The following terms and conditions (“Terms”) apply to all Pre-orders, Purchase Orders and all Agreements (all as defined hereinafter), as well as all other agreements between the Parties and these Terms govern the relationship between Supplier and Company in general.
1 Definitions
1.1 “Affiliates” means any legal entity which has an ownership interest in or is under a common ownership interest with a Party and which is defined in attachments to the Agreement or subsequent Purchase Orders.
1.2 “Agreement” means these Terms and any applicable Purchase Orders and any appendices hereto, including without limitation, the software licenses, pricing schedules, and delivery schedules.
1.3 “Company” or “Buyer” shall mean the company and any of its Affiliates which has executed a Purchase Order under the Agreement.
1.4 “Confidential Information” means (i) the existence and terms of any agreement between the Parties and (ii) any non-public, confidential or proprietary information relating to a disclosing Party, whether or not technical in nature, including any that is designated by the disclosing Party as Confidential Information at the time of its disclosure, either by a written or visual confidentiality designation, or otherwise if such information would, under the circumstances, appear to a reasonable person to be confidential or proprietary. Notwithstanding the foregoing, Confidential Information does not include information, technical data or know-how which: (i) is in the public domain at the time of disclosure or becomes available thereafter to the public without restriction, and in either case not as a result of the act or omission of the receiving Party; (ii) is rightfully obtained by the receiving Party from a third party without restriction as to disclosure; (iii) is lawfully in the possession of the receiving Party at the time of disclosure by the disclosing Party and not otherwise subject to restriction on disclosure; (iv) is approved for disclosure by prior written authorization of the disclosing Party; or (v) is developed independently and separately by either Party without use of the disclosing Party’s Confidential Information.
1.5 “Days” shall be calculated as calendar days unless otherwise specified under the Agreement.
1.6 “Expenses” shall mean all out-of-pocket expenses reasonably incurred by Seller in the provision of the Goods, Software and Services.
1.7 “Goods” shall mean all products, equipment, materials, spare parts, hardware, supplies, and accessories to be supplied under a Purchase Order.
1.8 “Party and Parties” shall mean Seller, Company, any of their Affiliate(s) which has executed a Purchase Order hereunder and any third party to which the Parties may have assigned their rights under the Agreement. In its singular form, Party means any one of Seller, Company or their Affiliate having executed a Purchase Order or the third party to whom one of them has assigned its rights under the Agreement.
1.9 “Price” shall mean the total value of a Purchase Order after all applicable discounts have been applied. Expenses are not included in the Price unless agreed upon in the Purchase Order.
1.10 “Purchase Order” shall mean any purchase order, either paper or electronic, with related attachments and changes thereto, agreed upon by the Parties in writing, which shall describe the specific Goods, Software or Services to be supplied by Seller to the Company and the detailed Specifications for such. Purchase Orders agreed upon from time to time between Seller and Company and/or their respective Affiliates shall constitute separate contracts that incorporate the present Terms by reference and shall be governed by these Terms. Such Purchase Orders may modify or replace certain provisions of these Terms or the Agreement only to the extent that the Parties are required to comply with the local laws of the country in which the Purchase Order is being placed. Modifications shall be made in good faith in such a manner as to preserve the intent of the Agreement.
1.11 “Pre-order” is considered a Purchase Order with the exception that the Goods are still in development and pending the completion of Seller’s product development process. Successful shipping of a Pre-order is dependent on the development and manufacturing process. Hence, Seller cannot guarantee that the Goods part of a Pre-order will be delivered in time. If Seller is unable to deliver, Company will be entitled to reimbursement of payments in accordance with Article 4.9 below.
1.12 “Seller” shall mean Manus North America Inc. and, for purposes of Purchase Orders, any of its Affiliates which has executed a Purchase Order.
1.13 “Services” shall mean the provision of testing, assessment, per diem or specific time-limited engineering services, installation, start-up, configuration and any development of application programs, customization, implementation, training and any other services agreed upon between the Parties in Purchase Orders hereunder, excluding maintenance and support services which shall be rendered under a separate agreement. To the extent Services are of an advisory nature, no specific business result is assured or guaranteed.
1.14 “Software” shall mean computer software programs, in object code form including firmware and custom software, and instructions manuals, specifications and related documentation in written or electronic form, but excluding third party software, their related instructions manuals and documentation, for which Seller grants Company a license under a Purchase Order. The conditions of the Software license shall be set forth in the Seller’s end-user license agreement applicable to the particular Software at the time of delivery or, in the absence of such end-user license agreement, the software license terms contained herein. All modifications, enhancements, developments, additions or interfaces with other computer programs made by Seller, alone or jointly with Company, in the course of the performance of a Purchase Order shall be deemed owned by Seller and included in the Seller’s Software and shall be subject to all rights and limitations set forth in the Seller’s standard license agreement for such Software applicable at the time of delivery or, by default in the absence of separate end-user license agreement, the terms contained herein.
1.15 “Specifications” shall mean Seller’s standard specifications applicable to the Goods and/or Software at the time of execution of the Agreement or as set forth in a Purchase Order.
