TERMS & CONDITIONS

Steelhead Terms and Conditions of Sale

  1. APPLICABILITY. Although labeled “Terms and Conditions of Sale” (these “Terms”), these Terms and the accompanying quotation, sales order confirmation, invoice or other documents provided by Steelhead, LLC. or any of its subsidiaries or affiliates (“Steelhead”) constitute an offer (this “Offer”) by Steelhead to sell to the buyer to which this Offer is directed (“Buyer”) the goods (“Goods”) and/or services (“Services”) identified in this Offer. This Offer consists of these Terms and the accompanying quotation, sales order confirmation, invoice or other documents provided by Steelhead and contains all and the only terms and conditions upon which Steelhead will sell Goods and Services to Buyer. Steelhead may withdraw or revoke this Offer at any time prior to Buyer’s acceptance. Unless otherwise indicated in writing, this Offer expires 30 days from the date of issuance by Steelhead.
  2. ACCEPTANCE AND ACKNOWLEDGE OF OFFER. Buyer’s acceptance of this Offer will be confirmed by the earlier of Buyer timely (a) placing a purchase order or other request for Steelhead to supply the Goods or Services, (b) providing any other written or oral indication that this Offer has been accepted and that the right to supply the Goods or Services has been awarded to Steelhead, or (c) accepting delivery of the Goods or Services supplied by Steelhead. Upon such acceptance, this Offer (including these Terms) will form a valid and binding supply contract and will constitute the entire agreement between Buyer and Steelhead for the sale of Goods and Services (the “Order”). This Offer is expressly conditioned on Buyer’s unconditional acceptance of these Terms and the prices, specifications, and other terms stated in the Offer. Steelhead expressly rejects all additional or different terms or conditions (i) submitted to Steelhead in Buyer’s tender or request for proposal/quotation documents, purchase orders, shipping instructions or other acceptance documents, (ii) as set forth under any prime or other contract to which Buyer is a party, and (iii) implied by trade, custom, practice, or course of dealing. Buyer acknowledges that such additional or different terms and conditions will be deemed material alterations to the Offer and will not form part of the Order. Fulfillment of this Order does not constitute acceptance of any of other terms and conditions and does not serve to modify, add to, or amend this Order, regardless of when or how such terms and conditions were submitted to Steelhead.
  3. PRICES. Steelhead reserves the right during execution of this Order to adjust the prices for Goods and Services if Steelhead’s costs of performing the Services or producing, manufacturing, packaging, storing, or transporting the Goods increase as a result of (a) Steelhead’s compliance with any new or amended rules, policies or Specifications of Buyer, (b) Steelhead’s compliance with any new or amended law, regulation, or ordinance, including without limitation any change in, or introduction of, a tax and/or increased costs (such as the cost of acquiring permits or credits and plant modifications or additions) related to the management of greenhouse gas emissions or concentrations or the management of water usage or conservation, or (c) a significant change in Steelhead’s costs for raw materials, wages, production of the Goods, or performance of the Services, as determined by Steelhead in its sole discretion. Such price adjustments will become effective 30 days after the date Steelhead provides Buyer with written notice of such price adjustment.
  4. PAYMENT. Buyer will pay to Steelhead the prices set forth in this Order no later than 30 days from the date of invoice. All payments will be made in the manner and to the place identified in the invoice. Extended payment terms are available, pending Steelhead’s credit manager approval and are subject to additional charges. All Orders are subject to management approval and periodic review of credit and payment terms, which may be modified by Steelhead on reasonable notice for cause. Payments not received when due will incur service charges at a rate of 1.5% per month (18% per annum) of the unpaid amount until paid. Steelhead reserves the right, among other remedies, to limit or cancel the credit of Buyer, suspend further deliveries or performance, or terminate this Order if Buyer fails to pay any invoices when due. No rebates or discounts will apply if Buyer’s account is more than 30 days past due. Buyer will pay all reasonable attorneys’ fees, collection costs, and other expenses incurred by Steelhead for collection of past due invoices. All claims for money due or to become due from Buyer will be subject to deduction or set off by Steelhead by reason of any counterclaim arising out of this Order or any other transaction with Buyer.
