Purchase Order Terms and Conditions
I. CONTRACT:
These Purchase Order Terms and Conditions ("Terms") are the terms and conditions governing the provision and performance of the goods and/or services to be provided by the supplier identified in the attached purchase order (the "Supplier") to eINDUSTRIFY or its designated affiliates and/or subsidiaries as further described in the attached purchase order. Such purchase order, which is incorporated herein by this reference, and these Terms, are collectively referred to herein as the "PO". eINDUSTRIFY shall not be bound by the PO unless and until Supplier agrees to be bound by and to comply with all terms set forth herein and in the PO, including any amendments, supplements, drawings, specifications and other documents referred to in these Terms. The term "Product(s)" refers to the subject of the PO, and therefore is intended to be broadly defined to include all products, goods or services of any nature whatsoever ordered or required by eINDUSTRIFY hereunder, including without limitation, hardware, software, goods, commodities, materials, supplies, equipment, parts, accessories, services or any combination of them.
Acknowledgement of the PO by Supplier, including without limitation, by beginning performance of the work or delivery of the Product(s) called for by the PO, shall be deemed Supplier's acceptance of the PO. The terms set forth in this PO take precedence over any alternative or conflicting terms in any other document entered into or delivered in connection with this transaction unless such alternative terms are: (a) part of a written supply agreement ("Supply Agreement"), which has been executed by the parties and which the parties have expressly agreed may supersede these terms in the event of a conflict; and/or (b) set forth on the face of the relevant purchase order to which these Terms are attached. In the event these Terms are part of a written Supply Agreement between the parties, the term "PO" used herein shall mean any purchase order issued under the Supply Agreement. This PO does not constitute an acceptance by eINDUSTRIFY of any offer to sell, any quotation, or any proposal.
Reference in the PO to any such offer to sell, quotation or proposal shall in no way constitute a modification to any of these Terms. ANY PROVISIONS IN ANY QUOTE, QUOTATION, INVOICE, ATTEMPTED ACKNOWLEDGEMENT OF THIS PO, OR OTHER DOCUMENT ISSUED BY SUPPLIER CONTAINING TERMS INCONSISTENT WITH OR IN ADDITION TO THESE TERMS IS NOT BINDING UNLESS SPECIFICALLY ACCEPTED BY eINDUSTRIFY IN WRITING.
II. CHANGES
eINDUSTRIFY reserves the right at any time to make changes within the general scope of this PO in any one or more of the following: (i) quantity (including quantity of Products procured pursuant to a "blanket" PO); (ii) quality; (iii) amount of eINDUSTRIFY's furnished property; (iv) scope, schedule or manner in which Products are provided or services performed; (v) specifications, drawings, samples, or other description to which the Products are to conform; (vi) in the manner and scope of any services to be performed, in the methods of shipment and packaging; and/or (vii) time or place of delivery.
If any change causes an increase or decrease in the cost of, or the time required for the performance of, any work or delivery of any Product(s) under this PO, an equitable adjustment shall be made in the PO price or delivery schedule, or both, if agreed to in writing by the parties. Any Supplier claim for adjustment shall be deemed waived unless asserted within thirty (30) days from Supplier's receipt of the change or suspension notification and may only include reasonable, direct costs that will necessarily be incurred as a direct result of the change. In such event, any claim for an adjustment shall be mutually satisfactory to eINDUSTRIFY and Supplier, but any claim by Supplier for an adjustment shall be deemed waived unless notice of a claim is made in writing within thirty (30) days following Supplier's receipt of such changes. Price increases and/or extensions of time shall not be binding upon eINDUSTRIFY unless evidenced by a purchase order change issued by eINDUSTRIFY. No substitutions of materials or accessories may be made without eINDUSTRIFY's written consent. No charges for extras shall be allowed unless such extras have been ordered in writing by eINDUSTRIFY and the price agreed upon or, in the case of charges for extras proposed by Supplier, made in writing and approved by eINDUSTRIFY in writing. Notwithstanding anything to the contrary in the PO, in no event shall eINDUSTRIFY be responsible for Supplier's loss of profit or for any indirect, incidental, special, punitive and/or consequential damages.
