Electrosonic, Ltd. Purchase Order Terms & Conditions

1. Status of these Terms and Conditions

1.1     These Terms and Conditions will apply to every purchase order (or amendment thereto) (an Order).  These Terms and Conditions shall have precedence over all other terms and conditions, including any terms or conditions which the supplier (the Supplier) may purport to apply or which are endorsed upon any correspondence or documents issued by the Supplier irrespective of their date of communication to Electrosonic.  Electrosonic will not be liable in respect of an Order, any amendment to an Order or instructions in respect of an Order other than those issued or confirmed on an official Order or amendment form, signed by a duly authorised representative of Electrosonic.

1.2     Each Order for goods or materials (the Goods) or services (the Services) by Electrosonic shall be deemed to be an offer by Electrosonic to buy the Goods and/or Services subject to these Terms and Conditions and that offer shall be accepted when the Supplier either expressly accepts by giving notice or impliedly by fulfilling the Order.

1.3     Nothing in these Terms and Conditions shall prejudice any conditions or warranty (express or implied) or rights or remedy to which Electrosonic is entitled in relation to the Goods and/or Services by virtue of statute or common law.

1.4     Where appropriate and if specified on the Order, interpretation of the Order and these Terms and Conditions shall be governed by the provisions of the specified Incoterms.  

2. Delivery and Time

2.1     The Supplier shall deliver all Goods (carriage paid) and/or Services to or at the location specified for delivery (the Location) and in accordance with any delivery instructions or specifications stipulated by Electrosonic in writing.  Delivery shall be completed in respect of the Goods only when the Goods have been unloaded at the Location. 

2.2     If the Goods and/or Services (or any part thereof) are not delivered in accordance with these Terms and Conditions, the Supplier shall be responsible for all additional expenses incurred in delivering them in accordance with these Terms and Conditions or as otherwise advised in writing by Electrosonic. 

2.3     The quantity specified in the Order may not be changed without Electrosonic’s prior written consent and quantities delivered in excess of those stated in the Order, as partial deliveries or otherwise than on the delivery date may not be accepted. 

2.4     Unless otherwise stated in the Order, the Supplier is responsible for obtaining all export and import licences, consents and permits for any Goods or Services and shall be responsible for any delays due to such licences, consents and permits not being available when required.

2.5     Where Electrosonic agrees in writing to accept delivery by instalments or in stages these Terms and Conditions will be construed as a single contract in respect of each instalment or stage, as the case may be.  Failure by the Supplier to deliver any one instalment shall allow Electrosonic at its option to treat the Order in its entirety as repudiated depending upon the circumstances of the non-delivery, such option not to be unreasonably invoked. 

2.6     The time of delivery shall be as stated on the Order (or as otherwise agreed in writing by the parties) and if no time for delivery is expressly agreed then delivery shall be made within 14 days of receipt of the Order (the DeliveryTime). The Supplier shall immediately notify Electrosonic of any delay or likely delay in delivery, dispatch, provision or completion of the Goods or Services and, without prejudice to any other right, Electrosonic shall be entitled to cancel the Order if such delay or apprehended delay is likely to jeopardise the purpose of the Order.

2.7     Time shall be of the essence and without prejudice to any other right or remedy of Electrosonic.  Failure to deliver at the Delivery Time shall entitle Electrosonic to cancel the Order and recover costs in accordance with Condition 7 or 9.

3. Property and Risk  

3.1     Unless otherwise applicable under the specified Incoterms, property and risk in the Goods shall pass to Electrosonic only when such Goods have been delivered in accordance with Condition 2.

3.2     Any tools, patterns, materials, drawings, specifications and/or other data provided by Electrosonic to the Supplier in connection with the Order are to be used by the Supplier solely for the purpose of completing the Order and will at all times be at the Supplier’s risk, but remain the property of Electrosonic and shall be delivered up to Electrosonic immediately on request.

