KSE SCIENTIFIC, LLC
TERMS AND CONDITIONS OF SALE
THESE TERMS AND CONDITIONS OF SALE APPLY TO THE SALE OF SELLER’S PRODUCTS. SELLER’S ACCEPTANCE OF ANY ORDER IS EXPRESSLY MADE CONDITIONAL UPON BUYER’S ACCEPTANCE OF ALL TERMS AND CONDITIONS CONTAINED HEREIN AND IN SELLER’S SALES ORDER ACKNOWLEDGEMENT.
1. Agreement Terms
1.1 General Terms. These terms and conditions (“Terms”), our quotation (if any), and Supplementary Terms, if any, comprise the agreement between you (referred alternatively herein as “Buyer”, “you”, or “your” and meaning the individual, company or other entity that has submitted an Order to Seller) and KSE Scientific, LLC, a Delaware Limited Liability Company (referred alternatively herein as “KSE”, “Seller”, “we”, “our”, or “us”). Unless your Order is subject to a valid, written, executed agreement specifically between you and KSE, in which case such agreement governs, these terms and conditions are the sole and exclusive agreement between you and KSE with respect to the Products and Services (as each term is defined below), and you agree and accept to be bound by these terms and conditions by ordering Products and/or Services or if you receive ordering or sales documents that reference these Terms.
1.2 Definitions. For purposes of these Terms, the following definitions apply:
“Binding Forecast” means a written twelve (12) month’s forecast for Consumables submitted by you to us as part of the Forward PO, which, once confirmed in writing by us, becomes binding on the parties.
“Bioprocess Product(s)” or “Products” means, generally, individually, and collectively, Consumables and/or Equipment.
“Confirmation” means our written confirmation of an Order or your participation in the Forward PO program for the Consumables listed in the Forward PO and which are part of the Binding Forecast.
“Consumable(s)” means consumable Bioprocess Products used in Bioprocess processes, including but not limited to: cell culture media; reagents; buffers; process liquids; chemicals; compounds; supplements; single-use, flexible and rigid fluid containment systems for bioprocessing and liquid handling, including system components such as containers, bags, liners, ports, tubing, fittings, manifolds, filters, sensors and end treatments; provided by us to you.
“Custom” means customized or special Bioprocess Products and/or Services that are manufactured or performed to written instructions, specifications or designs agreed to in writing by you and us.
“Deliverables” means the written results of the Services performed by us for you.
“Documentation” means labels affixed to Bioprocess Products or packaging; documentation, specifications, limited use label licenses and/or accompanying package inserts shipped with Bioprocess Products or Deliverables; certificates of analysis or conformance made available for applicable Bioprocess Products; and/or documentation, specifications, use guidelines or instructions available in our catalogs, on our website, or that we provide to you for applicable Bioprocess Products.
“Equipment” means durable Bioprocess and bioprocess liquid handling instruments and equipment including but not limited to bins, vessels, single-use bioreactors, single-use mixers, single-use fermentors, and related controllers and software provided by us to you.
“Forward PO” means a binding forward purchase order submitted by you to us in order to obtain continuity of supply for Consumables.
“Order” means Buyer’s expressed request, whether oral or written, and whether transmitted electronically or otherwise, to purchase Goods from Seller.
“Service(s)” means services or studies provided by us to you related to the form, fit and/or function of Bioprocess Products, including, but not limited to, those under the title Stability Studies, Factory Acceptance Testing Services, Site Acceptance Testing Services (or any combination thereof), as well as related to the procurement, storage, distribution, marketing and sale of chemicals and other Consumables. “Services” excludes media or cell line development services, media or cell line optimization services, media or cell line analytical testing services, and any services where the Deliverables include biological materials – which such services must be provided under a separate mutually executed agreement between you and us. For the avoidance of doubt, Services are ancillary to the sale of Products and not the predominate subject matter or basis for performance between the Parties.
“SKU Number” means our stock-keeping unit, part number, or product identification number assigned to the Bioprocess Product or Service or the raw materials or components associated with the Bioprocess Product in our business systems.
