1. GOVERNING PROVISIONS. These terms and conditions govern all purchases by Oaklawn Jockey Club, Inc., and each of its affiliated corporations. Each purchase order submitted by any of those corporations is an offer by the purchaser identified on the face of that purchase order (the “Purchaser”) to purchase the goods and/or services described therein, not a confirmation or acceptance of any offer to sell; and acceptance of that offer is limited solely to the terms of that offer and these terms and conditions. Purchaser hereby objects to and rejects any additional or different terms contained on any of the seller’s quotation, acknowledgment, invoice or other forms, or in any other correspondence from the seller. Notwithstanding any language contained in any document of seller stating that the language of such document, or any other document referenced therein supersedes any other language, if the seller chooses to accept a purchase order issued by Purchaser, whether by express acceptance or seller’s delivery of any goods or services, seller specifically acknowledges and agrees these terms and conditions control. Any proposal, confirmation, or any other writing of whatever kind inconsistent with or in addition to the terms of the applicable purchase order and these terms and conditions shall not be binding upon Purchaser. Purchaser’s acceptance of, or payment for, any goods or services will not constitute acknowledgement or acceptance of the seller’s conditions of sale. These terms and conditions, as supplemented by agreed prices and delivery dates set forth in the applicable purchase order, shall constitute the entire agreement between the parties on the subject of purchases by Purchaser from the seller, superseding all prior communications and negotiations.
EACH SALE BY THE SELLER TO THE PURCHASER SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF ARKANSAS, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAWS. THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER SHALL NOT BE GOVERNED BY THE PROVISIONS OF THE 1980 U.N. CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.
2. CHANGES IN ORDERS. No changes or modifications in the specifications, prices or other terms of this order shall be binding on Purchaser unless evidenced by a purchase order change notice issued and signed by Purchaser.
3. DELIVERY, DELAY AND ANTICIPATION. The seller shall deliver the goods in the quantities and shall deliver the goods and/or provide the services within the time, which is of the essence, in accordance with the specifications, drawings or approved samples, and at the prices agreed.
Failure of the seller to comply with such requirements shall entitle Purchaser, in addition to any other rights or remedies, to cancel any order and be relieved of all liability for any undelivered portion. In the event that, for reasons which are beyond Purchaser’s reasonable control, shipment is delayed beyond the last date on which shipment by the method contemplated herein would result in delivery guaranteed on or before the required delivery date herein, the seller shall make shipment by the most expeditious available method of transportation. Any additional cost of such method of shipment shall be borne by the seller. If the occurrence of a contingency the non-occurrence of which was a basic assumption on which seller’s agreement to sell hereunder was predicated affects only a part of seller’s capacity to perform seller’s contracts with Purchaser and others, and to provide for seller’s internal use, for similar goods or services, seller will allocate its available capacity first to the satisfaction of its responsibilities to Purchaser. If shipment is delayed for any cause, the seller must report the same to Purchaser promptly. Failure of Purchaser to insist upon strict performance shall not constitute a waiver of any of the provisions of any order or waiver of any default. Any failure by Purchaser to exercise its remedies with respect to any installment shall not be deemed to constitute a waiver with respect to subsequent installments. The seller shall not unreasonably anticipate delivery by purchasing materials or manufacturing quantities in excess of what is reasonably required to meet Purchaser’s delivery schedule. Items received in advance of Purchaser’s delivery schedule may, at Purchaser’s option, be returned at the seller’s expense or be accepted and payment withheld until the scheduled delivery date.
4. SHIPPING, PACKING AND RISK OF LOSS. Unless otherwise provided on the face of this document, (i) the shipping terms for all goods purchased hereunder and shipped within the United States are F.O.B. destination and (ii) the shipping terms for all goods purchased hereunder and shipped from outside of the United States shall be DDP (as that term is defined in Incoterms 2010, as published by the International Chamber of Commerce, Paris, France) destination; but in each case Purchaser reserves the right to specify the carrier and routing of all shipments. All goods shall be suitably packed, marked with Purchaser’s purchase order number and shipped in accordance with shipping instructions specified herein or in the applicable purchase order. Packing slips must be included with all shipments showing Purchaser’s purchase order number, Seller’s order number, part number and quantity. The Purchaser’s purchase order number must be shown on each packing slip and invoice. No charge shall be made to Purchaser for boxing, packing, crating or carting unless separately itemized on the face hereof.
