Purchase Terms and Conditions
TERMS AND CONDITIONS OF PURCHASE OF GOODS AND SERVICES EFFECTIVE AS OF NOVEMBER 2020 IoT Holdings, LLC dba Aeotec Americas ("AA") is listed in the accompanying Purchase Order or agreement, and referred to herein as "Buyer" or "Aeotec Americas". Notice - By accepting or shipping any part of this Purchase Order Supplier agrees to the following terms and conditions (the "Agreement"): Terms of Agreement;
Order of Precedence 1. This Agreement contains the only terms which govern the purchase by AA or its affiliates, or by AA on behalf of its affiliates, of Product described on Purchase Orders and sold by Supplier. AA and Supplier are sometimes herein referred to singly as "Party" or collectively as "Parties." This Agreement supersedes all previous and contemporaneous agreements and understandings between the Parties. The Parties intend for the express terms and conditions contained in this Agreement to exclusively govern and control each of the Parties' respective rights and obligations regarding the manufacture, purchase and sale of the goods and/or services, as described in a Purchase Order, sourcing agreement, or statement of work (hereinafter referred to as "Products" or "Services," as applicable), and the Parties' agreement is expressly limited to such terms and conditions. Notwithstanding the foregoing, if any terms and conditions contained in a Purchase Order conflict with any terms and conditions contained in this Agreement, the applicable term or condition of this Agreement will prevail and such contrary or different terms will have no force or effect. Except for such contrary or different terms, the terms and conditions of all Purchase Orders are incorporated by reference into this Agreement for all applicable purposes hereunder. Without limitation of anything contained in this paragraph, any additional, contrary or different terms contained in any Confirmation or any of Supplier's invoices or other communications, and any other attempt to modify, supersede, supplement or otherwise alter this Agreement, are deemed rejected by Buyer and will not modify this Agreement or be binding on the Parties unless such terms have been fully approved in a signed writing by authorized representatives of both Parties. Notwithstanding anything herein to the contrary, if a written contract signed by both parties is in existence covering the sale of the Products and/or Services covered herein, the terms and conditions of such contract shall govern this transaction.
Ordering 2. Ordering of Products shall be by Purchase Orders on AA's order forms and change orders thereto (collectively the "Purchase Documents"). All orders shall be deemed accepted by Supplier unless AA receives a written objection thereto within 2 business days after Supplier's receipt of such orders. No variation in any of the terms, conditions, deliveries, prices, quality, quantity, and specifications of Buyer's Purchase Orders, irrespective of the wording of Supplier's acceptance, will be effective without Buyer's written consent. The shipment by Supplier of any part of an Order shall be Supplier's agreement to all provisions of the Purchase Order without variation or exception.
Order Changes and Cancellation 3. AA may, without incurring liability for additional or increased costs: (a) change the delivery destination for the Product(s); and/or (b) change or terminate the Purchase Orders, in whole or in part. Upon receipt of such notice, Supplier shall, unless the notice directs otherwise, immediately discontinue the work under the Purchase Order and the placing of orders for materials, facilities and supplies for the work under the Purchase Order, and shall make every reasonable effort to procure cancellation of all such existing orders or contracts upon terms satisfactory to AA. Supplier shall thereafter do only such work as may be necessary to preserve and protect work already in progress. AA reserves the right at any time to make changes in any one or more of the following: (a) specifications, drawings and data incorporated in this order where the materials to be furnished are to be specially manufactured for AA; (b) methods of shipment or packing; (c) place of delivery; and (d) time of delivery. If any such changes cause an increase or decrease in the cost of or the time required for performance, an equitable adjustment may be made in the price for the material or delivery schedule, or both, as long as Supplier provides prior notice to and receives written approval from AA for such adjustment. Any claim by Supplier for adjustment under this paragraph shall be deemed waived unless asserted in writing within 7 days of notification of the change. If Buyer terminates a Purchase Order for any reason, Supplier's sole and exclusive remedy is payment for the Product or Services received and accepted prior to that termination. Price increases or extensions of time for delivery shall not be binding on AA unless agreed to in writing, signed by AA. In the event that Buyer becomes aware of any patents, copyrights, trademarks, trade names or any other intellectual property rights of a third party that Buyer reasonably believes the Product(s) infringe upon, Buyer may change or terminate such Purchase Order(s) in whole or in part without incurring liability and shall receive a refund if payment has already been made. The option in the foregoing sentence, regardless of whether it is invoked, is not a waiver of any other terms and conditions of this Agreement. In the event an Order is cancelled, and the Product has already been labelled with Buyer's Marks, then Supplier must remove Buyer's Marks prior to reusing, reselling or otherwise disposing of the Products.
