Vendor terms and conditions

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    This purchase order ("Order") is placed subject to the terms, conditions, specifications and instructions stated herein and on any attachments hereto, all of which together shall constitute the complete Order. By (i) performing services or delivering goods as specified in this Order, as applicable, (ii) issuing an invoice to Buyer (as defined below), or (iii) accepting payment from Buyer for goods or services, as applicable, provided under this Order, whichever occurs first, you (hereinafter "Seller") agree to be bound by all applicable terms, conditions, specifications and instructions set forth herein. This Order may not be modified or supplemented, except by a written instrument signed by an authorized representative of Alcami Corporation (“Alcami”), and/or one of its Affiliates, whichever is applicable (hereinafter "Buyer").

    As used herein, "Affiliate(s)" shall mean any person or entity directly or indirectly controlling, controlled by, or under common control with Buyer, and for this purpose, "control", "controlling" and "controlled by" shall mean the ownership and control of more than fifty percent (50%) of the outstanding voting securities or interest in capital or profits of any person or entity, or the right to direct or control the management or affairs of any person or entity by contract or similar arrangement. Affiliates are entitled to use the findings, reports, deliverables and/or goods provided under this Order as if they were Alcami, as applicable.

    1. CONFLICTS/GOVERNING DOCUMENTS. Except as otherwise provided below in this Section 1, the Order shall constitute the complete understanding between the parties with respect to the subject matter referenced herein. Any terms and conditions contained in Seller's proposal, invoice, acknowledgment, or other writing, shall be null and void unless such proposal, invoice, acknowledgement or other writing is attached by Buyer to this Order and/or such terms and conditions are expressly accepted and referenced by Buyer in this Order. Notwithstanding the foregoing, if a fully executed written agreement (whether Services Agreement, Purchase Agreement, Lease Agreement, or the like) between Buyer and Seller is in full force and effect with respect to the subject matter referenced herein, then the terms of such agreement shall govern and the conflicting terms of this Order shall be inapplicable.

    2. PRICE AND PAYMENT. Items shipped and services performed pursuant to this Order shall be billed only at the prices reflected hereon or as otherwise expressly approved in writing in advance by Buyer. Unless otherwise specified in this Order or any attachment hereto, Seller shall submit an invoice for the entire amount upon the completion of all services and/or provision of all goods/deliverables. Buyer shall remit payment within sixty (60)
    days from the later of (i) receipt of an invoice from Seller that complies with the requirements of this Order, or (ii) receipt of the goods and/or services. In the event down payment is required, Buyer shall make such down payment to Seller within thirty (30) days of full execution of this Agreement by both parties. Buyer shall be entitled at all times to deduct any amount that is owed by Seller to Buyer (or any Affiliate) under this Order or any other agreement from any outstanding fees owed by Buyer (or any Affiliate) to Seller under this Order or any other agreement.

    3. CHANGES. Prior to shipment of goods or performance of services, as applicable, Buyer may make the following changes, by providing Seller with a written change order issued by an authorized representative:

    A. specifications for items;

    B. method of shipment, packing or performance;

    C. place, time or manner of delivery or performance; or

    D. quantities. Seller will make every reasonable effort to comply with the requested changes and confirm timely acceptance to Buyer.

    4. DEFAULT. Seller will be in default, allowing Buyer to exercise all rights existing under law and in equity (including termination), if Seller:

    A. fails to deliver goods or services within the time specified herein or as otherwise agreed by Buyer;

    B. fails to replace or correct defective goods or services pursuant to the warranties described in Section 9 below in a timely manner;

    C. fails to perform any material provision of this Order;

    D. fails to proceed with performance of this Order in a timely fashion to the extent that this Order or any part hereof cannot be completed within the time specified herein or as otherwise agreed by Buyer; or

    E. becomes bankrupt or insolvent or makes an assignment for the benefit of creditors.

    5. TERMINATION FOR CONVENIENCE. Buyer may terminate performance under this Order in whole or in part upon the provision of written notice to Seller. Upon receipt of notice, Seller will terminate all work in progress and advise Buyer of the value of work completed and non-cancelable materials purchased prior to receipt of such notice. Buyer will pay Seller a pro-rata share of the price set forth in this Order for work completed prior to the termination date and for reasonable non-cancelable materials that cannot be allocated to other work less value received by Seller for items used or resold by Seller. Buyer shall not be liable for the cost of defective, damaged, or destroyed work or materials nor shall Buyer be responsible for costs and expenses incurred by Seller after receipt of notice of termination from Buyer. In no event will payments made under this Section 5 exceed the aggregate Order price less payments made and expenses incurred by Buyer and adjustments allowed in settlement of termination of the Order. In the event this Order is terminated by Buyer as provided herein, payment of the fees and charges stipulated in this Section 5 shall constitute Seller's exclusive remedy.