Regardless of shipping terms, all risk that the ordered goods may be lost, damaged or delayed in transit shall be upon the seller until conforming goods have been actually received, inspected and accepted by Purchaser. The seller shall be liable to Purchaser for any loss or damage resulting from the seller’s failure to act so as to provide adequate protection during shipment. Additional expenses, charges or claims incurred as a result of deviation from the specified route, noncompliance with other shipping instructions, or improper description of the shipment in shipping documents shall be assumed by the seller.
5. INSPECTION, ACCEPTANCE AND REJECTION. All goods purchased hereunder (and work-in-progress relating thereto) shall be subject to inspection and testing by Purchaser at any reasonable time and from time to time before, during or after manufacture and delivery. If any inspection or test is to be made on the premises of the seller, the seller without additional charge shall provide all reasonable facilities and assistance for the safety and convenience of the inspectors in the performance of their duties.
Notwithstanding prior inspections, all goods are subject to final inspection and approval at Purchaser’s facility or other place designated by Purchaser and, notwithstanding any payment that may be made, no goods are deemed accepted until such final inspection and approval.
Purchaser’s inspection before, during or after manufacture and delivery shall not constitute a waiver of the right of subsequent rejection by reason of any undiscovered or latent defect. Purchaser may return or make necessary repairs to rejected goods, in either case at the seller’s expense. The seller shall not replace goods returned as defective unless so directed by Purchaser in writing.
6. WARRANTIES, REMEDIES. The seller warrants that the goods to be furnished hereunder shall (a) be free and clear of all liens and encumbrances, good and merchantable title thereto being in the seller; (b) be free from any defects in design, material or workmanship (latent or otherwise) and of good and merchantable quality; (c) be new, not used, refurbished or reconstituted; (d) conform to Purchaser’s specifications or the sample approved by Purchaser, and with representations with respect thereto previously made by the seller, to the extent any of the foregoing are applicable, as the case may be, and be fit for the use intended by Purchaser; and (e) comply and have been produced, processed, packaged, labeled, delivered and sold in conformity with all applicable federal, state or other laws, administrative regulations and orders, including the Occupational Safety and Health Act of 1971 as amended from time to time. Seller warrants that any services to be furnished hereunder shall be performed (a) in accordance with all applicable federal, state or other laws, administrative regulations and orders, including the Occupational Safety and Health Act of 1971 as amended from time to time, (b) to the highest standards of skill and care in the industry, and (c) so as to accomplish the results identified therefor by the Purchaser. The foregoing warranties shall survive inspection, delivery and payment, and shall run in favor of Purchaser, its successors and assigns and its customers, whether direct or indirect. The seller shall determine the particular purposes for which all goods purchased by Purchaser are required, and shall utilize its skill and judgment to select and furnish suitable goods; the seller acknowledges that Purchaser is relying on the seller to do so.
If any goods ordered hereunder shall be found to be unsatisfactory, defective or inferior in quality, or not to conform to Purchaser’s specifications or any other requirements hereof (including the seller’s warranties), Purchaser may, at its option and in addition to its other remedies, retain such goods at an adjusted price, hold such goods at the seller’s risk and expense pending the seller’s specific instructions, repair such goods at the seller’s risk and expense, or return them to the seller for replacement, credit or refund, as Purchaser shall direct. Purchaser shall also have the right to cancel any unshipped portions of any order. Purchaser shall be reimbursed by the seller for all of its costs and expenses in connection with the testing, storage, handling, repair, packing and/or transporting of any such defective or otherwise nonconforming goods; and the seller shall assume all risk of loss or damage in transit to goods returned by Purchaser pursuant hereto.
7. INDEMNIFICATION BY THE SELLER. The seller shall indemnify Purchaser, its successors, assigns, and customers (whether direct or indirect) against any and all losses, damages and expenses (including attorneys’ fees and other costs of defending any action) which they, or any of them, may sustain or incur as a result of any claim of negligence, willful misconduct, breach of warranty, personal injury or death, copyright, patent, trademark or other intellectual property right infringement, strict liability in tort or based on any other theory of law in connection with the goods/services furnished by the seller hereunder, or as a result of any claim that the goods or services furnished by the seller fail to conform to or comply with any federal, state or local laws, regulations or standards, or based upon or arising out of any construction, installation, services or facilities furnished by the seller under or in connection with any order.