4. Contract Price and Terms of Payment

4.1     Electrosonic shall pay the price specified in the Order or otherwise agreed in writing between the Supplier and Electrosonic, exclusive of VAT but inclusive of all other charges (the ContractPrice) to the Supplier, within 30 days of receipt of a valid invoice.  The Supplier will be entitled to charge interest on any late payments at 2 per cent above the base rate of Barclays Bank plc from time to time. 

4.2     An invoice may be rendered by the Supplier upon completion of delivery of all of the Goods and/or Services which are the subject of the Order.  Where the parties agree delivery by instalments, the Supplier may render an invoice for each delivered instalment. 

4.3     Electrosonic shall be entitled to deduct from any monies due or to become due to the Supplier any monies owing to Electrosonic from the Supplier.

4.4     Electrosonic shall not be responsible for the payment of any charges in relation to (i) goods or services supplied in excess of the Goods or Services stated in the Order; or (ii) any variation of the Order, unless agreed to in writing pursuant to a further Order or amendment form.  No payment of or on account of the Contract Price shall constitute any admission by Electrosonic as to proper performance by the Supplier of its obligations.

5. Forms and Packaging

5.1     Electrosonic will not, unless it has agreed in writing to do so, accept liability in respect of any invoice or delivery unless: (i) a delivery note accompanies each delivery of any Goods; (ii) the invoice is rendered on the Supplier’s own invoice form and delivered to the invoice address shown on the Order; and (iii) the delivery note(s) and invoice(s) are clearly marked with Electrosonic’s order number, the name and address of Electrosonic, a description and quantity of the Goods and/or Services, and if partial delivery or provision, the outstanding balance remaining to be delivered or provided.

5.2     Packaging must comply with all relevant legislative requirements, including those pertaining to environmental and health and safety standards. 

5.3     Any Goods shall be securely packed (to ensure that they are not damaged or deteriorate in transit) in trade packages of a type normally used by the Supplier for commercial deliveries of the same or similar goods either in retail or in bulk quantities within the United Kingdom.  Electrosonic is not liable, unless otherwise agreed in writing, for any packaging. 

5.4     The outside of every package must show a description of the Goods and Electrosonic’s order number and, if applicable, the weight of the Goods, the quantity in the package and any special directions for storage or use (including in relation to product safety and hazards).

5.5     The Supplier shall collect without charge any returnable containers within 21 days of delivery unless otherwise instructed by Electrosonic. 

6. Quality and Indemnity

6.1     The Goods and/or Services shall be supplied strictly in accordance with the description, specification and/or standards specified by Electrosonic and/or any sample previously provided to Electrosonic.  Any Goods must be supplied with adequate instructions as to use and use-by date, be fit for the purpose for which they are intended, of the best quality, free from defects in design, material and workmanship and pass any acceptance tests specified by Electrosonic or its customer(s).  The Supplier shall, in providing the Services, exercise that degree of speed, care, skill and diligence which would reasonably and ordinarily be expected from a skilled and experienced service provider engaged in providing services similar to the Services in accordance with best industry practice and do so in accordance with any applicable codes of practice published by any relevant trade associations or other such bodies.

6.2     The Supplier warrants that all computer hardware or software supplied by the Supplier to Electrosonic:

6.2.1  is free from defects and/or disabling codes, and has been duly tested to ensure that there are no hidden defects or disabling codes and is subject to recognised and appropriate release procedures including the latest version of a proprietary virus detection software package approved by Electrosonic, and the Supplier shall procure that corresponding obligations are imposed on its sub-contractors and agents;

6.2.2  has been obtained from a reputable and reliable software developer and not through any interest group or software sharing scheme; and

6.2.3  will comply and function in accordance with its related user documentation.

