Standard Purchase Order Terms and Conditions

SERVICE ONE, INC.
STANDARD PURCHASE ORDER TERMS AND CONDITIONS

The following terms and conditions (“Terms”) are applicable to and incorporated by this reference into all Purchase Orders issued by Buyer to Seller; provided, however, if option A(i) is selected on the Purchase Order and/or a Contract is identified on the Purchase Order, then such Contract and not these Terms shall be made part of the agreement between Buyer and Seller.

1. Definitions.
(a) “Buyer” shall mean Service One, Inc.

(b) “PO” shall mean, collectively, these Terms, the Purchase Order, any and all appendices and/or exhibits attached thereto or otherwise issued by Buyer to Seller and documents referenced therein.

(c) “Seller” shall mean the Vendor/Supplier identified on the Purchase Order.

(d) “Specifications” shall mean specifications, drawings, samples, data or other descriptions to which the Work is to conform.

(e) “Work” shall mean all (i) articles, goods, machines, materials, parts, products, supplies, tooling, technical data, test equipment, software and other tangible items or documentary information and (ii) construction work, consultation, maintenance, services, support, technical assistance and other effort, which constitute the subject matter of this PO.

2. Price.
(a) Without a written Change Order (defined below) signed by Buyer, Seller shall (i) furnish the Work at the price or prices stated on the Purchase Order and (ii) not charge any amount in excess of the amount stated on the Purchase Order. Buyer shall not be liable for and Seller shall not charge for anything unless it has been ordered in writing by Buyer and the price agreed upon either on the Purchase Order or Change Order.

(b) Without limiting the generality of the foregoing:

i. Without a written Change Order signed by Buyer, the total price stated on the Purchase Order INCLUDES all shipping, packaging, handling, wrapping, boxing, containers, transportation
and other costs related to or incurred in delivering the Work (including, but not limited to, duties); and

ii. Buyer shall not be liable for and Seller shall not charge for any federal, state, or local taxes (including sales, use, excise, or other taxes) unless separately stated on the Purchase Order and
billed as a separate item on the invoice.

(c) Work shall not be supplied in excess of quantities specified in the PO or Change Order. Seller shall be liable for handling charges and return shipment costs for any excess quantities of tangible Work.

3. Changes.
(a) Buyer reserves the right and may, at any time, issue a change order or an amendment or revision to the PO (“Change Order”) to Seller, covering any matter related to the PO, including but not limited to: (i) changing Specifications, (ii) revising, adding or deleting items, goods, services or other work, (iii) revising the period or schedule of performance, (iv) changing packaging, (v) changing the method, time or place of delivery, (v) increasing or decreasing quantities, or (vi) requiring Seller to cancel all or any part of this PO. Upon receipt of such Change Order, Seller shall immediately take all necessary steps to comply with such notice and to minimize the incurrence of costs.

(b) If any Change Order under this provision causes an increase or decrease in the cost of, or time required for performance of this PO, at Buyer’s discretion, a mutually equitable adjustment shall be negotiated by both parties to be made in the price or the time of performance or both; provided, however, that any claim by Seller for an adjustment shall be deemed waived unless notice of a claim is made in writing within thirty (30) days following Seller’s receipt of the Change Order. Any price increase or extensions of time shall not be binding upon Buyer unless evidenced in a writing signed by Buyer.

(c) Failure to agree to any adjustment shall be resolved in accordance with the disputes clause of this PO. However, nothing contained in this Section 3 shall excuse Seller from proceeding without delay in the performance of this PO as changed.

(d) The Buyer’s engineering, technical, and other personnel may, on occasion, render assistance, exchange information, or give advice to Seller’s personnel concerning the Work furnished hereunder. Such assistance, however, exchange or advice shall not constitute either a Change Order or a waiver of the Seller’s existing obligations. In order to be valid and binding upon Buyer, any change, waiver, or amendment to this PO must be in writing and signed by an authorized representative of the Buyer.

4. Substitutions.
No substitution of materials or accessories may be made without a Change Order issued in compliance with Section 3.

