TERMS AND CONDITIONS OF SALE
1. Applicability
1.1 These terms and conditions of sale (these "Terms"), any Sales Documents accompanying or referencing these Terms, and Supplemental Terms, if any, comprise the entire agreement (the “Agreement”) between InnovaPrep LLC or an affiliate thereof (herein, either "Seller" or “InnovaPrep”) and the purchaser (“Purchaser”) with respect to the purchase and sale of products(“Products”) and services ("Services") indicated on Sales Documents. “Sales Documents” means any document, print or digital, provided by Seller in the purchase and sale process, including but not limited to quotations, invoices, documents confirming, acknowledging or accepting an order (“Order Confirmation”) and shipping documents. If the parties have signed a contract applicable to the sale of certain Products and/or Services, the terms of such contract shall prevail to the extent they are inconsistent with these Terms.1.2 These Terms prevail over any Purchaser’s terms, conditions, or limitations that are inconsistent with these Terms, regardless of when such terms, conditions, or limitations are provided,and all such Purchaser-furnished terms, conditions, and limitations are here by rejected. Fulfillment of Purchaser's order does not constitute acceptance of any of Purchaser's terms and does not serve to modify or amend these Terms. Purchaser’s acceptance or use of any Products or Services furnished by Seller shall be deemed acceptance of these Terms.1.3 Certain Products and Services maybe subject to additional Seller-provided terms (“Supplemental Terms”) not contained herein, which, when applicable, may be referenced on or provided with Sales Documents or Seller’s websites or provided by Seller upon request.1.4 The Agreement between Seller and Purchaser, governed by these Terms, is created when Seller confirms, acknowledges or begins to fulfill Purchaser’s order. Purchaser may not modify or cancel the Agreement without the express written consent of a duly authorized officer of Seller. Modification or cancellation may require payment by Purchaser of certain costs incurred by Seller.
2. Delivery and Performance
2.1 Delivery dates provided by Seller are estimates only and non-binding, and time of delivery is not of the essence. Seller shall not be liable for any delays, loss, or damage in transit.2.2 Unless otherwise agreed inwriting, Products are shipped using Seller's standard packaging and shipping methods, for which fees may apply. Unless otherwise agreed in writing signed by a duly authorized officer of Seller, all shipments to points in the U.S. shall be delivered by InnovaPrep FOB InnovaPrep’s facility. If Purchaser advises InnovaPrep that it will arrange and take responsibility for shipment of Products from InnovaPrep’s facility, InnovaPrep will assist Purchaser and provide supporting documents for transportation of the Products to Purchaser’s specified location and may be subject to a handling fee.
2.3 Seller may, in its sole discretion, make partial shipments of Products and invoice immediately therefor. Purchaser shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Purchaser's order.2.4 With respect to certain Products, Seller reserves the right to (a) require the purchase of entire lots; and (b)allocate supply, to the extent such allocation is deemed necessary by Seller, among any or all customers (including Seller’s affiliates and distributors) at its sole discretion, without liability for any failure of performance which may result therefrom.2.5 Seller shall determine the location of Services. If Services are provided at Seller’s site or a third-party site authorized by Seller, Purchaser shall be responsible for any shipping and transportation costs, including any insurance costs, if applicable. If Services are provided at Purchaser’s site or another site under Purchaser’s control, Purchaser shall (a) cooperate with Seller in all matters relating to the provision of Services and provide access to premises and facilities as may reasonably be necessary or requested, including a safe work environment; (b) promptly provide any requested materials, direction, information, approvals, authorizations, or decisions (“Information”); and (c)ensure that such information is materially complete and accurate.
3. Use of Products
3.1 Purchaser shall (a) comply with all instructions, limitations, specifications, use statements or conditions of use made available by Seller, including but not limited to product data, product information and user manuals, safety data sheets, limited use information, and labeling (“Use Documents”),and (b) properly test, use, manufacture and market Products and/or materials produced with Products.3.2 Purchaser acknowledges that Products are not tested for safety and efficacy in food, drug, medical device, cosmetic, commercial or any other use, unless otherwise explicitly stated in Use Documents. Purchaser is solely responsible for: (a) obtaining any necessary intellectual property permission related to the use of Products, (b) compliance with all applicable regulatory requirements and generally accepted industry standards, and (c) conducting all necessary testing and verification, including for fitness for the intended purpose.3.3 If the applicable Use Documents, including but not limited to the limited use label license, indicate that the Products are offered and sold for research purposes only, Purchaser has no express or implied authorization from Seller to use such Products for any other purpose, including, without limitation, in vitro diagnostic purposes, in foods, drugs, medical devices or cosmetics for humans or animals or for commercial purposes. Purchaser shall not market, distribute, resell or export Products for any purpose, unless otherwise agreed by Seller in writing.
4. Inspection and Rejection of Nonconforming Products
4.1 Purchaser shall inspect Products no later than five (5) days after receipt("Inspection Period"). Purchaser will be deemed to have accepted the received Products unless it notifies Seller in writing of any Non conforming Products during the Inspection Period, furnishing evidence or other documentation if required. "Nonconforming Products" means only those delivered Products, or quantity thereof, which are different than identified in the Shipping Confirmation and Packing List.4.2 If Seller is notified in accordance with Section 4.1 hereof and if Seller verifies that the Products in question are, indeed, Nonconforming, then Seller shall, in its sole discretion,(a) replace such Nonconforming Products with conforming Products, or (b) credit the price for such Nonconforming Products or, in the event of partial delivery, adjust the invoice to reflect the actual quantity delivered. Seller reserves the right to inspect Products to verify that such Products are indeed Non conforming, and Seller may exercise this right prior to offering any remedy provided for in this Section. Purchaser acknowledges and agrees that the remedies set forth in this Section 4 are the exclusive remedies for delivery of Nonconforming Products.4.3 Any returns, if authorized, shall be handled in accordance with Section 8 below.
5. Price and Payment
5.1 Purchaser shall purchase Products and Services from Seller at the prices offered by Seller, including prices in a valid quotation or prices on a published price list valid as of date of the applicable Order Confirmation. If there is a price increase before Products are shipped, then the Agreement shall be construed as if the increased prices were originally inserted therein, and Purchaser shall be invoiced by Seller in accordance therewith.