    6. SHIPMENT. Delivery and shipment of goods and deliverables shall be made pursuant to shipping instructions and in the timeframes stipulated in the face of this Order. Seller acknowledges and agrees that time is of the essence.

    A. Seller shall box, crate and package all items, as necessary, in accordance with good commercial practice and applicable laws and regulations, without charge to Buyer, unless otherwise specified in this Order.

    B. An itemized packing list shall be enclosed with all shipments to Buyer. Buyer's count will be accepted as final and conclusive on shipments not accompanied by a packing list.

    C. Whenever possible, Seller shall ship items from one lot only and in original containers.

    D. Each container must clearly be identified by: Buyer's Purchase Order Number, item number, manufacturer's lot number, net contents and tare weight.

    E. Bills of Lading shall indicate: Buyer's Purchase Order Number, net weights, number of containers/lots, date of shipping, address of consignor/consignee, and name of Seller. Additional documentation such as SDS, Certificate of Analysis, Certificate of Conformance, BSE/TSE Statements, etc., as applicable, must accompany the shipment.

    F. Direct shipments by parties other than Seller may not be made without prior approval of Buyer.

    G. Buyer assumes no responsibility for goods shipped without Buyer's Purchase Order having been issued. Unless otherwise indicated on the front page of this Order, all deliveries will be considered Duty Delivery Paid (Incoterms 2010), at the Buyer's "ship to" address indicated on the front page of this Order.

    H. For shipments of medicines, drugs and chemicals where Buyer is responsible for freight of more than 120 lbs., shipments should be released Per Pro MC 972 Class 60,000 of National Motor Freight Classification. Failure to comply will result in Buyer deducting any difference in freight charges from the applicable invoice.

    7. INVOICES. Each invoice must include, as applicable, Buyer's Purchase Order Number, volume of each item, item number, manufacturer's lot number, net weight, cash and transportation terms, and per unit prices. Buyer may return to Seller deficient invoices for correction without loss of discount. Cash discounts will be computed from original date of invoice.

    8. INSPECTION. Goods and services purchased hereunder shall be subject to Buyer's inspection and testing to the maximum extent practicable at all times and places, including during manufacture or performance, and in any event prior to final acceptance. Final inspection and acceptance by Buyer shall occur after delivery or as otherwise indicated in this Order. Buyer's inspection and acceptance shall not relieve Seller from responsibility for latent defects or warranty obligations. Buyer may return rejected goods, at Seller's expense, for a prompt replacement without additional charge to Buyer or a full refund of any fees previously paid for such rejected goods. Payment of invoices or portions thereof reflecting charges for pending or rejected goods or services may be deferred without liability or loss of discount to Buyer.

    9. WARRANTIES. In addition to any other express or implied warranties (none of which are hereby disclaimed), Seller hereby warrants the following:

    A. all goods and services furnished pursuant to this Order shall be free from defects in design, workmanship and materials, and shall comply with the terms of this Order and any drawings, samples, specifications and other descriptions incorporated herein;

    B. all goods furnished hereunder are of merchantable quality and fit and safe for Buyer's purpose and goods with applicable shelf life restrictions have minimum one (1) year remaining shelf life or minimum 80% of the total useful life at time of receipt by Buyer.

    C. use or sale by Buyer of goods furnished hereunder will not infringe any third party claims of any patent, trademark or copyright, or other intellectual property rights;

    D. all goods and services covered by this Order shall meet or exceed the safety standards established and promulgated under the Occupational Safety and Health Act and its regulations in effect or proposed as of the date of this Order;

    E. all goods and services provided hereunder shall be manufactured, packaged, labeled, shipped and/or performed, as applicable, in accordance with all federal, state and local laws and regulations and any goods shipped hereunder are not adulterated or misbranded as those terms are defined in the Food, Drug and Cosmetic Act, nor are they misbranded hazardous substances as that term is defined in the Hazardous Substances Act;

    F. all chemical substances sold, whether individually or as a part of a mixture or mixtures, including impurities, were not manufactured, processed or distributed in commerce in violation of Section 5 or 6 of the Toxic Substances Control Act (the "TSCA"), a rule or order under Section 5 or 6 of the TSCA, or an order issued in an action brought under Section 5 or 7 of the TSCA; and
    G. as of the delivery date, software and any revision(s) thereto will not contain any computer virus or code that could be otherwise hostile, damaging or disabling to Buyer's existing information systems.

