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, shall 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 shall apply and take precedent, and these Conditions will otherwise apply or (ii) if no Sales Agreement is in effect, these Conditions shall apply; and (b) the Product description and quantity specified in Buyer’s order as accepted by Seller, and collectively (a) and (b) shall make up Buyer’s complete contract with Seller.

1.2             To promote their safe and effective use, all Products are provided solely for use or consumption by Buyer, and any resale or other transfer of any such Products by Buyer is prohibited and shall constitute a material breach of these Conditions. These Conditions may be modified only by the written agreement of Buyer and Seller. By purchasing Products from Seller, Buyer confirms its agreement with these Conditions, and agrees that, even if Buyer sends Seller another form of agreement or terms, or modifications to these Conditions, and Seller does not agree in writing, these Conditions shall govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any sale of Products.

2.              Pricing; Order Documentation

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 shipment.

2.2             All prices are exclusive of VAT, all sales, use, and excise taxes, any customs duties, taxes, levies, and similar charges, premium freight costs, customized packaging, disassembly, tack-back, proper recycling and disposal of waste, and other costs applicable at the delivery date by Seller, and any other similar taxes, duties, and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Seller shall also be entitled to impose additional charges for the completion of forms, at Buyer’s request, with respect to shipping. Buyer shall be responsible for all such charges, costs, and taxes; provided that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel, or real or personal property or other assets.

2.3             Unless otherwise indicated on the quote, written quotations by Seller shall expire automatically thirty (30) days after the date of the quotation. If Seller implements a general or industry specific price increase for any Product, all quotations for such Product then within the thirty (30) day validity period, and all orders for such Product that are confirmed by not shipped as of the effective date of such adjustment, shall be increased accordingly.

2.4             Changes to existing orders are subject to Seller’s acceptance and may result in an increase in per piece price due to any reschedule and/or order changes. Any orders for customized Products are non-cancellable. Cancellations to existing orders are subject to Seller’s prior written acceptance and reimbursement by Buyer of Seller’s incurred costs, including all labor costs and expenses and costs of materials that are not useable by Seller, plus a thirty percent (30%) restocking fee. Such incurred costs shall be determined by Seller and communicated in writing to Buyer.

2.5             Raw Materials Price Adjustment

2.5.1 Price Adjustment Mechanism. Due to the volatility in raw material markets affecting the semiconductor and advanced materials industry, Seller reserves the right to adjust Product prices to reflect significant changes in raw material costs.

2.5.2 Notice and Documentation. Seller shall provide Buyer with at least fifteen (15) days’ written notice of any price adjustment under this section. Such notice shall include reasonable documentation substantiating the raw material cost increase, which may include industry indices, supplier invoices (with confidential information redacted), or other relevant market data.

2.5.3 Applicability to Orders. Price adjustments shall apply to: (i) new orders placed after the effective date of the adjustment; (ii) existing orders with scheduled delivery dates more than thirty (30) days after the notice date; and (iii) long-term agreements or blanket orders for the remaining quantities to be delivered after the notice date.

2.5.4 Negotiation Period. Upon receipt of a price adjustment notice, Buyer may request a good faith negotiation regarding the adjustment. Such request must be made in writing within seven (7) days of receiving the notice. During negotiations, Seller shall not be obligated to ship Products at the pre-adjustment price beyond thirty (30) days from the original notice date.

2.6             No Products shall be returned to Seller, whether for inspection, repair, replacement, or any other reason, without prior approval from Seller. Products and parts must be returned in new or like new condition with complete identification in accordance with Seller’s instructions or the shipment may not be accepted. All returns must be sent FCA to named point of departure (per Incoterms 2020) unless otherwise instructed. Where authorization has been obtained to return Products for reasons beyond warranty, a restocking charge of thirty percent (30%) and any additional transportation charges are applicable.

3.              Shipment Terms and Delivery

3.1             Unless otherwise agreed to in writing by Seller, all shipments shall be made CIP (as defined in Incoterms 2020) – to named place of destination port. Risk of loss or damage to Products shall pass from Seller to Buyer at the time such Products are first delivered to a commercial transportation carrier or appointed party for shipment. Seller retains title to and a security interest in all parts and Products delivered to Buyer until receipt by Seller of all amounts invoiced including interest and charges, as applicable. All delivery dates are estimates only and time is not of the essence. Buyer agrees that a variation of up to 10% in quantity delivered is acceptable to Buyer and shall constitute fulfillment of an order.

