Terms and Conditions of Sale

General TERMS AND CONDITIONS of Sale


1.         OFFER AND ACCEPTANCE; EFFECT OF TERMS AND CONDITIONS. This order to purchase (the “Order”) Products or services (collectively, the “Products”) from Elite Arms Inc., a Michigan corporation doing business as Elite Defense, its subsidiaries, and any entity controlling, controlled by, or under common control with it (collectively, “Elite Defense”) by purchaser, its subsidiaries, and any entity controlling, controlled by, or under common control with it (collectively, the “Buyer”) will be governed by any writings on the face of the Order signed by Elite Defense and by these General Terms and Conditions of Purchase (the “Terms”), whether such Terms are printed on the back of the Order, are physically attached to the Order, are transmitted electronically to the Buyer, or are made available on Elite Defense’s website. The Terms constitute the entire and exclusive agreement binding on Elite Defense, and the Terms expressly limit Buyer’s acceptance to the terms set forth herein. These Terms hereby reject the application of any of Buyer’s terms and conditions of sale, whether written or oral, issued previously, now or in the future by Buyer in relation, directly or indirectly, to the Products, unless Elite Defense specifically agrees to Buyer’s terms in a separate writing signed by an authorized representative of Elite Defense. No course of dealing or usage of trade is applicable unless expressly incorporated in these Terms or specifically agreed upon in writing by Elite Defense. Invoices, bills of ladings, quotes, or orders that purport to offer, modify, supersede, revise, or add to certain terms from Buyer do not constitute an acceptance by Elite Defense of any offer or proposal by Buyer, whether in Buyer’s request for quotation, acknowledgement, purchase order, or otherwise. In the event that any Buyer RFQ or proposal is held to be an offer, that offer is expressly rejected and is replaced by these Terms. In the event of a conflict between any prior or contemporaneous agreement or document exchanged between Elite Defense and Buyer, the Order governs. Buyer acknowledges and agrees to be bound by, and comply with, all (a) Terms, as the same shall be amended, supplemented, and/or updated from time to time by Elite Defense; (b) Elite Defense’s code of conduct and its design and quality standards and regulations, as the same shall be amended, supplemented, and/or updated from time to time by Elite Defense; and (c) the terms and conditions of Elite Defense’s end customer, to the extent that such terms are not inconsistent with these Terms.

(b) Neither Buyer nor Elite Defense may assign or subcontract its obligations under the Order without the prior written consent of the other, and if the Order is assigned or subcontracted in contravention of this Section 1(b), the assignment or subcontract will be void.

(c) The Order shall be governed by, and interpreted under, the substantive laws of Michigan, United States of America.

2.         PRICING; PAYMENT. (a) Unless otherwise provided elsewhere in the Order, prices are: (i) stated in U.S. dollars; (ii) subject to annual revision per the terms of the Order; and (iii) stated for the net weight of the Products.

(b) Unless prohibited by law, Elite Defense will separately indicate on its invoices any taxes imposed on the sale or delivery of Products or services.

(c) Unless otherwise provided elsewhere in the Order, payment will be due when Buyer’s Products are ready to ship from Elite Defense’s facility. Buyer shall not make payment to Elite Defense, either directly or indirectly, via Deutsche Bank or any affiliate thereof. No shipment shall be made until Buyer’s Order is paid in full. If the Buyer has completed a credit application and Elite Defense has determined, in its sole and absolute discretion, to extend credit terms to Buyer, payment will be net thirty (30) days from the date of Elite Defense’s invoice to Buyer. An interest charge of eighteen percent (18%) per annum (but in no event in excess of the maximum rate allowable by law) shall be paid by Buyer on any and all amounts due and outstanding in excess of thirty (30) days. All amounts due and outstanding on any and all invoices or otherwise to Elite Defense shall be immediately accelerated, without notice, upon Buyer’s failure to pay invoices as required and shipments of Products may be suspended or cancelled at Elite Defense’s sole discretion. Buyer shall reimburse Elite Defense for any and all costs and expenses (including, but not limited to, court costs, legal expenses, and reasonable attorneys’ fees, whether by inside or outside counsel and whether or not suit is instituted) incurred in collecting or attempting to collect any amounts due and outstanding from Buyer to Elite Defense.

