Terms

Select a topic below to view our terms and conditions.

GOVERNING LAW – Unless otherwise specified by Seller, all orders are accepted by Seller at its General Offices in Fayetteville, Tennessee and shall be governed by and interpreted in accordance with the laws of the State of Tennessee. “Seller” means Copperweld Bimetallics, LLC and their affiliates.
FORCE MAJEURE; APPORTIONMENT - Manufacture, shipment and delivery are subject to, and Seller shall not be liable for any delay in or impairment of performance resulting in whole or in pan from, any war (whether or not declared) or strike, difference with workmen, accident, fire, flood, Acts of God, delay in transportation, shortage of materials, equipment breakdowns, plant conditions, laws, regulations, orders or acts of any governmental agency or body or any cause beyond the reasonable control of the Seller, or if performance by Seller becomes impracticable due to the occurrence of a contingency, the non-occurrence of which was a basic assumption on which the sale was made. In any such event, Seller shall have such additional time to perform as may be reasonably necessary and shall have the right to apportion production among its customers in such manner as it deems equitable.
MODIFICATION OF TERMS - Seller’s acceptance of any order is expressly subject to Buyer’s assent to each and all of Seller’s terms and conditions and Buyer’s assent to these terms and conditions shall be conclusively presumed without prompt written objection from Buyer thereto or from Buyer’s acceptance of all or any part of the goods or services ordered. No addition to or modification of said terms and conditions shall be binding upon Seller unless specifically agreed to in writing by Seller. If Buyer purchase order or other correspondence or written communication contains terms or conditions contrary to or in addition to the terms and conditions of Seller, acceptance of any order by Seller shall not be construed as assent to such contrary or additional terms and conditions or constitute a waiver by Seller of any of its terms and conditions. Any reference to Buyer’s purchase order or other correspondence or written communication shall not affect or limit the applicability of Seller terms and conditions. Stenographic and clerical errors may be corrected.
PRICE - For F.O.B. Plant Sales - Unless otherwise specified in writing by Seller: (a) all prices, quotations, shipments and deliveries by Seller are F.O.B. Seller’s Plant; (b) all base prices, together with related extras and deductions, are subject to change without notice and all orders are accepted subject to Seller’s price in effect at the time of shipment; and (c) all transportation and other charges are for Buyer account.
F.A.S. VESSEL SALES - Unless otherwise specified in writing by Seller: (a) all prices, quotations, shipments and deliveries by Seller are F.A.S. Vessel. The price quoted shall include the cost of delivery of the goods alongside an overseas vessel and within reach of its loading tackle or on the dock designated and provided by or for Buyer; (b) all base prices, together with related extras and deductions are subject to change without notice and all orders are accepted subject to Seller’s price in effect at the time of shipment; and (c) unless otherwise agreed in writing, Seller shall be entitled to immediate payment in full for the goods upon tender to Buyer of a document of title covering the same. Seller agrees to render Buyer, at Buyer’s request and expense, assistance in obtaining the documents issued in the country of origin or of shipment or of both, which Buyer may require either for purposes of exportation or for importation at destination. Payment due date, net of discount, shall be based on the date of the invoice.
PRODUCING OR SHIPPING POINT - Unless otherwise specified in writing by Seller, Seller reserves the right to produce and ship all or any part of the goods from any of its plants.
CREDIT; DEFAULT IN PAYMENT - All orders and shipments are subject to the approval of Seller ' Treasury Department, and Seller may at any time refuse to make shipment or delivery if Buyer fails to fulfill the terms and conditions of payment or fails to provide security satisfactory to Seller. In the event Buyer fails to make payment on any contract between Buyer or any of its affiliates and Seller in accordance with the terms of such contract, Seller may, at its option, and in addition to all other remedies available to it: (a) defer shipments hereunder until such payment is made and satisfactory credit arrangements are established; or (b) cancel the unshipped balance of this order. At Seller’s option, interest will be charged after the due date up to the maximum lawful contract interest rate. In the event Buyer refuses or fails, for any reason, to accept any goods manufactured by Seller, Buyer shall pay Seller for all materials consumed and labor expended to manufacture such goods, and shall reimburse Seller for any special, incidental or consequential damages incurred by Seller as a result of such refusal or failure.
SETOFF - Seller shall have the right to credit toward the payment of any monies that may become due Seller hereunder, any sums which may now or hereafter be owed to Buyer by Seller.
SECURITY INTEREST - Seller retains a security interest in the goods and all proceeds thereof until payment in full is made by Buyer, and Seller shall have all rights and remedies of a secured party under the Uniform Commercial Code in the event of a breach or default by Buyer in any of its obligations hereunder. Buyer hereby appoints Seller as Buyer’s agent and attorney-in-fact to execute and to file such financing statements and other documents as may be necessary to perfect said security interest. Payment for certain tools and dies used in the manufacturing process does not convey to Buyer title to them or the right to remove them from Seller’s premises. All intellectual property rights in any tools or dies and/or the creation thereof remain the exclusive property of Seller. In the event Buyer fails to reorder for two years, Seller has the right to scrap such tools and dies without notice.
TRANSPORTATION - Seller has the right to select the carrier but will use its reasonable efforts to comply with Buyer’s requested method of transportation. Seller reserves the right to use an alternate method of transportation whether or not at a higher cost to Buyer, if the method specified by Buyer is deemed by Seller to be unavailable or otherwise unsatisfactory. In any such case, Seller shall promptly notify Buyer of any such change. Any storage and/or demurrage charges which may accrue on the goods hereunder are for Buyer account. If shipment is delayed at Buyer’s request, Seller may bill Buyer immediately for any goods held at Seller’s plants, and Seller may include in such bill a charge for the reasonable storage costs incurred by Seller.
PACKAGING - Seller will use its reasonable efforts to comply with any special packaging, loading or bracing requirements specified in writing in any order. Seller will charge for compliance with Buyer’s special requirements in accordance with Seller’s price list for extras in effect at time of shipment. If no special requirements are specified by Buyer, Seller shall comply with the minimum requirements customarily applied by Seller to the method of transportation used for such goods.
INSPECTION - If Seller expressly permits inspection by Buyer at Seller’s plant, Buyer shall make such inspection promptly upon notification that the material is ready and in such manner as not to interfere with Seller ' operations. If such inspection is made, Buyer shall accept or reject before shipment.
DISCLAIMER; LIMITED WARRANTY - No warranties, express or implied (including, but not by way of limitation, any implied warranty of merchantability or any implied warranty of fitness for a particular purpose), exist on any order, except that seller warrants the following: (a) title to all goods furnished by seller; and (b) all goods will be manufactured in accordance with the specifications, if any, set forth by buyer and agreed to in writing by seller. Subject to seller’s standard manufacturing variation.
