OEM Purchase Agreement 买卖合同 -
AAA has developed an Internet Security appliance called AAAWALL. BBB wishes to OEM the standard version of the 2 port AAAWALL with minor cosmetic modifications. AAA has agreed to provide this customized version of the port 2- AAAWALL to BBB subject to the terms of this Agreement and in reliance upon BBB’s representation that it has the technical, marketing, financial, and business capabilities to fulfill BBB’s obligations set forth in this Agreement. ?
?1. Definitions ?
?Channel Partners. Channel Partners shall mean any third party authorized by BBB to resell the Product and includes, but is not limited to, distributors, resellers, value-added resellers, system integrators, and OEMs. ?
?Confidential Information. Confidential Information means any data or information, oral or written, treated as confidential that relates to either Party’s (or, if either Party is bound to protect the confidentiality of any other person’s information, such other person’s) past, present, or future research, development, or business
activities, including any unannounced products and services, and including any information relating to services, developments, inventions, processes, plans, financial information, customer and supplier lists, forecasts, and projections. Confidential Information, also includes the terms of this Agreement. Notwithstanding the foregoing, Confidential Information is deemed not to include information that: (i) is publicly available or in the public domain at the time disclosed; (ii) is or, becomes publicly available or enters the public domain through no fault of the Party receiving such information; (iii) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (iv) is already in the recipient’s possession free of any confidentiality obligations with respect thereto (excluding, however, any copies of the Product that may be in BBB’s possession prior to the date of this Agreement); (v) is independently developed by the recipient; (vi) is approved for release or disclosure by the disclosing Party without restriction; or (vii) is required to be disclosed or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that the recipient shall provide prompt notice thereof to the disclosing Party to enable the disclosing Party to seek a protective order or otherwise prevent or restrict such disclosure. ?
?Deliverables. Deliverables shall mean the items listed in Exhibit A. ?
?Derivative Works. Derivative Works means programming or design changes made to the Product. ?
?Documentation. Documentation shall mean the user manual associated with the Products. ?
?End User. End User means end user customers located within the Territory who receive the Product. ?
?Enhancements. Enhancements means any modification or addition that, when made or added to the Product, materially changes its utility, efficiency, functional capability, or application, but that does not constitute solely an Error Correction. Enhancements may be designated by AAA as minor or major, depending on AAA’s assessment of their value and of the function added to the preexisting Product. ?
?Error. Error means the failure of the Product to conform in all material respects to its functional specifications as published from time to time by AAA, the current version of which is attached as Exhibit C hereto. However, any nonconformity resulting from
BBB’s or its customers’ misuse, improper use, alteration, or damage of the Product is not an Error. ?
?Error Correction. Error Correction means either a modification or an addition that, when made or added to the Product, establishes material conformity of the Product to its Specifications. ?
?First Tier Support. First Tier Support shall mean technical support of the Product directly to End Users. ?
?Initial Purchase Order. Initial Purchase Order shall mean the first purchase order submitted by BBB and accepted by AAA and dated _________. ?
?Licensed Upgrades. Licensed Upgrades shall mean any upgrade for the Product for which there is a defined upgrade price in Exhibit B and for which AAA will provide to BBB a software upgrade key to enable such upgrade. ?
?Modifications. Modifications means any changes to the Product made by AAA.
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?NRE. NRE means non recurring engineering. ?
?Options. Options shall mean Product Software add ons that may be made available to customers from time to time for an additional charge. ?
?Party or Parties. Party or Parties means AAA or BBB, as applicable, or both AAA and BBB as parties to this Agreement. ?
?Products and Prices. Products and Prices shall mean the Products (as modified for BBB in accordance with Exhibit A and Section 5) and Prices listed in Exhibit B. Products includes all Documentation, Software, Enhancements, Error Corrections, Modifications, Licensed Upgrades, and Releases AAA makes available to BBB hereunder. ?
?Releases. Releases means new versions of the Software or Product, which may include, without limitation, Error Corrections, Enhancements, and Modifications. ?
?Second Tier Support. Second Tier Support shall mean technical support of the Product directly to Channel Partners. ?
?Severity I Bug. Severity I Bug shall mean any demonstrable Error in the Product that: (i) causes the Product to have a significant loss of intended function as set forth in the applicable Specifications; (ii) causes or is likely to cause data to be lost or destroyed; or (iii) prevents the Product from being installed or executed on the properly configured environment. ?