    10. INDEMNIFICATION. Seller agrees to indemnify, defend and hold harmless Buyer, its Affiliates, and their respective officers, directors, employees, agents, representatives, successors and permitted assigns (each, a "Buyer Indemnitee"), from any and all losses, expenses, awards and damages, including court costs and reasonable attorney's fees, incurred by any Buyer Indemnitee and which arise from Seller's failure to comply with the terms and conditions of this Order (including, without limitation, those arising from claims of patent, trademark, or copyright infringement or unfair competition) or the negligence or willful misconduct of Seller or any of its representatives and/or agents. Upon receipt of notice, at Buyer's request, Seller shall promptly assume full responsibility for the defense of any such suit or proceeding to which any Buyer Indemnitee is a party.

    11. CONFIDENTIAL INFORMATION. Seller acknowledges that any and all data, documents, material or information of any type whatsoever, in whatever form or medium, whether or not marked as "confidential" and/or "proprietary", and which could reasonably be expected to be valuable to Buyer, including without limitation, designs, blueprints, specifications, engineering data for production, or product know-how, which is learned, created by, disclosed to or becomes known by Seller in connection with goods or services provided under this Order shall be considered confidential information of Buyer (collectively, "Confidential Information"), unless otherwise agreed to in writing by Buyer, and shall be kept strictly confidential by Seller. Seller shall: (A) not disclose such Confidential Information to any third party, except to its agents and representatives who need to know in order to perform services or deliver goods under this Order and have signed confidentiality agreements with no less restrictive covenants; (B) use Confidential Information only to perform services or deliver goods hereunder; (C) not knowingly export or re-export, directly or indirectly, any Confidential Information received hereunder in violation of any government regulations, including 15 CFR Part 379 of regulations of the office of Export Administration; (D) upon termination or expiration of this Agreement, destroy or return to Buyer, upon request and at Buyer's option, all tangible Confidential Information in its possession and in the possession of any agents and representatives; and (E) protect Confidential Information received from disclosure with at least that degree of care used by Seller in dealing with its own confidential information and shall take reasonable steps to minimize the risk of an unauthorized disclosure of Confidential Information.

    12. PROPRIETARY RIGHTS. With the exception of off-the-shelf software which may be provided under this Order (and is provided under a perpetual, worldwide, irrevocable, fully paid-up, royaltyfree, nonexclusive, nontransferable license to Buyer for its own internal business use), all deliverables provided or created under this Order shall be the sole and exclusive property of Buyer or any of its Affiliates and shall be considered "works made for hire". Seller furthermore agrees that any invention, improvement or discovery (whether or not patentable) which is conceived or reduced to practice by Seller or any affiliate, employee, agent or representative of Seller in connection with goods or services provided under this Order (collectively, "Inventions"), shall be the sole property of Buyer or any of its Affiliates, and shall be treated as Confidential Information. Seller shall fully disclose to Buyer all Inventions conceived or reduced to practice by Seller or any affiliate, employee, agent or representative of Seller. Seller hereby assigns and conveys to Buyer or any of its Affiliates, at no cost to Buyer, Seller's entire right, title and interest to any and all resulting Inventions. Upon completion of performance of this Order, Seller shall deliver to Buyer all information relating to any such Invention.

    As for any hardware or equipment that is purchased by Buyer hereunder, title to such hardware or equipment is transferred to Buyer upon receipt. Seller shall and shall cause its Affiliates, employees, agents and/or representatives, as applicable, to sign all appropriate documents necessary or convenient to enable Buyer to acquire title to Inventions and to file and process applications for patents related to any Inventions.

    13. RIGHTS IN DATA. Seller shall retain title to any pre-existing Seller-developed information of any nature used in performance of services hereunder. Seller hereby grants to Buyer and is Affiliates a perpetual, worldwide, irrevocable, fully paid-up, royalty-free, nonexclusive, nontransferable license to duplicate, modify and use such information for Buyer's own internal business purposes.

