Terms & Conditions of Purchase
- ACCEPTANCE ENTIRE AGREEMENT MODIFICATION. This order (hereinafter “order”) is for the purchase and sale of goods and services described on the face of this order (hereinafter “goods”) issued by X-Ray Optical Systems, Inc. – XOS (hereinafter “Buyer”). Acceptance of this order shall be limited to the terms and conditions contained herein and incorporated herein by reference. This order shall be deemed accepted upon the return of the acknowledgment copy of this order or the commencement of performance by Seller. Buyer rejects any additional or inconsistent terms and conditions offered by Seller at any time, whether or not such terms or conditions materially alter the order and irrespective of Buyer’s acceptance of or payment for Seller’s goods or services. Any reference to Seller’s quotation, bid or proposal does not imply acceptance of any term, condition, or instruction contained in such document. Trade custom and/or trade usage is superseded by this order and shall not be applied in the interpretation of this order. These terms and conditions together with the specifications, drawings, or other documents referred to on the face of the order or incorporated by reference to the part number of the goods and which form the basis for the specifications, designs and/or quality requirements of the goods constitute the entire agreement between the parties and no change to or modification of this order shall be binding upon Buyer unless in writing and signed by an authorized representative of Buyer. In the event of any ambiguities, express conflicts or discrepancies in the specifications, drawings, or other documents which are a part of this order, Seller shall immediately submit the matter to Buyer for its determination and shall comply with the determination of Buyer in such matter.
- MATERIAL, EQUIPMENT, TOOLS AND FACILITIES. Title to property furnished to Seller by Buyer or paid for by Buyer under this order, including without limitation drawings, patterns, tools, dies and any other goods made in support of this order, as well as any replacements thereof, (all hereinafter referred to as “Property”) shall be vested in Buyer with the right to demand possession at any time. Seller will physically identify and mark the Property as Buyer’s Property. Seller will use said Property only in the performance of work for Buyer. Seller shall bear the risk of loss of all Property while in Seller’s custody or control and while in the custody or control of Seller’s suppliers. All Property is subject to removal and return at Buyer’s written request, in which event Seller, at Buyer’s expense, will prepare such Property for shipment and deliver them to Buyer in the same condition as originally received by Seller, reasonable wear and tear excepted. Seller will maintain all Property in good condition and repair or replace them to the extent necessary for performance of this order. Seller shall establish and maintain a system to control, protect, preserve and maintain all Property. Buyer shall have the right to enter Seller’s premises at all reasonable times to inspect Property and Seller’s records with respect thereto. Buyer does not warrant any aspect of the Property that it furnishes and all goods delivered by Seller must be in strict accordance with the requirements of this order. Upon completion or termination of this order, Seller will retain all Property at its expense until disposition directions are received from Buyer. Seller will pay personal property taxes on all goods in its possession. Manufacturing location and processing may not be changed without Buyer’s written consent.
- DELIVERIES AND SHIPMENTS. Unless otherwise specified on the face of the order, goods must be shipped F.O.B point of destination. Itemized packing lists shall accompany each shipment. Buyer’s count shall be accepted as final and conclusive on shipments not accompanied by Seller’s itemized packing list. No charge shall be allowed for packing, shipment, or handling unless otherwise stated in the order. Delivery of the goods and related data and/or documentation and/or performance of required services in accordance with the schedule are a material requirement of this order. TIME IS OF THE ESSENCE. Seller shall not, without Buyer’s prior written consent, manufacture or procure materials in advance of Seller’s reasonable flow time. Seller shall promptly notify Buyer of any actual or anticipated delay of delivery and take all reasonable steps to avoid or end delay without additional cost to Buyer. Seller will, at its expense, ship by express or air shipment or by the most expeditious way if the delivery schedule is endangered for any reason other than Buyer’s fault. Buyer reserves the right to reject all or any part of any delivery that varies from the quantity authorized by Buyer for shipment. All goods shall be packaged in accordance with Buyer’s instructions or, if none are specified, in accordance with good commercial practice in a manner sufficient to ensure arrival in an undamaged condition. Goods shipped in advance of Buyer’s delivery schedule may be returned or stored at Seller’s expense. Seller shall give notice of shipment to Buyer at the time of delivery of any shipment of goods to a carrier for transportation. Title and risk of loss to goods shall pass to Buyer at the F.O.B. point of destination unless otherwise specified on the face of this order. Notwithstanding the foregoing, title and risk of loss to goods subject to a consignment stock agreement shall pass upon release of the goods from the consignment stock.