6.3     The Supplier shall keep Electrosonic indemnified in full against all direct, indirect or consequential liabilities, loss (which shall include loss of profit, loss of business, depletion of goodwill and like loss), damages, injury, costs and expenses (including legal and other professional fees and expenses) awarded against or incurred or paid by Electrosonic as a result of or in connection with:

6.3.1  defective design, workmanship, quality, materials, the Goods or the Services;

6.3.2  an infringement or alleged infringement of any Intellectual Property Rights (as defined in Condition 8.1 below) caused by the use, provision, manufacture or supply of the Goods and/or Services; and

6.3.3  any claim made against Electrosonic in respect of any liability, loss, damage, injury, cost or expense sustained by Electrosonic, its employees or agents or by any customer or third party to the extent that such liability, loss, damage, injury, cost or expense was caused by, relates to or arises from the Goods and/or Services as a consequence of a direct or indirect breach or negligent performance or failure or delay in performance of these Terms and Conditions by the Supplier, its employees, sub-contractors or agents.

6.4     The Supplier agrees to assign to Electrosonic upon request the benefit of any warranty, guarantee or similar right which it has against any third party manufacturer or supplier of any Goods or Services or any part thereof.

6.5     Electrosonic’s rights under these Terms and Conditions are in addition to the statutory conditions, warranties and terms implied in favour of Electrosonic by the Sale of Goods Act 1979, the Supply of Goods and Services Act 1982, related statutes and any statutory re-enactment(s) or modification(s) thereof.

6.6     Electrosonic (or its or its customer’s duly appointed representative or agent) shall be entitled at any reasonable time to inspect the Supplier’s premises, test any Goods and/or conduct an audit of the Supplier’s operations, facilities and policies to ensure such comply with these Terms and Conditions and all quality, product safety, health and safety and environmental legislation.  The Supplier shall bear any and all costs arising from compliance with the Waste Electrical and Electronic Equipment Regulations 2006.

6.7     The Supplier shall have in force and maintain adequate insurance with a reputable insurance company in respect of its liabilities under these Terms and Conditions for a minimum of £1.5 million per event. 

7. Defective Goods or Services

7.1     Electrosonic shall not be deemed to have accepted the Goods until it has had 10 days to inspect them following delivery.  Electrosonic’s right of rejection shall continue irrespective of whether Electrosonic has in law accepted the Goods.

7.2     Notwithstanding Condition 7.1, in the case of Goods and/or Services found to be not in compliance, whether expressed or impliedly, with these Terms and Conditions (the Defective Goods or Services), Electrosonic may, at its discretion: (i) cancel the Order; (ii) refuse to accept any further deliveries of the Goods and/or Services; (iii) require the Supplier, as soon as reasonably practicable, at no cost to Electrosonic, either to repair, replace or re-perform the Defective Goods or Services at the Location (any repairs, replacements or refunds shall themselves be subject to these Terms and Conditions); (iv) claim a refund of the Contract Price in respect of the Defective Goods or Services; (v) in the case of  defective delivery, require the Supplier to promptly reimburse Electrosonic in respect of any cost including but not limited to freight, clearance, duty and storage charges incurred by Electrosonic; and/or (vi) purchase goods or services of the same or similar description to the Goods or Services elsewhere and recover from the Supplier the amount by which the cost of purchasing such other goods or services exceeds the amount that would have been payable to the Supplier in respect of the Goods or Services replaced.

7.3     In the event of a rejection or cancellation of the Order as a result of Defective Goods or Services Electrosonic shall notify the Supplier in writing, and the payment obligation in relation to any such Defective Goods or Services shall be terminated forthwith.

7.4     Any Goods so rejected after delivery shall be removed by the Supplier at its own expense within 14 days from the date of notification of rejection.  If the Supplier fails to remove them within such period Electrosonic may return any rejected Goods at the Supplier’s risk and expense and charge the Supplier for the cost of storage from the date of rejection or destroy such Goods.

