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We have ended our distribution of Obutto products as of November 30th, 2018.

Main Performance PC Purchase Order Terms & Agreements

 

 

All purchase orders issued by Main Performance PC and accepted by a supplier, are contractually bound by these terms set forth below.

 

1. TERMS OF AGREEMENT

The purchase order, together with these terms and conditions, and any attachments and exhibits,

specifications, drawings, notes, instructions and other information, whether physically attached or

incorporated by reference (collectively the “Purchase Order”), constitutes the entire and exclusive

agreement between the Main Performance PC company (“Main Performance PC”) and the supplier (the “Supplier”) identified in the

Purchase Order. Main Performance PC’s submission of the Purchase Order is conditioned on Supplier’s agreement that

any terms different from or in addition to the terms of the Purchase Order, whether communicated orally

or contained in any purchase order confirmation, invoice, acknowledgement, release, acceptance or other

written correspondence, irrespective of the timing, shall not form a part of the Purchase Order, even if

Supplier purports to condition its acceptance of the Purchase Order on Main Performance PC’s agreement to such

different or additional terms. Supplier’s electronic acceptance, acknowledgement of this Purchase Order,

or commencement of performance constitutes Supplier’s acceptance of these terms and conditions. The

Purchase Order does not constitute a firm offer within the meaning of Section 2205 of the Tennessee

Commercial Code, and may be revoked at any time prior to acceptance. Notwithstanding the foregoing, if

a master agreement covering procurement of the Work described in the Purchase Order exists between

Supplier and Main Performance PC, the terms of such master agreement shall prevail over any inconsistent terms herein.

 

2. DEFINITIONS

 

2.1 “Deliverables” means the deliverables specified in the Purchase Order (and any

Statement of Work) to be delivered on or before the Delivery Date.

 

2.2 “Delivery Date” means the date or dates specified in the Purchase Order by which the

Supplier is required to deliver the Work.

 

2.3 “Harmful Code” means any software intentionally designed to (i) disrupt, disable, harm, or

impede operation, or (ii) impair operation based on the lapse of time, including but not limited to viruses,

worms, time bombs, time locks, drop-dead devices, access codes, security keys, back doors, or trap door

devices.

 

2.4 “Intellectual Property Rights” means any and all tangible and intangible: (i) copyrights and

other rights associated with works of authorship throughout the world, including but not limited to

copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof;

(ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs,

algorithms, utility models, and other industrial property rights, and all improvements thereto; (v) all other

intellectual and industrial property rights (of every kind and nature throughout the world and however

designated) whether arising by operation of law, contract, license, or otherwise; and (vi) all registrations,

applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force

(including any rights in any of the foregoing).

 

2.5 “Preexisting Materials” means any Intellectual Property Rights or tangible personal

property of Supplier or Main Performance PC created before the date of this Purchase Order or outside the scope of this

Purchase Order.

 

2.6 “Products” means tangible goods specified in the Purchase Order to be delivered on or

before the Delivery Date.

 

2.7 “Services” means the services that Supplier is to perform for Main Performance PC specified in the

Purchase Order.

 

2.8 “Statement of Work” or “SOW” means the document specifying, without limitation, the

scope, objective, and time frame of the Work that Supplier will perform for Main Performance PC.

 

2.9 “Subcontractor” means a third party performing Work under an agreement (a

“Subcontract”) with Supplier.

 

2.10 “Supplier Personnel” means Supplier’s employees, consultants, agents, independent

contractors and Subcontractors.

 

2.11 “Third Party Intellectual Property” means the Intellectual Property Rights of a third party

which Supplier uses or incorporates into the Work.

 

2.12 “Work” means the Deliverables, Products and Services specified in the Purchase Order,

including any SOW.

 

3. DELIVERY

 

3.1 Time is of the essence in Supplier’s performance of its obligations under Section 3 of the

Purchase Order. Supplier will immediately notify Main Performance PC if Supplier’s timely performance under the

Purchase Order is delayed or is likely to be delayed. Main Performance PC’s acceptance of Supplier’s notice will not

constitute Main Performance PC’s waiver of any of Supplier’s obligations.

