Terms & Conditions of Sale

1.              Applicable Terms

1.1             All sales by Seller to Buyer, whether initiated by written purchase order, electronic means, telephone or any other method, will be subject to the following: (a)(i) if a formal agreement is then in effect between Buyer and Seller and applicable to such sale (a “Sales Agreement”), then such Sales Agreement, including any term in the Sales Agreement that conflicts with these Conditions will apply and take precedent, and these Conditions will otherwise apply or (ii) if no Sales Agreement is in effect, these Conditions will apply; and (b) the Product description and quantity specified in Buyer’s order as accepted by Seller, and collectively (a) and (b) will make up Buyer’s complete contract with Seller.

1.2             These Conditions may be modified only by the written agreement of Buyer and Seller. By selling Products to Buyer, Seller confirms its agreement with these Conditions, and agrees that, even if Seller sends Buyer another form of agreement or terms, or modifications to these Conditions, and Buyer does not agree in writing, these Conditions shall govern. The United Nations Convention on Contracts for the International Sale of Goods will not apply to any sale of Products.

2.              Pricing; Tax

2.1             Product prices are determined by the Sales Agreement then in effect, if any. In the absence of a Sales Agreement, prices are determined by Seller’s list prices in effect at the time of order. The price of Products includes all taxes, tariffs, storage, handling, packaging, and all other expenses and charges of Seller. Prices are not subject to increase.

2.2             Seller is liable for and shall pay all taxes, impositions, charges, and exactions except for applicable sales, VAT/GST, or similar taxes that are separately stated on Seller’s invoice. With notice to Seller, Buyer may pay such separately stated taxes directly to the taxing authority, where allowed by law. Seller shall remit all taxes paid by Buyer to the appropriate taxing authority. Upon Buyer’s request, Seller will provide written evidence that Seller is properly licensed to collect the taxes paid by Buyer.  Prices shall not include any taxes, impositions, charges, or exactions for which Buyer has furnished a valid exemption certificate or other evidence of exemption. If any tax included in the order was not required to be paid by Buyer, Seller shall notify Buyer and make a prompt refund to Buyer.

3.              Quantity; Forecast

3.1             Quantities purchased by Buyer shall be as stated in the order, with no minimum purchase obligations. Title to Products shall pass to Buyer at the earlier of (a) payment by Buyer; or (b) receipt of Products by Buyer per the delivery terms stated in the order. In the event of advance or progress payments, Seller shall reasonably identify or otherwise mark Products as Buyer’s property.

3.2             Any estimates or forecasts of order volume or program durations are subject to change from time to time at Buyer’s sole discretion, with or without notice to Seller, and shall not be binding on Buyer. Unless otherwise stated in the order, Buyer makes no guaranty or commitment of any kind to Seller regarding Buyer’s requirements for Products. Buyer shall be entitled to withdraw any purchase order without any cost or liability before actual or deemed confirmation by Seller.

3.3             For “blanket” or similar orders with no quantity specified, Seller shall deliver Products as scheduled by Buyer.

3.4             Seller shall send a quotation to Buyer no later than fourteen (14) days after receipt of a request by Buyer. Any quotation submitted to Buyer shall be valid for no less than ninety (90) days. Such quotation shall include, at a minimum, the following information: (a) the Products; (b) period of time during which the quotation is binding (no less than ninety (90) days), (c) detailed breakdown of prices, including any discounts; (d) applicable specifications; and (e) any other information Buyer could reasonably need in order to make a decision regarding the Products.

3.5             Seller shall confirm each purchase order within five (5) days upon receipt of such order from Buyer. If Buyer receives from Seller neither a confirmation or denial of an order within five (5) days, the order shall be deemed confirmed by Seller. 

4.              Delivery; Packing

4.1             Time is of the essence in making deliveries under an order. Buyer has no obligation to accept deliveries that are not made on the required delivery date.

4.2             Unless otherwise agreed in writing by the Buyer, all Products shall be delivered in accordance with Incoterms 2020 DAP – to Buyer’s facility. If Buyer pays for transportation, Seller shall comply with Buyer’s routing instructions, including choice of designated logistics carrier.

4.3             At any time before delivery, Seller shall perform any change to an order that is reasonably requested by Buyer; provided, however, if a requested change affects the agreed delivery dates or materially increases the price of ordered Products, Seller shall immediately inform Buyer and confirm Buyer’s approval to continue before performing any such change. Any failure of Seller to inform Buyer hereof shall release Buyer of any payment obligation related to the implementation of any such change. Any changes shall be performed or implemented within a reasonable time following such request.