8. Intellectual Property Rights, Confidentiality and Publicity

8.1     Where Goods are made or Services provided to a specification, model, or plans, the rights in or to exploit or to licence any right or interest of any kind arising out of or granted or created in respect of any and all patents, trade marks, service marks, domain names, registered designs, inventions, know-how, confidential information, unregistered trade marks and service marks, trade and business names, unregistered design rights and other rights in designs and rights in databases, subsisting anywhere in the world or rights of the same or similar effect or nature as or to those above, in each case, in any jurisdiction (IntellectualPropertyRights), in so far as they relate to the specification, model, or plans, and any improvements or developments thereof shall be the absolute property of Electrosonic, and the Supplier will assign all such Intellectual Property Rights to Electrosonic when requested by Electrosonic.

8.2     The Supplier shall, at its expense, defend any actions arising from infringements or alleged infringements of the Intellectual Property Rights in connection with the Goods and/or Services.

8.3     In respect of any confidential information (including the fact of the existence of these Terms and Conditions) it may receive from the other, the Supplier and Electrosonic undertake to keep secret and strictly confidential and not disclose any such confidential information to any third party, without the prior written consent of the party to whom the confidential information belongs, unless required to do so by law or any judicial, governmental or regulatory body.

8.4     This Condition 8 shall continue without limit in time and shall apply mutatis mutandis to any sub-contractor, employee or agent of the Supplier.

9. Cancellation

9.1     Notwithstanding Condition 7, Electrosonic is entitled to cancel the Order (or any part of it) immediately by notice to the Supplier and to reimbursement in respect of the Contract Price (or the appropriate part thereof) and all loss and/or expense suffered as a direct or indirect result of the failure of the Supplier to comply with Condition 2 and/or 6 of these Terms and Conditions.

9.2     In the event that the Order is not acknowledged by the Supplier within 7 days of the date of the Order, it may be cancelled by Electrosonic giving the Supplier notice in writing.

9.3     Electrosonic shall be entitled at any time and for any reason to cancel the Order in whole or part by giving the Supplier written notice whereupon all work in respect of the Order shall be discontinued and Electrosonic shall pay to the Supplier fair and reasonable compensation for work-in-progress at the time of cancellation but such compensation shall not include any loss of anticipated profits or any consequential loss. 

9.4     The Order may be cancelled at any time by Electrosonic immediately, by giving the Supplier notice in writing, in the event that: the Supplier has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Supplier or notice of intention to appoint an administrator is given by the Supplier or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986), or a resolution is passed or a petition presented to any court for the winding-up of the Supplier or for the granting of an administration order in respect of the Supplier, or any proceedings are commenced relating to the insolvency or possible insolvency of the Supplier or the Supplier ceases or threatens to cease to carry on its business.

9.5     Cancellation shall not relieve either party from any liability or right accrued prior to such cancellation. 

9.6     In the event of any strike, lockout, fire, explosion or accident or of any stoppage of the Supplier’s business or work beyond its control (Event of ForceMajeure) which may prevent or hinder the use or delivery of any Goods and/or Services, the payment for such may be suspended or postponed at Electrosonic’s option until the Event of Force Majeure has ceased.  If such prevention or hindrance continues for more than 20 days Electrosonic shall be entitled to cancel the Order. If an Event of Force Majeure occurs in relation to Electrosonic which prevents or hinders the use of the Goods and/or Services, the delivery or completion of such Goods and/or Services and payment therefor may be suspended or postponed at Electrosonic’s option until the circumstances preventing or hindering the use of such Goods and/or Services have ceased.

9.7     On cancellation of the Order, the Supplier shall, not later than 7 days after Electrosonic’s request: (i) deliver to Electrosonic (or as Electrosonic shall direct) all quantities of any Goods in its possession; (ii) return to Electrosonic all documents and/or materials provided to the Supplier by Electrosonic; and ensure that all documents and/or materials containing Intellectual Property Rights and/or any information of a technical nature relating to the Goods and/or the Services, or of a confidential nature, are returned to Electrosonic or destroyed by the Supplier at Electrosonic’s option.

