its obligations, responsibilities or liabilities under this Order. Buyer’s payment for the Goods or services covered by the Order shall in no way diminish or modify Seller’s obligations under the Order, nor will it impair Buyer’s right to reject nonconforming or defective Goods or services, or be deemed to constitute acceptance by Buyer of the Goods or services notwithstanding Buyer’s opportunity to inspect or earlier reject the Goods or services, or Buyer’s knowledge of the non-conformity or defect or its substantiality or ease of discovery. Seller shall be responsible for all inspections required to comply with applicable federal, state and local laws, ordinances, regulations and manufacturer’s standards.
19. Nonconforming Goods: Buyer, at its option, may reject at any time and return at Seller’s risk and expense, or retain and correct, Goods received pursuant to the Order that fail to conform to the requirements of the Order. To the extent Buyer rejects Goods as nonconforming, the quantities under the Order will not be reduced by the quantity of nonconforming Goods unless Buyer otherwise notifies Seller in writing. Seller shall replace nonconforming Goods with conforming Goods unless otherwise notified in writing by Buyer, including, by way of a termination notice from Buyer under Section 22. If already received, nonconforming Goods will be held by Buyer for disposition in accordance with Seller’s written instructions at Seller’s risk. Seller’s failure to provide written instructions within five (5) calendar days after notice of nonconformity shall entitle Buyer, at Buyer’s option, to charge Seller for storage and handling, or to dispose of the Goods without any liability of Buyer to Seller. Seller shall reimburse Buyer for any amounts paid by Buyer on account of the purchase price of any rejected nonconforming Goods and any costs incurred by Buyer in connection with the nonconforming Goods, including, inspection, sorting, testing, evaluations, storage or rework, within thirty (30) days after a debit memo for the costs has been issued by Buyer. Payment by Buyer for nonconforming Goods shall not constitute an acceptance, limit or impair Buyer’s right to assert any legal or equitable remedy, or relieve Seller’s responsibility for latent defects.
20. Rights of Entry, Reclamation and Inspection: Buyer shall have the right to enter Seller’s facility during normal business hours or, in the event of a Seller shutdown, at reasonable times, to inspect the facility, Goods and any property of Buyer covered by the Order and, without the necessity of a court order, may enter upon Seller’s property and remove property belonging to Buyer or Buyer’s customer.
21. Remedies for Breach by Seller: The rights and remedies reserved to Buyer in each Order, including; the rights of entry, reclamation and inspection under Section 20 shall be cumulative with, and additional to, all other or further remedies provided in law or equity. Without limiting the generality of the foregoing, should any Goods fail to conform to the warranties set forth herein, Buyer shall notify Seller and Seller shall, if requested by Buyer, reimburse Buyer for any special, incidental and consequential damages caused by nonconforming Goods, including without limitation, costs, expenses and losses incurred by Buyer from; (i) inspecting, sorting, testing, repairing or replacing such nonconforming Goods, (ii) resulting from production interruptions, (iii) in connection with claims for personal injury (including death) or property damage caused by such nonconforming Goods. If requested by Buyer, Seller shall, without charge to Buyer, administer and process warranty charge-backs for nonconforming Goods in accordance with Buyer’s directions. Seller acknowledges and agrees that money damages would not be a sufficient remedy for any actual, anticipatory or threatened breach of any Order by Seller with respect to its delivery of Goods to Buyer and that, in addition to all other rights and remedies which Buyer may have, Buyer shall be entitled to specific performance and temporary, preliminary and permanent injunctive or other equitable relief as a remedy for any such breach, without proof of actual damages and without bond or other security being required.
A. Buyer’s Right to Terminate for Breach: Buyer reserves the right to terminate immediately all or any part of the order, without any liability of Buyer to Seller if Seller without limitation; (i) repudiates, breaches or threatens to breach any of the terms of the Order, or (ii) fails to perform or deliver Goods as specified by Buyer, or (iii) fails to provide Buyer with adequate and reasonable assurance of Seller’s ability to perform timely any of Seller’s obligations under any Order, or (iv) if Buyer terminates for breach any other Order issued by Buyer to Seller in accordance with the terms of such other Order whether or not such other Order is related to the Order.
B. Buyer’s Right to Terminate for Convenience: In addition to any other rights of Buyer to terminate the Order, Buyer may at its option, immediately terminate all or any part of the Order at any time and for any reason by giving written notice to Seller.