LIMITATION OF BUYER’S REMEDIES – Buyer’s remedies with respect to any claim arising out of any order or seller’s performance in connection therewith, including, without limitation, any claim arising out of any defect or alleged defect in any goods or services furnished by seller, shall be limited exclusively to the right of replacement of such goods or services or. At seller’s option, to repayment of the purchase price therefor. Without in any way limiting the generality of the foregoing, in no event shall seller be liable for any consequential or incidental damages (including, without limitation, any loss of production or anticipated profits) or liability incurred by buyer or any third-party with respect to any goods or services furnished or to be furnished hereunder by seller. In no event, regardless of the legal theory on which a remedy is sought, shall seller’s liability exceed the purchase price of the goods or services.
DAMAGED GOODS - If any goods arrive at Buyer’s destination in a damaged condition or a shortage occurs, Buyer shall immediately report the damage or shortage in writing to the delivering carrier and to Seller. Any loss or shortage of goods occasioned by damage, or otherwise occurring in transit will be for Buyer account. Seller may assist Buyer in recovering damages, provided Buyer furnishes Seller written authorization to recover damages from Buyer’s carrier.
QUALITY ASSURANCE SPECIFICATIONS - Seller has no obligation to ensure that any goods or services purchased from Seller meet any special quality assurance specifications or other requirements, except as agreed upon in writing between Buyer and Seller, and Buyer represents and warrants that goods it purchases from Seller will not be applied by Buyer to or resold by Buyer for application to any critical end use, including without limitation, use in connection with or in any way related to the construction or operation of a nuclear facility, unless the appropriate specification or other requirement for such end use is set forth by Buyer in writing and is expressly accepted by Seller in writing. In the event that any such goods or any services supplied by Seller in connection therewith are applied to a critical end use without the appropriate specification or other requirement therefor having been set forth by Buyer and expressly accepted by Seller as provided above. Buyer shall indemnify and hold Seller harmless from and against any and all damages or claims for damages made by any person for any injury, fatal or nonfatal to any person or for any damage to property, incident to or arising out of such application, including without limitation any loss resulting from the radioactive, toxic, explosive or other hazardous properties of “material” “ nuclear material" or "material” as such terms are defined in the Atomic Energy Act of 1954, any law amendatory thereof or regulations adopted pursuant thereto.
TAXES - Any tax which Seller may be required to pay or collect, through assessment or otherwise, under any existing or future law upon or with respect to the sale, purchase, delivery, transportation, exportation, storage, processing, use or consumption of any goods or services described herein, including, without limitation, taxes upon or measured by receipts from sales or services shall be for Buyer account and may be added to the price of such goods or services. Buyer shall promptly pay the amount thereof to Seller upon demand but may, in lieu of such payment, furnish to Seller evidence of the issuance of tax exemption certificates acceptable to the appropriate taxing authorities.
CLAIMS - Buyer must make any claims in writing within ninety (90) days after Buyer receipt of the goods. Buyer shall set aside, protect and hold such goods, without further processing, until Seller has an opportunity to inspect and advise of the disposition, if any, to be made of such goods. In no event shall any goods be returned, reworked or scrapped by Buyer without Seller authorization.
TECHNICAL ASSISTANCE - Unless otherwise expressly agreed to by Seller: (a) any technical advice provided by Seller with respect to the use of goods or services furnished to Buyer shall be without charge; (b) Seller assumes no obligation or liability for any such advice or for any results occurring as a result of the application of such advice; and (c) Buyer shall have sole responsibility for selection and specification of the goods or services appropriate for the end use thereof.
PERMISSABLE VARIATIONS - Goods shipped by Seller shall be within Seller published limits and sizes, subject, however, to Seller’s standard variations, and Seller reserves the right to ship overages or underages of weight, length, size and/or quantity in accordance with Seller’s standard practices. Buyer and Seller agree that variations in check weighing by Buyer up to 1% is a permissible variation from invoiced weights or account for differences in kind, type, location and accuracy of scales and possible errors of weighers.
PATENTS - If the terms and conditions of Buyer’s written order shall require a patent indemnity and the material covered by such order is to be made in accordance with Seller’s specifications, Seller agrees to defend any suit or proceeding brought against Buyer on a claim that the material or any part thereof furnished under Buyer’s order constitutes an infringement of any patent and to pay all direct and actual damages and costs awarded against Buyer therein, provided in all instances that Seller is promptly notified in writing of any such suit and given authority, information, and assistance reasonably necessary for the defense of same. If the material covered by Buyer written order is to be made in accordance with Buyer’s written specifications and any suit or proceeding is brought against Seller on a claim that the material or any part thereof furnished under Buyer’s order constitutes an infringement of any patent, Buyer agrees to defend any such suit or proceeding and to pay all direct and actual damages and costs awarded against Seller therein, provided in all instances that Buyer is promptly notified in writing of such suit and given authority, information, and assistance reasonably necessary for the defense of same.
DRAWBACK - Seller specifically reserves to itself all rights to drawback of duty or taxes paid on materials entering into the manufacture or production of the goods specified in any order. Buyer disclaims all interests in such rights and agrees to furnish Seller with proof of exportation and all other documents necessary to obtain payment of such drawbacks and to cooperate with Seller in obtaining such payment.
ASSIGNMENT - Buyer shall not assign any order or any interest therein without the written consent of Seller. Any actual or attempted assignment without Seller’s prior written consent shall entitle Seller to cancel such order upon written notice to Buyer.
FAIR LABOR STANDARDS ACT - The material covered by this contract will be produced in compliance with all applicable requirements of the Fair Labor Standards Act of 1938, as amended.
WAIVER - Seller waiver of any breach of any terms and conditions set forth herein shall not be construed as a waiver of any other breach, and the failure by Seller to exercise any right arising from any default of Buyer hereunder shall not be deemed a waiver of such right, which may be exercised at any subsequent time.
PROHIBITION ON RESALE - Unless Seller has expressly authorized Buyer in writing to purchase the goods for resale, Buyer shall purchase the goods only for its own use or installation in projects performed by Buyer or its subcontractors. Buyer represents and warrants that it is purchasing the goods for its own use and not for commercial resale, export, or distribution to any third party. Any resale or unauthorized distribution of the goods shall constitute a material breach of these terms. Seller my suspend or decline future quotations or purchase orders if Buyer breaches this provision.
COMPLETE AGREEMENT - Seller’s terms and conditions, together with any other documents incorporated herein by reference, constitute the sole and entire agreement between Buyer and Seller with respect to any order, superseding completely any oral, written or other communications unless the terms thereof are agreed to in writing by Seller. No additions to or variations from such terms and conditions, whether contained in Buyer’s purchase order, any shipping release or elsewhere, shall be binding upon Seller unless agreed to in writing by Seller.

