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entity choosing to join this contract shall execute a separate
<br />contract with the specifications, pricing, terms and rights
<br />provided herewith, directly between the entity and
<br />Company, and shall commit a separate purchase order and
<br />pay for supplies and services by means of their individual
<br />accounting and purchasing departments. Any processing
<br />requirements, applications, specifications and /or standards
<br />not covered herewith will be developed and priced
<br />separately, based on the entity's additional requirements
<br />and specifications, and appended to the new resultant
<br />contract. The entity shall deal directly with Company
<br />concerning the placement of orders, invoicing, contractual
<br />disputes and all other matters. Failure to extend this
<br />contract to any entity shall have no effect on the
<br />consideration of Company's current bids or agreements.
<br />16. Severability:
<br />If any provision of this Agreement is unenforceable, such
<br />provision will be changed and interpreted to accomplish the
<br />objectives of such provision to the greatest extent possible
<br />under applicable law, and the remaining provisions will
<br />continue in full force and effect. Without limiting the
<br />generality of the foregoing, Customer agrees that Sections
<br />12 and 13 will remain in effect notwithstanding the
<br />unenforceability of any provision in Section 11.
<br />17. Force Majeure:
<br />Any delay in the performance of any duties orobligations of
<br />either party (except the payment of money owed) will not
<br />be considered a breach of this Agreement if such delay is
<br />caused by a labor dispute, shortage of materials, fire,
<br />earthquake, flood, or any other event beyond the
<br />reasonable control of such party, provided that such party
<br />uses reasonable efforts, under the circumstances, to notify
<br />the other party of the circumstances causing the delay, to
<br />mitigate the harm or damage caused by such delay, and to
<br />resume performance as soon as possible.
<br />18. Independent Contractor Relationship:
<br />Company's relationship with Customer will be that of an
<br />independent Contractor and nothing in this Agreement
<br />should be construed to create a partnership, joint venture, or
<br />employer - employee relationship. Customer is not an agent
<br />of Company and is not authorized to make any
<br />representation, contract, or commitment on behalf of
<br />Company, or to bind Company in any way. Company is not
<br />an agent of Customer and is not authorized to make any
<br />representation, contract, or commitment on behalf of
<br />Customer, orto bind Customer in anyway. Companywiil not
<br />be entitled to any of the benefits, which Customer may make
<br />available to its employees, such as group insurance, profit
<br />sharing or retirement benefits.
<br />19. Governing Law; Jurisdiction:
<br />This Agreement will be governed by and construed in
<br />accordance with the laws of the State of California, without
<br />reference to its conflict of law provisions. The United
<br />Nations Convention on Contracts for the International Sale
<br />of Goods does not apply to and shall not be used to
<br />interpret this Agreement. Any action or proceeding arising
<br />from or relating to this Agreement must be brought in the
<br />federal or state court located in Orange County, California.
<br />20. Notice:
<br />All notices, consents, and other communications under this
<br />Agreement must be delivered in writing by courier, by
<br />electronic facsimile (fax), or by certified or registered mail
<br />(postage prepaid and return receipt requested) to the other
<br />party at the address set forth beneath such party's
<br />signature, and will be effective upon receipt or three (3)
<br />business days after being deposited in the mail as required
<br />above, whichever is sooner. Either party may change its
<br />address by giving notice of the new address to the other
<br />party.
<br />21. Attorney's Fees:
<br />In the event of a dispute between Customer and Company
<br />concerning this Agreement, the prevailing party shall be
<br />entitled to recover its reasonable attorneys' fees and
<br />expenses from the other party.
<br />22. Survival,
<br />Sections 3, 11.3, 12, 14 -25 and the rights and obligations
<br />therein will survive expiration or early termination of this
<br />Agreement.
<br />23. Waiver:
<br />All waivers must be in writing. Any waiver or failure to
<br />enforce any provision of this Agreement on one occasion will
<br />not be deemed a waiver of any other provision or of such
<br />provision on any other occasion.
<br />24. Authority:
<br />Any person executing this Agreement in a representative
<br />capacity in so signing this Agreement acknowledges his or
<br />her authority to do so and his or her authority to bind the
<br />entity on whose behalf the Agreement is signed.
<br />25. Entire Agreement:
<br />This Agreement and the attached Exhibit(s), which are
<br />incorporated into and made a part of this Agreement bythis
<br />reference, constitute the entire agreement between the
<br />parties regarding the subject hereof and supersedes all
<br />prior or contemporaneous agreements, understandings,
<br />and communication, whether written or oral. This
<br />Agreement may be amended only by a written document
<br />signed by both parties. The terms on any purchase order or
<br />similar document submitted by Customer to Company will
<br />not modify the terms and conditions of this Agreement or
<br />have any force or effect.
<br />26. Counterparts:
<br />This Agreement maybe signed in one or more counterparts,
<br />each of which will be deemed to be an original copy of this
<br />Agreement, and, when taken together, shall be deemed to
<br />constitute one and the same agreement. Each party agrees
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