THESE PURCHASE ORDER TERMS AND CONDITIONS (THESE “TERMS”) GOVERN THE PURCHASE BY EYECARE PARTNERS, LLC (OR ITS AFFILIATE IDENTIFIED AS “BUYER” OR “PURCHASER” IN THE WRITTEN PURCHASE ORDER) (“BUYER”), FROM THE SELLER IDENTIFIED IN THE WRITTEN PURCHASE ORDER, PROPOSAL, CONTRACT OR AGREEMENT WHICH ATTACHES, INCORPORATES OR REFERENCES THESE TERMS (THE “PURCHASE ORDER”; SAID SELLER, “SELLER”) OF ALL GOODS (“GOODS”) AND/OR SERVICES ("SERVICES”) IDENTIFIED IN THE PURCHASE ORDER. THE PURCHASE ORDER IS AN OFFER TO PURCHASE IN ACCORDANCE WITH THESE TERMS, NOT AN ACCEPTANCE OF ANY OFFER. THE PURCHASE ORDER EXPRESSLY LIMITS SELLER’S ACCEPTANCE TO THE TERMS OF THE PURCHASE ORDER. THE PURCHASE ORDER IS NOT BINDING ON BUYER UNTIL SELLER ACCEPTS THIS AGREEMENT IN WRITING OR BY STARTING TO PERFORM IN ACCORDANCE WITH THE PURCHASE ORDER. UPON SELLER’S ACCEPTANCE, THE PURCHASE ORDER, TOGETHER WITH ALL DOCUMENTS SPECIFICALLY REFERENCED IN THESE TERMS OR THE PURCHASE ORDER (COLLECTIVELY, THIS "AGREEMENT"), WILL CONSTITUTE THE ENTIRE AGREEMENT BETWEEN BUYER AND SELLER, SUPERSEDES ALL PRIOR OR CONTEMPORANEOUS UNDERSTANDINGS, AGREEMENTS, NEGOTIATIONS, DISCUSSIONS, COMMUNICATIONS AND DEALINGS, WHETHER WRITTEN OR ORAL, WITH RESPECT TO THE SUBJECT MATTER OF THE PURCHASE ORDER, AND MAY NOT BE MODIFIED OR TERMINATED EXCEPT BY A WRITING SIGNED BY SELLER AND BUYER. SELLER’S ACCEPTANCE OF THE PURCHASE ORDER WILL BE EFFECTIVE ONLY IF IT CONTAINS NO ADDITIONAL TERMS. ANY TERMS CONTAINED IN ANY QUOTATION, ACCEPTANCE, INVOICE OR OTHER FORM OR DOCUMENT PREVIOUSLY OR HEREAFTER SUPPLIED BY SELLER TO BUYER (COLLECTIVELY, “SELLER DOCUMENTS”), WHICH ARE IN ADDITION TO OR DIFFERENT FROM THIS AGREEMENT ARE EXPRESSLY OBJECTED TO AND HEREBY REJECTED, AND SHALL NOT BE BINDING ON BUYER NOR PART OF THE CONTRACT OR AGREEMENT BETWEEN BUYER AND SELLER. BUYER’S RECEIPT OF OR PAYMENT FOR THE GOODS OR SERVICES DESCRIBED IN THE PURCHASE ORDER WILL NOT BE CONSTRUED AS AN ACCEPTANCE OF ANY TERMS IN ANY SELLER DOCUMENTS.
TO THE EXTENT THAT SELLER, THROUGH ITS EMPLOYEES OR AGENTS, IS ACTING AS A BUSINESS ASSOCIATE (AS DEFINED IN 45 C.F.R. § 160.103) OF BUYER WITH RESPECT TO THE GOODS OR SERVICES UNDER THIS AGREEMENT, THIS PURCHASE ORDER IS SUBJECT TO AND HEREBY INCORPORATES BY REFERENCE EYECARE PARTNERS, LLC’S STANDARD BUSINESS ASSOCIATE ADDENDUM, (THE “BAA”). BY PROVIDING THE GOODS OR SERVICES UNDER THIS PURCHASE ORDER, YOU ACKNOWLEDGE AND AGREE TO THE TERMS OF THE BAA, WHICH IS EXPRESSLY INCORPORATED HEREIN BY REFERENCE.1
Delivery of Goods and Performance of Services
Seller shall deliver the Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the parties (the “Delivery Date”). TIME IS OF THE ESSENCE IN THE DELIVERY OF THE GOODS AND THE SERVICES COVERED BY THIS AGREEMENT. Seller will immediately notify Buyer if it appears the actual date of delivery will be after the Delivery Date, including the reasons therefor, steps being taken to remedy the same, and the projected actual delivery date. If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate this Agreement immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date. Buyer has the right to return any Goods delivered prior to the Delivery Date at Seller’s expense and Seller shall redeliver such Goods on the Delivery Date.