10. General

10.1  The Supplier shall not assign the Order or sub-contract the production or supply of any Goods or Services without the prior written consent of Electrosonic (which shall not be unreasonably withheld).  Where such consent is given, it will be conditional upon such assignee or sub-contractor accepting these Terms and Conditions.  Electrosonic may assign the Order or any part of it to any person, firm or company.

10.2  These Terms and Conditions shall be governed and construed in accordance with English law and the parties hereby submit to the exclusive jurisdiction of the English courts.

1. CHANGES--- No change in modification, variation or revision of these Terms and Conditions or any Purchase Order, including the quantities and prices contained therein, as applicable, shall be valid unless in writing and signed by Buyer. If, in Seller’s good faith opinion, changes requested by Buyer would affect delivery or the price to be paid by Buyer, Seller shall notify Buyer immediately and negotiate an adjustment, which adjustment shall be at Buyer’s discretion to accept or reject. Buyer’s technical personnel may exchange information with Seller’s personnel concerning the material or services to be furnished under Purchase Orders, but such communications shall not vest Seller with authority to change the materials or services of any Purchase Order, nor shall any change by Seller be binding upon Buyer unless incorporated as a change in writing signed by Buyer.
2. PRICES--- Unless otherwise indicated in the Contract, the price stated on the applicable purchase order (the “Purchase Price”) shall include sales, use, excise and similar taxes and any shipping, delivery and insurance costs. The Purchase Price shall be considered a firm, fixed price for the duration of the applicable Purchase Order. Buyer shall be subject to no charges or expenses in excess of the Purchase Price.
3. SHIPPING TERMS --- If a shipping term is not specified in the applicable Purchase Order, shipping terms in the United States are F.O.B. Buyer’s designated destination, and shipping terms outside the United States are DDP (Delivered Duty Paid) Buyer’s designated destination (INCOTERMS 2010). All products must be shipped in accordance with the shipping instructions stated on the applicable Purchase Order or as otherwise specified by Buyer, including without limitation, with respect to the required delivery date. Shipping charges shall be paid by Seller.
4. INSPECTION--- All materials, products and services are subject to testing and approval by Buyer, either before, during or after manufacture, or after delivery, by inspectors designated by the Buyer or by the government at the Buyer’s discretion. The exercise of this right of inspection and test, however, shall in no way relieve the Seller of its obligation to furnish all articles or materials in strict accordance with these Terms and Conditions and the applicable Purchase Orders. If inspection and test is made on the premises of Seller or its supplier, the Seller shall furnish without additional charge all reasonable facilities and assistance for the safety and convenience of the inspectors in the performance of their duties. All inspections and tests shall be performed in such a manner as not to delay the work unduly. Buyer may reject any products or services which do not conform to the Warranties provided in Section 7 hereof. In the case of rejection, the remedies set forth in Section 8 hereof shall be available to Buyer in its discretion. Exercise of these remedies shall not be exclusive of any other remedies provided in law or equity or which are otherwise available to Buyer.
5. PAYMENTS--- It shall be understood that payment shall not create any presumption as to final inspection nor constitute acceptance. Payments shall be contingent upon delivery and upon receipt of acceptable invoice.
6. WARRANTIES--- Seller warrants that all items delivered under any Purchase Order will (i) be merchantable and free from all defects in material and workmanship, (ii) conform to applicable specifications and drawings, and to extent such items are not manufactured pursuant to detailed designs furnished by Buyer, that all items will be free from defects in design and suitable for the intended purposes, (iii) conform to the description set forth in the applicable Purchase Order, and (iv) not infringe on any third party rights, including, without limitation, any patent, trademark, copyright, trade secret or other intellectual property rights. Seller represents and warrants that in performing its obligations under any Purchase Order it will be in compliance with all applicable federal, state and local laws, rules and regulations. These warranties, together with any services warranties or other guarantees provided by Seller, shall survive acceptance and payment, and run to Buyer, its successors, assigns and customers.
