VIA Motors, Inc. Terms and Conditions
April 7, 2014
VIA-TC-002 04-2014These terms and conditions will apply to all Purchase Orders (which term shall include all purchase orders and all releases against blanket purchase orders and these Terms and Conditions) issued by VIA Motors, Inc. or its affiliates as Buyer to the seller specified in the Purchase Order (“Seller”).
- OFFER; ACCEPTANCE: A Purchase Order is an offer by Buyer to Seller to enter into a contract for the sale of the goods and/or services described therein (“Products”). A Purchase Order shall be deemed to have been accepted by Seller and constitute a binding contract upon the earlier of (i) the date of Seller’s signed acknowledgment of a Purchase Order, or (ii) the date Seller commences work under such Purchase Order, regardless of whether Seller ever signs or returns a copy of the Purchase Order. Buyer may revoke its offer or terminate a Purchase Order without liability to Seller at any time before Buyer receives actual notice of Seller’s acceptance.
- PURCHASE ORDER AND TERMS & CONDITIONS GOVERN: Except to the extent covered by a separate written agreement executed by Buyer and Seller, a Purchase Order, including these Terms and Conditions and any documents referenced herein, will be the complete and exclusive statement of the contract between Buyer and Seller. Buyer rejects any additional or inconsistent terms in any offer, counter-offer, or other document from Seller. Seller agrees that any such additional or inconsistent terms shall have no force and effect. It is the parties’ intent that a Purchase Order, including these Terms and Conditions, shall exclusively govern the relationship of the parties with respect to its subject matter. Without limiting the generality of the foregoing, Buyer may accept conforming or nonconforming Products tendered by Seller and such action shall not modify the applicable Purchase Order, including these Terms and Conditions, regardless of whether any document from Seller states that acceptance of such Products constitutes acceptance of additional or inconsistent terms proposed by Seller.
- SUPPLIER MANUAL: In addition to these terms and conditions, Seller agrees to comply with Buyer’s Quality Manual, as the same may be updated from time to time, which Supplier Manual is hereby made a part of the contract as if set forth herein. In the event of a conflict, the order of precedence shall be: (1) the express terms on the face of a purchase order, (2) any schedules, exhibits or other documents referenced on the face of a purchase order (or referred to in any such schedules, exhibits or other documents), (3) Buyer’s Supplier Manual, and (4) these terms and conditions.
- BLANKET PURCHASE ORDERS: If a Purchase Order states that it is a “blanket” order or does not specify delivery dates (in either case referred to herein as a “Blanket Order”), then Seller shall procure materials and manufacture and/or assemble and ship Products only as authorized by and in accordance with shipping releases (each, a “Release”) issued from Buyer from time to time. Any quantities shown on a Blanket Order shall only be estimates of annual requirements and shall not constitute a minimum order from Buyer unless the Purchase Order expressly so states on its face. Seller agrees to supply up to 115% of any annual quantities shown on a Blanket Order upon request of Buyer through Releases. A Blanket Order shall not obligate Buyer to purchase a particular quantity or percentage of its requirements of the subject product or service from Seller, or prohibit Buyer from purchasing the same or similar parts from other suppliers, unless the Purchase Order expressly so states on its face.
- REQUIREMENTS PURCHASE ORDERS: A Purchase Order that specifies that it covers a percentage of Buyer’s requirements for a Product shall not obligate Buyer to purchase any minimum amount of such Product unless the Purchase Order expressly so states. Buyer’s obligation to purchase a percentage of requirements from Seller is expressly conditioned on (1) Seller being price competitive for the Product, (2) Seller maintaining on-time delivery of acceptable Product that meets all Specifications (as defined below); and (3) Seller maintaining quality and performance characteristics on such Product.
- FORECASTS: Any forecasts provided by Buyer are nonbinding. In no event shall Buyer be liable to purchase or pay for any Products in excess of the amount actually ordered by Buyer, or to reimburse Seller for any inventory maintained, unless expressly stated on a Purchase Order.
