PURCHASE ORDER TERMS AND CONDITIONS
1. Acceptance of Offer. Red Collar Pet Foods, Inc. ("Buyer") hereby offers to purchase from the vendor named on the face hereof or elsewhere herein ("Seller") the products described on the face hereof or elsewhere herein ("Products") and/or the services described on the face hereof or elsewhere herein ("Services"), subject to the terms and conditions contained in this purchase order, including any and all attachments or exhibits hereto (collectively, the "P.O."). This offer will be deemed accepted by Seller (unless earlier withdrawn or modified by Buyer) upon (a) Buyer's receipt of written, telephonic or other telecommunication acknowledgment of this P.O. from Seller or (b) at Buyer's option, Buyer's receipt of Products and/or Services from Seller. The terms and conditions contained in this P.O., together with any additions or revisions mutually agreed to in writing by Seller and Buyer, will constitute the entire agreement and understanding of Seller and Buyer with respect to the purchase and sale of the Products and/or Services and will supersede all prior or contemporaneous oral or written understandings relating thereto.
2. Prices. Prices for all Products and/or Services provided hereunder are as noted in this P.O., subject to any Seller's discounts or reductions prevailing on the date of shipment or performance. All such prices are complete and no additional charges of any type (including, but not limited to, costs of shipping, delivery, installation, operation, insurance, custom duties, taxes and the like) will be added without Buyer's express prior written consent.
3. Payment Terms. Unless otherwise stated in this P.O. and subject to those provisions regarding acceptance set forth in Paragraph 7 below, , Buyer will pay all amounts due hereunder not later than the number of days listed on the front page of this P.O. (under Payment Terms) after the later of: (a) Buyer's receipt of Seller's reasonably detailed invoice for this P.O. (such invoice to separately state applicable taxes and other charges such as shipping costs, duties, customs, tariffs, imposts and government imposed surcharges) or (b) Buyer's receipt of the Products and/or Services ordered under this P.O. Buyer may withhold or set off from any amounts due to Seller, any amounts claimed to be owed by Seller to Buyer for any reason whatsoever. Seller agrees to furnish to Buyer upon request, prior to any payment by Buyer hereunder, release(s) of any and all lien(s) relating to the Products and/or Services, such release(s) to be satisfactory in form and substance to Buyer. Each party will be responsible for payment of all governmental fees and taxes, if any, imposed upon such party with respect to this P.O.
4. Delivery and Performance. Seller will deliver all Products to the place(s) and at the time(s) specified in this P.O. Seller will perform all Services at the place(s), in the manner and at the time(s) specified in this P.O. Time is of the essence with respect to delivery of Products and/or performance of Services under this P.O. Seller expressly acknowledges that Buyer may schedule operations and incur obligations to third parties in reliance on Seller's timely delivery and performance hereunder and that Buyer may sustain substantial losses by reason of any failure of Seller with respect thereto. In the event Seller is or will be unable to timely deliver Products and/or perform Services under this P.O., it will immediately notify Buyer of same. In such event, or the event that Products are not timely delivered and/or Services are not timely performed under this P.O., without prejudice to any other rights of Buyer relating thereto, Seller will provide expedited delivery and/or performance as requested by Buyer at Seller's sole expense. At Buyer's option, any Products delivered prior to scheduled date of delivery under this P.O. may be (a) returned by Buyer to Seller, at Seller's risk and expense, or (b) retained by Buyer until the scheduled delivery date, at Seller's risk, or (c) accepted by Buyer in accordance with Paragraph 7 below.
5. Packing and Shipment. Unless preferred packing method is noted in this P.O., all Products will be packaged and packed for shipment in a manner suitable for optimum protection, handling and storage of the Products and for shipment to secure the lowest practicable transportation and insurance rates consistent with timely delivery and carrier's requirements. Unless otherwise specified in this P.O., Seller will ship by the most appropriate method. Each Products shipment will be accompanied by a separate packing sheet describing the Products shipped and each delivered container will be labeled and marked to identify contents without opening. All Seller documentation relating to this P.O. will bear the Purchase Order Number appearing on the face of this P.O. Products shipped C.O.D. without Seller's prior written consent will not be accepted.