4.4             Seller is responsible for the cost of boxing, crating, and packing. Seller shall prepare, at its expense, labels as specified by Buyer. Seller is liable for damage to Products caused by improper boxing, crating, or packing. Seller shall pay all additional freight costs if Seller needs to use an expedited shipping method to meet agreed delivery dates due to its own acts, omissions, or claims of force majeure pursuant to Section 14. If Seller fails to meet a required delivery date, Buyer may procure replacement Products or services. Seller will be responsible for all costs incurred by Buyer as a result of early or late deliveries.

4.5             Seller shall have no right to terminate or not deliver according to an order for any reason. In the event that Seller takes action, or fails to act, in a manner that disrupts or threatens to disrupt Buyer’s ability to produce (including, but not limited to, line downs, interruption of production, or shipping delays), Seller acknowledges and agrees that Buyer shall be entitled to pursue the remedies in Section 15.

5.              Payment Terms

5.1             Buyer shall pay invoices within ninety (90) days, or other period as agreed in writing, from the first batch processing date, not to exceed one hundred and twenty (120) days, after Buyer’s receipt of a correct invoice.

6.              Changes to Orders

6.1             If Buyer requires modifications to any aspect of an order, including drawings, designs, or specifications, the Parties shall negotiate an equitable adjustment, if any, in the form of a change order or amendment. Seller shall not make any changes without Buyer’s prior written consent. No claim by Seller for adjustment shall be considered by Buyer unless made in writing and received by Buyer within thirty (30) days from the date notice of modifications is received by Seller. Nothing in this clause shall excuse Seller from performance of an order as changed, including during the pendency of any claim.

7.              Quality & Audit

7.1             Seller may not make any change to any Products’ designs, processes, or procedures without Buyer’s prior written approval.  Seller will be liable for all losses and damages that Buyer may suffer if Seller does not comply with the requirements of the preceding sentence.

7.2             Seller shall maintain a recognized and suitable quality assurance system for its Products and services and will keep records of all inspection and testing data and, with respect to Products, samples of each lot shipped, for two (2) years after delivery. Unless otherwise agreed by Buyer in writing, Seller will deliver to Buyer a certificate of analysis as to specifications approved by Buyer with respect to each Product lot shipped. Buyer or its designated representative may enter, inspect, test, and/or audit, upon reasonable notice, Seller’s materials, plant, books, and records, to verify compliance with Buyer’s requirements, any Sales Agreement, order, and these Conditions.

8.              Limited Warranty

Seller warrants and represents that (a) all Products shall: (i) conform to the specifications, standards, drawings, samples, descriptions, and revisions furnished by Buyer; (ii) be merchantable and free of defects in design, materials, and workmanship; (iii) be fit for the purposes intended by Buyer; (iv) be free of all liens, claims, and encumbrances, (v) be manufactured entirely with new materials and free from latent defects, (vi) be free from viruses, disabling code, and open source software, (vii) be genuine, new, and unused, and (b) any work shall be performed in a professional manner and consistent with best industry standards. The above warranties will be in effect for a period of eighteen (18) months from the date of receipt by Buyer or twelve (12) months from the date of final acceptance by Buyer, whichever is earlier. If any Products or services fail to conform to the above warranties, Seller, at Buyer’s option, will: (a) with respect to Products, replace or repair the nonconforming Products; (b) with respect to services, re-perform all services necessary to correct any such nonconformity; or (c) refund the purchase price of the nonconforming Products or services and any related costs incurred by Buyer. Any replacement Products or services also will be subject to the above warranties and warranty period. The warranty period for repaired Products will be extended to account for the time lapsed until the repair was completed. If Seller does not replace, repair, or re-perform, as applicable, within a reasonable time after notice, Buyer may do so at Seller’s expense. Any rights or remedies of Buyer set forth in the Sales Agreement and these Conditions are not exclusive and Buyer also has all rights and remedies available under applicable law.

9.              Indemnification

9.1             Seller shall defend, indemnify, and hold Buyer harmless against any losses, liabilities, damages, claims, suits, actions, proceedings, subrogation, costs, and expenses including court costs and attorneys’ fees in connection with an order including: (a) death, injury, or damages to any person or property; (b) recall campaigns which in Buyer’s reasonable judgment are required; (c) counterfeit parts, including parts that have been copied or substituted without legal right or authority; (d) Seller’s use of Buyer’s machinery or equipment, where for such claim Seller shall assume sole responsibility; (e) actual or alleged infringement, direct or contributory, of intellectual property rights; (f) subcontractor performance; and (g) violation of law.

9.2             If there is a claim that any Product, in the form in which Seller sold it to Buyer, infringes another person’s patent or other intellectual property right in the jurisdiction in which such sale took place, then (a) Seller will defend Buyer against such claim and will pay all damages and costs finally awarded to Buyer as a result thereof, and (b) if any Product subject to such a claim is determined to infringe another person’s patent or other intellectual property right, Seller shall, at its sole option and expense, either procure for Buyer the right to continue using the Product, replace or modify the same in a manner satisfactory to Buyer so as to avoid the infringement,  or accept return of the Product from Buyer and refund the purchase price thereof. Seller 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.