8. PURCHASER’S DAMAGES. The seller shall be responsible for any and all losses, liabilities, damages and expenses, including incidental and consequential damages, and including attorneys’ fees and other costs of prosecuting an action for breach, which Purchaser may sustain or incur as a result of any breach of contract and/or breach of warranty by seller.
9. PATENTS, TRADEMARKS AND COPYRIGHTS. The seller warrants that the sale or use of goods furnished hereunder will not infringe or contribute to infringement of any patent, copyright, trademark, trade secret or other proprietary right or subject Purchaser or its customers (direct or indirect) to royalties in the United States or elsewhere, and seller shall indemnify and save harmless Purchaser, its successors and assigns and its customers (whether direct or indirect), against any and all losses, damages and expenses (including attorneys’ fees and other costs of defending any infringement action) which they, or any of them, may sustain or incur as the result of a breach of this warranty. If the use of goods or services by Purchaser is enjoined as a result of a breach of this warranty, seller shall at its own expense either (a) procure for Purchaser the right to continue using the goods or services, (b) modify the goods or services in a manner reasonably acceptable to Purchaser to render them non-infringing, (c) replace or re-perform the goods or services with non-infringing goods or services reasonably acceptable to Purchaser, or (d) refund the purchase price and the transportation costs paid by Purchaser for the goods or services.
10. FAIR LABOR STANDARDS CERTIFICATE. The seller hereby certifies that all goods furnished hereunder shall have been produced in compliance with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act of 1938, as amended, and of regulations and orders of the Administrator of the Wage and Hour Division issued under Section 14 thereof, and in accordance with all applicable state and federal laws and regulations governing general conditions for labor employed in the production of such goods.
11. NON-ASSIGNABILITY. The seller shall not assign, delegate or subcontract the work to be done hereunder without the prior written consent of Purchaser and any such attempted assignment, delegation or subcontract shall be null and void, but this provision shall not restrict the seller in the procurement of component parts or materials. If any order shall be terminated for Purchaser’s convenience, Purchaser’s liability to the seller with respect to such parts or materials shall not exceed the amount for which the seller would be liable to its supplier or suppliers if such liability were determined on the basis of Section 12 hereof.
12. CANCELLATION BY PURCHASER. Purchaser shall have the right to cancel any order without cause; and Purchaser’s liability for such cancellation shall be limited to the seller’s out-of-pocket cost for work and materials applicable solely to the cancelled order which shall have been expended when notice of cancellation is received by the seller, reduced by the fair market resale value or salvage value of such work-in-process, as applicable. Purchaser may, at its option, cancel any order without liability to the seller (except for conforming shipments previously accepted by Purchaser) in the event the seller shall (a) cease to exist, (b) misrepresent its financial condition in any material respect, (c) make an assignment for the benefit of seller’s creditors, (d) become insolvent or the subject of bankruptcy, receivership or insolvency proceedings or (e) shall commit a material breach in the performance of any part of its obligations hereunder or under any purchase order between Purchaser and seller.
13. INGREDIENTS DISCLOSURE AND SPECIAL WARNINGS AND INSTRUCTIONS. If requested by Purchaser, the seller shall promptly furnish the Purchaser in such form and detail as Purchaser may direct: (a) a list of all ingredients in the goods purchased hereunder; (b) the amount of one or more ingredients; and (c) information concerning any changes in or additions to such ingredients. Prior to and with the shipment of goods purchased hereunder, the seller agrees to furnish to Purchaser sufficient warning and notice in writing, including appropriate labels on goods, containers and packaging of any hazardous material which is an ingredient or a part of any of the goods, together with such special handling instructions as may be necessary to advise carriers, Purchaser and their respective employees of how to exercise that measure of care and precaution which will best prevent bodily injury or property damage in the handling, transportation, processing, use or disposal of the goods, containers and packaging shipped to Purchaser.