5. Conflicts.
It is Seller’s responsibility to comply with this PO and all Specifications, and to clarify with Buyer any inconsistencies or conflicts in any parts of the PO or Specifications. Should Seller fail to contact Buyer to resolve conflicts or inconsistencies, Seller will be solely responsible for errors resulting from said conflicts or inconsistencies

6. Shipping & Risk of Loss.
(a) Without a written Change Order signed by Buyer, the Work shall be shipped FOB Destination, Freight Prepaid & Allow whereby Seller (i) retains title to the Work until it is delivered, (ii) retains the risk of loss for the Work, (iii) files claims with the carrier (if any), (iv) pre-pays the transportation charges and (v) has already included all transportation charges in the price of the Work.

(b) All shipments shall be marked with the Purchase Order number and shipped in accordance with Buyer’s shipping instructions Seller shall be responsible for proper packaging, loading, tie-down and any other action needed to prevent damage during transportation. Provided Buyer incurs no costs, Buyer agrees to assist Seller in prosecution of claims against carriers.

(c) Seller assumes all risk of loss of or damage to all Work ordered and all work in progress, materials, and other items related to the PO until the same are finally Accepted by Buyer. Seller assumes all risk of loss of or damage related to any Work, work in progress, materials, and other items rejected by Buyer until the same are received by Seller or otherwise Accepted by Buyer.

7. Delivery/Completion.
(a) Time is of the essence with regard to the Delivery/Completion Date(s) specified in this PO. With regard to Work that is to be shipped or transported, Delivery/Completion Date means the date by which the Work must be physically delivered to or present upon Buyer’s or Buyer’s customer’s facility. Delivery/Completion Date for Work involving the provision of services at the Buyer’s or Buyer’s customer’s facility means the date by which the Work is complete and fully available for its intended use (including completion on punch list items).

(b) Unless otherwise provided in this PO, no delivery required hereunder of Work to be shipped or transported shall be made more than seven (7) days prior to the applicable Delivery/Completion Date, and Buyer may return earlier deliveries at Seller’s risk and expense or charge to Seller any additional costs sustained because of the same.

(c) Unless a delay is caused by a Force Majeure Event (defined below), if Seller fails to meet the Delivery/Completion Date schedule specified in this PO, then Buyer reserves the right to, and in its discretion may, (i) require Seller to make and pay for express shipments, partial shipments, or both, or other manner of expedited delivery, (ii) terminate this PO by notice effective immediately upon receipt by Seller and to arrange for completion of performance and/or to purchase substitute work elsewhere and charge Seller with any loss incurred including, but not limited to, any difference between the Seller’s price for the Work and the price of the substitute work, and (iii) pursue any other rights and remedies it may have under this PO or at law or in equity.

8. Specifications and Inspection.
(a) All information submitted to Seller in connection with the Work is hereby incorporated by reference. All Work ordered to Buyer’s Specifications will comply with such Specifications. It is the Seller’s responsibility to ensure that all Work Specifications reflect the latest revisions.

(b) All Work furnished hereunder will be subject to inspection and test by Buyer at all times and places and will be subject to Buyer’s final inspection and Acceptance (defined below) after delivery. Buyer reserves the right, at any time, to reject all or part of any Work which (i) does not conform or comply with this PO, the Specifications, or the warranties hereinafter stated or (ii) Buyer deems defective, unsafe, unfit, below industry standards or practices or in any other way unsuitable for its or its customer’s purposes (collectively, “Non-conforming Work”).

(c) If Seller delivers Non-Conforming Work, in addition to all other remedies it has under this PO, at law or in equity (all of which shall be cumulative), Buyer may at its option and at Seller’s risk and expense: (i) reject and return the Work for credit or refund; (ii) charge and bill Seller for costs incurred in unpacking, inspecting, repacking and otherwise handling, storing or transporting the Non-Conforming Goods or offset such amounts from any outstanding invoice, (iii) reject and require Seller to remove the Non-Conforming Work within five (5) days’ notice to Seller, (iv) require Seller to promptly correct or replace the Work within ten (10) days’ notice to Seller; (v) correct the Work and charge Seller with any loss incurred; and (vi) obtain replacement Work from another source and charge Seller with any loss incurred including, but not limited to, any difference between the Seller’s price for the Work and the price of the substitute work.

(d) Seller shall not redeliver Non-Conforming Work that has been corrected or rejected without disclosing the former rejection or requirement for correction and the corrective action taken. Repair, replacement and other correction and redelivery shall be completed within the original Delivery/Completion Date or such later time as Buyer may reasonably direct. All costs, expenses and loss of value incurred as a result of or in connection with nonconformance and repair, replacement or other correction may be recovered from Seller by equitable price reduction or credit against any amounts that may be owed to Seller under this PO or another.

