TERMS AND CONDITIONS OF PURCHASE ORDER
Tension Envelope Corporation (“Buyer”)
64264215v2
- Acceptance. Terms and conditions stated in this document and on the face of our
Purchase Order (“order”) constitute an integral offer of Buyer. The offer may not be
accepted verbally, conditionally or in part. Acceptance, to be effective, must be in writing
and without qualifications, but if Seller commences the delivery of conforming goods in the
sequence and within the time designated in the order, and Buyer accepts the same, Seller
shall be deemed to have accepted and agreed to fill the order consistent with these Terms
and Conditions (collectively, the “Agreement”) in its entirety as if it had agreed thereto in
writing. Other documents provided by Seller, whether or not received or viewed by Buyer,
shall be of no force or effect. - Conforming Goods. Seller warrants that all goods delivered under these Terms and
Conditions will conform in all respects to the drawings, specifications, samples and other
descriptions, representations and warranties comprising part of this Agreement, will be of
good quality, material and workmanship, marketable, free from defects of every
description, fit for the use intended, produced and delivered in compliance with all federal,
state and local laws applicable thereto, and not violate the rights of any person
(“conforming goods”), and as to milestones, completion and delivery dates. The term
“goods” as used in these Terms and Conditions includes work and services designated or
otherwise called for in this Agreement. Seller represents and warrants that the services
included in the goods will be performed in a diligent, workmanlike manner by personnel of
requisite skill and attention (the compensation of which shall be seller’s responsibility) in a
manner consistent with this Agreement and usual and customary practices in the industry. - Nonconforming Goods. Goods that do not conform to Seller’s representations and
warranties set forth in Section 2 above constitute “nonconforming goods,” shall be
deemed to be defective and may be rejected by Buyer and either returned by it to Seller at
Seller’s expense or held by it for Seller at Seller’s risk and expense. In either case, Seller
shall promptly replace the defective goods with conforming goods or refund to Buyer the
amount it paid Seller for such goods, as Buyer may elect, and reimburse Buyer for all loss,
cost, liability, damage and expense which Buyer or a customer(s) of Buyer incurs or
sustains by reason of the receipt, storage, use or conversion of defective goods furnished
by Seller to Buyer. - Inspection. All goods which Seller shall deliver under these Terms and Conditions,
including without limitation raw materials and components, whether paid for or not, are
subject to inspection and testing by or for Buyer at any time (including, without limitation,
after Buyer’s receipt thereof) to determine whether or not they are defective or
nonconforming. Failure of Buyer to inspect goods prior to using or converting the same
shall not relieve Seller from any obligation or liability under the next preceding paragraph. - Late Delivery. Buyer may either (a) refuse to accept goods received from Seller later
than the date designated therefor in this Agreement and cancel the order for such goods, or
(b) retain such goods, in which event Seller shall pay Buyer a service charge equal to ten
percent (10%) of the invoice price of such goods. Buyer’s acceptance of late or defective
deliveries shall not be deemed to be a waiver by Buyer of its right to cancel the unfilled part
of the order or to refuse the acceptance of further deliveries. Goods shipped to Buyer in
advance of the delivery date scheduled under these Terms and Conditions for such goods
may be returned to Seller at Seller’s expense, or may be retained by Buyer with the right to
defer payment therefor (less storage costs) until after the scheduled date of delivery. - Price. Conforming goods delivered under these Terms and Conditions shall be invoiced
by Seller at prices designated in the order. Invoices must itemize applicable transportation
charges and taxes, if any, as separate items. If the order does not designate a price for any
goods, the price applicable thereto shall be the lowest price charged or offered by Seller at
such time for goods of the same kind to Seller’s other customers such as Buyer. Anything in
the order notwithstanding, Seller shall not charge Buyer a higher price for goods ordered
under these Terms and Conditions than the lowest price it offers at the same time to
customers such as Buyer. Unless specified otherwise on the order, cash discounts will be
calculated from the date acceptable invoices are received by Buyer or from the invoice
date. - Independent Contractor Status. The relationship created under this Agreement is one
of independent contractors, and that nothing contained in this Agreement is intended to be
construed by the Parties or by any third person to create the relationship of partners,
principal and agent, employer and employee, or any association other than contracting
parties. Without limiting the generality of the foregoing:
(a) Neither Party shall have the power or authority to bind or obligate the other Party in
any manner whatsoever except as expressly authorized by such other Party in writing in