  5. SPECIFICATIONS. Steelhead will manufacture the Goods strictly in accordance with the drawings and/or specifications provided by Buyer or otherwise agreed upon by Buyer and Steelhead in writing (the “Specifications”). If any of the Goods are to be manufactured in accordance with Specifications provided by Buyer, Buyer may make changes to the Specifications at any time upon reasonable advance notice to Steelhead. If such changes result in delay or additional expense to Steelhead, un-recouped capital expenditures, or unusable raw materials, WIP or finished goods, or if such changes result in the obsolescence of any Goods or materials, Steelhead will make an equitable adjustment to the prices and/or delivery schedule, as determined in Steelhead’s sole discretion.
  6. DELIVERY. Unless otherwise stated on the Order, delivery will be made F.C.A. Steelhead’s manufacturing site (the “Delivery Point”) using Steelhead’s standard packaging and containers for the Goods. Any dates specified for delivery of the Goods are an estimate only and time for delivery will not be made of the essence by notice to Steelhead. Steelhead will not be liable for any delay in delivery of the Goods that is caused by an event described in Section 15, Buyer’s failure to provide Steelhead with adequate delivery or other instructions that are relevant to the supply of the Goods, or any other cause outside the control of Steelhead. A delay will not entitle Buyer to terminate or rescind the Order, unless such delay exceeds 180 days.
  7. TITLE & RISK OF LOSS. Risk of loss and title will pass to Buyer upon delivery at the Delivery Point. Until full payment of the purchase price of the Goods and as collateral security for that full payment, Buyer hereby grants to Steelhead a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this Section 7 constitutes a purchase money security interest under the Uniform Commercial Code in effect in the state where the Delivery Point is located.
  8. ACCEPTANCE. Unless otherwise stated on the Order, Buyer must accept delivery of the Goods within 5 days of Steelhead’s notice to Buyer that the Goods have been delivered to the Delivery Point. If for any reason Buyer fails to accept delivery of any of the Goods within such 5 day period, then: (a) the Goods will be deemed to have been delivered and accepted by Buyer; (b) risk of loss to the Goods will pass to Buyer; and (c) Steelhead, at its option, may store the Goods until Buyer receives them, whereupon Buyer will be liable for all related costs and expenses (including, without limitation, storage and insurance).
  9. INSPECTION & REVOCATION. Buyer must inspect the Goods for any apparent defect, damage, or shortage within at least 30 days of the date of delivery. Buyer must provide written notice to Steelhead of any defect, damage, or shortage within such 30 day period. If Buyer does not provide notice within such 30 day period, Buyer will be deemed to have accepted the Goods and will not be entitled to object to or reject the Goods or any portion of them. Buyer’s sole and exclusive remedies for any defect, damage, or shortage with respect to the Goods are set forth in Sections 16, 17 & 18.
  10. QUANTITY. If the Goods provided to Buyer under this Order are custom goods pursuant to Section 5, then Steelhead reserves the right to over or under ship by 10% of the ordered quantity for any given shipment until the Order is complete, and invoice Buyer for the amount actually shipped. Steelhead may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each partial shipment will constitute a separate sale, and Buyer will pay for the units actually shipped. Nothing herein will relieve either party from fulfilling the obligations set forth herein, and Buyer will not be entitled to object to or reject the Goods or any portion of them by reason of a surplus, shortfall, or partial shipment.
  11. CARRIER. Buyer will be responsible for all loading costs and provide equipment and labor necessary for receipt of the Goods at the Delivery Point. In the event that Buyer designates a specific carrier to take delivery of the Goods at the Delivery Point, Steelhead will attempt to use that carrier, provided that Steelhead may select an alternate carrier to transport the Goods if Steelhead, in its reasonable discretion, determines that the use of an alternative carrier is necessary to satisfy the delivery requirements. All freight, insurance, and other shipping expenses will be borne by Buyer. Buyer will inspect shipments for freight damage at time of receipt, immediately notify the carrier and Steelhead of any freight damage, and file its claim directly with the carrier. Steelhead is not liable for damage or losses incurred by Buyer as the result of freight damage or delays.