- TIME OF THE ESSENCE: Seller agrees that time is of the essence. Seller further agrees that if Seller fails to deliver conforming Products pursuant to the delivery date(s) set forth in a Purchase Order ordered within agreed lead times, Buyer may obtain substitute or replacement Products without notice to Seller and thereafter reject any late Products tendered by Seller, even if conforming, and/or elect to terminate the Purchase Order by written notice to Seller. Seller shall be responsible for all direct damages incurred by Buyer as a result of Seller’s failure to meet delivery schedules with conforming Products, including, but not limited to, the cost of any line shutdown, any increased cost of obtaining Products from an alternate source and/or expedited or premium freight or transportation costs. Buyer’s actions in obtaining substitute or replacement products shall not constitute an election of remedies, nor shall it in any way limit the rights and remedies of Buyer under the Purchase Order for breach by Seller.
- PRICE; TERMS: (a) Seller shall supply Products indicated in a Purchase Order at the prices provided therein for the period specified in the Purchase Order, or if no period is specified, for the period for which Buyer produces the product for which Buyer uses the Products covered by the Purchase Order, unless earlier terminated pursuant to the provisions of the Purchase Order. Prices shown on a Purchase Order are not subject to increase unless agreed in writing by Buyer. (b) Seller certifies that the prices in a Purchase Order are not higher than the prices being charged to other customers purchasing similar Products in similar quantities at this time. If Seller’s quoted prices to other customers for Products similar to those sold under a Purchase Order in similar quantities are reduced (whether in the form of a price reduction, close-out, rebate, allowance, or free or reduced price other Products), Seller agrees that the price to Buyer for Products covered by such Purchase Order will be reduced accordingly, and that Buyer will be billed at such reduced prices, retroactive to the first reduction to another customer. Buyer shall have the right to audit Seller’s books and records through a mutually agreed third party subject to reasonable confidentiality restrictions up to twice annually during normal business hours to verify compliance with this subsection (b). Such audit shall be at Buyer’s expense unless the audit shows that Buyer is entitled to a price reduction of more than 0.5%, in which case Seller shall reimburse Buyer for all reasonable out-of-pocket costs incurred in connection with such audit. (c) If a price is not shown on the face of a Purchase Order, the price shall be that of the last previous order given by Buyer to Seller, subject to the provisions of this section. (d) Payment terms shall be as shown on a Purchase Order, or if no payment terms are shown, then Buyer will pay Seller within forty-five (45) days of receipt of an invoice, provided the Products have been supplier to Buyer’s reasonable satisfaction in accordance with the terms of the Purchase Order. (e) The cash discount period available to Buyer will date from the date of receipt of the articles at the “Ship To” address listed on the face of the purchase order or the date of receipt of the acceptable invoice, whichever is later, and not from the date of the invoice. Invoices lacking terms will be discounted on a 2%-10 Days, Net 30 Days basis. Payment is deemed to be made for the purpose of earning the discount on the date of mailing Buyer’s check. (f) Seller shall deliver all Products to the destination specified in a Purchase Order, or if no destination is specified, to Buyer’s plant originating the applicable purchase order or release. Unless otherwise expressly stated in a Purchase Order, Seller shall be responsible for all freight, insurance, packing, loading or unloading and other shipping charges. For international shipments, unless otherwise expressly stated in a Purchase Order, Seller shall deliver all Products Delivered Duty Paid (DDP) (Incoterms 2010) to the destination specified in a Purchase Order, or if no destination is specified, to Buyer’s plant originating the applicable purchase order or release. (g) Buyer shall have the right to withhold, without penalty, payment of any invoiced amount that Buyer disputes until resolution of the disputed amount.
- ADDITIONS, CHANGES AND SUBSTITUTIONS: (a) Each of the terms and conditions of sale contained in this Purchase Order is an essential, integral part of Buyer’s offer or counteroffer to purchase. No additions, deletions, substitutions or other changes to this purchase order shall be made except by, or with the express written consent of, an authorized officer or purchasing agent of Buyer located at the address given on the face of this purchase order. Under no circumstances shall Buyer’s receipt of Seller’s Products be deemed to constitute consent to any unauthorized modification of the Purchase Order. In the event Seller fills the order without obtaining Buyer’s prior written consent to proposed modifications, Seller shall be deemed to have accepted the original terms and conditions contained in the purchase order and the same shall be given precedence over any and all conflicting terms or conditions not expressly approved in writing by Buyer, whether such conflicting terms or conditions are contained in a modification of this purchase order, in Seller’s acknowledgment, or in any other document or communication.
