TENSION ENVELOPE CORPORATION (“BUYER”) – TERMS AND CONDITIONS OF PURCHASE ORDER
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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.