?Software. Software shall mean the computer programs and/or firmware which are necessary in order to cause the Products to operate properly, which are described on Exhibit A, and which AAA will provide to BBB hereunder. ?
?Specifications. Specifications shall mean the specifications for the Products set forth on Exhibit A, Exhibit C, and as otherwise mutually agreed upon by the Parties in writing. ?
?Third Tier Support. Third Tier Support shall mean technical support of the Product directly to BBB. ?
?Territory. The Territory is the world, subject to the export restrictions covered in Section 11.1. ?
?2. Rights and Restrictions ?
?2.1 License Grants. AAA hereby grants to BBB a non exclusive, worldwide right to reproduce the Documentation and to use, support, sell, modify (as set forth in Section 3.4), and distribute the Products. BBB does not have the right to re license the Products to a third party for purposes of manufacturing the Products. However, should a case arise where BBB needs manufacturing rights or to convey manufacturing rights to a third party in order to secure a large OEM opportunity, the Parties agree to negotiate such an arrangement in good faith. ?
?2.2 Use of Trademarks/Logos. No license is granted to BBB to use any AAA trademarks, service marks or logos, or those trademarks or logos of any of AAA’s OEMs without the prior, express written permission of AAA. ?
?2.3 Ownership of Intellectual Property in Products. The AAA
Products, including any associated intellectual property rights and/or Derivative Works, are and remain the sole property of AAA. BBB shall from time to time take any further action and execute and deliver any further instrument, including documents of assignment or acknowledgment, that AAA may reasonably request in order to establish and perfect its exclusive ownership rights in such Products, including any associated intellectual property rights. ?
?2.4 Software License Restrictions. BBB shall not reverse compile or disassemble object code versions of the Software included in the Product or otherwise create, attempt to create, or permit or assist others to create a source code of the Software. ?
?2.5 Independent Developments. It is understood that the Parties have performed and will continue to perform substantial independent development relating to networking products and associated technologies. Each Party also understands that, over time, the other Party’s employees may gain familiarity with the general concepts and ideas in the other Party’s technology disclosed under the Agreement from independent sources. Consequently, each Party acknowledges that each Party shall be free to use such independently developed or received concepts and ideas free of all restrictions, other than those set forth in this Section 2. ?
?3. Consideration ?
?3.1 Purchase from AAA. Products may be purchased by BBB at the Prices listed in Exhibit B. BBB shall issue individual purchase orders for each Product listed in Exhibit B. Each purchase order must be received 60 days in advance of the applicable shipping date and must be non cancelable, however, the purchase orders may be increased by up to 50% in quantity of Products being ordered upon not less than 30 days notice prior to the scheduled shipping date. A non binding 90 day forecast must accompany all purchase orders covering the three consecutive months following the current purchase order. All Products are fully tested and verified in accordance with existing manufacturing procedures. All Products are shipped in bulk packaging in anti static bags individually wrapped, FOB AAA’s factory in _________(PLACENAME). However, the second shipment against the Initial Purchase Order, due to arrive at BBB no earlier than _________,_________,_________(M/D/Y), shall be F.O.B. BBB’s location in Fremont, _________(PLACENAME). All other shipments shall be F.O.B. AAA’s factory in _________(PLACENAME). Title and risk of loss for the Product shall pass to BBB once it is turned over to BBB’s shipping agent or freight forwarder. ?
?3.2 Terms of Purchase. Terms of purchase shall be net 30 days. AAA will grant such credit approval to BBB, provided BBB meets AAA’s credit approval standards. However, payment terms for only the first shipment against the Initial Purchase Order (due _________,_________,_________(M/D/Y)) shall be net 45 days. ?
?3.3 Minimum Purchase Orders. Each purchase order presented to AAA must be for a minimum of [*] units of Product to be delivered in a single shipment. ?
?3.4 Inventory Balancing. BBB will have the right to modify Product in its inventory as needed via a software key to increase or decrease the number of users per model (for example, if BBB needs 25 user units and only has 5 user units in inventory, BBB can use a software key to upgrade the 5 user units to 25 user units). The detailed mechanics of how such upgrade shall be done will be mutually agreed to by the Parties. The charge or credit to BBB (depending on the nature of the upgrade/downgrade) shall be the actual price difference between the models, and shall be reconciled and paid no later than fifteen (15) days following the end of each calendar quarter. ?