5.2 All prices are exclusive of all sales, use, and excise taxes, duties, customs, tariffs, and any other similar taxes or charges of any kind imposed by any governmental authority or quasi-governmental authority on any amounts payable by Purchaser. Purchaser shall be responsible for all such taxes and charges; provided, however, that Purchaser shall not be responsible for any taxes imposed on, or with respect to, Seller's income, revenues, gross receipts, personal or real property, or other assets.
5.3 InnovaPrep Standard Payment Terms are prepay, unless approved for credit terms. All payments shall be made in U.S. Dollars. Payment received via wire transfer are subject to a transaction fee of $40.00. If credit terms are approved, Purchaser shall pay all invoiced amounts within fifteen (15) days from date of invoice to the specified bank account or as otherwise instructed by Seller.
5.4 Purchaser shall pay a late charge on all late payments at the lesser of (a) the rate of eight percent (8%) per annum above the Prime Rate or (b) the highest rate permissible under applicable law, calculated daily and compounded monthly. Purchaser shall reimburse Seller for all costs incurred in collecting any late payments, including court and other costs and attorneys' fees—to include paralegal fees, expert witness fees, and like charges incurred by Seller’s legal counsel. In addition to all other remedies available under these Terms or at law, Seller may, without notice to Purchaser, delay or postpone delivery of Products and/or performance of Services and may, at its option, change the terms of payment with respect to any undelivered Products and/or unperformed Services. For purposes hereof, the Prime Rate is the prime rate published in the “Money Rates” section of The Wall Street Journal on the business day last preceding the date when Purchaser’s payment first became delinquent (the “Index”). If for any reason The Wall Street Journal ceases publication or no longer publishes a prime rate in its “Money Rates” section, then the Index shall be the rate announced by a national bank chosen by Seller as its prime rate (on the business day last preceding the date when Purchaser’s payment first became delinquent), and such rate may not necessarily be the lowest rate such national bank charges to its customers. Late charge amounts collected in excess of the maximum lawful amount(if any) shall be applied to the underlying indebtedness of Purchaser to Seller, and any remainder shall be refunded to Purchaser.
5.5 Purchaser shall not withhold payment of any amounts due and payable hereunder because of any set-off of any claim or dispute with Seller, and any such attempted set-off shall be subject to the late charge obligations set forth in Section 5.4 hereof.
5.6 If Purchaser breaches or commits or permits an event of default under this Agreement, then Purchaser will be responsible to Seller not only for all amounts in default, late charges with respect thereto, and all damages resulting from the breach or default, but also Seller’s attorney’s fees, paralegal fees, costs of investigation, and other costs of litigation incurred by Seller, whether or not a lawsuit for collection is instituted.
6. License Terms for Computer Programs and Use Documents
6.1 If any computer programs or Use Documents are provided or licensed by Seller to Purchaser, including computer programs provided together or in connection with any Products or Services (“Programs”), the terms furnished with such Programs or Use Documents shall apply, whether in the form of a so-called click-wrap license or otherwise. If there are no terms provided with such Programs or Use Documents, then these Terms, including this Section 6, shall apply.
6.2 Seller grants Purchaser a nonexclusive, non-transferrable, non-sublicensable, and limited right and license to use the copy of the Program or Programs and the Use Documents as provided by Seller, provided that such Program or Programs and Use Documents are used only in connection with the Products and Services furnished by Seller and are not further reproduced, modified, altered, displayed, performed, or distributed in any way. In any case, Programs provided together or in connection with any Products or Services shall not be transferred separately from such Products or Services.
6.3 The Computer Programs, Use Documents, and related intellectual property rights are owned by Seller, an affiliate, or certain suppliers or licensors of Seller or Seller’s affiliates, and title to the Computer Programs, Use Documents, and intellectual property rights therein and thereto shall not pass to Purchaser or any other third party. Purchaser understands that its use of any third-party software is subject to, and it will comply with, the terms of any applicable third-party license agreements or notices and to the rights of any other third-party owners or providers of software or firmware included in the Software. All embodiments of Programs or Use Documents in the possession or under the control of Purchase rare furnished by Seller to Purchaser as a bailee only, and all such items shall be returned to Seller upon demand.
6.4 Purchaser shall (a) use the Programs and Use Documents only with the intended Products or Services with which such Programs or Use Documents were furnished and only for a purpose within the scope of the application for which it or they are provided, (b) not cause, permit, or suffer any reverse engineering, disassembly, de-compilation, modification or adaptation of the Programs or the combination of the Programs with any other computer programs, or (c) not move or otherwise transport the Programs or Use Documents to any country in violation of United States Foreign Asset Control Regulations or other applicable import or export control laws or regulations.
6.5 Any replacements, fixes, or upgrades of the Programs shall be provided subject to the same restrictions and other provisions contained herein, unless such replacement, fix, or upgrade is furnished with a separate license agreement. Any such replacements, fixes or upgrades shall be provided at prices and payment terms as specified by Seller.
7. Limited Warranties
7.1 Seller warrants to Purchaser that Products will conform to Seller's published specifications for (a) one (1) year from the date of shipment of Products or (b) the remaining shelf life or the period prior to the expiration date of Product, whichever is shorter.
7.2 Seller warrants that Services shall be performed in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services, and Seller shall devote reasonably adequate resources to meet its obligations under the Agreement. Any claim that Seller has breached the obligation herein must be made within the ninety (90) day period after the performance of the applicableServices.
7.3 Seller warrants that the Programs, including any upgrades thereto, will materially conform to published specifications for one (1) year from date of delivery or (b) the remaining shelf life or the period prior to the expiration date of Product, whichever isshorter.
7.4 Except for the warranties set forth above, Seller makes no warranty whatsoever with respect to any Products(including Programs), any uses thereof, any Services, and any technical assistance or information furnished by Seller. SELLER EXPLICITLY AND SPECIFICALLYDISCLAIMS ALL OTHER REPRESENTATIONS OR WARRANTIES (WHETHER EXPRESSED ORIMPLIED), INCLUDING (A) ANY WARRANTY OF MERCHANTABILITY, (B) ANY WARRANTY OFFITNESS FOR A PARTICULAR PURPOSE, OR (C) ANY WARRANTY AGAINST INFRINGEMENT OF INTELLECTUALPROPERTY RIGHTS OF A THIRD PARTY—EVEN IF SUCH WARRANTIES WOULD OTHERWISE BEIMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OROTHERWISE. ANY SUGGESTIONS BY SELLER REGARDING USE, SELECTION, APPLICATION, ORSUITABILITY OF PRODUCTS SHALL NOT BE CONSTRUED AS AN EXPRESS OR IMPLIEDWARRANTY.
