General Terms And Conditions For The Purchase Of Goods And Services
(a) Scope. These terms and conditions of purchase (these “Terms”) are the only terms which govern the purchase of the goods (“Goods”) and services (“Services”) by Diamond Foundry, Inc. (“Buyer”) from the seller named on the applicable Purchase Order (“Seller”, and together with “Buyer”, the “Parties”, and each, a “Party”). These Terms, together with the applicable Purchase Order, shall be deemed the “Agreement”. Subject to the terms and conditions of this Agreement, Buyer shall purchase Goods and Services from Seller, and Seller shall manufacture and/or sell Goods to Buyer, and provide Services to Buyer at the Prices and in the quantities and manner set forth in applicable Purchase Orders executed between the Parties. (b) Precedence. “Purchase Order” means Buyer’s purchase order issued to Seller hereunder, which may, among other things, specify items such as (a) the Goods to be purchased; (b) the quantity of each of the Goods ordered; (c) the Delivery Date; (d) the Price for each of the Goods to Purchase Order be purchased; (e) the billing address; and (f) the applicable Delivery Point. The Parties intend for the express terms and conditions contained in these Terms and in any Purchase Order that are consistent with the terms and conditions of this Agreement to exclusively govern and control each of the Parties’ respective rights and obligations regarding the manufacture, purchase, and sale of the Goods, and the Parties’ agreement is expressly limited to such terms and conditions. Notwithstanding the foregoing, if any terms and conditions contained in a Purchase Order conflict with any terms and conditions contained in these Terms, the applicable term or condition of these Terms will prevail and such contrary terms will have no force or effect. Except for such contrary terms, the terms and conditions of all Purchase Orders are incorporated by reference into these Terms for all applicable purposes hereunder. Without limitation of anything contained in this Section 1(b), any additional, contrary, or different terms contained in any Confirmation or any of Seller’s invoices or other communications, and any other attempt to modify, supersede, supplement or otherwise alter these Terms, are deemed rejected by Buyer and will not modify these Terms or be binding on the Parties unless such terms have been fully approved in a signed writing by authorized representatives of both Parties which expressly notes which sections of these Terms are being modified. (c) Competitors. Seller shall not, at any time, use any of Buyer’s intellectual property rights to manufacture or sell Goods or other goods or products that are similar to or competitive with the Goods to any other buyer. This Section 1(c) will survive the expiration or termination of this Agreement.
2. Delivery of Goods and Performance of Services.
(a) Purchase Orders; Confirmation. Buyer shall issue Purchase Orders to Seller in written or electronic form. For the avoidance of doubt, Buyer shall only be obligated to purchase from Seller, and Seller shall be obligated to sell to Buyer, the Goods and Services specified in a Purchase Order. Seller shall confirm to Buyer the receipt of each Purchase Order issued hereunder (each, a “Confirmation”) within ten (10) days following Seller’s receipt thereof in written form. Each Confirmation must confirm acceptance of the Purchase Order or, solely if permitted under this Agreement, advise Buyer of Seller’s rejection of such Purchase Order, the date of acceptance or rejection, and the basis for rejection, if applicable. If Seller fails to issue a Confirmation within such ten (10) day period or otherwise commences performance under such Purchase Order, Seller will be deemed to have accepted the Purchase Order. Buyer may withdraw any Purchase Order prior to Seller’s acceptance thereof. Seller may only reject a Purchase Order if: (i) Seller has sent Buyer a notice of termination in accordance with this Section 2(a); and (ii) the applicable Purchase Order includes terms and conditions that supplement those contained in these Terms, which Seller is unwilling to accept. Seller may not cancel any previously accepted Purchase Order hereunder.
(b) Delivery Date. Seller shall deliver Goods in the quantities and on the date(s) specified in the Purchase Order or as otherwise agreed in writing by the Parties (the “Delivery Date”). If Seller fails to deliver the Goods in full on the Delivery Date, Buyer may terminate this Agreement immediately by providing written notice to Seller and Seller shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to deliver the Goods on the Delivery Date. Buyer has the right to return any Goods delivered prior to the Delivery Date at Seller’s expense and Seller shall redeliver such Goods on the Delivery Date.