9.3             On receipt of notification, Seller shall assume responsibility for the defense of any claims, suits, actions, or proceedings for which Seller shall indemnify Buyer, provided that Buyer shall have the right to be represented and participate through its own counsel in the defense and resolution of any indemnification matters. The indemnification obligations of Seller are independent of warranty obligations of Seller. Seller may not settle or otherwise dispose of any such claims, suits, actions, or proceedings without the prior written approval of Buyer. 

10.           Insurance

10.1         Seller shall maintain appropriate insurance coverage, in accordance with best industry practices, with a reputable insurance company against all relevant losses, liabilities, and indemnities that may arise in connection with an order and Seller’s operations. Buyer may specify additional insurance coverage requirements applicable to an order. Such coverage shall not limit Seller’s liability under an order. All such policies shall name Buyer as an additional insured, specifically insure Buyer for its own negligence and other culpable conduct, and contain a waiver of subrogation against Buyer.  Upon Buyer’s request, Seller shall provide Buyer with a copy of the insurance certificate evidencing coverage. Seller’s insurance carrier must notify Buyer at least thirty (30) days prior to any expiration or termination of, or material change to, the policy. Seller will also require insurance from all of its subcontractors with the same coverages and limits.

11.           Intellectual Property

11.1         “Intellectual Property” includes any patent, trademark, trade secret, copyright, design, illustrations, drawings, calculations, know-how, or other proprietary right.

11.2         Buyer retains all right, title, and interest in and to its Intellectual Property related to an order. Any license of Buyer’s Intellectual Property is granted to Seller solely for the limited right to permit Seller to perform its obligations under an order for the sole benefit of Buyer. Drawings and technical information are issued in confidence and may not be disclosed, reproduced, disseminated, or used by either party without the other party’s prior express written consent.

11.3         Seller retains its Intellectual Property that existed before each order. Seller grants Buyer a worldwide, nonexclusive, royalty free, fully-paid, irrevocable, perpetual license under its Intellectual Property to use, sell, repair, and reconstruct Products and copy, distribute, and create derivative works of copyrightable work product and deliverables.

11.4         Seller hereby assigns to Buyer all right, title, and interest in and to all Intellectual Property in Products created for Buyer related to an order. Seller shall promptly disclose all Intellectual property owned by Buyer pursuant to this Section 11.4, including all inventions, and shall execute any documents necessary to perfect Buyer’s ownership therein.

12.           Termination

12.1         Without prejudice to any other rights of termination provided herein, Buyer reserves the right to terminate an order or any part thereof at its sole convenience.

12.2         These Conditions, an order, or any part thereof, may be terminated immediately at any time, effective upon written notice and Seller shall compensate Buyer for damages suffered by Buyer, under the following conditions:

(a) if Seller defaults in the performance of any provision of an order, including late delivery or Seller’s failure to make reasonable progress toward completion of the order, and such default is not cured within seven (7) days; or

(b) by either Party if the other Party commits a material breach of these Conditions and such breach is not cured within thirty (30) days of written notice of such breach, or if such breach is not reasonably subject to cure within thirty (30) days, or if the Party in breach has not commenced a continuous good faith effort to cure the default; or

(c) by either Party if the other Party ceases its business operations, makes a general assignment for the benefit of creditors, or becomes subject to insolvency or voluntary bankruptcy or receivership proceedings, or if bankruptcy or receivership proceedings are initiated against that Party and not lifted within thirty (30) days. 

12.3         Upon receipt of termination notice, Seller shall immediately cease all work and ensure all of its suppliers and subcontractors cease work. Seller shall be liable for, and pay to Buyer, any costs, including the cost for additional managerial and administrative services, in excess of the price for Products.

12.4         In the event of a termination, Seller shall protect and preserve property in its possession where Buyer has an interest. Buyer is entitled to a refund of all monies paid to Seller for the terminated order.

13.           Supply

13.1         Seller shall inform Buyer, in writing, before accepting any order in the event that Seller has made changes to the composition of the processed material or the construction design of supplies and Products previously provided to Buyer. Any such changes shall not be permitted without Buyer’s prior written approval. Seller will be liable for all losses and damages that Buyer may suffer if Seller does not comply with the requirements in this clause.

13.2         In the event of termination or expiration of an order, Seller shall have the absolute obligation to continue to provide Products in accordance with the terms of the order (including price) for a reasonable period of time, in any event not less than one (1) year, so as to permit Buyer the opportunity to transition the production of the Products to a third party and so as to avoid any interruption of production at Buyer’s facilities or the facilities of Buyer’s customers. Seller must reasonably cooperate in this transition of supply, including providing information and documentation regarding the manufacturing process for Buyer’s Products, including on-site inspections, bill-of-material data, tooling and process detail, and samples of Products and components.