3.2             Except as otherwise stated herein, the Products shall be deemed to have been accepted by Buyer thirty (30) calendar days after delivery of the Products, unless Buyer notifies Seller, in writing, within that period, of the reasons for non-acceptance. Notwithstanding the foregoing, use of the Products by Buyer, its agent, employees, or customers, shall constitute acceptance of the Products by Buyer.

4.              Payment Terms

4.1             Payment shall be due in full, in U.S. Dollars, within thirty (30) days after the invoice date. Buyer shall reimburse Seller for Seller’s costs of collection, including, without limitation, any reasonable attorney’s fees, and legal costs if Buyer fails to pay Seller within such 30-day period, including interest at the rate of 1.5% per month, or the maximum interest rate permitted by applicable law, whichever is less, on any past-due amounts.

4.2             If Buyer is in default of its obligations hereunder, files for bankruptcy, or is reasonably believed by Seller to be insolvent, then Seller, in Seller’s sole discretion, reserves the right, without prejudice to any other rights or remedies which Seller may have under the applicable law, to (i) suspend or withhold shipments (including partial shipments of any purchase order) of Product to Buyer, or cease any performance, until such time as payment is received from Buyer in full, (ii) reject any new purchase orders received from Buyer, (iii) retain ownership of any re-usable packaging, and/or (iv) require Buyer to prepay for further Product shipments until complete payment has been received. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy, or otherwise.

4.3             Upon written request from Seller, Buyer shall provide Seller with all then-current financial information necessary at any time to review and confirm Buyer’s creditworthiness. Buyer has no right to offset against claims and has no right of retention or withholding payment unless Buyer’s counterclaim has been established by a final and binding decision of the competent court or is undisputed.

5.              Quality & Audit

5.1             Seller shall maintain a recognized and suitable quality assurance system for its Products and services. Buyer may, at its sole cost and expense, audit the quality assurance system on Seller’s premises, relating to its existence and application under this agreement, at a mutually agreed upon date, with at least three (3) weeks’ advance written notice and not more than once per calendar year.  

5.2        Seller shall not be liable for any defect in the quality of Products or any material difference from their description to the extent the defect or difference arises due to: (i) Buyer’s failure to follow Seller’s oral or written instructions for the storage, commissioning, installation, use, and maintenance of Products or to follow good trade practice regarding the same; (ii) Seller’s compliance with any design, specification, or instruction provided by Buyer; (iii) alterations or repairs carried out by Buyer without the written consent of Seller; (iv) fair wear and tear, willful damage, negligence, or abnormal storage conditions; (v) changes made to ensure the Products comply with applicable statutory or regulatory requirements; or (vi) Buyer’s failure to comply with its obligations under these Conditions.

5.3        If Buyer rejects Products due to a defect or material difference from their description that has arisen for a reason other than those set out in Section 5.2 above, Buyer shall be entitled to require Seller to repair or replace the rejected Products or require Seller to accept return of the rejected Products and repay the purchase price in full. Once Seller has complied with Buyer’s request, it shall have no further liability to Buyer for any defect or difference in those Products.

5.4        These Conditions shall apply to any repaired or replacement Products provided to Buyer by Seller.

6.              Limited Warranty

Seller warrants to Buyer for a period of twelve (12) months that all Products sold to Buyer shall be free of any claim of ownership by third parties and shall materially conform to Seller’s specifications in effect at the time of manufacture, or such other specifications as shall have been expressly agreed in writing by Buyer and Seller. Buyer shall inspect all Products for damage, defect, or shortage promptly after Buyer receives them. Buyer shall be deemed to have accepted the Products unless it promptly notifies Seller in writing of any nonconforming Products. The conditions of any test for conformance with specifications shall be mutually agreed upon and Seller shall be notified in writing of, and may be represented at, all such tests. Buyer agrees that, if any Product is determined not to conform to the warranty set forth above during the period ending at the earlier of (i) six months from date of shipment by Seller, or (ii) the applicable “Use By” date set by Seller, if any, Buyer’s sole and exclusive remedy shall require only that Seller, in Seller’s sole discretion, repair or replace the defective Product. Defective Products shall not be returned by Buyer until authorized by Seller. THIS LIMITED WARRANTY IS GIVEN ONLY TO THE ORIGINAL PURCHASER, IT MAY NOT BE TRANSFERRED OR ASSIGNED AND DOES NOT EXTEND TO ANY SUBSEQUENT PURCHASER OR TRANSFEREE OF PRODUCTS. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

