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Standard Purchase Order Terms and Conditions
(“Agreement”)
1.
Applicability: THE TERMS AND CONDITIONS CONTAINED IN THIS AGREEMENT SHALL APPLY ONLY IN THE EVENT THAT
CONTRACTOR AND BUYER ARE NOT PARTIES TO ANY OTHER AGREEMENT (“SUPPLY AGREEMENT”) IN EFFECT
PURSUANT TO WHICH BUYER MAY ENTER INTO CONTRACTS FOR CONTRACTOR TO SUPPLY MATERIALS AND/OR
SERVICES DESCRIBED IN A PURCHASE ORDER ISSUED BY BUYER AND ACCEPTED BY CONTRACTOR, INCLUDING, BUT
NOT LIMITED TO, ANY MASTER SERVICES AGREEMENT OR ALLIANCE AGREEMENT. IN THE EVENT ANY SUCH SUPPLY
AGREEMENT EXISTS, THAT SUPPLY AGREEMENT SHALL GOVERN CONTRACTOR’S SUPPLY OF SERVICES AND/OR
MATERIALS TO BUYER PURSUANT TO ANY PURCHASE ORDER BETWEEN BUYER AND CONTRACTOR.
2.
Contract and Parties: This Agreement along with the applicable Purchase Order is a binding contract (“Contract”) for the purchase of
Materials and/or Services between the Persons listed as “Buyer” and “Contractor” in the applicable Purchase Order. If there is a
conflict between the terms and conditions set forth in this Agreement and the applicable Purchase Order, the terms and conditions set
forth in the Purchase Order shall govern the Contract. This Agreement requires Contractor to provide the Materials and/or Services on
a non-exclusive basis solely under the written terms contained in the Contract. The terms and conditions of the Contract shall
determine the rights of the Parties under that Contract regardless of contrary or additional terms in any rate schedules, work orders,
invoices, receipts or other documents which may flow from the Contract's performance. Buyer rejects any additional or contrary terms
and conditions contained in any such document, and Buyer’s signature on any invoice, rate sheet or other document shall not
constitute Buyer’s consent to any terms and conditions contained therein. This Agreement, the Purchase Order, and the Contract may
be amended, modified or changed only by a written amendment that is signed by an authorized representative of each Party. Buyer
expressly disclaims any unsigned amendments, alterations or modifications.
3.
Definitions: As used in this Agreement and the Purchase Order, except in those certain instances where the context expressly states
another meaning, the following terms and expressions shall have the following meanings:
"Affiliate" means any Person that directly, or indirectly through one or more intermediaries, controls or is controlled by or is under
common control with the specified Person. For purposes of this definition, "control" shall mean ownership, directly or indirectly, of fifty
percent (50%) or more of either the outstanding voting stock of the controlled Person or any other ownership interest in the controlled
Person if such interest has, directly or indirectly, the power to direct or cause the direction of the management and policies of such
relevant Person.
“Applicable Laws” means all applicable laws, regulations, ordinances and other rules of any federal, state, municipality, territory, parish,
county, local government or political subdivision thereof or any other duly constituted public authority having jurisdiction over
Contractor, the Facilities, the Materials, or the performance of the Services.
“Buyer Indemnified Parties" means Buyer, its parent and subsidiary companies as defined by the term “Affiliate,” and all of its and their
respective co-owners, partners, joint venturers, officers, directors, employees and agents.
"Claims" means all liabilities, judgments, costs (including court costs, reasonable attorneys’ fees and costs of investigation), fines,
penalties, expenses, damages, claims, suits and demands.
“Facilities” and “Site” are used interchangeably to mean means the facilities and/or location where the Services are performed.
“Materials” means all materials, parts and/or goods provided to Buyer by Contractor under the Purchase Order.
“Party” means either Buyer or Contractor. “Parties” shall mean both Buyer and Contractor.
“Person” means an individual, corporation, limited liability company, partnership, joint venture, unincorporated organization or any other
legal entity.
“Services” means those obligations to be performed by Contractor for Buyer pursuant to the Purchase Order.
“Subcontractors” means Contractor’s subcontractors and suppliers of any tier.
4.