III. SPECIFICATIONS AND INSPECTIONS
All data submitted to Supplier in connection with the Products is hereby incorporated by reference. All Products ordered to eINDUSTRIFY's specifications will comply with such specifications current as of the date of this PO unless otherwise authorized by eINDUSTRIFY in writing. The Products shall be subject to inspection and test by eINDUSTRIFY at all reasonable times and places, including the period of manufacture for hardware, the period of development for software, and the period of performance for services. If any inspection or test is made on Supplier's premises, Supplier shall, without additional charge, provide all reasonable facilities and assistance for the safety and convenience of eINDUSTRIFY's inspectors.
IV. REJECTION
If any of the Products and/or services furnished pursuant to the PO are found within a reasonable time after delivery to be defective or otherwise not in conformity with the requirements of the PO, including any applicable drawings and specifications and/or other data or which do not comply with the warranty hereinafter stated, whether such defect or non-conformity relates to Supplier's performance or the performance of a direct or indirect subcontractor of Supplier, then in addition to any other rights, remedies and choices it may have by law, contract and/or at equity, and in addition to seeking recovery of any and all damages and costs emanating therefrom, at its option and sole discretion and at Supplier's expense, eINDUSTRIFY may:
(a) require Supplier to immediately re-perform any defective portion of the services and/or require Supplier to immediately repair or replace non-conforming Products with Products that conform to all requirements of the PO.(b) take such actions as may be required to cure all defects and/or bring the Products and/or services into conformity with all requirements of the PO, in which event, all related costs and expenses (including, but not limited to, material, labor and handling costs and any required re-performance of value added machining or other service) and other reasonable charges shall be for Supplier's account; (c) withhold total or partial payment; (d) reject and return all or any portion of the Products; and/or (e) rescind the PO without liability. No acceptance shall be deemed effective with respect to latent defects (whether or not known by Supplier). For any repairs or replacements, Supplier, at its sole cost and expense, shall perform any tests requested by eINDUSTRIFY to verify conformance to the PO. If rejected after delivery, rejected Products will be returned to Supplier at Supplier's risk and expense. Payment for any Products shall not be deemed acceptance thereof, and if such Products are rejected after payment, eINDUSTRIFY shall be entitled to return the same for full refund.
V. PRICE AND PAYMENTS
(a) All prices are firm and shall not be subject to change. Supplier's price includes all payroll and/or occupational taxes, any value added tax that is not recoverable by eINDUSTRIFY and any other taxes, fees and/or duties applicable to the Products and/or services purchased under the PO, and Supplier is responsible for and will pay all applicable taxes, charges, fees, levies, or other assessments imposed or collected by any governmental entity (or political subdivision thereof) worldwide on sales of products or services, or sales, use, transfer, goods, and services or value added tax or any other duties or fees related to any payment by eINDUSTRIFY to Supplier for Products provided to eINDUSTRIFY under or pursuant to this PO; provided, however, that any value added tax that is recoverable by eINDUSTRIFY, state and local sales, use, excise and/or privilege taxes, if applicable, will not be included in Supplier's price but will be separately identified on Supplier's invoice. Neither party is responsible for taxes on the other party's income or the income of the other party's personnel or subcontractors. eINDUSTRIFY shall be billed at the price and on the terms contained in the PO. If price is omitted on the PO, then the price for the Products provided hereunder will be Supplier's lowest prevailing market price for such Products unless otherwise expressly agreed to by eINDUSTRIFY. eINDUSTRIFY is not obligated to purchase any quantity of Products and/or services except for such quantity(ies) as may be specified either, subject to Sections II and XIV of these Terms: (i) on the face of the PO; or (ii) on a separate written release issued by eINDUSTRIFY pursuant to the PO. Unless otherwise agreed to in writing by eINDUSTRIFY, Supplier shall not make material commitments or production arrangements in excess of the quantities specified in the PO or release and/or in advance of the time necessary to meet eINDUSTRIFY's delivery schedule. Should Supplier enter into such commitments or engage in such production, any resulting exposure shall be for Supplier's account. Products delivered to eINDUSTRIFY in excess of the quantities specified in eINDUSTRIFY's PO or release and/or in advance of schedule may be returned to Supplier at Supplier's risk and expense, including, but not limited to, any cost incurred by eINDUSTRIFY related to storage and handling of such Products.
