Insultech Standard Terms of Purchase 2018
1.0 ACCEPTANCE OF TERMS. Seller shall comply with all terms set forth herein and in the Purchase Order, to which these terms are attached and/or are expressly incorporated by reference (collectively, the “Order”), including amendments, specifications and other documents referred to in this Order. Unless otherwise stated on the face of the Order or in a separate written supply agreement between the parties, the terms herein shall prevail over conflicting terms. Reference in the Order to any such offers to sell, quotations or proposals shall in no way constitute a modification of any of the terms of the Order, which shall always prevail over any such offers, quotations or proposals. ANY ACCEPTANCE OR ACKNOWLEDGMENT OF THE ORDER BY SELLER (INCLUDING BEGINNING PERFORMANCE OF ANY OF THE WORK OR ACTIVITIES CALLED FOR IN THE ORDER SHALL BE DEEMED AS A FULL ACCEPTANCE BY SELLER OF THE ORDER.
2.0 PRICES, PAYMENTS AND QUANTITIES
2.1 Prices & Taxes. All prices are firm. No additional charges of any kind will be allowed unless specifically agreed in writing by Buyer in an Order revision pursuant to Section 6. Seller’s prices include all taxes, fees and/or duties applicable to the goods and/or services, as well as Deliverables, purchased under this Order.
2.2 Payments. (a) Buyer is not obligated to purchase any quantity of goods and/or services except for such quantity(ies) as may be specified either: (i) on the face of the Order; or (ii) on a separate written release issued by Buyer pursuant to the Order. Unless otherwise stated on the face of the Order or prescribed by Law, payment terms are net due 60 calendar days from the later of (a) the date of receipt of a valid invoice by Buyer or (b) the receipt of conforming goods and/or services by Buyer. Seller’s invoice shall in all cases bear the Order number and shall be issued no later than ninety (90) days after receipt of the goods by Buyer and/or Seller’s completion of the services.
2.3 Quantities. (a) General. Unless otherwise agreed to in writing by Buyer, Seller shall not make material commitments or production arrangements in excess of the quantities specified in the Order or release and/or in advance of the time necessary to meet Buyer’s delivery schedule. (b) Cessation of Production/Replacement Parts: Seller shall give Buyer at least 180 calendar days’ prior written notice of the permanent discontinuance of production of any goods purchased hereunder and/or necessary for the production/provision of goods and/or services hereunder. The foregoing obligation shall survive termination or expiration of this Order for one calendar year.
3.0 DELIVERY AND PASSAGE OF TITLE.
3.1 Time is of the essence of this Order. Seller shall deliver all goods and services, including Deliverables within Buyer’s delivery schedule as set forth in the Order. If Seller for any reason anticipates difficulty in complying with the required delivery date or in meeting any of the other requirements of this Order, Seller shall promptly notify Buyer in writing. Unless otherwise stated on the face of the Order, if Seller fails to deliver all the goods and related documents (including, but not limited to, drawings, certificates,, manuals and quality documents and/or complete the services as scheduled, Seller shall pay 1% of the total amount of the Order per week or part of the week of delay, up to 15% of the total value of the Order. The parties agree that such amounts are a reasonable pre-estimate of the damages Buyer will suffer as a result of delay based on circumstances existing at the time the Order was issued and are to be assessed as liquidated damages and not as a penalty. However, the parties agree that it is not possible for them to estimate or calculate the damages that Buyer may suffer as a result of delays exceeding 15 weeks; accordingly, for any delay exceeding 15 weeks, Buyer shall be entitled to recover any documented additional damages that Buyer incurs as a result of Seller’s additional delay. In this context, Seller hereby acknowledges that the goods and/or services it provides hereunder may be linked to or a part of a back-to-back supply obligation of Buyer with its customer(s). Unless expressly agreed to the contrary in writing, Buyer’s remedies are cumulative and Buyer shall be entitled to pursue any and all remedies available under applicable Law, contract and/or equity, including but not limited to Buyer’s right to terminate this Order for default. Furthermore, if Seller does not comply with Buyer’s delivery schedule, Buyer may require delivery by fastest method at Seller’s cost.