(c) DeliveryPoint. Seller shall deliver all Goods to the address specified in the Purchase Order (the “Delivery Point”) during Buyer’s normal business hours or as otherwise instructed by Buyer. Seller shall pack all goods for shipment according to Buyer’s instructions or, if there are no instructions, in a manner sufficient to ensure that the Goods are delivered in undamaged condition. Seller must provide Buyer prior written notice if it requires Buyer to return any packaging material. Any return of such packaging material shall be made at Seller’s risk of loss and expense.
(d) Services. Seller shall provide the Services to Buyer as described and in accordance with the applicable Purchase Order and in accordance with the terms and conditions set forth in these Terms.
(e) Time of the Essence; Compliance. Seller acknowledges that time, quantity, and delivery are of the essence with respect to Seller’s obligations hereunder and the timely delivery of the Goods and Services, including all performance dates, timetables, project milestones and other requirements in this Agreement. If Seller does not comply with any of its delivery obligations for Goods or Services, Buyer may, in Buyer’s sole discretion: (i) approve revised Delivery Dates, (ii) require expedited or premium shipment, or (iii) cancel the applicable Purchase Order and obtain similar goods or services from other sources. Without prejudice to Buyer’s additional rights and remedies available in law or in equity, in the event Seller does not comply with any of its delivery timing obligations for Goods, to the extent permitted by Law, Buyer shall be entitled to claim a pre-liquidated late delivery penalty of 0.25% of the total net purchase order value per calendar day the applicable Delivery Date is exceeded, capped at a maximum of 5% of Purchase Order invoice value. Unless otherwise expressly agreed to by the Parties in writing, Seller may not make partial shipments of Goods to Buyer.
Buyer may reject all or any excess Goods. Any such rejected Goods shall be returned to Seller at Seller’s sole risk and expense. If Buyer does not reject the Goods and instead accepts the delivery of Goods at the increased or reduced quantity, the Price for the Goods shall be adjusted on a pro-rata basis.
4. Shipping Terms.
Delivery shall be made in accordance with the terms of this Agreement. The Purchase Order number must appear on all shipping documents, shipping labels, invoices, correspondence and any other documents pertaining to the Purchase Order. Seller shall properly pack, mark, and ship Goods as instructed by Buyer and otherwise in accordance with applicable statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, order, or other requirement or rule of law of any governmental authority (“Law”) and industry standards, and shall provide Buyer with shipment documentation showing the Purchase Order number, Seller’s identification number for the subject Goods, the quantity of pieces in shipment, the number of cartons or containers in shipment, Seller’s name, the bill of lading number, and the country of origin. Unless otherwise set forth in these Terms or on the applicable Purchase Order, all Goods will be delivered DDP (Incoterms 2020) to the applicable Delivery Point.
5. Title and Risk of Loss.
Title to Goods shipped under any Purchase Order passes to Buyer upon the earliest to occur of (i) delivery of the Goods to Buyer, (ii) payment of any portion of the Price for such Goods by Buyer, (iii) Buyer’s acceptance of the Goods, (iv) Seller’s tender of the Goods to the carrier, and (v) delivery of the Goods to the Delivery Point. Title will transfer to Buyer even if Seller has not been paid for such Goods, provided that Buyer will not be relieved of its obligation to pay for Goods in accordance with the terms hereof. Notwithstanding any agreement between Buyer and Seller concerning transfer of title, risk of loss to Goods shipped under any Purchase Order passes to Buyer upon receipt and acceptance by Buyer at the Delivery Point, and Seller will bear all risk of loss or damage with respect to Goods until Buyer’s receipt and acceptance of such Goods in accordance with the terms hereof.