6. Risk of Loss and Destruction of Goods. All risk of loss or damage in connection with Products delivered to Buyer hereunder will be borne by Seller until such time as Buyer has accepted such Products in accordance with Paragraph 7 below, provided, that such risk of loss or damage will continue to be borne by Seller with respect to any Products with respect to which Buyer has revoked its acceptance hereunder. Title to Products will pass to Buyer upon receipt of the Products at the designated destination. If the Products ordered are destroyed prior to title passing to Buyer, Buyer may, at its option, cancel the P.O. or require delivery of substitute Products of equal quantity and quality. Such delivery will be made as soon as commercially practicable. If loss of Products is partial, Buyer will have the right, at its option, to require delivery of Product not destroyed.
7. Inspection and Acceptance. All Products and/or Services (including their components and the facilities at which they are produced or performed) will be subject to inspection and testing by Buyer prior to acceptance by Buyer. Seller will permit access to Seller's facilities at all reasonable times and upon reasonable notice for inspection of Products and/or Services by Buyer's agents or employees and will provide such assistance as may be reasonably necessary for such inspection, at no additional cost to Buyer. Any and all Products and Services will be received by Buyer subject to Buyer's rights of final inspection and testing after such receipt, notwithstanding any payment or prior inspections by Buyer. Except as otherwise specified in writing, acceptance or rejection of Services will be determined on the basis of results, not effort. Buyer's written acceptance is the sole effective method of acceptance; in no event will payment, use of a portion of the Products for the purpose of testing or any indication of acceptance (other than written acceptance) expressed or implied by law, trade usage or course of dealing be deemed to constitute acceptance. Neither payment for nor acceptance of any Products or Services by Buyer will waive or relieve Seller from any of Seller's obligations and warranties hereunder. If any Products fail to meet any aspect of Seller's warranties with respect thereto or otherwise breach the terms and conditions specified in this P.O., Buyer will have the right, at its sole option, to reject or conditionally accept such Products and any other Products included in the same shipment. Upon conditional acceptance of any Products by Buyer, Buyer will have the option of either: (a) notifying Seller of such conditional acceptance, whereupon Seller will promptly take, at Seller's sole expense, any and all steps or actions necessary or appropriate to cure the nonconformity or defect to the satisfaction of Buyer, and upon any failure by Seller promptly to take such steps or actions or satisfactorily to cure such nonconformity or defect, Buyer will have the right to revoke its conditional acceptance and reject such Products; or (b) undertaking itself, at Seller's sole expense, any actions or steps which in Buyer's judgment will cure such nonconformity or defect, but a failure by Buyer to take such actions or steps or to effect such a cure will in no way prejudice, impair or operate to defeat in any way Buyer's rights to revoke its conditional acceptance and reject such Products nor will any such actions or steps by Buyer in any way invalidate any of Seller's warranties with respect to such Products. Any and all Products rejected by Buyer will be held at Seller's sole risk and expense subject to Seller's prompt advice of disposition, if any, and upon notice of such rejection from Buyer, Seller will, if so requested by Buyer, promptly correct or replace such Products at Seller's expense. Buyer may not be required to accept replacements or substitutes for or permit cure of any defects or nonconformities in any Products rightfully rejected hereunder. Unless otherwise instructed, Buyer may, and at Seller's direction will, return and charge back to Seller any and all rejected Products, Seller alone to bear all risk and charges and expenses related thereto, including, without limitation, transportation and handling costs related to both such return and the original delivery by Buyer. Any nonconforming Services provided under this P.O., including substitutions not properly approved and authorized, will be considered defective, and Seller will, as requested by Buyer, promptly correct such defective Services at Seller's sole expense; provided, however, that nothing in this P.O. will be deemed to require Buyer to permit cure for any defective Services. The acceptance of any installment of an installment contract will not be deemed acceptance of the whole. Acceptance of any single tender of a specific Product or Service will not be deemed to be an acceptance of subsequent tender of similar Products or Services, even if such subsequent tender is identical in all respects. In no event will Buyer bear the risk of loss or damage with respect to any Products until Buyer's unconditional acceptance thereof.