Pricing 4. No increase in pricing of Products or Services is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer. In the event Supplier charges a different buyer a lower price for the Product, or for similar products, or if the cost of components or raw materials decrease, Supplier must immediately apply the lower pricing to AA's Products. Unless otherwise specified in the Purchase Order, the price includes all packaging, transportation costs to the delivery point indicated in the Purchase Order or in the applicable agreement, insurance, customs duties, tariffs, fees, and applicable taxes.
Packaging Charges 5. AA allows no charge for boxing, packing, crating or additional line items on Supplier's invoice, unless agreed to in writing.
Expedited Shipping Requests 6. If, and to the extent that, Purchase Orders from AA request a shipping date on an expedited basis (inside of the established lead time), Supplier shall advise AA within 2 business days after receipt of such Purchase Order as to whether it can comply therewith, but in any event will use its best efforts to ship such orders as expeditiously as possible.
Timely Delivery 7. (a) Time is of the essence for all deliveries of Products and Services. Supplier shall use its best efforts to timely deliver Products as set forth in the Purchase Documents, it being understood that AA expects and anticipates a timely delivery rate of not less than 100% in respect of all Product Orders. If less than 98% of deliveries are made on a timely basis, or if deliveries are not made as specified in the Purchase Order, then AA reserves the right to cancel any Purchase Order or any unfilled portion thereof. AA reserves the right to cancel or postpone deliveries of any of the material which is not shipped to AA's specified place of delivery at the time specified therefor. (b) If applicable, Supplier shall provide the Services to Buyer as described and in accordance with the Purchase Order.
Quality Expectation 8. Supplier understands that AA expects that Supplier shall maintain the quality of Products ordered hereunder such that defects in respect thereof shall not exceed 10 parts per thousand for finished goods.
Inspection 9. AA has the right, but not the obligation, to inspect Product.
Incoming Non-Conforming Products 10. An administrative fee for each non-conforming Product as determined by AA will be automatically charged back to the Supplier. Non-conforming Products are goods that do not conform, in all material respects, to the specifications, standards, drawings, samples, descriptions, quality requirements, performance requirements, and/or fit, form and function requirements furnished, specified or approved by AA for the Products, and as specified in the Purchase Order. The charge back rate will be $250 for each defective material report (DMR) written plus additional charges, such as sort, rework, returned freight, and line down. Charges will be set-off as debits on the next payment due. AA reserves the right to reject or accept any non-conforming Products. Rejected non-conforming Products may be returned at Supplier's expense, including transportation charges, subject to the requirements of sections 12 and 13.
Rectifying Non-Conformance 11. Supplier has the following options (subject to AA's written approval) with respect to Products deemed by AA to be defective, or found to be non- conforming: (a) Send replacement parts immediately; (b) Provide personnel to sort the defective material; (c) Use a local temp agency specified by AA plant to sort the defective material; (d) Use a AA plant-approved third party to rework the material; or (e) AA may sort, rework, and undertake any other non-value-added activity at a minimum rate of $100.00 per hour. If non-conforming Product is returned by AA to Supplier within one year of the date of delivery to AA, then Supplier shall give AA an appropriate credit or refund therefor.
Compliance with Purchase Order 12. The Parties recognize that AA has made, and will make, a significant investment in time and monies in an effort to build a business based upon sales of the Products, and that the reliable and timely delivery of Products by Supplier to AA is critical to the success of AA's business plans. Therefore, in addition to such other rights and remedies available to AA hereunder, if due to Supplier's fault, Supplier fails to perform in accordance with the Purchase Order (for example, untimely delivery, failure to deliver Purchase Order quantity, non-conforming Products, and the like), then Supplier shall be liable (and/or reimburse AA, as the case may be) for all actual liabilities, damages, costs and expenses incurred by AA, if applicable, in connection with such non-performance, including without limitation, the cost of expedited delivery as may be requested by AA and/or the cost of acquiring substitutes for Product(s), if any. AA agrees to discuss any situation that might incur liabilities with Supplier to determine appropriate course of action. Delivery or payment for Products shall not constitute AA's acceptance of the Purchase Order. AA reserves the right to reject all or any portions of a shipment containing defects or non- conformances after a reasonable opportunity to inspect.