?4. Upgrade License Accounting Reports and Audit Rights
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?4.1 Accounting Reports. BBB shall maintain an accurate list of Licensed Upgrade units based on the Product’s serial number associated with each copy of the Licensed Upgrades described in Exhibit B for a period of three (3) years after such Licensed Upgrade is made in accordance with Section 3.4. Within fifteen (15) days after the end of each calendar quarter, BBB shall complete and submit to AAA a detailed report setting forth all sales of the Licensed Upgrades during such calendar month and remit to AAA the appropriate license or other fee payments due based on such report. If necessary and at AAA’s discretion, BBB shall allow a mutually agreed upon, third party auditor to review BBB records associated with such Licensed Upgrades per the Audit Rights in Section 4.2 below. ?
?4.2 Audit Rights. AAA has the right to direct a mutually agreed upon third party auditor to conduct, during normal business hours and upon reasonable prior written notice to BBB, an audit of the appropriate records of BBB to verify the accuracy of BBB’s reports to AAA; provided, that AAA shall conduct no more than one (1) such audit during any twelve (12) month period. Such audit shall be at AAA’s expense, unless the adjustment to the Licensed Upgrade or other fees owing from BBB is greater than five percent (5%) of fees reported by BBB, in which case BBB shall pay all expenses
associated with the audit. Within ten (10) days after receipt of notice from AAA, BBB shall remit to AAA all amounts found in any such audit to be due to AAA and not previously paid by BBB. ?
?5. Customization and Deliverables ?
?5.1 Customization. AAA agrees, at no charge to BBB, to make specific minor cosmetic and pre configuration modifications to AAA’s pre existing products as set forth on Exhibit A. ?
?5.2 Deliverables. The Deliverables are fully described in Exhibit A attached. AAA will deliver all Deliverables to BBB in accordance with the schedule set forth on Exhibit D. BBB will have the right to test the Deliverables for a period of five (5) working days following BBB’s receipt of such Deliverables to determine whether the Deliverables conform to the Specifications. If BBB determines the Deliverables, fail to conform to the Specifications, BBB will notify AAA, and AAA will use its best efforts to correct such defect within two (2) days. At the end of this period, AAA will submit the corrected Deliverables to BBB for acceptance by BBB under this Section 5.2; provided, however, that if the corrected Deliverables fail to conform to the Specifications, BBB will have the right to terminate this Agreement upon written notice to AAA. The
procedure set forth in this Section 5.2 will repeat until BBB either accepts or permanently rejects the Deliverables. ?
?6. Support Obligations, Product Updates, and Product Upgrades ?
?6.1 Scope of Services. During the term of this Agreement, AAA shall render certain services in support of the Products, during AAA’s normal working hours (Monday through Friday, 9am to 5pm, PST, excluding holidays). ?
?(a) AAA shall maintain a trained staff capable of rendering the services set forth in this Agreement. ?
?(b) BBB shall provide First Tier support and Second Tier support. ?
?(c) AAA shall only provide Third Tier support. Under no circumstances shall AAA be obligated to directly support a BBB Channel Partner or an End User of the Product. ?
?6.2 Updates and Upgrades. During the term of this Agreement
AAA, at its own discretion, shall release Product updates and upgrades and shall make such updates and upgrades available to BBB. AAA shall not charge BBB for such upgrades or updates unless AAA generally charges its customers for such upgrades and updates. ?
?(a) AAA is responsible for using all reasonable diligence to correct verifiable and reproducible Errors when reported to AAA by BBB in accordance with AAA’s standard reporting procedures communicated in writing to BBB. AAA shall, within two (2) days of verifying that such an Error is present, initiate work in a diligent manner toward development of an Error Correction. Following completion of the Error Correction, AAA shall make such Error Correction available to BBB and shall include the Error Correction in all subsequent Releases of the Product. AAA shall not be responsible for correcting Errors in any version of the Product other than the most recent Release of the Product, provided that AAA continues to support prior Releases superseded by recent Releases in accordance with Section 6.3. ?
?(b) AAA may, from time to time, issue new firmware releases of the Software at no cost to its customers generally, containing error corrections, minor Enhancements, and, in certain instances if AAA so elects, major Enhancements. These new releases shall be provided
to BBB at no additional charge as new BBB versions (which replace prior BBB versions, as customized by AAA for BBB hereunder pursuant to Section 5) within 30 days after the general release. ?
?(c) AAA may, from time to time, offer major Enhancements and/or Options to its customers generally for an additional per unit charge. BBB, at its discretion, may choose to purchase and resell these major Enhancements and/or Options to its customers. ?
