AJM PACKAGING CORPORATION
SALES TERMS AND CONDITIONS
1. GENERAL
1.1Each purchase order (an “Order”) that may be acknowledged and accepted by AJM or its applicable affiliate or subsidiary (“Seller”) is subject to this Agreement (alternatively referred to as “Terms”). An Order itself does not constitute an acceptance by Seller of any offer or proposal by Purchaser, whether in Purchaser’s quotation, acknowledgement, invoice or otherwise. Any form used by Purchaser, whether or not signed by Seller, shall not be effective to modify these Terms.
1.2 Unless otherwise defined, the term “Goods” shall include any and all of the following provided or performed by or on behalf of Seller: (i) all raw materials, items, equipment, general stores, spare parts, goods, personal property, and software used in performance of work under an Order, (ii) all machinery, equipment and related items identified in or related to an Order; (iii) all labor, materials, equipment, software, spare parts and services provided by Seller in connection with an Order; (iv) all specifications, plans, drawings, standards, project schedules, accessions and additions relating to an Order; and (v) any and all aspects of Seller performance and any and all services rendered by Seller under an Order.
1.3 In the event of a conflict between an Order acknowledgement, an Order, these Terms, and any prior or contemporaneous agreement or document related to the Goods exchanged between Purchaser and Seller, the order of precedence shall be any order acknowledgement, these Terms, the Order, and then any other such agreement or document.
1.4 Quantity, description, price, payment and delivery terms for all Goods shall be as designated in an Order, and/or an order acknowledgement, as provided in these Terms, or as designated in one or more other documents referenced on the Order.
2. SELLER PROPERTY
All layouts, models, tools, gauges, designs, sketches, drawings, blueprints, patterns, dies, specifications, engineering data, technical or proprietary information, special appliances, other equipment or material, and any reproductions and replacements furnished to Purchaser by Seller, or for which Purchaser has been reimbursed by Seller, shall be and remain the property of Seller (“Seller Property”).
3. CONFIDENTIALITY
3.1 “Confidential Information” means: (i) any information provided to Purchaser by Seller, any affiliate or related corporation of Seller or any third party on behalf of Seller, or discovered or otherwise observed by Purchaser relating to any operations of Seller, or any affiliate or related corporation of Seller, including, without limitation, information relating to products, potential products, products in development, and Purchaser’s past, current and prospective customers, suppliers and vendors; (ii) all documents, records, data compilations, computerized records, statements, drawings, plans, specifications, sales data, interviews, opinions or other information to which Purchaser may be provided access by Seller, any affiliate or related entity of Seller or any third party on behalf of Seller as a result of the provision of Goods; and (iii) the existence of this Agreement.
3.2 Confidential Information shall not include information that: (i) is or becomes available in the public domain through no wrongful act of Purchaser; (ii) is already in Purchaser’s possession prior to the commencement of performance hereunder without an obligation of confidentiality; or (iii) is independently developed by Purchaser by individuals without access to Confidential Information. The party raising exception (i), (ii) or (iii) shall have the burden to prove the exception by a preponderance of evidence.
3.3 Except as otherwise authorized in writing by Seller, all Confidential Information shall be deemed confidential, and without the prior written consent of Seller, Purchaser shall not, nor shall Purchaser permit any related parties, or any other person under the respective control of Purchaser, to (i) communicate, disclose, divulge, reveal or otherwise make known any Confidential Information to any person or entity not a party to a Confidentiality Agreement with Seller; or (ii) use any Confidential Information for any purpose which may adversely affect Seller, or any respective business, operations or other business conducted by any of its affiliates or related companies.
3.4 Purchaser shall maintain the Confidential Information in confidence and may disclose such Confidential Information only on a “need to know” basis to Purchaser’s directors, officers, members, managers, employees, agents, advisors, or representatives of the foregoing (collectively, “Representatives”). Purchaser shall (a) inform its Representatives of the strictly confidential nature of the Confidential Information and the restrictions imposed hereunder on the use thereof, and (b) be responsible for any disclosures of Confidential Information by its Representatives in breach of this Agreement.
3.5 Technical information and data furnished to Seller by Purchaser in connection with an Order are disclosed on a non-confidential basis.
3.6 The obligations to maintain secrecy and confidentiality set forth herein shall continue indefinitely and shall survive the termination of the applicable Order.
