1. Materials. Upon our request, you will promptly provide us with copies of any data, materials or other information that relate to the Supplies, their composition or any component, materials or substances used in the Supplies or in connection with their production. You will notify us of any inherent hazard related to any material incorporated in the Supplies that could expose anyone to hazard during handling, transportation, storage, use, resale, disposal or scrap.
2. Recalls. In the event you or we decide, or a United States or foreign government agency (“Agency”) issues an order requiring us, to recall, replace, repair or make refunds with respect to any of our products included within the Supplies or that incorporate the Supplies (a “Recall”), you will fully cooperate and assist us in any such Recall. If the Supplies are the subject of a Recall, whether initiated by us, you or an Agency (including the issuance of safety notices), you will be responsible for all matters and costs associated with the Recall (including our employee costs, overhead, warehousing, etc.), including, but not limited to: (i) consumer notification and contact; (ii) customer refunds and transportation costs and (iii) reporting the Recall to, and contact with, any Agency. If an Agency initiates any inquiry or investigation relating to the Supplies, you will notify us immediately and take reasonable steps to resolve the matter without exposing us to liability or risk.
3. Compliance with Laws and Regulations, and Policies, Procedures, and Programs. You warrant your Supplies will be provided in strict compliance with all federal and state laws and regulations applicable, as well as any applicable policies procedures, and programs (collectively “Rules”) we provide to you, or that are otherwise available on our website. These Rules may hereafter be revised, from time to time, by us, by posting revisions on the Website without notice to you, and such revisions shall be binding on you and us upon posting. You agree that you will check the Website for any revisions to these Rules. No change, waiver or consent with respect to these Rules will be binding on us unless contained in a separate writing signed by a vice president of AECC. If performing work on or at our facility, you also agree to comply with the Campus Emergency Procedures, and Campus Security Plan, which will be provided to you prior to beginning work.
At our request, you shall certify in writing your compliance with the foregoing. You shall indemnify us and hold us harmless from and against any Claims arising from or relating to your noncompliance. We have the right to (i) audit you and any person or entity you employ to work on our behalf, and/or (ii) retain independent third parties to audit you and any person or entity you employ to work on our behalf, for compliance with your obligations under the Purchase Terms, including without limitation the provisions of this Article X, Section 3.
4. Subcontractors. We will not be deemed by virtue of the Purchase Terms or otherwise to have any contractual obligation to or relationship with any of your subcontractors. You shall include a clause to this effect in each subcontract with your subcontractors. You shall be solely responsible for paying each subcontractor for services, equipment, materials or supplies in connection with any work under the Purchase Terms.
5. Dispute Resolution. An attempt to resolve any dispute, claim or controversy arising out of the Purchase Terms must first be made, in good faith, between an executive of our company, and an executive of your company, by phone or in person. If such attempt fails, then the dispute, claim or controversy shall be submitted to mediation. If mediation fails, then final resolution of any dispute, claim or controversy arising out of the Purchase Terms shall be made before a court of law in the State of Arkansas, Pulaski County.
6. Governing Law/Jurisdiction. The Purchase Terms will be construed and interpreted according to the laws of the State of Arkansas, without regard to the laws regarding conflicts of laws. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
7. Our Facility and/or Job Site. You agree that if the provision of the Supplies requires construction, installation and/or repair services on or at our facility and/or our job site, you shall comply in all regards with the Contractor Safety and Health Rules (“Rules”). These Rules will be valid and binding on you without your signature if issued by us through our computer system or other electronic means and can be found on the Web Site. These Rules may hereafter be revised, from time to time, by us, by posting revisions on the Web Site without notice to you, and such revisions shall be binding on both you and us upon posting. You agree that you will check the Web Site for any revisions to these Rules. No change, waiver, or consent with respect to these Rules will be binding on us unless contained in a separate writing signed by a vice president of our company. If performing work on or at our facility, you also agree to comply with the Campus Emergency Procedures, and Campus Security Plan, which will be provided to you prior to beginning work.
8. Remedies. The rights and remedies reserved by us in the Purchase Terms will be cumulative and in addition to any other rights or remedies provided by law or equity.
9. Waiver. Our waiver of any right or remedy will not affect any right or remedy subsequently arising under the same or similar clauses. A waiver of nonperformance under the Purchase Terms must be in writing and will apply only to the specific instance addressed in the waiver and to no other past or future nonperformance.