  12. HANDLING FEE. If Steelhead agrees to prepay freight charges on behalf of Buyer and add the prepaid freight charges to the total costs of this Order, then Steelhead may charge Buyer an additional administrative handling fee for each such shipment.
  13. NON-DELIVERY. Steelhead will not be liable for any non-delivery of Goods (even if caused by Steelhead’s negligence) unless Buyer gives written notice to Steelhead of the non-delivery within 10 days of the date when the Goods, in the ordinary course of events, would have been delivered. Buyer’s sole and exclusive remedy for non-delivery of the Goods will be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
  14. RESCHEDULES & CHANGES. Unless otherwise stated in this Order, all Goods ordered by Buyer must be deliverable no later than 12 months after the date of this Order. Changes in the delivery schedule initiated by Buyer must be agreed to in writing in advance by Steelhead and will incur the following minimum fees (expressed as a percentage of the rescheduled shipment’s value): within the same shipping month = 0%, 1 to 3 months= 2% per month, 3 to 6 months = 3% per month. Rescheduling requests exceeding 6 months or requests to place an order on indefinite “HOLD” will be treated by Steelhead as an improper termination of this Order by Buyer, and Steelhead will have all rights and remedies under this Order or at law related to such termination. In the event that Buyer actually purchases a quantity of Goods less than the ordered quantity, Buyer will pay for the shipped quantity at the recalculated unit price (as determined by Steelhead in its reasonable discretion), and the balance of this Order will be canceled.
  15. EXCUSABLE DELAYS. Steelhead will not be liable for damages (including, without limitation, consequential or incidental damages), nor be deemed to have defaulted under or breached this Order, for any failure or delay in its performance resulting from causes beyond its control, including without limitation: acts of God; fire, flood, earthquake, explosion or other casualty or accident; strikes, labor disputes, labor stoppages or slowdowns, or other industrial disturbances; inability to procure parts, supplies, raw materials, transportation facilities, fuel, power or labor; war, invasion, hostilities, terrorist threats or acts, riot, or other violence; breakage or failure of equipment, machinery or apparatus; any law, order, proclamation, regulation, ordinance, demand, requirement or action of any government agency; the default or declaration of a force majeure by a supplier or subcontractor of Steelhead; or any other event, whether or not of the class or kind enumerated herein, beyond the reasonable control of Steelhead which makes impractical the performance of the Services or the manufacture, transportation, or shipment of the Goods or of a material or other resource upon which the manufacture, transportation, or shipment of the Goods depends. Should Steelhead experience an excusable delay, it will cooperate with Buyer in reasonable ways to minimize the impact of such circumstances.
  16. WARRANTY. Steelhead warrants that, for a period of 12 months from the date of delivery of the Goods to the Delivery Point, the Goods manufactured by Steelhead and provided under this Order will: (a) be free from material defects in material and workmanship; and (b) materially comply with the Specifications. These warranties do not apply to any Goods or materials that are manufactured by a third party and that constitute, contain, or are incorporated into, attached to, or packaged with the Goods. These warranties also do not apply if (i) the damage to or defect in a Good is caused by abuse, misuse, accident, neglect, improper testing, installation, or handling, abnormal physical stress or environmental conditions, or use contrary to Steelhead’s instructions, (ii) Buyer or its agents or customers make further use of the Goods after discovery of a defect in such Goods, or (iii) Buyer or its agents or customers alter or repair the Goods without the prior written consent of Steelhead. Steelhead warrants that its Services will be performed by Steelhead in accordance with generally recognized industry standards for similar services under similar circumstances. STEELHEAD MAKES NO OTHER WARRANTY OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, OR AS STATED IN ANY STEELHEAD LITERATURE OR OTHER SALES BROCHURES, WITH RESPECT TO THE GOODS, OTHER PRODUCTS, OR SERVICES PROVIDED UNDER THIS ORDER. STEELHEAD EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Experimental, developmental or special application Goods or Goods requiring destructive testing are sold without warranty. In such case, Steelhead warrants that the goods shall meet applicable Specifications when shipped by Steelhead but Steelhead shall have no other or further responsibility whatsoever.