Sales Terms & Conditions: Europe

Copperweld Bimetallics, LLC

General Conditions of Sale

The present General Conditions of Sale are governing the contract between the Seller and the Customer. The acceptance of the Seller’s offer and the subsequent order means that the Customer irrevocably accepts these General Conditions of Sale in their entirety. Unless otherwise expressly agreed by the Seller, these General Conditions of Sale prevail on any conditions of purchase, general or particular, of the Customer.

Any additional or different terms or any attempt by Customer to vary in any degree any of Seller's General Conditions of Sale are hereby objected to and shall be deemed immaterial and not binding on Seller.

FORMATION OF THE CONTRACT – The offers of the Seller are not binding. All sales, contracts and orders become effective only if and when approved and accepted in writing by Seller by the issuance of the Seller Acknowledgment Form. To be valid, any alteration of an order or any derogation to the General Conditions of Sale requires the written and prior acceptance of the Seller

PRICE – The prices for the delivery are the prices mentioned in the order as confirmed in the Sellers Acknowledgement Form.

DELIVERIES

The time of delivery is only indicative and therefore not binding for the Seller. The time of delivery indicated on the offer is an estimation of the date on which the products shall be delivered to the Customer. Their no-abidance cannot in any event bring about the cancellation of the order or the payment of any damages to the Customer.
Unless otherwise mutually agreed to in writing and signed by both Seller and Customer, delivery from Seller’s factory, fabrication site, or a designated shipment point to Customer’s destination shall be DDU, named place, Incoterms 2000.
If the products are sold under the Incoterm EX-Works, the risk of damage to or loss shall pass to the Customer at the time when the Seller notifies the Customer that the product is available for collection; or in the case of the products to be delivered otherwise than at the Seller’s premises, at the time of delivery. Customer will pay, or reimburse Seller for all freight, taxes, duty and entry fees, special and miscellaneous charges and special packaging charges. If the Customer cannot arrange shipment to ensure their collection within a term of five calendar days after it has been notified that the products are available, the Seller reserves the right to charge extra costs for stocking.

INSPECTION OF THE PRODUCTS – The Customer shall cause that an inspection of the products is made at the delivery of the products. The inspection is made entirely at the Customer expenses.

Quantities or dimensions. The quantities and/or dimensions appearing on the Seller’s documents are deemed to be correct. Any dispute in that respect shall be notified to the carriers at the time of physical delivery, and must, in addition, be notified to the Seller by the Customer at the latest within two calendar days following the delivery of the goods. Execution of the order shall be deemed to be in conformity with the contract if the actual weight or quantity supplied is inferior to or is exceeding 10% of the weight or quantity ordered. In the event of visible discrepancies or shortage, the Customer is held to make a notification on the CMR document and to send a registered letter to the latter (or any other responsible third party) at the time of the discovery of the discrepancy or shortage but at the latest within seven calendar days from the delivery. In the event of non- delivery of the whole shipment and/or entire parcel, the customer is held to make a notification on the CMR document and he is also requested to address a registered letter to the carrier (or any third party) to hold him responsible of the non-delivery and to ask him a certificate of definitive loss. No remedy will be provided by the Seller in case of notification not compliant with this article or in case or late notification.
Transport. The products are duly packed in such a way as to prevent any damage. The Customer (or its agent) is requested to carefully check the packaging. If same shows traces of damage or breakage, the Customer has to immediately insert reserves on the CMR and to hold the carrier responsible. A registered letter must be addressed immediately by the Customer to the carrier. In addition, in the event of any damages due to the transport or/and handling or in the event of other damages which are visible at the delivery, notification must be made in writing on the CMR and to the Seller within two calendar days following the delivery of the products. No remedy will be provided by the Seller in case of notification not compliant with this article or in case of late notification.
Quality. Any defect discovered when the products are put into work shall be notified at once and, at the latest, within seven calendar days following the discovery of the defect. For the purposes of the present clause, defects shall be understood to refer solely to defects in the production of the products and shall not include damages resulting from transport, handling or storage and/or defects which were visible at the delivery.

WARRANTY, LIMITATION OF LIABILITY AND REMEDIES

THERE IS NO WARRANTY OF MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE, NOR IS THERE ANY OTHER WARRANTY EXPRESS OR IMPLIED, EXCEPT AS PROVIDED FOR HEREIN. Without prejudice to the application of the Law on products liability, unless expressly agreed to the contrary, the Seller’s liability is limited to the outright replacement of the products agreed to be defective, without any possibility of any other remedies or/ and indemnification. In no circumstances, except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall be liable to the Customer by reason of any representation (unless fraudulent), or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the contract, for any indirect, special or consequential loss or damage (whether for loss of profit or otherwise), costs, including remanufacturing cost, rework cost, de-installation or re-installation cost, expenses or other claims for compensation whatsoever (whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the manufacture, packaging, delivery, storage, use, misuse or non-use of any of the product their use or resale by the Customer, or any other cause whatsoever.
The products agreed to be defective remain the property of the Seller. These products must be returned to the Seller within 15 calendar days of Seller’s acceptation of the claim or be available for inspection by the Seller or his representative until final decision. The Customer bears the responsibility of providing appropriate storage and preservation of the products.

RETENTION OF OWNERSHIP – The products shall remain the property of the Seller until such time as the full-price and all other transport and other costs associated with the delivery have been fully paid by the Customer.

PAYMENT. Customer shall make payment in the currency specified in the Seller’s documentation and in full compliance with the payment terms as defined in the Seller Acknowledgement Form. A monthly interest charge at the rate of 12% per annum will be assessed on all past due payments calculated from the due date. In addition, in the event of non-payment of the full purchase price by the due date of payment, the amount outstanding shall be automatically increased by 15%. Seller may, at any time or times, suspend performance of any order or require payment in cash, security or other adequate assurance satisfactory to Seller when, in Seller's opinion, the financial condition of Customer or other grounds for insecurity warrant such action. Customer may not set off or try to set off any amounts that may be claimed by Customer against any amounts that are owed to Seller. Without prejudice to the foregoing, the Seller shall also be entitled to recover from the Customer all costs expended in relation to the recovery of outstanding amounts including legal costs.