7.5 The limited warranties set forth above in Section 7.1 hereof do not apply unless: (a) Purchaser gives written notice of the defect to Seller immediately upon discovery; (b) if applicable, Seller is given reasonable opportunity to examine the relevant Products, Services, or Programs; and (c) the defect are verified by Seller.
7.6 The limited warranty set forth in Section 7.1 does not apply if: (a) a defect arises as a result of a breach of the obligations in Section 3; (b) any unauthorized installation, repairs, modifications, upgrades, maintenance, or other servicing of Products occurs or has occurred; (c) a defect arises as a result of normal wear and tear or lack of proper maintenance; or (d) Products are used beyond the shelf life or expiration date as set forth in the applicable Use Documents.
7.7 The limited warranty set forth in Section 7.1 does not apply if an equipment failure or defect results directly or indirectly from the following: (a) non-compliance with Use Documents; (b) any misuse, theft, water flow-back, neglect or wrongful act by Purchaser, its contractors or agents; (c) accidents or shipping related damage; (d) electrical failure; (e) vandalism, explosion, flood or fire, weather or environmental conditions; (f) defect or malfunction is caused by or results from misuse, abuse, vandalism, or improper storage; (iv) defect or malfunction results from or was caused by failures related to batteries of any type or by use of the product with other products, even if sold with the InnovaPrep product (unless InnovaPrep has specifically authorized, in writing, use of such product with the subject InnovaPrep product); (v) if there have been any alterations of serial numbers; or (vi) the product has been exposed to any level of radioactive material or has been exposed to a Biological Safety hazard ( BSL3 or higher), or (g) any unauthorized installation, repairs, modifications, upgrades, maintenance, or other servicing. If this limitation applies but Seller, at its sole discretion, elects to re-perform the applicable Services, Purchaser may be charged for fees and expenses, including but not limited to travel costs and any working time of Seller’s employees, contractors, or agents (at list rate).
7.8 The limited warranty set forth in Section 7.3 does not apply to any defects arising out of or relating (a) to Purchaser’s breach of Section 6.4; (b) to Purchaser’s failure promptly to install required updates; or (c) to the operation of Purchaser or a third-party system ornetwork.
7.9 Subject to the conditions set forth above in this Section, including the time limitations, Seller shall, in its sole discretion (a) with respect to Products or Programs, either repair or replace Products or Programs (or the defective part thereof) and if Seller is unable to repair or replace, Seller shall credit the price of such Products, Programs, or the defective part thereof; or (b) with respect to Services, re-perform the applicable Services or credit the price of such Services at the pro rata contract rate. The remedies set forth herein shall be Purchaser's sole and exclusive remedy and Seller's entire liability for any breach of its warranty.
7.10 Purchaser acknowledges that all Products (including Programs) furnished by Seller hereunder are for commercial use and not for personal, family, or household use.
8. Returns Purchaser shall not return Products without Seller’s prior written consent. Seller reserves the right to inspect Products at Purchaser’s site and/or require disposal instead of return. All returns must be in compliance with Seller’s instructions and may be subject to a restocking charge. Certain Products (e.g. buffers, temperature sensitive and custom Products or special orders) may not be returned under any circumstances. Title to returned Products shall transfer to Seller upon acceptance at the facility designated by Seller. Any returned Products must be in their original packaging with the original label affixed, and unaltered in form and content.
9. Limitation of Liability and Indemnification
9.1 Purchaser assumes all risk and liability for loss, damage, or injury to persons or to property of Purchaser or others arising out of (a) the transport, storage or use of Products or Programs, including infringement of any third-party intellectual property rights resulting from Purchaser’s specific use of Products or Programs and (b) any provision or use of Services. If Seller's performance of its obligations is prevented or delayed by any act or omission of Purchaser, its agents or subcontractors, Seller shall not be deemed in breach of its obligations or otherwise liable for any costs, charges, or losses sustained or incurred by Purchaser or others, in each case, to the extent arising directly or indirectly from such prevention or delay.
9.2 Purchaser shall indemnify, hold harmless, and (at Seller’s option) defend Seller, its affiliates, and their respective agents, employees, and representatives from and against all claims, damages, losses, costs, and expenses (including attorney’s fees) (a) arising from or in connection with the transport, storage, sale or use of Products, (b) resulting from Purchaser’s breach of the Agreement, and/or (c) arising from the negligent or more culpable misconduct of Purchaser, its affiliates, or their respective agents, employees, partners or subcontractors.
9.3 Except as otherwise expressly provided herein, Seller shall not indemnify nor be liable to Purchaser or any person or entity for any claim, damage or loss arising out of the Products, including the sale, transport, storage, failure, use or distribution there of, the provision of Services, or the license of Programs, regardless of the theory of liability, including warranty, negligence, or strict liability. In addition, Seller shall not be liable for incidental, consequential, indirect, exemplary or special damages of any kind, including liability for loss of use, loss of work in progress, loss of revenue or profits, cost of substitute equipment, facilities or services, downtime costs, or any liability of Purchaser to a third party. The total liability of Seller hereunder shall not exceed the purchase price of Products or Services, or the license fee of Programs involved. Without limiting the provisions regarding and limiting warranty claims here under, all claims must be brought within one (1) year of delivery of Products or Programs or performance of Services, regardless of their nature.
10. Compliance with Laws
Purchaser shall comply with all applicable laws, rules, regulations, and ordinances, including those pertaining to the following: export control, pharmaceutical, cosmetic and food preparations, electrical or electronic waste, introduction or production and use of chemical substances (e.g. Toxic Substances Control Act, REACH), and bribery and corruption (e.g. Foreign Corrupt Practices Act and UK Bribery Act). Purchaser shall maintain in effect all required licenses, permissions, authorizations, consents, and permits. Purchaser shall comply with all applicable export and import laws in its purchase and use of Products here under (including Programs) and assumes all responsibility for all shipments governed by such laws. Seller may terminate the Agreement or suspend delivery if any governmental authority imposes antidumping or countervailing duties or any other penalties on Products.
