General Purchase Order Terms and Conditions
1. Applicability. This purchase order is an offer by Horseshoe Beverage Company,LLC, a Delaware limited liability company (the “Buyer”) for the purchase of the goods specified on the face of this purchase order (the “Goods”) from the party to whom the purchase order is addressed (the “Seller”) in accordance with and subject to these terms and conditions (the “Terms”; together with the terms and conditions on the face of the purchase order, the “Order”).This Order, together with any supply agreement or other agreement between the parties and the documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of the Order. The Order expressly limits Seller's acceptance to the terms of the Order. These Terms prevail over any terms or conditions contained in any other documentation and expressly exclude any of Seller's general terms and conditions of sale or any other document issued by Seller in connection with this Order. These Terms apply to any repaired or replacement Goods provided by Seller hereunder.
2. Acceptance. This Order is not binding on Buyer until Seller accepts the Order in writing or starts to perform in accordance with the Order. If Seller does not accept the Order in writing or provide written notice that it has commenced performance within three (3) business days of Seller's receipt of the Order, this Order will lapse. Buyer is not obligated to any minimum purchase or future purchase obligations under this Order. Buyer may withdraw the Order at any time before it is accepted by Seller.
3. Change Order. No change to this Order is binding upon Buyer unless it is in writing, specifically states that it amends this Order and is signed by an authorized representative of Buyer. Buyer may at any time, by written instructions issued to Seller (each a “Change Order”), make changes within the scope of this Order in any one or more of the following: (a) specifications; (b) method of shipment or packing; (c) place and time of delivery; (d) quality; (e) quantity; or (f) scope or schedule of Goods. If any change causes an increase or decrease in the cost or schedule of any work under this Order, Seller shall within forty-eight (48) hours, or an extended time as mutually agreed to by the parties based upon the requested changes in the Change Order, of receipt of a Change Order submit to Buyer a firm cost proposal or updated schedule for the Change Order. If Buyer accepts such cost proposal or updated schedule, such changes shall be mutually agreed upon by the parties in writing and Seller shall proceed with this Order subject to the Change Order and revisions accepted in connection with same. Seller acknowledges that a Change Order may or may not entitle Seller to an adjustment in the Seller's compensation or the performance deadlines under the Order. If Buyer does not accept Seller’s cost proposal or updated schedule, it may rescind the Change Order or terminate the Order.
4. Delivery Date. Seller shall deliver the Goods in the quantities and on the date(s) specified in this Order or as otherwise agreed in writing by the parties (the “Delivery Date”). Timely delivery of the Goods is of the essence. If Seller delivers Goods prior to the Delivery Date without Buyer’s prior consent, Buyer has the right to (a) return any Goods delivered prior to the Delivery Date at Seller’s expense and Seller shall redeliver such Goods on the Delivery Date or (b) as applicable, charge Seller storage fee(s) for such Goods. Seller must notify Buyer in writing a minimum of ten (10) business days in advance if the Delivery Date will not be met. Upon receiving such notice or if the Delivery Date is not met, Buyer shall have the option to, in each case at Seller’s sole risk and expense: (a) approve a revised Delivery Date; (b) direct Seller to ship the goods on an expedited basis at the earliest possible time; (c) accept substitute goods proposed by Seller, to be shipped by Seller on an expedited basis; (d) in combination with (a), (b) or (c), reduce the quantity of the Order; (e) purchase substitute Goods from a third party and charge Seller with the increased difference in cost thereof (if any); or (f) cancel the Order without liability. Seller shall indemnify Buyer against any losses, claims, damages, and costs and expenses directly attributable to Seller's failure to deliver the Goods on the Delivery Date. The foregoing is in addition to any other rights or remedies available to Buyer at law or in equity.
5. Quantity. If Seller delivers more or less of the quantity of Goods ordered, Buyer may reject all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller's risk and expense and Seller shall be charged and responsible for any applicable costs, fees and expenses, including storage fees, of the Buyer. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted as agreed by the parties.
6. Delivery Location. All Goods shall be delivered to Buyer’s loading dock at the address specified on the face of this Order (the “Delivery Location”) during Buyer's normal business hours or as otherwise instructed by Buyer.