10. Assignment. Neither party may assign any benefit or obligation under the Purchase Terms without the written consent of the other party.
11. Advertising. You shall not, without first obtaining our specific written consent, in any manner advertise, publish or disclose to any third party that you have contracted with us to furnish Supplies covered by the Purchase Terms except as specified by us in writing or required for completion of an order.
12. Continuing Obligations/Severability. The continuing obligations of each party under the Purchase Terms, including but not limited to Article II, Section 3, Article VIII, and Article IX, will survive the expiration, non-renewal or termination of the Purchase Terms. Any term or condition that is declared unlawful or unenforceable by a court of competent jurisdiction will not apply. The unenforceability of any such term or condition will not affect the enforceability of any other term or condition.
13. Proprietary Information/Intellectual Property. All specifications, drawings, notes, instructions, engineering notices, technical data and equipment referred to or supplied by us in connection with the Purchase Terms are incorporated into the Purchase Terms by reference. You agree that this, together with all information (whether disclosed directly or indirectly, orally, in writing or by inspection of tangible objects and whether or not labeled confidential, including without limitation technical design, manufacturing and application information, financial information and business plans, information concerning customers, sales and marketing, know-how and trade secrets) we disclose to you or information or work product created by you in providing the Supplies, is our confidential and proprietary information (“Proprietary Information”), and you will not reproduce, extract, use or disclose it to others without our prior written consent. You will take reasonable steps to safeguard Proprietary Information from unauthorized access and disclosure. Absent written consent between the parties, you will not make use of any of our Proprietary Information in connection with preparing or filing a patent application, including any application containing information that is derived from our Proprietary Information, and you covenant not to file any patent application based on our Proprietary Information including but not limited to a patent application containing information that is derived from our Proprietary Information without our written consent. You will not challenge any application for or subsequent registration of a patent containing information that is derived from Proprietary Information. You hereby assign to us any information, writings or inventions derived by you or your agents from our information or resulting from the provision of the Supplies. We shall have the right at no additional charge to use, incorporate or reproduce all or portions of material found in your literature. You agree, upon our request, to require each of your employees who may be engaged in work under the Purchase Terms to execute an agreement assigning to us all IP rights relating to work hereunder, including the right to enforce such IP rights. You agree to assign to us the entire right, title and interest in and to any and all IP rights covering any inventions made by you or your employees during the course of the Purchase Terms which relate to the Supplies. At our sole cost, you will assist us in preparing and obtaining any IP rights and perfecting title thereto. You agree not to assert any rights or claims based on any IP or other rights for the use of the IP by us or on our behalf. You agree not to challenge any application for or subsequent registration of any IP rights containing information that is derived from the Supplies. You hereby further agree to grant us a royalty-free, non-exclusive and irrevocable license to reproduce, translate, publish, make derivative works, use and dispose of (and authorize others to do so) any and all IP furnished as a result of the provision of the Supplies provided by you hereunder. In this regard, to the extent permitted by law, all copyrights and derivative works shall be “work made for hire” for us in accordance with applicable copyright laws. Any copyrights for work that may not be covered as a work made for hire are owned by us and shall be assigned by you to us at our request. It is understood, however, that we do not obtain ownership in any of your background confidential information existing prior to the Purchase Terms, although we shall have the full right to use and sell work product and Supplies provided to us by you hereunder. Upon demand by us or upon completion by you of your obligations under the Purchase Terms, you will return to us all Proprietary Information and you will not retain any copies, summaries or extracts of all or any part thereof. Any information you disclose to us with respect to any services or the design, manufacture, sale or use of Supplies will be deemed to have been disclosed as part of the consideration for the Purchase Terms, and you will not assert any claim against us by reason of our use of such information. Without our express written consent, you will not disclose to any third party or permit any third party to use any samples, over-runs, rejected parts or scrap produced or used by you in connection with the Purchase Terms (collectively, the “Remaining Product”), all of which you agree will be considered Proprietary Information. Upon termination of the parties’ relationship, or at any time upon our request, you will destroy all Remaining Product unless otherwise directed by us. If Supplies specified in the Purchase Terms are peculiar to our design either as an assembly or as a component part of an assembly, or if they bear our trademark or other identifying mark, they will not bear your trademark or other designation and similar material will not be sold or disposed of to anyone other than us.