- INSPECTION. Notwithstanding (i) payment, (ii) passage of title, or (iii) prior inspection or test, all goods are subject to final inspection and acceptance or rejection by Buyer at Buyer’s facility. At all reasonable times, including the period of manufacture, Buyer, its representatives, its customers, and/or representatives of applicable regulatory agencies may inspect and/or test the goods to be furnished hereunder at the places where the work is being performed, including those of the Seller’s suppliers, and Seller shall provide, without additional charge, reasonable facilities and assistance for safe and convenient inspection and test. Buyer may inspect 100% or a sample of all goods or any lot of goods at Buyer’s option, and Buyer shall have the right to reject all or any portion of the goods or lot of goods if any such inspection reveals them to be, in Buyer’s sole opinion, defective or nonconforming. Seller shall provide and maintain a quality control, test and inspection system acceptable to Buyer and its customers, if required. Records of all inspection work by Seller shall be kept complete and available to Buyer and its customers during the performance hereof and for three (3) years after final payment by Buyer. Buyer is not required to inspect goods delivered, and no inspection or failure to inspect will reduce or alter Seller’s obligations under this order. Seller shall be responsible for the performance of all activities affecting the goods quality and delivery, including those of its sub-suppliers.
- Seller warrants to Buyer, its successors and customers that all goods furnished (including all replacement goods and all replacement or corrected components which Seller furnishes pursuant to this warranty) will be free from defects in material and workmanship for a period of thirty six (36) months from the date of delivery to the retail purchaser or such longer period of time as may have been accepted by Buyer from Buyer’s customer or as required by applicable regulations or law. Further, all goods furnished will conform to applicable drawings, designs, quality control plans, specifications and samples and other descriptions furnished or specified by Buyer and, to the extent such goods are not of a detailed design furnished by Buyer, will be merchantable, suitable for the intended purposes and free from all other defects, including defects in design. To the extent this order calls for services to be performed, such services will be free from defects in workmanship, will meet all of the requirements of this order and will be performed to the highest standards of workmanship in the industry. All of the preceding are hereinafter collectively called “conforming products and/or services.”
- In the event conforming products and/or services are not furnished, within twenty four (24) hours after the nonconforming product is returned to Seller or notice to Seller of a nonconforming service is received or such longer period as may be commercially reasonable under the circumstances, Seller shall repair or replace such nonconforming products and/or correct such nonconforming services. The failure of Seller to repair or replace and redeliver such nonconforming products and/or to correct such nonconforming services within such period shall entitle Buyer, at its election and in addition to any other rights or remedies it may have at law or in equity, to have such nonconforming products repaired or replaced or such nonconforming services corrected at Seller’s expense. In addition to the costs of repairing or replacing such nonconforming products and/or correcting such nonconforming services, Seller shall be responsible for all related costs including, but not limited to, the costs of removal, disassembly, failure analysis, fault isolation, reinstallation, re-inspection and retrofit of the nonconforming products or services or of Buyer’s affected end-product; all freight charges; all customer charges; and all corrective action costs (i.e. costs of additional inspection or quality control systems). Unless set-off by Buyer, Seller shall reimburse Buyer for all such costs within thirty (30) days of receipt of Buyer’s invoice.
- Seller warrants full and unrestricted title to Buyer for the goods furnished by Seller under this order, free and clear of any and all liens, restrictions, reservations, security interests or encumbrances.