Invoicing and Payment: Unless otherwise stated in the Purchase Order, Contractor shall invoice Buyer on or before the fifteenth
(15th) day of each month for all Services performed by Contractor during the prior month. All invoices must refer to the Purchase Order
number and shall include sufficient line item detail and supporting documents for Dynegy to reasonably verify the basis of the charges,
including quantities and pricing. Payment terms are net 60 days from the invoice date unless otherwise specified in the Purchase
Order. In the event of a dispute or question regarding any invoice submitted by Contractor, (i) all amounts not disputed or in question
shall be promptly paid as and when required by this section, (ii) Buyer shall promptly transmit to Contractor an explanation of the
dispute or question, (iii) Buyer and Contractor shall immediately seek to resolve the dispute or question, and (iv) payment of any
remaining amount shall be made within ten (10) days of when the dispute is resolved. Return of any invoice to Contractor for any
reason not attributable to Buyer's fault including, without limitation, improper invoicing by Contractor, will extend the discount period (if
applicable) and the payment period so that it commences on the date Buyer subsequently receives a proper invoice. Transportation
charges paid by Contractor for Buyer's account must be shown separately on invoices and Contractor shall provide supporting
documentation for transportation charges exceeding $50.
5.
Packaging and Shipping of Materials/Risk of Loss: Contractor shall: (i) efficiently and timely prepare Materials for pick up by the
transportation carrier; (ii) be responsible for proper packaging, labeling and preparation for shipment and all labeling shall be in full
compliance with all DOT, OSHA and Toxic Substances Control Act labeling requirements; (iii) include with each shipment or delivery a
Material Safety Data Sheet for each item for which a Material Safety Data Sheet is required by applicable law or regulations; and (iv)
conform to all Applicable Laws and regulations for the packaging, marking, handling and shipment of hazardous or dangerous
materials. All shipments of Materials shall be made either “F.O.B. Destination” or “F.O.B. Shipping Point” as designated in the
Purchase Order, and Contractor bears the risk of loss or damages to the Materials until they are delivered in conformity with the
Contract at the designated point, at which point title shall pass from Contractor to Buyer; however, passing of title shall not constitute
acceptance of the Materials by Buyer. Contractor shall not substitute any Materials that have been specified by Buyer without authority
from Buyer. All Materials furnished will be subject to Buyer's right of inspection and approval after delivery. Buyer reserves the right
(payment notwithstanding) to reject and return, at Contractor's risk and expense, that portion of any shipment that may be defective or
that fails to comply with Buyer’s specifications or the warranties set forth in the Contract. Neither acceptance nor payment by Buyer,
nor its inspection or failure to inspect, limits or excludes Buyer's express warranties provided for in the Contract or any warranties
implied by law or waives any of Buyer's rights or remedies. Contractor shall not charge Buyer for packing, crating, lumber, etc. unless
otherwise specified in the Purchase Order.
6.
Compliance with Laws and Safety Requirements: Contractor agrees to comply with all Applicable Laws, and shall have a safety
program that complies with all Applicable Laws and industry standards including, but not limited to, the application of OSHA safety and
health regulations 29 C.F.R. part 1926 and 29 C.F.R. part 1910, and shall require compliance of the foregoing by all Subcontractors
and suppliers at every tier. Further, Contractor agrees that the Materials and/or Services specified in the Purchase Order shall be or
have been manufactured or performed, priced and sold in accordance with all Applicable Laws, including without limitation, the fair
labor standards acts, the equal opportunity clause set forth in 41 C.F.R. section 60-1,4(a), and the affirmative action clauses set forth in
C.F.R. sections 60-250, 4-741.5. CONTRACTOR AGREES THAT IT IS STRICTLY LIABLE FOR AND SHALL, WITHOUT LIMIT
AND AT ITS OWN COST, INDEMNIFY, DEFEND AND HOLD HARMLESS THE BUYER INDEMNIFIED PARTIES FROM AND
AGAINST ALL CLAIMS RELATING TO A BREACH OF ANY APPLICABLE LAW.
7.