9. Acceptance.
(a) As a condition precedent to payment for the Work by Buyer to Seller, the Work must be Accepted by Buyer. For the purpose of these Terms, “Accepted” means the point at which Buyer notifies Seller of its acceptance or is deemed to accept the Work. Accepted shall include the terms “Accept” and “Accepted.” Buyer’s signature on a delivery receipt does not constitute Acceptance.

(b) In the absence of a written notice of rejection, non-Acceptance or non-conformance by Buyer to Seller, the Work shall be deemed to have been Accepted within a reasonable time after timely delivery or completion of the entire Work identified herein to or at the shipping address specified on the face of the PO. The parties agree that what constitutes a reasonable time will vary based on facts and circumstances, but they agree it shall be no less than thirty (30) days after delivery or completion.

(c) Notwithstanding anything to the contrary herein, Acceptance of all or any part of the PO shall not (i) bind Buyer to Accept any Non-Conforming Work, (ii) deprive Buyer of the right to reject any previous or future Non-Conforming Work, (iii) deprive Buyer of the right to return Non-Conforming Work already Accepted or (iv) deprive Buyer of any of its remedies for Non-Conforming Work.

(d) Prior to Acceptance, title to Work remains with Seller, all risks of damage, injury, or loss thereto, or partial or complete destruction thereof, will be borne and assumed by Seller.

(e) PAYMENT FOR ANY WORK SHALL NOT BE DEEMED ACCEPTANCE AND IN NO EVENT SHALL BUYER INCUR ANY LIABILITY FOR PAYMENT FOR NON-CONFORMING WORK. If Non-Conforming Work is rejected after payment, Buyer shall be entitled to return the same for full refund. If Non-Conforming Work is rejected prior to payment, but after receiving an invoice, Seller shall immediately credit or void such invoice for such Non-Conforming Work.

10. Payment.
(a) After Acceptance of the Work pursuant to Section 9 herein, Buyer agrees to pay all amounts properly due for Accepted work within sixty (60) of Buyer’s receipt of Seller’s correct invoice, less any deposits paid to Seller and offsets provided for herein (if any), unless otherwise agreed by the parties and shown on the face of the Purchase Order or in a Change Order; provided, however, Buyer shall only be obligated to pay after (i) the delivery and Acceptance of all Work ordered under the PO and (ii) all invoices reflect any credits owed to Buyer.

(b) All invoices must be delivered to Buyer within ninety (90) days of the completion of the Work. Buyer shall have no obligation to pay any invoices delivered later than ninety (90) days after the completion of the Work.

(c) If the Work is incorporated into an improvement on real property, Buyer may, in its sole discretion, as a condition precedent to payment of any invoice, require Seller to submit an affidavit in a form acceptable to Buyer as well as lien waivers/releases executed by Seller and all lower tier vendors and subcontractors.

(d) Seller shall promptly pay its lower tier vendors and subcontractors when due for all labor, equipment, materials and supplies used or consumed in completing PO. Buyer may elect to withhold retention of up to five percent (5%).

11. Termination.
(a) For Cause:

i. Buyer reserves the right to terminate this PO, or any part hereof, and to cancel all or any part of an undelivered portion of this PO if Seller (A) fails to deliver or perform the Work by the time specified in this PO, (B) fails to deliver or perform the Work that meets the required Specifications, or otherwise breaches any of the other terms of this PO, including the warranties, or (C) so fails to make progress in the Work as to endanger performance. Buyer shall also have the right to terminate this PO or any part thereof, and cancel all or any part of an undelivered
portion in the event of the happening of any of the following: insolvency of Seller; filing of a voluntary petition in bankruptcy; filing of any involuntary petition to have Seller declared
bankrupt provided it is not vacated within thirty days from the date of such filing; or the execution of Seller of any assignment for the benefit of creditors.

ii. Buyer shall have no obligations to Seller in respect of the canceled portion of this PO and Buyer’s liability shall be limited to payment for the portion of this PO that is
(A) conforming and (B) delivered or performed, at the rate specified on the face hereof (reflecting quantity prices as though this PO had done to full completion). These remedies shall be cumulative and additional to any other or further remedies provided in law or in equity.