“SOW” means written study or testing protocols and/or statement(s) of work mutually agreed upon between the parties.
“Specifications” means our current, documented specifications or designs for Bioprocess Products or Services in effect at the time of order acceptance and/or Confirmation; or, in the case of Custom Bioprocess Products, Specified Components or Custom Services, “Specifications” means the mutually agreed upon written specifications or designs for such Custom Bioprocess Products, or Specified Components, or the mutually agreed upon quotation or SOW for such Custom Services.
“Specified Components” means specified raw materials, components, sources, brands or suppliers requested by you to be used in the manufacture or assembly of Custom Bioprocess Products or the performance of Custom Services and includes Consumables and other products and substances manufactured or supplied by third parties, including those products that you purchase through any of our sales channels or affiliates.
1.3 Supplementary Terms. As separately provided and made applicable to certain transactions.
1.4 Terms Conflict. If any conditions within the Agreement documents conflict with each other, we will give them the following priority: (a) the quotation; (b) any applicable Supplementary Terms; and (c) finally these Terms. The Parties intend for the expressed terms and conditions contained herein (including any Attachments hereto) to control the transactions contemplated. Without limitation of the foregoing, Seller rejects any additional, contrary or different terms and conditions contained in any respective Order, sales acknowledgement, invoice or other request or communication by either Party pertaining to the sale of the Products and shall be of no force or effect. Seller will not be deemed to have waived these terms and conditions of sale if it fails to object to any provision contained in Buyer’s forms or otherwise.
1.5When Agreement takes Effect. The Agreement between us is created when you receive email confirmation that we have accepted your Order.
2.1 Determining Price. The price for Products as shown in our quotation or our SOW to you, or for an Order, Forward PO, Binding Forecast and Confirmation, is subject to adjustment without notice on account of any changes to Specifications, quantities, raw materials, cost of production, shipping arrangements, currency exchange, or terms or conditions which are not part of our original price quotation.
2.2 Delivery Fees; Freight Policy. You are responsible for delivery, insurance, Equipment installation, and handling charges, if any, and our Bioprocess Product prices do not include such charges unless expressly stated. If we pay such charges, we will add them to your invoice.
2.3 Import Duties and Taxes. Where applicable, import duties and taxes are not included in the price of Products. Prices do not include Federal taxes, state or local sales taxes, use taxes, occupational taxes or import duties and unless prohibited or otherwise required by law, Buyer is responsible for and shall pay all applicable sales, use, occupation, excise, value added or other similar taxes or import duties applicable to the manufacture, sale, price, delivery or use of Products provided by Seller, or in lieu thereof, Buyer shall provide Seller with a tax-exemption certificate acceptable to and considered valid by the applicable taxing authorities.
3. Cancellation and Changes.
Once you have placed your Order for Bioprocess Products or Services (Custom or otherwise), you cannot cancel or change it without our written consent. We have no obligation to perform services after the expiration of a written quotation.
4. Forward PO Program; Storage
4.1. Consumables Forward PO Program. If you desire to participate in KSE Scientific’s Consumables Forward PO Program, you will submit a Binding Forecast, which, once we issue a Confirmation, becomes binding on the parties. The Confirmation will contain the SKU Numbers for the raw materials or components to be used in the production of the Bioprocess Products in the Binding Forecast, and the price or quotation reference. You will have two (2) business days from the date of the Confirmation to cancel or make modifications to the Confirmation in writing. If you do not cancel or make modifications to the Confirmation in writing, the Confirmation will be binding on both parties. You will then submit a Forward PO for the Consumables in the Binding Forecast. Upon receipt of the Forward PO, we will proceed to purchase the raw materials described in the Confirmation or as otherwise required and produce such Bioprocess Products according to the Specifications. We may deliver the Bioprocess Products up to 4 weeks prior to the originally requested delivery date described in the Binding Forecast upon written request by you and with confirmation by us. We will accept multiple release shipments against the Binding Forecast and will invoice each shipment separately. Upon the expiration of the Binding Forecast, any remaining Bioprocess Products produced but not yet shipped under the Binding Forecast will be shipped to you and invoiced, and if such Bioprocess Products have not been produced, we may invoice you for the burdened cost of raw materials described in the Confirmation or as otherwise required but not yet used in manufacture of the Bioprocess Products.