Warranties: Contractor represents and warrants that the Services will be performed in a good and workmanlike manner, in
accordance with all specifications for the Services set forth in the Contract, and in accordance with accepted industry practices
prevailing at the time and place where the Services are being rendered. Contractor further represents and warrants that any Materials
furnished under the Contract are free from defects in design, workmanship and materials, are in compliance with all specifications for
Materials set forth in the Contract, and that unless otherwise specified are new and have not been previously used. If prior to
completion of the Services or within one (1) year following the completion of the Services Buyer shall reasonably determine that: (i)
Contractor has not performed the Services or supplied Materials that are in accordance with the standards set forth in this section, or
(ii) Contractor has made a material error or omission in the performance of the Services, then Contractor, at its own expense, shall
promptly undertake and complete such corrective action as is necessary to remedy the error, omission, defect, or non-conformance. If
Contractor does not complete such required corrective action within sixty (60) days following receipt of written notice from Buyer that
such corrective action is required, then Buyer may either perform such corrective action itself or hire one or more third parties to
perform such corrective action and Contractor shall be liable to Buyer for the cost of such corrective action plus interest at the
maximum rate permitted by law from the time such costs are incurred by Buyer until such costs are repaid by Contractor. No
acceptance or payment by Buyer shall constitute a waiver of any of the foregoing warranties or Contractor’s obligations hereunder. All
manufacturer’s warranties and remedies applicable to Materials shall be assigned and transferred to Buyer and Contractor agrees to
fully assist and cooperate with Buyer in the enforcement of such warranties; provided, however, no such warranty shall in any way
relieve Contractor from its obligations to Buyer with regard to any warranty under this section.
8.
INDEMNITY: CONTRACTOR HEREBY ASSUMES THE ENTIRE LIABILITY FOR ITS OWN NEGLIGENCE AND FAULT AND THE
NEGLIGENCE AND FAULT OF ITS OWN EMPLOYEES AND/OR SUBCONTRACTORS. CONTRACTOR AGREES TO INDEMNIFY
AND SAVE HARMLESS THE BUYER INDEMNIFIED PARTIES FROM AND AGAINST ALL CLAIMS PREDICATED ON
CONTRACTOR’S, ITS OWN EMPLOYEES’ AND/OR ITS SUBCONTRACTORS’ NEGLIGENCE OR FAULT. THIS OBLIGATION TO
INDEMNIFY AND HOLD HARMLESS IS NOT TO BE LIMITED BY OR TO THAT SUM THAT CONTRACTOR OWES PURSUANT
TO THE WORKER’S COMPENSATION ACT AND ANY DEFENSES ALLOWING CONTRACTOR TO LIMIT ITS OBLIGATION FOR
CONTRIBUTION ARE HEREBY WAIVED. FURTHER, CONTRACTOR SHALL INDEMNIFY AND SAVE PURCHASER HARMLESS
FROM AND AGAINST ALL CLAIMS ARISING UNDER SECTIONS 6, 9 14 AND 15 AS STATED IN THOSE SECTIONS.
9.
Mechanic’s Liens: Contractor shall keep the premises and work free of all mechanic’s and materialmen’s liens, claims and
encumbrances. Contractor agrees that final payment shall not become due and payable to Contractor until Contractor shall deliver to
Buyer satisfactory releases, affidavits, satisfactions or waivers of all mechanic’s and materialmen’s liens, claims and encumbrances
relating to the performance of the Services if requested to do so by Buyer. Final payment to Contractor shall not relieve Contractor of
its obligation to discharge any lien filed before or after Contractor is paid for the Services and CONTRACTOR AGREES THAT IT IS
STRICTLY LIABLE FOR AND SHALL, WITHOUT LIMIT AND AT ITS OWN COST, INDEMNIFY, DEFEND AND HOLD HARMLESS
THE BUYER INDEMNIFIED PARTIES FROM AND AGAINST ALL CLAIMS FOR LIENS ARISING OUT OF THE PERFORMANCE
OF THE SERVICES.
10.
Termination for Default: Each of the following shall constitute an event of default under this Agreement and the Purchase Order (“Event of
Default”):
1)
Contractor shall fail in any material respect to comply with, observe, or perform, or shall default in any material respect, in the
performance of the Services or any of the terms and conditions of the Contract;
2)
Any representation made by Contractor hereunder shall be false or incorrect in any material respect when made;
3)
Contractor shall (a) apply for or consent to the appointment of a trustee, receiver, liquidator, custodian, or the like for itself or its
properties, (b) be unable, or admit in writing the inability, to pay its debts as they mature, (c) make a general assignment for the
benefit of its creditors, (d) commence a voluntary case under the chapter of the Bankruptcy Reform Act of 1978 or other applicable
legal requirement, or file a petition, answer, or consent seeking reorganization or an answer admitting the material allegations or a
petition filed against it in any bankruptcy, reorganization, or insolvency proceeding, or fail to controvert in a timely and appropriate
manner (or acquiesce in writing to) any such petition, or (e) take any action for the purpose of effecting any of the foregoing.