(b) Unless otherwise stated on the attached purchase order or in the applicable Supply Agreement, eINDUSTRIFY will initiate payment on or before net sixty (60) calendar days from the latest of: (i) the required date identified on the attached purchase order; (ii) the received date of the goods and/or completion of services meeting the requirements of the PO by eINDUSTRIFY or its designated agent; or (iii) the date of receipt of valid undisputed invoice by Supplier.
(c) All claims for monies due to or to become due from eINDUSTRIFY hereunder shall be subject to deduction by eINDUSTRIFY for any set off or counterclaim arising out of this or any other of eINDUSTRIFY's transactions with Supplier.
VI. EXTRAS
Title to the Products covered by the PO passes to eINDUSTRIFY upon delivery of the Products to the delivery location specified by eINDUSTRIFY in the PO. Delivery of the Products is not complete until such Products have actually been received and accepted by eINDUSTRIFY.
Supplier bears all risk of loss or damage to the Products until delivery of the Products to the delivery location specified by eINDUSTRIFY in the PO. No charges will be allowed for taxes, import duties, transportation, packaging, packing, returnable containers, restocking, cancellation, documentation, or media unless otherwise agreed to by eINDUSTRIFY in advance, in writing in accordance with Section II above. Unless otherwise provided for in the PO, all Products will be shipped DDP (Delivered Duty Paid) at eINDUSTRIFY's designated delivery location. All sales, use, excise, or similar taxes to be paid by eINDUSTRIFY must be itemized separately in the PO and on any invoices delivered pursuant thereto. Shipments must be packaged according to specifications or, if not covered in specifications, so as to permit efficient handling, provide adequate protection, comply with requirements of the carrier, and all applicable transportation regulations and laws, and good commercial practice. Any expense incurred by eINDUSTRIFY as a result of improper packaging, preservation, packing, marking, or method of shipment will be charged to Supplier.
VII. WARRANTY
Supplier warrants, for a period of one (1) year after the date the Products furnished hereunder are placed into service by eINDUSTRIFY, that such Products will be in conformity with all specifications and/or other descriptions, fit for its particular purpose, and will be merchantable and of good quality material and workmanship, free from defects. Additionally, Supplier represents and warrants that: (i) where the Products consist of services to be performed by Supplier, Supplier shall perform such services in a professional and workmanlike manner, in good faith, utilizing all reasonable commercial efforts and with promptness and diligence, (ii) the Products will be transferred by Supplier to eINDUSTRIFY with full right, title and interest in and to the Products, free and clear of all liens and encumbrances and Supplier has good, valid and marketing title to the Products, and (iii) the Products and the services do not and will not infringe, misappropriate or violate of any intellectual property rights and that the Products and services are free from any actual or claimed infringement, misappropriation or violation of any intellectual property rights. This warranty shall be in addition to any other warranties of broader scope and any other service warranties and guarantees, whether express or implied, given to eINDUSTRIFY by Supplier; shall survive inspection, test, acceptance, and payment; and shall run to eINDUSTRIFY, its successors, assigns, and customers. Notwithstanding the foregoing, if and to the extent any warranty given to eINDUSTRIFY by Supplier conflicts with the warranty contained in this Section, the warranty that is more favorable to eINDUSTRIFY shall control. eINDUSTRIFY may, at its option, either return for full refund or credit, or require prompt correction or replacement of defective or nonconforming Products, which right shall be in addition to such other rights as eINDUSTRIFY otherwise may have hereunder or in law or equity.