 

3.2 If Supplier delivers Work after the Delivery Date, Main Performance PC may reject such Work.

 

3.3 Main Performance PC will hold any Work rejected under this Purchase Order at Supplier’s risk and

expense, including storage charges, while awaiting Supplier’s returns shipping instructions. Supplier will

bear all return shipping charges, including without limitation, insurance charges Main Performance PC incurs on Supplier’s

behalf. Main Performance PC may, in its sole discretion, destroy or sell at a public or private sale any rejected Work for

which Main Performance PC does not receive return shipping instructions within a reasonable time, and apply the

proceeds, if any, first toward any storage charges.

 

3.4 Supplier will preserve, pack, package and handle the Deliverables and Products so as to

protect the Deliverables and Products from loss or damage and in accordance with best commercial

practices in the absence of any specifications Main Performance PC may provide. Without limiting the foregoing, Supplier

shall observe the requirements of any local laws and regulations relating to hazardous work, including,

without limitation, with respect to its accompanying information, packing, labeling, reporting, carriage and

disposal.

 

3.5 Supplier will include with each delivery of Products a packing list identifying the Purchase

Order number, the Main Performance PC part number for each of the Products (if applicable), a description and the quantity of each of the Products, and the date of shipment.

 

3.6 Unless Main Performance PC expressly instructs otherwise, Supplier will deliver all Work to Main Performance PC’s plant at the address set forth in the Purchase Order. Seller assumes responsibility for all shipping and delivery charges including, without limitation, customs, duties, costs, taxes and insurance. Risk of loss for the Deliverable and Products does not pass to Main Performance PC until acceptance in accordance with Section 6.


3.7 Supplier agrees to deliver all work on or before the specified delivery date within the purchase order.  If no date is specified, the supplier has 30 days from acceptance to provide all work specified within the purchase order.  Late work is subject to a late fee per section 4.2 of this agreement.

 

4. PRICE AND PAYMENT

 

4.1 Unless otherwise specified in the Purchase Order, the price for the Work includes all

taxes and other charges such as shipping and delivery charges, duties, customs, tariffs, imposts and

government-imposed surcharges. Supplier will, at Main Performance PC’s request, break-out from the price all such

taxes and other charges, in its invoices. Supplier shall use its best efforts to assist Main Performance PC in all legal

efforts to minimize the taxes resulting from the performance of this Purchase Order.

 

4.2 Main Performance PC will pay Supplier the price in accordance with the payment terms set forth in the

Purchase Order following the later of: (i) the Delivery Date; (ii) the date of Main Performance PC’s acceptance of all of the

Work; or (iii) Main Performance PC’s receipt of a properly prepared invoice. A properly prepared invoice must include the

Purchase Order number and, if required in the Purchase Order, Supplier’s certification of conformance of

the Work to the requirements. Payment will be in the currency of the country in which the Main Performance PC entity or

affiliate identified in the Purchase Order is located, and if the price set forth in the Purchase Order is not

in the local currency, then Main Performance PC will determine the local currency equivalent of the price as of date of

payment.

Main Performance PC may, at any time, set-off any amounts Supplier owes Main Performance PC against any amounts Main Performance PC owes to Supplier or any of its affiliated companies. Per Section 3 regarding deliverable, Main Performance PC may asses a "Late Fee" of 5% per day of the total invoice that the purchase order is delivered past the due date without prior approval from Main Performance PC. This 5% fee may exceed the total cost of the PO and is considered a contractual obligation.

 

5. OWNERSHIP AND LICENSE

 

5.1 Unless otherwise specified in a SOW and except as provided in Section 5.2, Main Performance PC is the

sole and exclusive owner of all Deliverables and Supplier hereby irrevocably assigns and transfers to

Main Performance PC all of its worldwide right and title to, and interest in, the Deliverables, including all associated

Intellectual Property Rights.

 

5.2 Unless otherwise specified in a SOW, each party owns all right, title, and interest in and

to any of its Preexisting Materials. Supplier hereby grants Main Performance PC a perpetual, irrevocable, worldwide,

transferable, royalty-free, nonexclusive license, with the right to sublicense and authorize the granting of

sublicenses, to use and reproduce Supplier's Preexisting Materials in the Deliverables to the extent

necessary for Main Performance PC’s exercise and exploitation of its rights in the Deliverables.

 

5.3 Unless otherwise specified in an SOW, Supplier will obtain and assign to Main Performance PC a nonexclusive,

royalty-free, worldwide, perpetual, irrevocable, transferable, sub-licensable license to use all

Third Party Intellectual Property Rights incorporated into, required to use, or delivered with the Work.