Seller shall deliver all Goods to the address specified in the Purchase Order (the “Delivery Point”) during Buyer’s normal business hours or as otherwise instructed by Buyer. Seller shall pack all goods for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition
Seller shall provide the Services to Buyer as described and in accordance with the Purchase Order (including any schedules or exhibits thereto), these Terms and the BAA
Seller acknowledges that time is of the essence with respect to Seller’s obligations hereunder and the timely delivery of the Goods and Services, including all performance dates, timetables, project milestones and other requirements in the Agreement.
Title and Risk of Loss. Title and risk of loss passes to Buyer upon delivery of the Goods at the Delivery Point
Inspection and Rejection of Nonconforming Goods. Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) rescind this Agreement in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective Goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with Goods from a third party and charge Seller the cost thereof and terminate this Agreement for cause pursuant to Section 13. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller’s obligations under the Agreement, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
Price. The price of the Goods and Services is the price stated in the Purchase Order (the “Price”). If no price is included in the Purchase Order, the Price shall be the price set out in Seller’s published price list in force as of the date of the Purchase Order. Unless otherwise specified in the Purchase Order, the Price includes all packaging, transportation costs to the Delivery Point, insurance, customs duties and fees, and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.
Payment Terms. Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with these Terms. Buyer shall pay all properly invoiced amounts due to Seller within 60 days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller under this Agreement. In the event of a payment dispute, Buyer shall deliver a written statement to Seller prior to the date payment is due on the disputed invoice listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and shall be paid, notwithstanding disputes on other items, within the period set forth in this Section 5. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under this Agreement notwithstanding any such dispute.
Seller's Obligations Regarding Services. Seller shall:
(a) before the date on which the Services are to start, obtain, and at all times during the term of this Agreement, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services;
(b) comply with all rules, regulations and policies of Buyer, including security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by Buyer to certain areas of its premises or systems for security or privacy reasons, and general health and safety practices and procedures
(c) maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Seller in providing the Services in such form as Buyer shall approve. During the term of this Agreement and for a period of two years thereafter, upon Buyer’s written request, Seller shall allow Buyer to inspect and make copies of such records and interview Seller personnel in connection with the provision of the Services
(d) obtain Buyer’s written consent, which shall not be unreasonably withheld, prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Seller, other than Seller’s employees, to provide any Services to Buyer (each such approved subcontractor or other third party, a “Permitted Subcontractor”). Buyer’s approval shall not relieve Seller of its obligations under the Agreement, and Seller shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Seller’s own employees. Nothing contained in this Agreement shall create any contractual relationship between Buyer and any Seller subcontractor or supplier;
(e) require each Permitted Subcontractor to be bound in writing by the confidentiality provisions of this Agreement, and, upon Buyer’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to Buyer;
(f) require each Permitted Subcontractor, as applicable, to be bound in writing by the BAA (or such other Business Associate Agreement in a form that is reasonably satisfactory to Buyer);
(g) ensure that all persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Seller, are properly licensed, certified or accredited as required by applicable law and are suitably skilled, experienced and qualified to perform the Services;
(h) ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by the Buyer; and
(i) keep and maintain any Buyer equipment in its possession in good working order and shall not dispose of or use such equipment other than in accordance with the Buyer’s written instructions or authorization.
(a) To the extent that Seller collects, maintains or otherwise processes any Buyer data, Seller will maintain the Buyer data at a hosting facility where the facility, equipment and Buyer data are subject to commercially reasonable security precautions to prevent unauthorized access or disclosure thereto. Any and all third party providers and hosting facilities used in the storing of Buyer data and/or the performance of Seller’s obligations hereunder are subject to Buyer’s prior written approval. At all times during the term of this relationship, Seller shall collect, store, use and maintain Buyer data in compliance with all applicable state and federal laws and regulations relating to the privacy, information security, and consumer protection for such data, including, without limitation, all Data Protection Laws (defined below). In no event shall Seller implement less than a reasonable level of information security for the confidentiality, integrity, and availability of the Buyer data. Seller shall promptly (in no more than 24 hours after becoming aware) report to Buyer in writing any actual or suspected compromise of the Buyer data.
