Command Alkon Terms and Conditions of Purchase

Last modified: June 1, 2025

Overview

These Terms and Conditions of Purchase (these “Terms”) set forth the terms and conditions under which an entity or individual vendor (individually or collectively, as the context requires, “Supplier”) provides any services (“Services”) and/or products (“Products”) to COMMAND ALKON INCORPORATED or any of its Affiliates (collectively, “Command”) pursuant to an Order. By signing an Order or by providing any Products and/or Services described in such Order to Command, Supplier hereby agrees to be bound by these Terms.

Contents

1. Definitions

  1. “Acceptance” or “Accepted” shall have the meaning set forth in Section 3(e).
  2. “Affiliates” shall mean any person controlling, controlled by or under common control with the relevant Party.
  3. ”Agreement” shall have the meaning set forth in Section 2.
  4. “Command” shall have the meaning set forth in the first paragraph of these Terms.
  5. “Confidential Information” means all information disclosed by either party (the “Disclosing Party”) to the other party (the “Receiving Party”), including oral communications, that is designated as “confidential” (or with a similar legend) or that a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure. “Confidential Information” does not include information that: (i) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (ii) was or is obtained by the Receiving Party from a third party not known by the Receiving Party to be under an obligation of confidentiality with respect to such information; (iii) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the parties; or (iv) was or is independently developed by the Receiving Party without use of or reference to such Confidential Information.
  6. “Deliverables” shall have the meaning set forth in Section 3(a).
  7. “Force Majeure Event” shall have the meaning set forth in Section 12(e).
  8. “Invoice” shall mean a written invoice from Supplier for fees and charges due from Command under this Agreement or any Order, as applicable, and shall contain reasonably satisfactory detail as may be required by Command in writing, including without limitation a description of the items, quantities, and unit prices for all Services and Products invoiced and any applicable tax and VAT information.
  9. “Order” shall mean a written purchase order, addendum, separate agreement, statement of work, service order, or work order, including any change order associated therewith, mutually agreed upon and executed by the Parties hereto with respect to any Products or Services to be provided by Supplier.
  10. “Party” or “Parties” shall mean Supplier and Command, individually or collectively as appropriate.
  11. “Products” shall have the meaning set forth in the first paragraph of these Terms.
  12. “Services” shall have the meaning set forth in the first paragraph of these Terms.
  13. “Supplier” shall have the meaning set forth in the first paragraph of these Terms.
  14. “Supplier Party” or “Supplier Parties” shall have the meaning set forth in Section 3(b).

2. General

Each Order and these Terms (together with any documents incorporated herein by reference, collectively, this “Agreement”) shall comprise the entire agreement between the Parties, and supersede all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. This Agreement expressly limits acceptance to the terms stated herein. Any additional or different terms or conditions, whether in a quotation, acknowledgement, acceptance, invoice or otherwise, are rejected and will not apply to the applicable Order unless expressly assented to in writing by an authorized representative of the Parties, notwithstanding any contrary language that the acceptance or use of, or payment for, the purchase of Products or Services or any other act or failure to act by Command, constitutes acceptance of any different or additional terms or conditions. Fulfillment of part or all of the applicable Order constitutes acceptance of these Terms.