14. PURCHASER’S PROPERTY; DESIGN WORK, DRAWINGS, SPECIFICATIONS AND TECHNICAL INFORMATION.Purchaser shall have no obligation to furnish or pay for any design work or drawings required for the performance of any order; provided, however, that Purchaser may, at its option, purchase any such items especially required by the seller for any order at the current value thereof on the seller’s books for income tax purposes and any item so purchased shall be deemed furnished to Purchaser hereunder. Any design, drawing, specification, photograph or other material or part or engineering and manufacturing information heretofore or hereafter furnished to the seller by Purchaser, or the cost of which shall have been paid by Purchaser or included in the aggregate price of any order, whether or not separately itemized hereon, shall be and remain Purchaser’s property, shall be conspicuously identified as such in the seller’s records and by physical marking thereon, shall be promptly delivered to Purchaser upon request, shall be treated as confidential information, shall not be used in processing or manufacturing goods for anyone other than Purchaser and, while in the possession of the seller, shall be the seller’s responsibility and shall be adequately insured at the seller’s expense for the benefit of Purchaser against loss or damage by fire or other hazard. No change shall be made in any design, drawing, specification or other equipment furnished by Purchaser without Purchaser’s express written consent. Any information which the seller may disclose to Purchaser with respect to the design, manufacture or sale or use of the items covered by any order shall be deemed to have been disclosed as part of the consideration for that order, and the seller shall not assert any claim (other than a claim for patent infringement for unauthorized use thereof) against Purchaser by reason of Purchaser’s use thereof.
15. FORCE MAJEURE. Purchaser shall not be liable for any damage as a result of any delay or failure to accept delivery due to any act of God, act of the seller, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown or other labor difficulties, war, riot, delay in transportation, defaults of common carriers, inability to obtain necessary labor, materials, or manufacturing facilities or, without limiting the foregoing, any other delays beyond the Purchaser’s control which shall affect the Purchaser’s ability to receive and use the goods or services.
In the event of such delay, the date of delivery shall be extended for a period equal to the time lost because of the delay.
16. TAXES. Purchaser shall not be liable for any federal, state or local taxes, tariffs, duties, customs or assessments in connection with the sale, purchase, transportation, use, or possession of the goods ordered hereunder or under any purchaser order, except to the extent expressly set forth otherwise in the applicable purchase order.
17. REMEDIES CUMULATIVE. The rights and remedies of the Purchaser set forth herein shall be in addition to any rights or remedies which Purchaser may otherwise have. Without limiting the generality of the foregoing, Purchaser shall have the right to deduct or set off any amounts owed by seller or seller’s affiliates to Purchaser against any amounts payable by Purchaser under a purchase order.
18. COMPENSATION TO PURCHASER’S AGENTS. No employee or other agent of Purchaser is permitted to solicit or accept any compensation or payment from any supplier, however characterized, in connection with the placement of any order; and any rebate, discount, incentive or other amount offered to Purchaser in that connection shall be reflected in seller’s invoice.
19. OWNERSHIP OF DELIVERABLES.
19.1. As used in these Terms and Conditions, the term “deliverables” refers to all tangible work product of services performed pursuant to an order placed by Purchaser, including but not limited to samples, prototypes, documents and other tangible media containing or embodying code, software, patents, trademarks, inventions, ideas or other information developed in the course of the performance of such services The definition of deliverable shall be interpreted consistently with the context of the associated order so as to transfer from seller to Purchaser such tangible work product as the context requires for Purchaser to obtain the full benefit of the services performed under the order.
19.2. Except as otherwise provided in this Section 19, all deliverables hereunder shall be the sole and exclusive property of Purchaser or its nominee. Purchaser shall own all the rights comprised in the copyright to any work of authorship (including all contributions to collective works) comprising deliverables hereunder; and, to the extent permissible under the copyright laws of the United States, such works shall be deemed works for hire on behalf of Purchaser.
19.3. Subject to the provisions of subsection 19.4 below, seller hereby assigns to the Purchaser or its nominee all right, title and interest in the United States and all foreign countries, in and to the deliverables hereunder, including among other things any copyright registration, mask work protection, design registration, or other protection thereof. Again subject to the provisions of subsection 19.4 below, Purchaser or its nominee shall have the sole right to file and prosecute applications for copyright registrations, mask work protection, design registrations or other protection in respect of the deliverables hereunder. Seller shall, at all times, promptly and fully assist Purchaser in every proper and legal way to obtain, maintain and protect the rights of Purchaser in the deliverables hereunder, and shall supply evidence and testimony and sign all papers deemed necessary by Purchaser or its nominee to obtain, maintain and protect such rights.
19.4. If seller, prior to or within five (5) days of delivery thereof, identifies with particularity any portions or aspects of the deliverables hereunder which were not conceived, created or first fixed in a tangible medium in the performance of the services provided hereunder (hereinafter, “Existing Intellectual Property”), and provides clear and convincing proof thereof, then Purchaser’s or its nominee’s rights with respect to the Existing Intellectual Property shall be limited to a world-wide, royalty-free, perpetual, nonexclusive license to make, use and duplicate the Existing Intellectual Property, with right of sublicense and assignment, under any and all intellectual property rights (including copyrights and mask work protection) which seller may have or may come to have.