FORCE MAJEURE – Whenever performance by Seller of any of its obligations hereunder, is substantially prevented by reason of any act of God, strike, lock-out, or other industrial or transportation disturbance, fire lack of materials, law, regulation or ordinance, war or war conditions, or by reason of any other matter beyond its reasonable control, then such performance shall be excused, and deemed suspended during the continuation of such event and for a reasonable time thereafter, delayed, or adjusted accordingly.

GOVERNING LAW – COMPETENT COURT – When subscribed through the Belgian branch office, the contract is governed by Belgian law excluding the application of the Convention of Vienna on Contracts for International Sale of Goods, as well as by Copperweld Bimetallics L.L.C.’s Sale Terms and Conditions as found on our website. The Courts of Brussels shall have exclusive jurisdiction with regard to any dispute arising in connection with the contract, this without prejudice to the Seller’s right to sue for recovery of money due to us before the Courts having jurisdiction over the Customer's place of business. If any provision of these Seller’s General Conditions of Sale is held by any competent authority to be invalid or unenforceable in whole or in any part, such provision shall be ineffective, but only to the extent of such invalidity or unenforceability, without invalidating the remainder of such provision nor the other provisions of these conditions which shall not be affected.

Offer – The Purchase Order (“Order”) and any referenced attachments, constitute an offer by Copperweld Bimetallics LLC (“Buyer”) to the supplier identified on the face of this Order (“Seller”) to purchase the products and/or perform the services listed on the face of this Order (collectively, the “Products” and “Work,” respectively). The offer is conditioned upon Seller’s acceptance of each of the terms and conditions of this Order. Any provisions printed or otherwise contained in any acknowledgement or acceptance of this Order which are inconsistent with or in addition to the terms and conditions set forth herein shall constitute a counter offer, and shall not be binding on Buyer until specifically accepted in writing by Buyer. If prior to signing this Order, Seller ships any Product or other material or commences any Work covered by this Order, that shipment or Work shall be governed by this Order.

Acceptance; Entire Agreement – Seller shall accept this offer by giving Buyer a prompt written acknowledgement of its acceptance of this Order. Buyer and Seller hereby agree that, if Seller fails to provide Buyer with such written acknowledgement of Seller’s acceptance of this Order within fifteen (15) days from the date of this offer, Seller shall be deemed to have accepted this offer, and the terms and conditions as expressed herein shall apply in full and be binding on Buyer and Seller. Acceptance of this Order shall occur at the time Buyer receives Seller’s written acknowledgement, or Seller ships the first Product or commences the Work, whichever occurs first. This Order (including any referenced attachments), once accepted as provided above, shall constitute the entire agreement between Buyer and Seller (each a “Party”) regarding the subject matter hereof, and shall supersede all prior discussions, negotiations, and agreements regarding such subject matter, whether written or oral, express or implied, by principal or by agent.

Amendments & Modifications – Prior to Seller’s acceptance of this Order, Buyer may add, delete, or modify any term or condition in this Order, but must do it in writing or orally with a written confirmation. After Seller’s acceptance of this Order, any addition, deletion, or modification of these terms and conditions of this Order, including a modification supported by new consideration, shall be effective only after it has been reduced to writing and signed by Buyer and Seller. If Seller is required to modify any specification of any Product or Work, Seller shall notify Buyer in writing of the modification and the reason therefore; such modification shall not become part of this Order, unless and until it is accepted in writing by Buyer.

Price – Subject to other provisions of these terms and conditions, the prices provided by the Seller in association with this Order are firm and fixed, unless provisional pricing is agreed to in writing between the Parties. Buyer shall receive the benefit of any general reductions in Seller’s prices prior to delivery. For each Product or Work purchased hereunder for which a price is not shown in this Order, Buyer shall pay Seller the last price quoted prior to Seller’s acceptance, unless provisional pricing is agreed to in writing between the Parties. If Seller fails to quote a price on a Product or any Work prior to acceptance, Seller shall immediately notify Buyer of the price and Buyer shall have fifteen (15) days from the date of receipt of the price notification to accept or reject the price. If the price is rejected with regards to any Product or Work, this Order is automatically terminated with regard to that Product or Work only and any materials related to such terminated Products or Work in the possession of Buyer shall be returned to Seller at Seller’s risk and expense.

Quantity – Buyer shall be obligated to purchase and accept only the quantity of undamaged and non-defective Products specified in the Order conforming to the Product specifications. Any Products received in excess of the Order may be returned to Seller at Seller’s risk and expense. If an event of Force Majeure (as defined below) diminishes the quantity of available Products, Seller shall provide Buyer with at least the portion of Products available that Buyer would receive under a fair and equitable allocation relative to Seller’s other customers with written contracts.

Product Warranties – Seller represents and warrants that all Products sold hereunder are new and free from defects in material and workmanship and conform to the specifications for such Products. If Seller specifically designs or manufactures a Product for Buyer, Seller also represents and warrants that the Product will be fit for the intended purpose. Seller further represents and warrants that the sale of the Products hereunder does not constitute an infringement of any copyright, trademark or patent or violation of any trade secret or other intellectual property right. Seller shall furnish all vehicles, facilities, machinery, equipment, consumables, tools, materials, supplies, fuel maintenance, expertise, oversight, experience and personnel necessary or useful for the safe and expeditious production of the Products for this Order.

Services Warranties – Seller shall perform all Work (a) diligently, (b) in a thorough, good, safe, and workmanlike manner, (c) in a manner that meets or exceeds the specifications or requirements provided by Buyer or, if none are given, the highest recognized standards of good practice in the industry in the United States utilized by reputable persons or firms which specialize in providing similar services, (d) in a manner suited for Buyer’s purposes if such purposes are made known or are reasonably apparent to Seller, and (e) in all respects in a manner that is satisfactory to Buyer. Seller shall furnish all vehicles, facilities, machinery, equipment, consumables, tools, materials, supplies, fuel maintenance, expertise, oversight, experience and personnel necessary or useful for the safe and expeditious performance of the Work for this Order.