7. Shipping Terms. Unless otherwise indicated on the Order, Seller shall ship the goods “FOB Destination, Freight Prepaid and Allowed” if within the United States or “DAP (Incoterms® 2020)” if international and deliver the Goods to the Delivery Location on the Delivery Date. Seller shall give written notice of shipment to Buyer when the Goods are delivered to a carrier for transportation. Seller shall provide, as applicable, an itemized list of goods in the delivery, the Certificate of Origin, Bill of Lading and other customs documentation, as requested by Buyer, and a Certificate of Analysis in advance of shipment. With the delivery, Seller shall provide Buyer all shipping documents, including the packing list, and any other documents necessary to release the Goods to Buyer after Seller delivers the Goods to the transportation carrier. The Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence and any other documents pertaining to the Order. In the event that these documents are not provided or do not contain the proper information, Seller shall promptly provide or revise for conformance with this Section and the requirements of these Terms. If any such delay causes a delay in Buyer’s use of the Goods, Seller shall be charged and responsible for any applicable costs, fees and expenses related to same.
8. Title and Risk of Loss. Title passes to Buyer upon delivery of the Goods to the Delivery Location. Seller bears all risk of loss or damage to the Goods until such Goods are accepted by Buyer.
9. Packaging. Goods must be clearly marked and labeled with recommendations and/or warnings necessary for the Buyer's handling of the Goods. Where applicable, Goods must be adequately protected in materials suitable for contact with food or consumables. All Goods shall be packed for shipment according to Buyer's instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition in a customary manner following Buyer’s standard guides of delivery. The methodology of transport (i.e. trailer) shall be subject to a requirement of passing inspection pursuant to the Buyer’s standard delivery requirements. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Seller's expense.
10. Inspection and Rejection of Nonconforming Goods. The Buyer has the right to inspect the Goods before, on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right at its sole option, effective upon written notice to Seller, to: (a) rescind the Order in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, promptly, but in any event within fourteen (14) days of notice or such other period of time as mutually agreed to by the Buyer and Seller, replace the nonconforming Goods and pay for all related expenses, including, but not limited to, unpacking, examining and repacking such Goods, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Order. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Seller's obligations under the Order, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
11. Price. The price of the Goods is the price stated on the face of the Order (the “Price”). Unless otherwise specified in the Order, the Price includes all packaging, transportation costs to the Delivery Location, storage, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.
12. Invoicing; Payment Terms. Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with the Terms. Delays in receiving an invoice, errors or omissions, or lack of supporting documentation may be cause for delay of payment. Seller's invoice must reference the applicable order number, quantity and part number(s) of the goods, or the quantity or other description of the services, covered hereby. Buyer shall pay all properly invoiced undisputed amounts due to Seller within sixty (60) days after Buyer's receipt of such invoice, except for any amounts disputed by Buyer in good faith. All payments hereunder must be in US dollars. The parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under the Order notwithstanding any such dispute.
13. Setoff. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller under this Order or any other agreement between the parties. If Buyer exercises its action under this Section, it shall provide notice to Seller for same within the period of required payment under Section 12 for such invoice being set off against.
14. Quality and Audit Rights. In order to assess Seller’s work quality and/or compliance with this Order, upon reasonable notice by Buyer, all goods, materials and services related to the Goods purchased hereunder, including, raw materials, components, assemblies, work in process, tools and end products shall be subject to quality inspection and test by Buyer or regulatory authorities at all places, including sites where the Goods are made or located, whether at Seller's premises or elsewhere. Seller agrees to cooperate with such audit and quality inspection, including completing and returning questionnaires, making available its knowledgeable representatives and granting access to any applicable sites during normal business hours. Buyer's inspection or failure to inspect or reject or detect defects by inspection shall not relieve Seller from its responsibilities under this Order nor impose liabilities on Buyer. If the Buyer determines that there is a quality issue and Seller is unable or unwilling to remediate such issue, Buyer shall have the right to immediate termination of this Order without liability.