(b) For Convenience:

i. Buyer may, for its convenience, terminate work under this PO in whole or in part at any time by giving notice to Seller in writing. Seller will thereupon immediately (A) stop work on this PO or the terminated portion thereof, take all actions to minimize costs and liabilities for the terminated work, and notify any subcontractors to do likewise and (B) continue performance of any part not terminated by Buyer. Seller shall be entitled to reimbursement for its actual costs incurred up to and including the date of termination, such costs to be determined in accordance with recognized accounting principles. In no event shall Buyer’s obligations, as a consequence of the termination, exceed the PO price of the items
terminated.

ii. At its election, Buyer shall have the right to direct the disposition of any or all of the Work included in the Seller’s reimbursed costs. Seller will comply with and be reimbursed for
reasonable expenses incurred in affecting Buyer’s direction. Prior to settlement of any termination claim, Seller hereby grants to Buyer (Y) the right to physically inspect any and all
inventory included in the claim, and (Z) the right of Buyer, or its designee, to audit the directly pertinent books, records and documents, relating to the costs claimed for reimbursement.

(c) If after this PO has been totally or partially terminated by a “for cause” notice, and it is determined that Seller’s failure is excused because it’s due to a Force Majeure Event, then such notice shall be deemed to have been issued “for convenience” and the rights of the parties shall be governed by paragraph (b) above.

12. Stop Work Order.
(a) Seller shall stop Work for up to ninety (90) days in accordance with the terms of any written notice received from Buyer (“Stop Work Order”), or for such longer period of time as the parties may agree, and shall take all reasonable steps to minimize the incurrence of costs allocable to the Work covered by this PO during the period of Work stoppage.

(b) Within such period, Buyer shall either terminate or continue the Work by written direction to Seller. In the event of a continuation, an equitable adjustment, in accordance with Section 3 may be made to the price, delivery schedule, or other provision affected by the Work stoppage, if applicable, provided the claim for equitable adjustment is made within thirty (30) days after such continuation.

13. Warranty.
The benefits of this warranty shall accrue to Buyer’s customers and assigns to the same extent they shall accrue to Buyer.

(a) In addition to Seller standard warranty relating to the Work, Seller certifies and warrants that the Work (i) is merchantable, of good material and workmanship, and free from defects in material, workmanship, design and fabrication, (ii) conforms to all Specifications or other descriptions, prototypes or samples furnished to Seller, (iii) will be fit for the Buyer’s intended use, provided Seller has reason to know of such use, (iv) complies with all applicable international, federal, state and local laws, rules and regulations, orders (including, without limitation, those concerning health, safety, and environmental standards) which bear upon Seller’s performance, and (v) shall be new and not refurbished or reconditioned, unless expressly agreed in writing by Buyer.

(b) In addition, Seller certifies and warrants that Buyer shall have good and marketable title to all Work (including components thereof) purchased pursuant to transactions contemplated by this PO, free of all liens, claims and encumbrances and that no licenses are required for Buyer to use such Work. This Section 13 shall not be waived by reason of Acceptance of the Work or payment therefor by Seller. Upon Buyer’s request, Seller shall furnish Buyer with a formal waiver or release of all liens by Seller and/or Seller’s laborers, suppliers, vendors, subcontractors and anyone acting under it.

(c) Further, Seller certifies and warrants that the Work does not infringe upon and is not restricted in any way, either directly or contributory, by any intellectual property, proprietary or contractual right of any third party, or any patents, design, copyrights, mask work, trademark, trade secrets. In addition to all other remedies available to Buyer, in the case where the Work or a part thereof are held to constitute infringement and the use of the Work or a part thereof is enjoined, Seller shall, at the expense of Seller, either (i) procure for the Buyer the rights to continue to using the Work, (ii) replace the Work so that the Work become non-infringing, or (iii) retake the Work and refund the purchase price and transportation and installation cost of the Work to Buyer.

(d) Seller shall make timely responses to Buyer’s notifications of breach of warranty and shall respond with the understanding that (and Seller agrees that) time will be of the essence in all instances. In the event Seller fails to perform its warranty obligations, Buyer shall be entitled to avail itself cumulatively of all remedies provided in law or in equity including but not limited to the right, but not the obligation, to remedy the default in Seller’s Work and charge the expense thereof to the Seller.