- 10. QUANTITIES: Seller shall supply Products indicated in a Purchase Order in the quantities provided therein for the period specified in the Purchase Order, or if no period is specified, for the period for which Buyer produces the product for which Buyer uses the Products covered by the Purchase Order, unless earlier terminated pursuant to the provisions of the Purchase Order. Buyer shall have no obligation to accept overshipments. In the event of an overshipment Buyer may, at its option (i) purchase Products shipped in excess of the quantities stated in a Purchase Order or Release, at the price set forth in such Purchase Order or Release, (ii) store such items at Seller’s expense for pickup by Seller, or (iii) return such items to Seller at Seller’s expense.
- TOOLING: All tools, patterns, molds, designs or drawings directly or indirectly supplied by Buyer to Seller or paid for by Buyer (collectively, “Tooling”) shall be and remain the sole property of Buyer and shall not be used by Seller to produce, manufacture or design any articles for any other purchaser, nor to produce Products in quantities greater than ordered by Buyer. Seller will have risk of loss or damage on all Tooling while in Seller’s possession or control, and Seller will maintain insurance coverage on all Tooling in an amount acceptable to Buyer. Seller will ensure that all Tooling is clearly identifiable as Buyer’s property, and Seller acknowledges that Tooling is subject to removal by Buyer at any time. Seller authorizes Buyer to prepare and file UCC financing statements, and to take all other actions, to protect and preserve Buyer’s interest in the Tooling.
- DIRECTED BUYS: If specified in a Purchase Order, Seller agrees to purchase raw materials and/or subassemblies and/or services for Products covered by the Purchase Order only from Buyer-specified suppliers unless an alternate supplier is approved in writing by Buyer.
- SITE VISITS: Upon reasonable prior notice from Buyer, Seller agrees that Buyer designated personnel may visit Seller’s work site or premises to review inventory, monitor performance or quality, or for such other purpose deemed reasonably necessary by Buyer.
- TERMINATION: (a) A Purchase Order may be terminated by Buyer at any time without liability upon 120 days prior written notice to Seller. (b) Buyer may by written notice to Seller terminate a Purchase Order in whole or in part at any time at Buyer’s convenience. Such termination shall not constitute a default by Buyer. In such event, Seller shall (i) immediately stop all work on such Purchase Order, and (ii) upon request by Buyer, transfer title and deliver all finished Products, work in process and/or raw materials which Seller produced or acquired in connection with such Purchase Order. In the event of a termination for convenience by Buyer (but not termination after default by Seller), Seller shall be reimbursed for (i) the Purchase Order price for all finished Products or performed services which conform to the Purchase Order and are delivered to Buyer, and (ii) Seller’s reasonable actual cost of work in process or raw materials that Seller produced or acquired in connection with such Purchase Order to produce Products within reasonable lead times based on Buyer’s forecast(s) and which Seller cannot reasonably use in its operations within 90 days after the date of termination. Seller shall furnish any claim for reimbursement of costs within 30 days after termination or any such claim shall be deemed to have been waived. Buyer shall have the right to audit Seller’s books and records to verify any such claim. If Buyer’s audit discloses a discrepancy in Seller’s claim of more than 10%, then Seller shall reimburse Buyer for all costs incurred in connection with such audit. (c) If Seller (i) breaches or defaults under any contractual obligation to Buyer, including but not limited to a failure to deliver conforming Products on time or any delivery of nonconforming Products under this Purchase Order, (ii) fails to make adequate progress on the Products to be delivered under this Purchase Order that, in the opinion of Buyer, endangers timely performance, (iii) becomes insolvent or any insolvency proceeding is filed by or against Seller, (iv) has a receiver appointed for it or all or substantially all of its assets, (v) makes a general assignment for the benefit of creditors, (vi) commences bankruptcy proceedings or any bankruptcy proceedings are commenced against Seller, (vii) liquidates or dissolves, (viii) ceases to operate its business, or (ix) fails to maintain adequate inventory or is unable to furnish satisfactory proof of its financial ability to perform, then Buyer may by written notice to Seller terminate all Purchase Orders with Seller without further liability to Seller. Such termination shall be in addition to, not in lieu of, any and all other remedies available to Buyer for such default. (d) Buyer’s obligation to Seller on termination, if any, shall be limited to the express provisions of this section. Without limiting the generality of the foregoing, Buyer shall not be liable for any lost profits or special, incidental or consequential damages. (e) Seller’s obligations under the warranty, intellectual property, and confidentiality provisions of a Purchase Order, and all of Buyer’s rights and remedies for any breach of a Purchase Order, shall survive any termination.