the specific case; and
(b) Buyer will not withhold any portion of Seller’s compensation for federal or state
income tax purposes and will not pay any taxes, whether based on the Federal
Insurance Contributions Act (FICA) or the Federal Unemployment Tax Act (FUTA) or
otherwise, with respect to amounts paid to Seller. Seller accepts liability for payment of
all payrolls, Social Security and other federal, state or local taxes now or hereafter
applicable to the transfer or sale provided for in this Agreement or to Seller’s
employees, independent contractors and subcontractors (and their employees)
(collectively, “Seller Personnel”) providing services included in the goods. - Default. Except for Seller’s inability to produce or deliver goods by reason of force
majeure, and without intending to affect or impair any right or remedy of Buyer stated
elsewhere in these Terms and Conditions, Seller agrees that if it defaults in the
performance of any of its obligations under these Terms and Conditions and fails to cure
such default within ten (10) days after Buyer gives it written notice thereof, Buyer may
terminate Seller’s right to make any further delivery of goods under these Terms and
Conditions and may thereafter procure such goods from others for such price and on such
terms as it shall deem to be appropriate. If and at such time as Seller shall anticipate a
delay in meeting a scheduled delivery date, it shall notify Buyer of such anticipation and of
the reason therefor and do its utmost at its expense, including without limitation producing
by use of overtime and shipping by the fastest means, to meet the date(s) designated in the
delivery schedule. - Packing and Shipping. Goods delivered to Buyer under these Terms and Conditions
shall be packed and packaged in accordance with the instructions or specifications
attached to these Terms and Conditions or referred to in drawings or specifications
applicable thereto. In the absence of any such instructions or specifications on packing or
packaging, Seller shall comply with best commercial practice for domestic or international
shipments adequate for safe arrival and storage at destination. A packing list showing order
number, item number and description of contents must be included in each package. - Changes. Buyer may at any time, in writing, make changes within the general scope of
this Agreement, in the (a) drawings, designs or specifications for goods that are to be
specially manufactured for Buyer, (b) method of shipment or packing, (c) place of delivery,
and (d) quantity and quality of goods and materials. If any such change causes an increase
or decrease in the cost of or the time required for performance of this Agreement, an
equitable adjustment shall be made in the contract price and schedule of delivery, if and to
the extent appropriate. - Trademarks. Goods delivered under these Terms and Conditions shall not bear a
trademark or other identifying mark of any kind other than the mark or logo called for in this
Agreement. All drawings and blueprints, dies, patterns, tools and other material furnished
by Buyer to Seller for use in filling, or relating to, this Agreement are the property of Buyer
and shall, upon completion of deliveries or earlier termination of Seller’s right to make
further deliveries under these Terms and Conditions, be returned to Buyer upon its request. - Force Majeure. If either party to these Terms and Conditions is prevented from or
delayed in the production, delivery, acceptance or use of goods ordered under these Terms
and Conditions by reason of force majeure (defined as a cause beyond its control such as,
but not limited to, fire, explosion, accident, embargo or delay of carrier, civil disturbance or
disorder, Act of God or act or omission of the other party), said party, if and provided that it
gives the other party written notice thereof promptly upon the occurrence of such force
majeure event, shall be excused from such performance to the extent and during the
period of such prevention or delay; provided that it uses its best efforts to perform
notwithstanding such event. - Rights and Remedies. None of the rights and remedies granted or reserved to Buyer or
Seller under these Terms and Conditions is exclusive of others provided for by law. - Compliance with Law. Seller shall comply with, and shall ensure that all Seller
Personnel comply with, all applicable federal, state and local laws and ordinances and all
orders, rules and regulations issued thereunder. Seller represents and warrants that all
work performed and/or goods delivered under these Terms and Conditions shall comply
with all applicable state and local laws, orders, rules and regulations. There are
incorporated in this Agreement by reference applicable provisions of the Occupational
Safety and Health Act of 1970, the Fair Labor Standards Act of 1938 as amended, and
Executive Order 11246 regarding Equal Employment Opportunity, and all rules and
regulations issued thereunder; and Seller represents and warrants that it will comply
therewith unless exempt. There are incorporated in this Agreement by reference the
following provisions as they apply to performing work under government
procurement/acquisition contracts: The Equal Opportunity Clause prescribed in 41 C.F.R.