4.2. Storage Fees. If you fail to take delivery of the Bioprocess Products pursuant to your Order or according to the Binding Forecast schedule, we may provide storage and assess storage fees for raw materials and/or finished Bioprocess Products that are held at KSE Scientific facilities past the original requested delivery date. If you still have not taken delivery of the raw materials and/or finished Bioprocess Products three (3) months past the original requested delivery date, unless we agree in a signed writing to continue to hold the raw materials and/or finished Bioprocess Products for additional storage fees and an excess inventory/reserve/storage fee which we will invoice you for and you will pay to us, we will ship the raw materials and/or finished Bioprocess Products to you and invoice you for them.
5.1 Terms. Payment shall be made in US Dollars and unless otherwise agreed in writing (e.g., Confirmation) be made within thirty (30) days measured from the date of shipment. Unless prepaid, all Orders are subject to credit approval by Seller. Whenever reasonable grounds for insecurity arise with respect to due payment from Buyer or with respect to Buyer’s financial condition, Seller may demand different terms of payment from those specified and may demand additional assurance of Buyer’s payment. In connection with a demand for additional assurance, Seller reserves the right to stop production and suspend shipments. If Buyer fails to agree to such different terms of payment or fails to give adequate assurance, Seller reserves the right to treat such failure as a repudiation.
5.2 Late Payment. Failure by Buyer to make full payment by the due date shall constitute a default. If you are late in making payment in addition to any other rights available to Seller at law or in equity, Seller will be entitled to assess interest charges upon Buyer for any overdue amounts (as well as on any judgment for the same). The late payment charge will be calculated as interest on the sums due from the payment due date until you make payment in full, at the rate of 1.5% per month, or, if less, the maximum amount allowed by law and will also include our reasonable costs of collection (including collection agency fees and attorneys’ fees). We also reserve the right to cancel or stop delivery of products in transit and withhold shipments in whole or in part if you do not pay us when due, or if you otherwise do not perform your obligations in this Agreement.
6.1 Default Shipment Method. Unless otherwise agreed to by the Parties in writing, the default shipment of the Products to the destination you specify in your Order shall be EXW Incoterms 2020 our shipping point. By agreeing to these Terms, you (i) give your consent for us to arrange for carriage for all Products supplied hereunder on your behalf; and (ii) waive your right to arrange carriage or to give us any specific instructions regarding carriage. We may, in our discretion, make partial shipments and invoice each shipment separately. Our shipping dates are approximate only, and we will not be liable for any loss or damages resulting from any delay in delivery. You may not refuse delivery or otherwise be relieved of any obligations as the result of such delay. If our delivery of a Product to you is delayed due to any cause within your control, we will place the delayed Products in storage at your risk and expense.
6.2 Force Majeure. Seller shall not be responsible for the failure or delay in the performance of an Order as a result of any one or more of the following events, including but not limited to, fire, flood, strike, lock-out, epidemic/pandemic, accident, act of God, or other causes beyond the reasonable control of the Seller and which affects Seller’s ability to perform its obligations hereunder (“Force Majeure Event”). Nothing herein shall be construed as limiting a Force Majeure Event to the foregoing enumerated events or Seller seeking relief under the doctrine of impracticability. As soon as practicable after discovery of a Force Majeure Event, Seller shall notify Buyer in writing setting forth the details of the Force Majeure Event and its expected or foreseeable duration and shall use commercially reasonable efforts to resume the performance of its obligations hereunder. If a Force Majeure Event lasts or is reasonably expected to last more than sixty (60) days, either Party may terminate an Order immediately upon written notice to the other Party
7. Risk of Loss and Title
Unless otherwise agreed to by the Parties in writing, risk of loss of the Products and title will pass to you when Seller completes performance in accordance with the shipping term which in accordance with 6.1 herein is defaulted to EXW Incoterms 2020 (i.e., we load them onto the commercial carrier at our facility). Passage of title shall be under reservation of rights and all remedies available to Seller where the Buyer wrongfully rejects or revokes acceptance of Products or fails to make a payment due on or before delivery or repudiates with respect to a part or the whole of the Order and title shall revest to Buyer. In the event of a Buyer breach, Seller is entitled to seek incidental damages for any commercially reasonable charges, expenses or commissions incurred in stopping delivery, in the transportation, care and custody of goods after the buyer’s breach, in connection with return or resale of the goods or otherwise resulting from the breach.