19.5. Seller shall not at any time take, or induce any action or omission inconsistent with or tending to diminish or impair the rights of Purchaser in and to the deliverables hereunder or “Confidential Information” (as hereinafter defined) and shall not use any deliverables hereunder (other than Existing Intellectual Property) or Confidential Information for any purpose whatsoever other than in connection with tasks or services performed in behalf of Purchaser, or disclose the same to any third party without Purchaser’s consent.
20.1. The term “Confidential Information” means any and all deliverables hereunder, other than Existing Intellectual Property, and any and all information which:
(a) is provided to seller by Purchaser,
(b) concerns or relates to any aspect of the business of Purchaser or the business of any of Purchaser’s affiliated corporations, or
(c) is, for any reason, identified and treated as confidential by Purchaser,
except such information which seller can prove, by clear and convincing evidence:
(d) at the time Purchaser issues its first order to seller, is publicly and openly known and in the public domain,
(e) after Purchaser issues its first order to seller, becomes publicly and openly known and in the public domain through no fault of seller, or
(f) is in seller’s possession and documented before Purchaser issues its first order to seller, lawfully obtained by seller other than from Purchaser and not subject to any obligation or duty of confidentiality.
20.2. Seller shall not use, or induce others to use, any Confidential Information for any purpose whatsoever other than the performance or delivery of the deliverables hereunder, nor at any time, directly or indirectly, print, copy, or otherwise reproduce, in whole or in part, any Confidential Information, without prior consent of Purchaser. Seller shall not disclose or reveal any Confidential Information to anyone except those of seller’s employees with a definable need to know the same in connection with the performance or delivery of the deliverables.
20.3. Upon completion or delivery of the deliverables, or upon earlier request by Purchaser, seller shall deliver over to Purchaser all Confidential Information, all documents, media, items and work product of the deliverables comprising, embodying, or relating to, the Confidential Information, and any other documents or things belonging to Purchaser that may be in seller’s possession. Seller shall deliver over to Purchaser all copies of documents, data, software, programs, and things, including all recordings on magnetic, optical or other media, and all listings, comprising or deliverables or Confidential Information and shall not take or retain any copies thereof, except that seller may, at its option, retain one copy of all Confidential Information for the sole purpose of establishing seller’s compliance with its obligations under this Agreement.
20.4. Seller will not, without in each case Purchaser’s prior written consent, (a) use the name, trademark, service mark, trade dress, logo or other identifying marks of Purchaser in any sales, marketing or publicity activities or materials, and/or (b) issue any public statement regarding its relationship with Purchaser.
21. PRICES; SECURITY INTEREST. All prices are firm, and no additional charges will be allowed unless specifically provided for on the face hereof. All time periods for determining payment due dates and availability of discounts commence with Purchaser’s receipt of the deliverables or receipt of an invoice, whichever is later. By accepting this order and/or shipping deliverables hereunder, seller warrants and agrees that the price charged to Purchaser hereunder shall not be higher than the price at which seller is currently selling the same or similar deliverables to other customers, or has sold such deliverables to other customers in the United States within the previous twelve (12) months.
If Purchaser is to make any payment before Purchaser’s receipt of the deliverables, seller grants Purchaser a security interest in all the deliverables to be furnished hereunder, together with (a) all component parts, supplies, machinery, tools, raw material and other equipment and inventory of seller purchased or identified for use in seller’s performance of its obligations hereunder, or incorporated into the deliverables to be furnished hereunder, (b) all of the seller’s rights by virtue of down payments and purchase orders for and all of seller’s other general intangibles relating to such component parts, supplies, machinery, tools, raw material and other equipment and inventory, (c) all drawings, blueprints, plans, specifications and other documents prepared in or in connection with seller’s performance of its obligations hereunder, and (d) all accessions and attachments to and all proceeds and products of any of the foregoing. Upon any breach of any term or condition hereof, or if seller shall cease to exist or become insolvent or the subject of any federal or state bankruptcy, insolvency, reorganization or like proceeding, Purchaser shall have all the rights and remedies that a secured party has under the Uniform Commercial Code for debtor default. Seller authorizes Purchaser to file such financing statements as Purchaser may reasonably consider necessary or appropriate to perfect its security interest.