(b) Seller shall, in the performance of its obligations hereunder, abide by all applicable Data Protection Laws (defined below). In furtherance of the foregoing, Seller hereby acknowledges and agrees that (i) it will only access and process the Personal Data for the business purposes of performing services for Buyer and (ii) it is expressly prohibited from retaining, using, or disclosing the Personal Data for any purpose other than performing its obligations as specified in this Agreement or as otherwise authorized under applicable law. In addition to its general obligations with regard to all of Buyer’s data, Seller shall implement and maintain throughout the term, plus any additional periods during which Seller processes any Personal Data, reasonable (recognizing the heightened importance of protecting Personal Data) security measures, procedures and practices appropriate to the nature of the personal information processed on behalf of Buyer (or the equivalent obligations in other applicable Data Protection Laws).
(c) Seller will not independently respond to requests from persons with regard to any Personal Data processed in connection with the performance by Seller of its obligations under this Agreement without Buyer’s prior written consent, except where required by applicable law. Seller shall notify Buyer as soon as reasonably practicable after Seller receives a request or communication from any such person to exercise the person’s rights under any Data Protection Laws (“Data Subject Request”). Taking into account the nature of the processing, Seller shall assist Buyer by appropriate technical and organizational measures, for the fulfilment of Buyer’s response to a Data Subject Request. In addition, to the extent Buyer, in its use of Seller’s products and/or services, does not have the ability to address a Data Subject Request, Seller shall, upon Buyer’s request, assist Buyer in responding to such Data Subject Request.
(d) At the choice of Buyer, Seller shall delete or return all the Personal Data to Buyer after the end of the provision of Services unless applicable Data Protection Laws require storage of the Personal Data. Seller shall make available to Buyer all information necessary to establish Buyer’s compliance with its and Seller’s obligations under the applicable Data Protection Laws and allow for and contribute to audits, including inspections, conducted by Buyer, another auditor mandated by Buyer or any regulatory entity. Seller shall immediately inform Buyer if, in its opinion, an instruction from Buyer infringes the Data Protection Laws or other applicable law.
(e) The parties agree that a breach of this Section may result in irreparable and continuing damage to the non-breaching party for which there may be no adequate remedy at law, and such party is therefore entitled to seek injunctive relief as well as such other relief as may be appropriate, without the requirement of posting a bond. The parties hereby acknowledge and agree that the provisions of this Section shall survive the expiration and termination of this Agreement for any reason whatsoever.
(f) “Personal Data” means Buyer data which may be used, alone or in conjunction with any other information, to identify a specific person or to make a specific person identifiable and specifically includes any and all data or information protected under applicable Data Protection Laws. “Data Protection Laws” mean collectively any applicable data protection, privacy or similar laws applicable to the processing of personal data in the jurisdiction where any of Seller’s performance under this Agreement occurs and/or applicable to the Personal Data processed as part of the parties performance hereunder.
(a) By accepting the Purchase Order, Seller warrants that the Goods and Services furnished will be free from defects in materials and workmanship, merchantable and in full conformity with Buyer’s specifications, drawings and data, and Seller’s descriptions, promises or samples, and that such Goods and Services will be fit for Buyer’s intended use, and that Seller will convey good title to the Goods, free and clear from all liens, claims, and encumbrances. Upon Buyer’s request, Seller shall furnish Buyer with a formal waiver or release of all liens by Seller and/or Seller’s suppliers or Permitted Subcontractors. Services performed by Seller shall be provided in a “good and workmanlike manner”. Seller further warrants, all Goods and Services will be manufactured, procured, or provided in accordance with all applicable laws.