8. Revocation of Acceptance. Buyer will have the right to revoke its acceptance of and reject any and all Products and/or Services which fail to meet any aspect of any warranty set forth in this P.O. or of any other term and condition of this P.O., where such failure becomes known to Buyer only after Buyer's acceptance of such Products and/or Services and was not reasonably discoverable by Buyer prior thereto. Buyer's rights and remedies, with respect to and as a result of any such rejection, will be the same as if Buyer had rejected such Products and/or Services prior to Buyer's acceptance thereof.
9. Stop Work, Cancellation or Termination. If Seller breaches or fails to comply fully with any of the terms and conditions of this P.O. or its obligations hereunder, or breaches any warranty of Seller contained in this P.O. or arising in connection herewith, or becomes unable to conduct its normal business operations (including inability to meet its obligations as they mature), or becomes the subject of any dispute with a labor organization involving or affecting Buyer, Buyer will have the right, but not the obligation, to immediately cancel or terminate this P.O., in whole or in such part as Buyer in its sole discretion may deem expedient, without any liability to Buyer whatsoever except with respect to Products previously delivered and Services previously rendered to and accepted by Buyer in accordance with the terms of this P.O., the amount of any such liability to be governed by and determined in accordance with the terms of this P.O. This P.O. will automatically terminate if Seller becomes insolvent or a receiver is appointed for Seller's business or properties, or if any petition is filed by or against Seller under any provisions of any bankruptcy, insolvency or similar laws. Buyer will also have the right to (a) delay, for a reasonable period of time, any and all delivery and/or performance dates under this P.O. or (b) otherwise terminate or cancel this P.O. in whole or in part at any time, in each case upon at least seven (7) days prior written notice to Seller. Upon any termination or cancellation of this P.O. by Buyer, (x) Seller will immediately discontinue performance hereunder and will use its best efforts to mitigate costs and damages resulting therefrom, and (y) the amount payable by Buyer to Seller will be equitably adjusted provided that such adjustment will not include any allowance to Seller for Products or Services not received by Buyer, unabsorbed overhead or anticipated profits. Upon any termination or cancellation of this P.O., Seller will promptly return to Purchaser any and all advance payments made by Buyer with respect to Products or Services rejected or not received by Buyer, with interest thereon for the period during which Seller held such advance payments at the annual rate of interest announced from time to time by Citibank, N.A. in New York, New York, as its prime or base rate. All warranties of Seller in this P.O., Buyer's rights under Paragraph 10, the indemnification provisions of Paragraph 18 and the confidentiality provisions of Paragraph 20 each will survive any cancellation or termination of this P.O.
10. Buyer's Rights Upon Default. Upon any default or breach by Seller described in Paragraph 9 above, without prejudice to any other right Buyer may have, Buyer will have the right, without prior notice to Seller, at Buyer's option immediately (a) to suspend payment to Seller in whole or in part until such default or breach is cured and (b) to cover by contracting to purchase goods and/or services, by making any reasonable purchase of goods and/or services, or by taking such other action as is, in the sole judgment of Buyer, necessary, reasonable, expedient or beneficial, and Seller will pay and be liable for any and all costs, expenses or damages, including without limitation, incidental and consequential expenses or damages, arising out of, or incurred by Buyer in connection with, such action without regard to any expenses Buyer saved or may have saved in consequence of Seller's default or breach.