11.Termination In addition to any other remedies provided hereunder, Seller may immediately terminate the Agreement upon written notice if Purchaser: (a) fails to pay any amount when due; (b) has not otherwise performed or complied herewith, in whole or in part; or (c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization , or assignment for the benefit of creditors.
12. Confidential Information
All non-public, confidential, secret, or proprietary information, including specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, and rebates, disclosed by Seller to Purchaser or discovered by Purchaser from Seller, whether disclosed orally or disclosed or accessed in written, electronic, magnetic, optical, or other form or media, and whether or not marked, designated, or otherwise identified with the designation "confidential," “proprietary,” or secret or with some similar designation is the “Confidential Information” of Seller and may not be disclosed to any Person (except as expressly permitted herein) or used by Purchaser for its own use or for the use or benefit of any other Person, including but not limited to filing any patent applications disclosing or based on such Confidential Information, unless authorized in advance in writing by Seller. Upon request, Purchaser shall promptly return or destroy all documents and other materials received from Seller or discovered by Purchaser from Seller. Seller shall be entitled to injunctive relief for any violation of this section. This section does not apply to information that is: (a) in the public domain; (b) known to Purchaser at the time of disclosure, as substantiated by written, contemporaneously dated evidence in Purchaser’s files; or (c)rightfully obtained by Purchaser on a non-confidential basis from a third party having no obligations of nondisclosure or nonuse.
13. Force Majeure
Neither party will be in default of any obligation under this Agreement (other than obligations to pay money) to the extent performance is prevented or delayed by a Force Majeure Event. A “Force Majeure Event” shall include any occurrence beyond the reasonable control of a party, including without limitation: act of nature (e.g., flood, earthquake or storm); war or terrorism; civil commotion or riot; epidemic or pandemic (e.g., COVID-19); destruction of facilities or materials; fire or explosion; labor disturbance or strike; laws, regulations, directives or orders of any government, regulatory or judicial authority; embargo, shortage of raw materials or labor; equipment failure; or failure of public utilities or common carriers. The party declaring a Force Majeure Event will notify the other party in writing, explaining the nature thereof, and will also notify the other party of the cessation of any such event. A party declaring a Force Majeure Event will use commercially reasonable efforts to remedy, remove, or mitigate such an event and the effects thereof. Upon cessation of the Force Majeure Event, performance of any suspended obligation or duty will promptly recommence.
14. Miscellaneous
14.1 No Waiver. No waiver by Seller of any provisions of the Agreement is effective unless explicitly set forth in writing. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from the Agreement operates, or may be construed, as a waiver thereof.
14.2 Assignment. Purchaser shall not assign any of its rights or delegate any of its obligations under the Agreement without Seller’s prior written consent. Any purported assignment or delegation in violation hereof is null and void. No assignment or delegation relieves Purchaser of any of its obligations here under.
14.3 Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
14.4 No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or because of this Agreement.
14.5 Publicity and Use of Name. Purchaser shall not, without the prior written consent of Seller, (a) refer to Seller, its affiliates, Products or Services in any marketing, promotion or other publicity material, whether written or in electronic form, or (b) use proprietary brand names, trademarks, service marks, trade names, logos and other intellectual property owned by Seller or one of its affiliates except as specifically permitted hereunder. Purchaser may not alter, amend, obliterate, distort, or obscure proprietary brand names, trademarks, trade names, logos, and other such items or replace any such brand names, trademarks, trade names, logos, or other such items with anything.
14.6 Governing Law and Venue. All disputes and other matters arising out of or relating to this Agreement are to be governed by and construed in accordance with the internal laws of the State of Missouri. The laws of the State of Missouri will be applied without giving effect to any choice or conflict of law provision or rule (whether of the State of Missouri or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Missouri. The parties expressly reject the applicability of the United Nations Convention on Contracts for the International Sale of Goods. Each of the Seller and the Purchaser irrevocably consents to and agrees to the propriety of jurisdiction and venue in the courts located in either Cass County Missouri or in the Western District of Missouri, depending upon subject matter.
14.7 Notices. Except if otherwise agreed upon by the parties, any notices, requests, consents, claims, demands, waivers, and other communications hereunder shall be in writing and addressed to the respective parties at the addresses set forth on the Proposal or to such other address that may be designated or may have been designated by the receiving party in writing in a Notice furnished in compliance herewith. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid),facsimile (with confirmation of transmission), or certified or registered mail(in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
14.8 Severability. If any term or provision of the Agreement is held to be invalid, illegal, void, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Any court that has held any term or provision of this Agreement to be invalid, illegal, void, or unenforceable is hereby authorized to reform such term or provision by limiting its scope or effect to the extent sufficient to render such term or provision valid and enforceable. If the said term or provision cannot be so-reformed, then the said term or provision shall be deemed stricken here from.
14.9 Survival. Provisions of this Agreement that, by their terms, nature, or reasonable inference therefrom should apply beyond their terms will remain in force after any termination or expiration of this Agreement, including the following provisions: Sections 3, 6, 7, 9, 12, 14.6and 14.9.
14.10 Amendment and Modification. Except as other wise set forth herein, the Agreement may only be amended or modified in writing and signed by an authorized representative of each party.
14.11 Data Protection. Seller will request, process and use personal data (e.g. contact name and business addresses) from Purchaser to fulfill its obligations under the Agreement and for the continuing relationship management with Purchaser. Seller’s processing activities shall be governed by its privacy policy posted at www.innovaprep.com (privacy policy).
14.12 Period of Limitations. Any claim or cause of action that Purchaser has or purports to have against Seller or any of its suppliers, vendors, manufacturers, or licensors, to be timely brought, must be filed in the proper court, as provided for in Section 14.6 hereof, within one(1) year from the date the claim or cause of action accrued.
15. Certain Guides to Interpretation
15.1 The term “Person,” when used herein, means any individual, natural person, or artificial person such as a corporation, limited liability company, trust, partnership, association, or other entity.
15.2 In the Agreement, words in the singular will be deemed to include the plural and vice versa.
15.3 In the Agreement, words of one gender will be deemed to include the other genders as the context requires.
15.4 The words “or” and “any” are not exclusive.
15.5 The words “include” and “including,” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words “without limitation” or words or phrases of similar meaning.
15.6 A reference to a law includes any statute, regulation, rule, or ordinance and all amendments or modifications thereto.
