Purchase Order Terms and Conditions
(a) “Accept”, “accepted”, “accepting”, and “acceptance” have the meaning set forth in Section 2 below with respect to Supplier’s acceptance of an Order, and the meaning set forth in Section 7 below with respect to MR SYSTEMS, INC. acceptance of Deliverable(s).
(b) “Deliverable(s)” means, as to each Order, the articles, materials, products, goods, work or services described in such Order.
(c) “Order” means (i) a purchase order submitted by MR SYSTEMS, INC. to a Supplier for the purchase of Deliverables described therein at the prices and upon the delivery dates and other terms and conditions set forth in the purchase order, and (ii) these PO Terms which are incorporated by reference and made a part of each purchase order.
(d) “PO Terms” means these Purchase Order Terms and Conditions, as amended, from time to time as posted on MR SYSTEMS, INC.’s website on the date each Order is accepted by Supplier.
(e) “Supplier” means a supplier of Deliverables to which an Order is placed or addressed.
2. ACCEPTANCE OF ORDER
Placement of an Order by MR SYSTEMS, INC. to Supplier constitutes an offer to purchase from Supplier the Deliverables described in the Order subject to the provisions set forth in the Order. The Order shall be deemed to have been accepted unconditionally by Supplier upon receipt by MR SYSTEMS, INC. of any writing from Supplier indicating acceptance (including a writing transmitted by telecopy, email or other means of electronic transmission), or by any of the following: (i) Supplier’s shipment of goods or products (or any portion thereof) described in the Order, or (ii) Supplier’s commencement of services described in the Order, [unless Supplier objects to such terms in writing prior to shipping tangible Deliverables or commencing work or services.]
When accepted by Supplier, the Order shall form a binding contract expressly limited to the terms and conditions stated in the Order. MR SYSTEMS, INC. hereby objects to and rejects all terms and conditions contained in any Supplier quotation, acknowledgment, confirmation, invoice, packing-slip, counter-offer or other form (including any posting on Supplier’s website) that are additional to or different from those stated in the Order. By accepting an Order, Supplier agrees that all such additional or different terms and conditions are ineffective.
4. PRICE AND PAYMENT
The price charged for each Deliverable ordered shall be the lower of (i) the price stated in the Order, or (ii) the price in effect on the date of delivery for the same or similar Deliverables of like quantity and quality. All prices are stated in US Dollars. Unless otherwise stated, all prices are FOB Destination Freight Prepaid (see Section 5(a) below).
(b) Price Warranty.
Supplier warrants that the prices and discounts extended under the Order are at least as favorable as the prices and discounts offered to any other customer of Supplier buying the same or similar Deliverables in like quantities as of the date of delivery.
To be paid, Supplier must submit to MR SYSTEMS, INC.’s Accounts Payable Department an itemized invoice, that: (i) references a valid Order number; (ii) identifies the Deliverables provided (which must match the description in the Order); (iii) specifies the dates of any work or services performed and/or the dates tangible Deliverables were provided; (iv) states the specific total dollar amount owed (in US Dollars); and (v) separately states any federal excise, state and or local taxes, if any. If allowed by the Order, invoices for progress payments must specify the actual work or services performed or partial shipment of Deliverables completed, or milestone(s) completed.
MR SYSTEMS, INC. will pay the purchase price within thirty (30) days after receipt of an accurate and correct invoice or within thirty (30) days after MR SYSTEMS, INC.’s receipt and acceptance of the Deliverable, whichever is later.
(e) Prompt Payment Discounts.
If prompt payment discounts apply to an Order, any discount time will not begin until the Deliverables have been received and accepted by MR SYSTEMS, INC. and an accurate and correct invoice has been received by MR SYSTEMS, INC. In the event testing is required prior to acceptance, the discount time will begin upon completion of the tests.
(f) Partial Delivery/Performance.