- PACKING, SHIPPING AND MARKING: Delivery shall be made and articles shipped as specified without charge for boxing, crating, carting or storage, unless otherwise specified, and articles shall be suitably packed to secure lowest transportation costs, and in accordance with the current National Motor Freight Classification. Articles shall be described on bills of lading in accordance with current rail or motor freight classification, whichever is applicable. Buyer’s purchase order number, quantity, and description must be plainly marked on all packages, bills of lading, shipping orders, and correspondence. Packing lists shall accompany each box or package shipment. Buyer shall not be responsible for any articles not delivered to the Buyer’s “Ship To” address listed on this purchase order or without Buyer’s purchase order number, and may return such articles to Seller at Seller’s expense. Notice of shipment must be sent to Buyer on the shipment date. Except as consented to by Buyer, Seller shall not ship in advance of schedule and shall ship exact quantities ordered. All bills of lading (or similar document) must show Buyer’s order number. All articles must be identified with a unique bar code in compliance with UPC-A and GTIN-12 standards.
- INVOICES: Separate invoices for each shipment in the number of copies specified by Buyer must be forwarded to Buyer on the shipment date. Buyer shall be under no legal obligation to pay Seller for Products covered by a Purchase Order until Buyer is in receipt of an acceptable invoice. In order to be acceptable, Seller’s invoice must comply with the following minimum requirements: 1) Invoice from Seller must be received by Buyer at the invoice address indicated on the face of the Purchase Order; 2) Seller shall submit only invoices covering a single Purchase Order, or any part of it; 3) Purchase Order number, quantity, description, and unit price must appear on all invoices referring to this Purchase Order, or any part of it, in the same form and description as contained in it; and 4) freight charges and any special charges must be set forth as separate line items. Upon request by Buyer, Seller will submit invoices through an electronic data interface maintained by Buyer. Invoices not in compliance with minimum requirements may be returned to Seller by Buyer. Invoices must be accompanied by the original bill of lading or other shipping document when shipment is by a carrier. If any third party charges are included in the price, receipts or invoices from the third party must be provided. When invoices are subject to a cash discount, the discount period will begin on the date the invoice in proper form is received by Buyer.
- COMPLIANCE WITH LAW: (a) Seller warrants that the Products to be furnished and/or services to be provided under any Purchase Order shall be manufactured, sold, and shipped in compliance with all applicable foreign, federal, state, and local laws and regulations. (b) Without limitation of the foregoing, Seller certifies that all equipment and materials delivered hereunder are in conformance with the latest OSHA requirements, comply with all applicable U.S. Department of Transportation regulations on hazardous materials, and any other pertinent federal, state, or local statutes, laws, rules or regulations with respect to hazardous materials. (c) Without limitation of the foregoing, Seller also specifically certifies that in the performance of this contract, it will strictly comply with the following while they are in effect, and any successor laws, regulations or executive orders in effect from time to time:
- Federal Fair Labor Standards Act (29 USC 201 et seq.)
- Employment of the Handicapped (29 USC 793 and 20 CFR 741.01 et seq.)
