Standard Terms and Conditions of Purchase

  1. ACCEPTANCE-THESE STANDARD TERMS AND CONDITIONS OF PURCHASE (THESE “TERMS”) ARE THE EXCLUSIVE AND COMPLETE AGREEMENT BETWEEN THE PARTIES FOR THE PURCHASE OF THE GOODS AND SERVICES ORDERED HEREIN WHEN THE ACCOMPANYING PURCHASE ORDER OF BUYER (BUYER’S “PURCHASE ORDER”) IS ACCEPTED BY ACKNOWLEDGMENT, COMMENCEMENT OF PERFORMANCE OR OTHERWISE BY SELLER. ANY ACCEPTANCE WHICH IS QUALIFIED OR CONDITIONED IN ANY RESPECT OR THAT CONTAINS ONE OR MORE DIFFERENT OR ADDITIONAL TERMS SHALL IN EACH CASE BE DEEMED PROPOSALS FOR SUPPLEMENTAL TERMS THAT MATERIALLY ALTER THE TERMS OF THIS OFFER AND ARE HEREBY REJECTED BY BUYER UNLESS EXPRESSLY AGREED TO IN WRITING ON THE FACE OF BUYER’S PURCHASE ORDER. BUYER HEREBY GIVES SELLER NOTICE OF ITS OBJECTION TO ANY TERM OR CONDITION OF SELLER THAT IS DIFFERENT FROM OR IN ADDITION TO THESE TERMS.
  2. PRICES AND TAXES – Seller hereby represents and warrants that prices charged for goods or services provided hereunder are not in excess of prices charged other customers of Seller for orders of similar quantities or volumes of similar goods or services on comparable terms. If Seller’s prices for goods or services are reduced prior to payment by Buyer for such goods or services under Buyer’s Purchase Order, the prices under Buyer’s Purchase Order will be reduced correspondingly. Unless otherwise specified, the agreed prices shall include all applicable federal, state, and local taxes and duties.
  3. INVOICES – After delivery of goods or performance of services, Seller shall promptly render to Buyer correct and complete invoices, which shall specify at least the following information: purchase order number, item number, description of goods, size(s), quantities, unit prices, extended totals and applicable taxes.
  4. PAYMENTS AND DISCOUNTS – Payment terms are net 45 days, with a discount to Buyer of two percent (2%) of the invoice amount for payments made net 10 days. Seller shall accept payment by check or, at Buyer’s option, other cash equivalent (including electronic transfer of funds). Dates regarding payment and discounts will be calculated from the later date of: (a) the scheduled delivery date, (b) the date of actual delivery and acceptance, and (c) the date a correct and complete invoice is received by Buyer. Payment is deemed to be made by Buyer on the date of mailing of Buyer’s check or the date of initiating payment by other cash equivalent (including electronic transfer of funds). Payment shall not constitute acceptance of goods or services and shall be subject to adjustment for errors, shortages, defects and other failures of Seller to strictly meet the requirements of Buyer’s Purchase Order. In the event that Buyer prepays for any goods, Seller hereby grants Buyer a security interest in such goods and hereby authorizes Buyer to file on Seller’s behalf (and if requested will execute and delivery such documents as may be necessary to perfect) such financing statements and other documents as necessary to perfect a first priority security interest in such goods.
  5. DELIVERY AND RISK OF LOSS – Unless otherwise specified on the face of Buyer’s purchase order, the price includes shipping DDP (INCOTERMS 2000) to the named Buyer destination. Notwithstanding any prior inspections by Buyer, Seller shall bear all risks of loss, damage and destruction to the goods called for hereunder until acceptance by Buyer at its destination. Delivery may be made up to five (5) days before but no later than the date and time stated on Buyer’s Purchase Order, time being of the essence. No partial deliveries or substitutions will be made without Buyer’s prior written consent. If delivery cannot be made within such time, Seller will give Buyer immediate notice thereof and advise Buyer of the best possible delivery date. Over shipments will be held at Seller’s risk and expense for a reasonable time awaiting shipping instructions at Seller’s cost.
  6. PACKING AND SHIPMENT – Unless otherwise specified, when the price of Buyer’s Purchase Order is based on the weight of the ordered goods, such price covers the net weight of goods ordered only, and no charges will be allowed for boxing, crating, handling, carting, drayage, storage or other packing requirements. Unless otherwise specified, all goods shall be packed, packaged, marked and otherwise prepared for shipment in a manner that is: (a) (i) with respect to semiconductor, flat panel or microelectromechanical machine goods, in accordance with the then current Semiconductor Equipment and Materials International (SEMI) standards for such goods, and (ii) for all other goods, in accordance with good commercial practice; (b) acceptable to common carriers for shipment at the lowest rate for the particular goods and in accordance with I.C.C. and/or other applicable laws and regulations; (c) adequate to insure safe arrival of the goods at the named destination and for storage and protection against weather and temperature; and (d) free of charge to Buyer. An itemized packaging sheet must accompany each shipment.
  7. INSPECTION – All goods purchased hereunder shall be subject to inspection and test by Buyer at all times and places prior to acceptance. If inspection or test is made on Seller’s premises, Seller shall provide all reasonable facilities and assistance for the safety and convenience of Buyer’s inspectors without charge. Inspection may be performed on a statistical sampling basis. An entire lot or shipment may be rejected based on defects revealed by such sampling. At Buyer’s option, the rejected lot or shipment will either be returned to the Seller for replacement or credit or further screened by Buyer with cost of screening paid by Seller. No inspection or testing by Buyer shall relieve Seller from responsibility for defects or other failure to meet the requirements of Buyer’s Purchase Order. Records of all inspection work shall be kept complete by Seller and available to Buyer during the performance of Buyer’s Purchase Order and for five (5) years thereafter.