15.7 A reference to a Person includes such Person’s permitted successors and assigns.
15.8 A reference in the Agreement to an Article, Section, clause, paragraph, subsection, attachment, annex, exhibit or schedule is to the referenced Article, Section, clause, paragraph, subsection, annex, exhibit or schedule of the Agreement.
15.9 The terms “hereof,” “herein,” and “herewith” and words of similar import will, unless otherwise stated, be construed to refer to the Agreement as a whole (including all of the attachments thereto) and not to any particular provision of the Agreement, except where stated otherwise.
SUPPLIER TERMS AND CONDITIONS
InnovaPrep (“Buyer”)Standard Purchase Order Terms and Conditions
1. ACCEPTANCE.
1.1 Status.
These terms and conditions (the “Terms”) accompany or are linked with an order for the purchase and sale of goods and services (collectively, the “Items”)described on the order form to which these Terms are linked (the “Order"). The Order and these Terms shall be deemed accepted upon the Seller’s signature thereon, the return of the acknowledgment copy of the Order, or the commencement of performance by Seller. No course of dealing shall be effective to vary the foregoing.
1.2 Inconsistent Terms.
Buyer hereby rejects any additional, inconsistent, conflicting, or different provisions, terms, or conditions proposed or offered by Seller at any time, whether or not such provisions, terms, or conditions materially alter the Order or these Terms, irrespective of Buyer's acceptance of or payment for any of the Items, and regardless of whether such provisions, terms, or conditions are contained in Seller’s invoice, quotation, acknowledgment, packing or shipping materials, or other form or document. All such Seller-proposed provisions, terms, and conditions are expressly rejected by Buyer.
1.3 Entire Agreement. These Terms (coupled with the provisions on the face of the Order) constitute the entire agreement between Buyer and Seller regarding the Order and the Items to be furnished thereunder, and no change to or modification of the Order or these Terms shall be binding upon Buyer unless in writing and signed by an authorized representative of Buyer's procurement or purchasing office at the place of business from which the Order has issued.
2. PROTECTION OF PROPERTY AND CONFIDENTIAL INFORMATION.
2.1 Property.
(a) “Property” shall mean all materials, equipment, tools, supplies, components, and facilities furnished to Seller by Buyer, or paid for by Buyer under the Order, as well as any improvements thereto or replacements thereof used or useful in fulfilling any orders (including this Order) presented to Seller by Buyer. This Section 2.1shall govern the use, ownership, treatment, handling, and disposition of such Property (if any).
(b) Title to all Property shall be vested in Buyer with the right to demand possession at any time. Seller, being a bailee for hire, may use Property only in the performance of work for Buyer and must protect same using that degree of care which is reasonable under the circumstances. Buyer does not warrant any property, quality, condition, or other aspect of the Property.
(c) Seller bears the risk of loss of, and is responsible for paying all personal property taxes that accrue on, all Property that is in the custody or control of Seller or any supplier or subcontractor to whom Seller delivers Property as permitted under these Terms.
(d) Without limiting the generality of the foregoing, Seller will establish and maintain a system to control, protect, preserve, and maintain all Property in good condition and repair. 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 it to Buyer in the same condition as originally received by Seller, reasonable wear and tear excepted. Buyer may enter Seller’s premises at any reasonable time to inspect the Property and Seller’s records with respect thereto.
(e) Upon completion, expiration, or termination of the Order, Seller will retain all Property at its expense until disposition directions are received from Buyer.
(f) Seller shall, if not already present, affix such signs, labels, or other designations as Buyer may require and then maintain such signs, labels, or other designations on the Property indicating that the Property belongs to Buyer.
(g) Seller may not deliver custody of any Property to any person or entity other than Buyer without Buyer’s prior written permission. If with Buyer’s prior written permission Seller furnishes Property to any supplier or subcontractor of Seller for use in performance of Buyer’s orders (including this Order), Seller shall (i) insert the substance of this Section 2.1 into all orders to such supplier or subcontractor; and (ii) remain responsible hereunder for any breach by such supplier or subcontractor of this Section 2.
2.2 Confidential Information.
(a) For purposes of these Terms, all Property and other data provided to Seller from Buyer or other suppliers of Buyer shall be treated as “Confidential Information.” Confidential Information shall also include all technical data (including, without limitation, manufacturing, process, test or repair data, know-how, designs, and data describing physical, functional, and/or performance characteristics or specifications), computer programs, and all other information and/or data that:(i) has been supplied to Seller (or any other person on behalf of Seller) by or on behalf of Buyer, whether transmitted in writing, orally, magnetically, optically, electronically, or otherwise; (ii) Seller has designed, developed, or created for (or for the benefit of) Buyer or at Buyer’s expense; and (iii)all derivatives of or from the items described in clauses (i) and (ii) hereof. Except to the extent specifically provided in these Terms, Seller shall have no rights (including intellectual property rights) in or to any Confidential Information.
(b) Upon Buyer’s request, Seller will deliver all Confidential Information, all embodiments thereof (in whole or in part), and all copies or summaries thereof or extracts or excerpts therefrom to Buyer.
(c) All works of authorship prepared by Seller specifically in connection with performance or fulfillment of the Order are considered to have been specially commissioned and, to the extent applicable, as “works made for hire” under U.S. Copyright Law. Under such circumstances, Buyer shall be deemed to be the author of such works of authorship. If any such work of authorship does not qualify as a work made for hire, then Seller shall assign, and hereby does assign, all of Seller’s right, title, and interest (including all intellectual property rights) in and to such works of authorship to Buyer. Seller further agrees to assign to Buyer all other intellectual property rights to all
Confidential Information, works of authorship, or to any item designed or created using such works of authorship or Confidential Information.
(d) Seller may not disclose Confidential Information to any person (other than such employees of Seller who have a reason to know in order to perform Seller’s obligations under the Order and who are bound by non disclosure and nonuse obligations substantially equivalent to the nondisclosure and non use covenants in these Terms) or entity without Buyer’s prior written permission. If, with Buyer’s prior written permission, Seller furnishes Information to any supplier or subcontractor of Seller for use in performance of Buyer’s orders, Seller shall (i) insert the substance of this Section 2 into all orders to such supplier or subcontractor; and (ii) remain responsible hereunder for any breach by such supplier or subcontractor of this Section 2.