Unless otherwise specified in the Order, Supplier must deliver the full quantity of goods or complete to the reasonable satisfaction of MR SYSTEMS, INC. the full quantity of services specified in the order before Supplier may invoice MR SYSTEMS, INC. for such Deliverables. Unless otherwise specified in the Order or agreed to in writing by MR SYSTEMS, INC., partial deliveries may not be accepted by MR SYSTEMS, INC.
Unless exempt, MR SYSTEMS, INC. will bear all sales, excise and/or use taxes properly imposed by federal, state, municipal or other local authorities in respect to its purchase of Deliverables. Any and all other taxes shall be solely for Supplier’s account. Supplier shall promptly notify MR SYSTEMS, INC. in writing of any proposed or contemplated assessment of additional taxes to be borne by MR SYSTEMS, INC. as the result of any audit or other tax review by an applicable government agency, prior to payment of such taxes. MR SYSTEMS, INC.’s obligation to pay such additional tax is subject to such notification, which shall permit MR SYSTEMS, INC. an adequate and reasonable amount of time to review the findings of the alleged tax increase prior to Supplier’s payment. Supplier shall take all necessary steps to secure the refund of all taxes paid by MR SYSTEMS, INC. that are subsequently deemed inapplicable.
(h) Set Off.
MR SYSTEMS, INC. may set off against any monies MR SYSTEMS, INC. owes to Supplier any monies that Supplier owes to MR SYSTEMS, INC. whether or not under the same Order.
(a) Delivery Terms.
Terms of delivery are FOB Destination Freight Prepaid, MR SYSTEMS, INC.’s receiving dock at 1185 Beaver Ruin Road, Suite “A”, Norcross, GA30093, unless a different destination is specified in the Order, and includes all handling, packaging, shipping, and unloading at the specified destination.
(b) Delivery Schedule.
Time is of the essence in performance of Supplier’s obligations under each Order. If Supplier’s deliveries fail to meet the delivery schedule specified in the Order, MR SYSTEMS, INC., in addition to its other rights and remedies, may require Supplier to deliver the Deliverables in any manner necessary to speed delivery. Supplier will pay the difference between normal freight and any premium rates required. Supplier shall notify MR SYSTEMS, INC. as soon as Supplier is aware that it will not meet the scheduled delivery date. Invoices covering Deliverables shipped in advance of dates specified will not be paid until the appropriate period after the date specified for delivery unless MR SYSTEMS, INC. has specifically authorized in writing such advance shipment.
(c) Packing and Shipment.
Deliveries shall be made as specified in the Order, without charge for boxing, crating, carting or storage. Supplier shall pack Deliverables to best commercial standards to ensure against damage from weather or transportation and to secure the lowest transportation cost in accordance with the requirements of common carriers. MR SYSTEMS, INC.’s Order number, line item number and the price, quantity, Supplier part number and MR SYSTEMS, INC. part number of the Deliverable(s), as listed on the Order, shall be plainly marked on all invoices, packages, bills of lading, shipping orders and packing lists. Packing lists shall accompany each box or package shipment. Supplier will package all Deliverables that are static-sensitive in a manner consistent with industry standards for protection against electrostatic discharge. All Deliverable packaging supplied by Supplier shall be made from materials which do not utilize chlorofluorocarbons in the manufacturing process. MR SYSTEMS, INC. may return to Supplier without charge any Deliverable not properly packaged. Supplier will promptly replace such Deliverable with a properly packaged Deliverable.
(d) Risk of Loss and Title.
Unless otherwise specified herein risk of loss and title to the Deliverable(s) provided under each Order shall pass to MR SYSTEMS, INC. upon delivery of the Deliverable(s) by Supplier and acceptance of Deliverable(s) by MR SYSTEMS, INC.
6. WARRANTY. Supplier warrants the Deliverables as follows:
Supplier represents and warrants that all services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by current, good and sound professional procedures. Further, Supplier represents and warrants that the Services shall be completed in accordance with applicable specifications and shall be correct and appropriate for the purposes contemplated in the applicable Order, and fit for the intended use. Supplier represents and warrants that the performance of services under the Order will not conflict with, or be prohibited in any way by, any other agreement or statutory restriction to which Supplier is bound.