4. INTELLECTUAL PROPERTY
4.1 Purchaser hereby assigns and shall assign to Seller all right, title and interest in and to all inventions, copyrights, trademarks and other proprietary and intellectual property rights that are conceived of or first reduced to practice by Purchaser in the course of Purchaser’s activities under an Order and which are used to manufacture, produce, or deliver the Goods.
4.2 With respect to intellectual property owned or controlled by Purchaser, that was not conceived of or first reduced to practice in the course of Purchaser’s activities under an Order, but which is necessary or desirable to repair, rebuild or modify the Goods, Purchaser hereby grants and shall grant to Seller a nonexclusive, fully paid- up, perpetual, irrevocable, worldwide license to all such intellectual property, but only for use by Seller in connection with the use and operation of, repairing, rebuilding, or modifying the Goods.
4.3 Purchaser agrees that all copyrightable works of original authorship, including but not limited to computer programs, technical specifications, documentation and manuals, created by Purchaser in the course of Purchaser’s activities under an Order are “works made for hire” as that term is used in the U.S. Copyright Act. To the extent that such copyrightable work does not qualify as a work made for hire, Purchaser hereby assigns and shall assign all right title and interest in and to such copyrights to Seller.
4.4 Purchaser waives any claim against Seller, including any hold-harmless or similar claim, whether known or unknown, contingent or latent, in any way related to a claim asserted against Purchaser for infringement of any patent, trademark, copyright or other proprietary right of any third party, including claims arising out of compliance with specifications furnished by Seller.
5. WARRANTY
5.1 For one year after delivery, Seller expressly warrants that all Goods will conform to all specifications, standards, drawings, samples or descriptions furnished to or by Purchaser, and that all Goods will be merchantable, of good material and workmanship and free from defects. In addition, Seller acknowledges that Seller knows of Purchaser’s intended use and expressly warrants that all Goods will be fit and sufficient for the particular purpose intended by Purchaser.
5.2 Seller expressly warrants that for all Goods Seller shall convey good title to Purchaser, free and clear of all liens, claims or other encumbrances.
6. TERMINATION
In the event that either Party fails to perform any obligations of any order acknowledgement, these Terms, or any applicable Order, the other Party may terminate the applicable agreements unless the Party in default cures such failure within thirty (30) days after the notification of such failure.
7. REMEDIES
Upon the occurrence of a default by Purchaser, and subject to the cure provision of Section 6, including but not limited to failure to make payment for Goods, or repudiation or breach by Purchaser of any of these Terms, Seller shall be entitled to exercise any or all of the following remedies: (i) canceling and terminating the Order effective immediately on the date of the notice of the cancellation; (ii) if requested, having all Seller Property and technical information immediately returned to Seller, such return to be at Purchaser’s cost and expense; (iii) bringing suit to seek all rights and remedies to which it may be entitled, including all damages, under the Uniform Commercial Code (“UCC”) or other similar legislation. In such circumstances, Purchaser shall reimburse Seller for any and all direct damages of the Seller resulting from the default.
8. MISCELLANEOUS
8.1 Amendments No Order may be amended except by a writing signed by Seller expressly referencing the applicable Order.
8.2 Notices All notices, claims and other communications to Seller required or permitted under an Order shall be made in writing and sent by certified or registered mail, return receipt requested and proper postage prepaid to the following address and shall be effective only upon receipt by Seller: AJM Packaging Corporation, E-4111 Andover Road, Bloomfield Hills, Michigan 48302
Purchaser’s failure to provide any notice, claim or other communication to Seller in the manner and within the time periods specified in the applicable Order shall constitute a waiver by Purchaser of any and all rights and remedies that otherwise would have been available to Purchaser upon making such notice, claim or other communication.
8.3 Assignment Purchaser shall not assign or delegate any of its duties or obligations under any Order without the prior written consent of Seller.
8.4 Entire Agreement The order acknowledgement, the Order, and these Terms, constitutes the entire agreement between Seller and Purchaser with respect to the matters contained in the Order and supersedes all prior oral or written representations and agreements. Seller may modify these Terms at any time by posting notice of such modified Sales Terms and Conditions through links provided on the AJM Packaging website at https://www.ajmpack.com/ at least ten (10) days prior to any modified Terms and Conditions becoming effective. Purchaser shall review the AJM Packaging website and the Terms and Conditions periodically.
8.5 Governing Law; Jurisdiction and Venue The order acknowledgement, these terms and each Order shall be governed by and interpreted in accordance with the internal substantive laws of the State of Michigan without giving effect to its conflict of laws principles. All actions and proceedings arising out of or related to any Order shall be brought only in a state or federal court
located in the State of Michigan, and Purchaser hereby consents to such venue and to the exclusive jurisdiction of such courts over the subject matter of such proceeding and itself.