4)
A proceeding or case shall be commenced without the application or consent of Contractor in any court of competent jurisdiction
seeking: (a) its liquidation, reorganization of its debts, dissolution, winding-up or the composition or readjustment of its debts; (b)
the appointment of a receiver, custodian, liquidator or the like of all or any substantial part of its assets, or (c) similar relief under
any law relating to bankruptcy, insolvency, reorganization of debts, winding-up, composition or adjustment of debt, and such
proceeding shall remain in effect, for a period of one hundred twenty (120) days.
Upon the occurrence of an Event of Default, Buyer shall have the right to terminate this Agreement, any Purchase Order, and/or any
other contract between Buyer and Contractor, by delivery of written notice of such termination to Contractor, provided, however, if the
Event of Default results from circumstances specified in subparagraph 1) above, Contractor shall have ten (10) days following receipt
of such notice to cure the Event of Default, or if such Event of Default is not capable of being cured within such ten (10)-day period with
the exercise of reasonable diligence, then such cure period shall be extended for an additional reasonable period of time, not to exceed
thirty (30) days, so long as Contractor is exercising reasonable diligence to cure the default.
If this Contract is terminated pursuant to the preceding provision, the costs necessary for Buyer to complete the Services may, at
Buyer’s option:
(i) be deducted from the unpaid part, if any, of Contractor’s compensation under the Contract or any other contract between Buyer and
Contractor (“Contractor’s Compensation”); or
(ii) if such costs exceed the unpaid amount of Contractor’s Compensation or if Contractor is being compensated on a time and
materials basis, Contractor shall reimburse Buyer for all such costs within thirty (30) days of Contractor’s receipt of Buyer’s invoice for
same. In addition, Contractor shall refund to Buyer all prior payments made for Services under this Contract or any other contract
between Buyer and Contractor that do not meet the requirements of this Contract or such other contract(s) between Buyer and
Contractor. Upon termination, all rights and obligations under the terminated agreement(s) shall terminate and neither Party shall have
any further obligation or liability thereunder to the other Party except for liabilities arising prior to or upon termination thereof and any
other rights, obligations, or liabilities that expressly survive termination thereof .
11. Termination for Convenience: Buyer may terminate this Agreement, any Purchase Order, or Contract with Contractor at any time for
its sole convenience by giving Contractor at least thirty (30) days’ prior written notice of such termination. Upon receipt of such notice
of termination, Contractor shall, unless otherwise requested by Buyer: (ii) immediately stop performance of all Services; and
immediately cancel any orders and commitments related to the performance of Services or purchase or delivery of Materials. In the
event of such termination for convenience, Buyer shall pay Contractor as a termination charge that portion of the total consideration
specified in the Purchase Order equal to the portion of the Services completed, or Materials delivered, to Buyer's satisfaction prior to
such termination, together with Contractor's actual, reasonable, and verifiable direct costs, if any, incurred in terminating the Services
or contracts for Materials, less any payments made by Buyer prior to such termination. Contractor shall not be paid for any Services
performed after receipt of any notice of termination unless specifically requested by Buyer, or for any costs incurred by Contractor's
Subcontractors that Contractor could reasonably have avoided. Contractor shall have no further claim against Buyer on account of
such termination.
12. Force Majeure: In the event of either Party hereto being rendered unable, wholly or in part, by force majeure to carry out its obligations
under the Contract, other than to make payments then or thereafter due hereunder, it is agreed that on such Party giving notice and full
particulars of such force majeure in writing to the other Party as soon as possible after the occurrence of the cause relied on, then the
obligations of the Party giving such notice, so far as they are affected by such force majeure, shall be suspended during the continuance of
any inability so caused but for no longer period, and such cause shall as far as possible be remedied with all reasonable and diligent
dispatch by the Party claiming such in order to put itself in a position to carry out its obligations under the Contract. The term “force
majeure” shall mean any causes, whether of the kind herein enumerated or otherwise, not within the control of the Party claiming
suspension and which by the exercise of due diligence such Party could not have prevented including, but not limited to, any act of
God, any strike or labor dispute, any act or omission of any government authority, explosions, fire, riot, war, and in Buyer's case, its
need for the Services being reduced.