Supplier will deliver copies of the above releases and licenses to Main Performance PC upon Main Performance PC’s request.

 

6. INSPECTION AND ACCEPTANCE

 

Main Performance PC may reject any or all of the Work which does not conform to the applicable requirements within 10

business days of Supplier’s delivery of the Work. At Main Performance PC’s option, Main Performance PC may (i) return the nonconforming

Work to Supplier for a refund or credit; (ii) requires Supplier to replace the non-conforming

Work; or (iii) repair the non-conforming Work so that it meets the requirements. As an alternative to (i)

through (iii), Main Performance PC may accept the non-conforming Work conditioned on Supplier providing a refund or

credit in an amount Main Performance PC reasonably determines to represent the diminished value of the non-conforming

Work. Main Performance PC’s payment to Supplier for Work prior to Main Performance PC’s timely rejection of such Work as nonconforming

will not be deemed as acceptance by Main Performance PC.

 

7. CHANGES

 

7.1 As used in this Section 7, “Change” means a change Main Performance PC directs or causes within the

general scope of this Agreement, the applicable SOW or both.

 

7.2 Main Performance PC, by written order (“Change Order”), may make Changes in accordance with this

Section 7.

 

7.3 If Supplier asserts that Main Performance PC has directed or caused a Change to the cost of or time for

performance for which Main Performance PC has not issued a Change Order, Supplier will promptly notify Main Performance PC in writing

of the Change, providing (i) a description of the action or inaction asserted to have caused the Change;

(ii) an estimate of the equitable adjustment that would be required for Supplier to perform the Changed

Work; and (iii) a date no less than 30 days from the date of notice by which Main Performance PC must respond to

Supplier’s notice so that Supplier may proceed with the Work unchanged. Main Performance PC will evaluate Supplier’s

notice of Change in good faith, and if Main Performance PC agrees that it has made a constructive change, Main Performance PC will

issue a Change Order to Supplier.

 

7.4 Supplier shall, as promptly as practicable, after giving the notice of the Change, or within

10 days of receiving a Change Order, submit a request for equitable adjustment specifying the

adjustment in the price or time for performance resulting from the Change.

 

7.5 The parties shall negotiate an amendment to the applicable SOW to incorporate a

Change Order providing for an equitable adjustment to the price, time for performance, or both.

 

7.6 Supplier will proceed with the Changed Work as directed, notwithstanding that the parties

have not negotiated the amendment to this Agreement or the applicable SOW to incorporate the

equitable adjustment.

 

8. REPRESENTATIONS AND WARRANTIES

 

8.1 Supplier represents and warrants that:

(i) it has the full power to enter into the Purchase Order and to perform its

obligations under the Purchase Order;

(ii) it has the right and unrestricted ability to assign the Work to Main Performance PC including,

without limitation, the right to assign any Work performed by Supplier Personnel

and Subcontractors;

(iii) the Work, and Main Performance PC’s use of the Work, do not and will not infringe upon any

third party’s Intellectual Property Rights, right of publicity or privacy, or any other

proprietary rights, whether contractual, statutory or common law;

(iv) Supplier will not disclose to Main Performance PC, bring onto Main Performance PC's premises, or induce Main Performance PC

to use any confidential or proprietary information that belongs to anyone other

than Main Performance PC or Supplier which is not covered by a non-disclosure agreement

between Main Performance PC and Supplier;

(v) Software supplied by Supplier does not contain any Harmful Code;

(vi) Supplier’s Work conforms to Main Performance PC’s specifications, Supplier’s quotation or

proposal, and Supplier’s brochures or catalogs, and if none of the foregoing is

applicable, then such Work is suitable for the intended use;

(vii) it will not use or disclose any information that may identify an individual

("Personal Data") that is processed for or on behalf of Main Performance PC, except to the extent

necessary to perform under this Purchase Order; 

(viii) only to the extent that Supplier actually processes Personal Data it will: (A)

implement and maintain appropriate technical and organizational measures and

other protections for Personal Data (including, without limitation, not loading any