Returns to Supplier of any defective or nonconforming Products shall be made at Supplier's expense and no replacements of defective or nonconforming products shall be made unless specified by eINDUSTRIFY. Products required to be corrected or replaced shall be subject to this warranty and a new warranty period and to the above Sections III and/or IV to the same extent as Products originally delivered under this PO.
VIII. DELIVERY
The time or times of delivery specified in this PO of conforming Products in the full quantities specified in this PO and timely performance of conforming services are of the essence. Any delay will be excused only if and to the extent (i) such delay is due to unavoidable strike, fire, windstorm, riot, act of God, act of public enemy, or other unforeseeable causes beyond the control and without fault or negligence of Supplier, provided that (ii) Supplier shall have notified eINDUSTRIFY in writing of the existence of such cause within five (5) days after the commencement of the event or circumstance giving rise to the delay, and giving all pertinent information concerning such cause.
Notwithstanding the foregoing, if delivery of conforming Products is not accomplished at the time or times indicated in this PO, eINDUSTRIFY reserves the right, without liability and in addition to its other rights and remedies, (i) to be excused from part or full performance hereunder, (ii) to terminate this PO, in whole or in part, by notice effective immediately upon delivery to Supplier, (iii) to arrange for completion of performance by Supplier or a third party, and/or (iv) to purchase substitute products elsewhere, and eINDUSTRIFY may charge Supplier with any loss incurred including, but not limited to, all consequential, special and contingent damages including losses sustained or anticipated to be sustained by eINDUSTRIFY as a result of Supplier's inability to meet its contractual obligations, and any difference between the Supplier's price for the Product and the price of the substitute product. The specific quantities of Products ordered must be delivered in full and may not be changed without eINDUSTRIFY's prior written consent. Any unauthorized quantity, including, without limitation, any partial shipment, is subject to rejection by eINDUSTRIFY and return at Supplier's expense. No provision of this PO for the delivery of Products in installments shall be construed as making Supplier's obligation severable.
Shipments sent C.O.D. without eINDUSTRIFY's written consent may not be accepted and will be rejected and/or returned at Supplier's risk and cost.
IX. OWNERSHIP
The following definitions shall apply to this paragraph. "eINDUSTRIFY Tools" are tools, equipment, or other property furnished to Supplier by eINDUSTRIFY. "Non-Unique Tools" are either general tools or special tools made by Supplier to produce, and which have application only to produce, the Products. "Unique Tools" are tools made by Supplier which have application to Supplier's method of operation which may be either general or special. For the sake of clarity, Unique Tools may have application to produce the Products in addition to other Supplier applications.
eINDUSTRIFY shall retain all right, title, and interest, in and to eINDUSTRIFY Tools and Confidential Information (as defined below). Unless otherwise agreed, eINDUSTRIFY shall own all right, title and interest in and to any data, results or work product, including any and all intellectual property rights therein or thereto (i) resulting from the provision of the Products or the performance of the services by or on behalf of Supplier for eINDUSTRIFY or an affiliated entity of eINDUSTRIFY that arise from, are based on or relate to Supplier's use of eINDUSTRIFY Confidential Information and (iii) in the Non-Unique Tools which are specifically paid for by or developed for eINDUSTRIFY, whether itemized separately or included in the price of any Product and are for use in the performance of this PO, shall be and remain eINDUSTRIFY's property (the "eINDUSTRIFY Owned Developments"). Supplier hereby assigns and agrees to assign to eINDUSTRIFY any and all right, title and interest Supplier may have in the eINDUSTRIFY Owned Developments, including, without limitation, all intellectual property rights therein. Any copyrightable aspects of the eINDUSTRIFY Owned Developments that qualify as "works made for hire" under the United States Copyright Act shall be so considered.