60-1.4; the Affirmative Action Clause prescribed in 41 C.F.R. 60-250.5, regarding disabled
veterans and veterans of the Vietnam Era; the Affirmative Action Clause for Handicapped
Workers prescribed in 41 C.F.R. 60-741.5; 48 C.F.R. Chapter 1 subpart 19.7 regarding Small
Business and Small Disadvantaged Business Concerns; Affirmative Action Compliance
Program (41 CFR 60-1.40); the annual filing of SF-100 Employer Information Report (41
C.F.R.60-1.7); and 41 C.F.R. 60-1.8 prohibiting segregated facilities. - Timely Performance. Time is of the essence in all provisions of this Agreement. Failure
of Buyer or Seller to insist upon strict and punctual performance of any provision of this
Agreement shall not constitute a waiver of, or estoppel against asserting, the right to
require such performance, nor shall such failure in one case constitute a waiver or
estoppel with respect to a later case, whether of similar nature or otherwise. - Severability. If a court of competent jurisdiction holds that any provision of this
Agreement, or any application thereof, is, at any time or to any extent, invalid, illegal or
unenforceable in any respect, then the validity, legality and enforceability of the remaining
provisions of this Agreement or any other application thereof shall not in any way be
affected or impaired thereby and shall be enforced to the fullest extent permitted by law. - Delegation, Assignment. Seller shall not delegate, sublet or assign any of its duties,
obligations or rights under this Agreement without Buyer’s prior written consent. Any such
delegation or assignment attempted without such prior written consent shall be null and
void and shall entitle Buyer, if it so elects, to terminate Seller’s right to make further
deliveries under this Agreement. - Trade Names. Unless authorized in writing by Buyer or a customer(s) of Buyer, Seller
will not use their respective names or the names of their respective subsidiaries or
affiliates in advertising or publicity of any kind. - Obligations of the Parties. The respective obligations of the parties under these Terms
and Conditions shall be binding upon and inure to the benefit of Seller and Buyer and their
respective successors and permitted assigns. - Electronic/Facsimile Transmission. If this Agreement is transmitted by Buyer by
facsimile, E-Mail or by other means of electronic transmission, such transmission shall
have the legal significance of a duly executed original delivered to Seller. - Effect of Termination. The termination of this Agreement or any order in accordance
with this Agreement shall not affect any obligations of either Party accruing before such
termination. For clarity, Sections 2 through 5, 7, 21, and 23 through 27 shall survive the
termination or expiration of this Agreement or any order. This Agreement shall survive after
its termination or expiration for any order then remaining in effect, and will survive after
such termination or expiration to the extent otherwise provided in this Agreement. - Insurance.
(a) During the term of this Agreement, Seller shall carry, from an authorized insurance
company: (i) Worker’s Compensation insurance as required by the laws of the country and
state in which work is being performed; and (ii) comprehensive general liability insurance
with limits for bodily injury and property damage of not less than $2,000,000 in the
aggregate and $1,000,000 per occurrence;
(b) Seller shall provide certificates of insurance, showing Buyer as an additional insured on
all coverage described in Section 22(a) upon the execution and delivery of this Agreement
and thereafter from time to time promptly upon Buyer’s request. None of such insurance
shall be reduced or canceled by Seller unless it is replaced by another qualified carrier
without a lapse in coverage. Such insurance shall be primary and non-contributory to any
insurance maintained by Buyer.