7. REMEDIES— In the event of rejection, breach of any of the representations or warranties set forth in Section 7 hereof, non‐delivery, partial delivery, or late delivery, Buyer may at its option (i) cancel the applicable Purchase Order without liability therefor, (ii) accept the applicable Purchase with an equitable adjustment in Purchase Price approved by Buyer, (iii) require Seller to repair or replace the applicable products such that they conform, or (iv) obtain any other remedy or relief provided by law including, but not limited to, the right to set-off against any amount Seller is due from Buyer, and the right to obtain damages.
8. INDEMNITY--- Seller shall indemnify and hold harmless Buyer and its customers from and against any and all claims, demands, causes of action, actions, liabilities, losses, damages and expenses, including attorneys’ fees (including without limitation actual, general and special damages for injuries or damage to any person or property and including attorneys’ fees) arising out of or relating to any claim, fact or circumstance that, if proven, would constitute (a) a breach of any Term or Condition or any Purchase Order, by Seller, its employees, agents or representatives, including, without limitation, any breach of any warranty provided in Section 7 herein, (b) a breach of Seller’s representations, warranties, or obligations hereunder (c) a wrongful act or omission of Seller, its employees, agents or representatives hereunder.
9. DEVELOPMENT WORK --- If any experimental, developmental or research work is called for or required under any Purchase Order, Seller agrees to and hereby does grant to Buyer in irrevocable, non- exclusive, fully transferable, royalty-free license to make, have made, use and sell any invention, improvement or discovery (whether or not patentable) that Seller conceives or first actually reduces to practice in the performance of such Purchase Order. Seller agrees to and hereby does grant to Buyer (i) an irrevocable, non-exclusive, fully transferable, royalty-free license to reproduce, translate, publish, use and dispose of, and to authorize others so do, any copyrighted or copyrightable material ordered as articles or incorporated in, or supplied as a supplement with, any articles; and (ii) the right to reproduce, use and disclose for any purpose all or any part of the reports, drawings, blueprints, data, and technical information delivered or specified to be delivered by Seller to Buyer under any Purchase Order.
10. DELIVERY SCHEDULE--- Unless otherwise agreed in writing, Seller shall not make material commitments or production arrangements in excess of the amount or in advance of the time necessary to meet Buyer’s delivery schedule. Goods shipped to Buyer in advance of schedule may be returned to Seller at Seller’s expense. Time is and shall remain of the essence in the delivery of products ordered by Buyer. Seller shall notify Buyer immediately if at any time it appears that the required delivery date may not be met and shall specify the reasons therefor and the steps being taken to correct the problem and the new anticipated delivery schedule. Buyer, may, at its option, either accept the new delivery schedule or terminate the order. Buyer’s acceptance of late delivery shall not constitute a modification of this Agreement or a waiver of Buyer’s right to reject late deliveries.
11. SHIPPING DOCUMENTATION--- Proper shipping documentation must be included with delivery of Buyer’s orders. In addition to corresponding model, part and quantity, the shipping documentation should include pertinent serial number(s) on each line, Buyer’s Purchase Order number and job number designation. Also, batch numbers or other pertinent reference numbers must be included per appropriate line item. Buyer reserves the right to back-charge labor to the Seller in the event of, a) incorrectly formatted items, b) items delivered without the most current firmware, and/or c) firmware issues uncovered within the first 60 days of use.
12. NOTICE OF LABOR DISPUTE--- Whenever any actual or potential labor dispute is delaying or threatens to delay the timely performance of this order, Seller shall immediately give notice thereof, including all relevant information with respect thereto, to Buyer.