Unless otherwise previously agreed in writing, Non-Unique Tools other than those that are considered eINDUSTRIFY Owned Developments and Unique Tools shall be and hereby are the property of Supplier, but any such tools shall be subject to use by eINDUSTRIFY in the event Supplier is unable to make deliveries due to a cause set forth in, and in consideration of, Section VIII.
Supplier agrees to grant, and hereby grants, to eINDUSTRIFY, a non-exclusive, royalty-free, fully paid up, irrevocable, license, with the right to sublicense, to use, modify, to make or have made, prepare and own derivative works from, to use, modify, reproduce, release, perform, display or disclose all Products that constitute technical data, computer software and computer software documentation or any other similar Products that are required to be developed or delivered under this PO.
To the extent that the Unique Tools or other Supplier owned intellectual property are incorporated into Products, or are necessary to use Products, Supplier shall deliver such Unique Tools or other Supplier owned intellectual property to eINDUSTRIFY (or eINDUSTRIFY's designee) at no additional charge and Supplier hereby grants to eINDUSTRIFY a nonexclusive, royalty-free, worldwide, irrevocable license, with the right to sublicense, for eINDUSTRIFY and its affiliated entities to use such Unique Tools or other Supplier owned intellectual property in connection with the Products.
Any property owned by eINDUSTRIFY shall be used only in filling the order set forth in this PO and any similar orders from eINDUSTRIFY, shall be held at the Supplier's risk, and shall be kept insured by the Supplier at the Supplier's expense while in Supplier's custody and control in an amount equal to the replacement cost thereof, with loss payable to eINDUSTRIFY. Supplier shall not incorporate eINDUSTRIFY Tools into Unique Tools or other property of Supplier without the prior express written instruction of eINDUSTRIFY in each instance.
When so instructed by eINDUSTRIFY, the Supplier shall deliver any property owned or subject to use by eINDUSTRIFY to eINDUSTRIFY (or to any other person eINDUSTRIFY may designate) in good condition, ordinary wear and tear excepted, and such property shall be subject to repossession or removal by eINDUSTRIFY upon eINDUSTRIFY's instructions.
X. CONFIDENTIALITY
Except as otherwise specifically agreed, all information disclosed by eINDUSTRIFY to Supplier, including, but not limited to, drawings, specifications, technical information, the terms of this PO, any proprietary or confidential information of eINDUSTRIFY concerning its business, employees, customers, plans, finances, technology, and other data furnished by or on behalf of eINDUSTRIFY or any affiliated entity ("Confidential Information") shall be held by Supplier in confidence and used solely in furtherance of Supplier's delivery of the Products. Confidential Information is not, in any way, intended to be for public disclosure. Supplier will not disclose the Confidential Information to any third party and shall take all reasonable and necessary precautions (in any case, at least as stringent as measures Supplier takes to protect its own confidential information) to prevent any such information from being divulged to any person for any purpose other than to perform this PO, including having recipients acknowledge the confidential status of such information and agreeing to like restrictions on using and divulging such information. This obligation of confidence contained in this Section shall survive the earlier performance or termination of this PO and will continue thereafter. Information presently in the public domain, or which is rightfully received by Supplier from a third party without breach of this PO, or information which both eINDUSTRIFY and Supplier agree in writing may be disclosed, shall not be considered confidential. If Supplier is required by applicable law to disclose any Confidential Information, it will give eINDUSTRIFY reasonable advance notice to seek confidential treatment or otherwise protect its Confidential Information. When collecting, storing, handling or transmitting Confidential Information or other data on behalf of or received from eINDUSTRIFY, Supplier will comply with all data privacy and security laws and will not cause eINDUSTRIFY to violate any data privacy or security law. Supplier shall not disclose to eINDUSTRIFY any information that Supplier deems to be confidential, and it is understood that no information received by eINDUSTRIFY, including manuals, drawings and documents whether marked confidential or not, will be of a confidential nature or restrict, in any manner, the use or disclosure of such information by eINDUSTRIFY. As to publicity, Supplier shall not, without first obtaining eINDUSTRIFY's consent in writing, advertise or otherwise disclose the fact that Supplier has furnished Products and/or services to eINDUSTRIFY or use eINDUSTRIFY's name or trademarks, which may be granted (or not) in eINDUSTRIFY's sole and absolute discretion.