8. Product Returns Other Than Warranty Claim
8.1 Returns. Subject to Section 3 herein, Buyer must contact Seller within five (5) business days of receipt of Products to obtain a returns authorization number for any returns, rejection, or revocation of acceptance of such Products for any reason other than a warranty claim, otherwise any attempt to return made thereafter shall be null and void unless agreed to in writing by Seller and the Products will deemed accepted. Under no circumstances shall any Products be returned by Buyer, to Seller, without a Certification stipulating that the Products have not been exposed to known carcinogens, toxic, hazardous, or biological materials. Any credit will be processed upon receipt and inspection of the Products. Returns are subject to a 20% restocking fee. Our Customer Service team must pre-authorize all Product returns.
8.2 Custom Product Returns. You may return a Custom Product only if the Custom Product does not conform to the Specifications as of the date of shipment and qualifies as a warranty claim.
9.1 Limited Warranties for Products and Services. Unless a different warranty is included in applicable Supplementary Terms or Documentation, we provide a limited warrant that the Products, which are non-consumer, will (i) be of good title free of all liens, claims or encumbrances; (ii) consist of only new materials; (iii) be free from any defects in material or workmanship; and (iv) conform to the applicable Specifications or if no such specifications are established, those set forth in the Seller’s published documentation relating to the Products, if any. The warranty lasts from the date we ship the Products or perform the Services until the earlier of: (a) the expiry or “use by” date; (b) its specified number of uses; or (c) twelve (12) months from the date we ship the Products or perform the Services (“Applicable Warranty Period”).
9.2 Exclusions. Notwithstanding anything to the contrary herein, this Limited Warranty does not cover (i) normal wear and tear, or damage or loss as a result from any of the following occurrences: improper care, storage, or maintenance; negligence, misuse, or accident; non-conformity to safety measures or operating instructions; unauthorized modification or alterations; extreme environmental conditions; repairs by anyone other than Seller (or its authorized representatives); or integration with any third-party product; or (ii) failure to follow the Documentation, Supplementary Terms, or instructions in Deliverables, operation outside of applicable stated environmental Specifications, use Specifications or other Specifications or otherwise in a manner for which they were not intended or designed, or (a) use of the Deliverables or any Documentation to support any regulatory approvals; (b) the performance efficacy or compatibility of Specified Components; and (c) the performance of Custom Products, Specified Components or achievement of any results from the Products, Specified Components or the Services within ranges desired by you, (e.g. pH level for media, or achievement of a specified titer), even if those ranges are communicated to us and are described in Specifications, our quotation, or a SOW. WE MAY ALSO VOID YOUR WARRANTY IF YOU SHIP THE PRODUCT OUTSIDE OF THE COUNTRY WHERE WE DELIVER THE PRODUCT TO YOU. You must pay for all manufactured lots of Custom Products so long as they comply with the Specifications, even if the Custom Products do not perform to your expectations in your own applications.