3.2 Unless otherwise stated on the face of the Order: (a) goods shipped to Buyer’s dock shall be delivered DDP (Buyer’s designated site). All delivery designations are INCOTERMS 2015. Title shall be transferred to Buyer upon delivery. Goods delivered to Buyer in advance of schedule may be returned to Seller at Seller’s expense. Buyer may specify contract of carriage and named place of delivery in all cases. As requested by Buyer, Seller shall provide to Buyer, via the packing list and the customs invoice (as applicable), the country of origin and the appropriate export classification codes including, if applicable, the Export Control Classification Number (“ECCN”) and the Harmonized Tariff Codes of each and every one of the goods delivered pursuant to this Order, in sufficient detail to satisfy any applicable trade preferential or customs agreements. Seller understands that its failure to comply with any such Buyer specifications and other requirements shall cause all resulting transportation charges and other damages to be for the account of Seller and give rise to any other remedies available at law, contract and/or equity.
3.3 Seller shall include with the packing list for each shipment a detailed, complete bill of material/parts list (“BOM”) that lists each component of the goods purchased by Buyer and indicate which components of the BOM are and are not included in the shipment. Such BOM shall be included with the packing list for each shipment. When requested by Buyer, Seller shall provide a packing list with values for each item.
3.4 If goods cross an international border, Seller shall perform customs clearance as per the applicable Incoterm and provide a copy of the export declaration together with the commercial invoice.
4.0 BUYER’S PROPERTY.
4.1 Buyer’s Tools, Equipment and Other Property. Buyer assumes no obligation to furnish Seller with any tools, equipment or materials for the performance of this Order, except as may be expressly provided otherwise. Such tangible and intangible property (including information, data, tools, materials, drawings, computer software, know-how, documents, trademarks, copyrights, equipment or other material) furnished by Buyer shall be and remain Buyer’s property and shall be accepted and used by Seller, including its Subcontractors and the rest of the Seller Group, in “AS IS” and “WHERE IS” condition, with all faults and without any warranty whatsoever, express or implied. Seller shall use such property at its own risk. Such property and, whenever practical, each individual item thereof, shall be plainly marked or otherwise adequately identified by Seller as Buyer’s property, safely stored separate and apart from Seller’s property, and properly maintained by Seller. Seller shall use Buyer’s property only to perform this Order or other Buyer’s orders, and shall not use it, disclose it to others or reproduce it for any other purpose whatsoever. Such property, while in Seller’s care, custody or control, shall be held at Seller’s sole risk.
4.2 Intellectual Property. Seller retains ownership of all intellectual property it owned before or developed independent of this Order. Seller hereby grants Buyer an irrevocable, non-exclusive and royalty-free license to make, have made, use, and sell products and services embodying any and all intellectual property which may be used, made, conceived, or actually reduced to practice in connection with the performance of an Order. If Buyer furnishes specifications, requirements, designs, Confidential Information, data, or other intellectual property (collectively, “Designs”) to Seller for the manufacture of the goods or provision of services, then Seller acknowledges that Buyer is and remains the sole and exclusive owner of the Design, and all improvements, modifications, derivative works and intellectual property rights in them. Seller hereby assigns, and will cause Seller Group to assign, all improvements, modifications, derivative works and intellectual property rights in the Designs to Buyer or its designee. If the Order includes paid-for services (including other payment in kind) for development of technology, Seller also agrees to assign and deliver, and will cause Seller Group to assign and deliver, all intellectual property rights and materials related to the development to Buyer or its designee. “Buyer Intellectual Property” means: (i) Intellectual Property for all goods and/or services under the Order except what Seller owned prior to or developed independently of its obligations under the Order; (ii) Intellectual Property conceived, produced or developed by Seller, whether directly or indirectly or alone or jointly with others, in connection with or pursuant to Seller’s performance under the Order; and (iii) creations and inventions that are otherwise made by Seller through the use of Buyer’s or its Affiliates’ equipment, funds, supplies, facilities, materials and/or Confidential Information. Buyer grants Seller a non-exclusive, non-assignable, revocable license to use Buyer Intellectual Property and Confidential Information furnished to or accessed by Seller that is necessary for the sole purpose of performing the Order. Seller may not use, disclose, or reproduce Buyer Intellectual Property or Confidential Information for any other purpose. Seller agrees that it will neither apply for any registration of rights in any Buyer Intellectual Property nor oppose or object in any way to applications for registration thereof by Buyer or others designated by Buyer.
5.0 ON-SITE ACTIVITIES.
5.1 If any portion of the activities under this Order is performed by any member of the Seller Group in, on or near a site owned, run and/or operated by Buyer, its Affiliate(s) or a customer of Buyer or a Buyer Affiliate (each a “Site”) for longer than 10 consecutive calendar days or 14 cumulative days within a fiscal quarter, or involves access by any member of the Seller Group to any networks of Buyer, its Affiliates and/or its or their customers, then Seller warrants and represents that it shall verify such personnel’s identity, at its expense, before deploying or granting access to any member of the Seller Group, to the extent permitted by Law.