6. Inspection and Rejection of Nonconforming Goods.
Buyer has the right to inspect the Goods on or after the Delivery Date. Buyer, at its sole option, may inspect all or a sample of the Goods, and may reject all or any portion of the Goods if it determines the Goods are nonconforming or defective. If Buyer rejects any portion of the Goods, Buyer has the right, effective upon written notice to Seller, to: (a) rescind this Agreement in its entirety; (b) accept the Goods at a reasonably reduced price; or (c) reject the Goods and require replacement of the rejected Goods. If Buyer requires replacement of the Goods, Seller shall, at its expense, promptly replace the nonconforming or defective Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Goods. If Seller fails to timely deliver replacement Goods, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate this Agreement for cause pursuant to Section 16. Any inspection or other action by Buyer under this Section 6 shall not reduce or otherwise affect Seller’s obligations under the Agreement, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
7. Price and Payment.
(a) Prices. The prices of the Goods and Services is the price stated in the Purchase Order (the “Prices”). Unless otherwise specified in the Purchase Order, the Prices includes all packaging, transportation costs to the Delivery Point, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Prices is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.
(b) Payment Terms. Seller shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with these Terms. Buyer shall pay all properly invoiced amounts due to Seller within thirty (30) days after Buyer’s receipt of such invoice, except for any amounts disputed by Buyer in good faith. All payments hereunder must be in U.S. dollars. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Seller against any amount payable by Buyer to Seller. In the event of a payment dispute, Buyer shall deliver a written statement to Seller listing all disputed items and providing a reasonably detailed description of each disputed item. Amounts not so disputed are deemed accepted and must be paid, notwithstanding disputes on other items, within the period set forth in this Section 7(b). The Parties shall seek to resolve all such disputes expeditiously and in good faith. Seller shall continue performing its obligations under this Agreement notwithstanding any such dispute.
8. Seller’s Obligations Regarding Services. Seller shall:
(a) before the date on which the Services are to start, obtain, and at all times during the term of this Agreement, maintain, all necessary licenses and consents and comply with all relevant laws applicable to the provision of the Services;
(b) comply with all rules, regulations and policies of Buyer, including security procedures concerning systems and data and remote access thereto, building security procedures, including the restriction of access by Buyer to certain areas of its premises or systems for security reasons, and general health and safety practices and procedures;
(c) maintain complete and accurate records relating to the provision of the Services under this Agreement, including records of the time spent and materials used by Seller in providing the Services in such form as Buyer shall approve. During the term of this Agreement, upon Buyer’s written request, Seller shall allow Buyer to inspect and make copies of such records and interview Seller personnel in connection with the provision of the Services;
(d) obtain Buyer’s written consent prior to entering into agreements with or otherwise engaging any person or entity, including all subcontractors and affiliates of Seller, other than Seller’s employees, to provide any Services to Buyer (each such approved subcontractor or other third party, a “Permitted Subcontractor”). Buyer’s approval shall not relieve Seller of its obligations under the Agreement, and Seller shall remain fully responsible for the performance of each such Permitted Subcontractor and its employees and for their compliance with all of the terms and conditions of this Agreement as if they were Seller’s own employees. Nothing contained in this Agreement shall create any contractual relationship between Buyer and any Seller subcontractor or supplier;
(e) require each Permitted Subcontractor to be bound in writing by the confidentiality provisions of this Agreement, and, upon Buyer’s written request, to enter into a non-disclosure or intellectual property assignment or license agreement in a form that is reasonably satisfactory to Buyer;
(f) ensure that all Persons, whether employees, agents, subcontractors, or anyone acting for or on behalf of the Seller, are properly licensed, certified or accredited as required by Law and are suitably skilled, experienced and qualified to perform the Services;
(g) ensure that all of its equipment used in the provision of the Services is in good working order and suitable for the purposes for which it is used, and conforms to all relevant legal standards and standards specified by the Buyer; and
(h) keep and maintain any Buyer equipment in its possession in good working order and shall not dispose of or use such equipment other than in accordance with the Buyer’s written instructions or authorization.