11. Warranties. Seller expressly warrants that any and all Products, Services, material and work covered under this P.O. will conform exactly to all specifications, quality control standards, drawings, samples or other description furnished or adopted by Buyer. Seller further warrants that all Products provided under this P.O. will be free from defects in and of good material, design and workmanship, will be merchantable and fit and sufficient for the use and purpose intended, and will conform to any and all warranties arising by usages of trade, course of dealing and course of performance. Seller further warrants that it has the right to sell, and will deliver to Buyer good title to, all Products furnished hereunder, free from all liens and encumbrances. With respect to edible Products or Products to be used in Buyer's edible products, Seller further warrants that such Products are wholesome, fit for human or animal consumption, as applicable, not adulterated or misbranded and free of microbiological or other contamination, and, in the case of any packaging materials, will have no taste taint or microbiological or other contamination. Seller represents and warrants that all Services provided under this P.O. will be completed in a professional workmanlike manner, with the degree of skill and care that is required by current, good and sound professional procedures. Further, Seller represents and warrants that the performance of Services under this P.O. will not conflict with, or be prohibited in any way by, any other agreement or statutory restriction to which Seller is bound. Each of the foregoing warranties of Seller will survive delivery and/or performance and will not be deemed waived by reason of Buyer's inspection or acceptance of, or any payment for, any Products or Services, and will extend to Buyer, its assignees and/or other transferees. Such warranties of Seller will be in addition to, and will not limit in any way, any warranties of additional scope given by Seller or arising by law. Seller will make available to Buyer in full any and all warranty benefits relating to Products and/or Services (or any component thereof) available to Seller from its suppliers and subcontractors.
12. Compliance with Applicable Law. Seller warrants that its production, manufacture, packaging, sale, distribution, installation and pricing of any and all Products and its performance and pricing of any and all Services are in full compliance with all applicable federal, state, local and foreign laws, regulations, rules and ordinances, including, but not limited to, any environmental law related to contamination by, or the release or threat of release of, any hazardous or toxic substance, waste or pollutant into any environmental medium and any United States export restrictions (if applicable). Seller will obtain and maintain in full force and effect all licenses, permits and other authorizations required to comply with such laws, regulations, rules and ordinances and will promptly furnish copies thereof to Buyer upon request.
13. Infringement. Seller warrants that neither any Products nor the production, manufacture, distribution, use or incorporation into other products or processes thereof, nor the performance of any Services, either alone or in combination, infringes or otherwise violates or misappropriates any patent, copyright, trademark, service mark, trade secret, or other third party rights of any nature whatsoever. Seller will hold harmless and indemnify Buyer, its affiliates, successors, assigns and customers (and their respective employees, directors and officers), and users of any Products and recipients of any Services, from any and all expenses, liabilities and loss of any kind (including, without limitation, court costs and attorneys' fees) arising out of or in connection with any charges, claims, suits or actions alleging any such infringement or violation; provided that the foregoing will not apply in cases where (a) Seller's compliance with specifications prescribed by and originating with Buyer constitutes the sole basis of such charge, claim, suit or action, (b) Seller has informed Buyer thereof as soon as practicable and (c) Buyer has been given a reasonable opportunity to take complete control of the defense or settlement thereof.
14. Intellectual Property Rights. All materials, service deliverables, plans, data, designs, specifications, ideas, work papers, reports, artwork, ad copy, computer programs, software, inventions, discoveries, processes or other items of any nature whatsoever developed, created, produced, received and/or distributed by Seller in connection with the delivery of Products or Services under this P.O., whether or not patentable or copyrightable and whether or not reduced to writing or other physical form, excluding standard Products manufactured by Seller and sold to Buyer without having been designed, customized or modified for Buyer (collectively, "Work Product"), will be the sole and exclusive property of Buyer; will be deemed Buyer's Confidential Information for the purposes of Paragraph 20 below; and may be used by Buyer (in whole or in part) in such manner as Buyer may determine, in its sole discretion. Seller will promptly disclose all Work Product to Buyer. All copyrightable Work Product will be treated as a work-for-hire. If any component of the Work Product does not qualify as a work-for-hire under U.S. copyright law, or is subject to protection under patent, trademark, trade secret or other intellectual property law, Seller agrees to, and does hereby irrevocably and exclusively assign to Buyer, all right, title and interest Seller may have with respect to such Work Product. At the request of Buyer, Seller will promptly assign to Buyer any and all patent, copyright or other interests Seller may have with respect to the Work Product and will otherwise cooperate with Buyer's efforts to establish and protect its rights in the Work Product. Notwithstanding anything to the contrary in this P.O., all issues with regard to confidentiality and trade secrets will be governed by the version of the Uniform Trade Secrets Act as most recently proposed by the National Conference of Commissioners on Uniform State Laws.
