1. Applicability. These terms and conditions of sale (these “Terms”) are the only terms that govern the sale of the goods (“Goods”) and services (“Services”) by MELINK CORPORATION (“Seller”) to the buyer (“Buyer”) as indicated on any proposal or sales order (the “Proposal”).
The Proposal and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties, and supersede all prior or contemporaneous understandings, agreements, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms.
Notwithstanding anything to the contrary contained in this Agreement, Seller may, at any time and without notice, substitute or change materials, parts, product specifications or functional attributes with any products or services provided such substitution or change does not materially affect the nature or scope of the Goods or Services.
2. Price. The price for the Goods and/or Services is set forth in the Proposal and is based on information supplied by Buyer. Seller reserves the right to change the price quoted in the Proposal if it is necessary due to it being provided inaccurate information or in the event the Proposal is not accepted by Buyer within the time frame specified therein. Prices apply only to Goods delivered to, or Services provided in, the continental U.S., unless otherwise noted. Buyer also agrees to reimburse Seller for all reasonable travel and out-of-pocket expenses incurred by Seller in connection with the performance of the Services.
3. Payment Terms. Payment terms are set forth in the Proposal. All invoices not paid within the specified terms may be subject to finance charges equal to the lesser of (i) 1.5% per month or (ii) the highest rate permissible under applicable law. In addition, Seller may withhold further delivery of Goods or Services in the event any invoice is not paid in full in compliance with the payment terms. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
4. Taxes. All prices indicated in the Proposal are exclusive of all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personal or real property, or other assets. Supplier will include all such amounts owed by Buyer to the final invoice unless Buyer provides a proper exemption form.
5. Delivery of Goods; Performance of Services. The Goods will be delivered within 10 business days of Seller’s acceptance of the Buyer’s purchase order and receipt of all necessary specifications. Requests for delivery of less than 10 business days may be subject to Quick Ship Service Charge not to exceed 5% of the price of the quoted Goods in addition to any UPS Air Freight Charges.
All Goods will be delivered FCA (Incoterms 2010) Seller’s facility. Title and risk of loss will pass to Buyer when Seller delivers Goods to the carrier.
Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of Buyer’s purchase order.
Seller shall use commercially reasonable efforts to meet any performance dates to render the Services specified in the Proposal; notwithstanding the foregoing, Buyer acknowledges that any such dates shall be estimates only.
Buyer shall (i) cooperate with Seller in all matters relating to the Services and provide such access to Buyer’s premises, and such office accommodation and other facilities as may reasonably be requested by Seller, for the purposes of performing the Services; (ii) respond promptly to any Seller request to provide direction, information, approvals, authorizations, or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of this Agreement; (iii) provide in a timely manner such customer materials or information as Seller may request to carry out the Services and ensure that such customer materials or information are complete and accurate in all material respects; and (iv) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start.
6. Inspection and Rejection of Nonconforming Goods. Buyer shall inspect the Goods within 5 business days of receipt and will be deemed to have accepted the Goods unless, during such period, it notifies Seller in writing that (i) the Goods shipped are different than identified in Buyer’s purchase order; or (ii) the Goods’ label or packaging incorrectly identifies its contents (“Nonconforming Goods”). In such event, Seller shall, in its sole discretion, (i) replace such Nonconforming Goods with conforming Goods, or (ii) credit or refund the price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith.
7. Limited Warranty. Seller warrants to Buyer that for a period of 3 years from the date of delivery of the Goods (“Warranty Period”), that such Goods will be free from defects in material and workmanship.
Seller warrants to Buyer that it shall perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.
EXCEPT FOR THE WARRANTIES SET FORTH ABOVE, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS OR SERVICES, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (c)
WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED OR OTHERWISE.
Seller may provide recommendations based on benchmark data provided by Buyer or the industry at large. Such recommendations are not meant to substitute load calculations or other engineering analysis that might be required. In addition, Buyer is responsible for confirming structural, electrical and plumbing requirements to support any equipment recommendations unless specified in the Proposal.