Training 13. Supplier shall furnish Buyer at no cost to Buyer such training, technical/ engineering support for new product design, and/or development as Buyer may reasonably request.
Intellectual Property License 14. AA and its affiliates have obtained certain valuable intellectual property rights related to the Products within North America, and own all rights, title and interest in and to its trademarks and trade names, and the rights and interest to any closely related variations such as “Aeotec”, including any and all common law rights. If Supplier is labelling the Product with the AA logo or name, including a logo or name of any of AA's affiliates, AA hereby grants to Supplier a limited, non-exclusive, royalty-free license for the term of this Agreement to use the name "Aeotec" “Aeotec Americas” or the name of its affiliates that are purchasing Products from Supplier, the logo of Aeotec or Aeotec Americas or its affiliates, and any trademarks or trade names or other intellectual property owned by AA or its affiliates (collectively the "AA Marks") solely on Product(s); provided that: (a) AA and Aeotec Limited packaging and branding guidelines are followed; (b) samples of such use are first furnished to AA; and (c) AA first approves such use in writing. Supplier shall not be required to further furnish such samples after obtaining such approval if Supplier's continued use of the AA Marks conforms to such approval. Any variation by Supplier from such approved use must be submitted to AA for written approval. Except for the limited rights expressly granted to Supplier hereunder, all rights with respect to the AA Marks, and other intellectual property owned or used by AA are reserved to AA and shall not be used by Supplier without AA's prior written consent.
Use of Marks 15. Permitted uses of the AA Marks under this Agreement shall inure exclusively to the benefit of AA for trademark and all other purposes. Supplier shall not at any time or in any manner use the AA Marks on or in connection with sales of Product(s) (whether on the Products themselves, packaging, promotional matter or otherwise) to persons or entities other than AA.
Material Furnished to Supplier 16. All material, drawings, plans or specifications supplied by AA to Supplier or specifically paid for by AA, including but not limited to tooling, fixtures and templates, shall be: (a) the property of AA; (b) subject to removal at any time upon demand by AA, without additional cost; (c) used only in filling orders from AA; (d) kept separate from other materials or tools; and (e) clearly identified as the property of AA. At AA's request, Supplier shall insure such inventory of AA's property with loss payable to AA, with an insurer reasonably satisfactory to AA without a deductible or self-retention, as reasonably set by AA for the full replacement value of such property. Supplier assumes all liability for loss or damage, with the exception of normal wear and tear, and agrees to supply detailed statements of inventory at monthly intervals, or as otherwise agreed upon. All confidential information furnished to or received by Supplier shall be and remain AA's exclusive property and shall not be used by Supplier for the benefit of any person or entity other than AA. Confidential Information shall include, but is not limited to, product and business information of a confidential and proprietary nature such as, by way of example, manufacturing processes, proprietary design, tooling and process concepts, component and material requirements, specifications, quality testing issues and test results, pricing, as well as descriptive information concerning business plans and operations of or contemplated by AA.
Warranty 17. (a) Supplier warrants to AA that all materials are and shall be of merchantable quality new (not used or reconditioned), are and shall be free from defect in materials and workmanship, and shall be fit for the particular purpose for which they are ordered or to be used by the consumer. Supplier hereby relieves AA of all duty, without exception, to inspect Product. Further, all Products will be free and clear of all liens, security interests or other encumbrances, and not infringe or misappropriate any third party's patent or other IP rights. Notwithstanding any usage of trade or course of dealing between the Parties, Supplier's liability for breach of any warranty, express or implied, shall include: (1) replacement or repair of defective materials (including labor costs for removal of defective Products and replacement of new Products, at AA's option); (2) refund of the purchase price; and (3) any general, special or consequential damages proximately caused by the breach of warranty. There are no exclusions, limitations or disclaimers of warranty. Warranty shall run to affiliates, subsidiaries, successors, assigns, customers and users of AA's products. (b) Supplier agrees to promptly repair any product found to be defective within the warranty period of 2 years after the end customer install date ("Warranty Period"), without any charge to AA. Supplier will be responsible for all transportation costs associated with the repair of the product. If epidemic failure (systemic issue related to hardware or software) is found, as provided in Section 21 below, Supplier agrees to repair or exchange the product at their expense, including all costs associated with the repair or exchange. Supplier agrees to repair product out of warranty at the request and expense of AA. (c) All warranties will survive the termination of this Agreement.