?(d) AAA shall consider and evaluate the custom development of Enhancements for the specific use of BBB and shall respond to BBB’s requests for additional services pertaining to the Product (including, without limitation, graphical user interface modifications, new custom functionality, and formatting assistance), provided that such assistance, if agreed to be provided, is subject to supplemental NRE charges and support fees mutually agreed to by AAA and BBB. The Parties shall negotiate in good faith for AAA to accommodate BBB customization requests and the associated NRE fee, but AAA may decline the request due to lack of available engineering resources, scheduling conflicts, or the nature of the requested customization. ?
?(e) AAA shall make its best effort to fix Severity I Bugs within 5
working days, and other bugs within 15 working days. The Parties acknowledge that due to the unpredictable nature of future bugs AAA cannot be expected to absolutely deliver the fixes within the specified timeframes in every case. ?
?6.3 Support for Previous Releases. AAA shall continue to provide Third Tier Support to BBB for the firmware release immediately preceding the latest release of firmware for a period of ninety (90) days after delivery of a new version to BBB. ?
?7. Confidentiality
? ?During the course of performance of this Agreement, and thereafter, either Party may disclose certain Confidential Information to the other Party. The Party receiving any such Confidential Information shall maintain the confidentiality of such Confidential Information and shall not use, disclose, or otherwise exploit any Confidential Information for any purpose not expressly contemplated by this Agreement. ?
?8. Representation and Warranties ?
?8.1 Non infringement. AAA is a corporation duly organized, validly existing and in good standing under the laws of the State of _________(PLACENAME), and has full corporate power and authority to enter into this Agreement. In addition, AAA has good and marketable title to all of the Products, free and clear of restrictions on or conditions to the license, transfer or assignment of the Products. No person has made a claim against AAA that any of the Products infringe any patent, copyright, or proprietary process of interest of another, and AAA does not require rights under any patent, copyright (or any application or registration respecting any thereof), discovery, improvement, process, formula, know how, data, plan, specification, drawing or the like belonging to another. Finally, AAA represents and warrants that the Products do not and shall not infringe any patent, copyright, mask right or trade secret of any third party. ?
?8.2 Warranty. AAA represents and warrants that the Products will perform in accordance with their uses and be substantially free of errors in their operation for a period of 15 months after the date of shipment by AAA. Products that are found to be defective and are under warranty that are returned to AAA shall be replaced with new or refurbished Products within 30 days of receipt. In the event that the Products are found to be modified (except as specifically permitted under this Agreement), tampered with, or mis used this warranty shall not apply.
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?8.3 Limitation of Liability. EXCEPT AS SET FORTH IN THIS SECTION 8, AAA DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES AS TO THE SUITABILITY OR MERCHANTABILITY OR FITNESS FOR ANY PARTICULAR PURPOSE. ?
?8.4 Indemnification by AAA. Except to the extent BBB indemnifies AAA pursuant to Section 8.5 below, and except for claims which arise from BBB’s negligence or willful misconduct, AAA agrees to indemnify and hold harmless BBB, its successors and assigns, officers, directors, employees and customers (collectively Indemnitees ), from and against any and all claims and causes of action arising out of any claims of any third parties with respect to AAA’s breach of any of its representations, warranties or covenants contained in this Agreement; provided that AAA receives prompt written notice of and has sole control over the defense and settlement of such claims and actions. AAA shall pay all costs, expenses and reasonable attorneys fees incurred by BBB in connection with any such defense unless BBB chooses to defend itself, in which case it would be at BBB’s own cost. In the event of any such claim or suit, unless BBB chooses to defend itself at its own cost, AAA shall have the right to select counsel and the right to
control the defense and settlement of such suit or claim. AAA further agrees to indemnify and save harmless Indemnitees from all claims or causes of action based upon defective design, manufacture, or a failure of the Products to perform according to their specifications. ?
?8.5 Indemnification by BBB. Except to the extent AAA indemnities BBB pursuant to Section 8.4 above, and except for claims which arise from AAA’s negligence or willful misconduct, BBB agrees to indemnify and hold harmless AAA from any losses from claims of personal injury arising from BBB’s sale and distribution of the Product, or from its breach of any representations, warranties or covenants contained in this Agreement; provided that BBB receives prompt written notice of and has sole control over the defense and settlement of such claims and actions. BBB shall pay all costs, expenses and reasonable attorneys fees incurred by AAA in connection with any such defense, unless AAA chooses to defend itself. This indemnity shall not expire upon termination of this Agreement, but shall remain in force and effect thereafter. ?