- Equal Employment Opportunity (Executive Orders 11246, 11375, 11758 and 12138)
- Socially and Economically Disadvantaged Small Business Concerns (PL95-507)
- INSPECTIONS; NONCONFORMING PRODUCTS: Buyer shall have no obligation to inspect any Products supplied by Seller. If Buyer discovers any nonconforming Products supplied by Seller, then thereafter Buyer shall be entitled to inspect each good supplied by Seller and Seller shall reimburse Buyer for all costs incurred in connection with such inspection program, including but not limited to the cost of sorting and warehousing nonconforming Products. Buyer, at its option and at Seller’s expense, may, without prejudice to any other remedies available to Buyer, reject and return, or retain and correct, any Products that do not conform to the requirements of a Purchase Order even if the nonconformity is not discovered until the use of such Products or the manufacture of products made with such Products. Seller will reimburse Buyer for any and all costs incurred in connection with any nonconforming Products, including but not limited to the processing of rejects and/or cost of rework, obtaining conforming Products from an alternate source, any line shutdown, the rework or scrapping of any Buyer products which incorporate Seller’s Products, and all costs and expenses incurred by Buyer from any of its customers which purchase Buyer products which incorporate Seller’s Products, including but not limited to the cost of any recalls. Payment by Buyer for any Products delivered by Seller shall not constitute acceptance by Buyer thereof. Buyer’s failure to inspect shall not relieve Seller of any liability or obligation. Buyer shall have the right to reject an entire lot or shipment if it discovers a piece in such lot or shipment that does not conform to the requirements of a Purchase Order. Buyer shall be entitled to work overtime in response to any nonconforming Products supplied by Seller and such overtime charges shall be included in Buyer’s damages.
- INSURANCE: (a) Seller shall, at its own cost and expense, maintain, and carry general liability, product liability, and property damage insurance. All insurance will be maintained in such amounts with such deductibles as are commonly carried by prudent businesses similarly situated or as is otherwise required by applicable law. (b) In the event that any property of Buyer (including, but not limited to, tooling) shall be held at Seller’s place of business, Seller shall make Buyer an additional insured on such insurance policies for purposes of covering Buyer’s property.
- WARRANTIES: Seller expressly warrants that all Products and services will be manufactured, provided, and transported in full and complete conformity and in compliance with all requirements, specifications, drawings, samples and other descriptions furnished or specified by Buyer and/or advertised or promised by Seller (collectively, “Specifications”). Seller further expressly warrants that all Products will be merchantable, of good material and workmanship and free from defects. Unless Seller has not supplied the design for Products sold hereunder, Seller expressly warrants that the design of said Products shall be free from defects. Seller further expressly warrants that all Products will be fit and sufficient for the purposes intended by Buyer. Seller represents and warrants that any Products supplied pursuant to a Purchase Order, and the sale by Buyer of Products incorporating such Products, will not infringe on any present or future patent, copyright, trademark, service mark or other intellectual property right of any person. Seller agrees that all statements made by it to Buyer (including but not limited to in any sales literature) constitute warranties upon which Buyer may rely. All warranties expressed herein are in addition to any other warranties provided at law, express or implied. Seller agrees that any and all potentially applicable implied warranties shall be available to Buyer.
- SERVICE PARTS: Seller agrees that for a period of eight years after the delivery of the last Products under this Purchase Order, Seller will retain the capacity to produce service parts of the same type covered by this Purchase Order in an amount of at least 3% of the average monthly purchases during the final year of this Purchase Order (or shorter period if applicable). At the end of such period, Buyer shall have a right of first refusal to purchase any equipment or tooling used to produce such Products if Seller decides to sell or scrap any such equipment or tooling.
- REMEDIES: Buyer’s remedies are cumulative and in addition to all remedies set forth herein or available at law. Buyer’s remedies shall include, but not be limited to, lost profits and special, incidental and consequential damages and the cost of any recall campaigns or other corrective actions. Buyer shall be entitled to set off any damages against amounts owing to Seller. Buyer’s resort to any particular remedy, or its forbearance in exercising any remedy available to it, shall not constitute an election or waiver of remedy.