9.3 Specified Components and Third-Party Products. We do not support or make any warranties about Specified Components or products manufactured or supplied by third parties that you purchase through any of our sales channels. The provision and use of Specified Components may be governed by a third-party manufacturer’s own contract terms. You must look directly to the relevant third-party manufacturer for product support, warranties, and to make warranty claims concerning Specified Components. We agree, however, to assign to you any warranty rights we may have from the original manufacturer or third-party supplier, concerning the Specified Components to the extent the original manufacturer or third-party supplier allows. Custom Bioprocess Products and/or Custom Services which include Specified Components may be subject to price increases at any time, before or after the issuance of our quotation, due to changes in the Specified Component supplier’s prices. We will not be obligated to provide quantities of Custom Bioprocess Product or deliver Custom Services incorporating Specified Components due to a failure of such Specified Component suppliers. You represent and warrant that the inclusion of the Specified Component in a Custom Bioprocess Product, use with a Bioprocess Product, or use as part of Custom Services, will not infringe any third parties’ rights, and you will indemnify and hold us harmless from any such third-party claims.
9.4 Use Restrictions. In the absence of any intended use statement in the Documentation or other Supplementary Terms associated with such Bioprocess Products, which will control, Bioprocess Products are intended for research use or further manufacturing in bioprocessing applications, and not for diagnostic use or any direct consumption by or application to humans or animals. We do not submit Bioprocess Products for regulatory review by any governmental body or other organization, and we do not validate them for clinical or diagnostic use, for safety and effectiveness, or for any other specific use or application. You may not disassemble, decompile or reverse engineer, copy, modify, enhance or otherwise change or supplement the Bioprocess Products without our prior written consent.
(A) SELLER’S LIABILITY AND BUYER’S EXCLUSIVE REMEDY FOR ANY TENDER OF NONCONFORMING OR DEFECTIVE PRODUCTS, OR BREACH OF LIMITED WARRANTY DURING THE APPLICABLE WARRANTY PERIOD IS EXPRESSLY LIMITED TO SELLER’S SOLE DISCRETION TO (A) REPAIR NONCONFORMING OR DEFECTIVE PRODUCTS; (B) REPLACE NONCONFORMING OR DEFECTIVE PRODUCTS WITH CONFORMING PRODUCTS, OR (C) REPAY THAT PORTION OF THE PURCHASE PRICE REPRESENTED BY NONCONFORMING OR DEFECTIVE PRODUCTS.
(B) EXCEPT AS OTHERWISE STATED IN SECTION 9 OF THIS AGREEMENT, WE EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, WITH RESPECT TO THE PRODUCTS, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES:
(a) OF MERCHANTABILITY;
(b) OF FITNESS FOR ANY PARTICULAR PURPOSE; AND/ OR
(c) THAT THE PRODUCTS ARE ERROR-FREE OR WILL ACCOMPLISH ANY PARTICULAR RESULT.
9.6 Claim Process. Seller may approve a warranty claim of any Product that is alleged as damaged, defective, or non-confirming to the Specifications, provided you contact our Customer Service team within five (5) business days after you discover or should have discovered any damage, defect, or non-conforming Products and such claim is within the applicable Warranty Period. You may be required to provide a sample of any Bioprocess Product that you claim as damaged, defective or non-conforming to the Specifications for us to consider authorizing a claim. After our review, assuming we authorize the claim, where applicable we will provide you with service data and/or a Return Material Authorization (“RMA”), which may include biohazard decontamination procedures and other product-specific handling instructions that you must follow. For valid product warranty claims timely made in accordance with this Agreement, you must return the non-conforming products to us, unless we agree otherwise, and we will prepay the shipping costs. We will ship warranty claim Products according to our shipping terms in Section 6 of this Agreement.
10.1 The Seller shall indemnify and hold harmless Buyer and its officers, directors, and employees (“Buyer Indemnified Parties”) from and against all third party legal claims for any actual losses, damages, and liabilities (collectively, the “Losses”) to the extent such Losses arise under: (i) any gross negligence or intentional misconduct of Seller in performance of this Agreement; (ii) any death, bodily injury, or property damage proximately caused by the Products of Seller under this Agreement; and (iii) that the Goods actually infringe the intellectual property rights of any third party; provided however, that to the extent any foregoing Losses were proximately caused or contributed by the negligence or intentional misconduct of Buyer, Seller shall indemnify Buyer Indemnified Parties only for the proportional Losses attributable to Seller.