13. Confidentiality: In order for Contractor to provide Services and/or Materials under the Contract, it may be necessary for Buyer to disclose
to Contractor Buyer’s confidential or proprietary business or technical information (“Buyer Proprietary Information”). For a period of three (3)
years after the completion or termination of Services under the applicable Purchase Order, Contractor shall receive and maintain in strictest
confidence the Buyer Proprietary Information and all copies thereof, and all notes, analyses, studies and other documents prepared by
Contractor or its Representatives that contain or otherwise reflect the Buyer Proprietary Information (collectively the “Confidential
Information”) and will not disclose the Confidential Information to others, except as otherwise permitted under the terms of this section.
Contractor will not use Confidential Information for any purpose other than the performance of the Services and delivery of the Materials
and will disclose the Confidential Information only to those of its Representatives whom Contractor considers to have the need to know the
Confidential Information for such purposes of providing the Services, each of whom shall be informed of the confidential nature of the
Confidential Information and agree to comply with the terms of this section, and Contractor agrees to be responsible for any breach of
this section by such Representatives. For purposes of this Article, “Representatives” shall mean Contractor’s officers, employees, agents,
and Subcontractors.
The provisions of this section shall not apply to any portion of the Confidential Information:
that was developed by Contractor and in Contractor's possession prior to Contractor's first receipt thereof directly or indirectly from
Buyer;
that is now or hereafter becomes through no act or failure to act on Contractor's or any of Contractor’s Representative’s part generally
available on a non-confidential basis to the public;
that was heretofore or hereafter furnished to Contractor by a source other than Buyer as a matter of right without restriction on
disclosure; or
that is required by law to be publicly disclosed by Contractor; provided, however, that Contractor timely notifies Buyer of any such
requirement in order to provide Buyer a reasonable opportunity to seek an appropriate protective order, and, in the event such
protective order or other remedy is not obtained, Contractor agrees to furnish only that portion of the Confidential Information that
Contractor is legally required to furnish.
Contractor shall, upon Buyer’s request, return the Confidential Information to Buyer within thirty (30) days following receipt of Buyer’s
request or certify in writing by an officer or authorized agent of Contractor that the Confidential Information has been destroyed. This
provision shall be extended to and required of Contractor’s Subcontractors for the specific and expressed benefit of Buyer.
14. Intellectual Property; Claims for Infringement: All work product developed by Contractor under the Contract, including but not limited
to designs, technical data, reports, blueprints, drawings and customized tooling and dies, shall be Buyer's property and may be used,
disclosed, or transferred by Buyer in any manner it finds appropriate. Any and all work product shall be considered “Work for Hire” under
applicable U.S. Copyright laws and be turned over to Buyer upon request or upon completion or termination of Services under a Purchase
Order. Contractor will hold the same in confidence pursuant to the terms of the previous section and will not use same for any purpose
other than the performance of the Services.
All inventions, discoveries, and improvements, patentable and unpatentable, that are made or conceived by Contractor's personnel arising
out of the performance of the Services, including all patent rights therein and all copyrights in materials related thereto, both domestic and
foreign, shall belong to, and are hereby assigned and shall be assigned by Contractor, Subcontractor(s) and such personnel to Buyer or its
designee. Contractor and/or Contractor's personnel shall promptly and fully disclose all such inventions, discoveries and improvements to
Buyer and shall cooperate with Buyer or its nominee as may be reasonably required in order to obtain patent protection therefor, including
the signing of assignments of inventions and patent rights therein, and the signing of any property affidavits, declarations, patent
applications and the like. The general preparation and prosecution of patent applications shall be handled by Buyer or its nominee, at
Buyer's own expense. During such preparation and prosecution, Contractor and/or Contractor's personnel shall be consulted only on
technical features that may arise.
Contractor warrants that the Services and Contractor’s work product will not infringe on any copyright, patent, or trade secret.