(b) Seller warrants that Goods or Services covered by this Agreement shall not infringe any patent, design, mask work, copyright or trademark of any third party, either directly or contributorily. Seller agrees to indemnify Buyer and hold Buyer harmless from and against all liability, loss, damage and expense, including reasonable counsel fees and costs of litigation, resulting from any claim of infringement and any litigation relating thereto. Such obligations shall survive acceptance of the Goods or Services and payment therefore by Buyer
(c) The warranties set forth in this Section 8 are cumulative and in addition to any other warranty provided by other agreement, law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods or Services with the foregoing warranties. If Buyer gives Seller notice of noncompliance, Seller shall, at its own cost and expense, promptly (i) replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer, and, if applicable, (ii) repair or re-perform the applicable Services
General Indemnification. Seller shall defend, indemnify and hold harmless Buyer and Buyer’s parent company, their subsidiaries, affiliates, successors or assigns and their respective managers, directors, officers, owners, employees, representatives, insurers, successors and assigns (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the Goods and Services purchased from Seller, or Seller’s or its employees’, contractors’ or agents’ negligence, willful misconduct or breach of the Agreement. Seller shall, at its expense, defend, indemnify and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnitee’s use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
Limitation of Liability. Nothing in this Agreement shall exclude or limit (a) Seller’s liability under Sections 8, 9, and 15 hereof, or (b) Seller’s liability for fraud, personal injury or death caused by its negligence or willful misconduct.
Insurance. Supplier, at its own expense, agrees to maintain in full force and effect, without interruption during the term of the Agreement, the following minimum levels of insurance:
(a) Worker’s Compensation insurance covering the legal liability of the Supplier under the applicable worker’s compensation or occupational safety laws for claims for bodily injuries and death resulting there from to the Supplier and its’ employees. The Supplier shall also obtain a minimum of $1,000,000 of Employers Liability or Stop Gap Insurance. Certificates of Insurance must include a waiver of subrogation in favor of Purchaser.
(b) Commercial General Liability insurance on an occurrence form covering the legal liability (including for liability assumed contractually, whether incidental or not) of the Supplier, for claims for personal injuries (including death) and property damage resulting therefrom arising out of the services to be performed by the Supplier, in an amount not less than $1,000,000 for any one occurrence, $2,000,000 general aggregate, $2,000,000 Products/Completed Operations aggregate limit, and $5,000 Medical payments. Commercial General Liability, insurance shall be obtained and shall include broad form contractual liability coverage, products/completed operations, cross liability, severability of interest and broad form property damage (if required). Purchaser shall be named as an additional insured on such Commercial General Liability policy regarding liability arising out operations performed under this Agreement.
(c) Business Automobile Liability insurance covering the legal liability (including liability assumed contractually, whether incidental or not) of the Supplier who may be engaged in services, for claims for personal injuries and death resulting there from and for property damage to other than the Supplier, caused by highway licensed vehicles of or used by Supplier or its employees in an amount of not less than: $1,000,000 Combined Single Limit for “owned” autos, $1,000,000 Uninsured/Underinsured coverage, $1,000,000 Non-Owned and Hired Automobile Liability, $5,000 Medical Payments. Purchaser shall be named as an additional insured on such policy.
(d) The Supplier’s insurance shall be “primary and non-contributing.” Any insurance or self-insurance maintained by Purchaser shall be excess of the Supplier’s insurance. Supplier shall require its insurer to notify Purchaser in writing thirty (30) days prior to the effective date of any cancellation or material change in any required policies.
Compliance with Law; Business Associate Addendum.
(a) General Compliance with Law. Seller shall comply with all applicable laws, regulations and ordinances. Seller shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Seller will be liable to Buyer for all loss, cost and expense incurred by Buyer and any of its affiliates or customers attributable to any act or omission by the Seller resulting from the failure to comply with applicable laws, including, but not limited to, any fines, penalties or corrective measures.
(b) HIPAA Compliance. To the extent that Seller, through its employees or agents, is acting as a Business Associate (as defined in 45 C.F.R. § 160.103) of Buyer with respect to the Goods or Services under this Agreement, Seller’s use and disclosure of Protected Health Information (as defined in 45 C.F.R. § 160.103) shall comply with, and Seller agrees to be bound by, the terms and requirements set forth in the BAA. The BAA may be revised or modified from time to time in Buyer’s sole discretion, and Seller agrees to promptly execute, and to cause its Permitted Subcontractors to promptly execute, any revised or modified BAA
Termination. In addition to any remedies that may be provided under these Terms, Buyer may terminate this Agreement with immediate effect upon written notice to Seller, either before or after the acceptance of the Goods or Seller’s delivery of the Services, if Seller has not performed or complied with any of these Terms, in whole or in part. If Buyer terminates the Agreement for any reason, Seller’s sole and exclusive remedy is payment for the Goods and Services received and accepted accepted by Buyer prior to the termination.