Supplier warrants that all goods provided will be new and will not be used or refurbished. Supplier warrants that all goods delivered shall be free from defects in materials and workmanship and shall conform to all applicable specifications for a period of fifteen (15) months from the date of delivery to MR SYSTEMS, INC. or for the period provided in Supplier’s standard warranty covering the goods, whichever is longer. Supplier hereby agrees that it will make spare parts available to MR SYSTEMS, INC. (and its customers) for a period of five (5) years from the date of shipment at Suppliers then current price, less applicable discounts. Additionally, Supplier warrants good title to all goods conveyed to MR SYSTEMS, INC. free from any security interest, lien or encumbrance. Goods purchased shall be subject to all written and oral express warranties made by Supplier’s agents, and to all warranties provided for by the Georgia Commercial Code. All warranties shall be construed as conditions as well as warranties and shall not be exclusive. Supplier shall furnish to MR SYSTEMS, INC. Supplier’s standard warranty and service guaranty applicable to the goods.
(c) Warranty Period
All warranties shall be effective upon delivery and for at least 90 days following MR SYSTEMS, INC.’s acceptance of each Deliverable, unless a longer warranty period is provided in the Order.
(d) Warranty Work
If MR SYSTEMS, INC. identifies a warranty problem with the Deliverables during the warranty period, MR SYSTEMS, INC. will promptly notify Supplier of such problems and will return the Deliverables to Supplier, at Supplier’s expense. Within five (5) business days of receipt of the returned Deliverables, Supplier shall, at MR SYSTEMS, INC.’s option, either repair or replace such goods (or re-perform such services), or credit MR SYSTEMS, INC.’s account for the same. Replacement and repaired Deliverables shall be warranted for the remainder of the warranty period or six (6) months, whichever is longer. Supplier shall pay all transportation charges for returns and replacements.
(e) Benefit of MR SYSTEMS, INC. Customers
All warranties and service guaranties shall run both to MR SYSTEMS, INC. and to its customers.
(f) No Modification.
Any attempt to change, add, modify, or delete any warranty provision (including change by use of package labeling, inserts, packing slips, or otherwise) will not be binding on MR SYSTEMS, INC. unless it is agreed to in writing by a MR SYSTEMS, INC. officer or authorized agent.
All Deliverables shall be subject to final inspection and acceptance by MR SYSTEMS, INC. at its facility notwithstanding prior payment or inspection at Supplier’s facility. Acceptance of any Deliverables shall not alter or affect the warranties of Supplier. Deliverables may be inspected and/or tested by MR SYSTEMS, INC. at any time, place and stage of production or distribution. If inspected at Supplier’s premises, Supplier without additional charge shall provide all reasonable facilities and assistance required for safe and convenient inspection and testing. MR SYSTEMS, INC. may base rejection of any or all Deliverables on inspection by sampling or any other reason permitted by Article 2 of the Uniform Commercial Code. Payment shall not constitute MR SYSTEMS, INC.’s acceptance of the Deliverables nor impair MR SYSTEMS, INC.’s right to inspect and/or test the Deliverables or exercise any of its remedies.