8.6 Severability If any part or application of the order acknowledgement, these Terms or any other terms associated with an Order are adjudged by any court of competent jurisdiction to be
invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining terms shall in no way be affected or impaired thereby and shall be enforced to the maximum extent permitted by applicable law.
AJM PACKAGING CORPORATION
PURCHASING TERMS AND CONDITIONS
1. GENERAL
1.1 Each purchase order (an “Order”) issued by AJM Packaging Corporation or its applicable affiliate or subsidiary (“Purchaser”) is subject to these Terms and Conditions (“Terms”), and is an offer by Purchaser to the party to whom such Order is addressed and such party’s applicable affiliates and subsidiaries (“Seller”) to enter into the agreement it describes and it shall be the complete and exclusive statement of such offer and agreement. An Order does not constitute an acceptance by Purchaser of any offer or proposal by Seller, whether in Seller’s quotation, acknowledgement, invoice or
otherwise. In the event that any Seller quotation or proposal is held to be an offer, that offer is expressly rejected and is replaced in its entirety by the offer made up of an Order. Any form used by Seller, whether or not signed by Purchaser, shall not be effective to modify these Terms.
1.2 Seller shall be deemed to have accepted the offer and a contract formed upon the earliest of: (i) the execution by Purchaser and Seller of an Order or equivalent writing between them providing for the purchase and sale of “Goods” (as defined below); (ii) the acceptance of Seller of any initial payment or deposit for Goods, and (iii) Seller’s commencement of performance under an Order, including performance of services, written acknowledgment, or any other conduct of Seller that recognizes the existence of a contract pertaining to the subject matter thereof. Under no circumstances shall the contract include any terms and conditions proposed by Seller, whether included on a Seller invoice or written acceptance of an Order or otherwise, unless such terms and conditions are expressly acknowledged in writing executed by an appropriate person on behalf of Purchaser.
1.3 Unless otherwise defined, the term “Goods” shall include any and all of the following provided or performed by or on behalf of Seller: (i) all raw materials, items, equipment, general stores, spare parts, goods, personal property, and software used in performance of work under an Order, (ii) all machinery, equipment and related items identified in or related to an Order; (iii) all labor, materials, equipment, software, spare parts and services provided by Seller in connection with an Order; (iv) all specifications, plans, drawings, standards, project schedules, accessions and additions relating to an Order; and (v) any and all aspects of Seller performance and any and all services rendered by Seller under an Order.
1.4 In the event of a conflict between an Order, these Terms, and any prior or contemporaneous agreement or document related to the Goods exchanged between Purchaser and Seller, the order of precedence shall be the Order, these Terms, and then any other such agreement or document.
1.5 Quantity, description, price, payment and delivery terms for all Goods shall be as designated in an Order, as provided in these Terms, or as designated in one or more other documents referenced on the Order.
2. PURCHASER PROPERTY
2.1 All layouts, models, tools, gauges, designs, sketches, drawings, blueprints, patterns, dies, specifications, engineering data, technical or proprietary information, special appliances, other equipment or material, and any reproductions and replacements furnished to Seller by Purchaser, or for which Seller has been reimbursed by Purchaser, shall be and remain the property of Purchaser (“Purchaser Property”). All Purchaser Property in Seller’s possession shall be deemed a bailment (“Bailed Property”). Seller shall bear the risk of loss of and damage to all Bailed Property. All Bailed Property shall be used solely by Seller to perform its obligations under an Order, and shall not be moved from Seller’s premises or possession without the prior written consent of Purchaser.
2.2 All Bailed Property shall be conspicuously marked by Seller to identify it as the property of Purchaser and indicate Purchaser’s name and address, and shall not be commingled with the property of Seller or with that of a third person. Seller, at its expense, shall maintain, repair and refurbish Bailed Property in first class condition. All replacement parts, additions, improvements and accessories for such Bailed Property shall automatically become Purchaser’s property upon their incorporation into or attachment to the Bailed Property.
2.3 Seller agrees that Purchaser has the right, at any time, with or without reason and without payment of any kind to retake possession of or request return of any or all Bailed Property. Upon the request of Purchaser, the Bailed Property shall be immediately released to Purchaser or delivered to Purchaser by Seller to any location designated by Purchaser, in which event Purchaser shall pay to Seller the reasonable cost of delivering such Bailed Property to such location. Seller waives any lien or other rights that Seller might otherwise have on any of the Bailed Property for work performed on such property. Seller agrees that any missing components of or inserts to any Bailed Property shall be replaced by Seller at current costs.