(e) Seller may use Confidential Information only for the benefit of Buyer and for no other purpose whatsoever.
2.3 Training of Employees.
Seller will maintain adequate processes to protect Buyer’s Property and Information from improper use and/or disclosure, and will train its employees appropriately to follow such processes. Seller’s failure to comply with the foregoing sentence shall be a justification for and constitute grounds for termination of the Order by Buyer hereunder.
3. DELIVERIES AND SHIPMENTS.
3.1 Scheduled Delivery. Delivery of Items in accordance with the schedule contained on or referenced in the Order (the “Schedule”) are a material requirement of the 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 lead-time.
3.2 Transport.
Seller will, at its expense, ship by the means specified in the Order (if any). If not so-specified, Seller will ship via express or air shipment or by the most expeditious way if the delivery schedule is endangered for any reason other than Buyer's fault. Unless otherwise provided on the face of the Order, delivery shall be DDP to the destination stated in the Order per Incoterms 2020.
3.3 Variance.
Buyer reserves the right to reject all or any part of any delivery that varies from the quantity authorized by Buyer for shipment. All items 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. Items shipped in advance of the delivery Schedule without Buyer’s advance written approval may be returned at Seller's expense. If requested by Buyer, Seller shall give notice of shipment to Buyer at the time of delivery of any shipment of Items to a carrier for transportation. Title shall pass to Buyer upon acceptance of Items at the destination stated on the face of the Order. Risk of loss of Items shall pass to Buyer per the Incoterms stated in Section 3.2 above, unless earlier passed pursuant to other provisions of the Order.
4. INSPECTION. Notwithstanding (i) payment, (ii) passage of title, or (iii) prior inspection or test, all Items 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, and/or its customers may inspect and/or test the Items 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 Items or any lot of Items at Buyer's option, and Buyer shall have the right to reject all or any portion of the Items or lot of Items if any such inspection reveals them to be, in Buyer's sole opinion, defective or nonconforming. Seller shall provide and maintain a 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 seven (7) years after final payment by Buyer or for such longer period as may be specified elsewhere or as may be required by applicable law. 5. WARRANTY.
5.1 Product Warranty. Seller warrants to Buyer and to its successors and customers that all Items furnished to Buyer will be free from defects in material and workmanship; will conform to applicable drawings, designs, specifications and samples; will meet all functional and performance requirements set forth or referenced in the Order; will be of merchantable quality and fit for their intended purpose; and to the extent the Order calls for services to be performed, such services will be free from defects in workmanship, will meet all of the requirements of the Order, and will be performed to the highest standards of workmanship in the industry (all of which are hereinafter collectively called “Conforming Items”).The duration of the warranty shall be in accordance with the manufacturer’s standard warranty (the “Warranty Period”).
5.2 Remedy. If Conforming Items are not furnished or if Conforming Items cease to qualify as Conforming Items at any time during the Warranty Period, Seller shall repair or replace such non-Conforming Items, such repair or replacement to occur within the period specified in the Order or within twenty-one (21) days from return by Buyer, which ever period is shorter(the “Repair Period”). Seller’s failure timely to repair or replace and redeliver such non-Conforming Items (rendering such Items Conforming Items) within the Repair 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 non-Conforming Items corrected at Seller’s expense. In addition to the costs of repairing or replacing such non-Conforming Items, Seller agrees that, notwithstanding the provisions of any warranties, expressed or otherwise, negotiated with respect to Items purchased from Seller by Buyer or Buyer's customers, Seller shall reimburse Buyer for labor and material cost, including overhead and general administrative (G&A) expense reasonably incurred by Buyer in connection with: (i) the unscheduled removal and/or replacement of such Items or components thereof from a higher level assembly due to failure of such Items to conform to requirements of the Order or defective material, workmanship, or design; (ii)any such removal of said Items at Seller's request; or (iii) any such removal of said Items required because of any previously required changes to said Items which Seller has failed to incorporate. This remedy is not exclusive and shall not be in lieu of any other remedy available at law, in equity, or under the Order. The Warranty Period shall be suspended upon notice that non-Conforming Items have been furnished until they have been repaired or replaced and redelivered to Buyer postage or freight prepaid, or in the case of nonconforming services, have been corrected. The un-expired portion of the warranty shall be applicable to the repaired, replaced, or corrected Conforming Items.
6. CHANGES.
6.1 Buyer-Initiated Changes. Buyer may, at any time, by a written change order, make changes in any one or more of the following: (a) drawings, designs, specifications, where the Items to be furnished are to be specially manufactured for the Buyer in accordance therewith;
(b) method of shipment or packing;
(c) place or time of inspection, delivery, or acceptance;
(d) the quantity and/or type of services ordered, the work or service schedules; or
(e) the amount of any Buyer furnished property. If any such change causes an increase or decrease in the cost of or time required for performance of the Order, an equitable adjustment shall be made in the price or delivery Schedule or both and the Order shall be modified accordingly. No claim by Seller for adjustment hereunder shall be allowed unless made in writing for a specified amount within twenty (10) days from the date notice of any such change is received by Seller. If Seller considers that the conduct, statement, or direction of any of Buyer’s employees constitutes a change hereunder, Seller shall notify Buyer’s authorized representative and take no action on the perceived change pending written approval of Buyer’s authorized representative. Only Buyer’s authorized representative 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 Section 6shall excuse Seller from proceeding with performance of the Order as changed.
6.2 Compliance Changes. Notwithstanding the above or any other provision of the Order, Seller hereby agrees that any changes that are made to meet the specified performance requirements of the Order shall not entitle Seller to any adjustment in either price or delivery.
6.3 Design Changes. During performance of the Order, Seller shall not make any changes in the design of Items to be furnished by Seller under the Order without advance written notification to and written approval of Buyer. The above requirements apply whether or not there is a cost impact associated with the change and regardless of the type of change involved, including product improvements.
6.4 Stop Work Orders. Buyer may, at any time by written order, require Seller to stop all or any part of the work under the Order for a period of up to one hundred twenty (120) days after delivery of such stop work order, and for any further period as the parties may agree. Immediately upon receipt of such stop workorder, Seller shall comply with its terms and take all reasonable steps to minimize the 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 Section 7hereof. 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 or the delivery Schedule, or both, and the Order shall be modified accordingly; provided, however, that no adjustment in price or delivery shall be made under this Section 6 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 the Order. No claim for adjustment shall be allowed unless submitted to Buyer in writing within twenty (20) days after the work is terminated or the stop work order expires or is canceled, which ever first occurs.