3. Products and Services; Delivery; Acceptance

  1. Products and Services. Supplier will perform its obligations to Command in accordance with the specifications set forth in the applicable Order, which will set forth, in detail, any Services and corresponding deliverables (collectively, the “Deliverables”) and/or Products provided under this Agreement.
  2. Personnel. Supplier will assign (or cause to be assigned) sufficient employees, agents, or contractors (each a “Supplier Party” and collectively, “Supplier Parties”) to provide the Services in accordance with this Agreement. All Supplier Parties will possess suitable competence, ability and qualifications to perform the Services they are to perform. Supplier will be solely responsible for all payments (including, without limitation, all wages, taxes, withholdings, contributions, unemployment insurance payments) to all Supplier Parties and will be fully responsible for the acts and omissions of all Supplier Parties.
  3. Delivery. Supplier shall prepare and ship all Products requiring shipment in a manner that follows good commercial practice, is acceptable to common carriers, and is adequate to ensure safe arrival and in accordance with the applicable Order. Notwithstanding any prior inspections, Supplier bears all risk of loss, damage, or destruction prior to Acceptance (defined below) by Command and any warranties on Products will commence upon Acceptance of such Products by Command. Supplier shall deliver the Deliverables to Command as instructed by Command or as set forth in the applicable Order. Unless otherwise specified in the Order, all shipments shall be FOB Destination or, for international shipments, DDP (Incoterms 2020).
  4. Delays. Supplier will meet all milestones set forth in the applicable Order and notify Command in writing of material delays (including shipment delays) and identify for Command’s consideration and approval specific measures to address such delay and mitigate the risks associated therewith. Time is of the essence in Supplier’s performance of this Agreement. In the event that any milestone or other time deadline is not met by Supplier as a result of Command’s failure to meet its obligation(s) under this Agreement, the applicable milestone or time deadline will be extended by the length of the delay caused by Command.
  5. Acceptance. Following delivery of the applicable Product and/or Deliverable, Command may inspect, review, evaluate and/or test whether such to determine, in Command’s sole discretion, whether the Products conform to its applicable specifications, acceptance criteria, and any other requirements (the “Acceptance Criteria”). “Acceptance” shall be deemed to occur upon the earlier of: (i) Command’s written notification of acceptance of Products, or (ii) ninety (90) days after Supplier’s delivery, Command’s use of the Products and/or Deliverable to Command in a production environment. If any Products or Deliverables do not comply with the Acceptance Criteria, Command shall notify Supplier of the same and the 90-day period above shall be deemed tolled. Thereafter, Supplier shall promptly remedy or replace any such Products or Deliverables, at Supplier’s cost and expense, to comply with the Acceptance Criteria. If, following such remedy or replacement, Command reasonably determines that such Products do not satisfy the Acceptance Criteria, then Command will promptly notify Supplier in writing, and Command may terminate the Agreement and/or applicable Order or any portion thereof by giving written notice of such termination to Supplier, and Supplier will refund to Command within fifteen (15) days of written notice of termination, all fees, costs and expenses incurred by Command for such defective Products and/or Deliverables. Payment of any Invoice does not constitute Acceptance of any Services or Products, and any Acceptance will not waive, modify, or limit Supplier’s obligation to comply with this Agreement.
  6. Command Materials. To the extent that, in connection with this Agreement and pursuant to an Order, Command (or a third party on Command’s behalf) delivers any assets, equipment, software, hardware, designs, or other materials to Supplier or any of its agents or representatives (collectively, “Command Materials”), Supplier will: (i) use Command Materials solely in connection with its performance of the Services and creation of the Deliverables; (ii) use due care in protecting Command Materials and assume all risk of loss and damage to such Command Materials; and (iii) immediately return Command Materials to Command upon the earlier to occur of Command’s request therefor or any termination of this Agreement. Except for Supplier’s limited right to use Command Materials as set forth in the foregoing clause (i), Command will retain all rights in and to all Command Materials. COMMAND MATERIALS ARE PROVIDED BY COMMAND TO SUPPLIER ON AN “AS IS, WHERE IS” BASIS FOR USE ONLY IN CONNECTION WITH THIS AGREEMENT AND FOR NO OTHER PURPOSES WHATSOEVER.