(d) Elite Defense expressly disclaims any representation or warranty concerning “most favored customer” pricing which may appear in any of Buyer’s documents in connection with the sale of any Products by Elite Defense to Buyer. Without limiting the foregoing, Elite Defense does not provide any discounts, terms, or other special payment concessions not expressly stated in the Order. 

(e) Buyer will be responsible for all sales, use, and similar taxes (excluding taxes based on or measured by the net income, net worth or gross receipts of Elite Defense) imposed as a result of the sale of Products or services. With notice to Elite Defense, Buyer may pay such taxes directly to the taxing authority where allowed by law. Elite Defense shall remit all taxes paid by Buyer to the appropriate taxing authority. Upon Buyer’s request, Elite Defense will provide written evidence that Elite Defense is properly licensed to collect the taxes paid by Buyer.

(f) Elite Defense reserves the right to require Buyer to pay a deposit or provide an irrevocable letter of credit in favor of Elite Defense in an amount determined by Elite Defense and from a bank approved by Elite Defense payable on presentation of commercial invoice, packing list or a bill of lading indicating delivery to carrier.

3.         TRANSPORTATION; DELIVERY. All shipping and delivery dates are approximate and Elite Defense shall have no liability to Buyer or any third party for any claims or damages for delays in shipping or delivery. Elite Defense will promptly notify Buyer in writing if Elite Defense anticipates difficulty in complying with a required delivery date and will use all commercially reasonable efforts to meet the required delivery date. If Elite Defense fails to meet a required delivery date by more than seven (7) days and a substantial disruption of Buyer’s manufacturing process is imminent, Buyer may procure replacement Products or services. If Elite Defense has to use premium freight, Elite Defense will notify Buyer in writing of the type and monetary value of the premium freight used (for Buyer’s records). If the Order or purchase order calls for multiple deliveries of Products by Elite Defense, Buyer agrees that each shipment and delivery of Products hereunder completes performance under a separate and distinct contract so that any defaults associated with a specific delivery shall not affect or alter the obligations of the parties for any prior or future deliveries.

4.         FREIGHT CLAIM POLICY. Even with the greatest of care, occasional damages or shortages are unavoidable. Upon receipt of a shipment from Elite Defense, Buyer shall unpack and inspect it for damage and shortage. Buyer shall not accept a damage or shortage or short shipment until delivering carrier’s driver has made a “damage” or “shortage” notation on Buyer’s copy and the carrier’s copy of the freight bill. Buyer must notify the carrier immediately. If damages are noted, Buyer should immediately request the carrier to make an inspection. Concealed damage must be reported to the carrier within fifteen (15) days of delivery. All shipping containers and packing must be retained by Buyer for the inspection. Salvage must be held for carrier’s disposition.

5.         Capacity. Elite Defense makes no representation, warranty, guaranty, or commitment, express or implied, regarding any estimates or forecasts of its capacity for the manufacture or delivery of Products it may provide to Buyer, including the accuracy or completeness of the estimates or forecasts.

6.         Allocation. In no event shall Elite Defense be required to sell a greater number or amount of Products than it shall have available or allocated for such purposes. If Elite Defense is unable to supply the total demands for any of the Products, Elite Defense shall have the right to allocate its available supply among its customers in such manner as Elite Defense shall deem to be fair and equitable. IN NO EVENT SHALL SELLER BE OBLIGATED TO PURCHASE PRODUCTS FROM OTHERS IN ORDER TO ENABLE IT TO DELIVER PRODUCTS TO BUYER, NOR SHALL IT BE LIABLE FOR ANY DAMAGES OR CLAIMS ARISING THEREFROM, INCLUDING BUT NOT LIMITED TO INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, AND/OR PUNITIVE DAMAGES, WHETHER OR NOT CAUSED BY OR RESULTING FROM THE NEGLIGENCE OR OMISSION OF SELLER.