(A)Conditions to Our Indemnity. As a condition to our indemnification obligations you must (a) notify us in writing, as soon as you become aware of any claim; (b) not admit any liability or take any other action in connection with the claim that could affect the defense; (c) allow us to solely control the defense or settlement of the claim; (d) give us your reasonable information, co-operation and assistance; and (e) take all reasonable steps to mitigate losses incurred.
10.2 The Buyer shall indemnify and hold harmless Seller and its officers, directors, and employees (“Seller Indemnified Parties”) from and against all third party legal claims for any actual losses, damages, and liabilities (collectively, the “Losses”) to the extent such Losses arise under: (i) any gross negligence or intentional misconduct of Buyer in performance of this Agreement and (ii) any death, bodily injury, or property damage proximately caused by Buyer under this Agreement; provided however, that to the extent any foregoing Losses were proximately caused or contributed by the negligence or intentional misconduct of Seller, Buyer shall indemnify Seller Indemnified Parties only for the proportional Losses attributable to Buyer.
11.1 Use Limitations. As between you and us, we exclusively own all intellectual property rights relating to our Products and Services. No right to transfer, reverse engineer, decompile, disassemble, distribute, or resell our products or any of their components is conveyed expressly, by implication, or by estoppel. Unless expressly permitted by us in writing, you will not modify, change, remove, cover or otherwise obscure any of our brands, trade or service marks on the Products. Nothing in the Agreement limits our ability to enforce our intellectual property rights.
11.2 Commercial Applications; Additional Rights. Buyer’s purchase of Products does not grant or convey any rights to use our Products in any commercial application, including manufacturing, quality control, commercial services such as reporting the results of your activities for a fee or other consideration, or in vitro diagnostic uses, ex vivo or in vivo therapeutic uses, or any type of consumption by or application to humans or animals. If you need commercial use rights in respect of our Products (including the right to perform fee-for services), please contact us. Where your use of our Product is outside the scope of the Agreement, it is solely your responsibility to acquire Additional Rights.
11.3 Intellectual Property Ownership. Intellectual Property Rights means all rights to intellectual property regarding a particular item, Products, or performance of Seller including but not limited to copyrights, trademarks, patents and applications therefor, trade secrets, licenses, innovations (whether or not patentable), concepts, processes, formulations, designs, technical data or drawings and other proprietary assets. No license, express or implied, is granted by the Seller to the Buyer for Seller’s Intellectual Property Rights. All Intellectual Property Rights of Seller owned or licensed (“Background IP”) that are used with respect to the performance of Seller’s obligations hereunder shall remain the property of Seller, and Buyer shall not acquire any right, title, or interest in or to such Background IP as a result of Seller’s performance hereunder either by implication, estoppel or otherwise. Seller reserves and shall retain all rights, title and interests in and to all developed or enhanced systems, policies, procedures, applications, software, technology, materials, documents, experience (know-how), knowledge, data, and other information or results related to the Products, Deliverables or Background IP or trade secrets, formulae, pattern, compilation, program, device, methods, technique, or process related to the Seller’s Products (“Seller Arising IP”). Consideration or compensation to the Seller, if any, does not vest Buyer with any rights, licenses, patents, assignments, or ownership in or to any Seller Background IP or Arising IP. Seller shall not be liable to Buyer for any notice of Seller Arising IP resulting from the Products or performance by the Seller.
11.4 Intellectual Property Infringement. We want to avoid claims of intellectual property infringement. If we believe a product we have sold to you may be subject to a claim for intellectual property infringement, you must allow us (at our option) to either (a) secure for you the right to continue using the product; (b) substitute the product with another suitable product with similar functionality; or (c) tell you to return the product to us and we will refund to you the price you paid. In the case of instruments, we will take off a reasonable amount for the instrument’s use, damage or because it is now out of date or out of use.
12. Custom BioProcess Products
12.1 Declining to Make or Deliver. If you ask us to manufacture a Custom BioProcess Product, we may decline to design or manufacture that product at any stage of the process if the product is unsuitable or commercially impractical to manufacture as specified. If so, we will notify you, and you will not be obligated to pay any fees for any expenses we incurred in connection with the declined product. If a custom component or material fails, we may delay or cancel a custom product’s delivery without liability to us.