15. Recall. Buyer has the exclusive right to initiate and/or direct any stop sale, recall, market withdrawal, stock recovery, corrective action plan, or advisory safety communication (a “Recall Action”) with respect to the Goods or any product incorporating the Goods. Buyer may direct Seller to, and upon such direction Seller shall, conduct such Recall Action. Seller shall fully cooperate with Buyer in any Recall Action, including, without limitation cooperating with regulatory agencies, notifying consumers, sequestering the Goods in its distribution chain, and assisting in the transfer of Goods, as directed by Buyer or regulatory agency, if necessary. Seller shall respond promptly to any question or request for information received by Buyer from any regulatory agency or customer pertaining to the Goods. Seller shall provide Buyer all necessary information in its possession arising out of a Recall Action, including any quality assurance program for the Goods. Without limitation of the foregoing, in the event of a Recall Action, Seller shall reimburse Buyer any amounts Buyer paid Seller for such Goods as well as any costs and expenses incurred in connection with initial receipt of the Goods, such as transportation costs. In addition to any other available remedy to Buyer, Seller shall bear all costs associated with any Recall Action attributable to the Goods or to Seller’s actions or omissions, including but not limited to, the cost of locating and identifying Goods, the cost of investigating and/or inspecting the affected Goods, the cost of decontaminating the affected lines in manufacturing (including internal labor costs), the cost of destroying Goods, the cost of packing and shipping the recalled Goods, the cost of notifying Buyer's customers, and the cost of media notifications, if such form of notification is needed.
16. Warranties. Seller warrants to Buyer that for a period of twelve (12) months from the Delivery Date, all Goods will: (a) be free from any defects in workmanship, material and design; (b) be of new and merchantable quality, and, when applicable, not used, rebuilt or made of refurbished material; (c) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer; (d) be fit for their intended purpose and operate as intended; (e) be merchantable; (f) be free and clear of all liens, security interests or other encumbrances; and (g) not infringe or misappropriate any third party's patent or other intellectual property rights. These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer. These warranties are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer's discovery of the noncompliance of the Goods with the foregoing warranties. If Buyer gives Seller notice of noncompliance with this Section, Seller shall, at its own cost and expense and at the Buyer’s option, promptly, but in any event within fourteen (14) days of notice or such other period of time as mutually agreed to by the Buyer and Seller, replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer. In the event of failure of Seller to correct defects in or replace conforming goods within the agreed upon time period, Buyer may make such corrections or replace such Goods and charge Seller for the cost incurred by Buyer in doing so.
17. General Indemnification. Seller shall defend, indemnify and hold harmless Buyer and Buyer's parent company, their subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees and Buyer's customers (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with (a) the Goods, (b) Seller’s acts or omissions, (c) Seller’s breach of any Terms, (d) Seller’s negligence or willful misconduct, or (e) a Recall Action under Section 15 (including, without limitation, Losses relating to (i) contaminated Goods, (ii) contamination of other products due to contamination of affected lines in manufacturing due to contaminated Goods, (iii) decontamination of affected lines in manufacturing due to contaminated Goods), (iv) downtime in any of Seller’s manufacturing operations, and (v) any additional, related costs, fees and expenses (including internal labor costs). Such Losses shall include, without limitation, lost profits, and all other direct, indirect, punitive, and consequential damages. Seller shall not enter into any settlement or compromise a claim without Buyer's or Indemnitee's prior written consent unless the settlement or compromise (a) is solely for a cash payment, (b) requires no admission of liability or wrongdoing on Buyer's or Indemnitees’ part, (c) imposes no obligation on Buyer or any Indemnitee other than to grant a full and complete release to the third party claimant, (d) imposes no restriction on Buyer's or any Indemnitee’s business, (e) provides confidentiality of the settlement, and (f) provides a full and complete release of Buyer and the Indemnitees.
18. Intellectual Property Indemnification. Seller shall, at its expense, defend, indemnify and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer's or Indemnitee's use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Buyer's or Indemnitee's prior written consent.