(c) If any person or entity to be assigned to perform Services on Seller’s behalf under this
Agreement is not an employee of Seller (e.g., such person or entity is a subcontractor of
Seller), Seller shall furnish to Buyer, upon written request, evidence that Seller’s insurance
covers such subcontractor or that such subcontractor maintains the same types and level
of insurance as that required of Seller under this Section 24(c). All policies of insurance
maintained by Seller shall contain an endorsement waiving any right of subrogation against
Buyer. - Confidential Information and Intellectual Property.
(a) Definitions. The following terms have the following definitions in this Agreement.
(i) “Works” means any and all original works of authorship, including, but not limited
to, literary works, writings, texts, instructions, descriptions, computer programs,
source code, object code, artistic works, graphs, designs, graphic displays or
designs, architectural works, drawings, blueprints, recordings, photographs, videos,
slides, motion pictures, recordings, pictures, and performances.
(ii) “Invention” means and includes any new and useful process (including, without
limitation, code), device, apparatus, method, machine, manufacture, discovery or
composition of matter, or any new and useful improvement thereof, whether or not
patentable.
(iii) “Copyright” means the registrations of claims of copyright and applications
therefor, together with any Works with respect to which claims of copyright may be
registered under the laws of the United States or any foreign country.
(iv) “Trade Secrets” means and includes, without limitation, Confidential
Information, know-how, Inventions, Works, technical or nontechnical data,
formulas, patterns, mechanical drawings, compilations, programs, code, devices,
methods, techniques or processes (however documented and in any form or
medium and wherever located, kept or maintained) and all other information that (A)
derives independent economic value (actual or potential) from not being generally
known to, and not being readily ascertainable by proper means by, a person able to
obtain economic value from its use or disclosure; and (B) is the subject of efforts
that are reasonable under the circumstances to maintain its secrecy.
(v) “Intellectual Property” means all Patents, Copyright and Trade Secrets, together
with all Inventions and Invention disclosures not yet the subject of patent
applications and all know-how related to the forgoing.
(vi) “Confidential Information” means and includes, but is not limited to, each of the
following types of written, oral, computer, or graphic information used, owned,
developed, made, invented, designed, conceived, conducted, improved, acquired,
possessed or purchased by Buyer (alone or jointly with others), whether or not such
information is marked or designated as confidential or Trade Secret information:
(A) any financial information of Buyer, including, but not limited to, costs, prices,
margins, overhead, salaries, bids, proposals, commissions, profits, loans,
financial plans, and the methods of determining any of the foregoing;
(B) any computer programs, software, source code, documentation, object
code, protocols, designs, processes, methods, techniques, manuals, and
media;
(C) any market plans; market surveys; strategies, tests; test methods;
prototypes, and the results of any focus groups, surveys, and brand studies of
Buyer;
(D) any Inventions, Works, Trade Secrets and know-how;
(E) the identity of, or any lists of, Buyer’s existing and prospective suppliers,
vendors, Sellers, Seller or Seller contacts, and contracts with Sellers or Sellers;
(F) any shortcuts, know-how, methods and processes used by Buyer in
connection with the creation, preparation, planning, design, development,
testing, improvement, operation, pricing, costing, recording, tracking, sale or
use of any of the matters listed above in this clause (vi);
(G) information obtained by Buyer from its Sellers, referral sources, vendors or
third parties; and
(H) any other information of Buyer shared with Seller or that Seller knows or
should know, by virtue of the circumstances under which Seller learned it,
should be kept confidential.
Confidential Information does not include information in the public domain,
provided it did not come into the public domain through the unauthorized acts of
Seller or any Seller Personnel.
(b) Ownership and Assignment. Seller assigns to Buyer all Works, Inventions, Trade
Secrets, Copyrights and other Intellectual Property conceived, developed, created,
fixed in a tangible medium of expression or reduced to practice by Seller, or by Seller
and others (jointly or severally), regardless of when or where such conception,
development, creation, fixation or reduction to practice were done, if such Works,
Inventions, Trade Secrets, Copyrights and other Intellectual Property are related to or
were done in connection with Buyer’s Confidential Information or Intellectual Property
or relate to Buyer’s actual or demonstrably anticipated research or development. Seller
shall cooperate with Buyer in connection with obtaining legal protection or other rights
relating to such Works, Inventions, Trade Secrets, Copyright and other Intellectual
Property, including the execution of all applications, letters, assignments, transfers,
declarations, affidavits, consents, waivers and other instruments reasonably necessary
to secure and prosecute such protection or rights on such forms as Buyer (at Seller’s
expense) from time to time provides to secure such protection or to confirm or secure
Buyer’s rights therein.