14.           Events Beyond Seller’s Control

14.1         Neither party will be in default for any delay or failure to perform due to natural, civil, or political causes beyond its reasonable control and without its fault or negligence (“Force Majeure”).

14.2         The following shall not constitute a Force Majeure event for Seller: (a) Seller’s inability to sell Products at a more advantageous price; (b) increases in Seller’s production costs; (c) interruptions in Seller’s supplies, including if a supplier fails to supply Seller; (d) labor disputes or strikes at Seller’s facilities; or (e) epidemics.

14.3         The Party affected by a Force Majeure event shall promptly provide written notice to the other party, explaining in detail the full particulars and expected duration of the event, and shall use its best efforts to remedy the event with as little impact to the other party as possible.  Buyer will have the right to purchase products and services from other sources during the period of Force Majeure.

14.4         Seller will make best efforts to make delivery of Products during an epidemic, including Seller payment for expedited freight costs to meet order delivery commitments.

14.5         Prior to the delivery of Products, Buyer may cancel orders for reasons attributable to the outbreak of any epidemic. Buyer cannot be held liable, and Seller shall not be entitled to any damages or indemnifications resulting from an epidemic.

15.           Remedies

15.1         The rights and remedies available to Buyer are cumulative and in addition to all other legal or equitable remedies. Buyer has the right to set-off against any amounts payable by Buyer or its affiliates to Seller or its affiliates.

15.2         Monetary damages may not be a sufficient remedy for any actual, anticipatory, or threatened breach of an order and, in addition to all other rights and remedies that Buyer may have, Buyer shall be entitled to specific performance and injunctive equitable relief as a remedy.

15.3         Buyer may reject Products that are nonconforming and return rejected Products without payment to Seller. Seller may not repair rejected Products unless Buyer authorizes repair in writing. Seller shall reimburse Buyer for all damages caused or required by Seller’s breach or by nonconforming Products.

15.4         If Seller alleges a breach of an order by Buyer, Seller shall continue performance until such allegation is resolved.

15.5         If any portion of an order is invalid or unenforceable, the remaining portions of the order remain valid and enforceable.

16.           Confidential Information

16.1         “Confidential Information” means all non-public, confidential, or proprietary information (whether communicated in writing, verbally, electronically, or by any other means and whether communicated directly or indirectly), including but not limited to specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, and information in connection with these Conditions and the transactions contemplated therein, or any related agreement, which by its nature is intended to be for the knowledge of the receiving Party alone, and whether or not marked as “confidential” or “proprietary” or which is otherwise confidential, and all information concerning the business transactions and the financial arrangements of any Party with any person with whom that Party is in a confidential relationship with regard to the matter in question.

16.2         Neither Party, including but not limited to its affiliated entities, owners, managers, and employees shall, without the prior written consent of the disclosing Party, for any purpose other than the proper performance of its obligations under these Conditions, make use of or disclose or permit the use or disclosure to any third party of any trade secrets or other Confidential Information, whether relating to the method of operation or business of the other Party or the Products which it may receive or obtain either directly or indirectly, or make any public announcement, communication, or circular concerning the transactions to which these Conditions shall apply. This obligation shall remain in force 5 (five) years after fulfilment of the Products. Upon Buyer’s request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this clause.

16.3         A disclosing Party has no liability or responsibility for errors or omissions in, or any decisions made by, the receiving Party in reliance on any Confidential Information disclosed under these Conditions. No warranties of any kind (whether express, implied, or statutory) are made in connection with the Products as to the accuracy or completeness of the Confidential Information disclosed.

16.4         This clause does not apply to information that can be documented is: (a) rightfully in the public domain; (b) known to receiving party without restriction at the time of disclosure; or (c) rightfully obtained by receiving party on a non-confidential basis from a third party.

16.5         Seller may receive or have access to information relating to identified or identifiable individuals (“Personal Data”), including Buyer’s employees, temporary workers, contractors, consultants, customers, or suppliers. Personal Data, in whichever form, is of a very sensitive nature, and Seller shall keep Personal Data strictly confidential and use it (a) only within the limits expressly authorized by Buyer and for the limited purpose of Seller’s performance under an order, and (b) in accordance with all applicable laws.

16.6         Seller shall operate and maintain an information and cybersecurity program, including administrative, physical, and technical safeguards, designed to protect against and prevent any unauthorized use, access, processing, destruction, loss, alteration, or disclosure of Confidential Information and Personal Data (“Security”). Upon the request of Buyer, Seller shall provide proof of its Security and submit its processing facilities for audit of the processing activities covered in an order. Such audit shall be carried out by Buyer or its authorized agents with the required professional qualifications and a duty of confidentiality.