The Seller shall not be liable for a breach of the warranty set forth in this Section 7 if: (i) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; or (ii) Buyer alters or repairs such Goods without the prior written consent of Seller. Buyer shall permit Seller to inspect any claim of breach of warranty. In the event that Buyer determines any deficiency is the result of any circumstance, cause or event that does not constitute a breach of warranty by Seller, Buyer shall compensate Seller for the cost of all inspection efforts, including an hourly reimbursement of labor and travel expenses, with a minimum charge of at least $1,750.
In the event of any breach of warranty, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or, if applicable, repair or re-perform the applicable Services or (ii) credit or refund the price of such Goods or Services at the pro rata contract rate. THE REMEDIES SET FORTH IN HEREIN ARE THE BUYER’S SOLE AND EXCLUSIVE REMEDIES AND CONSTITUTE SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE WARRANTIES SET FORTH IN THIS SECTION 7.
8. Limitation of Liability. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE GOODS AND SERVICES SOLD HEREUNDER.
The limitation of liability set forth above shall not apply to liability resulting solely from Seller’s gross negligence or willful misconduct.
9. Cancellation. This Agreement and the order becomes a binding legal contract upon acceptance.
- a. Cancellation Right. Buyer may cancel this Agreement and such order upon written notice to Seller. Seller may cancel this Agreement and such order upon written notice to Buyer in the event that Buyer fails to comply with any of its responsibilities in support of Seller’s performance of the Services as set forth in Section 5.
- b. Responsibilities Upon Cancellation. Upon cancellation, Buyer shall (a) pay to Seller an administrative fee of $1,750 for processing such cancellation and (b) indemnify and reimburse Seller for all loss or damage resulting from such cancellation, including, without limitation, Seller’s direct costs, expenses, overhead and reasonable profits.
10. Confidential Information. All non-public, confidential or proprietary information of Buyer or Seller disclosed to the other, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, is confidential, solely for the use of performing this Agreement and may not be disclosed or copied unless authorized in advance by the disclosing party in writing. Upon the disclosing party’s request, the receiving party shall promptly return all Confidential Information. The disclosing party shall be entitled to injunctive relief for any violation of this Section 10. This Section 10 does not apply to information that is: (a) in the public domain; (b) known to the receiving party at the time of disclosure; or (c) rightfully obtained by the receiving party on a non-confidential basis from a third party.
Seller will retain ownership of and all rights to (1) all data generated by the Goods or Services and (2) all intellectual property embodied in the Goods or Services.
11. Force Majeure. The Seller shall not be liable or responsible to Buyer, nor be deemed to have defaulted or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by or results from acts or circumstances beyond the reasonable control of Seller including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion, or hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest, national emergency, epidemic, lockouts, strikes or other labor disputes.
12. Assignment. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section 12 is null and void.
13. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Terms.
14. Governing Law. All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Ohio. Any legal suit, action, or proceeding arising out of or relating to this Agreement shall be instituted in the courts of the State of Ohio located in the County of Clermont, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, or proceeding. Each party irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any action, proceeding, cause of action or counterclaim arising out of or relating to this Agreement.
15. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
1. Definitions. “Deliverables” means the goods, materials, products, software, technical data, intellectual property, drawings, personal property, services or items identified and/or listed in this purchase order for Melink Corporation’s internal use and resale.
“Personal data” means any information that can identify a specific living individual. “Parties” means, collectively, Vendor and Melink Corporation.
2. Acceptance of Purchase Order. This purchase order constitutes Melink Corporation’s offer to Vendor and shall become a binding contract upon the terms and conditions stated in this purchase order upon acceptance by Vendor by any expression of
acceptance, or commencement of performance, whichever occurs first. This purchase order, together with any data referenced in Section 3, constitutes the entire agreement and exclusive statement of the terms between the Parties with respect to the
purchase and sale of the Deliverables under this purchase order and terminates and supersedes all previous negotiations, communications, representations, or agreements between the Parties. Any terms and conditions proposed by Vendor in
acknowledging or accepting Melink Corporation’s offer which are different from or in addition to the terms set forth in this purchase order shall not be binding upon Melink Corporation and shall be void and of no effect, except to the extent expressly accepted in
writing by Melink Corporation’s authorized procurement representative(s).