1.16 “Third Party Products” shall mean products and software of a third party vendor. If Third Party Products are supplied by the Seller under the Agreement, notwithstanding anything to the contrary, such supply is made on a “pass-through” basis only and is subject to the terms and conditions of the third party vendor, including but not limited to warranties, licenses, indemnities, limitation of liability, prices and changes thereto. Third Party Products are quoted subject to price changes imposed by third party vendors between the date of Purchase Order encompassing such Third Party Products and the date of Seller’s invoice related to that Third Party Product.
1.17 “Warranty Period” shall mean the applicable time period during which Goods and Software are respectively guaranteed to Company by Seller in writing on the terms set forth herein. Goods shall be guaranteed for a period as determined in the Warranty Appendix starting on the date of shipment unless stated otherwise on the Purchase Order. Spare parts for Goods are guaranteed for three (3) months as of date of shipment, unless used for repair and replacement during the Warranty Period, in which case, the spare parts shall be guaranteed for three (3) months from the date of shipment, or until the end of the initial Warranty Period, whichever comes last. Consumables or Products with inherently short operational cycles, including but not limited to lamps or batteries, are guaranteed for a period of ninety (90) days from date of shipment by Seller. Third Party Products are warranted as stated in Article 1.16.
2 Sole Agreement
2.1 The Agreement, including any Purchase Order entered into pursuant hereto, constitutes the entire agreement of the Parties hereto with respect to its subject matter and supersedes all prior and contemporaneous representations, proposals, discussions, and communications, whether oral or in writing with respect to this subject matter. The Agreement may be modified only by means of a duly executed written amendment signed by the authorized representatives of both Parties. Neither the terms of any invoice or other instrument documenting a payment or transaction that is issued by Company in connection with the Agreement, nor any other act, document, pre-printed form or statement, usage, custom, or course of dealing shall modify the terms of the Agreement. In the event of any conflict between the terms of the Agreement and any Purchase Order, the provisions of the Agreement shall govern unless expressly agreed upon by the Parties under the Purchase Order and modifications made by the Purchase Order to the Agreement are required to comply with local applicable laws.
2.2 It is understood that neither Party is obligated to enter into a Purchase Order.
3 Changes
3.1 Either Party may request changes that affect the scope, duration, delivery schedule or price of a Purchase Order, including changes in the Specifications and Goods, Software or Services to be delivered or licensed. If either Party requests any such change, the Parties shall negotiate in good faith a reasonable and equitable adjustment to the Purchase Order. Neither Party shall be bound by any change requested by the other until an amendment to the Purchase Order in the form of a Change Order has been accepted in writing by both Parties. Pricing of changes shall be based on the then current Seller’s prices.
4 Price and Payment Terms
4.1 Prices for Goods, Services and/or Software under the Agreement shall be in accordance with the prices set forth by Seller at the time of the execution of the Purchase Order or Seller’s proposal for Services.
4.2 Seller’s proposals and the Purchase Order Price exclude all sales taxes, value-added taxes, import and export duties and any other taxes, surcharges, duties or tariffs of any kind now existing or hereafter imposed upon Seller, its personnel or subcontractors or their properties in any country or territory either directly or indirectly in respect of the production, sale, supply, delivery, license, export and import, or use of the Goods, Software and Services. Company shall be responsible for all such taxes, duties and charges resulting from the Agreement or a Purchase Order hereunder. All proposals of Seller are non-binding and may be revoked at any time, unless Seller stated otherwise in writing.
4.3 All prices, including Prices, are in US Dollars. Company may request pricing in other currency, which will be included in the Purchase Order upon approval of Seller. This is subject to exchange rate fluctuations, which will be passed onto Company if the official exchange rate at the time of shipment deviates from the exchange rate on the offer date (which is fixed at 100) by more than two percent (2%).
4.4 Unless otherwise agreed upon in the relevant Purchase Order, full payments of all invoiced Goods, Software and Services are due in the invoice currency(ies) within thirty (30) calendar days from the date of invoice. However, all amounts will be due immediately, in case Company terminates or suspends all or a substantial portion of its business activities, becomes insolvent, admits its inability to pay its debts, or in case of the voluntary or involuntary filing of a petition for or adjudication of bankruptcy of Company under any federal, state or municipal bankruptcy or insolvency act, the appointment of a receiver, trustee, custodian, or liquidator, or any act or action constituting a general assignment by Company of its properties and/or interest for the benefit of creditors.
4.5 If Company is delinquent in its payment obligations, without prejudice to any other remedies available to it by law or in equity, Seller may at its option (i) suspend all further deliveries or performance to be made under the Agreement or any further performance under any other contract with Company or Company’s Affiliates, in which event Company shall not be released in any respect from its obligations to Seller under the Agreement or the other contract; (ii) recover all costs of collection including but not limited to reasonable attorneys’ fees; (iii) repossess the Goods and Software for which payment has not been made and (iv) retain any equipment supplied by Company to Seller in relation to Seller’s provision of Services. Any discount from Seller’s rates, if any, shall cease to apply to the delinquent invoice.