15. Seller's Reports and Data. At Buyer's request, Seller will promptly furnish to Buyer any and all test reports, technical or other data, specifications or other similar materials utilized in the production of the Products or performance of the Services.
16. Conduct on Buyer's Premises. At all times at which Seller's employees, agents, representatives and subcontractors are on Buyer's premises, Seller will cause such persons to fully comply with Buyer's policies and procedures regarding on-site rules of conduct, and with all other reasonable instructions or directions of Buyer.
17. Labeling. Seller warrants that all Products (and the packaging and containers thereof) will be labeled in accordance with all applicable labeling laws, requirements and standards, and, if constituting a health, poison, or other hazard, in such a manner so as to provide adequate warning of any and all such hazards to persons whose use or handling of , or contact with, such Product may be reasonably foreseen.
18. Indemnification. Seller shall indemnify and hold harmless Buyer, its divisions, subsidiaries, parent and corporate affiliates, owners, shareholders, officers, directors, employees, agents, successors, and assigns against any and all claims, losses, damages, expenses, fees (including without limitation, all fines, penalties, court costs and attorneys' fees) and liabilities (including strict, statutory and regulatory liabilities) regardless of the form of action brought against Buyer, including, but not limited to, claims for bodily injury, death, or property damage (collectively, "Claim(s)"), including Claims asserted by any person or party including but not limited to those brought by or on behalf of Seller's employees, invitees, officers, owners, directors, contractors, subcontractors, or agents, in connection with the performance, non-performance or improper performance under this P.O., to the extent not due to the sole negligence of Buyer. Seller expressly agrees that any immunity or exclusivity of any labor, workers' compensation or other similar statute as relates to Seller shall not limit or preclude the foregoing obligations of Seller to indemnify Buyer. Seller's obligation to indemnify any Buyer will survive the expiration, termination or suspension of this P.O. by either party for any reason. Each party shall promptly notify the other party of the existence of any Claim, demand or other action giving rise to a request for indemnification under this Paragraph 18. Promptly upon the request of Buyer, Seller shall conduct the defense of any action or Claim against Buyer arising under this P.O., including the employment of counsel reasonably acceptable to Buyer and the payment of all expenses of such defense. Buyer shall at all times have the right to participate in such defense using its own counsel. If Seller fails to assume the defense of Buyer, Buyer shall have the absolute right to control the defense of such Claim and Seller shall be responsible for all expenses, costs or fees incurred in the defense. Seller shall be responsible for any and all expenses, fees or costs incurred in the enforcement or clarification of any part or portion of this P.O. This Indemnity shall not be limited by any insurance coverage obtained or required to be obtained by Seller or any limits of liability or limits on the type of damages with respect thereto
19. Insurance. Seller agrees to maintain, at its own expense, workers' compensation, employers' liability, automobile liability, umbrella liability, commercial general liability, product/completed operations coverage, contractual liability coverage, and other coverage necessary. All Insurers shall have an AM Best Rating of A-VII or better. Each policy (except workers' compensation) shall provide limits of liability (inclusive of umbrella liability) of not less than $2,000,000 per occurrence and shall cover all defense costs, including but not limited to attorneys' fees, court costs and all other costs and expenses. Coverage shall be maintained insuring Seller and Buyer against all liabilities including (without limitation) Claims asserted by or on behalf of Seller's employees, invitees, officers, owners, directors, contractors, subcontractors, or agents. Any insurance limits shall not be construed as a limitation on Seller's liability. All insurance policies maintained by Seller (except workers' compensation) shall include Buyer as an "additional insured" in connection with this P.O., and each policy shall provide a waiver of subrogation with respect to any claim against Buyer. Each policy (except workers' compensation) shall contain a "cross-liability" clause which shall have the affect of insuring each person, firm or corporation insured hereunder in the same manner and to the same extent as if a separate policy had been issued to each. Buyer shall not be deemed to fall within the definition of "an Insured" for purposes of any bodily injury or death to employee exclusions that may exist within Seller's policies. All insurance maintained by Seller shall be primary to, and not contributory with, any which may otherwise be available to Buyer. Seller shall provide a certificate of insurance as evidence of all insurance policies satisfying the terms and specified minimum limits. Seller shall be responsible for paying any deductible and self-insured retention required under the above described insurance policies.