7. TERMINATION.
7.1 Termination for Convenience.
By written notice, Buyer may terminate the Order or any part hereof, for its sole convenience. In the event of such termination, Seller shall immediately stop all work under the Order and shall immediately cause all of its suppliers and subcontractors to cease work. Subject to the terms of the Order, Seller shall be paid a portion of the order price reflecting the actual costs incurred for the work performed prior to the notice of termination, plus reasonable charges Seller can demonstrate to the satisfaction of Buyer, using its standard record-keeping system, that were directly caused by such termination. Seller shall submit its claim no later than six (6) months after receipt of the termination notice. Seller shall make reasonably available to Buyer or Buyer’s representative any books, records, or data supporting its claim. Seller shall not be paid for any work performed or costs incurred that, with reasonable effort, could have been avoided. Upon Buyer’s payment to Seller in accordance with this Section 7.1, title to all equipment, materials, work-in-progress, special tooling, finished products, and any other thing acquired for the Order, and any plans, drawings, specifications, Information, and other things that would have been required to be delivered to Buyer, shall vest in Buyer and, upon Buyer’s request, will be delivered to Buyer (at Buyer’s expense).
7.2 Termination for Cause.
By written notice, Buyer may terminate the Order in whole or in part:
(a) if Seller fails or refuses to perform in accordance with any of the requirements of the Order or these Terms (including Section 2.3 hereof) or fails or refuses to make progress with respect thereto (a “Default”);
(b) if Seller becomes insolvent or suspends any of its operations or if any petition is filed or proceeding commenced by or against Seller (whether voluntary or involuntary) under any federal or state law, or under any agreement, instrument, security interest, or similar arrangement, relating to bankruptcy, arrangement among debtor and creditors, reorganization, receivership, or assignment for the benefit of creditors;
(c) if Seller fails to provide Buyer, upon request, with adequate assurances of future performance within the time period requested by Buyer; or
(d) if Seller engages in any use or disclosure of Property or Confidential Information that is not expressly permitted under the terms of the Order. Any such termination will be without liability to Buyer except for completed Items delivered and accepted by Buyer, payment for which may be set off against damages suffered by 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 completed as of the termination, and Seller shall be credited with the reasonable value thereof not to exceed Seller’s actual incurred costs or the order price, whichever is less. Seller will be liable for damages caused by or resulting from its breach of or Default under the Order or these Terms, including(but not limited to) incidental and consequential damages and excess costs of re-procurement. If, after a termination pursuant to any of Sections 7.2 (a), 7.2(c), or 7.2(d) of these Terms, it is determined that Seller was not in breach or Default, that adequate assurances had been provided, or that Seller had a legal right to use or disclose the Property or Confidential Information in question, the termination shall be deemed a termination for convenience under Section7.1. 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 data relating thereto. Termination of the order pursuant to this Section 7.2 shall be without prejudice to any other rights and remedies of Buyer under statute or common law.
7.3 Continuation of Performance. To the extent the Order is not terminated pursuant to Sections 7.1or 7.2(above), Seller shall continue performance.
7.4 Survival. Notwithstanding the termination, completion, or expiration of the Order, the provisions of these Terms that are intended to survive shall survive such termination, completion, or expiration, such surviving provisions to include (without limitation) Sections 2, 3.3, 4, 5, 7.4, 11, 12, 13, 16, 17, 18, 19.3, 19.4, and 19.5.
8. EXCUSABLE DELAYS.
Neither Seller nor Buyer shall be in breach or default for any delay or failure to perform under the Order because of 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 Seller at any lower-tier shall be excused only if (i) it is beyond the control of both Seller and such supplier and without the fault or negligence of either, (ii)the parts, supplies, components, or services to be furnished are not obtainable from other sources in sufficient time to permit Seller to meet the delivery Schedule, and (iii) 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 Item, and exercise any of its remedies at law or in equity.
9. PRICES, TAXES, AND NEW MATERIAL.
Seller warrants that none of the items furnished under the 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 the Order. Unless otherwise provided on the face of the Order, THE PRICES APPEARING ON THE ORDER INCLUDE ALL PACKAGING, CRATING, ANDFEDERAL, STATE, AND LOCAL TAXES, DUTIES, AND THE LIKE, IF APPLICABLE, AND AREFIRM FOR THE PERIOD COVERED BY THE DELIVERY SCHEDULE.
10. PAYMENT TERMS.
Payment periods and cash discount periods will be computed from the date of acceptance of the Items ordered, or the date of receipt of correct and proper invoices prepared in accordance with the Order, whichever is latest. The payment date will be delayed on a day-for-day basis for any Item that is furnished or delivered later than called for by the delivery Schedule.
11. SET-OFF. Buyer may set-off any amount due from Seller to Buyer, whether or not under the Order or under any other agreement between Seller and Buyer, from any amounts payable to Seller under the Order.
12. INJUNCTIVE RELIEF. Nothing contained herein shall operate to waive or limit Buyer’s right to seek injunctive relief with respect to any breach or threatened breach by Seller of its obligations under these Terms. In particular, any breach of or Default by Seller of its obligations under Section2 of these Terms shall entitle Buyer to seek injunctive or other equitable relief, Seller conceding that such a Default or breach would produce irreparable damage and losses to Buyer not capable of ready determination.
13. INDEMNITY.
13.1 Patent, Trademark, Copyright, and IP indemnity.
Seller shall indemnify, hold harmless, and(at Buyer’s option) defend Buyer from and against any and all damages, costs, including legal fees, losses, and liabilities resulting from a suit, claim, or proceeding based on any alleged infringement or misappropriation of any intellectual property or other rights of any person arising out of or in any way related to Buyer’s sale, use, reproduction, modification, distribution, public display, public performance, manufacture, assembly, or importation of any Item sold to Buyer by Seller, and from reasonable expenses incurred by Buyer in defense of such suit, claim, or proceeding if Seller does not undertake the defense thereof; provided, that Seller is notified of any such suit and, except for suits against the U.S. Government, Buyer offers Seller full and exclusive control of the defense of such suit, claim, or proceeding when Items of Seller only are involved therein or the right to participate in the defense of such suit, claim, 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 specific designs. 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.