Personal Data provided to Supplier on (a) any laptop computers or (b) any

portable storage media that can be removed from Supplier's premises unless

each case (i) such data has been encrypted and (ii) such data is loaded onto

portable storage media solely for the purpose of moving such data to off-site

storage), (B) report to Main Performance PC any breaches of security of Personal Data

immediately after discovery (“Security Incident”), (C) cooperate fully with Main Performance PC in

investigating any Security Incidents , (D) cooperate fully with Main Performance PC's requests for

access to, correction of, and destruction of Personal Data in Supplier's

possession, (E) comply with all instructions or other requirements provided or

issued by Main Performance PC from time to time relating to Personal Data, and (F) permit Main Performance PC

and/or its duly authorized representatives, on reasonable prior notice, to inspect

and audit Supplier’s business premises and computer systems to enable Main Performance PC

to verify that Supplier is in full compliance with its processing obligations under

this Purchase Order;

 

(xi) it will not transfer Personal Data across any country border unless it is (a) strictly

unavoidable for the proper performance under this Purchase Order, and (b)

notified to Main Performance PC in writing prior to any such transfer. Upon Main Performance PC’s request,

Supplier shall enter into such other arrangements with Main Performance PC as Main Performance PC considers

appropriate (e.g. the EU Model Clauses) in order to ensure that Supplier’s

transfers are lawful.

 

(xii) it will not provide Main Performance PC with Personal Data of any third party or its own

employees. Notwithstanding the foregoing, if Supplier does provide Main Performance PC with

any Personal Data, Supplier represents and warrants that it has obtained the

necessary consent to provide that Personal Data to Main Performance PC and to allow Main Performance PC to

use, disclose, and transmit such Personal Data on a worldwide basis among

Main Performance PC and its affiliates in connection with this Purchase Order; and

 

(xiii) no Products contain or include components (a) containing PCB’ (polychlorinated

biphenyls) chemical substances, (b) manufactured using a cadmium plating

process or contain a chemical substance or mixture that is or becomes subject

to a reporting requirement under Section 8(e) of the Toxic Substances Control

Act, 15 U.S.C. Section 2607(e), as in effect at time of shipment.

8.2 Main Performance PC warrants and represents to Supplier that it has the full power to enter into the

Purchase Order and to perform its obligations under the Purchase Order.

8.3 TO THE EXTENT ALLOWED BY APPLICABLE LAW, NO OTHER WARRANTIES ARE

MADE, EITHER EXPRESSED OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF

MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.

 

9. ASSIGNMENT AND SUBCONTRACTING

 

9.1 Supplier may not assign any of its rights or delegate any of its obligations under the

Purchase Order without Main Performance PC’s prior written consent, which Main Performance PC will not unreasonably withhold. Main Performance PC

may, at its option, void any attempted assignment or delegation undertaken without Main Performance PC's prior written

consent.

9.2 Supplier may not subcontract any of its rights or obligations under the Purchase Order

without Main Performance PC’s prior written consent. If Main Performance PC consents to the use of a Subcontractor, Supplier will:

(i) guarantee and will remain liable for the performance of all subcontracted obligations; (ii) indemnify

Main Performance PC for all damages and costs of any kind, subject to the limitations in Section 12 (Indemnification),

incurred by Main Performance PC or any third party and caused by the acts and omissions of Supplier’s Subcontractors’

and (iii) make all payments to its Subcontractors. If Supplier fails to timely pay a Subcontractor for work

performed, Main Performance PC will have the right, but not the obligation, to pay the Subcontractor and offset any

amount due to Supplier by any amount paid to the Subcontractor. Supplier will defend, indemnify and

hold Main Performance PC harmless for all damages and costs of any kind, without limitation, incurred by Main Performance PC and

caused by Supplier’s failure to pay a Subcontractor.

9.3 To the extent allowed by applicable law, no person who is not a party to Purchase Order

shall be entitled to enforce or take the benefit of any of its terms whether as a result of applicable

legislation, custom or otherwise.

Page 6 of 9

Rev. 03/2014

 

10. TERM AND TERMINATION

 

10.1 The Purchase Order will remain in effect with respect to any SOW already issued prior to

expiration of the term of the Purchase Order until such SOW is either terminated or the Work is

completed and accepted.

 

10.2 Main Performance PC may terminate this Purchase Order, any SOW, or both at any time, for no reason or

for any reason, upon 15 days written or verbal notice to Supplier. Main Performance PC shall have no payment obligation to Supplier under any terminated

SOW if Main Performance PC terminates the SOW under this Section 10.2 if the SOW has not been delivered prior to termination.