3. Data/Documentation. Vendor acknowledges that it has in its possession all applicable specifications, drawings and documents (including, without limitation, statements of work) necessary to perform its obligations under this purchase order at the price and
schedule stated on this purchase order or its attachments. All such documentation shall be deemed to be a part of this purchase order.
4. Delivery. Time is of the essence. Unless otherwise specified on this purchase order, Vendor shall deliver Deliverables DDP (Incoterms 2010).Risk of loss shall be retained by Vendor until delivery of the Deliverables at the location specified on this
purchase order. Vendor agrees to comply with Melink Corporation’s shipping, delivery, installation or startup schedules (as applicable) without any delay and without anticipating Melink Corporation’s requirements. Shipments must equal the exact amounts
identified in the Order and no partial shipments or runt cartons, changes or substitutions in specifications may be made without Melink Corporation’s prior written consent. Melink Corporation’s acceptance of late shipments or partial shipments shall not
constitute a waiver of any of Melink Corporation’s rights to collect damages for goods not delivered or for late delivery. Vendor shall report to Melink Corporation any delays in a schedule immediately as they become known to Vendor. If dates are not specified
on the purchase order, Vendor shall procure materials, fabricate, assemble and ship goods or provide services only as authorized by shipment releases Melink Corporation issues to Vendor. Melink Corporation may return overshipments to Vendor for a
complete refund at Vendor’s expense for all packing, handling, sorting and transportation. Melink Corporation may from time to time, and with reasonable notice, suspend schedules specified in the purchase order or such shipment releases. If it becomes
necessary for Vendor to ship by a more expensive mode than specified on the Order in order to meet a schedule, Vendor shall pay any resulting premium transportation cost.
5. Taxes and Duties. The prices stated in this purchase order include all applicable taxes and duties, except state and local sales and use taxes, which by statute may be passed on to Melink Corporation. Such sales and use taxes shall be separately
itemized in Vendor’s invoice. Melink Corporation shall benefit from all customs duty and import drawback rights, if any, including rights developed by substitution and rights, which may be acquired from Vendor’s Vendors, which Vendor shall transfer to Melink
Corporation. Vendor agrees to inform Melink Corporation of the existence of all such rights, and to supply such documents as may be required to obtain such drawbacks, unless waived in writing by Melink Corporation. Vendor agrees to certify to Melink
Corporation the country of origin for Deliverables delivered under this purchase order.
6. Payment and Prices. Unless different payment terms are expressly stated on this purchase order, payment terms for undisputed invoices shall be forty-five (45) days from Melink Corporation’s receipt of Vendor’s correctly presented invoice. A “correctly
presented” invoice will contain this purchase order number sent to the billing address on this purchase order.
7. Set-off. Melink Corporation shall be entitled at all times to set off any amount owing at any time from Vendor to Melink Corporation (or any of Melink Corporation’s affiliates and subsidiaries) against any amount payable at any time by Melink Corporation (or any
of its affiliates and subsidiaries) to Vendor.