Epidemic Failure 18. Epidemic Failure means the occurrence, at any time during the Warranty Period, of the repeat failure of a Product over time, having the same root cause, at a rate deemed by AA to be an Epidemic Failure. In the event of an Epidemic Failure during the Warranty Period that does not arise solely from Supplier's non-compliance with Buyer's specification, then (i) Buyer shall have the option of requiring Supplier to issue an immediate return material authorization ("RMA") related to such Product for the affected quantities of such Product; and (ii) the following costs and expenses incurred by Buyer as a result of the Epidemic Failure shall be borne by Supplier: the costs of repair or replacement of the affected product, the shipping and transportation costs for the affected Product, costs to re-inspect or test 100% of the rejected lots of batches/sorting costs, and removal or reinstallation expenses, including and without limitation, labor costs or expenses, and any other reasonable expenses incurred by AA in connection with the Epidemic Failure.
Product Recall 19. If Supplier's Product is the subject of a Consumer Product Safety Commission ("CPSC") mandated product recall or is deemed to be a product hazard by a reputable testing laboratory (such as UL or ETL), or loses its certification or listing by such agency(s), Supplier shall bear all costs associated with compliance with the CPSC's product recall or any corrective action required by the testing laboratory.
Root Cause Analysis 20. In the event of an Epidemic Failure or Product Recall, as described in Sections 21 and 22 above, Supplier shall use its best efforts to (i) identify the root cause of any such product failure or non-conformance ("Defect") of any product supplied by Supplier to AA and (ii) propose a resolution, fix solution, or other acceptable and reasonable remedy to correct or eliminate the Defect. If Supplier refuses or unreasonably delays its response to a notification from AA of a Defect, then Supplier shall be liable to AA for all costs associated with the product failures, including the costs associated with replacing the defective products, including labor and shipping costs, and the costs of an independent laboratory hired by AA to examine the failed Products.
Insurance 21. Without limiting the obligations of Supplier under Section 25 below (Indemnification), Supplier shall maintain in effect with a U.S. insurer reasonably satisfactory to AA, beginning on or before the first shipment under a Purchase Order and until at least three (3) years after the last shipment under this order, a minimum of US$2,000,000 on an occurrence basis, US$4,000,000 on an aggregate basis, with no deductible or self-retention in products liability. Supplier will notify AA at least 30 days in advance of any cancellation or material change in coverage. In addition, the policy must have an endorsement stating that IOT Holdings, LLC dba Aeotec Americas is named as an Additional Insured on the relevant policies. An insurance certificate evidencing such insurance shall be delivered to AA.
