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Text of the page (random words):
urned at seller s expense if goods are rejected they will be held at seller s risk and expense and seller shall bear the risk of loss or damage to those goods until they are received by seller 4 4 title and risk of loss until the goods purchased pursuant to the order they are actually received by buyer seller shall retain title to those goods bear the risk of loss and be solely responsible for damage to the goods 5 warranties and liability 5 1 seller warranties seller warrants that all material work product and merchandise supplied under the order i shall strictly conform to all specifications drawings samples or other descriptions furnished to and approved by buyer ii shall be fit and serviceable for the purpose intended as agreed to by buyer and seller iii shall be of good quality and free from defects in materials and workmanship iv shall be new and not refurbished or reconditioned unless expressly agreed in writing by buyer and v shall not infringe any patent copyright mask work trademark trade secret or other intellectual property proprietary or contractual right of any third party a good title seller warrants that i buyer shall have good and marketable title to all goods and all components thereof purchased by buyer pursuant to the order ii upon delivery the goods shall be free and clear of all liens and encumbrances of any kind including purchase money security interests and iii no licenses are required for buyer to use such goods b services with respect to services seller warrants that all services shall be provided in a professional and workmanlike manner with a degree of skill and care consistent with current good and sound professional procedures c effect of receipt and payment neither receipt of material work product or merchandise nor payment therefor by the buyer shall ever be deemed to constitute a waiver of the above provisions or preclude buyer from enforcing the above provisions as written d return rights in the event that a breach of warranty occurs buyer may in its sole discretion and without waiving any of its other rights return for credit or require prompt correction or replacement of the nonconforming goods or services 5 2 intellectual property indemnity seller shall indemnify defend and hold buyer harmless against all claims liabilities losses damages costs and expenses including legal fees resulting from or arising in connection with any actual or claimed infringement of any patent copyright mask work trademark trade secret or other intellectual property proprietary or contractual right of any third party with respect to the goods or services provided under the order 5 3 buyer s damages without limiting buyer s rights and remedies at law or in equity buyer reserves the right to charge seller for any loss expense including reasonable attorneys fees or damage sustained as a result of seller s failure to deliver conforming goods or services or other breach of the order including without limitation expenses incurred in connection with buyer s purchase of substitute goods incidental damages and consequential damages resulting from seller s failure or breach 5 4 limitation of buyer s liability except to the extent expressly provided in these t cs or a written contract i buyer shall not be liable to seller its employees representatives agents suppliers or subcontractors for any anticipated profits any incidental damages or any consequential damages ii under no circumstances shall buyer s liability for any claim arising directly or indirectly under or in connection with the order exceed the cost of the goods or services giving rise to the claim and iii buyer is not liable for penalties of any kind 6 dispute resolution 6 1 in general these dispute resolution provisions may be modified by the parties in writing nothing herein prevents the parties from utilizing mediation if they so agree as used below the amount of a party s requested claim or counterclaim excludes i interest ii the monetary value of injunctive relief sought iii any arbitration and arbitrator fees iv all costs disbursements and attorney fees and v damages not recoverable hereunder 6 2 claims of 150 000 or less court any claim arising out of or relating to these t cs or the contract between the parties or the breach thereof shall be resolved by a court under the provisions below whenever the parties claims and counterclaims are each 150 000 or less even if the aggregate exceeds that dollar threshold a exclusive jurisdiction venue the court proceeding must be commenced in a federal or state district court in the minneapolis st paul standard metropolitan statistical area and those courts shall have exclusive jurisdiction and venue to determine all legal and equitable disputes between the parties b seller consent to jurisdiction venue seller hereby i consents to the jurisdiction and venue of the above courts ii waives any right to contest the same or claim that those courts are inconvenient forums and iii agrees that those courts shall have exclusive jurisdiction and venue 6 3 claims above 150 000 arbitration except as otherwise stated in 6 2 above or 6 3 d or 6 3 e below any claim arising out of or relating to these t cs or the contract between the parties or the breach thereof shall be settled by binding arbitration administered by the american arbitration association aaa under the aaa s then existing commercial arbitration rules a aaa rules the expedited procedures of the aaa shall be used when the parties claims and counterclaims are each less than 500 000 even if the aggregate equals or exceeds that dollar threshold the procedures for large complex commercial disputes shall be used if either party s claim or counterclaim is at least 500 000 there shall be just one arbitrator b venue of proceeding the arbitration shall be in the minneapolis st paul standard metropolitan area in the aaa offices or another location therein selected by the arbitrator including his or her own offices c arbitrator s powers the arbitrator shall have all of the powers in the aaa rules including the ability to grant injunctive relief all jurisdiction issues shall be decided solely by the arbitrator not a court d indispensable parties upon motion by either party the arbitrator shall dismiss the proceeding without prejudice and costs when i the arbitrator cannot accord complete relief between the buyer and seller unless another party participates in the proceeding and ii that person refuses to participate in the arbitration proceeding hereunder if the arbitration gets dismissed suit may be commenced in accordance with 6 2 above notwithstanding any dollar limit therein e injunctive relief nothing above precludes either party from seeking injunctive relief from a court of law pursuant to 6 2 above when i no money damages are sought or ii the amount of money damages also being sought does not exceed the dollar threshold therein for all other situations see 6 3 c above 6 4 loser pays plaintiff is the prevailing party and defendant is the losing party whenever plaintiff is awarded i at least 67 of plaintiff s monetary demand and or ii a substantial portion of plaintiff s request for injunctive relief if plaintiff is awarded neither of the preceding then the prevailing party is defendant and the losing party is plaintiff a costs disbursements in all cases the losing party must pay all of the prevailing party s costs and disbursements including without limitation fees