?8.6 Limitation of Liability. Except for claims which arise from the negligence or willful misconduct of AAA or AAA’s employees, officers, or agents, the maximum cumulative liability owed by AAA to BBB under Section 8.4 above shall be limited to the total amount paid by BBB to AAA as of the date a court makes a final
determination in any action alleging a breach of AAA’s rights or representations under Section 8.1 or 8.2. Except for claims which arise from the negligence or willful misconduct of BBB or BBB’s employees, officers, or agents, the maximum cumulative liability owed by BBB to AAA under Section 8.5 above shall be limited to the total amount received by AAA from BBB as of the date a court makes a final determination in any action brought by AAA under section 8.5. As used in this section 8.6, a `final determination’ is the date no further appeal is possible in the action at issue. ?
?9. Term Termination ?
?9.1 Term. Subject to Section 9.2, the term of this Agreement begins on the Effective Date and shall continue for a period of 1 year, provided that this Agreement shall automatically renew for successive one year terms, unless either Party gives the other, Party thirty (30) days written notice prior to the expiration of the then current term of such Party’s intent to terminate this Agreement. ?
?9.2 Termination. Either Party may terminate this Agreement in the event the other Party is in material breach of this Agreement (including any failure to timely pay amounts owed to a Party) and the breaching Party fails to cure such breach within thirty (30) days
following its receipt of written notice of such breach from the other Party; provided, however, that such cure period shall be shortened to a period of five (5) days if BBB is in material breach of any of the terms of Section 2 of this Agreement. ?
?9.3 Custom Inventory. In the event of termination of this Agreement by either Party, any custom parts in AAA’s inventory that were ordered specifically to fulfill a purchase order submitted by BBB and accepted by AAA shall be paid for by BBB to AAA within 30 days of the termination of this Agreement. ?
?9.4 Minimum Quantities. BBB agrees to use commercially reasonable efforts to purchase certain initial, quarterly, and annual minimum quantities. With the exception of the Initial Purchase Order, these minimum quantities are not binding financial commitments, except as set forth in Section 9.5(c). Such minimum quantities include: ?
?(a) Initial Purchase Order. The Initial Purchase Order of [*] units total will be delivered in two batches of [*] each, the first to have a requested delivery date of no later than _________,_________,_________(M/D/Y), and the second to have a requested delivery date no earlier than
_________,_________,_________(M/D/Y). ?
?(b) Quarterly Minimum. From the Effective Date of this Agreement, BBB will use commercially reasonable efforts to purchase [*] units per quarter. The first shipment of [*] on the Initial Purchase Order shall constitute the entire minimum with respect to the first calendar quarter during the term of this Agreement and the second shipment of [*] shall be counted towards meeting the minimum with respect to the second calendar quarter. ?
?(c) Annual Minimum. From the Effective Date of this Agreement, of [*] units per calendar year. ?
?9.5 Default. The following are events of default: ?
?(a) Failure to Pay or Breach. If either Party is in default of any material term or condition hereunder and such default continues for thirty (30) days following written notice thereof by the non breaching Party; or ?
?(b) Insolvency. Assignment or Bankruptcy. If either Party is in
material default of its obligations to its vendors or suppliers, becomes insolvent, files or has filed against it a petition under any Bankruptcy Law (which, if involuntary, is unresolved after sixty days); or ?
?(c) Performance. Should BBB fail to meet the quarterly minimum of _________ (_________) units as specified in Section 9.4(b) for any two consecutive quarters. ?
?(d) Right to Cure Default. Notwithstanding Sections 9.5(a), 9.5(b), and 9.5(c) above, either Party will have a 30 day right to cure any deficiency claimed or presented in writing that would constitute default. ?
?9.6 Return of Confidential Information. Upon termination of this Agreement and receipt of written request from either Party, each Party shall return at its expense any and all copies of Confidential Information or materials in its possession or under its control. ?
?9.7 Purchases after Termination. Upon termination of this Agreement (except for termination due to breach of contract by BBB) BBB shall be able to continue to purchase the Product and receive
Third Tier Support for a period of ninety (90) days per the original terms of this Agreement. ?
?10. Source Code and Hardware Design Escrow ?
?10.1 Escrow Agreement. AAA agrees to deposit a full and complete electronic copy of the source code and hardware design to the Product, and all updates and enhancements thereto (the Source Materials ), into escrow with a mutually agreed upon escrow services company. The Parties will enter into a mutually agreeable escrow agreement. BBB shall pay all fees for such escrow and AAA shall bear its own costs in preparing the Source Materials for deposit. The escrow agreement shall provide for the release of such Source Materials upon the occurrence of an Event (as defined in 10.2). ?