Warranty Remedy – If any Work or Product fails to meet the warranty or designated specifications, Seller shall within forty-eight (48) hours from delivery of defective Work or Product, repair or replace the Product and/or re-perform the Work at Seller’s risk and expense; provided that Buyer gives Seller reasonable notice of the defect. If Seller is unwilling or unable to re-perform the Work, Buyer may terminate the Order. Defective Products may be repaired or replaced by Seller at Buyer’s facility or wherever the Product is located, or may be returned to Seller’s facility, or to an authorized repair center, at Seller’s option, risk and expense. Seller shall, for a period of two (2) years after the date of shipment of the Products or completion of the Work, retain all documents which relate to the quality of the materials used in the Products or in performing the Work and shall upon reasonable notice make those documents available to Buyer or its representatives for inspection and copying. All warranties shall inure to the benefit of and be enforceable by both Buyer and its Affiliates, jointly and separately. In this Order, an “Affiliate” shall mean, with respect to any Person, any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with such first Person; for which purposes “control” shall mean the ability to direct the management or policies of a Person (a) through beneficial ownership of 50% of more of the voting shares or other securities of a Person or (b) in the position as a general partner of a limited partnership or manager of a limited liability company. In this Order, “Person” shall mean a natural person, partnership (whether general, limited, or limited liability, and whether domestic or foreign), limited liability company, trust, business trust, estate, association, corporation, joint venture, custodian, nominee, cooperative, or any other organization or any other individual or entity in its own or any representative capacity.

Non-Conforming Goods – Buyer may reject and refuse to pay for Goods within 30 days of delivery which (i) do not meet the specifications of the agreement or have been damaged during manufacturing, storage or shipping prior to delivery, (ii) are delivered in an unsafe condition or fail to meet applicable safety regulations, or (iii) are otherwise not in material compliance with the terms and conditions of the Purchase Order. Upon timely notice, Seller shall replace the non-conforming Goods with conforming Goods or refund the purchase price, at Buyer's option. Return or disposal of the non-conforming Goods shall be at the sole expense of the Seller, and any liability associated with the non-conforming Goods shall be the responsibility of the Seller.

10.

Packing – Seller shall properly package each Product and other materials provided hereunder in order to insure adequate protection against damage during shipment. Each Product and package shall be properly labeled as indicated in this Order, and no fee for packaging, packing, crating, freight, express cartage or their costs will be paid by Buyer unless specified otherwise herein.

11.

Hazardous Material – Seller is responsible for supplying to Buyer and Buyer’s receiving agent “Material Safety Data Sheets” or other required documents for any materials classified as “hazardous” (or any similar characteristic) per 49 C.F.R. Part 100, et seq. or any other applicable laws. Seller is responsible for complying with all applicable laws regarding packaging, marking, and shipment of hazardous materials for delivery to the designated receiving location and agrees to release, defend and indemnify the Buyer from and against, and hold Buyer harmless from, all suits, actions, legal or administrative proceedings, claims, demands, legal fees, damages, losses, liabilities, costs, and expenses of any nature whatsoever (including claims for indemnification under other contracts, reasonable attorney’s fees and legal costs) (collectively, “Claims and Losses”) resulting from, relating to, or arising in connection with, Seller’s failure to do the same.

12.

Delivery & Shipment – Unless stated to the contrary in writing by Buyer, all Products shall be shipped on an Incoterm destination basis to the “Ship To” address and by the delivery date specified by this Order or, if no deadline is specified, within a reasonable time. Seller shall not deliver the Products on board a carrier other than the one arranged by Buyer’s freight forwarder specified hereunder or its agent. If delayed in shipping, Buyer may require Seller to ship the Products by the most expeditious means and Seller shall pay for the portion of the transportation charge that exceeds the cost of the method that would have otherwise been used as well as pay for all additional costs incurred by Buyer due to the delay. Seller shall, in all cases, forward to Buyer the express receipt or the bill of lading signed by the carrier in order to evidence shipment, and such requisite shipping documentation shall be attached to the original invoice submitted by Seller.

13.

Title & Security Interest – Seller represents and warrants that it has the right and authority to sell the Products hereunder and that, upon Buyer’s payment in full of the price set forth herein, Buyer will obtain good title to the Products free and clear of liens, claims and encumbrances of any kind, including claims by third parties of infringement of patent, trademark, copyright or other intellectual property rights. Unless otherwise specified herein, title to the Products purchased hereunder shall pass from Seller to Buyer at the time Seller delivers possession of the Product to Buyer or Buyer’s agent at the destination specified under “Ship To” address for this Order. If Seller agrees to transport the Products, title shall pass whenever the Products are actually delivered to Buyer or Buyer’s agent. Seller shall bear all risk or loss until title passes to Buyer. In order to secure performance of the obligations due under this Order, Seller does hereby grant, affect and hypothecate to Buyer a lien and security interest in all of Seller's interest in the Products, whether existing as finished goods or works in progress, and any and all products and proceeds of the foregoing.

14.

Return – If for any reason Buyer decides not to use all or any portion of the Products purchased hereunder, Buyer may return to Seller, at Buyer’s expense, all new, unused Products regularly stocked by Seller.

15.

Invoicing & Payment – Seller shall invoice Buyer for all Products sold and Work performed hereunder. Each invoice shall specify Buyer’s Order line item number, this Order number, and the date of this Order. The invoice is typically delivered to Buyer’s accounts payable within twenty-four (24) hours of shipment. If Seller allows Buyer a discount for cash payment, the time allowed to make that payment shall commence on the day Buyer receives a correct invoice. Buyer shall have no obligation whatsoever, and Seller hereby releases and discharges Buyer, from making payment on any invoice submitted more than two (2) years after final delivery of all of the Products or performance of all Work. Seller hereby waives, releases and disclaims any right to claim or receive (under any legal or equitable theory, including unjust enrichment and quantum meruit) any compensation in respect of any invoices that are not submitted in conformance with the time limitations and other conditions set forth in this section. Unless otherwise specified on the face of this Order, payment for the Products and Work shall be made within thirty (30) days from the receipt of invoice by Buyer, unless as otherwise agreed in writing between the Parties at the time the Order is submitted. All payments in connection with this Order shall be paid directly to Seller ordinarily in the country where this Order is to be performed in United States dollars, based, if applicable, on the official exchange rate of the central bank of such country, in compliance with all Applicable Laws relating to tax, currency control and banking. No payment made by Buyer under this Order shall be paid in the form of cash or any bearer instrument, nor shall any payment be paid by Buyer to any individual or entity other than Seller. For payments by wire transfer, Seller shall provide to Buyer all information necessary to make such payment, including the name and location of the financial institution and the name and number of the bank account. Payments expressly provided for herein shall be the only payments that Seller is entitled to receive from Buyer for this Order.

16.