7.         Acceptance of Products. All drawings, specifications, technical documentation, samples, prototypes, and Products are deemed to be approved and/or accepted by Buyer unless Buyer provides Elite Defense with a written objection and/or rejection within ten (10) days of receipt of the Products. Failure to provide written objection and/or rejection will constitute an irrevocable acceptance by the Buyer of the Products. Any written objection and/or rejection must state with specificity all defects and non-conformities upon which Buyer will rely to support its rejection of the Products. ALL DEFECTS AND NON-CONFORMITIES WHICH ARE NOT SPECIFIED ARE WAIVED BY BUYER. If Buyer rejects the Products, and if requested by Elite Defense, Buyer will return them to Elite Defense at Buyer’s cost, within three (3) days after such request, or Buyer has irrevocably accepted the Products. No attempted revocation of acceptance will be effective, and Buyer will be limited to any available remedies specifically provided herein for breach of warranty. Elite Defense has a reasonable period of time to cure any non-conformity.

8.         Responsibility for Safety/Compliance. (a) Buyer, at all times, shall comply with all applicable federal, state, and local laws and regulations. BUYER (OR USER) MUST INSTALL AND USE THE PRODUCTS IN A SAFE AND LAWFUL MANNER IN COMPLIANCE WITH APPLICABLE HEALTH, SAFETY, AND ENVIRONMENTAL REGULATIONS AND LAWS AND GENERAL INDUSTRY STANDARDS OF REASONABLE CARE.

(b) Buyer covenants and agrees that: (i) it will comply with the requirements of all applicable laws, rules, regulations, and orders of governmental or regulatory authorities of its country(ies) of operations (the “Territory”) (except to the extent inconsistent with, or penalized under, U.S. law) and shall take no action which would subject Elite Defense to penalties under U.S. or Territory laws; (ii) in connection with its sale of the Products, it has not and will not make any payments or gifts, or any offers or promises of payments or gifts of any kind, directly or indirectly, to any official of any Territory government or any agency or instrumentality thereof; to any foreign political party or official thereof, or any candidate for foreign political office; or to any person while knowing (or being aware of a high probability) that all or a portion of such money or thing of value will be offered, given or promised, directly or indirectly, to any foreign official, any foreign political party or official thereof, or any candidate for foreign political office in violation of the United States Foreign Corrupt Practices Act (the “FCPA”) or the laws of the Territory; (iii) neither Buyer nor any of its employees or officers is an official, employee, or active member of the armed forces of the Territory government; an official or employee of the Territory government; an official of a political party or a candidate for political office; an officer, director, employee, or an “affiliate” (as defined in regulations under the U.S. Securities Exchange Act of 1934) of an Elite Defense customer; (iv) as of the date of this Order, no Territory government official, and no official of any Territory government agency or instrumentality is or will become associated with, or will own or presently owns an interest, whether direct or indirect, in Buyer or has or will have any legal or beneficial interest in the Order or the payments to be made by or to Buyer; (v) it has not and shall not pay or tender, directly or indirectly, any commission or finders or referral fees to any person or firm in connection with its activities related to the Products without the prior written approval of Elite Defense; (vi) it has not paid, offered, or agreed to pay any political contributions in respect to or in connection with the Products, either directly or indirectly; (vii) it is familiar with and shall comply in all respects with U.S. laws, regulations, and administrative requirements applicable to the Elite Defense’s relationship with Buyer, including, but not limited to, the FCPA; the International Traffic In Arms Regulations (“ITAR”); the Export Administration Regulations (the “EAR”), as amended; the Antiboycott Regulations and Guidelines issued under the Export Administration Act, as amended; and Section 999 of the Internal Revenue Code (the “Antiboycott Regulations”);  and the Office of Foreign Assets Control (“OFAC”) Regulations; (viii) it fully understands Elite Defense’s policy with respect to international sales transactions and relations with customers and suppliers and that Buyer will do nothing in the performance of the sales of the Products subject to the Order which will be in conflict with Elite Defense’s policies; (ix) in compliance with ITAR, Part 129, it may be required to register as a broker and to maintain broker registration if the Products are or the Order includes U.S. origin ITAR-controlled defense articles or defense services; (x) none of its principal officers or employees have been convicted of or pleaded guilty to any offense involving fraud, corruption, or moral turpitude, and that it is not now listed by any government agency as debarred, suspended, proposed for suspension or debarment, or otherwise ineligible for U.S. Government procurement programs; (xi) in performing the sale of the Products, to comply with applicable laws and regulations of the U.S., Buyer’s domicile country, and the Territory (Buyer shall notify Elite Defense of any conflicts or inconsistencies it believes exist between the applicable laws and regulations) and to not make or permit to be made or knowingly allow a third party to make any improper payments, or to perform an unlawful act; and (xii) to give prompt written notice in the event that Buyer has failed to comply with or has breached any of its compliance obligations hereunder.