  17. BUYER’S EXCLUSIVE REMEDIES. If any Goods do not conform to the warranties set forth in Section 16, Steelhead will, at its option, repair or replace such Goods (or the defective part) or refund the purchase price for such Goods (or the defective part) at the pro rata contract rate by crediting Buyer’s account, provided that, if Steelhead so requests, Buyer will, at Steelhead’s expense, return such Goods (or the defective part) to Steelhead. Steelhead’s exercise of one of these options will not prejudice its exercise of other options in other circumstances. Goods may not be returned to Steelhead without Buyer first obtaining a Returned Goods Authorization Number. The return to Steelhead of any nonconforming Goods and delivery of any repaired or replaced Goods will be at Steelhead’s expense unless, Buyer did not give Steelhead written notice of the defect within 30 days of the time Buyer discovered or reasonably should have discovered the defect, or after inspection by Steelhead, Steelhead determined, in its reasonable discretion, that the returned Goods are conforming to the warranties set forth in Section 16. Buyer will retain title to returned Goods until Steelhead verifies that the Goods do not meet the warranties set forth in Section 16. If any Services do not conform to the warranties set forth in Section 16, Steelhead will, at its option, re-perform such Services (or the defective part) or refund the purchase price for such Services (or the defective part) at the pro rata contract rate by crediting Buyer’s account. THE REMEDIES SET FORTH IN THIS SECTION 17 ARE BUYER’S SOLE AND EXCLUSIVE REMEDY AND STEELHEAD’S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTIES SET FORTH IN SECTION 16. IN NO EVENT WILL STEELHEAD BE LIABLE FOR INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY, OR INDIRECT DAMAGES OR LOSSES ARISING FROM A FAILURE OF THE GOODS OR SERVICES TO CONFORM TO THE WARRANTIES SET FORTH IN SECTION 16. The purpose of these express exclusive warranty remedies is to provide Buyer with replacement, exchange, re-performance, or credit for nonconforming Goods or Services. The exclusive remedies will not be deemed to have failed for their essential purpose as long as Steelhead is willing and able to replace, exchange, re-perform, or credit such nonconforming Goods or Services.
  18. LIMITED LIABILITY. (A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL STEELHEAD BE LIABLE TO BUYER OR TO ANY THIRD PERSON OR ENTITY WITH RESPECT TO THE SUBJECT MATTER OF THIS ORDER, UNDER ANY EQUITY, COMMON LAW, TORT, CONTRACT, ESTOPPEL, NEGLIGENCE, STRICT LIABILITY, WARRANTY, OR OTHER THEORY, FOR ANY (I) INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, CONSEQUENTIAL, OR INDIRECT DAMAGES, OR (II) DAMAGES RELATING TO DIMINUTION OR DEPRECIATION IN VALUE, DELAY OR IDLE TIME FOR LABOR AND EQUIPMENT, OR LOSS OF SALES, CONTRACTS, BUSINESS, PROFITS, REVENUES, PRODUCTION, SAVINGS, DATA, OPPORTUNITY, USE, REPUTATION, OR GOODWILL, EVEN IF THE REMEDIES PROVIDED FOR IN THIS ORDER FAIL FOR THEIR ESSENTIAL PURPOSE AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF ANY OF THE FOREGOING DAMAGES OR THE FOREGOING DAMAGES COULD HAVE BEEN REASONABLY FORESEEN. (B) SUBJECT TO SECTION 18(A) AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL STEELHEAD’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS ORDER, UNDER ANY EQUITY, COMMON LAW, TORT, CONTRACT, ESTOPPEL, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY EXCEED THE LESSER OF (I) THE TOTAL OF THE AMOUNTS PAID TO STEELHEAD FOR THE GOODS AND SERVICES SOLD PURSUANT TO THIS ORDER DURING THE 12 MONTHS IMMEDIATELY PRIOR TO THE INCIDENT GIVING RISE TO SUCH LIABILITY, OR (II) $500,000. (C) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED HEREIN, ANY ACTION AGAINST STEELHEAD MUST BE BROUGHT WITHIN 12 MONTHS AFTER THE DATE SUCH CAUSE OF ACTION ACCRUED. EACH PROVISION IN THIS ORDER THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTY, OR EXCLUSION OF DAMAGES IS SEVERABLE AND INDEPENDENT OF ANY OTHER PROVISION AND IS TO BE ENFORCED AS SUCH.