9. Change Orders.
Buyer may at any time, by written instructions and/or drawings issued to Seller (each a “Change Order”), order changes to the Services. Seller shall within fifteen (15) days of receipt of a Change Order submit to Buyer a firm cost proposal for the Change Order. If Buyer accepts such cost proposal, Seller shall proceed with the changed services subject to the cost proposal and the terms and conditions of this Agreement. Seller acknowledges that a Change Order may or may not entitle Seller to an adjustment in the Seller’s compensation or the performance deadlines under this Agreement.
10. Representations and Warranties. Seller represents, warrants, and covenants the following to Buyer: (a) For a period of twelve (12) months from the latest to occur of the Delivery Date, the date of installation, and the date of commissioning (in each case, to the extent applicable), all Goods will:
(i) be free from any defects in workmanship, material and design;
(ii) conform to applicable specifications, drawings, designs, samples and other requirements specified in the Purchase Order;
(iii) be fit for their intended purpose and operate as intended;
(iv) be merchantable;
(v) not infringe or misappropriate any third party’s patent or other intellectual property rights.
These warranties survive any delivery, inspection, acceptance or payment of or for the Goods by Buyer.
(b) Seller shall perform the Services using personnel of required skill, experience and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and shall devote adequate resources to meet its obligations under this Agreement;
(c) To the extent requested by Buyer in writing, Seller will take the following actions ands uch other actions as may be reasonably required by Buyer to transition production of Goods from Seller to an alternative seller without production disruptions: (i) manufacture, deliver, and sell to Buyer a sufficient inventory bank of Goods to ensure that the transition will proceed smoothly and without interruption or delay to Buyer’s or Buyer’s customers’ production of products incorporating the Goods, with pricing equivalent to the pricing in effect immediately before expiration or termination; (ii) for any non-standard (i.e., not “off-the-shelf”) Goods, promptly: (A) provide to Buyer all requested information and documentation regarding and access to Seller’s manufacturing process, including on-site inspections, bill-of-material data, tooling and process detail and samples of supplies and components; and (B) assign to Buyer or an alternative seller any or all supply contracts or orders for raw materials or components relating to this Agreement and any outstanding Purchase Orders; (iii) sell to Buyer, at Seller’s actual cost, any or all work-in-process and any raw-materials inventory relating to this Agreement and any outstanding Purchase Orders; and (iv) sell to Buyer any or all finished Goods;
(d) Seller shall ensure that it has suitable quality assurance and monitoring procedures in place, and shall meet or exceed Buyer’s quality standards for the Goods as adopted by Buyer from time to time which are provided by Buyer to Seller in writing;
(e) Seller shall, at Seller’s sole cost and expense, take such actions as are necessary or appropriate to ensure the uninterrupted supply of Goods to Buyer for not less than fifteen (15) days during any foreseeable or anticipated event or circumstance that could interrupt or delay Seller’s performance under this Agreement, including any labor disruption, whether or not resulting from the expiration of Seller’s labor contracts (and whether or not such occurrence constitutes a Force Majeure Event hereunder);
(f) Seller shall promptly provide written notice to Buyer of any of the following events or occurrences, or any facts or circumstances reasonably likely to give rise to any of the following events or occurrences: (i) any failure by Seller to perform any of its obligations under this Agreement; (ii) any delay in delivery of Goods; (iii) any defects or quality problems relating to Goods; (iv) any change in control of Seller; (v) any deficiency in Buyer specifications, samples, prototypes or test results relating to this Agreement; or (vi) any failure by Seller, or its subcontractors or common carriers, to comply with Law;
(g) Except for any Goods that are part of Seller’s standard stock (i.e., “off-the-shelf”), Seller shall not make any changes with respect to the Goods or scope of this Agreement without Buyer’s advance written approval, which may be given or withheld in Buyer’s sole discretion.