9.         RETURNED GOODS. Products may be returned only when not meeting the manufacturer’s specifications. Buyer must always obtain a return goods authorization from Elite Defense. Returns made without the authorization will be returned to the Buyer, freight collect. Elite Defense reserves the right to reverse any credit issued to Buyer (a) for any product not returned after authorization and requested by Elite Defense; or (b) if, upon return, such product is determined by Elite Defense not to be defective.

10.       Express WARRANTY. (a) For Products manufactured by Elite Defense, Elite Defense warrants that such Products, when shipped in their original containers, shall meet the manufacturer’s specifications as tested and reported by the manufacturer (the “Warranty”). For a period of sixty (60) days commencing on the date the Products are shipped by Elite Defense, Elite Defense will, at its sole discretion, replace or refund the price paid for any product that does not meet those specifications. In no event shall the Elite Defense’s liability exceed the purchase price paid therefore by Buyer. Elite Defense makes no warranties, guaranties, or representations, express or implied, with respect to the Products except and to the extent that such warranty is set forth herein. This Warranty is extended to Buyer and no other person, and Elite Defense makes no representation or warranties hereunder to or for the benefit of any third parties. A Warranty replacement or repair of a claimed defective product shall not have the effect of extending this Warranty period.

(b) For Products manufactured by a third party, and merely distributed by Elite Defense and sold to Buyer, Elite Defense makes no warranties, guaranties, or representations, express or implied, with respect to such third party-manufactured Products except and to the extent that such third party manufacturer offers a warranty to its customers (the “Third Party Manufacturer’s Warranty”). This pass-through Third Party Manufacturer’s Warranty is extended to Buyer and no other person, and Elite Defense makes no representation or warranties hereunder to or for the benefit of any third parties. A Third Party Manufacturer’s Warranty replacement or repair of a claimed defective product shall not have the effect of extending this Third Party Manufacturer’s Warranty period

(c) The Warranty or the Third Party Manufacturer’s Warranty is valid only if Buyer (i) notifies Elite Defense in writing within thirty (30) days from discovery of any alleged defect; (ii) the Products are returned to Elite Defense for inspection and testing under a valid return authorization request; (iii) Elite Defense’s inspection discloses to its satisfaction that any alleged defect is material and has not been caused by misuse, neglect, wear and tear, improper installation, unsuitable storage, repair, alteration, or accident; and (iv) the Products were installed/processed, maintained, and used in accordance with Elite Defense’s instructions, if any.

11.       Disclaimer of Warranties. Elite Defense is not responsible for any errors or omissions or for any loss or damage resulting from reliance on catalogues, brochures, price lists, or other information provided to Buyer from Elite Defense, including descriptions, shipping specifications, technical advice, illustrations, representations as to quality or capabilities (whether oral or in writing), or any other information unless otherwise set forth in the Order. EXCEPT FOR THE WARRANTY and/or THE THIRD PARTY MANUFACTURER’S WARRANTY SET FORTH in Section 10 ABOVE, THERE ARE NO OTHER WARRANTIES WITH RESPECT TO THE PRODUCTS PROVIDED HEREIN, WHETHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, EVEN IF Elite Defense HAS BEEN INFORMED OF SUCH PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, IT IS AGREED THAT Elite Defense MAKES NO WARRANTY WITH RESPECT TO THE FITNESS OR SAFETY OF THE PRODUCTS. Elite Defense SHALL NOT BE LIABLE FOR ANY DAMAGE, LOSS, OR EXPENSE, WHETHER IT IS CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR OTHERWISE CAUSED BY, ARISING OUT OF, OR CONNECTED WITH THE MANUFACTURE, DELIVERY, PACKAGING, STORAGE, OR USE OF ANY PRODUCTS SOLD OR DELIVERED HEREUNDER, INCLUDING ANY USE OR MISUSE INCONSISTENT WITH THE SPECIFICATIONS OR USE OF THE PRODUCTS.