3. RIGHTS OF ENTRY AND INSPECTION
Purchaser shall have the right to enter Seller’s facility during normal business hours or, in the event of a Seller shutdown, at reasonable times, to inspect the facility, Goods, materials and any property of Purchaser covered by an Order, including all Bailed Property, and may enter upon Seller’s property and remove property belonging to Purchaser, including, without limitation, Bailed Property and other Goods, inventory or property of Seller that has been or is agreed to be sold to Purchaser under the Order. Purchaser’s inspection of the Goods, whether during manufacture, prior to delivery or within a reasonable time after delivery, shall not constitute acceptance of any work in process or finished Goods.
4. CONFIDENTIALITY
4.1 “Confidential Information” means: (i) any information provided to Seller by Purchaser, any affiliate or related corporation of Purchaser or any third party on behalf of Purchaser, or discovered or otherwise observed by Seller relating to any operations of Purchaser, or any affiliate or related corporation of Purchaser, including, without limitation, information relating to products, potential products, products in development, and Purchaser’s past, present, current and prospective customers, suppliers and vendors; and (ii) all documents, records, data compilations, computerized records, statements, drawings, plans, specifications, sales data, interviews, formulae, opinions or other information to which Seller may be provided access by Purchaser, any affiliate or related entity of Purchaser or any third party on behalf of Purchaser as a result of the provision of Goods; (iii) all information and documents relating to machinery, equipment and manufacturing processes of Purchaser, any affiliate or related entity of Purchaser or any third party on behalf of Purchaser; and (iv) the existence of this Agreement.
4.2 Confidential Information shall not include information that: (i) is or becomes available in the public domain through no wrongful act of Seller; (ii) is already in Seller’s possession prior to the commencement of performance hereunder without an obligation of confidentiality; or (iii) is independently developed by Seller by individuals without access to Confidential Information. The party raising exception (i), (ii) or (iii) shall have the burden to prove the exception by a preponderance of evidence.
4.3 Except as otherwise authorized in writing by Purchaser, all Confidential Information shall be deemed confidential, and without the prior written consent of Purchaser, Seller shall not, nor shall Seller permit any related parties, or any other person under the respective control of Seller, to (i) communicate, disclose, divulge, reveal or otherwise make known any Confidential Information to any person or entity not a party to a Confidentiality Agreement with Purchaser; or (ii) use any Confidential Information for any purpose which may adversely affect Purchaser, or any respective business,
operations or other business conducted by any of its affiliates or related companies.
4.4 Seller shall maintain the Confidential Information in confidence and may disclose such Confidential Information only on a “need to know” basis to Seller’s directors, officers, members, managers, employees, agents, advisors, or representatives of the foregoing (collectively, “Representatives”). Seller shall (a) inform its Representatives of the strictly confidential nature of the Confidential Information and the restrictions imposed hereunder on the use thereof, and (b) be responsible for any disclosures of Confidential Information by its Representatives in breach of this Agreement.
4.5 Technical information and data furnished to Purchaser in connection with an Order are disclosed on a non-confidential basis.
4.6 The obligations to maintain secrecy and confidentiality set forth herein shall continue indefinitely and shall survive the termination of the applicable Order.
5. INTELLECTUAL PROPERTY
5.1 Seller hereby assigns and shall assign to Purchaser all right, title and interest in and to all inventions, copyrights, trademarks and other proprietary and intellectual property rights that are conceived of or first reduced to practice by Seller in the course of Seller’s activities under an Order and which are used to manufacture, produce, or deliver the Goods.
5.2 With respect to intellectual property owned or controlled by Seller, including software, that was not conceived of or first reduced to practice in the course of Seller’s activities under an Order, but which is necessary or desirable to repair, rebuild or modify the Goods, Seller hereby grants and shall grant to Purchaser a nonexclusive, fully paidup, perpetual, irrevocable, worldwide license to all such intellectual property, but only for use by Purchaser in connection with the use and operation of, repairing, rebuilding, or modifying the Goods.
5.3 Seller agrees that all copyrightable works of original authorship, including but not limited to computer programs, technical specifications, documentation and manuals, created by Seller in the course of Seller’s activities under an Order are “works made for hire” as that term is used in the U.S. Copyright Act. To the extent that such copyrightable work does not qualify as a work made for hire, Seller hereby assigns and shall assign all right title and interest in and to such copyrights to Purchaser.