    14. INSURANCE. Prior to providing goods and/or services under this Order, Seller shall procure and maintain at its own expense and shall cause its vendors, representatives and agents, as applicable, to procure and maintain, at their own expense, insurance in accordance with the risks/limits listed below, as deemed necessary by Buyer. Such insurance shall be maintained until the services are completed and/or goods are delivered, as applicable. Upon Buyer's request, Seller shall provide to Buyer an original certificate indicating the coverage limits set forth below which shall be signed by the insurance carrier (the "Certificate"). Buyer's name along with Buyer's address must be shown as a "Certificate Holder." The name of the insurance company must be shown for each line of insurance as well as policy numbers, limits and effective dates. Seller shall procure the following insurance:

    A. workers' compensation insurance in statutory limits for state(s) in which the work is to be performed;

    B. commercial general liability insurance with annual limits of at least $1,000,000 per occurrence;

    C. automobile liability insurance with annual limits of at least $1,000,000 per occurrence;

    D. employer's liability insurance with annual limits of at least $1,000,000 per occurrence;

    E. umbrella liability insurance with annual limits of at least $5,000,000 which coverage shall include excess limits for automobile, commercial general liability and employer's liability;

    F. professional liability and errors and omissions (if applicable) insurance with annual limits of at least $1,000,000 per occurrence; and

    G. fidelity bond insurance (if applicable) with annual limits of at least $1,000,000 million per loss which coverage shall include dishonesty, robbery, theft and forgery on premises and in transit.

    15. LIMITATION OF LIABILITY. IN NO EVENT SHALL BUYER BE LIABLE TO SELLER, SELLER'S AFFILIATES, OR ANY THIRD PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS ORDER, WHETHER OR NOT BUYER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.

    16. PUBLICITY. Seller shall not, without the written consent of Buyer in each instance: (A) use the name, trade name, trademark, trade device, service mark, symbol or any abbreviation, contraction or simulation thereof of Buyer or its Affiliates in any advertisement or publication; or (B) represent, directly or indirectly, that any product or any service provided by Seller has been approved or endorsed by Buyer or any of its Affiliates.

    17. REGULATORY REQUIREMENTS.

    A. Each party shall comply with all foreign and United States federal, state and local laws and regulations applicable to it including without limitation those laws and regulations regarding (i) the manufacture, testing, distribution, sale, and/or promotion of pharmaceutical products and medical devices and (ii) required permits, licenses, filings, certifications, and other approvals required by the FDA or any similar state or local or foreign law or regulation.

    B. Seller represents and certifies that neither it nor any person or entity employed or engaged by Seller, including without limitation its officers, directors, employees, or agents who provide goods or services in connection with this Order (collectively "Personnel") is currently: (1) excluded, debarred, suspended or otherwise ineligible to participate in federal health care programs as defined in 42 U.S.C. Sec. 1320a-7b or from federal procurement or nonprocurement activities as defined in Executive Order 12689 (collectively "Ineligible"); or (2) debarred pursuant to the Generic Drug Enforcement Act of 1992, 21 U.S.C. Sec. 335 (a), as amended, or any similar state law or regulation (collectively "Debarred") or (3) convicted of a criminal offense that falls within the ambit of 42 U.S.C. Sec 1320a-7(a), but has not yet been excluded, debarred, suspended, or otherwise declared ineligible ("Convicted").

    Seller represents and certifies that it will not utilize any Ineligible, Debarred, or Convicted Personnel to provide any goods or services hereunder. If Seller becomes Ineligible, Debarred or Convicted during the term of this Order, Seller will notify Buyer promptly, and in any event no later than ten (10) business days after receiving notification of the Ineligibility, Debarment, or Conviction. Upon receipt of such notice, or if Buyer becomes aware of any existing or threatened Ineligibility, Debarment, or Conviction, Buyer shall have the right to terminate this Order immediately and shall retain all claims, causes of action, defenses and other rights that Buyer may have in law or equity.

    If Seller's Personnel becomes Ineligible, Debarred or Convicted during the term of this Order, Seller will remove the Ineligible, Debarred, or Convicted Personnel from responsibility for, or involvement with, the goods or services provided under this Order within five (5) business days of discovering the Ineligibility, Debarment, or Conviction.

    C. Each party shall comply with all foreign and United States federal and state laws and regulations applicable to it, including but not limited to: (i) the Anti-Kickback provisions of the Social Security Act, 42 U.S.C. § 1320a-7b, et seq., and the relevant regulations at 42 C.F.R. Part 1001 (Healthcare Fraud and Abuse Laws); and (ii) the False Claims Act, 31 U.S.C. § 3729.