Indemnification 22. (a) General Indemnification. Supplier shall defend, indemnify, and hold harmless AA, its affiliates, officers, directors and employees against, and from all claims and litigation, liability, loss, damages, demands, judgments, or expense (including without limitation attorneys' fees, experts, and statutory and non-statutory costs) arising: (i) under any strict liability or negligence claims premised on either an actual or alleged defect in the Products; (ii) from any damage to property or injury or death to persons, allegedly or actually caused by the Product(s), whether or not any defect was discoverable by AA; (iii) from any breach of Supplier's representations or warranties; (iv) from any violation of any U.S. Consumer Protection Legislation; (v) from any antitrust or unfair trade practices; (vi) from any civil, criminal, administrative or other action brought or taken by a government agency or entity, relating to the Product(s) or any part thereof; or (vii) from damages or penalties of any sort arising from Supplier's failure to comply with any hazardous substances restrictions; (viii) out of injury to or death of any person or on account of damage to property, including the loss of use thereof or any other claim arising out of, in connection with or as a consequence of the performance of or the failure to perform Services (if applicable); or (ix) out of any claims against Buyer or its affiliates by Supplier, its employees or its workers. (b) Intellectual Property Indemnification. Supplier agrees to defend, indemnify and hold harmless AA, its affiliates, directors, officers, employees, agents, successors, assigns, customers and users of the Product(s) from and against any and all losses, expenses, damages, claims, suits and liabilities (including without limitation reasonable attorneys' fees, experts, and statutory and non- statutory costs, and incidental and consequential damages) arising: (i) as a result of the manufacture, use, possession, sale or resale of any of the Product(s) that infringes or allegedly infringes or misappropriates any patents, copyrights, trademarks, or trade names, trade secrets, or any other intellectual property rights in any country; or, (ii) out of any misuse of the AA Marks (defined in Section 15) by any manufacturer, exporter of record or other subcontractor engaged by Supplier to fulfill Purchase Orders for Products sold by Supplier. In the event of infringement, Supplier may use reasonable commercial efforts to procure, at no cost to AA, the right to continue to use the Product(s). In the event that Supplier is unable or unwilling to procure such rights or suitably replace or modify such Product, or, Buyer believes that the Products are infringing, either Party shall have the right, upon written notice to the other Party, to terminate any outstanding Purchase Orders for the Products and return any remaining inventory for a full refund. (c) Indemnification Procedure. Upon discovery of a claim, AA will promptly notify Supplier, in writing, of any claim for which AA believes it is entitled to indemnification in sub-sections (a) or (b) above. AA will permit Supplier to control, in a manner not adverse to AA, the defense and settlement of any such claims using counsel reasonably acceptable to AA. Supplier will not enter into any settlement or make admissions or concessions to claimants concerning infringement or validity of an asserted patent without prior written consent from AA, which shall not be unreasonably withheld. With respect to the indemnification clause (b) above, the parties acknowledge that Buyer has already obtained licenses for the sale and use of Product(s) against any patent that may be asserted by SIPCO, LLC or IPCO, LLC.
Approvals, Licenses, Certifications and Representations 23. (a) Supplier shall secure and maintain at all times any and all approvals, licenses, registrations, or authorizations of any national, provincial, or municipal agency, department, bureau or other governmental entity, as may be necessary in order to sell and export the Products, and shall be responsible for all applicable national, provincial, municipal and other governmental registrations, filings, examinations, and other administrative requirements of every nature as required in connection with its performance under this Agreement; provided that AA shall reasonably cooperate with Supplier in the fulfillment of such duties hereunder. (b) Comply with all rules, regulations and policies of Buyer, including security procedures concerning systems and data and remote access therefore. (c) If requested by AA, all Products must comply with the Restriction on the use of certain Hazardous Substances Directive (2002/95/EC) ("RoHS"), California Proposition 65, the European Directive on Waste Electrical and Electronic Equipment (2012/19/EU) ("WEEE"), Listing requirements of UL or other testing laboratories and all other applicable regulations. (d) Supplier shall comply with all domestic and international laws and regulations applicable to the Products and its import into certain countries, as agreed upon between the Parties. Specifically, Supplier agrees to provide accurate and true information relating to the Products to support AA's compliance with customs and trade regulations and U.S. trade agreement preference programs, including but not limited to country of origin information for the Products and its component materials, manufacturing and purchasing records, and global safety data sheets. Supplier shall not take any action that violates the U.S. Anti-Boycott laws and regulations (1977 amendments to the Export Administration Act (15 CFR Part 760) and the Ribicoff Amendment to the 1976 Tax Reform Act (26 USC § 999). (e) Supplier shall not directly or indirectly purchase materials to be incorporated in the Products sold to Buyer from entities or persons subject to economic sanctions or embargoes by the United States. (f) Supplier represents that all Product(s) are: (i) not misbranded or inaccurately labeled; (ii) not in violation of the U.S. Consumer Products Safety Improvement Act (15 U.S.C. §2051- 2084); and (iii) in compliance with any applicable restrictions on hazardous substances.
Compliance with Law 24. In addition to the laws and regulations specifically provided for in this Agreement, Supplier shall comply with all applicable laws, regulations and ordinances, and shall maintain all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under a Purchase Order or related agreement. Supplier shall comply with all export and import laws of all countries involved in the sale of the Products under this Agreement or any resale of the Products by Supplier. Supplier assumes all responsibility for shipments of Products requiring any government import clearance. Buyer may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on the Products.