13.2 General Indemnification. Seller shall indemnify, hold harmless, and(at Buyer’s election) defend 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 attorney’s fees, by reason or on account of property damage, death, and personal injury of whatsoever nature or kind arising out of, as a result of, or in connection with the performance of the Order that is occasioned by the actions or omissions of Seller or its suppliers or subcontractors at any tier or level.
14. INSURANCE.
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 $2 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 insurance carriers acceptable to Buyer. Seller will, if requested by Buyer, furnish certificates of insurance from its carrier(s) on the foregoing coverages, which shall provide that such coverage shall not be changed without thirty (30) days’ advance written notification to Buyer from the applicable carrier or carriers.
15. PERSONNEL.
15.1 Key Personnel.
Seller’s personnel listed or identified as “Key Personnel” in the Order are considered by Buyer to be critical to the successful performance of the Order, and were a substantial factor in Buyer’s decision to award the Order to Seller. Buyer may consider any change by Seller in its Key Personnel as grounds for termination under Section 7 hereof.
15.2 Performance of Individuals.
Upon determination by Buyer, at any time, that the performance of Seller’s employees assigned to the work hereunder does not meet Buyer’s required standards, which shall be consistent with the industry and reasonable, and upon notification to Seller of such determination, the failure of Seller to take appropriate corrective action satisfactory to Buyer will be a cause for Buyer’s termination under Section 7.2of these Terms.
15.3 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 business ethics. Buyer expects its vendors, including Seller, to do the same. In addition, it is the policy of Seller to enter into supplier agreements only with companies that have a demonstrated record of, and commitment to, the highest ethical standards. Seller shall, at all times, carefully comply with all rules, laws, and regulations pertaining to the furnishing of things of value, including, for instance, entertainment, travel, or gratuities.
15.4 Notice to Buyer of Labor Disputes.
Whenever Seller has knowledge that any actual or potential labor dispute is delaying or threatens to delay the timely performance of the 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 the Order.
15.5 Seller’s Status.
It is understood and agreed that Seller and its employees engaged in the performance of the Order by 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 the Order), and the Seller shall pay the salaries or expenses, 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.
16. COMPLIANCE WITH LAWS.
16.1 Compliance.
Seller shall comply with all applicable federal, state, and local laws, Executive Orders, rules, and regulations during performance of all tasks incident to the Order, including (but not limited to) the Occupational Safety and Health Act of 1970 as amended("OSHA"); Toxic Substances Control Act as amended ("TSCA");the Fair Labor Standards Act of 1938 as amended ("FLSA"); the Clean Air Act as amended; the International Traffic in Arms Regulations("ITAR") as amended; and the Anti-Kickback Act of 1986 as amended.
16.2 Substantiation.
Seller will furnish documentation, within seven (7) days of Buyer's request, regarding payment, offer, or agreement to pay "political contributions" or "fees or commissions" (as those terms are defined at 22 CFR 130) with respect to any sale by the Buyer for which a license or approval is required from the Office of Defense Trade Controls, Department of State or any sale pursuant to a contract with the Department of Defense under Section 22 of the Arms Export Control Act (22U.S.C. § 2762).
16.3 Certifications.
Seller warrants that all representations and certifications furnished by Seller as required by law or regulation in connection with the Order are accurate, current, and complete as of the effective date of the Order, and that to Seller's knowledge no person has been paid a kickback or illegal gratuity in connection with the Order. Seller will indemnify, hold Buyer and its customers harmless, and (at Buyer’s option) defend Buyer and its customers from and against 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 because of Seller's non-compliance with any applicable law or regulation.
17. RELEASE OF INFORMATION TO PUBLIC.
Seller shall not, without the prior written consent of Buyer, make any release of information concerning the Order or any other information related to Buyer (other than to Seller's employees and subcontractors that is required for the performance of their duties), including providing copies of the Order or identifying the Items 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.
18. DISPUTES.
Any dispute arising out of or relating to the Order, including the breach, termination, or validity thereof or hereof, will be finally resolved by arbitration under the auspices of and in accordance with the commercial arbitration rules of JAMS then in effect. There shall be a single arbitrator, and the arbitration shall be held in Kansas City, Missouri. Judgment upon the award rendered by the arbitrator may be entered by any court having jurisdiction thereof. If the dispute between Buyer and Seller is related to a dispute between Buyer and its customer, Seller agrees (i) to a stay in arbitration proceedings until Buyer’s dispute with its customer is finally resolved, and (ii) to continue to perform its obligations under the Order during the stay. Either party may apply to the arbitrator seeking injunctive relief until the arbitration award is rendered or the controversy is otherwise resolved. Either party also may, without waiving any remedy under the Order, seek from any court having jurisdiction any interim or provisional relief that is necessary to protect the rights or property of that party, pending the arbitrator’s determination of the merits of the controversy.
19. MISCELLANEOUS.
19.1 Non-Waiver. No failure by Buyer to assert its rights under any provision of the Order, or failure of Seller to perform any provision of the Order, shall be effective as a waiver thereof unless consented to in writing by Buyer; nor shall any such waiver constitute an advance waiver of any other provision or failure to perform. The rights and remedies of Buyer set forth herein shall bein addition to any other rights and remedies provided in law or equity and the failure or delay by Buyer to exercise any rights or remedies under the Order shall not operate as a general waiver thereof.
19.2 Assignment and Subcontracting. Any assignment of Seller’s rights or subcontractor delegation of Seller’s responsibilities under or with respect to the Order shall be void unless consented to, in advance, by Buyer in writing. The Order and these Terms are freely assignable by Buyer.
19.3 Choice of Law.
The Order shall, in all respects, be interpreted, construed, and governed by and in accordance with the laws of the State of Missouri, disregarding any conflicts of law provisions which may require the application of the laws of another jurisdiction.
19.4 Headings.
Headings set forth in the Order and in these Terms are for convenience of reference only and are not intended to, nor do they alter the meaning, content, or enforceability of, any Section of these Terms.
19.5 Severability.
If any of the provisions of these Terms is held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions of these Terms will not be affected and, in lieu of such invalid or unenforceable provision or provisions, there will be substituted automatically as part of these Terms one or more provisions, with such substituted provision or provisions being as similar in scope and meaning to the invalid or unenforceable provision or provisions as possible while, at the same time, being valid and enforceable.