Taxes – Seller shall be solely responsible for the ascertainment of, timely filing of returns for, and prompt payment of (including, if applicable, by virtue of Buyer’s withholding required amounts from payments to Seller hereunder) any and all applicable taxes, duties, levies and assessments (including stamp, income, profit, value-added, turnover, withholding, social security and other employment and payroll-related taxes), whether personal, corporate or otherwise, including any interest, fines, penalties and other charges thereon, imposed by any nation, federal, state, local or other jurisdiction or taxing authority in connection with or related to this Order, including the consideration paid to Seller hereunder and the consideration paid by Seller to personnel in connection with any Work. The invoice shall detail, apart from the price of the Products and Work, all such taxes in effect at the time of sale, and the prices on the face of this Order include all such taxes. Seller is responsible for prompt payment of said taxes and agrees to release, defend and indemnify the Buyer from and against, and hold Buyer harmless from, all Claims and Losses resulting from, relating to, or arising in connection with, any of such taxes.

17.

Audit – Seller shall maintain a true and correct set of records, including accounts, invoices, tickets and any other materials or documents (the “Records”) pertaining to the Products and the Work performed hereunder, any payments received or costs incurred and compliance herewith by Seller in connection with the performance of its obligations hereunder. Seller further agrees to retain all Records for a period of at least two (2) years after the end of the calendar year in which this Order expires or terminates, and agrees that Buyer (or its designated professional advisors) may, at any time during this Order or until the expiration of such two-year period (including any additional time as may be required to resolve any dispute), at its own cost and expense, and upon providing written notice to Seller, audit any Records for purposes of verifying compliance with this Order. Buyer and/or its authorized representatives shall have the right to reproduce and retain copies of any of the aforesaid Records and shall be responsible for all costs associated therewith. The rights of Buyer in this section shall be additional to and shall not prejudice any other or additional rights and remedies afforded to Buyer by law to audit the Records and shall be without prejudice to Buyer's right to take legal action with respect thereto, including the right to dispute any invoice as a result of such audit. In the event that an error is discovered pursuant to this Article, then the Parties shall remedy the error, and the Party owing payment shall pay the other Party the amount concerned within thirty (30) days of the error being substantiated.

18.

General Indemnity by Seller - Except as otherwise provided in this Order, Seller shall be solely responsible for and agrees to release, defend and indemnify the Buyer from and against, and hold Buyer harmless from, any and all Claims and Losses arising out of or related to any death or bodily injury or disability, or any property damage or property loss, of any of the Seller and arising out of or related to this Order, the Products, or the Work. Seller shall be solely responsible for and agrees to release, defend and indemnify the Buyer from and against, and hold Buyer harmless from, all Claims and Losses resulting from, relating to, or arising in connection with, any failure by Seller to comply with Applicable Law (as defined below). Seller assumes liability for and agrees to release, defend and indemnify the Buyer from and against, and hold Buyer harmless from, all Claims and Losses resulting from, relating to, or arising in connection with, any pollution or contamination that originates or emanates from and is directly associated with the Products or the production thereof. SELLER’S OBLIGATIONS IN THIS SECTION SHALL APPLY REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, OR CONCURRENT NEGLIGENCE, STRICT LIABILITY, GROSS NEGLIGENCE, WILLFUL MISCONDUCT, BREACH OF WARRANTY, OR OTHER FAULT OF THE BUYER, THE UNSEAWORTHINESS OR UNAIRWORTHINESS OF ANY VESSEL OR CRAFT, A PREEXISTING CONDITION, EXPLOSION, OR FIRE.

19.

IP Indemnification - Seller shall indemnify and defend Buyer, at Seller’s expense, from claims, demands, suits, or proceedings made or brought against Buyer by a third party (“Claims”) alleging that the Products supplied in accordance with this Order infringe said third party’s intellectual property rights and shall indemnify and hold Buyer harmless against any loss, damage or costs finally awarded or entered into in settlement (including, without limitation, reasonable attorneys' fees) (collectively, “Losses”); provided that Buyer: (i) promptly gives written notice of the Claim to Seller (although a delay of notice will not relieve Seller of its obligations under this section except to the extent that Seller is prejudiced by such delay); (ii) gives Supplier sole control of the defense and settlement of the Claim (although Seller may not settle any Claim unless it unconditionally releases Buyer of all liability); and (iii) provides to Seller, at Seller's cost, all reasonable assistance. Seller shall have no liability for Claims or Losses to the extent arising from: (i) modification of a Product by anyone other than Seller; (ii) use of the Product in a manner inconsistent with the Product documentation; or (iii) use of the Product in combination with any other product or service not provided by Seller. If Buyer is enjoined from using the Product or Seller reasonably believes it will be enjoined, Seller shall have the right, at its sole option, to obtain for Buyer the right to continue use of the Product or to replace or modify the Product so that it is no longer infringing. If none of the foregoing options are reasonably available to Seller, then this Order may be terminated at either Party’s option and Seller, in addition to the indemnification obligations herein, shall be to refund any amounts paid for the Products.

20.

Indemnity Obligation Supported by Insurance - The Parties agree that the indemnity obligations contained herein shall be supported by liability insurance coverage or self-insurance furnished by the indemnitor in the types and in the amounts not less than those specified below. Seller shall have commercial general liability insurance with minimum limits of $3,000,000 general aggregate and $1,000,000 for each occurrence, with companies affording insurance coverage have a B+ or better rating, as rated in the A.M. Best Key rating Guide for Property and Casualty Insurance Companies. A certificate of insurance stating the types of insurance and policy limits provided must be provided to Buyer. Upon request, Buyer shall be named as an additional insured. Each of the policies listed above shall be endorsed to waive subrogation. Seller shall provide Buyer with a copy of all applicable insurance policies promptly upon the request of Buyer.

21.

Termination for Convenience – Buyer reserves the right to terminate this Order, or any part hereof, for any reason or no reason and at any time by giving Seller written notice. Upon notification of termination, Seller shall protect all property in its possession in which Buyer has an interest, shall terminate all Work and commitments made under or pursuant to this Order or such terminated part hereof as quickly and effectively as possible, and shall provide written proof that such termination has been accomplished in a timely and cost-effective manner. Buyer shall pay Seller that percentage of the price corresponding to the percentage of the Work performed and Products accepted by Buyer prior to the notice of termination less all amounts previously paid, plus actual direct costs reasonably necessitated by the resulting termination. Seller shall not be paid for any Work done or Products delivered after receipt of notice of termination, for any costs incurred by Seller’s suppliers or subcontractors that Seller could reasonably have avoided, or for any other amounts not explicitly provided for in this section, including lost profits. Seller shall, if so directed by Buyer, ship to Buyer all Products and materials for which Buyer shall have paid.

22.