1) Upon receipt of notice of termination pursuant to this Section, Seller, unless otherwise directed in writing by Buyer, shall; (i) terminate immediately all work under the Order, and (ii) transfer title and deliver to Buyer the usable and merchantable raw materials, work in progress, finished Goods and components that Seller produced or acquired in accordance with the Order and which Seller cannot use in producing goods for itself or for others, and (iii) settle all claims by subcontractors if any, for reasonable actual costs that are rendered unrecoverable by such termination, and (iv) take actions necessary to protect property in Seller’s possession in which Buyer has an interest, and (v) upon Buyer’s request, cooperate with Buyer in effecting the resourcing of the Goods covered by the Order to an alternative supplier designated by Buyer.
2) Upon termination of any Order by Buyer under this Section, Buyer shall pay to Seller the following amounts without duplication; (i) the purchase order price for all finished and completed Goods that conform to the requirements of the Order and not previously paid for, or (ii) Seller’s reasonable actual cost of the usable and merchantable work in process and raw materials and components transferred to Buyer hereof, and (iii) Seller’s reasonable actual cost of settling claims for the obligations Seller would have had to the subcontractors approved by Buyer, up to the time of, and in absence of termination.
Buyer shall not be liable for and shall not be required to make payments to Seller, directly or on account of claims by Seller’s subcontractors, for any other alleged losses or costs resulting from termination of the Order or otherwise. Notwithstanding anything to the contrary, Buyer’s obligation to Seller upon termination under this section shall not exceed the obligation Buyer would have had to Seller in the absence of termination.
C. Termination Rights by Seller: Because Buyer’s commitments to its Customers are made in reliance on Seller’s commitments under the Order, Seller has no right to terminate any Order at any time.
23. Financial and Operational Condition of Seller: Seller represents and warrants to Buyer as of the date of the Order that it is not insolvent and is paying all debts as they become due, and that it is in compliance with all loan covenants, insurance requirements and other obligations.
24. Seller Insolvency: Buyer may immediately terminate each Order without any liability of Buyer to Seller upon the occurrence of any of the following or any other similar or comparable event (each, a “Seller Insolvency”); (i) insolvency of Seller, or (ii) Seller’s inability to promptly provide Buyer with adequate and reasonable assurance of Seller’s financial capability to perform timely any of Seller’s obligations under any Order, or (iii) filing of a voluntary petition in bankruptcy by Seller, or (iv) filing of an involuntary petition in bankruptcy against Seller, or (v) appointment of a receiver or trustee for Seller, or (vi) execution of an assignment for the benefit of creditors of Seller.
25. Changes to Order: Buyer reserves the right at any time to direct changes, or cause Seller to make changes, to the Goods and/or services under the Order, including, changes in the design, drawings, specifications, processing, methods of packaging and shipping and the date or place of delivery of the Goods covered by the Order or to otherwise change the scope of work covered by the Order including work with respect to such matters as inspection, testing and quality control. Seller agrees to promptly make such changes. Any such changes shall become effective upon delivery to Seller by Buyer of such written revision to the purchase order or in a Signed Writing by a duly authorized officer of Buyer. Seller acknowledges that it will not proceed with a change, and that there will be no adjustment in price and/or delivery, unless Buyer orders such change by the issuance of a written revision to the purchase order or in a Signed Writing by a duly authorized officer of Buyer. Seller also agrees that unless otherwise instructed by the Buyer there shall be no suspension of work at large by Seller while Buyer and Seller are in the process of making such changes. Should any change increase or decrease the cost of, or the time required for, performance of this Order, Seller must notify Buyer within five (7) calendar days of occurrence and an equitable adjustment in the price and/or delivery shall be negotiated accordingly. Seller waives any right to claim for adjustment of price or delivery if notification is not submitted to Buyer in accordance with the above.
26. Errors, Omissions and/or Additions: When the Documents are submitted to Seller as part of the Order, Seller shall notify Buyer of any errors, omissions and/or additions that would constitute a change in scope and price prior to completing shop details (if a part of the contract) or start of manufacture. No back charges shall be paid for any errors, omissions and/or additions not reported to Buyer in accordance with this section.
27. Purchase Order Clarifications: In the event Seller needs clarification or further interpretation of the Order, Seller by notification must request the scope be further defined by the Buyer. Failure to do so will result in Buyer assuming that the Order and all Documents supplied as part of the Order are included within Sellers price and Seller will be liable for all resultant costs and expenses. All determinations, instructions and clarifications of the Buyer shall be final, unless written notice of Seller’s objection thereto is submitted to the Buyer within three (3) days from occurrence. At all times the Seller shall proceed with work in accordance with the determinations, instructions and clarifications of the Buyer.