  19. ASSUMPTION OF RISK & INDEMNIFICATION. (A) Buyer is solely responsible for determining that the Goods and Services are appropriate for Buyer’s intended use or application. Buyer acknowledges that it is familiar with and assumes all risks and liability associated with the Goods and Services and their use. Unless otherwise agreed to by Buyer and Steelhead in writing, Buyer is solely responsible for determining whether any verbal or written technical advice, assistance, recommendations, opinions, statements, or other information of Steelhead is appropriate for Buyer’s intended use or application. Any such information is provided by Steelhead to Buyer on an “AS IS” basis, and Steelhead makes no claims, promises, warranties, representations, or guarantees, either express or implied, concerning such information, including without limitation as to the accuracy, completeness, adequacy, quality, merchantability, and fitness for a particular purpose of such information. (B) Buyer will indemnify, defend, and hold harmless Steelhead and its owners, parents, affiliates, subsidiaries, officers, directors, employees, representatives, and agents, from and against any and all liabilities, losses, damages, claims, costs or expenses (including reasonable attorneys’ fees and costs) incurred by Steelhead with respect to (i) claims of misuse of proprietary information and infringements of IP based on designs, drawings, Specifications, or other information which Buyer provides to Steelhead or which is developed by Steelhead or others in conjunction with Buyer, (ii) the design, manufacture, integration or usage of a Good which alone or as a component in an assembly, is alleged or proved to have caused injury or damage, (iii) Buyer’s failure to comply with any applicable foreign, federal, state, or local law, rule, regulation, order, or ordinance, including without limitation U.S. export control laws, regulations, or orders, or Buyer’s failure to provide Steelhead adequate information related thereto, and (iv) any breach of Buyer’s obligations under this Order.
  20. INSURANCE. Buyer will carry and maintain the following insurance: (a) worker’s compensation and employers’ liability Insurance as required by applicable state statutes; (b) commercial general liability and umbrella liability insurance, minimum per-occurrence limit, general aggregate limit, and products completed operations aggregate limit of $1,000,000; (c) comprehensive automobile liability insurance with limits not less than $1,000,000; and (d) commercial property insurance covering the replacement cost of the property insured. All insurance policies will contain language waiving all subrogation rights against Steelhead and will name Steelhead as an additional insured. Buyer will provide to Steelhead certificates of insurance upon request. Neither the failure of Buyer to comply with any or all of the insurance provisions of this Order, nor the failure to secure endorsements on the policies as necessary to carry out the terms and provisions of this Order, will be construed to limit or relieve Buyer of any of its obligations under this Order.
  21. TOOLING. Any plant, machinery, equipment, molds, or tooling that Steelhead requires to perform its obligations under this Order will, at all times, be and remain the sole and exclusive property of Steelhead and in the custody and control of Steelhead. Regardless of whether the cost of designing and producing such items is paid for or reimbursed by Buyer, Buyer will have no ownership rights therein, unless otherwise agreed to in a writing signed by an authorized representative of Steelhead.
  22. BUYER SUPPLIED ITEMS. From time to time Buyer may supply Steelhead with tooling, molds, equipment, or other items to be used with or incorporated into the Goods. Such items must include explicit markings or other identification on them stipulating that they are Buyer’s property. Steelhead will use reasonable measures to protect and preserve items provided by Buyer and will only be liable for replacement of such items if any of them are lost, destroyed, or rendered useless due to Steelhead’s gross negligence. Unless otherwise agreed to by the parties in writing, any items supplied by Buyer to Steelhead will be returned to Buyer upon expiration of this Order in substantially the same condition as received, less normal wear and tear. Buyer warrants that any items it provides will comply with all applicable foreign, federal, state, and local laws, rules, regulations, and ordinances and will meet all performance, specification, and inspection criteria of Steelhead. Steelhead will have a lien for any amounts owed by Buyer to Steelhead attaching to all items supplied by Buyer under this Section 22, in accordance with the same terms set forth in Section 7.