12.       Limitation of Remedies; Time for Action. THE REMEDIES SET FORTH IN THESE TERMS ARE THE SOLE AND EXCLUSIVE REMEDIES FOR BUYER. Elite Defense WILL NOT BE LIABLE FOR ANY CLAIMS OF ANY KIND GREATER IN AMOUNT THAN THE PURCHASE PRICE OF THE PRODUCTS FROM WHICH THE CLAIMS ARE MADE. IN NO EVENT WILL Elite Defense BE LIABLE FOR COSTS ASSOCIATED WITH THE PURCHASE OF SUBSTITUTE GOODS BY THE BUYER OR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES. Without limiting the generality of the foregoing, Buyer assumes all risk and liability for the results obtained by the use of any Products delivered hereunder in combination with other articles or materials or in the practice of any process, whether in terms of operating costs, general effectiveness, success, or failure, and regardless of any oral or written statements made by Elite Defense, by way of technical advice or otherwise, with respect to the use of such Products. Any proceeding by Buyer for breach of the Order or Warranty cannot be filed or maintained unless (a) it is commenced within one (1) year after the cause has accrued, and (b) Buyer has provided written notice to Elite Defense as provided in the Order, and (c) Buyer has paid in full all amounts owing to Elite Defense prior to filing such proceeding.

13.       QUANTITY TERMINATION; ORDER CHANGES. (a) Buyer agrees that due to the nature of the Products being ordered, cancellation of a purchase order would cause irreparable harm to Elite Defense. Thus once a quotation is accepted by Buyer through issuance of a purchase order or other similar confirmation, including email or fax, the order shall not be cancelled unless by express written consent of Elite Defense, which may be granted, conditioned, or denied in the Elite Defense’s sole and absolute discretion. All cancellations are subject to a twenty-five percent (25%) restocking fee payable to Elite Defense.

(b) Prior to shipment or completion, Buyer may request changes with respect to the Products or services to be provided, including, changes in method of shipping or packing, time or place of delivery, and increases in delivered quantity. Elite Defense will promptly notify Buyer of any resulting increase or decrease in cost, and Buyer and Elite Defense will agree on any price adjustment before implementing any change.

14.       CONFIDENTIAL INFORMATION; OWNERSHIP OF DOCUMENTS AND MATERIALS. (a) Each party will treat as confidential and not disclose any information received from the other party (the “Disclosing Party”) in connection with the Order to any person not authorized by the Disclosing Party in writing to receive it. The party receiving such confidential information (the “Receiving Party”) will use such information only as necessary to fulfill its obligations under the Order. Upon termination of the Order, all such information will be returned to the Disclosing Party, or at the Disclosing Party’s option, destroyed by the Receiving Party. The Receiving Party will not make any announcement or release any information concerning the Order to any other person or entity, including the press or any official body, except as required by law, unless prior written consent is obtained from the Disclosing Party.

(b) Buyer and Elite Defense acknowledge and agree that in the event of the occurrence of any default on the Receiving Party’s part relating to Section 14, the Disclosing Party will incur substantial and irreparable damage and that the damages suffered by such Disclosing Party may be difficult to ascertain and such Disclosing Party may have no adequate remedy at law. Therefore, such Disclosing Party shall be entitled, upon commencing an action in a court of competent jurisdiction, to preliminary and permanent injunctive relief without necessity of proving it has suffered any actual damage, as well as any and all other relief allowed in law or in equity. This Section 14 shall survive any termination of the Order.

(c) Buyer agrees not to reverse engineer, disassemble, decompile, or modify any of the product purchased from Elite Defense hereunder.