CONTRACT PERFORMANCE REVISIONS
- CHANGES. Buyer may, at any time, by a written change order, without notice to any sureties, make changes in any one or more of the following: (i) drawings, designs, specifications, where the goods to be furnished are to be specially manufactured for the Buyer in accordance therewith; (ii) method of shipment or packing; (iii) place or time of inspection, delivery, or acceptance; (iv) the quantity and/or type of services ordered, (v) the work or service schedules, and (vi) the amount of any Buyer furnished property. If Seller believes that any such change affects the price or delivery for such goods or services, then Seller shall so notify Buyer in writing, with adequate supporting documentation, within ten (10) calendar days after receipt of such direction. Buyer and Seller shall mutually agree, in writing, upon an equitable adjustment in the price and/or delivery date to reflect the effect of such change within ten (10) calendar days of Seller’s notification. If Buyer and Seller are unable to agree on the adjustment, Buyer will make a good faith adjustment which will be binding on Seller. Seller’s request for any adjustments shall be deemed waived unless submitted in writing within such ten (10) calendar days after Seller receives direction to make such changes. If Seller considers that the conduct, statement or direction of any of Buyer’s employees constitutes a change hereunder, Seller shall notify Buyer and take no action on the perceived change pending written approval of Buyer. Only Buyer has authority to approve a change. Any change made by Seller without such written approval shall be deemed voluntary by Seller and not compensable in the cost of or time required for performance. Nothing in this Article shall excuse Seller from proceeding with performance of this order as changed including the parties’ failure to agree on the equitable adjustment. Notwithstanding the above or any other provision of this order, the Seller hereby agrees that no changes to the goods that may be required in order to meet the specified performance requirements of this order shall entitle the Seller to any adjustment in either price or delivery.
7. DESIGN CHANGES. During performance of this order, Seller shall not make any changes in the design of goods to be furnished or the manufacturing processes by Seller
under this order without advance written notification to and written approval of the Buyer. The above requirement applies whether or not there is a cost impact associated with the change and regardless of the type of change involved, including product improvements.
- STOP WORK ORDERS. Buyer may, at any time by written order, require Seller to stop all or any part of the work under this order for a period of up to one hundred eighty (180) days. Immediately upon receipt of such stop work order, Seller shall comply with its terms and take all reasonable steps to minimize the incurrence of costs allocable to the work stoppage. At any time during such period, Buyer may, in whole or in part, either cancel the stop work order or terminate the work in accordance with subparagraph A or B of the “Cancellation” Article of this order (see Article 9, below). To the extent the stop work order is canceled or expires, Seller shall resume work. If a stop work order is the sole and exclusive cause of a material change in cost or delivery, an adjustment shall be made in the price (excluding profit) or the delivery schedule, or both and this order modified accordingly; provided, however, that no adjustment in price or delivery shall be made under this Article if, (i) the work would have been otherwise interrupted or delayed, or (ii) such adjustment is available or expressly excluded under any other provision of this order. No claim for adjustment shall be allowed unless submitted to Buyer in writing in a specified amount within twenty (20) days after the work is terminated or the stop work order expires or is canceled, whichever first occurs. In no event shall Seller be entitled to any loss of prospective profits, contributions to overhead, or any incidental, consequential or other damages because of such suspension or withdrawal of suspension.
- Buyer reserves the right to cancel this order in whole or, from time to time, in part for Seller’s default (i) if Seller fails or refuses to perform in accordance with any of the requirements of this order or to make progress so as to endanger performance hereunder, or (ii) if Seller becomes insolvent or suspends any of its operations or if any petition is filed or proceeding commenced by or against Seller under any state, Federal, or other jurisdiction’s law relating to bankruptcy, arrangement, reorganization, receivership or assignment for the benefit of creditors, or if Seller fails to pay any sums owed to any government agency or landlord when due, or if Seller’s credit rating drops by more than one class based on the rating of any generally recognized credit rating agency. Any such cancellation will be without liability to Buyer except for completed goods delivered and accepted by Buyer, payment for which can be set off against damages to Buyer. Buyer may require Seller to transfer title and deliver to Buyer any or all property produced or procured by Seller for performance of the work canceled and Seller shall be credited with the reasonable value thereof not to exceed Seller’s cost or the contract price, whichever is less. Seller will be liable for damages caused by or resulting from its default including but not limited to excess costs of re-procurement. If, after a default cancellation, it is determined that Seller was not in default, the cancellation shall be considered to have been made pursuant to subparagraph B of this Article. Buyer or its designee shall have the right to audit all elements of any termination claim and Seller shall make available to Buyer or Buyer’s designee on request all books, records, and papers relating thereto. Cancellation of the order for default shall be without prejudice to any other legal rights and remedies of the Buyer.