(e) This section shall survive the completion, expiration, termination or other cancellation of the PO and shall not be waived by reason of Acceptance of the Work or payment therefor by Buyer.

14. Work Performed on Buyer’s or Buyer’s Customer’s Premises.
If Seller’s Work involves operations by Seller on the premises of Buyer or one of Buyer’s customers, Seller shall take all necessary precautions and such additional precautions as Buyer or Buyer’s customer may prescribe to prevent the occurrence of any injury to persons or property during the progress of such Work.

15. Furnished Property.
(a) Buyer may provide to Seller property owned or rented by either Buyer or its customer (“Furnished Property”). Furnished Property shall be used only for the performance of the PO. Title to Furnished Property shall be retained by Buyer or its customer. Seller shall clearly mark (if not already marked) all Furnished Property to show ownership.

(b) Except for reasonable wear and tear, Seller assumes all risk of loss, destruction or damage of Furnished Property while in Seller’s possession, custody, or control. Upon request, Seller shall provide Buyer with adequate proof of insurance against such risk of loss or damage. Seller shall promptly notify Buyer of any loss or damage to Furnished Property. Without additional charge, Seller shall manage, maintain, and preserve Furnished Property in accordance with good commercial practice.

(c) At Buyer’s request or at completion of this PO the Seller shall submit, in an acceptable form, inventory lists of Furnished Property and shall deliver or make such other disposal as may be directed by Buyer.

16. Insurance.
Seller agrees to maintain (a) workmen’s compensation and employer’s liability insurance in compliance with the laws of the state where the Work will be performed, (b) commercial general liability in a minimum of One Million Dollars per occurrence, Two Million Dollars aggregate, (c) property insurance on the Work for its full replacement value, (d) automobile covering the owned, non-owned and hired vehicles of Seller, with combined single limits of at least One Million Dollars ($1,000,000.00)per person per occurrence as it relates to bodily injury and/or property damage, and (e) such other insurance or such amounts as may be required of the Buyer in the PO. Seller shall also name Buyer and Buyer’s customer as additional insureds. Seller shall provide Buyer with certificates of insurance and copies of such policies if requested, and shall maintain such insurance while Seller is engaged under this PO. If design responsibilities are provided by Seller, Seller shall maintain professional liability coverage in a minimum of One Million Dollars per claim with “tail” coverage of no less than one (1) year from PO completion.

17. Indemnification.
(a) In addition to any other indemnification or hold harmless requirement in these Terms, Seller shall, at its own expense and to the fullest extent permitted by law, promptly investigate, defend, indemnify and hold harmless Buyer and Buyer’s owners, agents, employees, affiliates, related entities, successors, assigns, contractors, other subcontractors or vendors, customers and users of Buyer’s services (individually, an “Indemnified Party” and collectively, the “Indemnified Parties”) against all claims, allegations, suits, actions, proceedings, arbitrations, mediations, judgments, liabilities, damages, losses, fees, taxes, penalties, interest, expenses and costs (including, but not limited to, reasonable attorney’s fees and any and all fees, costs and expenses whatsoever reasonably incurred by the Indemnified Parties or their agent in investigating, preparing for, defending against, or providing evidence, producing documents or taking any other action in respect of any threatened or asserted claim) suffered, incurred, or asserted by or against an Indemnified Party that is related to or in any way results from (i) performance of Seller’s obligations under this PO, (ii) the Work (including, but not limited to, product liability claims), (iii) Seller’s misrepresentation or breach of any term of this PO, (iii) Seller’s breach of a warranty, (iv) personal injury, including death, or property damage which may be asserted against an Indemnified Party, resulting in any way from or arising out of the Work or any acts or omissions of Seller, or Seller’s agents, employees, vendors, contractors, subcontractors of any tier, or anyone acting under it, in fulfillment of this PO (including, but not limited to, the materials and supplies delivered, equipment used or services performed hereunder), except to the extent that any such injury or damage is due solely and directly to the willful or intentional misconduct of the party seeking indemnification, and (v) being made defendants or claimed potential defendants for any infringement, claimed infringement, or alleged inducement of infringement, or unauthorized, or unlawful use of any patent, copyright, or trademark (wherever or not registered); trade secret; mask work; proprietary data; other intellectual property; or other information resulting from the manufacture, sale, use, or lease, or other disposition of any of the Work.