For clarity, Buyer shall own, and control the use and disclosure of, all software source
code (and related documentation) included in such Works, Inventions, Trade Secrets,
Copyright and other Intellectual Property. Seller shall not use, or share with third
parties, any of such software (or its documentation) in any form. The Services and
Deliverables shall, when performed and delivered by Seller, be accompanied by all
related licensed software code, mechanical drawings and documentation, as may be
further described in this Agreement.
(c) Notice. Seller will promptly inform Buyer of any Works, Inventions, Trade Secrets,
Copyright and other Intellectual Property conceived, developed, created, fixed in a
tangible medium of expression or reduced to practice by Seller, or by Seller and others
(jointly or severally), to the extent relating to the Services or Deliverables provided by
Seller to Buyer under this Agreement.
(d) Confidentiality. Seller will (i) keep all Trade Secrets and Confidential Information of
Buyer strictly confidential, (ii) not reveal, disclose, sell, offer to sell, copy, publish,
transmit, transfer or distribute Confidential Information or Trade Secrets of Buyer to any
other person or entity, and (iii) not use, reverse engineer, decompile, disassemble
Confidential Information or Trade Secrets, or other Intellectual Property, of Buyer for
any purpose other than as authorized by Buyer in writing.
(e) Court Order/Subpoena. If Seller receives a court order or subpoena requesting or
requiring the disclosure or production of information that is (in whole or in part)
Confidential Information or a Trade Secret of Buyer, Seller will immediately notify Buyer
in writing of such receipt and provide Buyer with a copy of the order or subpoena to
enable Buyer to seek a protective order with regard to such Confidential Information or
Trade Secret.
(f) Return. Upon the termination of this Agreement, and at any time upon Buyer’s
request for any reason, Seller promptly shall:
(i) deliver up and return to Buyer or, at Buyer’s option, destroy or cause to be
destroyed (in each case at Seller’s expense) all copies (which shall include
permanently erasing or deleting all electronic copies), all memoranda, notes,
records, computers, papers, books, disks, tapes, recordings, mechanical drawings,
sketches, videos, photographs, sketches, lists, Seller or client information, images,
and all other media and physical objects and documentation whatsoever in its
possession or control, whether made or compiled by Seller alone or with others or
made available to Seller, comprising, containing, embodying, referencing,
disclosing or used to access Confidential Information or Trade Secrets of Buyer; and
(ii) deliver to Buyer a certification of an executive officer of Seller certifying in writing
that Seller has complied with the foregoing obligations.
Notwithstanding any such return or destruction (as applicable) of the Evaluation
Material, Seller shall continue to be bound by its confidentiality and non-disclosure and
other obligations under this Agreement.
(g) Duration of Confidentiality and Trade Secrets Covenants.
(i) Trade Secrets. Seller’s obligations under this Agreement with regard to Trade
Secrets will remain in effect for as long as that information remains a trade secret
under applicable law.
(ii) Confidential Information. Seller’s obligations under this Agreement with regard to
Confidential Information will remain in effect during the Warranty Period and for 3
years thereafter.
(h) Defend Trade Secrets Act. Notwithstanding any provision of this Section 23 to the
contrary, under the Defend Trade Secrets Act of 2016, an individual shall not be held
criminally or civilly liable under any Federal or State trade secret law for the disclosure
of a trade secret that (a) is made: (i) in confidence to a Federal, state or local
government official, either directly or indirectly, or to an attorney; and (ii) solely for the
purpose of reporting or investigating a suspected violation of law; or (b) is made in a
complaint or other document filed in a lawsuit or other proceeding, if such filing is
made under seal. - Equitable Relief.