5.2 If any portion of the activities under this Order is performed by any member of the Seller Group in, on or near a Site, Seller shall defend, indemnify, release and hold harmless Buyer, its Affiliates and its or their customers, and its and their directors, officers, employees, agents, representatives, successors and assigns from and against any and all suits, actions or proceedings, at law or in equity, and from any and all claims, demands, losses, judgments, fines, penalties, damages, costs, expenses, or liabilities (“Claims”), which may arise in any way out of (a) injury to or death of any of the members of the Seller Group, (b) damage to the property of any of the members of the Seller Group, or (c) any environmental claim of whatsoever nature emanating from the equipment, premises and/or property of, or under the control of, Seller and/or other members of the Seller Group, REGARDLESS OF FAULT OR CAUSE INCLUDING, WITHOUT LIMITATION, PRE-EXISTING CONDITIONS, WHETHER SUCH CONDITIONS BE PATENT OR LATENT, THE UNSEAWORTHINESS OF ANY VESSEL OR VESSELS, IMPERFECTION OF MATERIAL, DEFECT OR FAILURE OF EQUIPMENT, BREACH OF REPRESENTATION OR WARRANTY (EXPRESS OR IMPLIED), ULTRAHAZARDOUS ACTIVITY, STRICT LIABILITY, TORT, BREACH OF CONTRACT, BREACH OF DUTY (STATUTORY OR OTHERWISE), BREACH OF ANY SAFETY REQUIREMENT OR REGULATION, OR THE NEGLIGENCE, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT OF ANY PERSON OR PARTY, INCLUDING THE INDEMNIFIED PARTY OR PARTIES, WHETHER SUCH FORM OF NEGLIGENCE BE SOLE, JOINT AND/OR CONCURRENT, ACTIVE OR PASSIVE, OR ANY OTHER THEORY OF LEGAL LIABILITY (hereinafter “REGARDLESS OF FAULT OR CAUSE”).
6.1 Buyer may at any time make changes within the general scope of this Order, and Seller shall not proceed to implement any change unless and until such change is provided in writing by Buyer in an Order revision. If any changes cause an increase or decrease in the cost and/or time required for the performance of any work under this Order, an equitable adjustment shall be mutually agreed in writing and reflected in the Order price and/or delivery schedule.
6.2 Seller shall notify Buyer in writing in advance of any and all: (a) changes to the goods and/or services, their specifications and/or composition; (b) material process changes; (c) material plant and/or equipment/tooling changes or moves; (d) transfer of any work hereunder to another site; and/or (e) material changes to its procurement of goods/services in connection with the Order, and no such change shall occur until Buyer has had the opportunity to conduct such audits, surveys and/or testing necessary to determine the impact of such change on the goods and/or services and has approved such change in writing. Seller shall be responsible for obtaining, completing and submitting proper documentation regarding any and all changes, including complying with any written change procedures issued by Buyer.
7. QUALITY AND AUDITS.
7.1 Inspection/Testing/Audits. In order to assess Seller’s work quality, conformance with Buyer’s specifications and compliance with Laws and the terms of this Order, upon reasonable notice by Buyer: (a) all goods, materials, drawings and services related in any way to the goods and services purchased hereunder shall be subject to inspection and test by Buyer, its Affiliates, its or their relevant customers and/or its or their representatives (each of the foregoing, an “Inspector”) at all times and places, including locations where the goods and services are created or performed, whether they are at premises of Seller, Seller’s Subcontractors or elsewhere.
7.2 Quality. Seller shall provide and maintain an inspection, testing and process control system (“Seller’s Quality System”) that is acceptable to Buyer and complies with Buyer’s quality policy and/or other quality requirements set forth on the face of the Order or are otherwise agreed to in writing. Acceptance of Seller’s Quality System by Buyer shall not alter the obligations and liability of Seller under this Order. Seller shall keep complete records relating to Seller’s Quality System and related data and shall make such records available to Buyer for: (a) 5 years after completion of this Order; (b) such period as set forth in the specifications applicable to this Order; or (c) such period as required by Law, regulation, code or accounting rules, whichever period is the longest.