    D. Each party shall comply in all respects with all foreign and United States federal and state laws and regulations applicable to it relating to the confidentiality and security of individually identifiable health information and medical data, including but not limited to the Health Insurance Portability and Accountability Act of 1996 (HIPAA), and any other laws and/or regulations relating to the maintenance, use, transmission or other activity concerning patient records and confidentiality of personal and medical data in whatever form and medium.

    E. Buyer is an equal opportunity employer and federal subcontractor. Consequently, the parties agree that, as applicable, they will abide by the requirements of 41 CFR 60-1.4(a), 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a) and that these laws are incorporated herein by reference. These regulations prohibit discrimination against qualified individuals based on their status as protected veterans or individuals with disabilities, and prohibit discrimination against all individuals based on their race, color, religion, sex, or national origin. These regulations require that covered prime contractors and subcontractors take affirmative action to employ and advance in employment individuals without regard to race, color, religion, sex, national origin, protected veteran status or disability. The parties also agree that, as applicable, they will abide by the requirements of Executive Order 13496 (29 CFR Part 471, Appendix A to Subpart A), relating to the notice of employee rights under federal labor laws.

    F. During the course of performing Services under this agreement, if either party becomes aware of an adverse event (“AE”) associated with use of Seller's product (whether or not expected or labelled), that party shall report the AE to the other party within one (1) business day using the contact information on the face of this Order in any of the following forms: (i) CIOMS I, (ii) Med Watch, (iii) AE reporting form (electronic or hardcopy). Information reported shall include: patient identifiers, reporter (including reporter name & contact information), the Seller suspect product information (drug, dose, route, date of administration), and details regarding the adverse event to Seller USPV.

    18. TAXES. Any sales or use taxes determined to be applicable as a result of this Order shall be the responsibility of Buyer. Seller and Buyer shall cooperate to the fullest extent allowable by law to minimize any and all sales and use, transfer or other excise taxes applicable on payments to be made by Buyer to Seller. Any and all taxes to be charged to Buyer by Seller and remitted to tax authorities by Seller on behalf of Buyer shall be separately stated on any invoices or statement of fees submitted by Seller to Buyer. All Invoices submitted to Buyer from vendors resident, domiciled, incorporated, organized or located outside the United States (hereinafter, "Foreign Vendors") must separately state amounts payable for Services performed inside the United States and outside the United States. If Foreign Vendor provides any Services in the United States, Customer reserves the right to withhold tax up to 30% of any payment to Foreign Vendor, unless Foreign Vendor demonstrates to Customer's satisfaction that such payment is exempt from U.S. withholding tax, and where applicable, submits accurate and completed Internal Revenue Service forms to support a claim for exemption from U.S. withholding tax.

    19. INTERNATIONAL SHIPMENTS. ATTENTION: INSTRUCTIONS FOR INTERNATIONAL SHIPMENTS TO BUYER Please contact Buyer with any questions regarding shipment to Buyer in the United States.

    A. Buyer requires the following information for all shipments originating outside the United States (excluding Puerto Rico) destined to Buyer in the United States: (i) Packing List: A packing list will be included with all shipments and must contain the following: (a) Order number; (b) product part number and description; (c) total number of boxes in shipment and corresponding merchandise enclosed; (d) quantity; and (e) final delivery address. The packing list shall be put inside the crate and the crate marked to note that the packing list is enclosed.

    (ii) Itemized Commercial/Proforma Invoice:
    The invoice must be in English and shall contain, at a minimum, the following: (a) manufacturer's complete name and address; (b) Seller's complete name and address (if different from the manufacturer); (c) a detailed and accurate description of the merchandise including part numbers, GMID, etc.; (d) quantity, including unit of measure and purchase price in the currency of purchase of each item included on the invoice; (e) terms of sale (e.g., ExWorks, FOB, DDP, etc.); (f) Purchase Order Number; (g) Chemical Abstract Services Number (CAS#) and International NonProprietary Name; (h) (INN) if available and where applicable; (i) country of origin of merchandise; (j) freight and insurance charges that are to be paid by Buyer, and are included in the cost of the materials (must be itemized separately on the invoice); (k) U.S. Harmonized Tariff Schedule to the 8th or 10th digit; and (l) the full invoice price charged to Buyer. Invoices for shipments that make up one of multiple shipments shall be made under a single Purchase Order, and the value shall be stated as the actual value of the merchandise. Nominal, fictitious or arbitrary values will not be accepted. Additional payments which will be or have been made to Seller by Buyer for items such as assists (e.g., tooling, molds, dies, materials or components provided for incorporation or manufacture of the finished products), royalties, packing, or commissions or progress payments should be separately itemized and identified on the commercial invoice.