Termination For Default –Buyer may terminate this Order for the following events of a default by Seller under this Order: (a) any dissolution, liquidation, bankruptcy, insolvency or similar proceeding is commenced by or against Seller or an assignee for the benefit of Seller’s creditors is appointed; (b) refusal or failure of Seller to deliver the Products or perform the Work in accordance with the delivery terms and schedule specified herein, or within a reasonable time if no time is specified; (c) failure to make progress so as to endanger performance of this Order in accordance with its terms or the delivery schedule specified herein, or within a reasonable time if no time is specified; or (d) failure to perform any other provision of this Order. In the event Seller does not cure any default within a period of ten (10) days after notice thereof, or such longer period as Buyer may authorize in writing, then Buyer may give written notice to Seller and terminate this Order or any part hereof. In the event of termination for default, Buyer shall not be liable to Seller for payment of any amount other than for the value of any Work performed or Products delivered by Seller prior to termination.

23.

Confidentiality; Publicity – This Order as well as all information furnished by or on behalf of Buyer hereunder and any information furnished by Seller in connection with a Product specially designed or manufactured or Work performed hereunder at Buyer's expense, shall be the proprietary information of Buyer and may be disclosed to a third party only with the prior written consent of Buyer, or if required to do so pursuant to Applicable Law. Neither Party hereto nor their Affiliates shall make any reference to the other Party hereto or its Affiliates in any publicity, advertising or publication related to this Order or the Party’s performance hereunder without such other Party’s prior written consent. This Article shall survive termination or expiration of this Order for any reason.

24.

Intellectual Property – For purposes of this Order, "Background Data" means all designs, plans, models, drawings, prints, samples, specifications, reports, manuscripts, working notes, documentation, manuals, photographs, negatives, tapes, discs, databases, software, and other information, and data embodied in any tangible form. Any Background Data relating to the Work or any Product furnished by Buyer is Buyer's property, and may not be used for other Work or Products and is to be returned to Buyer at the completion of the Order or upon Buyer's request. All intellectual property rights in Buyer Background Data shall remain the property of Buyer. All intellectual property rights in Seller Background Data shall remain the property of Seller. Each Party hereby grants a non-exclusive, irrevocable, worldwide, royalty-free license to the other Party to use, copy, or modify the Background Data of the grantor Party solely in connection with and for the purposes of this Order. Trade secrets which underlie either Party's Background Data shall be disclosed to the other Party to the extent necessary and only for the purpose of completion of Work or delivery of Products under this Order, subject to the obligation to keep such information as confidential as provided in this Order.

25.

Time of the Essence – The conduct of Buyer’s business is based upon obtaining the Products and Work described herein as soon as possible; therefore, time is of the essence with regard to the performance by Seller of its obligations under this Order.

26.

Export Certification – Seller shall document and make available for inspection at its offices by relevant governmental entities proof of export as may be required by Applicable Laws. Seller will furnish to Buyer any information requested by Buyer for compliance with Applicable Laws and regulations related to the Work or Products, including, but not limited to, "export control classification numbers (ECCN)," and types of licenses issued by the United States Bureau of Industry and Security.

27.

Governing Law & Dispute Resolution – This Order and its acceptance shall be a contract made in the State of Tennessee and shall be governed by and construed in accordance with the laws of the State of Tennessee, United States, except for any choice of rules of law which would direct the application of the law of another jurisdiction. Each Party irrevocably submits to the exclusive jurisdiction of the courts of the State of Tennessee and of the United States sitting in Davidson County, Tennessee in connection with any dispute, controversy or claim arising out of or relating to this order, including any question regarding its existence, validity or termination (each, a “Dispute”), and each party waives, to the fullest extent permitted by law, any objection it may now or hereafter have to the laying of venue in any of the courts referenced above and any claim that any proceeding brought in any such court in relation to any Dispute has been brought in an inconvenient forum.

28.

Waiver – A waiver by a Party of any right hereunder must be in writing and shall not constitute a continuing waiver nor shall it constitute a waiver of any other right.

29.

Assignment - Neither Party shall assign any of its rights or delegate any of its obligations under this Order without the prior written consent of the other Party, with both Parties acknowledging that said consent shall not be unreasonably withheld. Notwithstanding the foregoing, this Order may be assigned to an Affiliate of a Party, or assumed by a third-party acquiring the majority ownership or control of a Party, without the prior written consent of the other Party.

30.

Conflict – In the event there is any conflict between the face of this Order, any other Order or agreement with Seller, or any exhibit, schedule, annex or attachment to this Order, then this Order shall prevail, then any other Order, then any other agreement with Seller, and then any other exhibit, schedule, annex or attachment.

31.

Compliance with Law – Seller agrees that the Products and Work described herein are to be provided in compliance with all Applicable Laws. In connection with its performance hereunder, Seller shall be subject to, strictly observe and comply with, and shall cause its Affiliates to strictly observe and comply with, all applicable laws, regulations, rules, decrees, edicts, rulings, binding precedent and orders imposed by any country, nation, state, locality or governmental entity (collectively “Applicable Law”), and all policies and procedures of Buyer, including those relating to human rights, ethical conduct and health, safety and environment.

United States Export and Import Controls – The Parties agree to comply with the laws and regulations of the United States Government as they apply to the export and the re-export/re-direction of Products and technical data from the United States to other parties, or other countries. Products, including any documentation, data, or information and services pertaining thereto are subject to export controls of the law of the country where end user customer acquired or is using it, and also the law of the United States of America. Unless an export license or authorization has been obtained from the U.S. Bureau of Industry and Security and/or Office of Foreign Assets and Control, as applicable, Product is prohibited from export/re-export to the following: a) Any company or nationals of a country or to the country itself that is subject to U.S. export restrictions (currently including, but not necessarily limited to: Cuba, Iran, Libya, North Korea, Sudan and Syria), b) Export or re-export to a user where it is known or there is reason to know that an illegal reshipment of the Product to a country listed in subparagraph “a” above will take place, c) Entities listed on any U.S. Government Denied Party/Person List, including the U.S. Department of Commerce Denied Persons, Entities and Unverified Lists, the Office of Foreign Assets Control’s Specially Designated Nationals List and the Office of Defense Trade Controls Debarred List, and d) Any company known to be involved in or where there is reason to know that the company is involved, in the design, development, manufacture or production of nuclear technology, or missile, biological or chemical weapons.
Corruption – The Parties agree to comply with all U.S. and other Applicable Laws and regulations pertaining to foreign corrupt trade practices. The Parties’ obligations in this clause survive the terms of this Order.
Data Protection – The Parties acknowledge and agree that they are subject to the personal data and cyber security laws of the US, EU and other countries, including but not limited to the EU General Data Protection Regulation (“GDPR”), and that personal data of its employees, customers and suppliers, may not be exported from the EU without appropriate consents or applicable regulatory exceptions.
No Violation – Notwithstanding anything in this Order to the contrary, nothing herein shall require either Buyer or Seller to take any action that would result in either of them or any of their Affiliates being in violation of, or penalized under, any law, rule, order or regulation applicable to either of them or any of their Affiliates, and Seller shall not take any action that would result in Buyer or any of its Affiliates being in violation of, or penalized under, any law, rule, regulation or order applicable to Buyer or any of its Affiliates.