4.6 Where payment is not made within the terms set forth in the Agreement, contractual interest shall be owed at a rate of 1.5% a month, or the highest rate allowed by law, if lower, with effect from the first day following expiration of the payment term referred to in the Agreement; part of a month shall be considered a full month.
4.7 Payments made by Company shall always be used first to meet all the interest and costs owed and subsequently for the settlement of claims under the Agreement which have remained outstanding for the longest period of time, even when Company specifies that the payment relates to another claim.
4.8 Company shall reimburse Seller or, pay directly upon agreement with Seller, all reasonable Expenses.
4.9 Company shall not set off or recoup invoiced amounts or any portion thereof against sums that are due or may become due from Seller and/or its Affiliates.
4.10 In case of a Pre-ordered Good(s), Company may request a reimbursement or cancellation of the order if the Pre-ordered Good(s) have not been delivered within 9 months from the date of the Purchase Order. Seller will reimburse the amount of the order and may deduct reasonable expenses that have incurred related to the Pre-ordered Good(s).
5 Delivery, Title and Risk of Loss
5.1 Unless otherwise agreed upon in a Purchase Order, title to all Goods sold hereunder, except for Software whose title remains at all times with Seller, shall pass to Company upon full payment of the Purchase Order. If Seller believes that Company’s financial position and/or payment performance justifies such action, Seller has the right to demand that Company immediately furnish security in a form to be determined by Seller, which includes UCC Article 9 security rights, and /or make an advance payment. If Company fails to furnish the desired security, Seller has the right without prejudice to its other rights, to immediately suspend the further execution of the Agreement, and that which Company owes to Seller for whatever reason will become immediately due and payable.
5.2 Upon delivery, risk of loss or damage shall pass to Company unless delivery has been delayed because of Company.
5.3 Delivery, unless otherwise agreed upon in a Purchase Order, shall be Delivered at Place, DAP, at a location set forth by Seller (Incoterms 2020, the Netherlands).
6 Receiving, Inspection and Acceptance
6.1 Seller strives to provide a complete and accurate description of the products offered. Nevertheless, as Seller is continuously developing products, Seller cannot guarantee a complete resemblance between the illustration material, such as pictures, videos and written descriptions, and the actual products. Seller also reserves the right to change and modify the product specifications, such as storage capacity, battery capacity, weight, material selection, form, color, and other physical dimensions and technical specifications in the period up to the shipping date. Any of these nonconformities are not considered a defect and do not give the Company the right to reject Goods.
6.2 Company shall be responsible for receiving, installing, starting up and maintaining all Goods, unless otherwise agreed in a Purchase Order.
6.3 If Company fails to notify Seller of any material nonconformities with the Specifications within a reasonable period following delivery, not to exceed seven (7) calendar days, or is using those Goods, Software or Services in a production environment or for the regular conduct of its business, the Goods, Software or Services shall be deemed accepted, without prejudice to the warranty provisions hereunder.
6.4 Company shall have the right to reject Goods, Software and Services that substantively fail to comply with the functional or technical Specifications in the Purchase Order. Seller shall be granted a reasonable term to correct non-conformities, replace non-conforming Goods and/or Software or correct or re-perform the Services at its option, in accordance with Article 8. Should Seller fail to use reasonable efforts to correct non-conformities, replace the non-conforming Goods and/or Software or re-perform or correct non-conforming Services within a reasonable period of time, based on the complexity of the nonconformities, Company may terminate the Purchase Order or the non-performing portion thereof. In such case Seller’s maximum and exclusive liability shall be to refund the cost of the Goods, Software or Services paid by Company for the portion of the Goods, Software or Services that is non-conforming.
7 Force Majeure
7.1 Except for Company’s payment obligations, neither Party shall be liable for delays caused by conditions beyond their reasonable control, (“Force Majeure”), provided notice thereof is given to the other Party as soon as practicable. Force Majeure shall include, without limitation, hostilities, revolution, acts of war (whether or not declared), act of terrorism, civil commotion, strike, epidemic accident, quarantines or regional medical crisis, fire, flood, wind, earthquake or other inclement weather conditions and any impending threat of the foregoing, blockade, embargoes, shortage of materials or transportation facilities, strikes and lockouts, any other Acts of God or act of any Government or governmental agency, including laws, regulation or ordinance and proclamation affecting the parties, the Goods, Software or Services without the fault or negligence of the Parties hereto.
7.2 All such Force Majeure conditions preventing performance shall entitle the Party hindered in the performance of its obligations hereunder to an extension of the date of delivery of the Goods and Software or completion of the Services by a period of time equal to the period of delay incurred as a result of the Force Majeure or to any other period as the Parties may agree in writing.
8 Limited Warranties for Goods, Software and Services
8.1 Seller warrants to Company that the Goods, Software and Services Seller provided hereunder shall, at time of delivery, materially conform to the Specifications agreed between the Parties.
8.2 Seller further warrants that Goods, at the time of their delivery, and the media on which the licensed Software is provided will be free from defects in material and workmanship for the Warranty Period defined in Article 8.3. If a material defect in workmanship with regard to the media carrying licensed Software occurs during the Warranty Period, Seller’s sole obligation and Company’s sole remedy shall be the replacement of the media and the licensed Software residing on the media.