    B. Labeling/Marking. All products must be clearly marked in English with their country of origin. All shipping cartons should also be marked in English with the country of origin of the product being shipped as well as any additional markings, placards and labels fulfilling compliance with DOT and IATA rules as applicable.

    C. Advance Distribution of Shipping Documents. Prior to the tender of the material(s) to the carrier or freight forwarder, Seller shall forward a complete set of shipping documents including the commercial invoice, packing list and the bill of lading or air waybill. In addition, Seller shall provide Buyer with any cargo booking sheet, shipping instructions, dock receipt, and inland bill of lading when no combined bill of lading is issued by the carrier.

    D. Preparation of Waybills. Merchandise shall be consigned to Buyer. Buyer’s customs broker identified on the face of this Order must be listed as the notify party including the proper address and contact information. 

    E. Import/Customs Compliance. Seller assumes all responsibility and liability for any shipments covered by this Order requiring any government import clearance. If government authorities declare or otherwise impose countervailing duties, antidumping duties, or retaliatory duties on the goods imported under this Order, Buyer reserves the right to terminate this Order pursuant to Section 5. Seller will be debited for any duties, fees or freight incurred by Buyer due to Seller’s failure to comply with the terms and conditions of this Order.

    F. Drawback. All drawback of duties, and rights thereto, related to duties paid by Seller or Buyer when the goods are imported or any materials or components used in manufacturing the goods will accrue to the exclusive benefit of Buyer. Duty drawback rights include rights developed by substitution and duty drawback rights obtained from sub-tier sellers related to the goods. Seller will provide Buyer with all documents, records, and other supporting information necessary to obtain any duty drawback, and will reasonably cooperate with Buyer to obtain payment.

    G. Offset. If Seller is a non-U.S. entity, Seller will assist Buyer in obtaining credit from Seller’s government for the value of relevant goods purchased to meet any present or future contractual offer or industrial benefit requirements imposed upon Buyer or its Affiliates. Assistance includes, but is not limited to, at Buyer’s request providing evidence of the existence, value, content and other pertinent information relating to the purchases. Buyer reserves the right to claim these credits for itself or third parties. If Seller is a U.S. entity that awards any portion of the work to lower tier non-U.S. sellers, Seller will assign to Buyer any credits obtained from the non-U.S. sub-tier seller’s government relating to this transaction and assist Buyer in obtaining any credits.

    20. GENERAL.

    A. Seller shall not, in any manner, delegate or assign its obligations, rights or interest under this Order without the prior written consent of Buyer. Buyer may assign its rights under this Order without the prior written consent of Seller.

    B. Materials and equipment furnished by Buyer for use by Seller in connection with this Order shall remain the property of Buyer, shall be used only in performance of this Order by Seller, shall be maintained by Seller in good condition, and shall be insured by Seller against loss, theft or damage while in Seller's custody, care and control. Upon completion of this Order, Seller shall return to Buyer or dispose of such remaining materials and equipment at Buyer's direction.

    C. This Order shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to its conflict of laws rules or principles.

    D. The remedies reserved herein shall be cumulative and shall be in addition to all other remedies provided in law or equity. No waiver of a breach of any provision of this Order shall constitute a waiver of any other breach or of such provision.

    E. The terms of this Order and any proposal, invoice, acknowledgement or other writing attached hereto, as set forth in Section 1, may not be amended or modified other than in a writing signed by both parties. Any changes to the printed terms hereof shall not be accepted unless expressly initialed and dated by both Buyer and Seller.

    F. Seller is an independent contractor, free of control or supervision by Buyer as to the means or manner of performing such work.

    G. Seller must obtain Buyer's written approval prior to using subcontractors to perform work under this Order.

    H. Neither party is liable for delays in performing any of the terms of this Order caused by the effects of fire, strike, war, terrorism, government restriction or prohibition, or other causes reasonably beyond its control and without its fault, but the party failing to perform shall use all reasonable efforts to resume performance of this Order as soon as feasible.