8. Warranty. Vendor warrants to Melink Corporation and to any customer of Melink Corporation or user of Deliverables that all Deliverables will conform to applicable specifications, drawings, descriptions, and samples, and will be of new manufacture, good
workmanship and materials, be free from design defect, claim, encumbrance or lien, be merchantable and be suitable for the purpose intended by Melink Corporation. Vendor warrants that it has full title, right, power and authority to enter into this purchase
order and perform its obligations under the purchase order. Vendor warrants that Deliverables that are services shall be performed in a professional and workmanlike manner. If the Deliverables delivered under this purchase order do not meet the
warranties specified in this purchase order or other applicable warranties, Melink Corporation may, at its option, return at Vendor’s expense, the defective or nonconforming Deliverables for credit, refund or set-off, correct, have corrected, or replace, or
require Vendor to correct or replace, at no cost to Melink Corporation, any defective or nonconforming Deliverables, including, without limitation, re-perform any Deliverables that are services. Return shipping to Melink Corporation of corrected or replacement
Deliverables shall be at Vendor’s expense. Deliverables required to be corrected or replaced (including, without limitation, the re-performance of any Deliverables that are services) shall be subject to this Section 8 and Section 9 (Inspection) in the same
manner and to the same extent as Deliverables originally delivered under this purchase order. Vendor’s warranties shall run to Melink Corporation, its affiliates, subsidiaries, customers or users of the Deliverables and shall not be deemed to be exclusive of
any other remedy at law or in equity available to Melink Corporation, its affiliates, subsidiaries, customers or users of the Deliverables. Melink Corporation’s inspection, approval, acceptance, use of, or payment for all or any part of the Deliverables shall in no
way affect its warranty rights.
9. Inspection. The Deliverables may be inspected and/or tested by Melink Corporation at any time, place and stage of production or distribution, and if at Vendor’s premises, Vendor, without additional charge, shall provide all reasonable facilities and assistance
required for safe and convenient inspection and testing. The foregoing shall not relieve Vendor of its obligation to permit Melink Corporation full and adequate inspection and testing away from Vendor’s premises. Melink Corporation may base rejection of any
or all Deliverables on inspection by sampling or any other reasonable method. Payment shall not constitute Melink Corporation’s acceptance of the Deliverables nor impair Melink Corporation’s right to inspect and/or test the Deliverables or exercise any of its
remedies. Upon notice of rejection of defective Deliverables, risk of loss of such Deliverables shall be upon Vendor until redelivery, if any, to Melink Corporation. Rejected Deliverables may be returned to Vendor or held by Melink Corporation, both at Vendor’s
risk and expense, subject to Vendor’s disposal instructions.
10. Default. Melink Corporation may, by written notice to Vendor, cancel this purchase order or any release or order subject to this purchase order for default, (a) if Vendor fails to deliver the Deliverables strictly within the time specified in this purchase order, or
if no time is specified, within a reasonable time; (b) if the Deliverables delivered do not conform to this purchase order or if Vendor fails to perform any of the other provisions of this purchase order, or so fails to make progress as to endanger performance of this
purchase order in accordance with its terms; or (c) if Vendor’s financial condition shall at any time become unsatisfactory to Melink Corporation. Upon such cancellation, Melink Corporation shall not be liable to Vendor for any amount. Vendor will deliver to
Melink Corporation any of the Deliverables for which Melink Corporation shall make written request prior to or upon cancellation, for which Melink Corporation will compensate Vendor for documentable and reasonable costs incurred by Vendor to provide
such Deliverables, which costs may not exceed the original purchase price of the Deliverables. Vendor shall cooperate with any transition of the delivery of the Deliverables as reasonably requested by Melink Corporation.
11. Change Orders. Melink Corporation shall have the right by written notice to change the terms of this purchase order, the drawings, specifications or other descriptions, the time, method or place of delivery or the method of shipment or packaging or to
suspend delivery of the Deliverables. Upon receipt of such notice, Vendor shall proceed promptly to make such changes. If any such change causes a change in the cost of the Deliverables or in the time required for performance, Vendor shall provide
prompt notice to Melink Corporation of any such change and an equitable adjustment shall be negotiated promptly and this purchase order shall be modified in writing accordingly.