7.              Product Specification Changes or Discontinuation

7.1             Seller reserves the right, at any time and without notice to Buyer, to modify or change the specifications, design, materials, or construction of any Product in any manner that does not materially alter the form, fit, or function of the Product (“Non-Material Changes”). For purposes of these Conditions, a “Non-Material Change” means any change that: (i) does not significantly affect the Product’s performance, reliability, or durability; (ii) does not require significant changes to Buyer’s installation, operation, or maintenance procedures; (iii) does not necessitate recertification or requalification of the Product; and (iv) does not significantly affect compatibility with Buyer’s equipment or processes.

7.2             Seller shall use commercially reasonable efforts to notify Buyer of any Non-Material Changes prior to shipping affected Products, but failure to provide such notice shall not constitute a breach of these Conditions. By accepting delivery of Products incorporating Non-Material Changes, Buyer accepts such changes and waives any claim related to such Non-Material Changes.

7.3        If Seller intends to make changes that are outside the scope of Non-Material Changes (“Material Changes”), Seller may, in its sole discretion: (i) continue to supply the unchanged Product to Buyer for a defined period, subject to availability and pricing adjustments; (ii) offer a substitute product that substantially satisfies Buyer’s requirements; or (iii) work with Buyer to implement the Material Changes. Nothing in these Conditions shall obligate Seller to continue manufacturing or supplying any Product without Material Changes.

7.4        Seller reserves the right, in its sole discretion, to discontinue manufacturing, selling, or supporting any Product (“Discontinued Product”) at any time upon providing Buyer with written notice (“Discontinuation Notice”). Except as may be expressly set forth in a Sales Agreement, Seller has no obligation to continue manufacturing, selling, or supporting any Product for any period of time. 

7.5        Following a Discontinuation Notice, Buyer may place a final, non-cancelable purchase order for the Discontinued Product within thirty (30) days of receiving such notice (“Last Buy Order”), subject to the following: (i) quantities shall not exceed Buyer’s documented average historical purchases; (ii) Seller reserves the right to accept, reject, or modify any Last Buy Order based on manufacturing capacity, material availability, or other constraints; (iii) pricing may be adjusted to reflect any increased costs; and (iv) Buyer shall take delivery of all Discontinued Products within ninety (90) days of Seller’s acceptance of the Last Buy Order unless otherwise agreed by Seller in writing. 

7.6        Seller may, in its sole discretion, offer a substitute product that Seller believes has substantially similar functionality to the Discontinued Product. However, Seller makes no warranty or representation that any substitute product will be compatible with Buyer’s equipment, processes, or intended use, and Buyer shall be solely responsible for determining the suitability of any substitute product.

7.7        Buyer acknowledges that product discontinuations are a normal part of business, and waives any claims related to a Product discontinuation that complies with this section, including any claims for breach of contract, losses, damages, or expenses arising from the unavailability of Discontinued Products.

8.              Limitation of Claims

Except as agreed in the Limited Warranty set forth above, Seller shall not be responsible for any harm arising out of Buyer’s purchase, possession, or use of any Product, whether based in contract, warranty, negligence or other tort, strict liability, or otherwise. SELLER SHALL NOT BE LIABLE FOR CONSEQUENTIAL, INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, EQUIPMENT DOWNTIME, COST OF ANY SUBSTITUTE FOR PRODUCTS, CLAIMS OF THIRD PARTIES, OR INJURY TO PERSONS OR PROPERTY. THIS LIMITATION SHALL APPLY NOTWITHSTANDING A FINDING THAT ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE CONDITIONS, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER.