20. Confidential Information and Publicity. Buyer and Seller each agree that during the term of this P.O. and thereafter (a) it will use Confidential Information (as defined below) belonging to the other and disclosed hereunder solely for the purpose(s) for which it was disclosed hereunder and (b) it will not disclose such Confidential Information belonging to the other to any third party (other than its employees and/or advisors reasonably requiring such Confidential Information for purposes of this P.O. who are bound by obligations of nondisclosure and limited use at least as stringent as those contained in this P.O.) without the express prior written consent of the other party. Each party will be responsible for breaches of this Paragraph 20 by its employees, contractors and agents. For purposes of this P.O., "Confidential Information" means, with respect to either party, all confidential information in oral, written, representational or physical form relating to the business of such party or its affiliates (including, but not limited to, trade secrets, financial data, customer and supplier lists, product formulae, marketing plans, know-how and similar information) which is not at the relevant time (a) known to the public through no act or omission in violation of this P.O., (b) furnished to the receiving party by a third party having no confidentiality obligation to the disclosing party and having the lawful right to do so or (c) known to the receiving party prior to disclosure hereunder (as established by written documentation thereof). Each party will promptly return to the other upon request any Confidential Information and other documents and materials of the other party then in its possession or under its control, provided that in the event of termination by Buyer pursuant to Paragraph 9 above, Buyer will be entitled to retain such Confidential Information, documents and materials of Seller for purposes of Paragraph 10 above. Buyer and Seller further agree that except as required by law, they will not publicly announce or otherwise disclose the terms of this P.O. without the express prior written consent of the other. Neither party will use the name, trademarks or trade names of the other (and with respect to Buyer, the names, trademarks and trade names of Red Collar Pet Foods, Inc. or any of its subsidiaries, affiliates or divisions) in any customer list, promotional materials or otherwise without the other's express prior written consent.
21. Relationship of Parties. The parties will act as independent contractors hereunder. In no event will Seller have any authority, express or implied, to act as Buyer's agent or to bind or commit Buyer to any third party in any manner whatsoever. Seller will be solely responsible for, and retain the exclusive right to direct and control, the manner and means by which all Products are produced and Services performed hereunder. In no event will any employee, subcontractor or agent of Seller be considered an employee, subcontractor or agent of Buyer. Matters governing the employment of Seller's employees, subcontractors or agents are entirely the Seller's responsibility. Seller will be solely responsible for complying with all tax and employee protection laws. Seller assumes full responsibility for the actions of its employees, subcontractors and the employees of any such subcontractors in providing Products or performing Services under this P.O. Supplier will be responsible for its employee's supervision, daily work direction and control, payment of salary (including, but not limited to, withholding of taxes and social security payments), workers' compensation, disability benefits and the like.