22. SERVICE PARTS. Seller will furnish service parts necessary for the repair, maintenance and operation of the deliverables ordered for a period of not less than seven (7) years following the delivery of such deliverables, and shall make such parts available for purchase by Purchaser at the most favorable prices contemporaneously offered by seller to its other customers.
23. SELLER’S INSURANCE. Seller shall procure and maintain, at its own expense, such customary public liability insurance, including product liability, contractual liability, completed operations, contractor’s liability and protective liability, automotive liability insurance (including non- owned automotive liability), workers’ compensation and employer's liability insurance with an insurance company rated A- or better by A.M. Best Company, or its successor, sufficient to appropriately adequately protect Purchaser against damages, liabilities, claims, losses and expenses arising in connection with any purchase order issued by Purchaser, as reasonably required by Purchaser. All insurance coverage provided to Purchaser by seller pursuant to these terms and conditions shall be primary insurance with respect to seller’s obligations, and shall not be contributing insurance with any of Purchaser’s policies of insurance, and Purchaser shall be named as an additional insured thereunder where reasonably requested by Purchaser and customarily allowed by the applicable insurance carrier, as to matters relating to the purchase order and delivery or performance thereunder, including related activities on Purchaser's premises. Seller agrees to submit certificates of insurance evidencing its insurance coverage when requested by Purchaser and to maintain all insurance coverage evidenced by such certificates while these terms and conditions remain in effect with respect to any purchase order. If there is a material change in or cancellation of the insurance evidenced by any certificate or insurance provided to Purchaser, then seller (or the applicable insurance carrier) shall provide Purchaser with at least thirty (30) days prior written notice thereof.
24. LIMITATION ON PURCHASER’S LIABILITY. In no event shall Purchaser be liable to seller for any indirect, incidental, consequential, punitive, special, or exemplary damages or penalties of any description, regardless of the form of the action or the theory of recovery, even if Purchaser has been advised of the possibility of those damages. Purchaser’s liability on any claim of any kind for any loss or damage arising out of or in connection with or resulting from any purchase order, or from the performance or breach thereof, shall in no case exceed the price allocable to the goods and/or services which gives rise to the claim. Any action resulting from any breach on the part of Purchaser as to the goods and/or services purchased under any purchase order must be commenced within one (1) year after the cause of action has accrued.
25. MISCELLANEOUS. If any provision of these terms and conditions conflicts with the law under which these terms and conditions are to be construed or is held invalid or unenforceable by a court of competent jurisdiction, that provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law. The provisions of these terms and conditions and any purchase order that expressly or by their nature contemplate performance or observance after the purchase order terminates or expires will survive and continue in full force and effect. All notices given in connection with these terms and conditions must be in writing and will be deemed given only when (a) hand delivered, (b) one business day following the day sent by documented overnight delivery service to the party whom the notice is directed at its address indicated in the applicable purchase order or otherwise provided by such party in writing, or (c) sent by electronic mail to the party whom notice is directed at the electronic mail address specified in the applicable purchase order or otherwise provided by such party in writing, provided, that if notice is provided to Purchaser under subsection (c) herein, written confirmation of such notice shall also be provided to Purchaser as described in subsection (a) or (b). Each party irrevocably agrees that any legal action, suit or proceeding brought by it in any way arising out of these terms and conditions or any purchase order must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the state courts of Garland County, Arkansas or the Federal courts located in the Western District of Arkansas, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the state and Federal courts located in Arkansas, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party.
To the fullest extent permitted under applicable law, Purchaser and Seller each irrevocably waive their respective rights to trial by jury of any cause of action, claim, counterclaim or cross-complaint in any action or other proceeding brought by the other with respect to any matter arising out of, or in any way connected with or related to any purchase order or any portion of any agreement which is related to any purchase order, whether based upon contractual, statutory, tortious or other theories of liability. Notwithstanding the foregoing, claims for equitable relief to enforce any obligation of seller with respect to a purchase order may be brought in any court with proper jurisdiction within the United States. In the event of any adversarial proceeding(s) between the parties arising out of any purchase order, the prevailing party will be entitled to recover from the other party, in addition to any other relief awarded, all reasonable expenses the prevailing party incurs in such proceeding(s), including reasonable attorneys’ fees and expenses and court costs.