19. Work Product. “Work Product” means all deliverables relating to and/or resulting from the services and/or engineering, consulting or development services related to the design and manufacturing of goods, including without limitation, any and all items made, designed, developed, conceived and/or reduced to practice by Seller, or jointly by Seller and Buyer under this Order: (a) including, without limitation, any and all inventions, improvements, documentations, writings, blueprints, works-of-authorship, ideas, processes, formulas, works, materials, software, specifications, systems, drawings, sketches, models, algorithms, programs, research, technical and business information and data, layouts, documents, drawings, design drawings, electronic data and information, electronic files, and calculations, and (b) whether or not the item is in written or oral form, is patentable or copyrightable, or made, developed, conceived and/or reduced to practice by Seller, alone and/or in conjunction with others (including with Buyer). Buyer is, and shall be, the sole and exclusive owner of all right, title and interest to all Work Product, including all intellectual property rights embodied in or practiced therein (including, without limitation, all patents, copyrights, trademarks, trade secrets, works of authorship whether or not copyrightable, moral rights, and proprietary rights relating thereto). All Work Product shall be Buyer’s Confidential Information. Seller agrees that with respect to any Work Product that may qualify as “work made for hire” under applicable copyright law, such Work Product is hereby deemed a “work made for hire” for Buyer. To the extent that any of the Work Product does not constitute a “work made for hire”, Seller agrees to and hereby irrevocably assigns to Buyer for no additional consideration, all right, title, and interest in and to the Work Product, including, all intellectual property rights embodied in and/or practiced by the Work Product. Seller shall not use the Work Product except to perform Seller’s obligations under this Order. Seller shall promptly disclose to Buyer all Work Product, and shall take all actions reasonably requested by Buyer (including the execution, acknowledgement, and delivery of documents) to effect, assign, perfect, or evidence Buyer’s ownership rights in and to the Work Product (including the intellectual property rights embodied in or practiced by the Work Product) and to confirm any assignments stated in this Section.
20. Insurance. During the term of the Order and for a period of one (1) year thereafter, Seller shall, at its own expense, maintain and carry insurance in full force and effect with financially sound and reputable insurers which includes, but is not limited to, commercial general liability (including product liability) with minimum coverage of $2,000,000 per occurrence and $5,000,000 in the aggregate, workers’ compensation insurance as required by statute, and automobile liability (for non-owned hired vehicles and owned vehicles) providing coverage for bodily injury and property damage for a minimum of $1,000,000 per occurrence. Upon Buyer's request, Seller shall provide Buyer with a certificate of insurance from Seller's insurer evidencing the insurance coverage specified in this Order. The certificate of insurance shall name Buyer as an additional insured. Except where prohibited by law, any such policy for insurance required hereunder shall provide a waiver of subrogation in favor of Buyer, its insurers or the Indemnitees. Seller shall provide Buyer with thirty (30) days' advance written notice in the event of a cancellation or material change in Seller's insurance policy.
21. Hazardous Materials. If any Goods covered hereby contain hazardous or toxic chemicals as defined under any applicable law, Seller shall provide to Buyer by the Delivery Date all applicable Material Safety Data Sheets. Failure of Seller to so provide such Material Safety Data Sheets by the Delivery Date shall result in Buyer's withholding payment until received.
22. Contamination. Any Goods sold hereunder shall be free from any contamination, including, without limitation, any known pathogen or toxin.
23. Compliance with Law. Seller is in compliance with and shall comply with all applicable laws, regulations and ordinances. The Goods shall conform and comply with any and all requirements of all applicable laws, including any and all applicable U.S. Food and Drug Administration rules and regulations. Seller has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the Order. Seller shall comply with all export and import laws of all countries involved in the sale of Goods under this Order. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Buyer may terminate this Order if any government authority imposes antidumping duties, countervailing duties or any retaliatory duties on the Goods.
24. Termination. Buyer may terminate this Order, in whole or in part, at any time with or without cause prior to the shipment of Goods by written notice to Seller. Upon receipt of such termination notice, Seller shall promptly comply with the direction contained in such notice and shall, as required, (a) take all action necessary to terminate such work, minimizing costs and liabilities for the terminated work, and (b) continue the performance of any part of the work not terminated by Buyer. Taking into account any setoffs that may be due to Buyer, Seller shall be paid a reasonable termination charge consisting of percentage of the Order Price reflecting the percentage of work performed prior to the notice of termination. Seller shall not be paid for any work done after receipt of the notice of termination, or for any costs incurred by Seller’s suppliers or subcontractors which Seller could have reasonably avoided. In addition to any remedies that may be provided under these Terms, Buyer may also terminate this Order or any part hereof with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods, if Seller has not performed or complied with any of these Terms, in whole or in part. In the event of termination for cause, Buyer shall not be liable to Seller for any amount, and Seller shall be liable to Buyer for any and all damages sustained by reason of the default which gave rise to the termination. If the Seller becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then the Buyer may terminate this Order upon written notice to Seller.