XI. INDEMNIFICATION:
Supplier shall indemnify, defend and hold harmless eINDUSTRIFY and its subsidiaries and affiliates, and each of their respective officers, directors, employees, agents, representatives, customers, successors and assigns from and against any claims, actions, losses, suits, liabilities, proceedings, damages, costs and expenses (including reasonable attorneys' fees and court costs) (collectively, "Claims") arising out of or relating to any actual or alleged breach by the Supplier of its obligations, or Products supplied, under this PO, including Claims based on personal injury, product liability, property damage, infringement or unauthorized, or unlawful use of any intellectual property rights, including patent, copyright, or trademark, wherever registered or issued, or trade secret, mask work, or proprietary data, or other Claims resulting from the manufacture, sale, use, or lease, or other disposition of any Product purchased under this PO. In the event Supplier fails to promptly investigate, defend and indemnify eINDUSTRIFY against such Claims as provided herein, then eINDUSTRIFY shall, following notification to Supplier, have the right from that time forward to have sole control of the defense of any said Claims at Supplier's expense. Supplier will not settle any Claim without eINDUSTRIFY's prior written consent. This indemnity does not extend to: (i) any Product to the extent the infringement is finally determined to be the direct result of a specific design provided to Supplier by eINDUSTRIFY; or (ii) the extent any Claim is attributable to the sole and direct gross negligence of eINDUSTRIFY.
XII. COMPLIANCE WITH LAWS AND eINDUSTRIFY POLICIES AND PROCEDURES
Supplier shall at all times comply with all applicable federal, state, and local laws, regulations, rules, and orders. Any provision which is required to be a part of this PO by virtue of any such law, regulation, rule, or order is incorporated by reference.
Supplier shall take appropriate actions necessary to protect health, safety and the environment, including, without limitation, in the workplace and during transport and has established an effective program to ensure any suppliers it uses to perform the work or deliver the Products called for under the PO will be in compliance with this Section XII. Supplier shall provide all product information related to the handling of the Products as may be required by law. Without limiting the generality of the foregoing, Supplier shall comply in all respects with: (i) the UK Bribery Act of 2010 ("Bribery Act") and the United States Foreign Corrupt Practices Act (the "FCPA") including, maintaining adequate internal controls as required by the Bribery Act and the FCPA and complying with the record-keeping provisions of the FCPA; and (ii) all applicable laws, rules, regulations and orders relating to money laundering, currency transfers or other regulations concerning the transfer of monetary instruments ("AML Measures"), including the maintenance of policies and procedures designed to ensure, and which are reasonably expected to continue to ensure, compliance with AML Measures. As of the Supplier's acknowledgement of the PO, Supplier represents and warrants to eINDUSTRIFY that neither Supplier nor to the knowledge of Supplier any of its personnel has: (a) paid, or has undertaken to pay, and in the future shall not pay, or undertake to pay, directly or indirectly, any bribe, pay off, kick back or commission; or (b) given, or committed or offered to give, any gift, benefit, or present or thing of value to any person or entity in respect of the Products or the PO or any business or any favorable treatment or advantage of any kind for it or him or for eINDUSTRIFY. Supplier represents and warrants, on behalf of itself and any of its personnel, that it is familiar with and will remain in compliance in all respects with eINDUSTRIFY's Anti-Bribery Compliance Policy, as amended, a current copy of which will be provided to Supplier upon request. Prior to, or concurrently with, Supplier's acknowledgement of the PO and commencement of the provisioning of any Product(s) under the PO, Supplier has or will execute and deliver to eINDUSTRIFY a copy of eINDUSTRIFY's Annual Compliance Certification, as amended. Additionally, for so long as the Supplier is providing any Product(s) to eINDUSTRIFY, the Supplier will annually (or as sooner requested by eINDUSTRIFY) execute and deliver to eINDUSTRIFY a signed copy of the then current version of the Compliance Certificate. Supplier shall comply with all of eINDUSTRIFY's applicable rules, policies and procedures including compliance with safety, data privacy, and security measures.