8.3 If, any time prior to the end of the applicable Warranty Period, as defined hereunder or under the separate applicable software license agreement, the Goods, Software or Services, or any part thereof, do not materially conform to applicable warranties or Specifications, Company shall notify Seller within thirty (30) calendar days after its discovery and shall provide written particulars of the non-conformity and all information and assistance necessary to enable Seller to verify the nature and cause of the nonconformity and carry out its warranty obligations hereunder.
8.4 If instructed by Seller, non-conforming Goods subject to a warranty claim shall be returned to the nearest Seller’s repair facility, transportation charges for the account of the Seller. Only goods with Sellers shipping return label will be accepted. Goods so returned by Company to the Seller during the Warranty Period and found upon Seller’s inspection to be non-conforming and Software found non-conforming upon Seller’s inspection shall be repaired, replaced or corrected, at Seller’s discretion and shall be warranted by Seller for the remainder of the original Warranty Period or for three months, whichever is longer, free of charge and return-shipped to Company. Seller shall not be responsible for any transport costs not approved by Seller upfront.
8.5 Seller’s obligation and Company’s sole and exclusive remedy under this Article is, at Seller’s discretion, the repair or replacement, correction, of any non-conforming Goods, Software or part thereof.
8.6 Goods, Software and labor used, as well as any and all Expenses reasonably incurred, by Seller for the repair or replacement or correction of any Goods or Software found in whole or in part to be nonconforming for reasons listed under Section
8.7 shall be for Company’s account. 8.7 The foregoing warranties do not apply to non-conformities caused by (1) Company’s design or installation of the Goods and/or Software, (2) modification or repair to the Goods and/or Software otherwise than as authorized in writing by Seller; (3) handling, storage, use or maintenance of the Goods and/or Software in a manner or an environment inconsistent with the Specifications and/or instructions or recommendations of Seller (see Warranty document for instructions and recommendations); (4) defect in Company’s own products or software or use of the Goods and/or Software in combination with any Third Party Products not procured by Seller; (5) Company’s failure to observe the payment terms under this Agreement or any other of its obligations under the Agreement; (6) normal wear and tear; (7) installation or wiring of the Goods and/or Software other than in accordance with Seller’s instructions; (8) transfer of the Software from the device on which it was originally installed; and/or (9) any fault of the Company or its agents.
8.8 Seller has no obligation under this warranty in event where the alleged defective Goods show a broken seal and or visible signs of misuse.
8.9 Goods subject to wear or burnout through usage such as paper media, packing and the like shall not be deemed not in conformity by reason of such wear or burnout.
8.10 The foregoing warranties do not apply to Third Party Products. Seller shall bear no responsibility for the performance, repair or warranty of any of Company’s software or hardware product or any Third- Party Products and Company shall look solely to third party vendor for all remedies and support with regard to such Third Party Products. If such Third Party Product is expressly procured by Seller and supplied to Company under a Purchase Order, the third party warranty, if any and if transferable to Company, will be the sole warranty applicable to the Third Party Product.
8.11 Seller warrants that Services shall be performed with reasonable skill and care and that Seller is properly licensed and qualified to perform the Services hereunder, and shall provide experienced personnel to perform Services that are materially in conformity with the Specifications of the Purchase Order. Seller’s obligation and Company’s sole remedy under this Warranty Period is to correct, re-perform the Services or refund the portion of the Services that cannot be corrected or re-performed, at Seller’s option. All Services corrected or re-performed shall be warranted only for the unexpired portion of the original Warranty Period applicable to Services.
8.12 EXCEPT AS SET FORTH HEREIN AND IN THE WARRANTY PROVISIONS CONTAINED IN SEPARATE SOFTWARE LICENSE(S), IF ANY, THESE WARRANTIES ARE EXCLUSIVE AND IN LIEU OF ALL OTHER WARRANTIES, REPRESENTATIONS, CONDITIONS, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON- INFRINGEMENT, INTEROPERABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. SELLER DOES NOT WARRANT THAT THE OPERATION OF ANY SUCH SOFTWARE WILL BE UNINTERRUPTED AND/OR ERROR-FREE.
8.13 ALL WARRANTIES PROVIDED HEREIN ARE PERSONAL TO, AND INTENDED SOLELY FOR THE BENEFIT OF, COMPANY AND DO NOT EXTEND TO ANY THIRD PARTY, EXCEPT IN CASE OF TRANSFER OF THE SOFTWARE IN ACCORDANCE WITH ARTICLE 11.8 OR ARTICLE 16.
Article 9: Compliance
9.01 Neither Party shall comply with any requirements of the Agreement, which are in violation of any law, rule, or regulation applicable to the Agreement.