- Buyer may cancel this order in whole or in part at any time by written notice stating the extent and effective date of such cancellation if Buyer’s customer stops purchasing from Buyer for any reason, or if Seller is no longer competitive in price, quality, delivery, or other service(s). Upon receipt, Seller will to the extent directed by Buyer (i) stop work under this order and place no further orders hereunder, (ii) cancel work under outstanding orders which relate to work canceled by such notice, and (iii) preserve and protect property in Seller’s possession in which Buyer has or may acquire an interest. Seller will submit to Buyer a written claim, if any, as soon as possible, but in any event not later than thirty (30) days from the effective date of cancellation. Seller gives Buyer the right to audit and inspect its books, records and other papers relating to its cancellation claim. If the parties cannot agree within a reasonable time upon the amount of fair compensation for such cancellation, Buyer’s liability to Seller will be limited to making prompt payment of the following amounts only without duplication: (a) the contract price, not previously paid, for goods delivered or performed and accepted by Buyer, or completed in accordance with the provisions of this order prior to the effective date of cancellation and (b) the actual costs incurred by Seller for work in process or other physical inventory, subject to the restrictions on advance manufacture or procurement set forth in Article 3, the cost of which is properly allocable to the canceled portion of this order. Seller may, with Buyer’s written consent, retain at an agreed price or sell at an approved price any such completed items or any goods, work in process or other physical inventory. Buyer will credit or pay the amounts so agreed or received with appropriate adjustment for delivery cost savings. Seller will, if directed by Buyer, transfer title to and make delivery of any such goods, work in process or other physical inventory not so retained or sold, with all applicable warranties. In no event will Buyer be liable for capital equipment expenditures, overhead, research and development costs, labor-related costs or other similar costs or expenditures.
- To the extent this order is not canceled pursuant to subparagraphs A or B above, Seller shall continue performance.
- EXCUSABLE DELAYS. Neither party shall be in default for any delay or failure to perform hereunder due to causes beyond its control and without its fault or negligence; provided, that any delay or failure to perform caused by the default of a supplier of the Seller at any lower-tier shall be excused only if it is beyond the control of both Seller and such supplier and without the fault or negligence of either and the goods to be furnished are not obtainable from other sources in sufficient time to permit Seller to meet the delivery schedule; and provided further, that Seller furnishes prompt written notice to Buyer of the occurrence of any such cause that will or may delay Seller’s performance. If delivery of any item is delayed by any excusable delay for more than three (3) months, Buyer may, without any additional extension, cancel all or part of any order with respect to the delayed product, and exercise any of its remedies in accordance with Article 9.A., provided, however, that the Buyer shall not be entitled to monetary damages or specific performance where Seller’s breach is the result of an Excusable Delay.
PRICING AND PAYMENT TERMS
- PRICES, TAXES AND NEW MATERIAL. Seller warrants that none of the goods furnished under this order are surplus, used, remanufactured or reconditioned or of such age or so deteriorated as to impair the usefulness or safety thereof, unless otherwise specifically stated on the face of this order. Seller warrants that each price for goods sold to Buyer under this order is no less favorable than that extended during the term of this order to any other customer for the same or like goods in equal or less quantities on similar terms and conditions. Unless otherwise provided on the face of this order, THE PRICES APPEARING HEREIN INCLUDE ALL PACKAGING, CRATING AND FEDERAL, STATE AND LOCAL TAXES, IF APPLICABLE, AND ARE FIRM FOR THE DELIVERY OR “VALID TO” PERIOD SHOWN.