XIII. WAIVER
A waiver of a breach of any term of this PO will not be construed as a waiver of any succeeding breach of that term or as a waiver of the term itself or any other such term, condition or provision. A party's performance after the other's breach shall not be construed as a waiver of that breach. No failure or delay by either party to enforce or take advantage of any provision or right under this PO shall constitute a subsequent waiver of that provision or right, nor shall it be a waiver of any of the other terms and conditions of this PO.
XIV. TERMINATION
eINDUSTRIFY may terminate this PO in whole or in part upon eINDUSTRIFY's written notification to Supplier:
1. After thirty (30) days' written notice, for any reason at eINDUSTRIFY's convenience, and, in such case, the extent of eINDUSTRIFY's liability shall be:
(a) if the Product is software or services, to pay the portion of the contract price in the PO that represents the value of the work completed in comparison to the whole. (b) if the Product is hardware or equipment, to pay the cost of the existing "finished goods" inventory, but in any event no more than required to fulfill the next delivery schedule within the fifteen (15) days following the date of termination, plus the existing "work-in-process" inventories required to fulfill an additional fifteen (15) days of deliveries, except that there shall be no liability for inventories in either category which are readily usable or resalable. As used herein " finished goods" shall mean goods that have passed a final acceptance test and are waiting delivery, and "work-in-process" shall mean material in varying stages of completion with some degree of labor applied and/or individual piece parts and/or raw material in a stage of completion; or (c) if the Product is a good or commodity procured pursuant to a "blanket" PO, to pay the cost of the portion required by eINDUSTRIFY for the quantity procured through the date of termination.
2. Immediately, for any default of Supplier involving:
(a) Supplier's failure to timely and properly develop, deliver and/or render the Products in accordance with this PO; or (b) Supplier's failure to make progress in the performance of its obligations under this PO reasonably satisfactory to eINDUSTRIFY. With respect to any default mentioned in this Section XIV(2), except a delivery failure as described in Section VIII hereof, eINDUSTRIFY's right to terminate shall be conditioned upon Supplier's failure, within ten (10) days after delivery of eINDUSTRIFY's notification, to provide a remedy satisfactory to eINDUSTRIFY to cure such failure or noncompliance, following which eINDUSTRIFY shall have all rights and remedies available to it hereunder, in law or equity, including, without limitation, the right to arrange for completion of performance and/or to purchase substitute products elsewhere and charge Supplier with any loss incurred including, but not limited to, any difference between the Supplier's price for the Product and the price of the substitute product. In the event of termination by eINDUSTRIFY due to Supplier's default pursuant to this Section XIV(2), eINDUSTRIFY shall have no liability to Supplier as a result of such termination.
3. Immediately in the event Supplier becomes the subject of any proceedings under state or federal law (or a similar law of a foreign country) for the relief of debtors or otherwise becomes insolvent, or bankrupt, or makes assignments for the benefit of creditors. In the event of termination by eINDUSTRIFY for any reason described in this Section XIV(3), eINDUSTRIFY shall have no liability to Supplier as a result of such termination.
In the event of termination for any reason, all right, title, and interest in and to all, or any portion, of materials acquired by Supplier for the performance of this PO, working process, and/or completed products specified in such notice, shall pass immediately to eINDUSTRIFY upon payment therefor. eINDUSTRIFY shall have the right to enter upon the premises where such property (and/or any eINDUSTRIFY property described in Section IX hereof) may be located and take possession thereof. In the case of the Product being a good or commodity procured pursuant to a "blanket" PO, the Supplier shall promptly deliver the portion required by eINDUSTRIFY of the quantity procured. Supplier shall be obligated to mitigate all damages, including, without limitation, not incurring costs which could reasonably be avoided, and by consuming or selling to others in its ordinary course of business Products or materials used to manufacture Products or in performing the services.