9.              Advice and Other Services

Buyer agrees that Seller shall not have control over the design, testing, or labeling of any product produced using Seller’s Products, and that Buyer is not relying on any representation or statement made by, or on behalf of, Seller with respect to the suitability of any Product for any purpose, or on any advice, recommendation, or information obtained from Seller’s product literature or web sites, including any design aid or other service made available by Seller. Buyer has tested and investigated the Products enough to form an independent judgment concerning their suitability for the use, conversion, or processing intended by Buyer and shall not make, and hereby waives, any claim against Seller based on Seller’s advice, statements, information, services, or recommendations.

10.           Indemnification

10.1         Buyer shall defend, indemnify, and hold harmless Seller, its affiliates, successors, and assigns, and their respective officers, directors, employees, and agents (collectively, “Seller Indemnitees”) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (collectively, “Losses”), arising out of or resulting from: (i) Buyer’s use of the Products (whether in accordance with Seller’s instructions or otherwise); (ii) any modification, alteration, or adaptation of the Products by or on behalf of Buyer; (iii) any resale or distribution of the Products by Buyer in violation of Section 1.2 of these Conditions; or (iv) Buyer’s negligence, willful misconduct, or breach of these Conditions. Seller shall promptly notify Buyer upon becoming aware of any such claim. Buyer’s indemnification obligations hereunder shall not be limited by any limitations of liability provisions contained elsewhere in these Conditions. This indemnification obligation shall survive any termination or expiration of the relationship between Buyer and Seller.

11.           Intellectual Property

11.1         Any suggestions Seller makes about possible articles, designs, or uses of Products do not give Buyer a license under any patent or other intellectual property right covering such articles, designs, or uses, nor are they a recommendation that Buyer use any Product in a manner that may infringe any patent or other intellectual property right. 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 (i) Seller will defend Buyer against such claim, provided that Seller is notified promptly in writing and given all necessary information, assistance, and authority to defend the same, and will pay all damages and costs finally awarded to Buyer as a result thereof, and (ii) 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, modify the Product so that it becomes non-infringing, or accept return of the Product from Buyer and refund the purchase price thereof. If Buyer becomes aware of any claim of the type described above, it will promptly notify Seller in writing and give Seller all necessary information, assistance and exclusive authority for the defense of any such claim and its settlement.  The foregoing states the entire obligation of Seller for intellectual property infringement.

11.2         Seller shall not be responsible for, and Buyer shall indemnify and hold Seller harmless from and against, any and all losses, costs, expenses, claims, demands, suits, and judgments incurred by Seller arising from actual or alleged infringements of any third party’s intellectual property rights by any Product manufactured by Seller to Buyer’s specifications, design, or instruction, or to the extent that such infringement is caused by Seller’s compliance with any Buyer requirement, modification, design, or specification.

11.3         Buyer hereby warrants that all part designs, drawings, specifications and any other information disclosed to Seller belongs either to Buyer or a third party who has given legal permission to Buyer to provide such information to Seller, and that Buyer is under no restrictions from disclosing such information to Seller, and that such disclosure does not constitute a breach of any duty of confidentiality owed by Buyer to any third party.  All drawings are required to be on Buyer’s letterhead, or that of a third party for whom Buyer is legally entitled to act, prior to acceptance of order.

11.4         Seller claims all proprietary rights in the Products and any information shipped or associated with the Products. Each Party reserves ownership and copyrights with respect to its illustrations, drawings, calculations and other documents. Nothing in this agreement shall function to transfer any of either Party’s intellectual property rights to the other Party. Drawings and technical information constitute Confidential Information as defined in Section 14.1 and may not be disclosed, reproduced, disseminated, or used by either Party without the other Party’s prior express written consent.

12.           Termination

12.1         Without prejudice to any other rights of termination provided herein, the agreement between the Parties may be terminated immediately at any time, effective upon written notice under the following conditions:

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

(b) 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. 

13.           Events Beyond Seller’s Control

Seller shall not be responsible if Seller’s performance of any obligation hereunder (other than the payment of money) becomes impossible or commercially unreasonable due to any cause or event beyond Seller’s reasonable control, including, without limitation, acts of God, acts of any governmental authority, acts of Buyer, acts of terrorism, war, civil disturbance, global health conditions (including any epidemic, pandemic, or disease outbreak (including the COVID-19 virus)), labor disruption or strike, fire, explosion, release of dangerous or hazardous materials, inability to obtain necessary raw materials, utilities, transportation, machinery or services, and any similar or dissimilar cause or event.