5.4 Seller waives any claim against Purchaser, including any hold-harmless or similar claim, whether known or unknown, contingent or latent, in any way related to a claim asserted against Seller for infringement of any patent, trademark, copyright or other proprietary right of any third party, including claims arising out of compliance with specifications furnished by Purchaser.
6. WARRANTY
6.1 Seller expressly warrants that all Goods will conform to all specifications, standards, drawings, samples or descriptions furnished to or by Purchaser, and that all Goods will be merchantable, of good material and workmanship and free from defects. In addition, Seller acknowledges that Seller knows of Purchaser’s intended use and expressly warrants that all Goods will be fit and sufficient for the particular purpose intended by Purchaser.
6.2 Seller expressly warrants that for all Goods Seller shall convey good title to Purchaser, free and clear of all liens, claims or other encumbrances.
6.3 Seller expressly warrants that all Goods will not and do not infringe any patent, copyright or other intellectual property of any third party.
7. TERMINATION
Purchaser may terminate an Order at any time without cause in whole or in part by written notice, whereupon Seller will stop work on the date and to the extent specified in such notice and terminate all orders and subcontracts that relate to the terminated Order. Within thirty (30) days after receipt of termination notice, Seller will submit all claims resulting from such termination. Purchaser will have the right to verify such claims by auditing the relevant records, facilities, work or materials of Seller and/or its subcontractors. Purchaser will pay Seller for finished work accepted by Purchaser as well as for the documented cost to Seller of work in process and raw material allocable to the terminated work which is not in excess of any prior Purchaser authorization. Payment made under this section will constitute Purchaser’s only liability for termination hereunder, with title and right of possession to all delivered Goods vesting in Purchaser immediately upon Purchaser’s tender of such payment. The provisions of this section will not apply to any cancellation by Purchaser for default by Seller or for any other cause recognized by law or specified by an Order.
8. REMEDIES
8.1 Upon the occurrence of a default by Seller, including but not limited to failure to perform or deliver Goods, failure to deliver Goods of sufficient quality, as determined by Purchaser in its sole discretion, or repudiation or breach by Seller of any of these Terms, Purchaser shall be entitled to exercise any or all of the following remedies: (i) canceling and terminating the Order effective immediately on the date of the notice of the cancellation; (ii) if requested, having all Purchaser’s Property and technical information immediately returned to Purchaser, such return to be at Seller’s cost and expense; (iii) bringing suit to seek all rights and remedies to which it may be entitled, including all damages, under the Uniform Commercial Code (“UCC”) or other similar legislation; ( iv) demand that Seller provide Purchaser with repaired or replacement Goods in conformity with the Order; and (v) setoff against any amounts owed to or held by Seller and costs incurred in Purchaser’s exercise of its rights under the Order prior to or as a result of Seller’s default.
8.2 In addition to the remedies set forth in Section 8.1, Purchaser shall also be entitled to any or all of the following remedies for damage. On rejection or revocation of acceptance by Purchaser, or upon the occurrence of a default by Seller, Purchaser shall have a security interest in Goods in its possession or control which shall secure a claim by Purchaser for (i) any payments made to Seller with respect to such Goods and (ii) any and all expenses reasonably incurred in the inspection, receipt, transportation, care and custody of such Goods. In all such instances, Purchaser shall be entitled to recover from Seller, and Seller shall reimburse Purchaser for, any and all direct, incidental and consequential damages of Purchaser resulting from Seller’s default.
9. INDEMNIFICATION
9.1 Seller hereby covenants and agrees to indemnify and hold harmless Purchaser, its affiliates and subsidiaries, and their respective directors, officers, employees and agents from any claims, liabilities, damages, including special, consequential, punitive and exemplary damages, costs and expenses, including actual fees for attorneys, experts and consultants, settlement costs and judgments, incurred in connection with any claims, including lawsuits, administrative claims, regulatory actions and other proceedings to recover for personal injury or death, property damage or economic losses, that are related in any way to or arise in any way from the Goods, Seller’s representations, Seller’s performance of or failure to perform obligations under any Order, including claims based
on Seller’s breach or alleged breach of warranty, whether or not the Goods have been incorporated into Purchaser’s products and/or resold by Purchaser, and claims for any violation of any applicable law, ordinance or regulation or government authorization or order. Seller’s obligation to indemnify will apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability or otherwise, except to the extent of any such liability arising solely out of the gross negligence of Purchaser. Seller’s indemnification obligations will apply even if Purchaser furnishes all or a portion of the design and specifies all or a portion of the processing used by Seller unless a separate written agreement provides otherwise.