15.       INTELLECTUAL PROPERTY INFRINGEMENT. Elite Defense warrants that the Products will not infringe any patent covering the Products themselves, excluding portions specified, designed, or manufactured by Buyer; provided, however, that Elite Defense does not warrant against infringement by reason of the use of such Products in combination with other articles or materials or in any overall process or combination, and Buyer assumes all responsibility for determining whether relevant patents exist covering such use, together with all risk and liability arising out of infringement of any such patents. Elite Defense shall not assert any of its patents or other intellectual property rights against Buyer or Buyer’s affiliates or customers worldwide in connection with any use of Products or services provided to Buyer in the production, use, preparation, sale, or delivery of, or other action with respect to, the Products or services of Buyer or Buyer’s affiliates or customers. Notwithstanding anything to the contrary contained herein, including, but not limited to Section 16, no indemnity, express or implied, and no covenant to defend, is provided by Elite Defense to Buyer with respect to any claim of infringement of any patent, copyrights, or trademark by any of the Products. Elite Defense shall have no liability to Buyer under this clause or otherwise for any claim or action, including without limitation claim or infringement, based upon (i) the use of any of the Products in combination with any Products, systems, device, or software not supplied by Elite Defense hereunder, (ii) alterations to any of the Products made by Buyer or any third party, or (iii) Buyer’s sales or marketing of Products, substances, or components or ingredients based on any of the foregoing.

16.       INDEMNIFICATION. (a) Elite Defense will fully defend, indemnify, hold harmless, and reimburse Buyer, its officers, directors, shareholders, employees, agents, customers, and assigns from and against all claims, suits, actions, proceedings, damages, losses, and expenses, including attorneys’ fees, arising out of, related to, or resulting from: (a) any negligence or willful misconduct of Elite Defense or its agents or subcontractors in connection with performance under the Order; (b) any litigation, proceeding or claim by any third party relating to the obligations of Elite Defense under the Order; and (c) Elite Defense’s use, control, ownership, or operation of its business and facilities, except to the extent caused by the negligence of Buyer. Elite Defense agrees to include this clause in any subcontracts issued hereunder.

(b) Buyer shall defend and indemnify Elite Defense from all losses, damages, costs, or expenses of any kind incurred as a result of, or arising from: (a) any negligence or willful misconduct of Buyer or its agents or subcontractors in connection with performance under the Order; (b) any litigation, proceeding or claim by any third party relating to the obligations of Buyer under the Order; (c) Buyer’s use, control, ownership, or operation of its business and facilities, except to the extent caused by the negligence of Buyer; (d) patent infringement based on Buyer’s use of the Products in an overall process or as an element in an overall combination; (e) the use, storage, sale, processing or other disposition of the Products, supplies or materials used in connection with the Products, or parts or goods manufactured with the Products, if the action or inaction of the Buyer, or its employees, customers, or agents, or the Buyer’s design specifications, were a material or proximate cause of injuries or damages giving rise to claims against Elite Defense, or (f) negligence of Buyer.

17.       SET-OFF. Elite Defense may set off or recoup any amounts owed by Elite Defense to Buyer against any amounts owed by Buyer to Elite Defense. Buyer waives all right of setoff and recoupment against Elite Defense and will pay all amounts owed to Elite Defense regardless of any claim asserted by Buyer.

18.       FORCE MAJEURE. (a) Any non-performance or delay in performance of any obligation of Elite Defense or Buyer under the Order will be excused to the extent such failure or non-performance is caused by Force Majeure. “Force Majeure” means any cause preventing performance of an obligation under the Order which is beyond the reasonable control of the Elite Defense or Buyer, and which, by the exercise of due diligence, could not be overcome, including without limitation, fire, flood, sabotage, shipwreck, embargo, explosion, strike or other labor trouble, accident, riot, acts of a governmental authority, and acts of God.

(b) If Buyer or Elite Defense is affected by Force Majeure, it will (i) promptly provide notice to the other party, explaining the full particulars and the expected duration of the Force Majeure, and (ii) use its best efforts to remedy the interruption or delay if it is reasonably capable of being remedied. If a Force Majeure extends for more than sixty (60) days, the Order may be terminated upon written notice by the party not declaring Force Majeure without any liability on its part.