22. Assignment; Subcontractors. This P.O. will be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. Seller will not assign, subcontract or otherwise transfer any of its rights or obligations under this P.O. without the express prior written consent of Buyer. Any subcontractor approved by Buyer in accordance with this Paragraph 22 will be required to execute a written acknowledgement that it has read and will abide by the terms and conditions of this P.O. as if such subcontractor were a Seller party hereto.
23. Remedies. All remedies available to either party for breach of this P.O. are cumulative and may be exercised concurrently or separately. The exercise of one remedy will not be deemed an election of such remedy to the exclusion of other remedies. In the event of any breach or threatened breach of the provisions of this P.O. by either party, the other party will be entitled to seek appropriate injunctive and/or equitable relief in addition to its remedies at law, without posting any bond.
24. Dispute Resolution. In the event of a dispute between the parties relating to this P.O., the parties will each use their respective good faith efforts to resolve such dispute. If the dispute cannon be amicably resolved by the parties themselves within a reasonable period of time, the parties will submit the dispute to formal legal process or a mutually acceptable alternate dispute resolution process.
25. Limitations of Buyer's Liability. Liability of Buyer in connection herewith will be limited to, and Seller's sole and exclusive remedy hereunder will be, an action for the purchase price of Products and Services delivered to and accepted by Buyer as provided in this P.O., subject to any and all Buyer's rights of adjustment or setoff as provided in this P.O. In no event will such liability of Buyer exceed the total purchase price indicated on the face of this P.O. or elsewhere in this P.O. BUYER WILL NOT BE LIABLE TO SELLER FOR ANY LOST REVENUE, LOST PROFITS OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES BASED ON BREACH OR DEFAULT UNDER THIS P.O. EVEN IF BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
26. Modification. Except as expressly provided in this P.O., the terms and conditions of this P.O. may not be modified, terminated or repudiated, in whole or in part, except by a writing signed by both Buyer and Seller.
27. Waiver. Buyer will not be deemed to have waived any provision of this P.O., or any breach by Seller of any provision of this P.O., unless specifically set forth in writing and executed by an authorized officer of Buyer. No waiver by Buyer of any provision of this P.O. or any breach by Seller hereunder will constitute a waiver of such provision on any other occasion or a waiver of any other breach by Seller.
28. Force Majeure. Each party will promptly notify the other upon becoming aware that a Force Majeure Event (as defined below) has occurred and will use its reasonable best efforts to minimize any resulting delay in or interference with the performance of its obligations hereunder. If such performance is not resumed within fifteen (15) days after such notice, the other party may terminate this P.O. by written notice to the nonperforming party. For purposes of this P.O., "Force Majeure Event" means, with respect to either party, any strike or other labor dispute, riot, war, act of terrorism, any natural disaster, fire, explosion, act of government or governmental agency or instrumentality, or other contingency beyond the reasonable control of either party which in any such case interferes with or prevents the fulfillment by such party of its obligations hereunder.
29. Choice of Law and Forum. This P.O. shall be interpreted, construed and enforced in accordance with the laws of the state of Tennessee without regard to both its principles of conflicts of law and the provisions of rule (whether State of Tennessee, or any other jurisdiction) and the provisions of the United Nations Convention on Contracts for the International Sale of Goods. Any dispute, controversy or claim of any nature arising out of or relating to this P.O. shall be adjudicated in the federal courts of the United States of America or in the courts of the State of Tennessee, and the parties hereby consent (and waive any challenge or objection) to the personal jurisdiction and venue of said Court and state.
30. Severability. In the event any provision of this P.O., in whole or in part, is invalid, unenforceable or in conflict with the applicable laws or regulations of any jurisdiction, such provision will be replaced, to the extent possible, with a provision which accomplishes the original business purposes of the provision in a valid and enforceable manner, and the remainder of this P.O. will remain unaffected and in full force; provided, however, that if without such invalid or unenforceable provision the fundamental mutual objectives of the parties cannot be achieved, either party may terminate this P.O. without penalty by written notice to the other.