XV. GOVERNING LAW; DISPUTES
THIS PO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS, U.S.A. (EXCLUDING ANY LAW RELATED TO CONFLICTS OF LAWS). TO THE EXTENT THE PRODUCTS CONSTITUTE THE SALE OF GOODS, THE UNIFORM COMMERCIAL CODE OF THE STATE OF FLORIDA SHALL APPLY. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THEINTERNATIONAL SALE OF GOODS ("CISG") SHALL NOT APPLY TO THIS OR ANY OTHER AGREEMENT BETWEEN THE PARTIES.
Any dispute arising out of or relating to this PO shall be submitted to confidential, binding arbitration in Jacksonville, Florida, except that, to the extent such dispute involves the violation or threatened violation of eINDUSTRIFY's intellectual property rights, eINDUSTRIFY may additionally seek injunctive or other appropriate relief in any state or federal court, and Supplier consents to exclusive jurisdiction and venue in such courts. Arbitration under these terms shall be conducted under the rules then prevailing of the American Arbitration Association and the arbitrator shall be mutually agreeable to the parties. The arbitrator's award shall be binding and may be entered as a judgment in any court of competent jurisdiction. Pending final resolution or settlement of any dispute arising hereunder, upon eINDUSTRIFY's written request, Supplier shall proceed diligently as directed by eINDUSTRIFY with the performance of this PO.
Neither party may bring any action, regardless of form, related to this PO or any Product more than one (1) year after the party bringing the action knew or should have known that the cause of action accrued.
XVI. SURVIVORSHIP
On expiration, cancellation or termination of this PO for any reason, Section VII (Warranty), Section IX (Ownership), Section X (Confidentiality), Section XI (Indemnification; Limitation of Liability), Section XV (Governing Law; Disputes), Section XVI (Survivorship), Section XVII (Relationship), Section XVII (Relationship), Section XIX (Construction), and those terms which by their nature are intended to survive, will survive.
XVII. RELATIONSHIP
eINDUSTRIFY and Supplier are contractors independent of one another. Nothing in this PO is intended to or will constitute either party as an agent, legal representative, or partner of the other for any purpose. Supplier shall obtain and maintain all applicable and appropriate insurance, (including, without limitation, business, workers' compensation, auto, errors and omissions, professional and commercial general and liability insurance) in an amount consistent with Supplier's industry practice.
XVIII. SEVERABILITY
Any provision of this PO which is unenforceable in any jurisdiction shall, as to such jurisdiction, be modified to be enforceable to the maximum extent permitted by law, or if such modification is impermissible, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition of unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
XIX. CONSTRUCTION
No ambiguity in any provision of this PO shall be construed against either party by virtue of the fact that such party, or its counsel, drafted such provision. The captions in this PO are for convenience only and shall not define or limit any of the terms hereof.
XX. SUPPLIER ACCEPTANCE
No contract shall exist other than as expressly set forth in the PO, which includes these Terms. Any acceptance of the PO by Supplier is limited to the acceptance of the express terms of the PO. Any additional or different terms previously or hereafter imposed or submitted by Supplier, including terms on any Supplier quotation, acknowledgment or invoice or contained in any prior agreement, or any attempt by Supplier to vary, in any degree, any of the terms or conditions of the PO, shall not be deemed included in this PO or be binding upon eINDUSTRIFY. No agreement or understanding to modify this PO shall be binding upon eINDUSTRIFY unless expressly agreed to in advance, in a writing that identifies itself as an amendment to the PO which is signed by an authorized employee of eINDUSTRIFY. Supplier shall return a signed copy of the PO to eINDUSTRIFY; provided, however, the failure to do so will not affect acceptance and effectiveness of the PO and these terms and conditions upon Supplier where such acceptance has otherwise occurred in accordance with this PO.