9.02 Company acknowledges that the Goods, including each product and any related software and technology, including technical information supplied by Seller or contained in documents (collectively “Items”), may be subject to export controls. Software is licensed for use in the specific location identified in the relevant Purchase Orders and attached licenses. Company may not export the “Items” to another country without Seller’s written permission and payment of any applicable country specific surcharges. Company agrees to comply fully with all relevant export laws and regulations of the nations in which the “Items” will be used (“ExportLaws”) to ensure that neither the “Items” nor any direct product thereof are (i) exported, directly or indirectly, in violation of any Export Laws; or (ii) are intended to be used for any purposes prohibited by the Export Laws. Without limiting the foregoing, Company will not export or reexport the “Items”: (i) to any country to which the Netherlands, the EU, or the USA has embargoed or restricted the export of goods or services or to any national of any such country, wherever located; or (ii) to any end user who Company knows or has reason to know will utilize the “Items” in the design, development or production of nuclear, chemical or biological weapons.
9.03 Either Party shall execute and deliver to the other any documents as may be required to effect or evidence compliance.
9.04 The Parties may correspond and convey documentation via the Internet unless Company expressly requests otherwise. Neither Party has control over the performance, reliability, availability or security of the Internet. Seller shall not be liable for any loss, damage, expense, harm or inconvenience resulting from the loss, delay, interception, corruption or alteration of any communication over the Internet due to any reason beyond Seller’s reasonable control.
Article 10: Laws and Dispute Resolution
10.01 The Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to the conflict of laws provisions thereof. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Agreement. The governing language for the Agreement shall be English, and no concurrent or subsequent translation of the Agreement into any language shall modify any term of the Agreement.
10.02 . All disputes and controversies arising out of or relating to these Terms, the Agreement or the relationship of the Parties shall be finally and bindingly resolved under the Commercial Arbitration Rules of the American Arbitration Association in front of a sole arbitrator. The place of arbitration shall be New York, New York. The language of the arbitration shall be English. Any award, verdict or settlement issued under such arbitration may be entered by any Party for order of enforcement by any court of competent jurisdiction.
11 Intellectual Property and Software License
11.1 For purposes of the Agreement, “Intellectual Property Rights” means any patent, trademark, service marks, copyrights, trade secrets, ideas, concepts, know-how, techniques, or other proprietary right. Seller may utilize proprietary works of authorship, pre-existing or otherwise, including without limitation software, computer programs, methodologies, templates, flowcharts, architecture designs, tools, specifications, drawings, sketches, models, samples, records and documentation, as well as Intellectual Property Rights and any derivatives thereof, which have been originated, developed or purchased by Seller, or any of its Affiliates, or by third parties under contract with Seller or its Affiliates (all of the foregoing, collectively, “Seller’s Information”). Seller shall always retain ownership of the Seller’s Information.
11.2 Seller or the applicable third party owner shall retain at all times the ownership of its Software, firmware and third party software, regardless of the media upon which the original or copy may be recorded or fixed. Without prejudice to the license(s) expressly granted hereunder and under a Purchase Order, no right, title or interest in or to the Software, firmware, Seller’s Information, any copies thereof and any Intellectual Property Rights residing in the Goods, Software or result of Services is transferred to Company. Company acknowledges that the prices for Services and Software charged by Seller under the Agreement are predicated in part on Seller’s retention of ownership over such Software and any results of the Services, none of which shall be considered “work for hire.”
11.3 In consideration of the receipt of full payment of the Software license fee applicable as part of the Price under a Purchase Order, and subject to Company’s compliance with its obligations under the Agreement and/or the Purchase Order, Seller shall provide to Company a personal, non-transferable, nonexclusive limited license to use the Software described in the relevant Purchase Order and the Seller’s Information incorporated into the Goods, Software and Services, if any, for purpose of Company’s ordinary business as defined in the Purchase Order and in the particular location(s) and/or on the particular systems for which Company licensed such Software, as those locations and/or systems are identified in the Purchase Order.
11.4 Seller’s Software licensed to Company may contain components that are owned by third parties. The third party owner shall retain exclusive right to its firmware and software. Use of such third party components may be subject to restrictions contained in the third party’s end-user license agreement in addition to the conditions set forth herein. Seller shall make available to Company upon request the third party’s end-user license agreement applicable. Copyright and other proprietary rights notices of Seller and third parties are contained in the Software and Company shall not modify, delete or obfuscate such notices.
11.5 Company may not without Seller’s prior written express consent (i) copy, modify, sublicense, loan or transfer in any manner the Software licensed herein; (ii) create derivative works based on the Software licensed herein; (iii) subject the Software licensed herein to translating, decompiling, disassembling, reverse assembling, reverse engineering, emulating or performing any other operation on the Software, unless the operation is specifically authorized by law. Company shall hold the Software licensed herein in strict confidence and will not allow third parties, other than its employees with a need to use the Software and who have agreed to comply with the terms of this Software License Article, to access or use the Software without Seller’s prior written consent. Company agrees to defend, indemnify and hold harmless Seller from all damages and third party claims arising from unauthorized use or transfer of the Software.
11.06 Notwithstanding the foregoing restrictions but subject to all restrictions applicable to Third Party Products as set forth in Articles 11.2 and 11.4, Company shall be entitled to make a limited reasonable number of copies of the instruction manuals and documentation related to the Software for purpose of their use by Company in connection with the authorized use of the Software. All titles, trademarks and copyrights and restricted rights notices shall be reproduced in such copies.