4. No Obligation to Purchase; Payment Terms

  1. No Obligation to Purchase Products or Services. Except to the extent expressly set forth in writing by the Parties, nothing herein obligates Command to (a) exclusively purchase any Products, Deliverables or Services from Supplier, and (b) order, purchase or otherwise acquire any Products or Services. Notwithstanding the foregoing, if Supplier provides any Products or Services in the absence of an Order, these Terms will apply with respect thereto. Command shall have the right to order, purchase or otherwise acquire any Products or Services for its own benefit and for the benefit of its Affiliates, and at Command’s option, all rights, remedies and benefits conferred or otherwise granted to Command under these Terms shall also be deemed to be confirmed and granted to such Affiliates, and such Affiliates deemed third party beneficiaries pursuant thereto.
  2. Payment Terms. In consideration of any Products, Deliverables or Services provided under this Agreement, Supplier will provide Command with Invoices for fees and charges due from Command under an Order. Invoiced amounts for which no due date is otherwise established will be due and payable within forty-five (45) days from Command’s receipt of an undisputed invoice submitted in conformance with the requirements of this Section. Failure to pay Invoices for disputed items which the Parties in good faith are attempting to resolve shall not constitute a breach of this Agreement or provide a basis for the cessation of delivery of any Products or Services under any Order. Unless expressly agreed in writing, in no event will Command be required to pay an Invoice until the applicable Products and Services have been Accepted by Command.
  3. Taxes and Fees. Except as otherwise provided in an Order, the amounts to be paid by Command to Supplier do not include taxes. Command will pay Supplier any sales, use, or value-added taxes it owes for the Services and/or Products and that applicable law requires Supplier to collect from Command, provided that such taxes are stated on the applicable Invoice. If Command provides Supplier with a valid exemption certificate, Command will not collect the taxes covered by such certificate. If applicable law requires Command to withhold taxes from payments to Supplier, Command may withhold those taxes and pay them directly to the appropriate taxing authority and, in such case, Command will deliver to Supplier an official receipt for such taxes. Command is not liable for any taxes that Supplier is legally obligated to pay, including net income or gross receipts taxes, franchise taxes, and property taxes, or otherwise resulting from Supplier’s failure or delay to file any return or information required by law, rule, or regulation with respect thereto.

5. Intellectual Property

  1. All Deliverables are “works made for hire,” as that term is defined in the Copyright Act of 1976 (17 U.S.C. §101, et. seq.). To the extent that any Deliverable does not qualify as a “work made for hire,” Supplier hereby assigns and agrees to assign all right, title and interest, including, without limitation, all intellectual property rights whatsoever, in and to the Deliverables to Command without any restrictions. At Command’s request, during and after the term of this Agreement, Supplier will assist and cooperate with Command in all respects, will execute documents, and will take such further acts reasonably requested by Command to enable Command to acquire, transfer, maintain, perfect and enforce its intellectual property rights and other legal protections for the Deliverables.
  2. IP Remedies. If any Deliverable, Service or Product, or any portion of any of the foregoing, or the use thereof, is held or claimed to constitute a third-party infringement, misappropriation or violation, or its use is enjoined, or likely to be enjoined, by any action, lawsuit or claim, then Supplier, at its sole expense, will undertake to procure for Command the right to continue using such Deliverable, Service or Product. If the right cannot be procured on terms and conditions acceptable to Supplier in its reasonable judgment, Supplier must, at its sole expense: (i) modify such Deliverable, Service or Product to render it non-infringing but functionally equivalent without impairing in any material respect its functionality or performance, (ii) substitute such Deliverable, Service or Product with a replacement that is non-infringing but equivalent in functionality and performance, or (iii) in the event that none of the foregoing options are available to Supplier, refund to Command the sums actually paid for such Deliverable, Service or Product, as well as any other Deliverable, Service or Product that is rendered unnecessary or useless thereby.

6. Data Privacy and Security; Confidentiality

  1. Data Privacy and Security. Supplier: (i) has and shall implement, monitor, and maintain information security policies and safeguards and will use industry-standard safeguards and security technologies (including, if applicable, encryption, password protection and changes, and firewall protection) to protect against the disclosure, destruction, loss, or alteration of Command’s Confidential Information and Command Materials; (ii) shall comply with all applicable data protection laws and regulations in connection with its performance of the Services and/ or supply of Products hereunder; (iii) where required by applicable data privacy legislation, shall comply and ensure that its actions under this Agreement are consistent with Command’s data privacy requirements set forth in Command’s Data Processing Addendum (available at https://commandalkon.com/data-processing-addendum/) and Privacy Policy (available at https://commandalkon.com/privacy-policy/), (iii) shall provide to Command evidence of compliance with the aforementioned safeguards, measures, and practices upon reasonable request; and (iv) if required by Command, shall execute additional supplemental data protection terms, including, but not limited to, a data processing agreement and/or the standard contractual clauses for the transfer of personal data to processors established in third countries under Directive 95/46/EC of the European Parliament and of the Council (or any successor thereto).
  2. Confidentiality. The Receiving Party shall maintain the Confidential Information in strict confidence, shall not make any use of Confidential Information except as required to exercise its rights and perform its obligations under this Agreement and shall not disclose any Confidential Information to any person or entity except (a) on a need-to-know basis to its to its employees, representatives or contractors who are under confidentiality obligations at least as restrictive as contained herein, and the Receiving Party accepts responsibility for a breach of this Agreement by any party to whom it provides access to the Confidential Information, or (b) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure. The Receiving Party agrees to protect Confidential Information from unauthorized use and disclosure to the same extent (but using no less than a reasonable degree of care) that it protects its own Confidential Information of a similar nature. Unless notification is delayed by applicable law or the actions or demands of a law enforcement agency, the Receiving Party shall promptly report to the Disclosing Party, any unauthorized acquisition, use, or disclosure of Confidential Information. Upon expiration or termination of this Agreement, the Receiving Party will return or destroy, at the Disclosing Party’s option, all the Disclosing Party’s Confidential Information in its possession or control, and at the Disclosing Party’s request, certify in writing to the Disclosing Party that the Disclosing Party’s Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted. Each Party agrees that a breach or threatened breach by such Party of any of its confidentiality obligations under this Agreement, or an infringement by such party of any of the other Party’s intellectual property rights, may cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies available at law, in equity or otherwise.