12.2 Your Responsibilities. By submitting an Order for a Custom BioProcess Product, you represent and agree that you (a) have given us all information you know of regarding any biological, radiological, and chemical hazards associated with the handling, transport, exposure to, or other use of the materials you supply to us; and (b) have the requisite rights, including but not limited to any necessary intellectual property rights, to instruct manufacture of such product.
13. Limitations and Exclusions of Liability
(A) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE WILL NOT BE LIABLE UNDER ANY LEGAL THEORY (INCLUDING BUT NOT LIMITED TO CONTRACT, NEGLIGENCE, STRICT LIABILITY IN TORT OR WARRANTY OF ANY KIND) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, MULTIPLE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING BUT NOT LIMITED TO ALL COSTS OF COVER, LOST PROFITS, LOST DATA, LOSS OF BUSINESS, LOSS OF GOODWILL OR LOSS OF REVENUE) THAT YOU MIGHT INCUR UNDER AN ORDER, OR THAT MAY ARISE FROM OR IN CONNECTION WITH OUR PRODUCTS OR SERVICES, EVEN IF WE HAD NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
(B) IN ADDITION, OUR MAXIMUM AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH AN ORDER, OR ANY PRODUCT UNIT OR SERVICE, IS LIMITED TO 100% OF THE AMOUNT YOU PAID TO US FOR THE SPECIFIC PRODUCT PURCHASED THAT GAVE RISE TO THE LIABILITY.
(C) THE PROVISIONS ABOVE IN THIS SECTION 15 DO NOT LIMIT OUR LIABILITY THAT CANNOT BE LIMITED BY LAW, INCLUDING BUT NOT LIMITED TO LIABILITY FOR FRAUD AND DEATH OR PERSONAL INJURY CAUSED BY OUR NEGLIGENCE.
14. Export Restrictions
14.1 Items. You acknowledge that each product and any related software and technology, including technical information we supply you, including those contained in product documents (collectively “Items”), is subject to U.S., EU and local government export controls.
14.2 Export Controls. The export controls may include, among others, those of the Export Administration Regulations of the U.S. Department of Commerce (the “EAR”), which may restrict or require licenses for the export of Items from the United States and their re-export from other countries.
14.3 Compliance Requirements. You must comply with the EAR, and all other applicable laws, regulations, treaties, and agreements relating to the export, re-export, and import of any Item. You must not, directly or indirectly, without first obtaining the required license to do so from the appropriate U.S. government agency; (a) export, re-export, distribute or supply any Item to (a) any restricted or embargoed country or to a person or entity whose privilege to participate in exports has been denied or restricted by the U.S. government; (b) any person or entity who is involved in improper development or use of nuclear weapons or of chemicals/biological weapons, or missiles, or in terrorist activities. You will, if we request, provide information on the end user and end use of any Item you export or plan to export.
14.4 Audit Cooperation. You will cooperate fully with us in any official or unofficial audit or inspection related to applicable export or import control laws or regulations, and will indemnify and hold us harmless from, or in connection with, your or your consultants’, agents’ or employees’ violation of this Section 16.
15.1 No Assignment. The duties and rights hereunder may not be assigned or transferred without each Party’s prior written consent, which consent shall not be unreasonably withheld; provided however, that upon written notice a Party may assign its duties and/or rights to any person or entity acquiring all or substantially all of a Party’s business or assets (or of the business division or product line to which the Confidential Information primarily relates).
15.2 Governing Law. These Terms and Conditions and all Orders shall be governed by, and construed in accordance with, the laws of the State of Delaware, United States of America, exclusive of its conflict of laws rules. The Parties hereby irrevocably submit to the exclusive jurisdiction of any state or federal court located in the State of Delaware in any action or proceeding arising out of or relating to this Agreement, and the Parties hereby irrevocably agree that all claims in respect of such action or proceeding shall be heard and determined exclusively in such courts. The U.N. Convention on Contracts for the International Sale of Goods is hereby expressly excluded.