11.7 Company shall maintain complete and accurate records documenting the location and use of the licensed Software in Company’s possession. No later than thirty (30) days upon receipt of Seller’s written request, Company shall provide Seller with a signed certification of compliance with the Software licensing conditions. Seller has the right to conduct an audit of Company’s use of the Software. Any such audit shall be conducted during regular business hours at Company’s facilities after five (5) days written notification provided by Seller. If an audit reveals any underpayment of license fees, Company shall be invoiced for additional license fees consistent with Seller’s then current price list for the Software, without any discount being applicable in that instance and Company will pay all costs and expenses related to the audit. Additionally, Company shall immediately pay the underpaid amount together with interest at a rate of one and one-half percent (1.5%) per month or partial month during which such amount was due and unpaid. The assessment of additional license fee is without prejudice to Seller’s other remedies in the event of breach by Company of other licensing conditions.
11.8 Unless otherwise set forth in an applicable Seller’s end-user license agreement, Company may not transfer its license to use the Software and related documentation and written materials to a third party without the Seller’s prior written consent. In case of Seller’s approval of such transfer, Company shall be responsible to ensure that the recipient agrees to the terms of this Software License Article.
11.9 Unless otherwise set forth in the applicable Seller’s end-user license agreement, Seller shall defend, indemnify and save harmless Company from and against any third party claims (“Liabilities”) to the extent such Liabilities result from an infringement of third-party intellectual property rights in the United States, resulting from the use of the Services, Goods, and/or Software as supplied by Seller, provided that (i) Seller shall be promptly notified of the third party claim; (ii) Seller shall be given the sole control of the defense and all related settlement negotiations; (iii) Company agrees to fully assist Seller in the defense of the claim and (iv) Company complies with Seller’s direction to cease any use of the Goods or Software which in Seller’s reasonable opinion, is likely to constitute an infringement. Seller shall not be responsible for any settlement made without its consent.
11.10 The foregoing indemnification obligations do not apply when the claim of infringement results from or is related to: (i) Services, Goods and/or Software provided pursuant to Company’s designs, drawings or specifications; (ii) Goods and/or Software stored, used or maintained otherwise than in accordance with Seller’s instructions or recommendations or other than for the Company’s internal business purpose; (iii) claims of infringements resulting from combining Goods or Software provided hereunder with any other item not furnished by Seller; (iv) modifications to the Goods or Software without prior written consent of Seller; (v) parts supplied or designed by Company or a third party; (vi) the Company's continued use of an allegedly infringing version of the Services, Goods and/or Software after being notified by the Seller to cease use thereof; and (vii) Company’s failure to use corrections or enhancements made available by Seller.
11.11 Seller may cease to deliver any Goods or Software or Services, which it reasonably considers could infringe third party’s rights, without being in breach of the Agreement.
11.12 In case said results of Services, Software or Goods, or any part thereof, is in such suit held to constitute infringement and/or its use is enjoined, the Seller shall, at its own expense and option either: (i) procure for the Company a royalty-free license to continue using such Software, results of Services or Goods, or (ii) replace same with substantially equal but non-infringing equipment or modify it so it becomes non-infringing, provided that no such replacement or modification shall in any way amend or relieve Seller of its warranties and guarantees set forth in the Agreement. In the event Seller is unable to do either of the foregoing, the allegedly infringing item shall be returned to Seller and Seller’s maximum liability shall be to refund to Company the amount paid for such item, less a reasonable depreciation for damage.
11.13 This Section 11 states the Parties’ entire liability and sole remedy with respect to infringement or claims thereof.
12 Indemnification and Limitation of Liability
12.1 Each Party shall indemnify, defend and hold the other Party harmless against third party claims (including without limitation, the Parties’ employees) for personal injury, death or loss or damage to property caused by the Party’s gross negligence, willful misconduct, or breach of confidentiality in the performance of its obligations hereunder, provided (i) the indemnifying Party is granted exclusive control over the defense against the claim; (ii) the indemnifying Party is immediately notified of such claim and (iii) Company provides reasonable assistance in the defense of the claim and does not enter into any settlement or make any concession without the Seller’s prior written approval. Seller shall not indemnify Company against third party claims to the extent such claims result from the use of the Goods and/or Software for research and development purposes or from the use of 0-series or prototypes.
12.2 IN NO EVENT SHALL SELLER HAVE ANY LIABILITY UNDER THE AGREEMENT OR ANY PURCHASE ORDER FOR ANY SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOST PROFITS, LOSS OF PRODUCTION, LOSS OF REVENUES, INTEREST, CAPITAL, FINANCING, GOOD WILL, USE, BUSINESS REPUTATION, OPPORTUNITY OR PRODUCTIVITY, OR FOR ANY DAMAGES RESULTING FROM OR ASSOCIATED WITH THE USE OF THE GOODS AND/OR SOFTWARE FOR RESEARCH AND DEVELOPMENT PURPOSES AND/OR FOR AVIATION PURPOSES OR FROM THE USE OF 0-SERIES OR PROTOTYPES, HOWSOEVER ARISING, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
12.3 WITH THE EXCEPTION OF INDEMNIFICATION OBLIGATIONS HEREUNDER, SELLER’S LIABILITY UNDER THE AGREEMENT FOR ANY DIRECT DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THE AGREEMENT (WHETHER ARISING UNDER TORT, NEGLIGENCE, CONTRACT, WARRANTY, STRICT LIABILITY OR ANY OTHER CAUSE OR COMBINATION OF CAUSES) SHALL IN NO EVENT EXCEED THE SPECIFIC PRICE OF THE GOODS, SOFTWARE AND/OR SERVICES PROVIDED UNDER THE PURCHASE ORDER GIVING RISE TO LIABILITY.