- PAYMENT TERMS. Payment periods and cash discount periods will be computed from either the date of delivery or acceptance of the goods ordered or the date of receipt of correct and proper invoices prepared in accordance with the terms of the order or the date Buyer takes title if the goods are consigned, whichever is later. The payment date will be delayed on a day-for-day basis for any item that is delivered later than called for by Buyer’s schedule. Unless otherwise stated on the face of this order, payment terms are according to Buyer’s standard payment terms.
- SETOFF. Buyer may set-off any amount due from Seller, or its affiliates, to Buyer or its affiliates, whether or not under this order, from any amounts due to Seller or its affiliates under this order.
- LIENS. Final payment to Seller shall operate as a release of any and all claims, actions, and liens against the Buyer on account of the order and Seller agrees to save harmless the Buyer from future claims, actions, and liens. Application for final payment shall be accompanied by Waivers and Releases of Liens for all subcontractors, if required by Buyer.
DESIGN, OWNERSHIP, INDEMNITY
- DESIGNS, DRAWINGS AND DATA.
- This provision governs information (including, but not limited to, technical or commercial information, hardware, software, designs, drawings, data, tooling, processes, systems or methods), written, oral or otherwise, that (i) has been made available to Seller by or on behalf of Buyer; or (ii) Seller has designed at Buyer’s expense; or (iii) Seller has designed specifically to meet Buyer-furnished requirements (hereinafter designated “Information”). Seller, in consideration of Buyer’s furnishing of such Information and/or funding, agrees that it will not use, or assist others in using such Information, or disclose such Information to anyone, or sell any goods incorporating such Information to anyone other than Buyer, either as production, spare or repaired goods, without Buyer’s prior written consent, except in the performance of orders for Buyer. Upon Buyer’s request, such Information and all copies thereof shall be returned to Buyer. If Seller develops, or sells the goods hereunder, or assists others in doing so, (or similar interchangeable or substitute goods, or parts thereof) to anyone other than Buyer, the burden shall be on Seller to establish that Buyer’s Information was not used.
- The copyright including the right to copy, distribute, sell, use for commercial purposes, translate, make derivative works…etc information prepared by Seller specifically in connection with performance of this order, including original works of authorship created by Seller, is automatically transferred from Seller to Buyer. Buyer shall be deemed the author of such works. If any such work is determined by a court of competent jurisdiction not to be a work made for hire, this agreement shall operate as an irrevocable assignment by the author of such work to Buyer, of the copyright in the work, including all right, title and interest throughout the world.
- Where such Information is furnished to Seller’s suppliers for use in performance of Buyer’s orders, Seller shall insert the substance of this Article 16 in all such orders to Seller’s suppliers and subcontractors.
16. PATENT, TRADEMARK AND COPYRIGHT INDEMNITY. Seller shall indemnify and hold harmless Buyer from any and all damages, costs, including legal fees, losses, and liabilities resulting from a suit or proceeding from infringement of any patent, trademark or copyright by reason of the sale or use of any item sold to Buyer hereunder, and from reasonable expenses incurred by Buyer in defense of such suit or proceeding to the extent Seller does not undertake the defense thereof; provided, that Seller is promptly notified of any such suit and Buyer offers Seller full and exclusive control of the defense of such suit or proceeding when products of Seller only are involved therein or the right to participate in the defense of such suit or proceeding when products other than those of Seller are also involved therein; except that this indemnity shall not extend to infringement resulting solely from Seller’s compliance with Buyer’s detailed design drawings, processes or formulas. In the event of an injunction or restraining order, Seller shall, at its own expense, either procure for Buyer the right to continue to sell and use the item, or replace or modify the item so that it becomes non-infringing. Seller shall also indemnify Buyer’s customers and agents for such infringement if and to the extent that Buyer has agreed so to indemnify them, but to no greater extent than Seller has indemnified Buyer herein and under the same conditions as set forth herein.