28. Force Majeure: Any delay or failure of Buyer or Seller to perform its obligations under the Order will be excused if, and to the extent that, the party is unable to perform specifically due to an event or occurrence beyond its reasonable control and without its fault or negligence, such as: acts of God, restrictions, prohibitions, priorities or allocations imposed or actions taken by a governmental authority, embargoes, fires, explosions, natural disasters, riots, wars, sabotage, or inability to obtain power. As soon as possible but no more than one (1) business day after the occurrence, Seller shall provide written notice describing such delay. During the delay or failure to perform by Seller, Buyer at its sole discretion may; (i) purchase Goods from other sources and reduce its Order amount to Seller by such quantities, without liability of Buyer to Seller and require Seller to reimburse Buyer for any additional costs to Buyer of obtaining the substitute Goods compared to the prices set forth on the Order; or (ii) require Seller to deliver to Buyer at Seller’s expense all finished Goods, work in process and parts and materials produced or acquired for work under the Order, or (iii) require Seller to provide Goods from other sources in quantities and at a time requested by Buyer and at the price set forth in the purchase order. In addition, Seller at its expense shall take all actions deemed reasonably necessary by Buyer to ensure that in the event of any anticipated labor disruption, strike or worker slowdown or resulting from the expiration of Seller’s labor contracts, an uninterrupted supply of Goods will be available to Buyer in an area that will not be affected by any such disruption for a period of at least thirty (30) days. If upon request of Buyer, Seller fails to provide within ten (10) days (or such shorter period as Buyer requires) adequate assurances that any delay will not exceed thirty (30) days or if any delay lasts longer than thirty (30) days, Buyer may terminate the Order without liability and Seller shall reimburse Buyer for costs associated with the termination. Seller acknowledges and agrees that the change in cost or availability of materials, components or services based on market conditions, supplier actions or contract disputes will not excuse performance by Seller under theories of force majeure, commercial impracticability or otherwise and Seller expressly assumes these risks.
29. Insurance: Seller shall obtain and maintain at its sole expense insurance coverage acceptable to Buyer in the following forms and limits; (i) Workers Compensation Insurance in amounts required by law including Employers Liability Coverage with $100,000 limit, (ii) Commercial General Liability Insurance including contractual liability, independent contractors, and products/completed operations with a combined single limit of at least $1,000,000 for bodily injury and property damage, $2,000,000 products/completed operations aggregate, $2,000,000 general aggregate, (iii) Automobile Insurance with a combined single limit of at least $1,000,000 for bodily injury and property damage, (iv) Umbrella Liability in the amount of $1,000,000 per occurrence, $1,000,000 general aggregate. General Liability and Umbrella Liability shall name Buyer as an additional insured on a primary/noncontributory basis and Automobile Liability on a primary basis. General Liability, Automobile Liability, Umbrella Liability and Workers Compensation policies shall include Waiver of subrogation in favor of Buyer. Policies shall include all legally signed endorsements. Failure to issue legally signed endorsements will not relieve Seller of it obligation in accordance with the above. Seller shall furnish to Buyer certificates of insurance setting forth the amount of coverage, policy number and date(s) of expiration prior to commencement of any work on the Order. Seller must provide Buyer with a minimum thirty (30) day written notification of any termination or reduction in the amount or scope of coverage.
30. Limitation of Damages: In no event shall Seller or Buyer, or their officers, agents or employees, be liable to the other party hereto for any special contingent or consequential losses or damages, including, loss of use, or loss of profit, whether or not caused by Seller’s or Buyer’s negligence.
31. Indemnification: Seller hereby covenants and agrees to indemnify and hold harmless Buyer, its affiliates and subsidiaries, and their respective directors, officers, employees and agents from any claims, liabilities, damages (including special, consequential, punitive and exemplary damages) and costs and expenses incurred in connection with, and without limitation, any lawsuits, claims, regulatory actions and other proceedings that are related in any way to or arise in any way from the Order, Goods, Seller’s representations, Seller’s performance of or failure to perform obligations under the Order, including claims based on Seller’s breach or alleged breach of warranty (whether or not the Goods have been incorporated into Buyer’s products and/or resold by Buyer), and claims for any violation of any applicable law, ordinance or regulation or government authorization or order. Seller’s obligation to indemnify will apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability or otherwise, except to the extent of any such liability arising solely out of the gross negligence of Buyer.
32. Independent Contractor: For all purposes related to the Order, Seller shall be deemed to be an independent contractor of Buyer, and therefore officers, employees and agents of Seller, Seller’s subcontractors and sub-suppliers shall not be considered servants, employees or agents of Buyer.
33. Assignment: Seller shall not assign or delegate any of its duties or obligations under any Order without the prior consent of Buyer on the face of the purchase order or in a Signed Writing by a duly authorized officer of Buyer, which consent may be withheld at Buyer’s sole discretion. Buyer may freely assign to any third party its rights and obligations under any Order without the consent of Seller.