(b) In the event Seller fails to promptly investigate and defend or settle as provided hereinabove, then Buyer shall, following notification to Seller, have the right from that time forward to have sole control of the defense of any said claims, allegations, suits, actions, proceedings, arbitrations and mediations, and all negotiations for its settlement or compromise and Seller agrees to pay, as they become due, all of the costs, expenses, and reasonable attorneys’ fees incurred as well as any judgments, decrees or settlements which may be rendered or made.

(c) This section shall survive the completion, expiration, termination or other cancellation of the PO and shall not be waived by reason of Acceptance of the Work or payment therefor by Buyer.

18. Limitation on Liability.
(a) In no event will Buyer be liable to Seller for any indirect, incidental, consequential, or punitive damages, or for loss of profits, revenue, or data, whether in an action in contract, tort, strict liability, or otherwise, even if advised of the possibility of those damages.

(b) Except for personal injury caused by Buyer’s willful or intentional misconduct, Buyer’s cumulative liability under this PO will not exceed the aggregate amount paid by Buyer under this PO, even if a term of this PO fails of its essential purpose. The remedies of Seller specifically set forth in this Agreement constitute Seller exclusive remedies for the breaches by Buyer to which they relate.

19. Confidentiality; Limited Use.
(a) Unless otherwise agreed by Buyer in writing, Seller shall keep confidential and not disclose to any third party, any confidential and/or proprietary materials provided by Buyer to Seller in connection with Seller’s performance of this PO or prepared by Seller specifically for Buyer pursuant to this PO, including but not limited to any drawings, masters, software, Specifications, raw materials, components, data, business information or plans, customer lists or other customer information (“Confidential Information”). The Confidential Information is the property of Buyer or Buyer’s customer. Seller shall not make any copies of Confidential Information except as specifically authorized by Buyer in writing. At the completion of this PO, or upon Buyer’s request, Seller shall promptly return to Buyer all Confidential Information not consumed in the performance of this PO, together with any copies in Seller’s possession. Seller shall use Confidential Information solely for Seller’s performance of this PO for Buyer, and Seller shall not, without Buyer’s written consent, directly or indirectly use Confidential Information or information derived there from in performing services or providing goods for any other customer of Seller, or any other person or entity.

(b) Seller understands and acknowledges that any disclosure or misappropriation of any of the Confidential Information in violation of this PO or breach of this PO may cause Buyer irreparable harm, the amount of which may be difficult to ascertain and, therefore, agrees that Buyer shall have the right to apply to a court of competent jurisdiction for an order restraining any such disclosure, misappropriation, breach and for such other relief as Buyer shall deem appropriate, all without the necessity of posting bond. Furthermore, Seller shall be liable to Buyer for all profits derived directly or indirectly from the use or disclosure of the Confidential Information in violation of this PO. The above remedies shall be in addition to all other rights and remedies otherwise available to the Buyer at law or in equity.

20. Safety.
Seller shall perform the Work in a proper manner to minimize the risk of loss, injury, or damage to property, or persons, and shall comply with all applicable safety requirements of any authority having jurisdiction, including issuances pursuant to the Occupational Safety and Health Act and all safety procedures that Buyer may prescribe and has provided to Seller.

21. Force Majeure.
“Force Majeure Event” shall mean fire, flood, strike, riot, war, insurrection, terrorist attack, explosion, acts of God and acts of public enemy that prevents or delays performance of a party hereto, provided (a) it is without the fault or negligence of such party and (b) such party has notified the other party in writing of the existence of such event within five (5) days of the commencement of the event, giving all pertinent information concerning such cause.

22. Disputes.
(a) The construction, validity, enforcement, and interpretation of this PO, any and all appendices and/or exhibits and the Specifications, and all disputes arising hereunder, shall be governed exclusively by its terms and by the internal, substantive laws of the State of Tennessee, and without giving effect to any choice of law or conflict of law rules or provisions.