12.4 EXCEPT FOR THE TRANSFER OF SOFTWARE LICENSE IN ACCORDANCE WITH ARTICLE 11.8, THE TERMS OF THE AGREEMENT SHALL NOT BENEFIT OR CREATE ANY RIGHT OR CAUSE OF ACTION IN OR ON BEHALF OF ANY PERSON OR ENTITY OTHER THAN COMPANY AND SELLER.
12.05 TO THE EXTENT PERMITTED BY LAW, THE PROVISIONS OF THIS SECTION 12 SHALL APPLY REGARDLESS OF THE FORM OF ACTION, DAMAGE, CLAIM, LIABILITY, COST, EXPENSE, OR LOSS, WHETHER IN CONTRACT, STATUTE, TORT OR OTHERWISE.
12.06 COMPANY ACKNOWLEDGES THAT SELLER’S PRICING REFLECTS THE ALLOCATION OF RISKS, OWNERSHIP OF INTELLECTUAL PROPERTY RIGHTS AND THE LIMITATION OF LIABILITY HEREUNDER.
Article 13: Invoicing
13.1 Invoices shall be sent to the address specified in the Purchase Order.
13.2 Should Company dispute any invoice, Company shall notify Seller of the nature of the dispute within seven (7) days of the date of the invoice, failure of which the invoice is deemed accepted. Company shall have the right to withhold payment of the portion of the invoice in question until Company and Seller agree on the amount to be paid and any additional documentation or information requested by the Company has been received from the Seller. Company shall pay the undisputed portion of the disputed invoice.
13.3 Seller shall invoice Company upon shipment of the Goods and/or Software, unless set forth otherwise in the Agreement.
Article 14: Termination for Convenience
14.01 Seller's provision of any Service under the Agreement or a Purchase Order may be terminated by the Company in accordance with this Article in whole or in part whenever the Company may elect, with minimum prior written notice (“Notice of Termination”) of at least thirty (30) business days. Any such termination shall take place by delivery to the Seller of a Notice of Termination specifying the extent to which performance of work under the Agreement or Purchase Order is terminated, and the date upon which termination becomes effective. Upon receipt of any such notice, Seller shall, unless the notice requires otherwise: (1) discontinue work on the date and to the extent specified in the notice; and (2) make every reasonable effort to either obtain cancellation of all orders to subcontractors or assign those orders to Company.
14.02 Upon Notice of Termination, Company shall (i) pay the proportion of invoice value of work performed by Seller (if any) and expenses incurred in connection with the performance of the Agreement or the Purchase Order until the effective date of such termination ii) any and all costs irrevocably committed to on or before the effective date of such termination and (iii) any and all reasonable costs directly related to Company’s termination pursuant to this provision, including costs associated with personnel reassignment, travel, restocking charges and other administrative requirements. In the event of partial execution of the Agreement or when termination occurs between two invoicing milestones, a pro rated share of the fees shall be added based upon the portion of Purchase Order completed on the termination date.
15 Termination for Default
15.1 Either Party may terminate the Agreement or any outstanding Purchase Order for default if the other has materially breached any of its obligations under the relevant Purchase Order and has not cured the breach within ninety (90) days of receipt of a notice from the other Party.
15.2 Termination of a Purchase Order by either Party whether for default or for convenience shall not affect continuing performance by the Parties of their respective obligations under a different Purchase Order, unless otherwise agreed upon by the Parties.
16 Assignment
16.1 The Agreement shall extend to and be binding upon the Parties hereto, their successors, and assigns, provided, however, that neither Party shall assign or transfer the Agreement or any Purchase Order hereunder without the other Party’s express prior written consent. Notwithstanding the foregoing, Seller shall have the right to assign the Agreement or any Purchase Order hereunder to any of its parent, Affiliates without prior written consent of Company and Company shall have the right to transfer the licensed Software in accordance with Article 11.08.
16.2 Seller shall have the right at any time with prior consent of Company to subcontract all or part of its obligations under a Purchase Order. Such subcontract shall not relieve Seller from its obligations under the Agreement and relevant Purchase Order. 17 Non-Waiver 17.1 Failure by either Party to insist upon strict performance of any of the terms and conditions hereof or failure or delay to exercise any rights or remedies provided herein or by law or to properly notify the other in the event of breach shall not be construed as a waiver of any provision of the Agreement or Purchase Order.
17.2 No waiver by a Party of a right or default under the Agreement shall be effective unless in writing.
18 Severability, Survivorship, Waiver, and Headings
18.1 If any provision or portion of the Agreement shall be deemed invalid or unenforceable by a court of competent jurisdiction or by operation of any applicable law, that provision or portion of the Agreement shall be deemed omitted and the remaining provisions and portions shall remain in full force and effect.