15.3 Regulatory Restrictions. In addition to the restrictions set out in Section 11 of these Terms: (a) you must use our Products in accordance with our instructions; (b) you are solely responsible for making sure that the way you use our Products complies with applicable laws, regulations and governmental policies; (c) you must obtain all necessary approvals and permissions you may need; and (d) it is solely your responsibility to make sure the Products are suitable for your particular use.
15.4 No Waiver; Invalidity. Our failure to exercise any rights under the Agreement is not a waiver of our rights to damages for your breach of contract and is not a waiver of any subsequent breach. If any provision or part of the Agreement is found by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability will not affect the other provisions of the Agreement. No person other than you or us will have any rights under the Agreement.
15.5 Headings. Headings are for convenience only and shall not be used in the interpretation of these Terms.
15.6 Confidentiality. All nonpublic, confidential, or proprietary information disclosed in confidence by either Party in connection with an Order (“Confidential Information”) whether disclosed orally, visually, in writing, or electronically shall remain the property of the applicable disclosing Party. Confidential Information shall not be published, released, or disclosed to any third Party, or misappropriated for the receiving Party’s own benefit. The Parties agree to keep in confidence and to restrict disclosure of the other Party’s Confidential Information to those officers, directors, employees, contractors, consultants or legal counsel (“Representatives”) on a need-to-know basis and solely for furthering the performance of an Order. Receiving Party shall inform Representatives of the confidentiality obligations and be responsible and liable for any breach of confidentiality by any of its Representatives. The Parties agree to use the same degree of care they employ to protect their own Confidential Information, but in no event less than a reasonable degree of care. No license under any patent or other intellectual property is granted or conveyed by the disclosing Party’s transmitting Confidential Information to the receiving Party. No Party will acquire any intellectual property or other rights of the other Party by implication, estoppel or otherwise. Each Party acknowledges that the Confidential Information disclosed hereunder may be subject to export control (e.g., ITAR, EAR ) and it may be necessary to obtain required approvals before disclosing Confidential Information to foreign nationals, businesses, or governments. Anytime upon the request of the disclosing Party, the receiving Party shall immediately return or destroy the disclosing Party’s Confidential Information disclosed to it. Should the receiving Party become legally obligated to disclose Confidential Information received hereunder, the receiving Party shall promptly notify the disclosing Party and shall cooperate with the disclosing Party in obtaining a protective order or other appropriate remedy. Any legally compelled disclosure shall seek confidential treatment. The confidentiality obligations herein shall continue for three (3) years after the termination of this Agreement except with respect to trade secrets, for which the confidentiality obligations shall survive in perpetuity or for so long as such information remains a trade secret under applicable law.
15.7 Notices. Any notice or communication required or permitted under these Terms must be in writing and will be deemed received when personally delivered, or 3 business days after being sent by certified mail, postage prepaid, to a party’s specified address.
15.8 Requirement to Reduce to Writing. No waiver, consent, modification, amendment or changes to these terms and conditions will be binding unless in writing and signed by both of us.
15.9 Severability. These terms and conditions constitute the entire understanding between the Parties and supersedes any contracts, agreements or understandings (oral or written) of the Parties, with respect to the subject matter of any Order. Any provision of these terms and conditions which is prohibited, or which is held to be void or unenforceable shall be ineffective only to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof.
15.10 Subsidiaries and Affiliates. Seller may be acting hereunder on its own behalf or as an agent for any one or more persons subsidiary to or affiliated with Seller. The Order may be performed and all rights hereunder against Buyer may be enforced by (i) Seller; or (ii) any one or more persons subsidiary to or affiliated with Seller; or (iii) a third party designated by Seller; in part by Seller and in part by one or more of said subsidiaries, affiliated persons or third parties. “Affiliate” means any company or entity that controls or is controlled by, or is under common control with a Party, where “control” means the power to direct the management and/or policies of a company or entity, whether through ownership of at least fifty percent (50%) of the voting stock or by contract or otherwise.