and expenses of expert witnesses however neither party may recover for time spent by its employees or any of their travel costs hotel charges meals or related items b arbitration expenses in arbitration proceedings the losing party must pay directly or provide reimbursement for i all aaa filing fees and other aaa charges and ii all of the arbitrator s fees and expenses c attorney fees in all cases the losing party shall pay the prevailing party s reasonable attorney fees and their expenses a contingency fee up to one third 1 3 shall be deemed to be reasonable 6 5 interest any claim by seller against buyer for a liquidated sum or by buyer against seller for a liquidated sum shall accrue interest at the rate of eighteen percent 18 or if less at the maximum legal rate of interest 6 6 collection costs until the award is paid in full interest shall accrue on the unpaid amount at the rate in 6 5 above in the event the full payment is not made within 30 days of the award the prevailing party shall be entitled to recover all of its reasonable collection coasts including additional attorney fees relating to collection of those unpaid amounts 7 miscellaneous 7 1 conduct of personnel while at any buyer location seller s personnel agents and subcontractors shall comply with all of the reasonable requests standard rules and regulations of buyer communicated to seller regarding personal and professional conduct including without limitation any security or privacy requirements and shall otherwise conduct themselves in a businesslike manner 7 2 use of buyer s name seller agrees not to use i buyer s name ii the name of any employee student or agent of buyer or iii any trademark service mark or trade name owned or controlled by buyer in any sales promotional advertising or other publication without the express prior written permission of buyer in no event shall seller or its employees agents or subcontractors represent themselves as employees or agents of buyer 7 3 compliance with laws seller represents and warrants that in the production and sale of goods to be delivered pursuant hereto and in the provision of services hereunder seller has complied with all applicable federal state and municipal laws and regulations including without limitation i all such laws and regulations pertaining to health safety and environmental standards ii all such laws and regulations pertaining to design manufacture testing labeling and transportation of such goods and iii all such laws and regulations which pertain to affirmative action nondiscrimination and or equal opportunity including without limitation the requirements of the fair labor standards act of 1938 as amended and the rules and regulations of the secretary of labor issued pursuant to executive order number 11246 of september 24 1965 seller also acknowledges buyer s supplier code of conduct 7 4 confidentiality seller shall preserve in strict confidence all confidential sensitive or proprietary information of buyer received from buyer confidential information whether or not marked proprietary or confidential and whether oral or written using the same degree of care as it takes to preserve and safeguard its own confidential or proprietary information but in no event less than a reasonable degree of care confidential information shall not include information that seller can demonstrate by written evidence was publicly available at the time of disclosure or was independently developed by seller without reference to confidential information seller will not i disclose or cause to be disclosed at any time any confidential information obtained from buyer or ii use or cause to be used any of such confidential information for any purpose except as required in the performance of the services required by the order seller represents warrants and covenants that it shall maintain physical electronic and procedural safeguards designed to 1 insure the security integrity and confidentiality of all confidential information 2 protect against any anticipated threats or hazards to the security integrity or confidentiality of confidential information and 3 protect against unauthorized access to or use or disclosure of confidential information 7 5 proprietary rights seller agrees that all work created by seller solely or in collaboration with others in the course of performing services under this agreement or designing or developing materials to be delivered including all intermediate and partial versions work product shall automatically be the sole property of buyer upon their creation or in the case of copyrightable works fixation in a tangible medium of expression and buyer shall own all rights including all proprietary and intellectual property rights title and interest seller hereby assigns to buyer all of its right title and interest in and to all of the work product and all copies of any of the foregoing including without limitation all copyright and other proprietary rights thereto throughout the world and all renewals and extensions 8 rules of construction 8 1 entire agreement the order represents the entire agreement between seller and buyer with respect to the goods and services described in the order 8 2 no assignment seller may not assign transfer or subcontract any part of the order without the prior written consent of buyer and any assignment in violation of this provision shall be null and void 8 3 severability if any provision of the order is determined to be invalid illegal or unenforceable the remaining provisions of this agreement remain in full force if the essential terms and conditions of this agreement for each party remain valid binding and enforceable 8 4 waiver no waiver by buyer of any provision of the order or any breach hereunder shall be deemed a waiver of any other provision or subsequent breach nor shall any such waiver constitute a continuing waiver delay or failure of buyer to insist on strict performance of any provision of the order or to exercise any rights or remedies hereunder shall not be deemed a waiver 8 5 meaning of certain terms unless the context clearly requires otherwise all words used in these t cs in the singular include the plural and all words used in the plural include the singular unless the context clearly requires otherwise whenever the following terms are used in these t cs they mean the following a include and its derivatives are used in these t cs in an illustrative sense not a limiting one and thus has the same meaning as the phrase including but not limited to b signed means i an original signature ii a fax copy with a manual signature iii any signature affixed to a writing that is then scanned and sent by email or other electronic communication and or iii any signature satisfying the electronic signatures in global and national commerce act esigns 15 u s c chap 96 or any state law that is applicable to that instrument c writing includes i traditional paper documents ii information that is inscribed on a tangible medium and iii information that is stored in an electronic or other medium and is retrievable in a perceivable form including without limitation an email 8 6 buyer s authorized representative the only buyer representatives with authority to modify these t cs are i its vice president general counsel and ii its other executive officers no such authority is held by sales personnel purchasing officials or other employees and a purported medication by them has no force or effect 8 7 choice of law all matters arising under or relate...