12. Title. Title to and the right of immediate possession of all articles, tooling, equipment, software, or materials furnished to Vendor or paid for by Melink Corporation directly or indirectly for use by Vendor in connection with this purchase order shall be and
remain in Melink Corporation. Vendor shall be (a) responsible on a replacement cost basis for all loss or damage to such articles, tooling, equipment, software or materials while in its possession and insure its risk in this respect in accordance with Section 12;
(b) clearly mark the same as belonging to Melink Corporation, keep it segregated in Vendor’s facility and treat it confidentially as provided in this purchase order; (c) keep the same in good operating condition; and (d) use the same exclusively in connection
with the delivery of the Deliverables for this purchase order and not for any production of larger quantities than specified or in advance of normal production schedules, except with Melink Corporation’s prior written consent. Articles, tooling, equipment,
software, or materials furnished to Vendor shall not include government-furnished items of this sort. Upon completion of this purchase order, all articles, tooling, equipment, software, or materials furnished to Vendor or paid for by Melink Corporation shall be
disposed of by Vendor at Vendor’s expense as Melink Corporation directs in writing. With the exception of software not specifically developed for Melink Corporation under this purchase order, (i) all Deliverables shall be the sole and exclusive property of the
Melink Corporation, and where applicable, shall be considered “works made for hire” under the U.S. Copyright Act (Title 17, United States Code), and all intellectual property, proprietary and industrial rights associated with Deliverables shall be owned
exclusively by Melink Corporation; (ii) by this purchase order, Vendor assigns to Melink Corporation for no additional consideration all such rights to the Deliverables, including the right to any extensions and renewals of such rights; and (iii) if requested by
Melink Corporation, Vendor shall, without additional consideration, sign a separate written assignment of such rights to Melink Corporation or any other document necessary for Melink Corporation to establish, maintain or enforce such rights in the
13. Intellectual Property and Proprietary Rights. Vendor shall at its expense indemnify, defend and hold harmless, Melink Corporation, its directors, officers, employees, affiliates, subsidiaries, agents, customers and end users, from any and all loss, damages or
liability (including, without limitation, reasonable legal fees and costs) on account of, or resulting from, any claim of infringement of any existing or future copyrights, patents, or trademarks, misappropriation of any trade secrets, or violation of any other
intellectual, proprietary or industrial rights, with respect to any of the Deliverables. The fact that Melink Corporation furnishes specifications to Vendor with respect to any of the Deliverables shall neither relieve the Vendor from its obligations under this
purchase order nor limit Vendor’s liability in connection with the Deliverables, nor constitute an undertaking by Melink Corporation to hold Vendor harmless against any such claim which arises out of compliance with the specifications.
14. Confidential Information. For purposes of this Section 14, the term “Confidential Information” means any and all proprietary information belonging to Melink Corporation, including, but not limited to, information concerning customers, suppliers, samples,
product specifications and names, pricing, trade secrets, drawings and schematics, manufacturing processes, procedures, know how, computer and any other processed or collated data, computer programs, marketing and advertising data, product
development plans, and distribution and marketing plans. “Confidential Information” also includes Personal Data supplied or provided by Melink Corporation. Vendor shall not disclose to any third party or use any Confidential Information of Melink
Corporation’s concerning this purchase order or other material intended for use in connection with this purchase order without Melink Corporation’s prior written consent. Any knowledge or information which Vendor may disclose to Melink Corporation in
connection with the purchase of any of the Deliverables shall not, unless Melink Corporation otherwise specifically agrees in writing, be deemed to be Confidential Information and shall be acquired free from any restriction as part of the consideration for this
15. Termination. At any time Melink Corporation, at its option, may terminate this order for convenience in whole or in part by written notice. A stop work order or any other form of written notice requiring Vendor to immediately cease performance under this
purchase order shall obligate Vendor to immediately stop work and take any actions necessary to mitigate the impact of such notice. If Melink Corporation does not give Vendor written notice to resume work within twenty (20) days after its initial stop work
order, this purchase order shall then be deemed terminated for Melink Corporation’s convenience as of the twenty-first (21st) day after the initial stop work order. Any claim of Vendor shall not exceed reasonable demonstrated costs it has incurred in
performance of this purchase order prior to notice of termination and shall in no event exceed the total amount of this purchase order. Melink Corporation shall remit to Vendor any payment due to Vendor for documentable and reasonable costs incurred
before receipt of Melink Corporation’s notice of termination in performance of this purchase order.