CONTRACTOR SHALL INDEMNIFY, DEFEND AND HOLD HARMLESS THE BUYER INDEMNIFIED PARTIES AGAINST ALL
CLAIMS FOR ANY COPYRIGHT OR PATENT INFRINGEMENT OR MISAPPROPRIATION OF A TRADE SECRET, ARISING OUT OF
OR RESULTING FROM CONTRACTOR’S PERFORMANCE OF THE SERVICES, INCLUDING BUYER’S USE OF ANY DESIGNS OR
OTHER WORK PRODUCT DEVELOPED BY CONTRACTOR, AND CONTRACTOR SHALL REIMBURSE THE BUYER INDEMNIFIED
PARTIES FULLY FOR ANY ROYALTIES, DAMAGES OR OTHER PAYMENTS THAT A BUYER INDEMNIFIED PARTY SHALL BE
OBLIGATED TO PAY. In the event Buyer’s use of any work product developed by Contractor is interrupted as a result of such a claim,
then Contractor shall either (i) procure for Buyer, at no cost to Buyer, the right to continue using the infringing work product as though it
were non-infringing, or (ii) replace or modify the infringing work product with a work product that is non-infringing and that does not violate
the property rights of others. The Buyer Indemnified Parties shall have the right to be present and represented by counsel, at its own
expense, at all times during litigation or other discussions relating to claims under this provision. Neither Contractor nor a Buyer
Indemnified Party shall settle or compromise any such litigation without the consent of the other if such settlement or compromise obligates
the other to make any payment or part with any property or assume any obligation or grant any license or other rights or be subject to any
injunction by reason of such settlement or compromise.
If Buyer specifically so requests, Contractor, at its sole cost and expense, shall furnish a written opinion prepared by Contractor’s legal
counsel stating that any designs included in the Services do not infringe on patents in force, or pending. This provision shall be extended
to and required of Contractor’s Subcontractors for the specific and expressed benefit of Buyer.
15. Taxes: Contractor shall be fully responsible for all state and federal income taxes, pension benefits, social security taxes,
employment, disability and other customary insurance and for any other taxes or payments which may be due and owing by Contractor
or which are the result of fees or amounts paid by Buyer to Contractor under the Contract. CONTRACTOR AGREES THAT IT IS
LIABLE FOR AND SHALL, WITHOUT LIMIT AND AT ITS OWN COST, INDEMNIFY, DEFEND AND HOLD HARMLESS THE
BUYER INDEMNIFIED PARTIES FROM AND AGAINST ALL CLAIMS RESULTING FROM CONTRACTOR’S FAILURE TO PAY
ANY TAXES THAT ARE CONTRACTOR’S RESPONSIBILITY UNDER THIS SECTION.
16. Right to Audit: Contractor shall, and ensure that its Subcontractors shall, maintain a true and correct set of records pertaining to all
activities relating to the Materials or its performance of the Services and all transactions related thereto in a manner which is
commercially reasonable and in line with industry best practices as well as in automated or electronic form. Contractor further agrees,
and shall ensure that its Subcontractors agree, to retain all such records for a period of not less than three (3) years after the
completion or termination of Services under a Purchase Order. Contractor agrees that all records pertaining to charges made to Buyer
under the Contract will be subject to audit by Buyer or representatives of Buyer and that such audits will employ statistical sampling
methods consistent with standard industry practice. Buyer, or its representatives, shall have access to Contractor’s facilities and shall
be provided adequate and appropriate workspace in order to conduct audits. Buyer shall have the right to interview current and former
Contractor employees as part of any such audit. Should errors, overcharges or undercharges occur, reimbursement shall be made to
the appropriate Party.
17. Governing Law, Jurisdiction and Venue: The Contract shall be governed and construed in accordance with the laws of the State of
Texas except for any such law that would direct the application of the law of a different jurisdiction; provided, however, that any portion of
the Services to be provided hereunder that take place in, upon or over the navigable waters of the United States of America shall be
governed and controlled exclusively by the General Maritime Law of the United States of America. The Parties consent to personal
jurisdiction in any action brought in any court, federal or state, within Harris County, Texas, having subject matter jurisdiction arising under
this Agreement or the Purchase Order and with respect to any such claim the Parties irrevocably waive, to the fullest extent permitted by
law, any claim, or any objection they may now or hereafter have, that venue is not proper with respect to any such suit, action, or proceeding
brought in such a court in Harris County, Texas, including any claim that such suit, action, or proceeding brought in such court has been
brought in an inconvenient forum and any claim that a Party is not subject to personal jurisdiction or service of process in such Harris County
forum.