The representations, warranties, and covenants set forth in this Section 10 are cumulative and in addition to any other warranty provided by law or equity. Any applicable statute of limitations runs from the date of Buyer’s discovery of the noncompliance of the Goods or Services with the foregoing. If Buyer gives Seller notice of noncompliance pursuant to this Section 10, Seller shall, at its own cost and expense, within thirty (30) days (i) replace or repair the defective or nonconforming Goods and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective or nonconforming goods to Seller and the delivery of repaired or replacement Goods to Buyer, and, if applicable, (ii) repair or re-perform the applicable Services.
(a) General. Seller shall defend, indemnify and hold harmless Buyer and its subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees (collectively, “Indemnitees”) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses”) arising out of or occurring in connection with the Goods and Services purchased from Seller or Seller’s negligence, willful misconduct or breach of the Terms. Seller shall not enter into any settlement without Buyer’s prior written consent.
(b) Intellectual Property. Seller shall, at its expense, defend, indemnify and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnitee’s use or possession of the Goods or use of the Services infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Seller enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
12. Intellectual Property.
(a) Ownership. Each of the Parties acknowledges and agrees that: (a) any and all of the intellectual property rights developed with respect to, or for incorporation into, the Goods or Services, that are either developed by Buyer alone, by Buyer and Seller jointly or by Seller alone as requested by Buyer in connection with this Agreement (“Foreground Intellectual Property Rights”) will be owned by Buyer, Seller shall only use the Foreground Intellectual Property Rights to produce and supply Goods to Buyer, and Seller hereby assigns to Buyer all of Seller’s right, title, and interest in and to all Foreground Intellectual Property Rights; and (b) each Party retains exclusive ownership of its intellectual property rights excluding Foreground Intellectual Property Rights (“Background Intellectual Property Rights”); and Buyer does not transfer to Seller any of its Background Intellectual Property Rights, and Seller may not use any of Buyer’s Background Intellectual Property Rights other than to produce and supply Goods to Buyer hereunder.
(b) License of Seller’s Background Intellectual Property Rights. Seller grants to Buyer an irrevocable, non-exclusive, worldwide, perpetual, royalty-free license, with the right to grant sublicenses, to use Seller’s Background Intellectual Property Rights to produce, use, sell, make, have made and to obtain, from alternate sources, products and services similar to the Goods following the expiration or earlier termination of this Agreement and in connection with Buyer’s rights hereunder to purchase Goods and Services from an alternative source at any time.
13. Inspection; Audit.
Seller hereby grants, to Buyer and its authorized representatives, access to Seller’s premises and all pertinent documents and other information, whether stored in tangible or intangible form, in any way related to Seller’s performance under this Agreement, Goods, Services, or any payment or other transaction occurring in connection with this Agreement, for the purpose of auditing Seller’s compliance with the terms of this Agreement. Seller agrees to cooperate fully with Buyer in connection with any such audit or inspection. Seller shall maintain, during the Term and for a period of three (3) years after the Term, complete and accurate books and records and any other financial information in accordance with GAAP. Seller shall segregate its records and otherwise cooperate with Buyer so as to facilitate any audit by Buyer. Seller shall reimburse Buyer for all amounts associated with errors discovered during an audit. In addition, Seller shall reimburse Buyer for the amount of Buyer’s reasonable costs and expenses incurred in conducting the audit if the results of such audit indicate that such discrepancy is greater than five percent (5%) of the total amount actually payable by Buyer for the period examined. If requested by Buyer, Seller shall use its best efforts to permit Buyer and its representatives to obtain from subcontractors or other suppliers to Seller the information and permission to conduct the reviews specified with respect to Seller in this Section 13.
During the term of this Agreement, Seller shall, at its own expense, maintain and carry adequate insurance in full force and effect which includes, but is not limited to, employer liability and commercial general liability (including product liability) with financially sound and reputable insurers, covering risks that are typically covered within Seller’s industry. Upon Buyer’s request, Seller shall provide Buyer with a certificate of insurance from Seller’s insurer evidencing the insurance coverage specified in these Terms. Seller shall provide Buyer with 30 days’ advance written notice in the event of a cancellation or material change in Seller’s insurance policy. Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against Seller’s insurers and Seller.