7. Termination

This Agreement may be terminated immediately upon written notice by either party if the other party breaches any material provision of this Agreement and fails to cure such breach within thirty (30) days after receipt of written notice of such breach. In addition, Command may terminate this Agreement: (a) immediately if Supplier (i) becomes insolvent or admits its inability to pay its debts when due, (ii) makes an assignment for the benefit of creditors, (iii) files or has filed against it a petition in bankruptcy or seeking reorganization, (iv) has a receiver appointed, or (v) institutes any proceeding for the liquidation or winding up of its business; and (b) for any reason or no reason upon not less than thirty (30) days’ prior written notice to Supplier. Upon expiration or termination of this Agreement, Command will have no further obligation to Supplier except to pay for Deliverables pursuant to an acceptable Invoice, Deliverables, Services or Products that have been completed and accepted. Supplier will refund any pre-payments made by Command with respect to any Deliverables, Services and Products that have not yet been provided by Supplier. Notwithstanding the foregoing, provisions of this Agreement relating to limitation of liability, indemnity, payment, confidentiality, security, privacy, and other provisions which by their nature are intended to survive will survive any termination or expiration of this Agreement.

8. Representations and Warranties

Supplier represents and warrants throughout the term of this Agreement that: (a) no authorization or approval from any third party is required in connection with Supplier’s execution, delivery, or performance of this Agreement; (b) the Services will be performed and the Deliverables will be provided in a competent, professional and workmanlike manner using fully qualified personnel, in accordance with the milestones and time frames set forth in the applicable Purchasing Document, consistent with industry standards; (c) the Products will be new (unless otherwise expressly set forth in the Order), and the Deliverables and Products will be free from security interests, liens, and encumbrances; (d) the Services, Deliverables and Products will not violate, infringe, or misappropriate any right (including, without limitation, any intellectual property right) of any third party, and Command’s exercise of any of its rights in and to the Services, Deliverables and Products will not violate, infringe, or misappropriate any such rights of any third party; (e) all Services, Deliverables and Product will be free from defects in materials or workmanship, perform without material error, be high-quality, and will conform: (i) to the specifications and descriptions set forth in the applicable Order; and (ii) to any documentation and specifications applicable to such Services, Deliverables or Products. All Products will be merchantable and fit for their intended purpose; (f) Supplier will comply with (i) Command’s Supplier Code of Conduct (available at https://commandalkon.com/wp-content/uploads/2024/09/SupplierCodeOfConduct.pdf), and (ii) all laws, rules and regulations in its performance of its rights and obligations under this Agreement, including without limitation any applicable export control laws and regulations; (g) Supplier will obtain all governmental, quasi-governmental, and third-party certifications, licenses, permits, and the like that are required in connection with its performance under this Agreement; (h) to the extent that Deliverables contain any software, Supplier will not include any “open source” code (as defined by the Open Source Initiative) or “Free” code (as defined by the Free Software Foundation) (collectively, “Open Source Code”) in the Deliverables, or create the Deliverables in such a way that it is compiled with or linked to Open Source Code, without Command’s prior review and approval of the applicable license agreement.