8. REJECTED DELIVERABLES
If Deliverables shipped (or to be shipped) or rendered by Supplier are rejected by MR SYSTEMS, INC., in whole or in part, by reason of Supplier’s failure to comply with any of the terms, conditions and/or specifications of an Order, MR SYSTEMS, INC. may notify Supplier of such rejection, whereupon: (a) risk of loss of such Deliverables shall be upon Supplier until redelivery, if any, to MR SYSTEMS, INC.; (b) MR SYSTEMS, INC. may either return the rejected portion of the Deliverables to Supplier or hold the rejected portion of the Deliverables for such disposal as Supplier may indicate, both at Supplier’s risk and expense, without invalidating the remainder of the Order; (c) MR SYSTEMS, INC. may reject the entire shipment of goods or services rendered, and cancel the balance of goods and/or unrendered services. If Deliverables are rejected, MR SYSTEMS, INC. may purchase like Deliverables elsewhere and charge Supplier with any loss or damage (either direct or indirect) sustained by MR SYSTEMS, INC. (including, but not by way of limitation, any difference between the price paid by MR SYSTEMS, INC. for such like Deliverables and the price specified on the face of the Order) plus all costs of collecting the same (including, but not by way of limitation, attorney fees and court costs). MR SYSTEMS, INC. shall not be obligated to pay for any Deliverables that are rejected by it. If Supplier uses a return material authorization in connection with the return of defective Deliverables, Supplier shall give such authorization to MR SYSTEMS, INC. within two work days of Supplier’s receipt of MR SYSTEMS, INC.’s notice that it intends to return the Deliverable
9. NO CHANGE ORDERS
No change, modification or extension of an Order shall be effective against MR SYSTEMS, INC. unless it is made in a writing making specific reference to the Order and is signed by an authorized representative of MR SYSTEMS, INC.
10. STOP WORK ORDER
MR SYSTEMS, INC. may at any time by written order to Supplier require Supplier to stop all or any part of the work called for by the Order for a period of up to ninety (90) days after the Order is delivered to Supplier, and for any further period to which the parties may agree. Within the 90-day period or within any extension of that period, MR SYSTEMS, INC. shall without any liability either: (a) cancel the “Stop Work Order” and direct Supplier to resume work, or (b) terminate the work covered by the Order. Unless Supplier has breached any material term or condition of the Order, such termination shall be deemed made under Section 11(a).
(a) For Convenience.
MR SYSTEMS, INC. may without any penalty, charge or liability cancel an Order or any part hereof at any time prior to acceptance of the Deliverables to be cancelled by serving upon Supplier a written notice. MR SYSTEMS, INC. shall remain liable for any and all Deliverables which comply with the requirements of the Order and which have been accepted by MR SYSTEMS, INC.
(b) For Cause.
MR SYSTEMS, INC. may in addition to any other available right or remedy cancel an Order or any part hereof at any time without any penalty, charge or liability if any of the following events occur: (a) Supplier fails to make delivery in accordance with the schedule specified herein, (b) in the event of any proceeding by or against Supplier in bankruptcy or insolvency or for appointment of a receiver or trustee or an assignment for the benefit of creditors or (c) Supplier otherwise fails to comply with any provision of the Order and such failure is not remedied within ten days after MR SYSTEMS, INC. ’s notice thereof to Supplier.
12. MR SYSTEMS’ INC. PROPERTY
(a) Intellectual Property.
MR SYSTEMS, INC. shall own all right, title and interest in all Property conceived or developed in whole or in part by Supplier as a result of an Order. The term “Property” includes all forms of such materials and information, including without limitation specifications, data, documents, drawings, files, input and output materials, media, ideas, inventions, derivatives of pre-existing copyrighted works, software in any format, documentation, and any related material. Any tangible expression of Property which qualifies as a “work made for hire” under the Copyright Act, 17 U.S.C. §101, is expressly agreed by Supplier to be a “work made for hire” with the copyright in the work owned by MR SYSTEMS, INC.. Supplier shall label all Property with a notice indicating evidence of MR SYSTEMS’s ownership.
(b) Special Tools.
If the price stated includes as a separate item the cost of any special tools acquired by Supplier for the purpose of filling an Order, such special tools shall become the property of MR SYSTEMS, INC. and shall be properly and permanently identified by Supplier as such. Such special tools shall be disposed of as MR SYSTEMS, INC. directs. Supplier shall, to MR SYSTEMS’s reasonable satisfaction, provide proper storage and maintenance of such special tools while in possession of Supplier. MR SYSTEMS, INC. may inspect Supplier’s facilities to assure compliance with this provision.