  23. INTELLECTUAL PROPERTY. Steelhead is the sole and exclusive owner of the IP associated with or attached to the Goods or Services. Any IP first made or conceived by Steelhead in the performance of this Order, or which is derived from or based on information supplied by Buyer that is not otherwise subject to a separate written confidentiality agreement executed between the parties, will be the sole and exclusive property of Steelhead. Buyer will execute such documents as necessary to perfect Steelhead’s title in all such IP and will irrevocably assign all such IP and other rights acquired by Buyer by operation of law or otherwise. Buyer agrees that this Order does not grant to Buyer, and that Buyer will not obtain or claim, any right, title, interest, option, or license to any IP now or hereafter held by Steelhead. Buyer further agrees that it will not decipher, decompile, disassemble, or reverse engineer any of the Goods sold hereunder. As used herein, “IP” means all rights in and to US and foreign (a) patents, patent disclosures and inventions (whether patentable or not), (b) trademarks, service marks, trade dress, trade names, logos, corporate names and domain names, and other similar designations of source or origin, together with the goodwill symbolized by any of the foregoing, (c) copyrights and copyrightable works (including computer programs), and rights in data and databases, (d) trade secrets, know-how and other confidential information, and (e) all other intellectual property rights, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights, and all similar or equivalent rights or forms of protection in any part of the world.
  24. CONFIDENTIALITY. All non-public, confidential, or proprietary information of Steelhead (including, without limitation, the terms of this Order and any specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts, or rebates) disclosed by Steelhead to Buyer or which Buyer becomes aware in the course of carrying out its obligations under this Order, whether disclosed orally or in written, electronic or other form or media, and whether or not identified as “confidential,” is confidential and may not be disclosed or copied by Buyer without Steelhead’s prior written consent. Upon Steelhead’s request, Buyer will promptly return all documents and other materials of Steelhead. Steelhead will be entitled to injunctive relief for any violation of this Section 24. This Section 24 does not apply to information that is: (a) in the public domain through no act or omission of Buyer; (b) known to Buyer at the time of disclosure as evidenced by written records; or (c) rightfully obtained by Buyer on a nonconfidential basis from a third party. 25. TERMINATION. (A) Each party will have the right to terminate this Order (a) upon a material breach by the other party of any term or condition stated in this Order, provided that the non-breaching party gave the breaching party written notice of the breach and the breaching party failed to cure such breach, or present the non-breaching party with a plan to cure such breach, within 10 days after the breaching party’s receipt of the written notice of such breach, or (b) in the event the other party 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. In the event that Steelhead finds that Buyer has breached any other order or contract that Buyer has with Steelhead, Steelhead may terminate this Order, in whole or in part. Buyer will remain liable under this Order in the event of such termination by Steelhead. Steelhead may also terminate this Order or suspend performance or deliveries under this Order if the costs incurred by Steelhead in performing its obligations under this Order exceed the amounts paid by Buyer to Steelhead for Goods and Services supplied under this Order. (B) Buyer shall only be entitled to terminate this Order early for convenience if Buyer placed this Order pursuant to Buyer’s prime contract with a government and such prime contract is terminated by the government or is so changed by the government as to necessitate termination of this Order. In such event, Buyer may terminate the Order or any part thereof by written notice to Steelhead specifying the extent of termination and the effective date. In the event of such termination, Steelhead shall immediately stop all work and shall immediately cause any and all of its suppliers and subcontractors to cease work. Steelhead shall be paid a percentage of the Order price reflecting the percentage of the work performed prior to the effective date of termination, plus reasonable charges Steelhead incurred resulting from the termination. Steelhead shall not be required to comply with the governmental cost accounting standards or government contract cost principles for this purpose. This provision does not give Buyer or the government any right to audit Steelhead’s records. (C) In the event of any early termination or cancellation of this Order by Buyer for any reason, in addition to any other remedies available to Steelhead under law or under this Order (including this Section 25), Steelhead shall be entitled to payment for all work performed through the date of termination, plus reimbursement of all costs for materials, tooling, WIP, shipping, transportation, handling, and labour incurred by Steelhead through the date of termination, less any value for scrapped materials received by Steelhead. All materials, tooling, and other items or property purchased by Steelhead through the date of termination shall remain Steelhead property and shall not be transferred to or become Buyer’s property upon termination or upon any payment made by Buyer in connection with termination.