Inspection and Audit Rights 25. AA has the right to audit and inspect, at any reasonable time and upon reasonable notice, Supplier's books, records, inventory, tooling, and plants, as related to the Product(s), to assure compliance with any applicable law, or the Product's specifications (such as quality records).
Cancellation for Insolvency 26. If Supplier 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 Buyer may terminate a Purchase Order and any related agreement upon 10 days' prior written notice to Supplier.
Waiver 27. The failure of either Party to require the performance of any term or condition of this Agreement or the waiver by either Party of any breach of the same shall not prevent subsequent enforcement of such term or condition nor be deemed a waiver of any subsequent breach. Any change in, addition to, renewal of, or waiver of the terms and conditions of this Agreement shall be binding upon either of the Parties only if in writing signed by its officer or other authorized agent.
Confidentiality 28. All non-public, confidential or proprietary information of Buyer disclosed by Buyer to Supplier, 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 this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by Buyer in writing. Upon Buyer's request, Supplier shall promptly return or certify destruction of all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this section.
Remedies Not Exclusive 29. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by Buyer of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise. Acceptance of Product shall not waive any of the aforementioned remedies. Third-Party
Beneficiaries 30. This Agreement is intended to and shall confer upon Buyer's affiliates, who are entitled to purchase and/or receive Products or Services under this Agreement, any legal or equitable right, benefit or remedy of any nature whatsoever, by reason of this Agreement.
Survival 31. The provisions of this Agreement which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement, including, but not limited to, the following provisions: relating to payment, confidentiality, disclaimers, warranties, limitation of liability, indemnification, law and jurisdiction, severability, and this paragraph.
Severability 32. The holding of any provision of this Agreement to be void, invalid or unenforceable shall not affect the validity of the other provisions of this Agreement.
Assignment 33. Supplier shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement for the supply of Products or the performance of Services without the prior consent of Buyer. Buyer may at any time assign or transfer any or all of its rights or obligation under this Agreement without Supplier's prior written consent to any affiliate. Any attempted transfer or assignment by Supplier will be void and constitute a material breach of this Agreement.
Governing Law 34. This Agreement shall be construed in accordance with and be governed by the laws of the State of Illinois, without regard to the conflict of laws provisions thereof. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. Each of the Parties irrevocably submits to the exclusive jurisdiction of the state and federal courts in the State of Illinois, Cook County, and agrees that such courts shall have personal jurisdiction over them for the purpose of any action or proceeding arising out of or relating to this Agreement. Delivery of process in any such dispute by a recognized commercial courier service to the last known business address of AA or Supplier shall be deemed sufficient to confer personal jurisdiction on any of said courts. Each of the Parties agrees that a final judgment in any action or proceeding shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The Party prevailing in any such litigation shall be entitled to its reasonable attorney fees and other costs and expenses from the other Party.
Entire Agreement 35. This Agreement constitutes the entire agreement between the Parties concerning its subject matter, merging and superseding all prior and contemporaneous agreements and understandings. Each Party hereby acknowledges that neither has made any representations of any kind to induce this Agreement or otherwise in connection therewith, except as may be expressly set forth herein. Headings 36. Headings used in this Agreement are for convenience only and shall not be considered in construing or interpreting this Agreement.
Force Majeure 37. Neither Party shall be liable for any delay or failure in performing its obligations under this Agreement arising out of circumstances beyond its reasonable control, including fire, floods, strikes, lockout, accident, sabotage or other similar causes which affect either Party, provided that the Party provides notice to the other in writing of the delay or non-performance event within 5 days of its commencement. Notwithstanding the foregoing, any loss, failure, or delay arising out of or related to the COVID-19 pandemic shall not constitute a force majeure event. AA may extend the delivery schedule to accommodate the delay or non-performance, in its sole discretion; however, should said event continue for a cumulative total of at least 30 days, AA may cancel the unfilled portion of the Purchase Order effective immediately upon written notice to Supplier, without liability to AA. Relationship of the
Parties 38. Nothing in this Agreement shall be deemed to constitute either Party as an agent, representative, employee, or create an agency relationship for any purpose.