Termination
(a) Termination for Default. Buyer may, by Change Notice or written notice, terminate this Purchase Order for Seller’s default, in whole or in part, and/or cancel all or any part of the undelivered portion of this Purchase Order if Seller:(i) fails to deliver the Product or Documentation and/or perform the Services by the time or in the manner specified in this Purchase Order;(ii) fails to make progress which, in Buyer’s reasonable judgement, endangers performance of this Purchase Order in accordance with its terms;
(iii) fails to furnish adequate assurances after a written demand by Buyer for such assurance when reasonable grounds for insecurity arise with respect to Seller’s performance;(iv) fails to deliver Product or Documentation and/or perform Services that meet the specifications; and/or
(v) fails to perform or comply with any obligation of this Purchase Order or any part thereof.
Such termination and/or cancellation shall become effective if Seller does not cure such failure within ten (10) days of receiving notice of default.
Any such termination or cancellation shall be without liability to Buyer except to pay for completed Product, Services and/or Documentation delivered and accepted by Buyer prior to termination or cancellation. In the event of any such termination or cancellation, Buyer may take possession of any materials or equipment incorporated or contemplated to be incorporated into the Product, Services and/or Documentation and cause the work to be completed in whatever manner Buyer deems appropriate at the Seller’s sole cost and expense. Seller shall promptly assign to Buyer, or Buyer’s designee, such contracts and purchase orders as Buyer shall request be so assigned in connection with the Product, Services and/or Documentation.
Upon termination or cancellation, Buyer may procure from another party, at Seller’s expense, and upon terms it deems appropriate, goods, Software, articles, documents or other materials, and any data or other information or services similar to those so terminated or cancelled. Seller agrees that it will be liable for Buyer’s re-procurement charges, which exceed the amount which would have been due to the Seller had the Seller satisfactorily completed this Purchase Order. Seller shall continue performance of this Purchase Order to the extent not terminated or cancelled.
As an alternate remedy and in lieu of termination or cancellation for default, Buyer, at its sole discretion, may elect to extend the delivery schedule and/or waive other deficiencies in Seller’s performance, making Seller liable for any costs, expenses or damages arising from any failure of Seller’s performance. If Seller for any reason anticipates difficulty in complying with the required delivery date, or in meeting any of the other requirements of this Purchase Order, Seller shall promptly notify Buyer in writing. Any such extension and/or waiver by Buyer shall not be construed as a continuous or future waiver of such provision nor shall it in any way affect the right of Buyer to terminate the Purchase Order or cancel the Purchase Order for default in relation to Seller’s late delivery, late performance or other deficiencies.
These rights and remedies are in addition to any other rights and remedies available to Buyer under these Terms, in law or in equity.
(b) Termination for Insolvency or Prolonged Delay. If Seller ceases to conduct its operations in the normal course of business, fails to meet its obligations as they mature, becomes insolvent, or if any proceeding under the bankruptcy or insolvency laws is brought by or against Seller, a receiver for Seller is appointed or applied for, an assignment for the benefit of creditors is made or an excused delay (or the aggregate time of multiple excused delays) lasts more than sixty (60) days, Buyer may immediately terminate this Purchase Order without liability, except for Product, Services and/or Documentation completed, delivered and accepted within a reasonable period after termination (which will be paid for at the Purchase Order price).
(c) Termination for Convenience. Buyer may, by written notice, terminate this Purchase Order for Buyer’s convenience, in whole or in part, at any time. In such event, Seller shall promptly comply with the directions contained in such notice and shall, subject to such direction: (i) take all necessary action to stop the work terminated, as provided in the notice, minimizing costs and liabilities and ensure that no further steps are taken to produce any undelivered Product or Documentation and/or perform any unperformed Services, (ii) protect, preserve and deliver any property related to this Purchase Order which is in Seller’s possession pursuant to Buyer’s direction; (iii) use its best endeavors to mitigate any loss it may have incurred as a result of termination; (iv) place no further orders or subcontracts except as may be necessary for the completion of Work not terminated; and (v) continue the performance of such part of the Work, if any, as may not have been terminated by the notice.
Upon termination under this clause, Buyer and Seller shall negotiate reasonable termination costs consistent with costs allowable under Article 9 entitled Changes, which are identified by Seller within thirty (30) days of Buyer’s termination notice to Seller, unless the parties have agreed to a termination schedule in writing. Seller shall be entitled to reimbursement for its actual costs incurred up to and including the date of termination, such cost to be determined in accordance with current industry practices. In no event shall Buyer’s obligations, as a consequence of the termination, exceed the Purchase Order price of the items terminated, less the aggregate of all prior payments made.
Upon payment of the amounts specified above, Seller shall make such disposition of completed or uncompleted items or any raw, semi-processed or completed materials as Buyer may direct. The Seller will comply with and be responsible for reasonable expenses incurred in effecting Buyer’s directions.
In connection with any such termination, Buyer may examine Seller’s records relating to this Purchase Order as Buyer may deem necessary, provided, however, that if Seller objects to an examination of Seller’s records by Buyer, a mutually acceptable independent certified public accounting firm may make such examination and prepare a report for both parties at Seller’s sole expense.