32.

Independent Contractor – Seller is an independent contractor, and neither Seller nor any of its Affiliates shall be considered, for any purpose, to be employees, agents or servants of Buyer, its Affiliates or any of their respective directors, officers, employees, agents or representatives. Neither Seller nor any of its Affiliates shall: (a) have power or authority to act for, represent or bind Buyer or its Affiliates in any manner whatsoever, or (b) have the authority to engage or hire any Person on behalf of Buyer or its Affiliates, except as otherwise expressly set forth in this Order, and any Persons whom it may engage or hire shall be deemed to be solely the employees or contractors of Seller. All contractual obligations incurred by Seller in connection with this Order shall be in the name of Seller, as principal, and all debts, liabilities and obligations, of any nature whatsoever, imposed upon or incurred by Seller in its performance under this Order, shall be the sole responsibility of Seller.

33.

Conflict of Interest – If Seller or any of its Affiliates or any employee, agent or representative thereof shall make or offer any gift, gratuity, commission or other inducement in money or in kind to any Person in the employment of or contracted by Buyer, such action shall be deemed cause for which Buyer may terminate this Order without any liability to Seller whatsoever.

34.

Liens – In connection with its performance hereunder, Seller shall not make or allow to be made any mortgage, encumbrance, claim, lien, hypothecation, attachment or charge (“Liens”) on the Products or on any property of Buyer and shall release, defend and indemnify the Buyer from and against, and hold Buyer harmless from, any and all Liens.

35.

Parties in Interest – This Order shall be binding on and inure solely to the benefit of each Party hereto and its successors and permitted assigns, and nothing in this Order, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever. Notwithstanding the foregoing, any affiliate of the Buyer or Seller shall have the right to enforce any indemnity set forth in this Order pursuant to which it is (or they are) entitled to indemnification from the other Party.

36.

Severability – If, for any reason whatsoever, any provision of this Order is found to be void, voidable, illegal, or otherwise unenforceable, in whole or in part, it shall not affect the legality, validity or operation of any other provision of this Order, except only so far as shall be necessary to give effect to the construction of such invalidity or illegality.

37.

Interpretation & Construction – The headings contained in this Order are for convenience of reference only and do not constitute a part of this Order. For all purposes of this Order, except as otherwise expressly provided or to the extent that the context otherwise requires: (a) the terms defined herein include the plural as well as the singular and vice versa, (b) words importing gender include all genders, (c) the words “herein”, “hereof”, “hereto” and “hereunder” and other words of similar import refer to this Order as a whole and not to any particular provision or attachment of this Order, and (d) whenever the words “include”, “includes”, or “including” are used in this Order, they shall mean include, includes or including without limiting the generality of the description preceding such term. This Order or any provision hereof shall not be construed in favor of or against any Party hereto based on which Party drafted this Order or any such provision. Any approval or consent required of Buyer under this Order shall not relieve Seller of any of its obligations, responsibilities or liabilities under this Order or at law. Payment of any invoice by Buyer shall not be interpreted to mean that Buyer accepts the quality, fitness or workmanship of any Product supplied or Work performed by Seller hereunder.

38.

Dispute Resolution.

Negotiated Resolution – In the event that a dispute arises between the Parties, the Parties shall each assign the dispute to a single point of contact within their organizations for resolution. If after fifteen (15) days no resolution has been achieved, the dispute shall then be escalated to executive level management in each Party’s organization.
Mediation – In the event the Parties are unable to resolve any dispute arising from this Order, the Parties agree that it shall first be submitted to mediation, with the cost of the mediator being shared equally by the Parties. The mediator shall have at least five (5) years of experience mediating commercial contract disputes. If either Party elects to have counsel represent them in the mediation, such Party shall pay for its own legal representation. If mediation is unsuccessful after thirty (30) days, then either Party may submit the dispute to arbitration or pursue litigation where appropriate for injunctive relief.
Arbitration – If executive level management is unable to resolve such dispute, and the Parties are unable to resolve the dispute via mediation, the matter shall be submitted to arbitration at the election of either Party (the “Disputing Party”) in accordance with the prescriptions below:

Procedures – The arbitration shall be conducted pursuant to the Federal Arbitration Act with the arbitrator or arbitration panel applying the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), as they may be amended from time to time, except as expressly provided in this Section. The Disputing Party shall notify the AAA and the other Party in writing describing in reasonable detail the nature of the controversy (the “Dispute Notice”). Within thirty (30) days of receipt of the Dispute Notice, the Parties shall: (i) mutually agree to nominate one (1) arbitrator or (ii) in the event the Parties cannot agree on a single arbitrator, nominate two (2) arbitrators (with each Party having the right to select one (1) of the arbitrators), and the two (2) arbitrators shall select a third arbitrator. Any arbitrator selected by the Parties shall have at least five (5) years of experience in commercial contract disputes.
Place of Arbitration – The venue for any arbitration proceeding shall be held in Nashville, Tennessee, United States.
Confidentiality – To the fullest extent permitted by law, the arbitration proceedings and award shall be maintained as confidential.
Immediate Injunctive Relief – The arbitration panel will have the authority to issue a temporary restraining order or other immediate injunctive relief, and upon the issuance of such order, a Party may file a proper pleading with a court of competent jurisdiction seeking immediate enforcement thereof.
Right to Pursue Litigation to Seek Injunctive Relief – Nothing in this section shall prevent either Party from pursuing legal action to seek injunctive relief in a court of competent jurisdiction in the event of a breach or threatened breach would result in irreparable harm.

39.

Language – This Order was negotiated, constructed and entered into in English. The Parties expressly agree that this Order shall be construed and enforced in English, and that this English version shall take precedent over any translation of this Order, as well as any oral or written communications between the Parties either before of following this Order. This Order is the result of arms-length negotiations between the Parties, which were represented by legal counsel of their choosing, as such this Order shall not be construed or constructed against either Party as the drafter of this Order.