13. FORCE MAJEURE--- Neither party shall be liable for any delay or failure of performance due to causes that are not reasonably foreseeable and which are beyond a party’s reasonable control, including, but not limited to, acts of God, acts of civil or military authorities, fire, power surges or outages, epidemics, quarantine restrictions, flood, natural disasters, riot and war, provided that the affected party shall have given notice to the other party of any such cause for delay or anticipated delay reasonably following the commencement thereof. In the event of a delay for any of the foregoing reasons and if requested by Buyer, Seller shall, immediately upon receipt of the notice from Buyer, hold up delivery until further notice from Buyer, regardless of whether such hold extends beyond any delivery date specified in the applicable Purchase Order. Upon receiving further notice from Buyer, Seller shall promptly make delivery of the material specified in the applicable Purchase Order. If Seller fails to make delivery within a reasonable time, which in no event shall be later than 30 days, Seller shall be responsible to Buyer for all loss incurred by Buyer as a result of a change in the market price for the material purchased hereunder from Seller by Buyer
14. TOOLS & MATERIALS--- Unless otherwise agreed in writing all tools, equipment or material of every description furnished to Seller by Buyer or specifically paid for by Buyer, and any replacement thereof, or any materials affixed or attached thereto, shall be and remain the personal property of Buyer. Such property, and wherever practical each individual item thereof, shall be plainly marked or otherwise adequately identified by Seller as “Electrosonic, Inc.” and shall be safely stored separate and apart from Seller’s property. Seller shall not substitute any property for Buyer’s property and shall not use such property except in filling Buyer’s orders. Such property while in Seller’s custody or control shall be held at seller’s risk, shall be kept insured by Seller at Seller’s expense in an amount equal to the replacement cost with loss payable to the Buyer and shall be subject to removal at Buyer’s written request, in which event Seller shall prepare such property for shipment and shall redeliver to Buyer in the same condition as originally received by Seller, reasonable wear and tear excepted.
15. ASSIGNMENT--- Assignment by Seller of these Terms and Conditions or any Purchase Order, any interest herein or therein, or any payment due or to become due hereunder, without the written consent of Buyer shall be void. For purposes of this provision, a merger, stock sale or other transfer by operation of law shall be deemed an “assignment” for which consent is required hereunder.
16. SUBCONTRACTING--- Seller shall not procure, or contract for the procurement of, any item covered by this order in completed or substantially completed form without first securing the written approval of Buyer, and also, if applicable, written approval of the source from the Government Contracting Officer. Subject to the foregoing, Seller shall subcontract to small business concerns the maximum amount Seller finds to be consistent with efficient performance of this order.
17. TERMINATION FOR CONVENIENCE--- Buyer may at any time terminate a Purchase Order in whole or in part for convenience upon written notice to Seller. Seller shall then be entitled to reasonable termination charges equal to a percentage of the Purchase Price which reflects the amount of work performed prior to termination plus direct out-of-pocket expenses actually incurred by Seller as a result of such termination.
18. EVENTS OF DEFAULT--- Seller shall be deemed to be in default hereunder if it violates any of the terms hereof or of any Purchase Order, if it fails timely to perform any of its obligations, or if it performs or fails to perform any other act, whether pursuant to agreement or otherwise, which gives Buyer reasonable grounds to feel insecure with respect to Seller's future performance under a Purchase Order. Seller further shall be deemed to be in default hereunder upon the occurrence of any of the following events, or of any other comparable event; insolvency of the Seller; Seller's filing of a voluntary petition in bankruptcy; the filing of any involuntary petition to have Seller declared bankrupt provided it is not vacated within thirty (30) days from the date of filing; the appointment of a receiver or trustee for Seller provided such appointment is not vacated within thirty (30) days from the date of such appointment; or the execution by Seller of an assignment for benefit of creditors. Upon default by Seller hereunder, Buyer may terminate any or all outstanding Purchase Orders and exercise any rights and remedies as may be provided hereunder or by operation of applicable law.
19. ELECTRONIC TRANSMISSION OF DATA--- Upon Buyer’s request, Buyer and Seller will facilitate business transactions by electronically transmitting data. Any data electronically transmitted pursuant to this contract will be as legally sufficient, binding and enforceable upon the parties as a written signed paper document exchanged between the parties, notwithstanding any legal requirement that the data be in writing or signed. To the extent required by Buyer, each authorized representative of a party will adopt a unique verifiable digital identification consisting of symbols or codes to be transmitted with each electronic transmission and the use of such digital identification will be deemed for all purposes to constitute a “signature” and will have the same effect as a signature on a written document.