9.2 Seller agrees to defend, hold harmless and indemnify Purchaser against all claims, demands, losses, suits, damages, liability and expenses, including actual fees for attorneys, experts and consultants, settlement costs and judgments, arising out of any suit, claim or action: (i) for actual or alleged direct or contributory infringement of, or inducement to infringe, any patent, trademark, copyright or other proprietary right by reason of the manufacture, use or sale of the Goods ordered, including infringement arising out of compliance with specifications furnished by Purchaser, or (ii) for actual or alleged misuse or misappropriation of a trade secret resulting directly or indirectly from Seller’s actions.
10. MISCELLANEOUS
10.1 Amendments No Order may be amended except by a writing signed by Purchaser expressly referencing the applicable Order.
10.2 Notices All notices, claims and other communications to Purchaser required or permitted under an Order shall be made in writing and sent by certified or registered mail, return receipt requested and proper postage prepaid to the following address and shall be effective only upon receipt by Purchaser: AJM Packaging Corporation, E-4111 Andover Road, Bloomfield Hills, Michigan 48302
Seller’s failure to provide any notice, claim or other communication to Purchaser in the manner and within the time periods specified in the applicable Order shall constitute a waiver by Seller of any and all rights and remedies that otherwise would have been available to Seller upon making such notice, claim or other communication.
10.3 Assignment Seller shall not assign or delegate any of its duties or obligations under any Order without the prior written consent of Purchaser.
10.4 Entire Agreement An Order, together with these Terms, a Supply Agreement as applicable, and any attachments, exhibits or supplements specifically referenced in the Order, constitutes the
entire agreement between Seller and Purchaser with respect to the matters contained in the Order and supersedes all prior oral or written representations and agreements. Purchaser may modify these Terms at any time by posting notice of such modified Terms and Conditions through links provided on the AJM Packaging website at https://www.ajmpack.com/ at least ten (10) days prior to any modified Terms and
Conditions becoming effective. Seller shall review the AJM Packaging website and the Terms and Conditions periodically. Seller’s continued performance under an Order without providing written notice to Purchaser in accordance with Section 10.2 detailing Seller’s objection to any modified Terms and Conditions prior to the effective date of such modified Terms and Conditions will be subject to and will constitute Seller’s acceptance of such modified Terms and Conditions.
10.5 Force Majeure Except as otherwise provided in this section, any delay or failure of Seller to perform its obligations hereunder shall be excused if and to the extent that it is caused by an event or occurrence beyond Seller’s reasonable control and without its fault or negligence, such as, by way of example and not by way of limitation, acts of God, actions by any government authority, fires, floods, windstorms, explosions, riots, natural disasters, wars, sabotage, acts of terrorism or court injunction or order; provided that written notice of such delay, including the anticipated duration of the delay, shall be given by Seller to Purchaser within ten (10) days of the occurrence of such event. If requested by Purchaser, Seller shall, within ten (10) days of such request, provide
adequate assurances that the delay shall not exceed thirty (30) days. If the delay lasts more than thirty (30) days or if Seller does not provide adequate assurances that the delay will cease within thirty (30) days, Purchaser may immediately terminate the applicable Order and any funds previously paid by or on behalf of Purchaser shall be promptly returned to Purchaser. Notwithstanding anything in this section to the contrary, no delay or failure of Seller to perform its obligations hereunder shall be excused if and to the extent that it is caused by labor problems of Seller, its subcontractors and/or its suppliers such as, by way of example and not by way of limitation, lockouts, strikes and slowdowns or the inability of Seller, its subcontractors and/or its suppliers to obtain power, material, labor, equipment or transportation. 10.6 Governing Law; Jurisdiction and Venue Each Order shall be governed by and interpreted in accordance with the internal substantive laws of the State of Michigan without giving effect to its conflict of laws principles. All actions and proceedings arising out of or related to any Order shall be brought only in a state or federal court located in the State of Michigan, and Seller hereby consents to such venue and to the exclusive jurisdiction of such courts over the subject matter of such proceeding and itself.
10.7 Severability If any part or application of these Terms or any other terms associated with an Order are adjudged by any court of competent jurisdiction to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining terms shall in no way be affected or impaired thereby and shall be enforced to the maximum extent permitted by applicable law.