16.7         Seller shall immediately notify Buyer of any perceived, potential, or actual breach to Seller’s Security (a “Breach”), and provide a full description of the Breach, the impact, and all mitigation efforts. Seller will then promptly (a) investigate, remediate, and mitigate the effects of a Breach; and (b) provide Buyer with assurances reasonably satisfactory to Buyer that such Breach will not recur. If Buyer determines, in its sole discretion, that notices or other remedial measures are warranted, Seller will, at Buyer’s request and at Seller’s sole cost and expense, undertake such notices and remedial actions or facilitate Buyer’s undertaking of such notices and remedial actions.

16.8         Seller shall not make any release regarding an order or use of Buyer’s trademark or trade name, including any public announcements or advertising.

17.           Assignment

17.1         No assignment of any rights or delegation of any duties of Buyer shall be valid or binding unless such assignment or delegation is in writing and Seller provides prior written approval of such assignment or delegation.

18.           Governing Law

18.1         These Conditions, their interpretation, and any contractual or non-contractual obligations arising out of or in connection with it are governed by and shall be construed in accordance with the laws of the country where Buyer (i.e., the affiliated entity, subsidiary, or holding company that enters into the agreement) has its registered office without regard to any conflict of law rules. Any dispute arising directly or indirectly out of the terms and conditions of these Conditions shall be resolved exclusively by the competent courts having jurisdiction over the area where the Buyer has its registered office.

18.2         The Parties shall attempt good faith resolution of a dispute within thirty (30) days, during which time the Seller shall perform the order in accordance with Buyer’s instructions. If the Parties are unable to resolve the dispute within that period, the Parties agree that such dispute shall be resolved pursuant to the terms in Section 18.1. THE PARTIES EXPRESSLY WAIVE ANY RIGHTS TO A JURY TRIAL (IF APPLICABLE).

19.           Compliance with Law; Anti-Corruption; Export Control

19.1         Seller shall comply with all applicable import and export laws, statutes, rules, regulations, and orders of the jurisdictions where Products are sold or delivered, as well as all such laws of the United States and any other relevant jurisdiction. This includes, without limitation, all applicable US economic sanctions laws and regulations administered by the US Treasury Department’s Office of Foreign Assets Control (“OFAC”), the Export Administration Regulations (“EAR,” 15 C.F.R. Parts 730-774) administered by the US Commerce Department’s Bureau of Industry and Security (“BIS”), and the International Traffic in Arms Regulations (“ITAR,” 22 C.F.R. Parts 120-130) administered by the US State Department’s Directorate of Defense Trade Controls (“DDTC”), and comparable laws or regulations of other countries (collectively, the “Export Control Laws”). Seller shall comply fully with all applicable Export Control Laws and shall not export, re-export, release, or transfer (in country) any item or information (including Confidential Information) disclosed by Buyer to Seller to any individual or country for which prior government authorization is required without having first notified Buyer in writing and obtaining such authorization.

19.2         Seller represents that neither Seller nor any of its officers, directors, principals, or shareholders is designated on any US Government restricted party list or comparable non-US government list, including without limitation the BIS Entity List or Unverified List, the OFAC List of Specially Designated Nationals and Blocked Persons (the “SDN List”), or the DDTC Debarred Parties List. 

19.3         Seller shall assist Buyer in minimizing the costs of international transactions by providing documentation to support claims and Buyer’s compliance with Export Control Laws. Seller is responsible for all costs associated with import and export compliance, including obtaining and paying for licenses or authorizations, certificates of origin, and proper documentation for any import, export, or preferential duty claim. Seller’s obligations under this provision shall include, without limitation, providing to Buyer for each Product or shipment (a) the Harmonized Tariff System classification; (b) the US export control classification number (“ECCN”) and export classification designated for the Product in the Seller’s home country; (c) country of origin and related certifications; and (d) upon request by Buyer, documentation and certifications sufficient to demonstrate that the Product is not and does not contain any conflict minerals or materials produced from forced or child labor, or by a person identified on the UFLPA Entity List or any other Governmental list of persons identified as using forced or child labor. Any credits or refunds including tax, export, or trade credits belong to Buyer. Seller’s obligations under this clause shall survive the expiration or termination of this agreement.  