?10.2 Release Event. The definitive escrow agreement will provide for the release of the Source Materials to BBB in the event of (a) institution by or against AAA of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of AAA’s debts, provided such proceeding is not dismissed within forty five (45) days after its filing, (b) upon AAA’s making an assignment for the benefit of creditors, or (c) upon AAA’s dissolution or ceasing to do business (each of Sections 10.2(a), (b),
and (c) an Event ). ?
?10.3 Source Code License. Subject to the terms and conditions of this Agreement, upon release from escrow BBB shall have a nonexclusive, nontransferable license to use and modify the Source Materials and distribute the same in accordance with the licenses herein granted. Title in all Source Materials shall remain in AAA and BBB will take all reasonable precautions to maintain the secrecy of the Source Materials. Further, upon the release from escrow of the Source Materials, BBB shall pay royalties to AAA, or AAA’s designate or successor, in the amount of $50 per unit shipped which contains the Source Materials or any portion thereof. ?
?10.4 Right to Use Source Materials. Upon the release from escrow of the Source Materials, BBB agrees to not integrate the Source Materials into products other than the Products. ?
?11. Miscellaneous ?
?11.1 Export Restrictions. BBB shall not re export, either directly or indirectly, the Product (including any technical data, manuals, or other materials delivered pursuant to this Agreement) to any country
or countries to which such re exports are prohibited under the laws of the United States, or the laws of any country in the Territory, including but not limited to any Derivative Works or Modifications. BBB shall obtain appropriate license approvals and certifications necessary, if any, to comply with the applicable export and re export restrictions of the United States or any country in the Territory. BBB understands and recognizes that the Product and other materials made available to it hereunder may be subject to the Export Administration Regulations of the U.S. Department of Commerce and other U.S. government regulations relating to the export of technical data and equipment and products produced therefrom. BBB is familiar with and agrees to comply, and to require Channel Partners and End Users to, with all such regulations, including any future modifications thereof. ?
?11.2 Force Majeure. If either Party is prevented from performing any portion of the Agreement by causes beyond its control, including labor disputes, civil commotion, war, governmental regulations or controls, casualty, inability to obtain materials or services, or acts of God, such defaulting Party shall be excused from performance for a period of delay and for a reasonable time thereafter. ?
?11.3 Governing Law. This Agreement shall in all respects be governed by and interpreted in accordance with the laws of the State
of _________(PLACENAME), without reference to conflict of law provisions. ?
?11.4 Arbitration. Any controversy or claim arising out of this Agreement or a breach thereof shall, on written request of either Party served on the other, be submitted to binding arbitration before a single arbitrator to be conducted in accordance with the Rules and Regulations of the American Arbitration Association (Commercial Division). If the Parties are unable to agree on an arbitrator within thirty (30) days after a Party has served notice of a request to arbitrate, then an arbitrator shall be selected by the American Arbitration Association pursuant to its then current rules, within fifteen (15) days after the Parties are unable to agree on the arbitrator. Arbitration shall take place in the County of _________(PLACENAME). No discovery shall be allowed in such arbitration. The maximum number of days of hearing in such arbitration shall be ten (10), all of which shall occur in a twenty (20) day period. The arbitrators shall issue a written decision in the arbitration giving the findings of facts and reasons for the award made by the arbitrator. The award shall be specifically enforceable in a court of law with jurisdiction over the Parties and subject matter. ?
?11.5 Attorney’s Fees. In any litigation or arbitration between the Parties, the prevailing Party shall be entitled to reasonable attorney
fees and all costs of proceedings incurred in enforcing this Agreement. ?
?11.6 Consequential Damages. EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, UNDER NO CIRCUMSTANCES SHALL EITHER PARTY BE LIABLE TO THE OTHER OR ANY OTHER PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, OR SPECIAL DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT OR A PARTY’S PERFORMANCE OR FAILURE TO PERFORM HEREUNDER. ?
?11.7 The terms of any invoice, acknowledgment, purchase order, or any other document issued in connection with any transaction under this Agreement shall be disregarded except for quantities ordered, prices applicable, freight and insurance charges, and delivery dates specified. The terms of this Agreement shall supersede and void any and all standard terms and conditions on each Party’s respective forms as described in the first sentence of this Section 11.7. ?
?11.8 Binding Nature and Assignment. ...