- INDEMNIFICATION: Seller shall defend, indemnify, and hold harmless Buyer and Buyer’s shareholders and affiliates and its and their respective directors, officers, employees and agents from any and all damages, liabilities, claims, losses, suits, legal actions, investigations, or any threat of same, and any costs incurred in connection therewith (including but not limited to fees and expenses of lawyers and other professionals incurred in investigating or defending the same and any cost of a product recall) (collectively, “Damages”) arising out of or related to any Products provided under a Purchase Order or any breach of a Purchase Order. In the event of any claim subject to indemnification hereunder (a “Claim”), Buyer may, at its sole option (i) tender such Claim to Seller to defend using lawyers and other professionals acceptable to Buyer in its discretion, or (ii) defend such Claim by counsel of Buyer’s choosing and Seller shall reimburse Buyer for all costs of such defense, and in either case Seller shall indemnify and hold Buyer harmless from and against all Damages arising out of or relating to such Claim. If Buyer tenders the defense of a Claim to Seller and Seller accepts such defense, then Seller shall be conclusively deemed to have agreed that such Claim is subject to indemnification hereunder and that Seller has no claim or counterclaim against Buyer, all of which shall be deemed to have been waived. If Seller assumes the defense of a Claim and thereafter fails to vigorously defend such Claim, Buyer shall have the right at its option to assume the defense of such Claim and Seller shall remain obligated to indemnify Buyer hereunder. If Seller assumes the defense of a Claim, it will not settle or compromise such Claim without the prior written consent of Buyer.
- INTELLECTUAL PROPERTY & CONFIDENTIALITY: (a) Any invention or intellectual property, including all drawings, manuals, software and/or computer files relating thereto, first made or conceived by Seller in the performance of this Purchase Order, or which is derived from or based on the use of information supplied by Buyer, shall be considered a “work made for hire” and shall be the sole property of Buyer. Seller agrees to execute such documents as Buyer deems necessary to perfect Buyer’s title to the same. (b) Seller grants to Buyer a nonexclusive, worldwide, permanent, irrevocable, fully paid and royalty free license, with an unrestricted right to sublicense others, to use any patent, copyright, trademark or service mark or other intellectual property right of Seller, including but not limited to any such rights related to manufacturing processes, (i) to manufacture or have manufactured Products of the type covered by a Purchase Order for use in products or assemblies produced by Buyer and to sell such products or assemblies, or (ii) to incorporate Products supplied by Seller into products or assemblies produced by Buyer and to sell such products or assemblies. (c) At Buyer’s request, Seller shall consult with Buyer and deliver to Buyer all documentation, drawings and computer files regarding all information covered by the preceding sections (a) and (b). (d) Seller shall not acquire any rights in any patent, copyright, trademark, service mark or other intellectual property right of Buyer except for a nonexclusive nontransferable license to use any such intellectual property solely to produce Products for Buyer pursuant to a Purchase Order. (e) All non-public information, regardless of whether identified as confidential or not, disclosed by Buyer to Seller or developed by Seller in connection with the Products and services supplied under or pursuant to a Purchase Order shall be maintained as strictly confidential by Seller. Seller agrees not to disclose any such information without the prior written consent of Buyer except as required by law or legal process. If Seller is required by law or legal process to disclose any such information, it shall immediately notify Buyer and use all available efforts to resist such disclosure or, if such resistance is unsuccessful, to obtain a protective order.
- NO RESTRICTIONS: Seller warrants to Buyer that there are no restrictions on the resale or export of Products covered by this Purchase Order, or products incorporating any such Products. Without limiting the generality of the foregoing, Seller represents and warrants that no Products supplied under this Purchase Order, including any technical information or technology related thereto, is subject to export and import laws or regulations including, but not limited to, the Arms Export Control Act, as amended (22 U.S.C. §§ 2751-2799aa-1), the International Traffic in Arms Regulations, as amended (22 C.F.R. Parts 120 – 130), the Export Administration Act, as amended (50 U.S.C. App. §§ 2401-2420), the International Emergency Economic Powers Act, as amended (50 U.S.C. §§ 1701-1706) and the Export Administration Regulations, as amended (15 C.F.R. Parts § 730 – 774).
- SALES AND USE TAXES: Seller will not charge Buyer any sales, use or other taxes on any Products. Unless expressly stated in a Purchase Order, Seller’s prices include all applicable taxes, duties and levies, including but not limited to value-added and excise taxes. Buyer certifies that it will use all Products for resale or in processing or manufacturing or will attach them to or incorporate them into Products for sale or resale.
- CHOICE OF LAW: The parties agree that any Purchase Order and the contract created hereby shall be construed according to the laws of the State of Utah. Without limiting the generality of the foregoing, the United Nations Convention on Contracts for the International Sale of Products will not apply to any Purchase Order.