7.3 Product Recall. (a) If a recall is required by Law, any governmental agency or court having jurisdiction, or Buyer or Seller reasonably determines that the goods create a potential safety hazard or unsafe condition and as a result that a recall is advisable, the parties shall promptly communicate such facts to each other. To the maximum extent permitted by Laws and/or competent governmental agencies, Buyer shall have the right to determine whether a voluntary recall of the affected goods is warranted or advisable. Seller and Buyer shall cooperate with and assist each other in any corrective actions and/or filings. (b) To the extent a recall is determined to have been caused by a defect, non-conformance or non-compliance that is the responsibility of Seller, Seller shall reimburse and hold harmless Buyer from all reasonable costs and expenses incurred in connection with any recall, repair, replacement or refund program, including all costs related to: (i) investigating and/or inspecting the affected goods; (ii) notifying Buyer’s customers; (iii) repairing, or where repair of the goods is impracticable or impossible, repurchasing or replacing the recalled goods; (iv) packing and shipping the recalled goods; and (v) media notification.
7.4 Escapes. (a) “Escape” means a good or service received by Buyer in a non-conforming manner and for which the nonconformance is not detected prior to the good or service leaving a Buyer facility. For each Escape that Buyer determines is a result of the delivery of non-conforming goods by Seller, Seller may be assessed and obligated to pay Buyer liquidated damages in the amount of USD 1500 (or the equivalent amount in the currency in which Buyer pays Seller) to cover the costs and expenses associated with administrative processing of the non-conforming goods. Such assessment may be credited by Buyer against any amount due and owing Seller. Seller shall have the right to prove to Buyer that no such administrative costs and expenses were incurred by the delivery of the non-conforming goods or that such costs and expenses actually incurred by Buyer were significantly lower than the assessment. (b) Buyer does not waive and specifically reserves the right to claim any damages (including actual, incidental, and/or consequential damages, or any other damages to which it may be legally entitled under applicable law or this Order) in addition to the amount of the assessment and pursue other remedies, such as the cost of the replacement goods.
8. REJECTION. If any of the goods and/or services furnished pursuant to this Order are found within a reasonable time after delivery to be defective or otherwise not in conformity with the requirements of this Order, including any applicable drawings and specifications, whether such defect or non-conformity relates to scope provided by Seller or any of its Subcontractors, then Buyer, at its discretion and at Seller’s expense may reject and return all or any portion of such goods and/or services as well as any other remedies available at law or in equity, including but not limited to the remedies listed in 9.3, below. For any repairs or replacements, Seller, at its sole cost and expense, shall perform any tests reasonably requested by Buyer to verify conformance to this Order.
9.1 Seller warrants that all goods and services provided pursuant to this Order, whether provided by Seller or any of its Subcontractors, will: (a) be new and of merchantable quality; (b) be free from all defects in design, workmanship, material and title, and Seller will cause any lien or encumbrance asserted to be discharged, at its sole cost and expense, within 15 calendar days of its assertion (provided such liens do not arise out of Buyer’s failure to pay amounts not in dispute under this Order); (c) be provided in strict accordance with all requirements, regulations, codes, standards, specifications and other requirements approved or provided by Buyer; (d) be provided/performed in a competent and professional manner in accordance with the highest standards and best practices that apply in Seller’s industry; and (e) not infringe any intellectual property right.
9.2 The foregoing warranties shall apply for a period of: (a) 24 months from the date when goods are put into operation or (b) 48 months from delivery of the goods or performance of the services, plus delays attributable to Seller’s actions such as those due to nonconforming goods and services, whichever occurs last.
9.3 If any of the goods and/or services are found to be defective or otherwise not in conformity with the warranties in this Section during the warranty period, then Buyer, 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 discretion and at Seller’s expense may: (a) require Seller to inspect, remove, reinstall, ship and repair or replace/re-perform nonconforming goods and/or services with goods and/or services that conform to all requirements of this Order; (b) take such actions as may be required to cure all defects and/or bring the goods and/or services into conformity with all requirements of this Order, in which event all related costs and expenses and other reasonable charges shall be for Seller’s account; (c) reject and return all or any portion of such goods and/or services and/or (d) withhold total or partial payment. Any repaired or replaced good, or part thereof, or re-performed services shall carry warranties on the same terms as set forth above, with the warranty period being the greater of the original unexpired warranty or 24 months after repair or replacement.