  25. NON-WAIVER/SEVERABILITY. Steelhead’s waiver of any right under this Order will not constitute a waiver of such right or any other right on any other occasion. In the event any provision of this Order is determined to be invalid, such invalidity will not affect the validity of remaining portions of this Order, and the parties will substitute for the invalid provision a provision that most closely approximates the intent and economic effect of the invalid provision.
  26. INDEPENDENT CONTRACTORS. The relationship of the parties established under this Order is that of independent contractors and neither party is a partner, employee, agent, or joint venturer of or with the other. Nothing in this Order will preclude Steelhead from providing similar goods or services to others.
  27. SUBCONTRACT & ASSIGNMENT. Steelhead expressly reserves the right to subcontract all or part of this Order without the consent of Buyer. Steelhead reserves the right to assign any of its rights or obligations under this Order without the consent of Buyer. Buyer will not assign any of its rights or obligations under this Order without the prior written consent of Steelhead. Any assignment without Steelhead’s consent will be null and void.
  28. SURVIVAL. The provisions of this Order that, by their sense and context, are intended to survive performance by either or both parties will also survive the completion, expiration, termination, or cancellation of this Order.
  29. TAXES. Prices do not include, and Buyer is responsible for the payment of all, taxes associated with the Goods and Services provided hereunder, including without limitation sales, use, excise, rental, personal property, and any other taxes or assessments levied by any foreign, federal, state, municipal, or other governmental authority.
  30. COMPLIANCE WITH LAWS. Each party must comply with all applicable standards, provisions, and stipulations of all foreign, federal, state, and local laws, rules, regulations, ordinances, and Executive Orders. In addition, each party will, at all times, act in a lawful manner and will not use monies associated with this Order to bribe government officials.
  31. EXPORT COMPLIANCE. Steelhead is subject to U.S. export/import control laws and regulations, including without limitation the Export Administration Regulations and the International Traffic in Arms Regulations. Buyer agrees that it will not export, re-export, or otherwise transfer, directly or indirectly, Goods, technical data, and/or Services provided by Steelhead in violation of U.S. law. Buyer is responsible for obtaining any necessary U.S. government authorization required to ensure compliance of Buyer with U.S. law. Buyer represents and warrants that any export controlled Goods or information that are subject to ITAR regulations will be appropriately marked or otherwise labeled in accordance with U.S. law. Orders requiring Steelhead to obtain export licenses will be subject to additional fees and/or minimum order requirements. Buyer may contact the Steelhead Export Group by e-mail at #INTLSHIP@coorstek.com with questions regarding export requirements.
  32. AIRCRAFT COMPONENTS. Unless otherwise stated on the Order, Buyer warrants that the Goods or Services are not intended for use as components or components of assemblies used in aircraft (military or commercial).
  33. MEDICAL DEVICES. Unless otherwise stated on the Order, Buyer warrants that the Goods or Services are not intended for use as components or components of assemblies used in implantable medical devices, are not finished medical devices, and are not medical devices requiring FDA approval.
  34. CHOICE OF LAW, JURISDICTION, & VENUE. The laws of the State of Colorado will govern, construe, and interpret this Order, notwithstanding conflict of laws. If an arbitrator or court determines that terms and conditions in addition to those contained in this Order should be included in interpreting the agreement between the parties, then notwithstanding any contrary Colorado law, the parties agree that any different terms and conditions will be interpreted under Article 2 of the Uniform Commercial Code, section 2-207(2). The parties elect not to be bound by the United Nations Convention on Contracts for the International Sale of Goods. By ordering the Goods and Services, Buyer acknowledges that it is transacting business at Steelhead’s principal place of business in Golden, Colorado. The federal and state courts in the State of Colorado will have exclusive jurisdiction over all disputes and controversies arising out of this Order. Venue will be proper in Denver, Colorado.
  35. MODIFICATION & MERGER. This Order may be modified only by a written agreement that is expressly designated as an amendment to this Order and is signed by both the parties. This Order comprises the entire agreement between the parties and supersedes all prior or contemporaneous oral and written understandings, agreements, negotiations, representations, warranties, and communications between the parties.