9. Indemnification

Supplier shall defend, indemnify and hold harmless Command, its affiliates and their respective officers, employees, directors, shareholders, representatives, customers, vendors, licensees, successors, and assigns (collectively, the “Command Indemnified Parties”) from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs or expenses of whatever kind (including without limitation attorneys’ and other professional fees) on account of any claim, suit, action, demand, or proceeding made or brought by a third party against any of the Command Indemnified Parties (individually, a “Claim”) and collectively, the “Claims”) arising out of or resulting from: (a) any actual or alleged breach of any representation, warranty or obligation set forth in this Agreement; (b) any illegal acts, grossly negligence, fraud or willful misconduct of Supplier or any Supplier Party; (c) any defect or alleged defect in any Product; (d) any claim of bodily injury, death, or property damage caused by Supplier; or (e) the Services, the Deliverables or Products allegedly violating, infringing, or misappropriating any right (including, without limitation, any intellectual property right) of any third party. Command shall only indemnify, defend, and hold harmless Supplier from and against any Claims to the extent such Claims are due solely to Command’s illegal acts gross negligence, fraud or willful misconduct. Supplier shall have no liability for Command’s use of any Products, Services or Deliverables outside the scope set forth in an Order. Command will promptly notify Supplier of any Claim for which indemnity is being sought and will reasonably cooperate with Supplier in the defense and/or settlement thereof. Supplier will have the sole right to conduct the defense of any Claim for which Supplier is responsible hereunder, provided that Supplier may not settle any Claim without Command’s prior written approval. Command may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if Supplier refuses to fulfill its obligation of defense, Command may defend itself and seek reimbursement from Supplier.

10. LIMITATION OF LIABILITY

  1. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) BREACH OF CONFIDENTIALITY OBLIGATIONS BY EITHER PARTY, (III) SUPPLIER’S INDEMNIFICATION OBLIGATIONS, (IV) DAMAGES RESULTING FROM DEATH OR BODILY INJURY ARISING FROM SUPPLIER’S ACTS OR OMISSIONS, OR (V) FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY EITHER PARTY, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE (WHETHER BASED IN CONTRACT, TORT, WARRANTY OR OTHERWISE, INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED) TO THE OTHER PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT THIS AGREEMENT (INCLUDING DAMAGES FOR LOSS OF PROFIT, GOODWILL, USE OR LOSS OF DATA), EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
  2. EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) BREACH OF CONFIDENTIALITY OBLIGATIONS BY EITHER PARTY, (III) SUPPLIER’S INDEMNIFICATION OBLIGATIONS, (IV) DAMAGES RESULTING FROM DEATH OR BODILY INJURY ARISING FROM SUPPLIER’S ACTS OR OMISSIONS, OR (V) FRAUD, GROSS NEGLIGENCE OR WILLFUL MISCONDUCT BY EITHER PARTY, THE ENTIRE LIABILITY OF EACH PARTY TO THE OTHER PARTY ARISING OUT OF OR IN RELATION TO THIS AGREEMENT FOR ANY LOSS OR DAMAGE, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED THE AMOUNTS PAID AND PAYABLE BY COMMAND TO SUPPLIER UNDER THIS AGREEMENT.

11. Insurance

Supplier will, during the term of this Agreement and a for a period of two (2) years thereafter, maintain, at its sole expense, insurance in such amounts and with such types of coverage as is usual and customary for a sophisticated, prudent company in Supplier’s industry, with coverage limits that appropriate for the Products, Services and Deliverables supplied under this Agreement. Upon Command’s request, Supplier shall provide Command with a certificate of insurance evidencing such insurance coverages.