15. Compliance with Law.
Seller shall comply with all applicable Laws (including, without limitation, applicable data protection Laws), as well as Buyer’s internal policies and procedures, including without limitation Buyer’s antibribery policies, Code of Business Conduct and Ethics, and Supplier Code of Conduct, in each case as provided in writing by or made available on the website of Buyer. Seller shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement. Seller shall comply with all export and import Laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Seller. Seller assumes all responsibility for shipments of Goods requiring any government import clearance. Buyer may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods. Supplier declares that all Goods subject to an applicable Purchase Order are not subject to either of ITAR or EAR regulations (other than EAR99) if sourced from the United States. If any Goods are subject to ITAR or EAR (other than EAR99), Seller shall notify Buyer prior to execution. For the avoidance of doubt, supplier declares and warrants that (i) any Goods sourced from the United States are not listed on the ITAR USML; and (ii) any Goods sourced from the US are listed on the EAR CCL unless they have a EAR99 class or an EAR other than 9a515.x. Seller declares that it fully understands that sourcing any Goods classified in any of the above can have material implications for Buyer beyond the scope of the applicable Purchase Order and therefore Buyer will be entitled to full indemnification from Seller pursuant to Section 11 above which shall survive the termination of the Agreement.
In addition to any remedies that may be provided under the Agreement, Buyer may terminate this Agreement with immediate effect upon written notice to the Seller, either before or after the acceptance of the Goods or the seller’s delivery of the Services, if Seller has not performed or complied with any of these Terms, in whole or in part. If Buyer terminates the Agreement for any reason, Seller’s sole and exclusive remedy is payment for the Goods received and accepted and Services accepted by Buyer prior to the termination.
No waiver by Buyer of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Buyer. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement 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.
18. Confidential Information.
All non-public, confidential or proprietary information of Buyer, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the purpose of performing this Agreement and may not be disclosed or copied unless authorized in advance by Buyer in writing. 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 Section 18. This Section 18 does not apply to information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by Buyer on a non- confidential basis from a third party.
19. Force Majeure.
No Party shall be liable or responsible to the other Party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such Party’s (the “Impacted Party”) failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemics, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect after the date of this Agreement; or (f) national or regional emergency. The Impacted Party shall give notice within ten (10) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) days following written notice given by it under this Section 19, the other Party may thereafter terminate this Agreement upon written notice.
Seller shall not assign, transfer, delegate or subcontract any of its rights or obligations under this Agreement without the prior written consent of Buyer. Any purported assignment or delegation in violation of this Section 20 shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign or transfer any or all of its rights or obligations under this Agreement without Seller’s prior written consent to any affiliate or to any person acquiring all or substantially all of Buyer’s assets.
21. Relationship of the Parties.
The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever.
22. No Third-Party Beneficiaries.
This Agreement is 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 this Agreement.
23. Governing Law.
All matters arising out of or relating to this Agreement are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule (whether of the State of California or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of California.
24. Submission to Jurisdiction/Arbitration.
Any legal suit, action or proceeding arising out of or relating to this Agreement shall be instituted in the federal courts of the United States of America or the courts of the State of California in each case located in the City and County of San Francisco, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. All disputes arising out of or in connection with this Agreement shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce in San Francisco, California, by one or more arbitrators appointed in accordance with the said Rules
All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the Parties at the addresses that may be designated by the receiving Party in writing in the applicable Purchase Order. 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 this Agreement, 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 25.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Provisions of these Terms which by their nature should apply beyond their terms will remain in force after any termination or expiration of this Agreement including, but not limited to, the following provisions: Insurance, Compliance with Laws, Confidential Information, Governing Law, Submission to Jurisdiction/Arbitration and Survival.
28. Amendment and Modification.
These Terms may only be amended or modified in writing stating specifically that it amends these Terms and is signed by an authorized representative of each Party.
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