(a) Buyer has carefully read and considered Section 23 and, having done so, Buyer
acknowledges and agrees that:
(i) the restrictions set forth in Section 23 (A) are fair and reasonable in duration,
geographic scope and with respect to the activity or subject that is restricted, and
(B) are reasonably required to protect (1) Seller’s legitimate business interests,
Seller and supplier relationships, goodwill and loyalty, (2) the confidential nature of
the Confidential Information and the Trade Secrets and (3) against the misuse or
unauthorized disclosure of Seller’s Confidential Information and the Trade Secrets;
(ii) Section 23 will not cause undue hardship to Buyer or unreasonably interfere with
Buyer’s business prospects;
(iii) Because the Confidential Information and Trade Secrets are unique to the
business of Buyer, Buyer would not reveal them to Seller but for Seller’s willingness
to agree to the restrictions set forth in this Agreement;
(iv) A breach of any of the provisions of Section 23 would cause irreparable harm
and damage to Buyer; and in the event of any such breach, it would be extremely
impracticable to measure the resulting damages and the remedies at law for the
breach would not adequately compensate Buyer and its related and affiliated
business entities for the damages;
(v) Section 23 will be construed as an agreement independent of any other provision
of this Agreement or any other agreement between the Parties, and the existence of
any claim or cause of action by Seller against Buyer, whether predicated upon this
Agreement or any other agreement, will not constitute a defense to enforcement of
Section 23 by Buyer; and
(vi) If Seller breaches any of the provisions of Section 23, then (A) Buyer will be
entitled to injunctive relief, specific performance or any other equitable remedy that
a court of competent jurisdiction may provide (without posting any bond), in
addition to any other remedies available at law or in equity, and (B) Seller waives the
defense that a remedy in damages will be adequate.
(b) The Parties intend that nothing contained in this Section 24 be construed to limit the
right of Buyer to any remedies at law or in equity, including Buyer’s recovery of damages
for Seller’s breach of this Agreement, such rights being cumulative and not alternative.
(c) Notwithstanding anything contained in this Agreement to the contrary, if a court of
competent jurisdiction holds that any one or more of the provisions contained in
Section 23, for any reason, is excessively broad as to duration, geographical scope,
activity or subject, the Parties intend that the provision be construed by limiting and
reducing it so that it is enforceable to the extent compatible with the then applicable
law in the jurisdiction in question, and Seller agrees that the provision, as so reduced
and limited, will be binding upon Seller as if fully set forth in this Agreement. - Personnel.
(a) Seller shall require all Seller Personnel to comply with the restrictive provisions of
this Agreement as if they were Seller (including, without limitation, Section 23). Seller
shall indemnify, defend, and hold harmless Buyer from and against any and all Liability
to the extent arising out of or on account of, or resulting from:
(i) The failure of Seller or any Seller Personnel to fulfill any undertaking under this
Agreement, including (A) any actual or alleged breach by Seller or any Seller
Personnel of any provision of this Agreement; or (B) the employment of one or more
of Buyer’s employees;
(ii) the violation of any applicable law, order, or regulation by Seller or any Seller
Personnel,
(iii) Seller’s misrepresentation, or breach of warranty under this Agreement; or
(iv) the fault or negligence of Seller or any Seller Personnel.
(b) Buyer shall have the right to evaluate all Seller Personnel assigned to perform any
Services for Buyer under this Agreement and to accept or reject any individual based
upon the professional experience of such individual. If any Seller Personnel performing
Services under this Agreement is found to be unacceptable to Buyer for any reason or
without cause, Buyer shall notify Seller of such fact and Seller shall meet with Buyer to
discuss the appropriate actions to be taken (including, if appropriate, immediate
removal). In the event of immediate removal of any Seller Personnel, if appropriate,
Seller shall use its best efforts to provide a qualified replacement. In such
circumstances of immediate removal, no fees or expenses shall be incurred by Buyer
for these Seller Personnel as of the date and time of requested removal.
(c) Seller shall use its best efforts to ensure the continuity of Seller Personnel assigned
to perform Services under this Agreement. If Seller reassigns any Seller Personnel
assigned to perform Services under this Agreement (other than at the request of Buyer
to other Buyer projects), Seller will use commercially reasonable efforts to promptly
provide a suitable replacement of the same skill level. - Indemnity.