16. Compliance with Law. Each Party shall comply with all applicable law, including without limitation, government export control, and privacy and data protection laws.
17. Assignment and Subcontract. Vendor shall not delegate, assign or subcontract this purchase order nor any duty or right under this purchase order without the prior written consent of Melink Corporation. Any delegation, assignment or subcontract not
made in accordance with the terms and conditions of this Section is void and of no effect.
18. Advertising. Vendor shall not, without the prior written consent of Melink Corporation, in any manner advertise or publish the fact that Vendor has contracted to furnish Melink Corporation the Deliverables under this purchase order.
19. Insurance. During the performance of this purchase order, Vendor shall maintain in full force and effect, at its sole cost and expense, general liability insurance coverage, covering activities performed under this purchase order, including without limitation,
coverage of all property liability exposure and all contractual liability exposure. All insurance shall be placed with reputable insurance companies acceptable to Melink Corporation with a current rating in A.M. Bests Insurance Rating guide of at least A:VII and
licensed to do business in the country(ies), state(s) or province(s) where the purchase order is being performed. Vendor shall maintain insurance with the minimum policy limit of not less than $1,000,000 per occurrence and $2,000,000 in the aggregate.
Vendor shall require such insurance policies to name Melink Corporation as an additional insured. Vendor shall furnish to Melink Corporation upon request original Certificates of Insurance including all required amendatory endorsements and a copy of the
Declarations and Endorsement Page of the general liability insurance policy listing all policy endorsements to Melink Corporation.
20. Relationship of Parties. The Vendor and Melink Corporation are independent contractors. Nothing in this purchase order shall be deemed to create a partnership, joint venture, franchise, employment, or agency relationship between the Parties. Neither
Party shall have the power or authority to bind or obligate the other Party.
21. Waiver. Any failure or delay by either Party in exercising any right or remedy will not constitute a waiver.
22. Amendment. No alteration, modification or amendment of any of the provisions in this purchase order shall be binding unless in writing and signed by Melink Corporation’s authorized procurement representative(s).
23. Survival. Any provision in this purchase order which, by its nature, would reasonably be expected to be performed after the termination of this purchase order shall survive and be enforceable after such termination.
24. Indemnification. Vendor shall, at its expense, indemnify, defend and hold harmless Melink Corporation, its directors, officers, employees, affiliates, subsidiaries, agents, customers and users of Deliverables, from any and all loss (including, without limitation,
death, personal injury and the loss of use of any property), damages or liabilities (including, without limitation, reasonable legal fees and costs) arising out of or resulting in any way from (a) any defect in the Deliverables, (b) from any default of Vendor pursuant
to Section 10 and (c) from any act or omission of Vendor, its agents, employees or permitted subcontractors in connection with the Deliverables. This indemnification shall be in addition to Vendor’s warranty obligations set forth in Section 8.
25. Limitation of Liability. In no event shall Melink Corporation be liable for any incidental, indirect, special, consequential, or punitive damages, even if Melink Corporation knew or should have known of the possibility of such damages.
26. Governing Law; Jurisdiction. All matters arising out of or relating to this purchase order are governed by and construed in accordance with the internal laws of the State of Ohio without giving effect to any choice or conflict of law provision or rule (whether of
the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Ohio. The Parties hereby agree that the United Nations Convention on Contracts for the International Sale of Goods will not
apply to this purchase order. Any legal suit, action, or proceeding arising out of or relating to this purchase order shall be instituted in the courts of the State of Ohio located in the County of Clermont, and each Party irrevocably submits to the exclusive
jurisdiction of such courts in any such suit, action, or proceeding. Each Party irrevocably and unconditionally waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in any action, proceeding, cause of action or
counterclaim arising out of or relating to this purchase order.
27. Severability. If any term or provision of this purchase order is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this purchase order or invalidate or render
unenforceable such term or provision in any other jurisdiction.