20. DISCLOSURE AND NON-DISCLOSURE OF INFORMATION--- Any knowledge or information which Seller shall have disclosed or may hereafter disclose to Buyer in connection with the purchase of the goods or services covered by any Purchase Order, shall not, unless otherwise specifically agreed upon in writing by the Buyer, be deemed to be confidential or proprietary information, and shall be acquired, free from any restrictions as part of the consideration of this order. To the extent that tools, specifications, or other information are furnished or paid for by Buyer, Seller shall not make use or disclosure thereof except as necessary to perform under the applicable Purchase Order or as otherwise expressly authorized in writing by Buyer, provided, however, the Seller may produce items for direct sale to the U.S. Government where the U.S. Government has the right to use the equipment, tools, gauges, patterns, designs, drawings, engineering data or other technical or proprietary information furnished by Buyer which are required to produce the items.
21. COMPLIANCE WITH LAWS--- Seller shall comply with all applicable state, federal and local laws, rules and regulations, including without limitation applicable codes, such as fire and electrical codes. Without limiting the generality of the foregoing. Seller in accepting any Purchase Order, represents that the goods to be furnished or the services to be rendered thereunder were or will be produced or performed in compliance with all applicable requirements of Sections 6, 7, and 12 of the Fair Labor Standards Act of 1938, as amended, and of all valid and applicable regulations and orders of the Administrator of the Wage and Hour Division issued under Section 14 thereof. Seller shall insert a certificate on all invoices submitted in connection with such Purchase Order stating that the goods or services were produced or rendered in accordance with the foregoing representation.
22. DISPUTES--- This Contract is made in accordance with and shall be governed and construed in accordance with the laws of the State of Minnesota, United States, without regard to its rule of conflicts of laws. All claims arising under or related to this Contract or the negotiation, validity or performance of the terms of the Contract by the parties hereto, shall be venued in a Federal or state court sitting in the State of Minnesota, and each party irrevocably consents to the sole and exclusive personal jurisdiction of such courts, waives any objection to the laying of venue in any such court and agrees not to plead or claim that such litigation has been brought in any inconvenient forum or that there are indispensable parties that are not subject to the jurisdiction of such courts.
23. NON-WAIVER OF RIGHTS AND SEVERABILITY--- The failure of Buyer to insist upon strict performance of any of the terms and conditions in any Purchase Order or to exercise any rights or remedies, shall not be construed as a waiver of its rights to assert any of same or to rely on any such terms or conditions at any time thereafter. In the event a provision of this Agreement is determined to be invalid, illegal or unenforceable, it will not affect the validity, legality or enforceability of any other provision of the Agreement and the parties agree that the remaining provisions will be deemed to be in full force and effect.
24. NONDISCRIMINATION EMPLOYMENT--- During the performance of service under the applicable Purchase Order, the Buyer and Seller agree to comply with all federal, state and local laws respecting discrimination in employment and non-segregation of facilities including, but not limited to, requirements set out at 41 C.F.R. §§ 60-1.4(a) and 29 C.F.R. Part 471, Appendix A to Subpart A, which equal opportunity clauses and other requirements are hereby incorporated by reference where applicable. This Buyer and Seller shall also abide by the requirements of 41 C.F.R. §§ 60-300.5(a) and 60-741.5(a). These regulations prohibit discrimination against qualified protected veterans and against qualified individuals on the basis of disability, and require affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified protected veterans and qualified individuals with disabilities. Notification is hereby given that compliance with the above clauses and regulations, if applicable, may require the Buyer/Seller to annually file certain reports (e.g. the EEO-1 Report and VETS 100A Report) with the federal government and may require the Seller to develop written Affirmative Action Programs for Women and Minorities, Protected Veterans and Persons with Disabilities.