FORCE MAJEURE. No party will be liable for nonperformance of any of its obligations under this P/O if its nonperformance was due to a Force Majeure Event. A “Force Majeure Event” shall mean any act of God, such as but not limited to; war; riot; civil strife; act of terrorism, domestic or foreign; embargo; governmental rule, regulation or decree; flood, fire, hurricane, tornado, or other casualty; earthquake; strike, lockout, or other labor disturbance; the unavailability of labor or materials to the extent beyond the control of the party affected; pandemics, epidemics, local disease outbreaks, public health emergencies, government imposed quarantines; or any other events or circumstances not within the reasonable control of the party affected, whether similar or dissimilar to any of the foregoing. Upon occurrence of a Force Majeure Event, the non-performing party shall promptly notify the other party that a Force Majeure Event has occurred, its anticipated effect on performance, including its expected duration. The non-performing party shall furnish the other party periodic reports regarding the progress of the Force Majeure Event. The non-performing party shall use reasonable diligence to minimize damages and to resume performance.
INSPECTION. TOYO may inspect the Items and all work in process at all reasonable times and places, including (without limitation) at Vendor’s premises, before, during, and after production, delivery or completion of the Items, as the case may be. TOYO’s failure to inspect shall not relieve Vendor of its obligation to perform as required pursuant to this P/O. If upon inspection before or within a reasonable time after delivery/completion, TOYO determines that the inspected Items or the delivered/completed Items do not conform to the Specifications and/or other requirements of this P/O (“Nonconforming Items”), TOYO may at its discretion (a) if applicable, preserve and retain a small sample of the Nonconforming Items to evidence the nonconformity, reject the balance by notice to Vendor (reserving the right to specify subsequently discovered defects or nonconformity) and hold the balance for Vendor’s disposition or return the balance to Vendor freight collect and offset any expenses against any amounts whatsoever due or owing to Vendor from TOYO, (b) require Vendor, at Vendor’s expense, to promptly repair, replace or rework Nonconforming Items, at TOYO’s sole discretion; and/or (c) repair, replace, keep or rework any Nonconforming Items and recover from Vendor or offset against any amounts owing to Vendor all costs and losses related to replacement, reworking, or repair. No acceptance will be deemed to have occurred on Items with hidden or undetectable defects or if a misrepresentation or concealment has occurred. Failure to deliver as and when required shall give TOYO the right to terminate all or any portion of this P/O without further liability to Vendor and the right to cover and collect or offset all resulting costs and damages.
SAMPLES. In the event Vendor is to provide a sample of the Items (the “Sample”) as identified on the cover page, Vendor shall deliver to TOYO the Sample on or before the Sample Delivery Date(s). Within the Sample Response Time, TOYO shall deliver to Vendor (i) its written approval of the Sample (“Approval Notice”), or (ii) its statement of the changes required to cause the Sample to conform to the Specifications (“Nonconformance Notice”). No approval by TOYO shall be a waiver of Vendor’s obligations under this P/O. Within five (5) days after TOYO’s delivery of any Nonconformance Notice, Vendor shall deliver to TOYO another Sample modified to correct the nonconformance identified in the Nonconformance Notice. Within five (5) days after its receipt of a modified Sample, TOYO shall deliver to Vendor its approval or a second Nonconformance Notice. Should TOYO deliver a second Nonconformance Notice, the process described in this Section shall be repeated unless and until TOYO delivers either an Approval Notice or a notice of cancellation. Any notice of cancellation shall be considered the “notice” required under this P/O and TOYO shall have rights to all remedies provided for therein. Upon the mutual agreement of the terms and conditions of the Change Order and execution of an amendment to this P/O, Vendor shall deliver to TOYO a new Sample within the Sample Delivery Period. “Sample Delivery Period” shall mean the number of days between the date of this P/O and the Sample Delivery Date of the original Sample. TOYO and Vendor shall follow the procedures set forth in this Section for the approval of any new or subsequent Sample.
SUBCONTRACTORS. In the event that TOYO consents to Vendor’s use of subcontractors or independent contractors, Vendor will (i) be solely responsible for the acts or omissions of such parties, (ii) shall ensure such parties comply with Sections 4, 6 and 7 of this P/O and that its contracts with such parties “flow down” the foregoing requirements of the aforementioned Sections, (iii) promptly pay, without the right of reimbursement from TOYO, all costs and expenses of such parties, and (iv) in no way shall be relieved of any of its obligations under this P/O. Vendor shall indemnify TOYO against all Losses arising out of or related to any noncompliance hereunder this Section, including any noncompliance by a subcontractor or independent contractor.
NOTICES. All notices, demands and other communications (collectively, “Notices”) given or made pursuant to this P/O shall be in writing and shall be delivered or sent by facsimile transmission, registered or certified mail (return receipt requested, postage and fees prepaid) or overnight delivery service (only with an overnight delivery service providing tracking) to the address set forth in this P/O. Notices sent by registered or certified mail shall be deemed received on the date of delivery shown on the receipt card, or if no delivery date is shown, the postmark thereon. Notices delivered by overnight delivery service shall be deemed received 24 hours after delivery of the same to the delivery service. Notices transmitted by facsimile transmission shall be deemed received upon telephone confirmation of receipt (confirmation report from fax machine is sufficient). If Notice is received on a Saturday, Sunday or a legal holiday, it shall be deemed received on the next business day. The addresses set forth in this P/O may be changed by giving notice of that change in accordance with this Section.
SEVERABILITY. If any term, covenant, or condition of this P/O or the application of it to any person, entity, or circumstance is held invalid or unenforceable to any extent by a final decision of a court of competent jurisdiction, that term, covenant, or condition shall be deemed amended to the extent and for purposes of that application so as to render it enforceable to the fullest extent permitted by law. The remainder of this P/O shall not be affected and shall be valid and enforced to the fullest extent permitted by law.
INTERPRETATION; HEADINGS. If there is any conflict between the Specifications and/or any drawings, samples, designated type, part number, or catalog description, the Specifications shall govern over drawings, drawings over samples (whether or not approved by TOYO), and samples over designated type, part number, or catalog description. If Vendor finds any ambiguity in the Specifications, drawings, or other requirements of this P/O, before proceeding, Vendor shall consult TOYO and TOYO’s interpretation shall be final. The headings in this P/O are for convenience only and shall have no effect on its interpretation.
WAIVER. No provision of this P/O may be waived unless in writing signed by all of the parties to this P/O, and the waiver of any one provision of this P/O shall not be deemed to be a waiver of any other provision.
REMEDIES CUMULATIVE. Each of the rights, powers and remedies shall be deemed to be cumulative with, and in addition to, all the rights, powers and remedies which either party may have hereunder or under applicable law, and the exercise or partial exercise of any such right, power or remedy shall constitute neither an exclusive election thereof nor a waiver of any other such right, power or remedy.
TIME OF ESSENCE. Time is of the essence with regard to Vendor’s performance.
ELECTRONIC TRANSMISSION. Each party agrees to accept an electronic image of this P/O as an original, and that delivery of a signature by facsimile or other electronic means shall be effective as delivery of a manually executed signature.