19.4         Seller agrees to assist and cooperate with Buyer to comply with Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act, Section 13(p) of the Securities Exchange Act of 1934, as amended, and related implementing rules thereunder (collectively, the “Conflict Mineral Rules”) relating to the sourcing of a “conflict mineral” (as defined in the Conflict Mineral Rules), including tin, tantalum, tungsten, and gold from the Democratic Republic of the Congo and adjoining countries (“DRC Countries”). In addition, Seller commits to, and to cause Seller’s suppliers to, have in place supply chain policies and processes to undertake a reasonable inquiry into the country of origin of conflict minerals incorporated into Products that Seller provides to Buyer and to communicate the results of such inquiry to Buyer. Seller shall provide to Buyer, on an annual basis and at such other times as Buyer may reasonably request, current, accurate, and complete Conflict Minerals Reporting Templates (“CMRTs”) or equivalent certifications in a form acceptable to Buyer, documenting the country of origin and chain of custody for all Conflict Minerals contained in products, components, or materials supplied to Buyer. The initial CMRT or certification shall be provided within thirty (30) days of the effective date of this Agreement, and thereafter no later than January 31 of each calendar year.

19.5         Seller and its suppliers shall comply with all applicable national and international anti-bribery laws, including, without limitation, the US Foreign Corrupt Practices Act, the UK Bribery Act, and the European Union, Organization for Economic Co-operation and Development (OEDC), and Council of Europe anti-bribery rules.  Without limiting the generality of the foregoing, Seller shall not directly or indirectly solicit, receive, pay, or offer any form of bribe, kickback, or other corrupt payment or anything of value to or from any person, company, or organization, including  any official, agent, or employee of any government or governmental agency, government owned company or organization, political party or officer, employee, or agent thereof, or any candidate for political office, for the purpose of obtaining or retaining business or obtaining an unfair advantage.

19.6         Seller shall not take any action to support a boycott of any country unauthorized by the government of the US, UN, EU, UK, or pursuant to applicable law, or otherwise take any action placing Buyer or any associated company of Buyer in jeopardy of breaching or violating any such laws or regulations or interpretations thereof, including, without limitation, requesting any information or documentation from Buyer the purpose of which is to comply with or give effect to any such unauthorized boycott. Buyer hereby rejects any such request by Seller and will report the receipt of such requests, as required under applicable law.

19.7         Seller and its suppliers, subcontractors, and affiliates shall at all times keep complete and accurate books and records, and all records and information that Seller provides to Buyer pertaining to an order shall be complete and accurate.

19.8         If any Products are to be used on a US Government contract, then all applicable FAR and/or DFARS flow-down obligations shall apply. Seller shall accept mandatory flow-down clauses at no additional cost to Buyer. Seller acknowledges that it has access to the full text of all FAR/DFARS clauses at www.acquistion.gov. In the event of conflict between the terms of any order or these Conditions and any FAR or DFAR  clause, the FAR and DFARS clause shall take precedence to the extent required to comply with the Government subcontract. Upon request, Seller shall provide written certification of compliance with all applicable FAR and DFARS requirements.  Seller shall indemnify and hold harmless Buyer from any costs, penalties, or damages incurred as a result of Seller’s non-compliance with applicable FAR or DFARS requirements.

19.9         Seller certifies that it, and Seller’s principals, are not debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by a federal agency.

19.10      Seller acknowledges and agrees that the Products provided under this Agreement are ‘commercial off-the-shelf’ (“COTS”) items as defined in FAR 2.101, and are offered to Buyer in the same form as sold in the commercial marketplace, without modification. Seller further agrees that only those FAR and DFARS clauses applicable to COTS items shall apply to the Products, and Seller shall promptly notify Buyer if any Product ceases to qualify as a COTS item.

19.11      Seller acknowledges that the failure to comply with all applicable laws and/or Buyer’s policies will be deemed a material breach of these Conditions and shall entitle Buyer to terminate these Conditions, the Sales Agreement, and any and all orders (in addition to any other remedies Buyer may have at law or equity). Seller agrees to indemnify, defend, and hold Buyer harmless from any breach of Seller’s obligations under this clause. Seller further acknowledges that if Buyer reasonably believes that a breach of any part of this Section 19 has occurred, is occurring, or is likely to occur, then Seller shall cooperate fully with Buyer’s investigation of the matter, and Buyer shall not be obligated to engage in any activity or transaction while such investigation is pending. Buyer’s conduct in those circumstances shall not constitute a breach of any obligation to Seller under any purchase order or these Conditions.

19.10    Duty-Free Entry Requirements for Government Contracts

(a) If Products are procured for a U.S. Government contract and may be eligible for duty-free entry under regulations like FAR 52.225-8 or DFARS 252.225-7013, Seller must cooperate with Buyer to secure this treatment.

(b) Upon receiving timely notification and necessary information from Seller, Buyer will submit the required duty-free entry entitlement requests to the appropriate government agency.

(c) Seller is responsible for providing all required documentation to Buyer and its customs broker to support the duty-free claim.

(d) Buyer will not reimburse Seller for any customs duties or fees that result from Seller’s failure to use available duty-free programs or to provide the necessary notifications and documents.