14.           Confidential Information

14.1          “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, all other know-how, 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.

14.2          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 Seller’s request, Buyer shall (i) promptly return all documents and other materials received from Seller including all Confidential Information and all copies thereof in its possession or under its control; and (ii) destroy or delete any notes, compilations, analyses, or other documents or electronic files which contain or reflect any Confidential Information, confirming such destruction to Seller in writing. Seller shall be entitled to injunctive relief for any violation of this clause.

14.3         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.

14.4         This clause does not apply to information that Buyer can document is: (i) in the public domain; (ii) known to Buyer at the time of disclosure; or (iii) rightfully obtained by Buyer on a non-confidential basis from a third party.

15.           Assignment

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.

16.           Governing Law

The terms & conditions of this agreement, 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 Seller (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 this agreement shall be resolved exclusively by the competent courts in having jurisdiction over the area where the Seller has its registered office.

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

17.1         The Products supplied by Seller under this agreement may be subject to export controls under the laws and regulations of the United States (U.S.), the United Nations (UN), the European Union (EU), United Kingdom (UK), or the country of export, pursuant to applicable law. Such laws and regulations include but are not limited to the U.S. Export Administration Regulations (“EAR,” 15 C.F.R. Parts 730-774) administered by the U.S. Commerce Department’s Bureau of Industry and Security (“BIS”), the International Traffic in Arms Regulations (“ITAR,” 22 C.F.R. Parts 120-130) administered by the U.S. State Department’s Directorate of Defense Trade Controls (“DDTC”), and the U.S. economic sanctions laws and regulations administered by the U.S. Treasury Department’s Office of Foreign Assets Control (“OFAC”).,). Unless otherwise required under applicable laws, Buyer shall comply with such laws and regulations governing export, re-export, transfer, and use of the Products and will obtain all required U.S., UN, EU, UK, and local authorizations, permits, or licenses. Buyer and Seller each agrees to provide the other Party with information, supporting documentation, and assistance as may reasonably be required by the other, in connection with securing such authorizations, permits, or licenses. Buyer’s obligations under this clause shall survive the expiration or termination of this agreement.  

17.2         Buyer represents that neither Buyer nor any of its officers, directors, principals, or shareholders is designated on any U.S. Government restricted party list or comparable non-U.S. 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. 

17.3         Buyer shall comply with all applicable national and international anti-bribery laws in connection with the Products and their use, including, without limitation, the U.S. Foreign Corrupt Practices Act, the UK Bribery Act, and the EU, Organization for Economic Co-operation and Development (OEDC), and Council of Europe anti-bribery rules.  Without limiting the generality of the foregoing, Buyer 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.

17.4         Buyer shall not take any action in connection with the Products deemed to support a boycott of any country unauthorized by the government of the U.S., UN, EU, UK, or any government and pursuant to applicable law, or otherwise take any action which will place Seller or any associated company of Seller in jeopardy of breaching or violating any such laws or regulations or interpretations thereof. Without limiting the generality of the foregoing, Buyer will not request any information or documentation from Seller where the purpose of such request is to comply with or give effect to any such unauthorized boycott, including but not limited to the Arab League boycott of Israel. Seller hereby rejects any such request and will report the receipt of such requests, as required under applicable law.

17.5         Seller makes no warranty or representation with respect to the Products’ compliance with applicable law. Buyer has and shall maintain in effect all licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this contract. If Buyer is purchasing the Product in connection with an agreement with a governmental authority, Buyer acknowledges that it is solely responsible for complying with the terms of such agreement, including any obligations that Buyer is required to impose on its sub-contractors.

17.6         Buyer shall obtain all licenses, permits, and approvals required by any government or applicable authority, including any recycling or takeback programs applicable to packaging of Products, and shall comply with all applicable laws, rules, regulations, policies, and procedures, and any requirements applicable to the use, sale, loan, purchase, destruction, and distribution of Products under any laws and regulations of any government or other competent authority where the Products are to be used or deployed (collectively, “Applicable Laws”). In the event of any third-party claim against Seller relating to the foregoing, Buyer shall provide all necessary information and assistance in the resolution of the claim and Buyer shall indemnify and hold Seller harmless against any such third-party’s claim. Seller strives to maintain the highest standards of business integrity. If Buyer has any cause for concern regarding any business practices these should be reported to Seller. Buyer acknowledges that the failure to comply with all such Applicable Laws and/or Seller’s policies will be deemed a material breach of this contract and shall entitle Seller to terminate this agreement (in addition to any other remedies Seller may have at law or equity). Buyer agrees to indemnify, defend and hold Seller harmless from any breach of Buyer’s obligation under this clause.