(c) If a Force Majeure compels Elite Defense to allocate deliveries of Products or services, Elite Defense will make such allocation in a manner that ensures Buyer at least the same proportion of the Elite Defense’s total output as was purchased by Buyer prior to the Force Majeure. Elite Defense will use best efforts to source Products or other items from its own or its affiliates’ global operations or the market in order to meet Buyer’s required delivery dates.

19.       TERMINATION. (a) Buyer or Elite Defense may terminate the Order upon thirty (30) days’ prior written notice if the other party breaches any material term thereof or any voluntary or involuntary petition to commence bankruptcy proceedings is filed against it, any assignment for the benefit of creditors is made, or a receiver or trustee is appointed over it; provided, however, that during such notice period, the party in default may cure its default and thereby abate the termination.

(b) In the event that Buyer terminates the Order for a material, uncured default by Elite Defense, Buyer may cancel its order for Products prior to its completion by immediate payment to Elite Defense of Elite Defense’s cost of manufacture and liquidated damages (including labor, engineering, materials, tooling, equipment time, overhead) computed using Elite Defense’s standard internal costing procedures, plus fifteen percent (15%) of the sales price for the Products. Cost of manufacture includes all materials or services that Elite Defense has ordered and that cannot be canceled and all costs incurred in canceling such orders. Elite Defense may retain without cost all materials and partially completed Products on cancelled orders.

(c) After receipt of a notice of termination, the Elite Defense shall immediately: (i) stop work as directed in the notice; (ii) place no further subcontracts or purchase orders for materials, services or facilities, except as necessary to complete the continued portion of the Order; and (iii) terminate all subcontracts to the extent that they relate to the work terminated.

20.      SUPPLIER SECURITY AND CRISIS MANAGEMENT POLICY. Elite Defense will have and comply with, and at Buyer’s request provide Buyer with a copy of, Elite Defense’s security and crisis management that, at a minimum, provides for measures that ensure the physical integrity and security of all shipments against the unauthorized introduction of harmful or dangerous materials. If Buyer reasonably determines that Elite Defense’s security and crisis management policy and/or such policy implementation is/are insufficient to protect Buyer’s property and interests, Buyer may give Elite Defense notice of such determination. Upon receiving such notice, Elite Defense shall have forty-five (45) days thereafter to make such policy changes and take the implementation actions reasonably requested by Buyer. All costs associated with development and implementation of Elite Defense’s security and crisis management plan and Buyer’s recommendations thereto shall be borne by Elite Defense. In addition, Elite Defense agrees that it will review the requirements of applicable national security programs, including, but not limited to, the Customs-Trade Partnership Against Terrorism (“C‑TPAT”) program of the United States (if applicable) and will (i) maintain a written plan for security procedures in accordance with the recommendations of such programs; and (ii) inform Buyer of its membership status and any changes thereto, relative to such programs.

21.       ARBITRATION. In the event of any claim or controversy arising out of or relating to the Order or the performance, construction, interpretation, enforcement or breach hereof, the parties shall settle such disputes in accordance with this Section 21. The parties shall first attempt to settle any conflicts amicably between themselves. Should they fail to do so, a party may, upon written demand served upon the other, submit such matter to binding arbitration. One arbitrator will be appointed by the International Chamber of Commerce (the “ICC”). The arbitration shall take place in Detroit, Michigan, and shall proceed in accordance with the commercial arbitration rules of the ICC. The determination of the arbitrator shall be final and binding on the parties, regardless whether one of the parties fails or refuses to participate in the arbitration. The arbitrator shall have the power and authority to grant any remedy or relief the arbitrator deems just and equitable, including injunctive relief, specific performance, and reasonable costs and expenses of such arbitration and attorneys’ fees. Absent any specific order of the arbitrator, the costs and expenses of the arbitration shall be paid by the losing party. The arbitration award, decree or order may be entered in any court of competent jurisdiction, and any judgment, decree or ordered entered in any such court and any related orders may be enforced as any other judgment, decree or order of such court. The arbitration proceeding and all materials, submissions and documents relating thereto shall be confidential.