18.2 The provisions of the Agreement that by their nature survive final acceptance under a Purchase Order, expiration, cancellation or termination of any Purchase Order or Agreement and shall remain in full force and effect after such acceptance and payment for the period specified herein, or if not specified then for the maximum time allowed by law. These provisions are: (i) Definitions, Article 1; (ii) Price and Payment Terms, Article 4; (iii) Indemnification and Limitation of Liability, Article 13; (iv) Force Majeure, Article 7; (v) Warranties, Article 8; (vi) Intellectual Property and Software License, Article 11; (vii) Compliance, Article 9; (viii) Laws and Dispute Resolution, Article 10; (ix) Severability, Survivorship, Waiver, and Headings, Article 18.
18.3 The headings in the Agreement are for ease of reference only and shall not be used to construe or interpret the provisions of the Agreement. 19 Notice
19.1 All notices hereunder shall be deemed given if delivered in writing personally, by courier, via mail, electronic transmission or telephone facsimile to Company or to Seller at the address(es) set forth in the Purchase Order(s). Electronic transmission must be acknowledged by a process requiring human action.
20 Participants of the Agreement
20.1 All terms and conditions (including delivery obligations) of a Purchase Order released by a participant third party and any proposal submitted by Seller to a participant third party as a result of a bidding process, shall be in accordance with the Agreement. Company shall notify the participant third party of the Agreement and direct the participant third party to comply with the terms of the Agreement. A copy of any Seller’s proposal to a participant third party shall be communicated to Company in accordance with Article 20.
Article 21: Company’s Obligations and Work On Company’s Site
21.1 Unless otherwise specifically agreed in the Purchase Order, Seller’s personnel shall not perform Services on equipment in operation on Company’s work site.
21.2 If Seller is to perform Services on Company’s work site, Company shall be responsible for obtaining all applicable permits, visas or other governmental approvals required. Company shall be responsible for ensuring the safety of work conditions at its site and the safety of Seller’s personnel.
21.3 The obligations of Company shall be set forth in the applicable Purchase Order. Company agrees to cooperate with Seller in the performance of the project described in the Purchase Order hereunder, including, without limitation, providing Seller with reasonable facilities, timely access to data, information and personnel of Company and a safe working environment. Company acknowledges and agrees that Seller’s performance is dependent upon the timely and effective satisfaction of Company’s responsibilities hereunder and timely decisions and approvals of Company where required.
21.4 Company acknowledges and agrees that Seller may, in performing its obligations pursuant to the Agreement, be dependent upon or use data, material, and other information furnished by Company without any independent investigation or verification thereof, and that Seller shall be entitled to rely upon the accuracy and completeness of such information in performing its obligations.
Article 22: Press Releases and Client List Reference Neither Party shall issue any press release concerning Seller’s work without the other Party’s consent. Notwithstanding the foregoing, Seller may identify Company as a client of Seller, use Company’s name and logo and release an announcement regarding the award of the Agreement. Seller may generally describe the nature of the Services in Seller’s promotional materials, presentations, case studies, qualification statements and proposals to current and prospective clients.
Article 23: Independent Contractor
23.01 Seller is performing the Services as an independent contractor and not as an employee of Company and none of Seller’s personnel shall be entitled to receive any compensation, benefits or other incidents of employment from Company. Seller shall be responsible for all taxes and other expenses arising from the employment or independent contractor relationship between Seller and its personnel and the provision of services hereunder by such personnel to Company.
23.02 At all-times and notwithstanding anything to the contrary herein or in a Purchase Order, Seller retains full control over the methods, details, persons employed or otherwise used to perform the Services and any other means of performance of its obligations under a Purchase Order and vary the composition of the team assigned to the performance of the Services or make different arrangements to achieve completion of its obligations.
23.03 Nothing in the Agreement shall be deemed to constitute a partnership, joint venture, or fiduciary relationship between Company and Seller, nor shall anything in the Agreement be deemed to create an agency relationship between Company and Seller. Neither Company nor Seller shall be or become liable or bound by any representation, act or omission whatsoever of the other.
Article 24 Confidentiality
24.01 Each Party agrees that it will safeguard the confidentiality of the Confidential Information supplied by the other Party and that it will observe the same due care with respect to such information as it would observe with respect to its own Confidential Information. The other Party shall not sell, copy and/or distribute in any way Confidential Information to third parties, without disclosing Party’s prior written consent, which consent may be granted or withheld in such Party’s sole and absolute discretion.
24.02 Each Party agrees that it will restrict the circle of employees or third parties it retains who have access to the other Party’s Confidential Information as much as possible and provide such access only on a need to know basis and after binding such employees and third parties to the same level of confidentiality as set forth in these Terms and Conditions.
24.03 Immediately following the receipt of a written request to this effect by the disclosing Party the receiving Party will return any and all Confidential Information received from the disclosing Party or destroy such Confidential Information, if the disclosing Party so requests.
Warranty Appendix
With reference to the “warranty period” in article 1.16 Seller will apply the following warranty periods for the Goods and Software.