(c) MR SYSTEMS, INC. Furnished Materials.
Supplier assumes all risk of loss of all material furnished by MR SYSTEMS, INC. to Supplier for use in performance or fulfillment of an Order.
13. WORK ON MR SYSTEMS, INC.’S PREMISES
If Supplier’s performance of an Order involves work by Supplier on MR SYSTEMS, INC.’s premises, or the premises of any third party, as directed by MR SYSTEMS, INC., Supplier shall:
Provide all necessary and sufficient safeguards and take all proper precautions against the occurrence of injury to any person or damage to any property, and shall be responsible for and shall indemnify and hold harmless MR SYSTEMS, INC., its directors, officers, employees and agents from any and all loss, suit, action or claim, including costs and attorney’s fees, by reason of injury, including death, to any person or damage to property arising from or in connection with such performance; and
Procure and carry during the term of performance of the Order, and for a period of at least one year after completion of Supplier’s obligations pursuant to such Order, the following levels of insurance coverage with a reputable and financially sound insurance carrier: (i) workers’ compensation insurance as required by applicable law; (ii) employer’s liability insurance with limits not less than US $1 million; (iii) Commercial General Liability, including Products and Completed Operations and Contractual Liability, with a minimum combined single limit of $2,000,000 per occurrence; and (iv) Excess Liability insurance with limits not less than US $5 million. Prior to Supplier commencing work on MR SYSTEMS, INC.’s premises, Supplier will provide MR SYSTEMS, INC. with an insurance certificate from its insurance carriers for each of the required foregoing insurance coverage’s, and naming MR SYSTEMS, INC. as an additional insured for Commercial General Liability and Excess Liability insurance. Such public liability and property damage insurance shall also cover the operation of Supplier’s vehicles used in the performance of Supplier’s operations. Supplier shall require each of its subcontractors (regardless of tier), if any, to carry insurance in accordance with all of the above terms set forth in the preceding sentences.
14. COMPLIANCE WITH LAWS AND REGULATIONS
(a) Compliance with Laws.
Supplier shall comply with all applicable federal, state, and local laws, rules and regulations. Supplier shall indemnify MR SYSTEMS, INC. and its customers for loss or damage sustained because of Supplier’s noncompliance with any law, including but not limited to, the Occupational Safety and Health Act of 1970, as amended, the Service Contract Act of 1965, as amended, the Environmental Protection Agency regulations concerning hazardous materials and the Equal Employment Opportunity clauses prescribed by Executive Orders regarding nondiscrimination because of race, creed, color, sex, age, national origin, physical or mental handicap or veteran status, the Family Educational Rights and Privacy Act (FERPA), and all lawful orders, rules and regulations promulgated under such laws. Supplier certifies that all Deliverables to be furnished to MR SYSTEMS, INC. will be manufactured in compliance with the Fair Labor Standards Act of 1938, as amended.
(b) Additional Terms.
If any Deliverables ordered are purchased pursuant to or for incorporation into Deliverables sold under a United States Government contract or subcontract, the terms required to be inserted in the Order by that contract or subcontract shall be deemed to be a part of the terms and conditions of such Order.
(c) Supplier Furnished Information.
Supplier shall furnish to MR SYSTEMS, INC. all information required by MR SYSTEMS, INC. to enable MR SYSTEMS, INC. to comply with the requirements of any government agency.
MR SYSTEMS, INC. may, by written notice to Supplier, cancel an Order if it is found by MR SYSTEMS, INC. that gratuities, in the form of entertainment, gifts, or otherwise were offered or given by Supplier, or any agent or representative of Supplier, to any officer or employee of MR SYSTEMS, INC. with a view toward securing an Order or securing favorable treatment with respect to the awarding or amendment, or the making of any determination with respect to the performance of, the Order. In the event the Order is terminated by MR SYSTEMS, INC. pursuant to this provision, MR SYSTEMS, INC. shall have no additional liability to Supplier except to pay for Deliverables delivered in accordance with the Order, up to the date of termination, that are not returned by MR SYSTEMS, INC..