(a) Seller shall defend, indemnify and hold harmless Buyer and its officers, directors,
employees and agents from and against all liabilities, judgments, losses, damages
(including lost profits), administrative actions, causes of action, claims, demands,
harm, injury, fines, penalties, assessments, costs and expenses (including attorney’s
fees, court costs, investigative costs and amounts paid in settlement) of whatsoever
kind and nature (together “Liability”), asserted against Buyer based on contract, tort or
common law indemnity, or that Buyer otherwise incurs or suppliers, that arise out of the
unauthorized disclosure or use by Seller or Seller Personnel of Buyer’s Confidential
Information, Works, Inventions, Trade Secrets, Copyright or Intellectual Property.
(b) Seller shall indemnify, defend and hold harmless Buyer and its officers, directors,
employees and agents from and against all Liability for infringement of any patent,
copyright, trade mark, or similar property right (including, but not limited to,
misappropriation of trade secrets) based on any intellectual property, HTML code,
images, illustrations, graphics, multimedia files, text, user information, hardware,
machines, devices, methods and product information that are provided to Buyer by
Seller for use by Buyer, including the Deliverables (“Seller Property”). If such
infringement claim or action has occurred or, in Seller’s judgment is likely to occur,
Seller shall, at Buyer’s option and expense, either:
(i) procure for Buyer the right to continue using such Seller Property;
(ii) modify such Seller Property to become non-infringing (provided that such
modification does not adversely affect the intended use of such Seller Property by
Buyer as contemplated under this Agreement);
(iii) replace such Seller Property with an equally suitable, compatible and
functionally equivalent non infringing deliverable and/or materials at no additional
charge to Buyer; or
(iv) if none of the foregoing alternatives is reasonably available to Seller, then upon
Seller’s written request Buyer shall return such Seller Property to Seller and
thereafter be relieved of its obligations with respect to Deliverables that are
dependent on such Seller Property. - Other Provisions.
(a) Notices. All notices, requests, demands or other communications under this
Agreement must be in writing, addressed to the Parties at the addresses set forth in the
order, or to such other addresses as to which the Parties give notice in accordance with this
Section 27(a).
(b) Governing Law; Jurisdiction. This Agreement shall be governed by and construed in
accordance with the laws of the state of Missouri as they apply to contracts entered into
and performed wholly within Missouri, without regard to its rules concerning conflicts of
laws. The Parties consent to the exclusive jurisdiction of courts situated in the Circuit Court
of Jackson County, Missouri or the United States District Court for the Western District of
Missouri if any legal proceedings are instituted relating to this Agreement.
(c) Entire Agreement; Binding Effect. This Agreement constitutes the complete
understanding of the Parties on the subject matter of this Agreement. This Agreement
supersedes all prior representations and understandings, whether oral or written. This
Agreement is binding upon, and inures to the benefit of, the Parties and their respective
successors and assigns.
(d) Dispute Resolution. “Dispute” means a disagreement that the Parties have been unable
to resolve by the normal and routine channels ordinarily used for such matters with Seller
service representatives or other designated personnel of each Party handling inquires and
complaints through informal contact. The Parties intend that all Disputes arising under this
Agreement be resolved expeditiously, amicably and at the level within each Party’s
organization that is most knowledgeable about the disputed issue. Written notice shall be
given by the disputing Party to the other Party detailing the Dispute. Both Parties shall use
good faith to resolve the matter. If the Dispute remains unresolved at this level within each
Party’s organization after a two (2) week period, the Dispute should be elevated within each
Party’s organization to a higher level for a mutually satisfactory resolution within thirty (30)
days of the written notice of the Dispute or within a mutually agreeable time. Final
escalation within both organizations may be done at the level of the chief executive officer.
If the Parties are still unable to reconcile the Dispute or if at any time during this process
one Party deems to be appropriate, the Dispute may be taken to court by either Party under
Section 27(b). Each Party shall bear its own expenses (including legal fees) with respect to
any Dispute.