17.7         Buyer shall comply with all export and import laws of all countries involved in the sale of the Products under these Conditions. Buyer assumes all responsibility for shipments of goods requiring any government import clearance. Seller may terminate these Conditions if any governmental authority imposes antidumping or countervailing duties or any other penalties on goods.

17.8         In the event that Seller reasonably believes that any provision of this Section 17 has been or may be breached, Seller may investigate the circumstances of any relevant transaction and Buyer shall cooperate fully with that investigation. During such investigation, Seller shall not be obligated to supply Products or any associated technology or services to Buyer, or to take any other act in furtherance of any transaction or agreement involving Buyer, and such suspension or forbearance by Seller shall not constitute a breach of any obligation of Seller in connection with the transaction to which these Conditions apply or otherwise.

17.9      Duty-Free Entry  

(a) If any Products are eligible for duty-free entry pursuant to FAR 52.225-8 or DFARS 252.225-7013, Buyer shall be responsible for determining such eligibility and for providing Seller with timely written notification and all necessary documentation and assistance required to claim the exemption.

(b) Upon proper and timely notification from Buyer, Seller shall use commercially reasonable efforts to cooperate with Buyer in obtaining such duty-free entry for eligible Products.

(c) Seller shall not be liable for any costs, fees, or delays arising from Buyer’s failure to secure a duty-free entitlement.  This process does not apply to exemptions available under the United States-Mexico-Canada Agreement (USMCA).

18.           Cybersecurity and Information Security

18.1         Information Security Program.  Buyer shall maintain a comprehensive information security program that includes appropriate administrative, technical, and physical safeguards designed to: (i) ensure the security and confidentiality of Seller’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. Buyer’s information security program shall be at least as rigorous as accepted industry practices and shall comply with all applicable laws and regulations.

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

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

18.4      System Access.  If Buyer is granted access to any of Seller’s systems or networks, Buyer 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 Seller immediately if any credentials used to access such systems are compromised; and (iv) notify Seller promptly when access to such systems is no longer required so credentials can be deactivated.

19.           Data Protection and Privacy

19.1      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.

19.2      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 Seller, Buyer shall: (i) process such Personal Data only in accordance with Seller’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 Seller’s prior written consent; (v) assist Seller in responding to requests from data subjects; (vi) assist Seller in ensuring compliance with security, breach notification, impact assessment, and consultation obligations under applicable Data Protection Laws; and (vii) at Seller’s choice, delete or return all Personal Data to Seller after the end of the provision of services.

19.3      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 Seller. Buyer hereby assigns all right, title, and interest in and to such Product Data to Seller. Seller grants to Buyer a limited, non-exclusive license to access and use the Product Data solely to the extent necessary for Buyer’s use of the Products for their intended purpose.

19.4      Data Security Breach Indemnification

Buyer shall defend, indemnify, and hold harmless Seller 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 Buyer’s breach of any data protection, privacy, or security obligation under these Conditions or under applicable Data Protection Laws.

19.5      Survival

The obligations under this Section 19 shall survive the expiration or termination of these Conditions for as long as Buyer possesses Seller’s Confidential Information or Personal Data.

20.           Health and Safety Compliance

Seller will give Buyer Safety Data Sheets (“SDSs”) for Products sold to Buyer. Buyer understands that some Products may be hazardous materials or hazardous substances under various laws and regulations when handled or processed. Buyer agrees to familiarize itself (without further reliance on Seller) with any hazards of the Products, their processing and applications and the containers in which the Products are shipped. Buyer agrees to provide the SDSs to all those required by law to receive the same and to inform and train its employees, and properly warn and instruct its customers, as to hazards identified in the SDSs or discovered by Buyer in its investigations. Buyer agrees to properly manage and dispose of all wastes and residues resulting from its use of all Products, including any disposable packaging, in accordance with applicable disposal or recycling laws.