20.           General

20.1         Neither course of performance or dealing, nor usage of trade, nor prior writings or agreements shall be used to qualify, explain, or supplement any of these Conditions of Sale. The invalidity, in whole or in part, of any term herein, shall not affect any other term, each of which shall be enforced to the full extent permitted by law. These Conditions are for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of these Conditions.

20.2         Seller and its suppliers shall comply with Buyer’s Supplier Code of Conduct and Seller shall provide all relevant information and proof of compliance upon Buyer’s request. The Buyer’s Supplier Code of Conduct may be viewed at Policies and Statements – Momentive Technologies or Seller may request a copy in writing at @momentivetech.com.  Seller and its suppliers shall comply with Buyer’s environmental, health, and safety (“EHS”) requirements. If Seller fails to comply with Buyer’s requirements, Buyer may stop services and remove Seller from a Buyer location until Seller has taken appropriate corrective action. Seller shall be liable for all claims in respect of such stoppage.

20.3         Seller and its suppliers shall comply with all applicable Product Stewardship Requirements regardless of the place Products are created or delivered to Buyer or the ultimate place Buyer’s own products or its customers’ products are sold or used. “Product Stewardship Requirements” include laws, regulations, industry standards, and Buyer’s or Buyer’s customers’ requirements concerning: (a) chemical or materials composition, labeling, recycling, take back/end-of-life, and disposal; (b) product design for safety, energy efficiency, and recyclability, or similar life-cycle requirements; and (c) product packaging and transportation.

20.4         Seller, at its cost, shall: (a) identify chemical and material names and quantities contained in Products; (b) identify chemical and material composition and information to allow safe use of Products; (c) complete any material declaration or similar information requests by Buyer; (d) complete required registration with regulatory agencies of chemicals or materials composition of Products; (e) propose alternate solutions to ensure continuity of supply if delivery of Products is prohibited; (f) cooperate with Buyer in evaluating Seller’s environmental impact per international or other standards defined by Buyer; and (g) provide Buyer with evidence that Products comply with Product Stewardship Requirements.

20.5         Seller shall maintain complete and accurate records in connection with its performance under these Conditions for seven (7) years after completion of performance, including but not limited to orders, memoranda of negotiations showing the principal elements of price negotiations, and records substantiating charges for labor or services. Seller will maintain quality documents according to the applicable quality specification, or for seven (7) years, whichever is longer.

20.6         Seller agrees that data exchange is required to support the development, delivery, and quality of Products provided. Seller agrees to provide data including, but not limited to: capacity, raw material ordered and in inventory, work in process, finished goods inventory, yield, expected delivery dates, or other data critical to quality and downstream manufacturing, the resources and processes that affect Products and related continuous improvement.

20.7         If items are bailed to Seller or progress payments made, Seller grants Buyer a security interest in equipment, machinery, contract rights, inventory, goods, merchandise, and raw materials, whether now existing or hereafter arising, and any replacements, improvements, substitutions, attachments, accessories, and accessions thereto or thereon provided by Buyer or purchased by Seller with progress payments or advances made by Buyer and to be used by Seller in manufacturing products ordered by Buyer. Seller agrees to execute and deliver all documents requested by Buyer to protect and maintain Buyer’s security interest.

21.           Defense Priorities and Allocation System (DPAS)

21.1         If an order is identified as a rated order under the Defense Priorities and Allocations System (DPAS), Seller must comply with all provisions of 15 C.F.R. Part 700.

21.2      Seller must prioritize rated orders as required to meet delivery dates, including giving precedence over any unrated orders.

21.3      If an order is identified as a rated order under DPAS, Seller shall accept or reject a DO-rated order within 15 working days and a DX-rated order within 10 working days of receipt. Seller shall flow down all DPAS requirements to its suppliers and subcontractors. Seller shall immediately notify Buyer in writing of any anticipated delay or reason for rejection, including a proposed new delivery date. Seller shall prioritize all rated orders as required by DPAS regulations.

22.           Waiver

22.1         No waiver by either Party of any of the provisions of these Conditions is effective unless explicitly set forth in writing and signed by the other Party. No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from these Conditions operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power, or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.

23.           Notices

23.1         All notices, request, consents, claims, demands, waivers, and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses set forth on an order or to such other address that may be designated by the receiving party in writing.  Notices to Buyer shall include a copy to: Momentive Performance Materials Quartz, Inc. d/b/a Momentive Technologies, 22557 West Lunn Rd., Strongsville, Ohio 44149, attention: Law Department. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in these Conditions, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.