Or,
If the services being performed under this Purchase Order are being performed in the State of Illinois, then the following
language shall apply: The Contract shall be governed and construed in accordance with the laws of the State of Illinois except for any
such law that would direct the application of the law of a different jurisdiction. The Parties consent to personal jurisdiction in any action
brought in any court, federal or state, within Randolph County, Illinois, having subject matter jurisdiction arising under the Contract, and
with respect to any such claim the Parties irrevocably waive, to the fullest extent permitted by law, any claim, or any objection they may
now or hereafter have, that venue is not proper with respect to any such suit, action, or proceeding brought in such a court in Randolph
County, Illinois, including any claim that such suit, action, or proceeding brought in such court has been brought in an inconvenient
forum and any claim that a Party is not subject to personal jurisdiction or service of process in such Randolph County forum.
18. Assignment: Contractor shall not assign, in whole or in part, this Agreement, the Purchase Order, or the Contract, or any of
Contractor's rights or obligations thereunder without the prior written approval of Buyer. Subject to the foregoing, this Agreement, the
Purchase Order, or the Contract, and the covenants, obligations, undertakings, rights and benefits set forth herein and therein shall be
binding on and inure to the benefit of the Parties and their respective successors and permitted assigns.
19. Miscellaneous:
That Contractor is, and shall continue to be, an independent contractor, and any provisions of the Contract which may appear to give
Buyer the right to direct Contractor as to details of performing any Services, or to exercise a measure of control over Contractor’s
performance of the Services, shall be interpreted to mean that Contractor will follow the instructions of Buyer with respect to the results
of the Services achieved only and not in the means whereby the Services are to be accomplished, and Contractor shall have complete
and authoritative control as to the details of performing the Services; and
The Contract is a contractual relationship. None of this Agreement, the Purchase Order, or the Contract, is not intended to create a
partnership, joint venture or any other type of legal entity; and
To refrain from making or causing to be made, any public announcement, advertisement, or news release of any kind concerning this
Agreement, the Purchase Order, or the Contract, without the prior written permission of Buyer; and
That prices shown are firm, unless otherwise indicated on the Purchase Order; and
That there are no conditions other than those stated hereon; and
That Contractor has fully read, understands and accepts these terms and conditions in their entirety and without modification; and
That all provisions of the Contract pertaining to warranties, taxes, audits, intellectual property, confidentiality, indemnity, limitations of
liability, choice of law, and jurisdiction are continuing obligations which shall survive completion and acceptance of any Materials and/or
Services or the termination of this Agreement, the Purchase Order, or the Contract, howsoever brought about for an unlimited period of
time, unless otherwise expressly provided for in the Contract; and
That no waiver by either Party of the performance of any provision, condition or requirement of the Contract shall be deemed to be a
waiver of, or in any manner release the other Party from, performance of any other provision, condition or requirement of the Contract;
nor shall it be deemed to be a waiver of, or in any manner release the other Party from future performance of the same provision,
condition, or requirement; nor shall any delay or omission of a Party in exercising any right hereunder in any manner impair the
exercise of any such right or any like right accruing to it thereafter, and no waiver shall be effective unless made in writing and signed
by the Party to be charged with such waiver; and
That if any provision of this Agreement, the Purchase Order, or the Contract is held to be illegal, invalid, or unenforceable and such
invalidity or unenforceability does not have a material and substantial negative impact on the rights, duties and obligations of either
Party hereto (i) such provision will be fully severable, (ii) this Agreement, the Purchase Order, or the Contract, as applicable, will be
construed and enforced as if such illegal, invalid, or unenforceable provision had never comprised a part thereof, and (iii) the remaining
provisions thereof will remain in full force and effect and will not be affected by the illegal, invalid, or unenforceable provision or by its
severance therefrom; furthermore, (1) in lieu of such illegal, invalid, or unenforceable provision, there will be added automatically
thereto a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and as may be legal, valid,
and enforceable and (2) such illegality, invalidity or unenforceability shall not affect the validity or enforceability in that jurisdiction of any
other provision of this Agreement, the Purchase Order, or the Contract, nor the validity or enforceability in other jurisdictions of that or
any other provision thereof.