34. Setoff and Contractual Recoupment: In addition to any right of setoff or recoupment provided or allowed by law, all amounts due Seller or any of its subsidiaries and affiliates shall be considered net of indebtedness or obligations of Seller or any of its subsidiaries and affiliates to Buyer or any of its subsidiaries and affiliates. Buyer or any of its subsidiaries and affiliates may setoff against, or recoup from, any amounts due, or to become due from Seller, or any of its subsidiaries and affiliates to Buyer or its subsidiaries and affiliates however and whenever arising.
35. Claims from Seller: Any action by Seller under any Order must be commenced within one (1) year after the breach or other event giving rise to Seller’s claim occurs, regardless of Seller’s lack of knowledge of the breach or other event giving rise to such claim.
36. Severability: If any term(s) of the Order is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, such term(s) shall be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with such statute, regulation, ordinance, order or rule, and the remaining provisions of the Order shall remain in full force and effect.
37. Notices: All notices, claims and other communications to Buyer required or permitted under the Order shall be made in writing to Buyer within five (7) calendar days and shall be effective only upon receipt and written acknowledgement by Buyer. Seller’s failure to provide any notice, claim or other communication to Buyer in the manner and within the time periods specified herein shall constitute a waiver by Seller of any and all rights and remedies that otherwise would have been available to Seller upon making such notice, claim or other communication.
38. Confidentiality: Seller shall keep all Buyer’s information confidential and disclose it only to its employees who need to know in order for Seller to supply Goods or services to Buyer under the Order and use Buyer’s information solely for the purpose of supplying Goods to Buyer. “Buyer’s information” means all information provided to Seller by Buyer or its representatives or subcontractors in connection with Goods and/or services covered by the Order.
39. Technology: Seller expressly warrants that all Goods covered by each Order will not and do not infringe on any patent, trademark, copyright or other intellectual property of any third party. Seller hereby assigns to Buyer all right, title and interest in and to all inventions, trademarks, copyrights and other proprietary rights in any material created for and paid for by Buyer under each Order. Technical information and data furnished to Buyer in connection with each Order are disclosed on a non-confidential basis.
40. Terms & Conditions Modifications: Buyer may modify the Terms and Conditions at any time by posting notice of such modified Terms and Conditions through links provided on the Buyer’s web site at least ten (10) calendar days prior to any modified Terms and Conditions becoming effective. Seller shall review the Buyer website and the Terms and Conditions periodically. Seller’s continued performance under the Order without providing timely written notice as required herein to Buyer detailing Seller’s objection will be subject to, and will constitute, Seller’s acceptance of such modified Terms and Conditions.
41. Construction: When used in the Order, “including” means “including, without limitation,” and terms defined in the singular include the plural and vice versa. The headers, titles and numbering are for convenience of reference only and shall not affect the construction or interpretation of the Order.
42. Governing Law; Jurisdiction; Venue: Each Order shall be governed by the internal laws of the State of Alabama without regard to any applicable conflict of laws provisions. The United Nations Convention on the International Sale of Goods is expressly excluded. Subject to the arbitration provisions of Section 43, Seller consents to the exclusive jurisdiction of the appropriate federal court in the U.S. District Court for the Northern District of Alabama, or of the state courts in Shelby County, Alabama for any legal or equitable action or proceeding arising out of, or in connection with, each Order. Seller specifically waives any and all objections to venue in such courts.
43. Arbitration: All disputes arising under or in connection with the Order or any other document pertaining to the Order shall be finally settled by arbitration in Birmingham, Alabama, before a single arbitrator appointed by the American Arbitration Association (“AAA”) which arbitration shall be conducted under AAA’s commercial arbitration rules then in effect at the time of the Order provided, however, that discovery shall be permitted in accordance with the United States Federal Rules of Civil Procedure. The decision of the arbitrator shall be final and binding upon Buyer and Seller, shall not be appealable, and judgment on the award rendered may be entered in any court of competent jurisdiction. Each party will bear its own costs and expenses. The failure by one party to pay its share of arbitration fees constitutes a waiver of such party’s claim or defense in the arbitration. All arbitration proceedings shall be confidential, except to the extent that disclosure is necessary to enforce an arbitration award in a court of competent jurisdiction. Notwithstanding anything to the contrary, Buyer shall have the right, without waiving any remedy under the Order, to seek from any court of competent jurisdiction equitable relief and any interim or provisional relief that is necessary to protect the rights or property of Buyer.
44. Waiver of Jury Trial: Buyer and Seller acknowledge that the right to trial by jury is a constitutional one, but that it may be waived. Each of the Buyer and Seller, after consulting (or having the opportunity to consult) with counsel of its choice, knowingly, voluntarily and intentionally waives any right to trial by jury in any action or other legal proceeding arising out of or relating to the Order or any other document pertaining to the Order.