- INDEMNIFICATION AND INSURANCE. Seller shall indemnify and hold harmless Buyer, its directors, officers, employees, agents and invitees from and against all liability, demands, claims, losses, costs, damages and expenses, including but not limited to attorneys’ fees, by reason or on account of property damage, death or personal injury of whatsoever nature or kind arising out of, as a result of, or in connection with the performance of this order that is occasioned by the actions or omissions of Seller or its subcontractors or suppliers of any tier. Seller will maintain and carry liability insurance which includes but is not limited to commercial general liability (including product liability and for services to be performed, completed operations liability) in a sum no less than $5 million, automobile liability in a sum no less than $5 million, workmen’s compensation in an amount no less than the applicable statutory minimum requirement and employer’s liability in an amount of no less than $1 million, with internationally recognized insurance carriers. Seller will, if requested by Buyer, furnish certificates of insurance from its carrier(s) on the foregoing coverages, which shall identify Buyer as an additional insured and provide that such coverage shall not be changed without thirty (30) days advance written notification to Buyer from the carrier(s). Dollar amounts may be converted to local currency equivalents.
- STANDARDS OF CONDUCT, INTEGRITY, AND COMPLIANCE. Buyer conducts its business in strict compliance with applicable laws, rules, and regulations with honesty and integrity and with a strong commitment to the highest standards of health, safety and business ethics. In addition, it is the policy of Buyer to enter into representation or Supplier agreements only with companies which have a demonstrated record of, and commitment to, the highest ethical standards. Seller agrees that Seller will, at all times, adhere to the standards set forth in Danaher’s “Code of Business Conduct” (hereinafter “Code”) and will fully comply and take all necessary steps to assist Buyer in complying with the Code as well as any other customary standards of business conduct prescribed by law or regulation. (A copy of the Code may be obtained at http://www.danaher.com/suppliers/). Seller shall, at all times, fully comply with all rules, laws and regulations pertaining to entertainment or providing gratuities. While on the premises of Buyer, Seller and its employees shall comply with all applicable safety and health laws, regulations and ordinances and with Buyer’s safety and plant rules.
- NOTICE OF LABOR DISPUTES. Whenever Seller has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of this order, Seller shall immediately give notice thereof, including all relevant information with respect thereto, to Buyer. Seller shall include this paragraph in each lower-tier Subcontract under this order.
- SELLER’S STATUS. It is understood and agreed that Seller and/or its employees engaged in the performance of this order by the Seller, are not employees of Buyer and are not entitled to Buyer employee benefits or privileges or any payment from Buyer (other than as expressly provided for in this order) and the Seller shall pay the salaries and expenses, and applicable taxes, including Social Security and unemployment of said employees. Seller shall also pay any expenses normally paid by an employer in connection with its employees assigned to Buyer. The Seller is and shall be deemed to be an Independent Contractor at all times during its performance of the work specified in this order.
- COMPLIANCE WITH LAWS, GOVERNMENT PROVISIONS.
- Seller shall comply with all applicable national, state and local laws, Executive Orders, rules and regulations during performance of this order including but not limited to, U.S. export/import compliance laws, the Occupational Safety and Health Act of 1970 as amended (“OSHA”), and State plans approved under this Act, the Toxic Substances Control Act as amended (“TSCA”), the Fair Labor Standards Act of 1938 as amended (“FLSA”), the Clean Air Act as amended, and the Anti Kickback Act of 1986 as amended.
- Seller warrants that all representations and certifications furnished by Seller as required by law or regulation in connection with this order are accurate, current and complete as of the effective date of this order, and that to Seller’s knowledge no person has been paid a kickback or illegal gratuity in connection with this order. Seller agrees to indemnify and hold Buyer and its customers harmless for any loss, damage or expenses sustained because any certification or representation herein or required by law or regulation made by Seller was inaccurate, non-current or incomplete or due to Seller’s non compliance with any applicable law or regulation.
- Seller agrees to provide Buyer, within five (5) business days of Buyer’s request, written certification stating the extent of Seller’s compliance with the above, including applicable laws or regulations coming into effect during the performance of the order.