(e) Commitment to Affirmative Action/EEO.
MR SYSTEMS, INC. is an affirmative action, equal opportunity employer and conforms to all applicable employment-related legal requirements. Supplier agrees to seek qualified handicapped, veteran, minority and female individuals to perform services for MR SYSTEMS, INC. and further agrees that the individuals assigned to MR SYSTEMS, INC. by Supplier will be selected without regard to race, color, sex, sexual orientation, religious creed, national origin, ancestry, marital status, medical condition or physical handicap. Without limiting the foregoing, both parties agree to comply, to the extent applicable, with the provisions outlined in the Equal Opportunity Clauses of Executive Order 11246, (60-1.4), section 503 of the Rehabilitation Act of 1973, (60-741.5), and section 402 of the Vietnam Era Veterans Readjustment Act of 1974, (60-250.4), as well as any other regulation pertaining to these orders.
15. LIMITATION OF LIABILITY
IN NO EVENT WILL MR SYSTEMS, INC. BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF REVENUE, LOSS OF USE, FAILURE TO REALIZE EXPECTED SAVINGS OR PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA OR OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND), IN CONNECTION WITH AN ORDER, WHETHER BASED UPON CONTRACT, TORT OR ANY OTHER LEGAL THEORY, INCLUDING NEGLIGENCE, EVEN IF MR SYSTEMS, INC. HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL MR SYSTEMS, INC.’S AGGREGATE LIABILITY UNDER ANY ORDER EXCEED THE PURCHASE PRICE OF DELIVERABLES INCLUDED IN SUCH ORDER. THE ABOVE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
The contents of each Order and all related commercial and technical information shall be kept secret and confidential by Supplier and will not be divulged by Supplier to any third party or employed by Supplier other than in connection with fulfillment of an Order. Unless otherwise agreed in writing by authorized representatives of MR SYSTEMS, INC. and Supplier, no commercial or technical information disclosed in any manner or at any time by Supplier to MR SYSTEMS, INC. shall be deemed secret or confidential and Supplier shall have no rights against MR SYSTEMS, INC. with respect thereto except such rights as may exist under any applicable patent law.
17. PATENTS, COPYRIGHTS, TRADE SECRETS AND OTHER PROPRIETARY RIGHTS
(a) Warranty of Noninfrinqement.
Supplier warrants that the Deliverable(s) (including without limitation each component and any unit or part thereof) provided under an Order, and the use thereof by MR SYSTEMS, INC. and its customers, will not infringe upon or violate any patent, copyright, trade secret or any other proprietary right of any third party.
In the event of any claim by a third party against MR SYSTEMS, INC. asserting or involving a patent, copyright, trade secret, or proprietary right violation involving any Deliverable acquired by MR SYSTEMS, INC. under the Order, Supplier will defend, at its expense, and will indemnify and hold harmless MR SYSTEMS, INC. against all loss, cost, expense, or liability arising out of such claim, whether or not such claim is successful, provided that Supplier is notified by MR SYSTEMS, INC. in writing within a reasonable time after MR SYSTEMS, INC. first receives written notice of any such claim, action, or allegation of infringement.
In the event an injunction or order shall be obtained against MR SYSTEMS, INC.’s use of the Deliverable by reason of infringement allegations, or if in Supplier’s opinion the Deliverable is likely to become the subject of a claim of infringement or violation of a patent, copyright, trade secret or other proprietary right of a third party, Supplier shall, at its option and its expense: (i) procure for MR SYSTEMS, INC. the right to continue using the Deliverable, (ii) replace or modify the same so that it becomes noninfringing (which modification or replacement shall not adversely affect the specifications for or the use or operation by MR SYSTEMS, INC. of the Deliverable) or (iii) if neither (i) nor (ii) above is reasonably available, remove the Deliverable and all other Supplier-supplied Deliverables with which the infringing Deliverable is integrated, refund the price and all associated transportation costs paid therefor by MR SYSTEMS, INC., and secure a release of MR SYSTEMS, INC. from any further liability.