- DISPUTE RESOLUTION: (a) Seller agrees that any action brought by Seller to enforce any Purchase Order, or with respect to the interpretation thereof, shall be brought exclusively in the state court of general jurisdiction with jurisdiction over Buyer’s principal place of doing business, and at that such court shall have exclusive venue over any such dispute, and Seller submits to the jurisdiction of such court in any action brought by Buyer. (b) Seller agrees that at Buyer’s option, any controversy or claim arising out of or relating to any Purchase Order and the contract created thereby, or the breach thereof, will be determined by arbitration administered by the American Arbitration Association in accordance with its International Arbitration Rules. The number of arbitrators shall be one. The place of arbitration shall be Salt Lake City, UT. The language of the arbitration shall be English.
- MISCELLANEOUS: (a) Seller may not assign its rights or obligations hereunder without the express written consent of Buyer. Any attempted or purported assignment in violation of the preceding sentence shall be voidable at the option of Buyer. A “Change of Control” of Seller (as defined below), a merger in which the Seller is not the surviving entity, or a consolidation to which the Seller is a constituent, shall constitute an attempted assignment of a Purchase Order by Seller. As used herein, a “Change of Control” shall occur if a person or group of persons acting in concert who do not as of the date of a Purchase Order directly or indirectly, including through affiliates, have the right to exercise or direct the exercise of more than 50% of the voting power of Seller subsequently acquire directly or indirectly, including through affiliates, the right to exercise or direct the exercise of more than 50% of the voting power of Seller. Buyer may assign its rights under a Purchase Order. (b) A Purchase Order shall constitute the entire agreement between the parties with respect to its subject matter, and shall supersede all prior and contemporaneous agreements, representations, and understandings of the parties, written or oral, with respect to its subject matter. (c) The failure of Buyer to insist upon strict adherence to any provision of a Purchase Order shall not be considered a waiver or deprive Buyer of the right thereafter to insist upon strict adherence to that term or any other term of the Purchase Order. Any waiver of any provision of a Purchase Order by Buyer must be in writing signed by an authorized officer of Buyer. (d) In any action or proceeding brought by Buyer to enforce any provision of a Purchase Order, if Buyer prevails it shall be entitled to recover the reasonable costs and expenses incurred by it in connection with that action or proceeding (including, but not limited to, attorney’s fees). (e) Neither party shall be deemed the drafter of a Purchase Order and it shall not be construed or interpreted in favor of or against either party. (f) Caption headings are for the convenience of the parties only and shall not be used to construe or interpret these Terms and Conditions. (g) If any provision of a Purchase Order shall be found by a court of competent jurisdiction to be unenforceable in any respect, then (i) the court shall revise such provision the least amount necessary in order to make it enforceable, and (ii) the enforceability of any other provision of the Purchase Order shall not be affected thereby.
(b) Buyer shall have the right, by written notice, to suspend work or make changes from time to time in the Products to be provided by Seller under a Purchase Order, or the delivery thereof. Unless subject to subsection (c) below, if such changes cause an increase or decrease in the cost of performance of a Purchase Order, an equitable adjustment shall be negotiated promptly and in good faith by the parties, and the Purchase Order shall be modified in writing accordingly. Any claim by Seller for adjustment under this section must be asserted in writing within twenty (20) days from the date of receipt by Seller of notification of the change or suspension, and shall be followed as soon as practicable with a specification of the amount claimed with supporting cost figures. Seller may not make any changes to a Purchase Order without the express written consent of Buyer.
(c) Following the occurrence of an event, circumstance or condition beyond the reasonable control of Buyer, such as acts of God, actions by any government authority, actions by a customer, strike, work slowdown or other labor unrest, fires, floods, windstorms, explosions, riots, natural disasters, wars, or sabotage, Buyer shall have the right, by written notice, to suspend work or make changes in delivery schedules for the Products to be provided by Seller under a Purchase Order, without liability to Seller. If the suspension or any material change in delivery schedule lasts more than thirty (30) days, Seller may cancel the subject Purchase Order without liability by written notice to Buyer given within two (2) business days after the expiration of such 30 day period.
(d) Without limitation of the foregoing, for any Products shipped to European destinations, Seller will comply with the “European Agreement Concerning the International Carriage of Dangerous Goods.”