21.           Electronic Commerce

Buyer may not share any password, access code, or similar credential issued to it by Seller, and Seller reserves the right to suspend or revoke any such credential. Buyer is solely responsible for ensuring the security and integrity of its ordering process. Any information provided by Seller via any internet site or electronic communication (i) is subject to correction or change without notice, and (ii) is provided for the sole use of Buyer for purposes of facilitating individual transactions involving the purchase and sale of Products. Seller may issue electronic invoices for any purchases of Products made using the Internet, e-mail, or any other computer-based electronic communications method, and agrees to honor such invoice as if it had been delivered in writing.

22.           Defense Priorities and Allocation (DPAS) Requirements; Government Contracts

22.1         Seller shall accept and comply with the Defense Priorities and Allocations System (DPAS) regulation (15 CFR Part 700) when a DPAS rating is indicated on Buyer’s purchase order. All such rated orders shall be prioritized for scheduling and fulfillment in accordance with the DPAS regulation 

22.2         Flowdown of Priority Ratings: Seller shall flow down the DPAS rating and all mandatory requirements to its suppliers and subcontractors at all tiers as necessary to obtain items needed to fill Buyer’s rated orders.

22.3         Notification of Delay: Seller shall immediately notify Buyer if it is unable to meet the required delivery date of a rated order.  Such notification shall include the reasons for the delay, and advise of a new delivery date.

22.4         Record-Keeping: Seller shall maintain records of all transactions related to DPAS rated orders as required by 15 C.F.R. § 700.92.

22.5      Seller’s maximum liability for any failure to comply with DPAS requirements shall be limited to the value of the affected order. In no event shall Seller be liable for any consequential, indirect, or special damages resulting from DPAS compliance issues. Seller reserves the right to reject any rated order that would require unreasonable modifications to Seller’s commercial production or delivery systems.

22.6      Buyer shall identify in writing at the time of order placement if the purchase is in support of a U.S. Government contract or subcontract and shall specify all FAR and DFARS clauses that Buyer requires Seller to comply with. Failure to provide such written notification shall relieve Seller of any obligation to comply with FAR and DFARS requirements.

22.7      Seller agrees to comply only with those FAR and DFARS clauses that are mandatory flow-down clauses and that are explicitly identified in Buyer’s purchase order. Any additional clauses must be negotiated and agreed to in writing by both parties prior to order acceptance. Buyer acknowledges and agrees that Seller’s Products are provided as “commercial items” as defined in FAR 2.101 unless specifically identified in writing and thus only those FAR and DFARS clauses identified in FAR 52.244-6 and DFARS 252.244-7000 shall apply. All Products are commercial off-the-shelf (COTS) items and/or commercial items as defined in FAR 2.101. No customization, modification, or development of Products shall change this designation unless explicitly agreed to in writing.

22.8      In the event of conflict between these Conditions and any FAR or DFARS clause, these Conditions shall take precedence except to the extent that the FAR or DFARS clause is mandatory and cannot be modified by agreement of the parties.

22.9      Nothing in any FAR or DFARS clause shall expand Seller’s liability beyond the limitations set forth in these Conditions. Seller specifically disclaims any unlimited liability provisions contained in any FAR or DFARS clause unless specifically agreed to in writing.

22.10    Seller shall not be required to flow down any FAR or DFARS clause to its suppliers except those that are mandatory flow-down clauses for commercial items identified in FAR 52.244-6 and DAFRS 252.244-7000.

22.11    For any Products sold in connection with a government contract or subcontract, Seller’s total liability shall be limited to the price of the specific Product giving rise to the claim, regardless of the government contract requirements.

23.           General

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. 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.

24.           Waiver

No waiver by Seller of any of the provisions of these Conditions is effective unless explicitly set forth in writing and signed by Seller. 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.

25.           Notices.

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 the face of the Seller’s acceptance of an order or to such other address that may be designated by the receiving Party in writing. 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 by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.

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

26.3         Nothing in this agreement (i) creates a partnership between the Parties; (ii) establishes either Party as the agent of the other; or (iii) entitles either Party to commit or bid the other.

26.4         The following sections will survive expiration or termination of the agreement: 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.