 

10.3 Either party may terminate the Purchase Order, any SOW or both, immediately by

delivering written or verbal notice to the other party upon the occurrence of any of the following events: (i) a

receiver is appointed for either party or its property; (ii) either makes a general assignment for the benefit

of its creditors; (iii) either party commences, or has commenced against it, proceedings under any

bankruptcy, insolvency or debtor's relief law, if such proceedings are not dismissed within 60 days; or (iv)

either party is liquidating, dissolving, or ceasing to do business in the ordinary course.

 

10.4 Main Performance PC may immediately terminate the Purchase Order upon written notice to Supplier if

there is a change in ownership representing 20 percent or more of the equity ownership of Supplier.

 

10.5 Either party may terminate this Purchase Order, any SOW or both, immediately by

delivering written notice to the other party for any material breach not cured within 30 days of receipt of

notice of the breach. Main Performance PC shall have no further payment obligation to Supplier under any terminated

SOW if Main Performance PC terminates the SOW under this Section 10.5.

 

10.6 Any obligations or duties which, by their nature, extend beyond the expiration or

termination of the Purchase Order shall survive the expiration or termination of the Purchase Order.

 

11. CONFIDENTIAL INFORMATION AND PUBLICITY

 

11.1 If Main Performance PC and Supplier have entered into a Non-Disclosure Agreement (“NDA”) which

covers disclosure of confidential information under the Purchase Order, and if the term of the NDA

expires before the expiration or termination of the Purchase Order, then the term of the NDA shall be

automatically extended to match the term of the Purchase Order.

11.2 The parties shall treat the terms, conditions, and existence of the Purchase Order as

Confidential Information as defined in the NDA.

11.3 Supplier shall obtain Main Performance PC’s written consent prior to any publication, presentation, public

announcement, or press release concerning its relationship as a supplier to Main Performance PC.

 

12. INDEMNIFICATION

 

12.1 As used in this Section 12, a “Claim” is any claim, demand, loss, damage, liability, cost or

expense (including professional fees and costs as incurred) for which one party (the “Indemnifying Party”)

may be obligated to defend, indemnify and hold the other party (the “Indemnified Party”) harmless.

 

12.2 Supplier shall defend, indemnify and hold Main Performance PC harmless from and against any and all

Claims as incurred, arising out of or in connection with any (i) act or omission of Supplier (including its

Subcontractors) in the performance of the Work; or (ii) any infringement of a third party’s Intellectual

Property Rights or any other rights.

 

12.3 Main Performance PC shall indemnify and hold Supplier harmless from and against any and all Claims as

incurred, arising out of or in connection with: (i) Supplier’s use of Main Performance PC’s products or services in

connection with the Work; (ii) Supplier’s use of information or materials provided to Supplier by Main Performance PC; or

(iii) infringement a third party’s Intellectual Property Rights or any other rights resulting from Supplier’s

adherence to Main Performance PC’s written instructions.

 

12.4 Each party will indemnify and hold the other party harmless from and against any and all

Claims, as incurred, arising out of any negligent or willful acts or omissions of the Indemnifying Party

which results in personal injury (including death) or damage to tangible property (not including lost or

damaged data).

 

12.5 The Indemnified Party will provide the Indemnifying Party with prompt written notice of

the Claim and permit the Indemnifying Party to control the defense, settlement, adjustment, or

compromise of any Claim. The Indemnified Party may employ counsel at its own expense to assist it with

respect to any Claim. The Indemnified Party will have no authority to settle any Claim on the Indemnified

Party’s behalf.

 

12.6 If a third party enjoins or interferes with Main Performance PC’s use of any Work, then in addition to

Supplier’s obligations under Section 12.2, Supplier will use its best efforts to (i) obtain any licenses

necessary to permit Main Performance PC to continue to use the Work; (ii) replace or modify the Work as necessary to

permit Main Performance PC to continue to use of the Work; or if (i) and (ii) are not commercially reasonable, then (iii)

promptly refund to Main Performance PC the amount paid for any Work for which a third party enjoins or interferes with

Main Performance PC’s use of the Work.