10. SUSPENSION. Buyer may suspend performance of all or any part of the Order at any time by notice to Seller. Upon receiving notice, Seller shall promptly suspend work to the extent specified, properly protect all work in progress and materials. Buyer may at any time withdraw the suspension as to all or part of the suspended work by written notice. Seller shall resume diligent performance on the specified effective date of withdrawal. Claims for cost or time resulting from suspension shall be resolved in accordance with Section 6.
11.1 Termination for Convenience. Buyer may terminate all or any part of this Order without cause by ten 10 days’ written notice to Seller. Upon termination (other than due to Seller’s insolvency or default including any failure to comply with this Order), Buyer and Seller shall negotiate reasonable termination costs consistent with costs allowable under Section 6 and identified by Seller within 30 calendar days of Buyer’s termination notice to Seller, unless the parties have agreed to a termination schedule in writing. Buyer shall have the right to terminate at no cost all Orders with delivery lead times of 60 calendar days or longer by providing written notice within 14 calendar days of Seller’s final Order acceptance.
11.2 Termination for Default. Except for delay due to causes beyond the control and without the fault or negligence of Seller or any of its Subcontractors (lasting not more than 60 calendar days), Buyer, without liability, may by written notice of default, terminate the whole or any part of this Order if Seller: (a) fails to perform within the time specified or in any written extension granted by Buyer; (b) fails to make progress which, in Buyer’s reasonable judgment, endangers performance of this Order in accordance with its terms; and/or (c) fails to comply with any of the terms of this Order. Such termination shall become effective if the Seller does not cure such failure within 10 calendar days of receiving notice of default or immediately if such breach is incapable of cure. Upon termination, Buyer may procure at Seller’s expense and upon terms it deems appropriate, goods or services comparable to those so terminated. Seller shall continue performance of this Order to the extent not terminated and shall be liable to Buyer for any excess costs for such comparable goods or services. As an alternate remedy and in lieu of termination for default, Buyer, at its sole discretion, may elect to extend the delivery schedule and/or waive other deficiencies in Seller’s performance. Buyer’s rights and remedies in this clause are in addition to any other rights and remedies provided by Law, equity or under this Order.
11.3 Termination for Insolvency/Prolonged Delay. If Seller ceases to conduct its operations in the normal course of business or fails to meet its obligations as they mature or if any proceeding under bankruptcy or insolvency Laws is brought by or against Seller, a receiver for Seller is appointed or applied for, an assignment for the benefit of creditors is made or an excused delay (or the aggregate time of multiple excused delays) lasts more than 60 calendar days, Buyer may immediately terminate this Order without liability to the fullest extent permitted by the Governing Law, except for goods or services completed, delivered and accepted within a reasonable period after termination (which will be paid for at the Order price).
11.4 Obligations on Termination. Unless otherwise directed by Buyer, after receipt of a notice of termination of this Order, Seller shall immediately: (a) stop work as directed in the notice; (b) place no further subcontracts or purchase orders, except as necessary to complete any continued portion of this Order; (c) terminate all subcontracts to the extent they relate to work terminated and (d) deliver to Buyer all completed work and work in process, including all designs, drawings, specifications, other documentation and material required or produced in connection with such work, and all of Buyer’s Confidential Information as defined in Section 16.
12.INDEMNITY. Seller shall defend, indemnify, release and hold harmless Buyer and its Affiliates against any and all Claims and liabilities arising from this Order, REGARDLESS OF FAULT OR CAUSE, but, except as provided in Section 5.2, excluding claims and liabilities to the extent they are attributable to the gross negligence of Buyer.
13. ASSIGNMENT AND SUBCONTRACTING. Seller may not assign or novate (including by change of ownership or control, by operation of Law or otherwise) this Order or any interest herein, including payment, without Buyer’s prior written consent. Seller shall not subcontract or delegate performance of all or any substantial part of the work called for under this Order without Buyer’s prior written consent. Any assignee/novatee of Seller shall be bound by the terms and conditions of this Order. Seller shall not utilize any Subcontractors who are likely to interface with any government official in providing the work called for under this Order to or on behalf of Buyer without the prior written approval of Buyer. Buyer may freely assign this Order to any third party or Affiliate.
14. COMPLIANCE WITH LAWS. As a material element of this Order, Seller Covenants that it will comply with: (a) all Laws; and (b) good industry practices, including the exercise of that degree of skill, diligence, prudence and foresight which can reasonably be expected from a competent seller who is engaged in the same type of service or manufacture under similar circumstances. Seller holds the full responsibility of compliance with this document and to determine all the country/local applicable installation requirements, regulations, other requirements, codes and standards that relate in any way to the scope of supply, and comply with the foregoing. Seller’s non-compliance with country/local applicable installation requirements, regulations, other requirements, codes and standards shall be considered a breach of the warranties in Section 9.