- If this order is issued under a U.S. Government contract or subcontract the provisions set forth in Buyer’s form entitled “Government Contract Requirements” are incorporated herein by reference as though fully set forth.
- CONFLICT MINERALS. Seller acknowledges that Buyer is required to comply with Section 1502 of the United States Dodd-Frank Wall Street Reform and Consumer Protection Act (“the Dodd-Frank Act”) and among other requirements must file disclosures and reports with the United States Securities and Exchange Commission related to the use of tin, tantalum, tungsten and gold (“Conflict Minerals”). At Buyer’s reasonable request, Seller must execute and deliver to Buyer declarations in the form of the EICC-GESI Conflict Minerals Reporting Template as adopted by EICC-GESI from time to time, or in any other form that Buyer reasonably requests. Unless the declarations provided by Seller pursuant to the prior sentence document to Buyer’s reasonable satisfaction that Supplier is “Conflict Free” (as defined in the Dodd-Frank Act) with respect to all items supplied to Buyer, Seller agrees that it will source, and track the chain of custody of, all Conflict Minerals contained in any items provided by Seller to Buyer in accordance with the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas (or such other internationally recognized due diligence standard as Buyer and Seller may jointly agree).
- RELEASE OF INFORMATION TO PUBLIC. Seller shall not, without the prior written consent of Buyer, make any release of information concerning this order or any other information related to the Buyer (other than to Seller’s employees and subcontractors that is required for the performance of their duties), including providing copies of this order or identifying the goods sold by Seller to Buyer, nor use the name of Buyer in any advertising or publicity, except as may be necessary to comply with a subpoena or other proper mandatory legal demand.
- ORDER OF PRECEDENCE. In the event of any conflict among the provisions of this order, the following order of precedence shall apply in interpreting this order: (i) The text of the order, then (ii) Any Special or Supplemental Terms and Conditions incorporated by reference in the order, then (iii) These General Purchase Order Provisions, and finally (iv) Other Contract Documents.
- APPLICABLE LAW AND DISPUTE RESOLUTION. The construction, interpretation and performance hereof and all transactions hereunder shall be governed by the laws of the State of New York, U.S.A. without regard to or application of its principles or laws regarding conflicts of laws, and excluding the United Nations Convention on the International Sale of Goods of 1980 (and any amendments or successors thereto). Any dispute not resolved by the parties shall be adjudicated in order of preference (i) by a court of competent jurisdiction in the State of New York, U.S.A. if Seller has minimum contacts with New York and the United States, (ii) by a court of competent jurisdiction elsewhere in the United States if Seller has minimum contacts with the United States but not New York, or (iii) by a court of competent jurisdiction in a neutral location if Buyer does not have minimum contacts with the United States.
- RIGHTS AND REMEDIES OF BUYER. The rights and remedies of the Buyer set forth herein shall be in addition to any other rights and remedies provided in law or equity.
- NON-WAIVER. No failure by Buyer to assert its rights under any provision of this order, or failure of Seller to perform any provision of this order, shall be effective as a waiver thereof unless consented to in writing by the Buyer; nor shall any such waiver constitute an advance waiver of any other provision or failure to perform.
- ASSIGNMENT AND SUBCONTRACTING. Any assignment or subcontract by Seller for all or a majority of the materials and/or labor to be supplied by Seller under this order shall be void unless consented to by Buyer in writing. Buyer may assign this order to one of Buyer’s subsidiaries or affiliates or in connection with the sale or transfer of all or substantially all of the assets of the business to which it pertains.
- HEADINGS. Headings and captions set forth in this order are for convenience of reference only and are not intended to, nor do they, alter the meaning, content or enforceability of any Article hereof.
- SEVERABILITY. In the event any provision of this order is determined to be illegal, invalid, or unenforceable, the validity and enforceability of the remaining provisions of this order will not be affected and, in lieu of such illegal, invalid, or unenforceable provision, there will be added as part of this order one or more provisions as similar in terms as may be legal, valid and enforceable under applicable law.
- SURVIVAL. Articles 1, 2, 4, 5, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, and 31 will survive expiration or any cancellation or termination of this Order.
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