(b) Any dispute that arises under or it related to this PO or the transactions contemplated thereby that cannot be settled by mutual agreement of the parties may be brought in the courts of the State of Tennessee, County of Knox, or, if it has or can acquire jurisdiction, in the United States District Court for the Eastern District of Tennessee sitting in Knoxville, and each of the parties irrevocably submits to the exclusive jurisdiction of each such court in any such legal proceeding, waives any objection it may now or hereafter have to venue or to convenience of forum, agrees that all claims in respect of the legal proceeding shall be heard and determined only in any such court and agrees not to bring any legal proceeding arising out of or relating to this PO or any contemplated transaction in any other court. The parties agree that either or both of them may file a copy of this paragraph with any court as written evidence of the knowing, voluntary and bargained agreement between the parties irrevocably to waive any objections to venue or to convenience of forum. Process in any legal proceeding referred to in the first sentence of this section may be served on any party anywhere in the world.

(c) The prevailing party in any action or proceeding (and any appeal thereupon) brought to enforce this PO or by reason of any breach hereunder, shall be entitled to recover its reasonable attorneys’ fees, experts’ fees and costs.

(d) No action at law or in equity may be commenced by Seller under or arising from this PO or the transactions contemplated thereby unless it is brought within six (6) months after the accrual of the cause of action upon which the claim is based, regardless of whether Seller knew or should have known of the accrual of any such cause of action.

(e) Until final resolution of any dispute hereunder, Seller shall diligently proceed with the performance of this PO as directed by the Buyer.

23. U.S. Government End User.
If this PO is placed for a U.S. Government end-user, other terms may apply and, if so, will be attached to or referenced in the Purchase Order.

24. Anti-Kickback.
Seller agrees not to provide or offer any representative, officer, director or employee of the Buyer, or any member of such persons family, any favors, gifts, gratuities or favorable treatment for the purpose of securing this PO or any future business opportunities.

25. Assignment/Subcontracting.
(a) Seller shall not assign or transfer any of the rights or responsibilities arising from this PO and any assignment of Seller’s PO rights or delegation of duties shall be void unless prior written approval is given by Buyer.

(b) Without Buyer’s written consent, Seller will not subcontract for the design, development, or procurement of any substantial portion of the Work under this PO. This limitation does not apply to Seller’s purchase of standard commercial supplies or raw materials.

26. Relationship.
Buyer and Seller are contractors independent of one another. Nothing in this PO is intended to or will constitute either party as an agent, legal representative, or partner of the other for any purpose.

27. Cumulative Remedies.
The remedies herein reserved to Buyer shall be cumulative, and additional to any other or further remedies provided in law or equity. No waiver by Buyer of any term or condition of this PO shall be construed as a permanent waiver of such term or condition or of any other term or condition.

28. Waiver.
A waiver of a breach of any term of this PO will not be construed as a waiver of any succeeding breach of that term or as a waiver of the term itself. Buyer’s performance after Seller’s breach shall not be construed as a waiver of that breach. No failure or delay by either party to enforce or take advantage of any provision or right under this PO shall constitute a subsequent waiver of that provision or right, nor shall it be a waiver of any of the other terms and conditions of this PO.

29. Entire Agreement.
This PO supersedes all prior agreements, whether written or oral, between the parties with respect to its subject matter and constitutes (along with the Specifications and other documents delivered pursuant to this PO) a complete and exclusive statement of the terms of the agreement between the parties with respect to its subject matter.

30. Amendment.
No amendment, modification, change or alteration of this PO shall be effective unless made in writing and signed by a both parties.

31. Headings.
The headings used in this PO are for convenience of reference only and do not constitute a part of this PO and shall not be deemed to limit, characterize or in any way affect any provision of this PO, and all provisions of this PO shall be enforced and construed as if no heading had been used in this PO.

32. Construction.
Except where the context otherwise requires, wherever used, the singular shall include the plural, the plural the singular, the use of any gender shall be applicable to all genders and the word “or” is used in the inclusive sense. The term “including” as used herein shall mean including, without limiting the generality of any description preceding such term. The language of this PO shall be deemed to be the language mutually chosen by the parties, and no rule of strict construction shall be applied against either party.

33. Severability.
If any portion or provision of this PO shall to any extent be declared illegal or unenforceable by a duly authorized court of competent jurisdiction, then the remainder of this PO, or the application of such portion or provision in circumstances other than those as to which it is so declared illegal or unenforceable, shall not be affected thereby, and each portion and provision of this PO shall be valid and enforceable to the fullest extent permitted by law.