12. Miscellaneous

  1. Governing Law. This Agreement is governed by the laws of the State of Alabama, without reference to its choice of law rules to the contrary. The Parties hereby irrevocably consent to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in the federal courts of the United States or the courts of the State of Alabama in each case located in the city of Birmingham and County of Jefferson, Alabama. To the extent permitted by law, choice of law rules, the United Nations Convention on Contracts for the International Sale of Goods, and the Uniform Computer Information Transactions Act as enacted shall not apply. Notwithstanding the foregoing, either Party may at any time seek and obtain appropriate legal or equitable relief in any court of competent jurisdiction for claims regarding such Party’s intellectual property rights. Each Party hereby irrevocably waives, to the fullest extent permitted by law, any and all right to trial by jury in any legal proceeding arising out of or relating to this Agreement. To the extent allowed by law, the English version of this Agreement is binding and other translations are for convenience only.
  2. Assignment; Successors and Assigns. Supplier shall not assign any rights, or delegate or subcontract any obligations, under this Agreement without the Command’s prior written consent. Any assignment in violation of the foregoing shall be deemed null and void. Command may freely assign its rights and obligations under this Agreement at any time. Subject to the limits on assignment stated above, these Terms will inure to the benefit of, be binding upon, and be enforceable against, each of the Parties hereto and their respective successors and assigns.
  3. Independent Contractors; Publicity. Each of the Parties are independent contractors and nothing contained in these Terms shall be construed to constitute Command and Supplier as partners, joint ventures, co-owners or otherwise as participants in a joint or common undertaking. Except as otherwise set forth in this Agreement, nothing in this Agreement is intended to give rise to any third-party beneficiary of any rights, remedies or other benefits under or by reason of this Agreement. Neither Party shall publish promotional material, publications, or press releases or other forms of publicity with respect to the other Party without the prior written consent of the other Party.
  4. Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective only if it is in writing, references this Agreement, and is sent using: (i) electronic signature or industry-recognized digital transaction management service, (ii) certified or registered mail; (iii) a nationally recognized overnight courier, to the appropriate party at the address set forth on the Order, or (iv) email to the email addresses set forth on the applicable Order, with a copy, in the case of Command, to legal@commandalkon.com. Each party hereto expressly consents to service of process by registered mail. Notices are deemed given upon receipt if delivered by Command, two (2) business days following the date of mailing, one (1) business day following delivery to a courier, or when sent if sent by email with receipt confirmed.
  5. Force Majeure. Neither Party will be liable for any default or delays in the performance by a Party of its obligations under this Agreement (i) if and to the extent caused by: (a) site-specific acts of war or terrorism; (b) fire, earthquake, flood, hurricane, riots, pandemics or other acts of God; (c) catastrophic failures of telecommunication service or telecommunications outage not caused by the obligated Party; or (d) direct government action or order directed or taken specifically towards a Party, in each case that cannot reasonably be prevented, circumvented and mitigated by the non-performing Party through the use of disaster recovery plans, alternate sources, workaround plans, or other reasonable means, and (ii) to the extent such Party is without fault in any resulting defaults or delays (“Force Majeure Event”). The Party affected by a Force Majeure Event shall (A) provide the other Party with prompt notice of the nature and expected duration of the Force Majeure Event; (B) use commercially reasonable efforts to address and mitigate the cause and effect of such Force Majeure Event; (C) provide the other Party with periodic notice of relevant developments; and (D) the other Party with prompt notice of the end of such Force Majeure Event. If Supplier suffers a Force Majeure Event and cannot resume performance within ten (10) business days of the commencement of such Force Majeure Event, then in addition to its other termination rights in this Agreement, Command shall have the right to terminate the affected Order upon written notice to Supplier.
  6. No Waiver; Severability. The waiver by either Party of any provision of this Agreement will only be effective if it is in writing and signed by such Party. The failure of either Party to enforce any covenant or obligation in accordance with this Agreement, or any provision of this Agreement, will not be a waiver of future enforcement of that or any other covenant, obligation or provision, nor will the same be construed as a novation of this Agreement. If any provision of this Agreement is found to be illegal, unenforceable, or invalid, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the parties, and the remaining provisions of this Agreement will remain in full force and effect.
  7. Construction; Entire Agreement. Captions of the articles, sections and subsections of this Agreement are for reference purposes only and do not constitute terms or conditions of this Agreement and will not limit or affect the meaning or construction of the terms and conditions of this Agreement. This Agreement is the final, complete, and exclusive expression of the agreement between the parties regarding the Services, Deliverables and Products provided under this Agreement. This Agreement supersedes and replaces, and the parties disclaim any reliance on, all previous or contemporaneous oral and written communications, representations, proposals, understandings, undertakings, and negotiations with respect to the subject matter hereof and apply to the exclusion of any other terms, or which are implied by trade, custom, practice, or course of dealing.
  8. Amendment; Counterparts. This Agreement may be changed only by a written agreement signed by an authorized agent of both Parties. This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one and the same instrument. Electronic signatures will be given the same effect and weight as originals.
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