24.           Cybersecurity and Information Security

24.1         Information Security Program.  Seller shall maintain a comprehensive information security program that includes appropriate administrative, technical, and physical safeguards designed to: (i) ensure the security and confidentiality of Buyer’s Confidential Information; (ii) protect against anticipated threats or hazards to the security or integrity of such information; and (iii) protect against unauthorized access or use of such information. Seller’s information security program shall be at least as rigorous as accepted industry practices and shall comply with all applicable laws and regulations.

24.2         Security Incident Notification.  Seller shall promptly notify Buyer in writing of any actual or reasonably suspected security breach or unauthorized access involving Buyer’s Confidential Information (“Security Incident”). Such notice shall summarize in reasonable detail the effect on Buyer, if known, of the Security Incident and the corrective action taken or to be taken by Seller. Seller agrees to take prompt corrective action to remedy any Security Incident, and to provide Buyer with such information regarding the Security Incident as Buyer may reasonably request.

24.3         Security Assessment.   Upon Buyer’s reasonable request, Seller shall provide Buyer with information regarding Seller’s information security program, including completing Buyer’s information security questionnaires and providing reasonably requested documentation. Seller shall remediate, within a commercially reasonable timeframe, any vulnerabilities, security risks, or non-compliance with Seller’s information security program identified by Buyer.

24.4         System Access.  If Seller is granted access to any of Buyer’s systems or networks, Seller shall: (i) access such systems solely to the extent necessary to perform its obligations under these Conditions; (ii) ensure that only authorized personnel with a need to access such systems are provided such access; (iii) notify Buyer immediately if any credentials used to access such systems are compromised; and (iv) notify Buyer promptly when access to such systems is no longer required so credentials can be deactivated

25.        Data Protection and Privacy

25.1      Definitions

“Data Protection Laws” means all applicable laws, regulations, and binding guidance relating to data protection, privacy, and information security, including without limitation the EU General Data Protection Regulation (GDPR), the California Consumer Privacy Act (CCPA), and similar laws in any jurisdiction. “Personal Data” means any information relating to an identified or identifiable natural person.

25.2      Compliance with Data Protection Laws

Each Party shall comply with all applicable Data Protection Laws in the performance of its obligations under these Conditions. To the extent Buyer processes any Personal Data on behalf of Buyer, Seller shall: (i) process such Personal Data only in accordance with Buyer’s documented instructions; (ii) implement appropriate technical and organizational measures to ensure a level of security appropriate to the risk; (iii) ensure that personnel authorized to process Personal Data have committed themselves to confidentiality; (iv) not engage sub-processors without Buyer’s prior written consent; (v) assist Buyer in responding to requests from data subjects; (vi) assist Buyer in ensuring compliance with security, breach notification, impact assessment, and consultation obligations under applicable Data Protection Laws; and (vii) at Buyer’s choice, delete or return all Personal Data to Buyer after the end of the provision of services.

25.3      Data Ownership

All data, including without limitation any process data, performance data, operational data or any other data related to Products sold by Seller to Buyer, whether or not considered Personal Data (collectively “Product Data”), shall be owned exclusively by Buyer. Seller hereby assigns all right, title, and interest in and to such Product Data to Buyer.

25.4      Data Security Breach Indemnification

Seller shall defend, indemnify, and hold harmless Buyer and its affiliates, successors and assigns, and their respective officers, directors, employees, and agents, from and against all losses, damages, liabilities, deficiencies, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, that arise out of or relate to Seller’s breach of any data protection, privacy, or security obligation under these Conditions or under applicable Data Protection Laws.

25.5      Survival

The obligations under this Section 25 shall survive the expiration or termination of these Conditions for as long as Seller possesses Buyer’s Confidential Information or Personal Data.

26.           Miscellaneous

26.1         These Conditions constitute the entire understanding between the Parties as to the subject matter of this agreement and supersedes all other agreements, whether written or oral, between the Parties.

26.2         Amendments to these Conditions can only be made by a written document signed by both Parties.

26.3         Seller may bring any dispute or claim against Buyer only in Seller’s individual capacity and not as a class action or representative action.

26.4         Nothing in this agreement (a) creates a partnership between the Parties; (b) establishes either Party as the agent of the other; or (c) entitles either Party to commit or bid the other. 

26.5         The following sections will survive expiration or termination of these Conditions: payment terms, intellectual property, confidentiality, disclaimer, indemnification, liability, miscellaneous, and any additional sections which by their nature are intended to survive any expiration or termination. 

26.6         Seller shall not assign, subcontract, or otherwise transfer any of its rights or obligations under an order unless agreed to in writing by Buyer and if Seller does so without permission, the assignment, subcontract, or transfer will be void. Seller will impose these Conditions on any and all approved subcontractors and shall be liable for such subcontractors’ performance, actions, and omissions.

26.7         Headings are for convenience only. The term “including” when used in these Conditions shall mean “including, but not limited to”.