 

12.7 Nothing in this Section shall limit any other remedy of the parties.

 

13. LIABILITY

 

13.1 NOTWITHSTANDING ANYTHING ELSE IN THE PURCHASE ORDER OR

OTHERWISE, MAIN PERFORMANCE PC WILL NOT BE LIABLE TO SUPPLIER WITH RESPECT TO THE SUBJECT

MATTER OF THE PURCHASE ORDER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY

OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS IN THE AMOUNT

MAIN PERFORMANCE PC PAID TO SUPPLIER IN THE SIX MONTHS PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH LIABILITY.

 

13.2 IN NO EVENT WILL MAIN PERFORMANCE PC BE LIABLE TO SUPPLIER FOR ANY INCIDENTAL,

INDIRECT, SPECIAL, CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING OUT OF, OR IN

CONNECTION WITH, THE PURCHASE ORDER, WHETHER OR NOT MAIN PERFORMANCE PC WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

 

13.3 THE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL

PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. NOTHING IN THE PURCHASE ORDER

LIMITS EITHER PARTY'S LIABILITY FOR BODILY INJURY OF A PERSON, DEATH, OR PHYSICAL

DAMAGE TO PROPERTY OR ANY LIABILITY WHICH CANNOT BE EXCLUDED UNDER APPLICABLE

LAW.

 

14. INSURANCE

 

Supplier will secure and maintain insurance providing coverage for liabilities to third parties for bodily

injury (personal injury) and damage to property in amounts sufficient to protect Main Performance PC in the event of such

injury or damage, and will be in compliance with any and all laws, regulations or orders addressing the

liabilities of an employer to its employees for injuries and disease suffered in connection with

employment. Supplier further will maintain such additional types and limits of insurance as is customary

for a company of similar size and similar operations to Supplier in the jurisdiction or jurisdictions in which

Supplier’s operations take place.

 

15. COMPLIANCE WITH LAWS

 

Supplier represents and warrants that it will comply with all applicable local and national laws and

regulations pertaining to its performance of its obligations under this Purchase Order. In particular and

without limitation, Supplier shall not act in any fashion or take any action that will render Main Performance PC liable for a

violation of any applicable anti-bribery legislation (including without limitation, the U.S. Foreign Corrupt

Practices Act and the UK Bribery Act 2010), which prohibits the offering, giving or promising to offer or

give, or receiving, directly or indirectly, money or anything of value to any third party to assist it them or

Main Performance PC in retaining or obtaining business or in performing the Work. Supplier’s failure to comply with this

provision shall constitute a material breach of this Purchase Order.

 

16. GOVERNING LAW

 

The Purchase Order will be construed in accordance with, and all disputes will be governed by, the laws

of the State of Tennessee, without regard to its conflict of laws rules. The parties specifically waive

application of the UN Convention on Contracts for the International Sale of Goods. Supplier irrevocably

consents to the personal jurisdiction of the state and federal courts in and for Shelby County,

Tennessee, and irrevocably waives any claim it may have that any proceedings brought in such courts

have been brought in an inconvenient forum.

 

17. GENERAL

 

17.1 Any notice to be given under the Purchase Order will be in writing and addressed to the

party at the address stated in the front of the Purchase Order. Notices will be deemed given and effective

(i) if personally delivered, upon delivery, (ii) if sent by an overnight service with tracking capabilities, upon

receipt; (iii) if sent by fax or electronic mail, at such time as the party which sent the notice receives

confirmation of receipt by the applicable method of transmittal; or (iv) if sent by certified or registered mail,

within five days of deposit in the mail.

 

17.2 If there is a conflict between or among the Purchase Order and any documents attached

to and incorporated by reference, the conflict will be resolved as follows:

 

17.2.1 A conflict between the terms of the Purchase Order and those set forth in an

exhibit or hyperlink will be resolved in favor of the Purchase Order.

 

17.2.2 A conflict between the terms of the Purchase Order and those set forth in an

SOW will be resolved in favor of the SOW.

 

17.2.3 A conflict between the terms of an exhibit or hyperlink and those set forth in an

SOW will be resolved in favor of the SOW.

 

17.3 If any court of competent jurisdiction holds that any provision of the Purchase Order is

illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of the

Purchase Order will not be affected or impaired, and all remaining terms of this Purchase Order remain in

full force and effect, provided that this provision shall not be applied to defeat the intent of the parties.

 

17.4 A party’s election not to insist on strict performance of any requirement of the Purchase

Order will not operate or be construed to waive any future omission or breach, or any other provision of

the Purchase Order.