(a) For Cause. If (i) Seller breaches any representation, warranty, covenant or other provision of this Agreement, or (ii) Seller becomes the subject of a voluntary or involuntary petition in bankruptcy or any proceeding relating to insolvency, receivership, liquidation, or composition for the benefit of creditors, a trustee or receiver of Seller’s business or assets is appointed by any court, or makes an assignment for the benefit of creditors, then Buyer may, at any time thereafter, terminate all or any part of this Agreement by written notice to Seller, and Buyer will have no liability or obligations whatsoever to Seller by reason of or resulting from such termination except as expressly set forth in Section 13(c).
(b) For Convenience. Buyer may at any time immediately terminate all or any part of this Agreement for convenience by giving written notice to Seller, and in such event Buyer will have no liability or obligations whatsoever to Seller by reason of or resulting from such termination except as expressly set forth in Section 13 (c).
(c) Effect of Termination. Effect of Termination. Termination of all or any part of this Agreement will not relieve the parties of any obligation accruing prior to such termination becoming effective. Buyer will not be liable to Seller for compensation, reimbursement or damages on account of any loss of prospective profits or anticipated sales, on account of expenditures, investments, leases or commitments made in connection herewith, or the anticipation of extended performance hereunder. If Buyer terminates this Agreement for any reason, Seller’s sole and exclusive remedy is payment for the Goods and Services received and accepted by Buyer prior to termination. Seller agrees that its sole remedy as a consequence of any termination under this Section 13 will be as set forth in this Section 13.
Waiver. No waiver by Buyer of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
Confidential Information. All non-public, confidential or proprietary information of Buyer, including but not limited to, Protected Health Information (as defined in 45 C.F.R. § 160.103), specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, trade secrets, customer lists, patient lists, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement, is confidential, shall be used by Buyer solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by Buyer in writing. Upon Buyer’s request, Seller shall promptly return or destroy all documents and other materials received from Buyer. The parties agree that a breach of this Section may result in irreparable and continuing damage to the non-breaching party for which there may be no adequate remedy at law, and such party is therefore entitled to seek injunctive relief as well as such other relief as may be appropriate, without the requirement of posting a bond. The parties hereby acknowledge and agree that the provisions of this Section shall survive the expiration and termination of this Agreement for any reason whatsoever.
Force Majeure. Neither party shall be liable to the other for any delay or failure in performing its obligations under this Agreement to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of such party, without such party’s fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable (“Force Majeure Event”). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemics, pandemics, war, invasion, hostilities, terrorist acts, riots, strikes, embargoes, or industrial disturbances. Seller’s economic hardship or changes in market conditions are not considered Force Majeure Events. Seller shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under this Agreement. If a Force Majeure Event prevents Seller from carrying out its obligations under this Agreement for a continuous period of more than 30 days, Buyer may terminate this Agreement immediately by giving written notice to Seller.
Assignment. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Buyer, not to be unreasonably withheld. For purposes of this Section, assignment shall include any merger, consolidation or other transfer by operation of law. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign or transfer any or all of its rights or obligations under this Agreement without Seller’s prior written consent.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Governing Law and Jurisdiction. This Agreement and all disputes arising hereunder or relating hereto are to be governed by the Laws of the State of Missouri, without regard to conflicts of law principles. All disputes arising out of this Agreement shall be subject to the exclusive jurisdiction of the state and federal courts located in St. Louis County, Missouri, and the parties agree and submit to the personal and exclusive jurisdiction and venue of such courts. THE PARTIES HERETO IRREVOCABLY WAIVE, TO THE FULLEST EXTENT PERMITTED BY LAW, ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THESE CONDITIONS, THE ORDER, OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY.
Attorneys’ Fees. In the event any party to this Agreement brings suit or other enforcement action to construe or enforce its terms, or raises this Agreement as a defense in a suit or other enforcement action brought by the other party, the prevailing party in such suit or action will be entitled to recover its attorneys’ fees and expenses from the other party.
Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the Purchase Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), electronic mail or facsimile (each with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section. A copy of each Notice to Buyer shall be sent c/o General Counsel, 15933 Clayton Rd., Suite 210, Ballwin, MO 63011, or to such other address as Buyer may provide to Seller via Notice.
Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Survival. Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: General Indemnification, Insurance, Compliance with Laws, Confidential Information, Consequences of Termination, Governing Law, Submission to Jurisdiction and Survival.
Amendment and Modification. This Agreement may only be amended or modified in a writing stating specifically that it amends this Agreement and is signed by an authorized representative of each party.