25. Limitation of Liability. IN NO EVENT WILL BUYER BE LIABLE TO SELLER FOR ANY SPECIAL, EXEMPLARY, INCIDENTAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, REVENUE, AND BUSINESS), WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, EQUITY, PRODUCT LIABILITY, FUNDAMENTAL BREACH, OR OTHERWISE ARISING OUT OR RELATED TO THIS ORDER, REGARDLESS OF WHETHER BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH DAMAGES.
26. Waiver. No waiver by any party of any of the provisions of the Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the Order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
27. Confidential Information. All non-public, confidential or proprietary information of the Buyer (“Confidential Information”), including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential,” in connection with the Order is confidential, solely for the use of performing the Order and may not be disclosed or copied unless authorized by Buyer in writing. Confidential Information shall not include information that is: (a) in the public domain; (b) known to the Seller at the time of disclosure; or (c) rightfully obtained by the Seller on a non- confidential basis from a third party. Seller agrees that at all times during and after Seller's performance of the Order, Seller and its agents, officers, directors, representatives, professional advisors and employees (collectively, the “Representatives”), will hold in trust, keep strictly confidential, and not disclose to any third party or use or permit the use of any of the Confidential Information. Seller and its Representatives shall take all reasonable measures to protect the confidentiality of, and avoid disclosure or use of, the Confidential Information. Without limiting the foregoing, Seller and its Representatives shall take at least the same measures that Seller takes to protect its own most highly confidential information. Seller and its Representatives shall return or destroy all materials supplied by the Buyer Group and all documentation developed by Seller or its Representatives once the Order is fully performed, or upon request by Buyer, whichever is earlier. The parties agree that the Buyer Group would be irreparably damaged and may have no adequate remedy at law for Seller’s or its Representatives’ breach of this Section. Accordingly, Seller hereby: (a) consents to the entry of an immediate ex-parte injunction, temporary restraining order, and/or permanent injunction to enforce the provisions of this Section, in addition to any other remedies available at law or in equity; and (b) waives in any legal proceeding the defense that the Buyer Group have adequate remedies available at law. Seller hereby indemnifies, defends and holds the Buyer and Indemnitees harmless from any and all Losses associated with the Seller or its Representatives’ breach of the terms of this Section.
28. Force Majeure. Buyer shall not be liable or responsible to the Seller, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Order, when and to the extent Buyer’s failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, pandemic, epidemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; (f) national or regional emergency; and (g) other similar events beyond the reasonable control of Buyer. If Buyer has a Force Majeure Event, Buyer shall be permitted to terminate the Order immediately without penalty if such Goods are perishable or notify the Seller that it shall hold such Goods at the direction of the Buyer, in which case, Seller shall deliver such Goods to Buyer when the Force Majeure Event has ceased.
29. Assignment. Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under the Order without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign, transfer or subcontract any or all of its rights or obligations under the Order without Seller's prior written consent.
30. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the Order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from this Order.
31. No Third-Party Beneficiaries. This Order is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
32. Governing Law. All matters arising out of or relating to this Order shall be governed by and construed in accordance with the internal laws of the State of Wisconsin without giving effect to any choice or conflict of law provision or rule (whether of the State of Wisconsin or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Wisconsin.
33. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of or relating to this Order shall be instituted in the federal courts of the United States of America or the courts of the State of Wisconsin, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
34. Cumulative Remedies. The rights and remedies under this Order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
35. Notices. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the face of this Order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile or electronic mail (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Order, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
36. Severability. If any term or provision of this Order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
37. Survival. Provisions of this Order which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Order including, but not limited to, the following provisions: Warranties, Indemnification, Intellectual Property Indemnification, Work Product, Insurance, Compliance with Laws, Limitation of Liability, Confidentiality, Governing Law, Submission to Jurisdiction and Survival.
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