15. CONFIDENTIALITY AND PUBLICITY. “Confidential Information” means any Buyer’s or a Buyer Affiliate’s property furnished to or obtained by Seller Group in connection with the Order (including, any drawing, specification, data, goods or information), and any information derived from them. Confidential Information also includes the terms of the Order. During the term of this Order and 10 years after this Order terminates, and for as long as Confidential Information remains a trade secret for Confidential Information that is a trade secret, the Seller Group (a) will use the information only for performing the Order; (b) protect the Confidential Information with at least a reasonable standard of care to prevent disclosure of the Confidential Information; (c) promptly notify Buyer if any of its Confidential Information is disclosed in breach of this Order; (d) make copies of Confidential Information only as required to perform the Order and all permitted copies must be marked “GE Confidential – Do Not Use, Disclose, Reproduce or Distribute without Seller Permission”; (e) and stop using and promptly return or destroy all Confidential Information and copies thereof (except the terms of the Order) upon termination of this Order or upon Buyer’s request. The Seller Group may destroy all Confidential Information contained on system backup media according to the Seller’s backup policy. Seller may disclose Confidential Information to a Seller’s employees who has a need to know and who are bound in writing to confidentiality obligations and use restrictions at least as restrictive as in this Order. Seller may also disclose Confidential Information to comply with a legal obligation, but only after promptly notifying Buyer of its disclosure obligation so that Buyer may seek an appropriate protective order. Confidential Information does not include information that can be shown by written evidence that: (a) is or becomes publicly available other than as a result of disclosure by Seller Group; (b) was available on a non-confidential basis to Seller Group before its disclosure to Seller Group; (c) is or becomes available to Seller Group on a non-confidential basis from a source other than Buyer or its Affiliates, or (d) was independently developed by Seller, without reference to the Confidential Information. The confidentiality terms of this Order supersede the terms of any prior non-disclosure agreement (“NDA”) concerning pre-Order negotiations with regard to all Confidential Information disclosed under the prior NDA. Except to the extent required by Law, Seller or its Group shall not release information with respect to the existence or terms of this Order or any related document and shall not use the name, logo, trademarks, photographs or any reference to Buyer or its Affiliates in advertising, marketing, public relations or similar publications without the prior written authorization of a duly authorized representative of Buyer or the relevant Buyer Affiliate.
16. INTELLECTUAL PROPERTY INDEMNIFICATION. Seller shall indemnify, defend and hold Buyer and its Affiliates and their clients, employees, officers, directors, representatives, and agents harmless from and against any suit, claim or proceeding (and all costs and expenses related thereto) arising out of any actual or threatened infringement of any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right or any litigation based thereon, with respect to any good or service (or part thereof) or the use of any good or service provided under the Order.
17. MARKING. Seller shall ensure its packing, preservation and marking is in accordance with the specification drawings and any specifications that apply to the Order, or if not specified, with the best commercially accepted practices, and at a minimum with Laws.
18. GOVERNING LAW. This Order shall in all respects be governed by and interpreted in accordance with the substantive laws of the State of California, U.S., excluding its conflicts of law provisions.
19. WAIVER. No claim or right arising out of a breach of this Order can be discharged in whole or in part by a waiver or renunciation unless supported by consideration and made in writing signed by the aggrieved party. Either party’s failure to enforce any provisions hereof shall not be construed to be a waiver of a party’s right thereafter to enforce each and every such provision.
20. ENTIRE AGREEMENT. This Order is intended as a complete, exclusive and final expression of the parties’ agreement with respect to the subject matter herein and, unless otherwise expressly agreed in writing between the parties, supersedes any prior or contemporaneous agreements, whether written or oral, between the parties. The invalidity, in whole or in part, of any of the foregoing articles or paragraphs of this Order, or any part thereof, shall not affect the remainder of such sentences, articles or paragraphs or any other sentences, article or paragraph of this Order, which shall continue in full force and effect. Further, the parties agree to give any such article or provision deemed invalid, in whole or in part, a lawful interpretation that most closely reflects the original intention of Buyer and Seller. All provisions or obligations contained in this Order, which by their nature or effect are required or intended to be observed, kept or performed after termination or expiration of an Order will survive and remain binding upon and for the benefit of the parties, their successors (including without limitation successors by merger) and permitted assigns.