18. NON-SOLICITATION OF MR SYSTEMS, INC. EMPLOYEES
During the performance of each Order, and for a period of nine (9) months thereafter, Supplier agrees not to solicit, or assist any other party to solicit, for employment or consulting any employee of or consultant to MR SYSTEMS, INC. (collectively the “MR SYSTEMS, INC. Personnel”). In the event Supplier solicits, or assists any other party to solicit, for employment any MR SYSTEMS, INC. Personnel, and the MR SYSTEMS, INC. Personnel is hired in any form or manner by Supplier or any other party for whom Supplier made a solicitation, Supplier agrees to pay MR SYSTEMS, INC. a one-time placement fee of 150% of annual salary per MR SYSTEMS, INC. Employee so hired.
Supplier acknowledges the value of MR SYSTEMS, INC.’s relationship with its customers (the “MR SYSTEMS, INC. Customer”). During the performance of each Order, and for a period of eighteen (18) months thereafter, Supplier agrees not to (a) compete with MR SYSTEMS, INC. for MR SYSTEMS, INC. Customer business, or (b) circumvent MR SYSTEMS, INC. directly or indirectly in any effort to gain fees, commissions, remunerations or other consideration to the detriment of MR SYSTEMS, INC. This non-circumvention provision extends to any transaction with any actual or potential MR SYSTEMS, INC. Customer.
20. INDEPENDENT CONTRACTOR
MR SYSTEMS, INC. is interested only in the results obtained under each Order. The manner and means of achieving the results are subject to Supplier’s sole control. Supplier is an independent contractor for all purposes, without express or implied authority to bind MR SYSTEMS, INC. by contract or otherwise. Neither Supplier nor its employees, agents or subcontractors (“Supplier’s Assistants”) are agents or employees of MR SYSTEMS, INC., and therefore are not entitled to any employee benefits of MR SYSTEMS, INC., including but not limited to, any type of insurance. Supplier shall be responsible for all costs and expenses incident to performing its obligations under this Agreement and shall provide Supplier’s own supplies and equipment. Nothing in any Order shall be construed to create a partnership, joint venture, employer-employee, franchisor-franchisee, or any agency relationship between Supplier and MR SYSTEMS, INC.
Supplier shall defend, indemnify and hold MR SYSTEMS, INC. harmless against all damages, claims or liabilities and expenses (including attorney’s fees) arising out of or resulting in any way from any obvious or apparent defects or latent defects in the goods or services purchased under any Order, or from any act or omission of Supplier, its agents, employees or subcontractors. This indemnification shall be in addition to all other obligations of Supplier under any Order.
22. ELECTRONIC ORDERS
MR SYSTEMS, INC. may place Orders in writing or by electronic means. Electronic transactions shall be deemed to satisfy any legal formalities requiring that agreements be in writing in accordance with the Electronic Signatures in Global and National Commerce Act (15 U.S.C. § 7001).
24. ADVERTISING AND PROMOTION
Except as required by law, Supplier will not publicize an Order or the transactions contemplated by such Order, nor shall Supplier use in any manner the name, logo or trademarks of MR SYSTEMS, INC. or its affiliates, without the prior written approval of MR SYSTEMS, INC.’s authorized officer. This provision applies to all forms of publicity, including but not limited to, press releases, paid advertisements, announcements at public events, trade shows, conferences, promotional flyers, websites that contain references to Supplier’s goods or services, and other materials.
25. ENTIRE AGREEMENT
Unless otherwise approved in writing signed by MR SYSTEMS, INC.’s authorized agent, each Order and any attachments thereto submitted by MR SYSTEMS, INC. constitute the final, complete and exclusive statement of the terms of the agreement between the parties with respect to the Deliverables described in such Order and supersedes all prior and contemporaneous offers, negotiations, agreements, discussions, and understandings, express or implied, whether oral or written, with respect to the Deliverables described in such Order.
26. MISCELLANEOUS PROVISIONS
(a) Force Majeure.
Neither party shall be liable for delays or defaults due to fire, windstorm, riot, act of God, act of the public enemy, or, except for defaults or delays by subcontractors, other similar unforeseeable cause beyond the reasonable control and without the fault or negligence of the party incurring such delay. Supplier shall notify MR SYSTEMS, INC. in writing of the existence of such cause within five days after the commencement of the delay or default.
(b) Governing Law.
Orders shall be governed by and construed in accordance with the laws of the State of Georgia and the United States of America without reference to conflict of laws principles. Any dispute arising under any Order shall be subject to the exclusive jurisdiction and venue of the federal or state courts located in HennepinCounty, State of Minnesota. Supplier irrevocably consents to the personal and exclusive jurisdiction and venue of these courts.
If any provision of an Order is held by any court or other tribunal to be invalid, illegal or unenforceable for any reason, the remaining provisions shall continue to be valid and enforceable. If any court or other tribunal finds that any provision of an Order is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision shall be deemed to be written, construed and enforced as so limited.
Neither the Order nor any right or obligation of Supplier hereunder may be assigned or delegated by Supplier, by contract, merger, operation of law, or otherwise, to any other party without the prior consent of MR SYSTEMS, INC. which may be granted at MR SYSTEMS, INC.’s sole discretion. Supplier is not permitted to engage subcontractors in connection with the performance of its obligations to MR SYSTEMS, INC. hereunder without the prior written consent of MR SYSTEMS, INC..
The failure of MR SYSTEMS, INC. to strictly enforce any provision of an Order shall not be construed as a waiver or limitation of MR SYSTEMS, INC.’s right to enforce and compel strict compliance with every provision of that Order or any other Order.
(f) Attorneys’ Fees.
If either party commences litigation to enforce any provision of an Order, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs at trial and upon appeal.
Any notices required or permitted under this Agreement shall be given to the appropriate party at the address set forth above in this Agreement, or at such other address as may be specified in compliance with this Section. Such notice shall be deemed given upon personal delivery; or, if sent by telephone facsimile, upon confirmation of receipt; or if sent by Federal Express or some other nationally recognized delivery service and with a signature requested, on the date of delivery of such service; or, if sent by certified or registered mail, postage prepaid, upon five (5) days after the date of mailing.
(h) Export Control.
Supplier is responsible for complying with all applicable export control regulations. Any such export controlled Deliverables must be properly handled and labeled by Supplier as part of Supplier’s responsibility when the Supplier transfers such Deliverables to MR SYSTEMS, INC.
(i) Dispute Resolution.
Any controversy or claim arising out of or relating to an Order (excepting any claims for injunctive or equitable relief, or relating to ownership or infringement of intellectual property, all of which must be brought in a court having jurisdiction) shall be submitted to final and binding arbitration in Minneapolis, Minnesota, in accordance with the commercial rules of the American Arbitration Association (“AAA”).
(j) Amendments and Updates.
MR SYSTEMS, INC. reserves the right to modify, amend, restate and update these Purchase Order Terms and Conditions from time to time, without prior notice. Updated Purchase Order Terms and Conditions will be effective immediately upon posting on this website and will apply to all Orders accepted by Supplier on or after the effective date of change (but will not affect Orders accepted by Supplier prior to the effective date of change). MR SYSTEMS, INC. may (but is not obligated to) also provide Supplier notice of the update by (1) emailing Supplier the updated Purchase Order Terms and Conditions, or (2) mailing Supplier the updated Purchase Order Terms and Conditions, or (3) attaching the revised Purchase Order Terms and Conditions to any Order placed subsequent to the revision. In all events, Supplier is responsible for regularly reviewing the Purchase Order Terms and Conditions on this site. By accepting an Order after the effective date, Supplier agrees to be bound by the then current version of these Purchase Order Terms and Conditions.