  8. WARRANTIES – (a) Seller represents and warrants that Seller has special skills and that Buyer is relying on those skills and the judgment of Seller to select and furnish suitable goods or services. All statements of Seller as to function, quality, suitability and use of the goods and services are deemed to be warranties of Seller. Seller represents and warrants to Buyer and Buyer’s customers that all goods, packaging and services provided under Buyer’s Purchase Order shall: (i) fully and strictly conform to all applicable representations and specifications (including any specifications provided by Buyer) and shall be of equal or better quality to the best sample provided to Buyer; and if Seller has any doubt about the specifications received from Buyer, or otherwise applicable to the goods or services, it shall be Seller’s responsibility to clarify such specifications; (ii) be free of defects in workmanship and design; (iii) be of good material and workmanship; (iv) be merchantable; (v) be compliant with the extension of Daylight Savings Time in 2007; (vi) be free of any liens, claims or encumbrances of any kind when delivered to Buyer; (vii) not infringe any patent, trade name, trademark, service mark, copyright or other proprietary right of any third party, and (viii) be produced in compliance with the requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act, as amended from time to time, and the United States Department of Labor regulations issued under Section 14, as amended from time to time. Seller further represents and warrants that all weight, measures, sizes, legends or descriptions printed, stamped, attached or otherwise indicated with regard to the goods are true and correct and comply with all laws, rules, regulations, ordinances, codes and/or standards relating to such goods. The foregoing warranties and all other warranties, express and implied, shall survive delivery, inspection, acceptance and payment by Buyer. The following remedies are in addition to all other remedies at law or in equity or under these Terms. (b) If any goods or services delivered hereunder do not meet the representations and warranties applicable under these Terms, Buyer may, at its option: (i) require Seller to correct at no cost to Buyer any defective or nonconforming goods or services by repair or replacement; (ii) reject the defective or non-conforming goods, return such defective or nonconforming goods at Seller’s expense to Seller and recover from Seller damages; (iii) correct the defective or nonconforming goods or services itself and/or by contract and charge Seller with the cost of such correction; and/or (iv) conditionally accept such goods with an equitable reduction in price. Buyer reserves the right to return such conditionally accepted goods for credit, within a reasonable period of time after receipt, if Buyer later determines that such goods are unsuitable for its purpose. Any goods which have been rejected or required to be corrected will be replaced or corrected by and at the expense of Seller promptly after notice. If, after being requested by Buyer, Seller fails to promptly replace or correct any defective goods within the delivery schedule, Buyer may (a) by contract or otherwise, replace or correct such goods and charge Seller with damages; (b) terminate Buyer’s Purchase Order or any portion thereof; and/or (c) utilize the defective goods and require an appropriate reduction in price. (c) Buyer’s approval of Seller’s material or design shall not relieve Seller of the warranties set forth in this clause, nor shall waiver by Buyer of any drawing or specification requirement for one or more of the goods constitute waiver of such requirements for the remaining goods to be delivered hereunder unless so stated by Buyer in writing. ANY ATTEMPT BY SELLER TO LIMIT, DISCLAIM OR RESTRICT ANY WARRANTIES OR REMEDIES OF BUYER UNDER THESE TERMS WOULD RESULT IN A MATERIAL ALTERATION OF THESE TERMS, MATERIALLY LOWER THE PRICE PAID BY BUYER UNDER BUYER’S PURCHASE ORDER AND RESULT IN SURPRISE AND HARDSHIP TO BUYER.
  9. CHANGES – Buyer may, at anytime prior to shipment of the goods, by a written notice (and without notice to sureties or permitted assignees, if any), suspend or delay performance hereunder, increase or decrease the order quantities, or make changes within the general scope of Buyer’s Purchase Order in any one or more of the following: (a) applicable drawings, designs, or specifications (b) method of shipment or packing, and/or (c) place and date of delivery. If any such change causes an increase or decrease in the cost of or time required for performance of Buyer’s Purchase Order, an equitable adjustment mutually agreed to by the parties shall be made in the Purchase Order price or delivery schedule, or both, and Buyer’s Purchase Order shall be modified in writing accordingly. No claim by Seller for adjustment hereunder shall be valid unless asserted within twenty (20) days from the date of receipt by Seller of the notification of change. Failure of Seller to assert a claim within such twenty (20) day period, as provided above, shall constitute an unconditional and absolute waiver by Seller of any right to make a claim for adjustment. Nothing in this clause shall excuse Seller from proceeding with the Purchase Order as changed or amended. Buyer reserves the right to verify claims hereunder, and Seller shall make available to Buyer upon its request all relevant books, records, inventories and facilities for inspection and audit by Buyer and/or its designee. In the event Seller fails to reasonably afford Buyer its right of inspection and audit, Seller shall be deemed to have irrevocably waived any claim asserted under this Section 9.
  10. TERMINATION FOR DEFAULT – (a) Buyer may terminate Buyer’s Purchase Order in whole or in part upon notice if Seller: (i) fails to deliver goods or services on agreed delivery schedules; (ii) fails to replace or correct defective goods or services; (iii) fails to perform any of the other provisions of Buyer’s Purchase Order or fails to make progress so as to endanger performance in accordance with the terms hereof; (iv) becomes insolvent, admits its inability to pay its debts as they come due, files a voluntary petition of bankruptcy, makes an assignment for the benefit of creditors or if a petition under any bankruptcy laws is filed against Seller or (v) makes any transfer in violation of Section 23. (b) In the event of termination pursuant to this Section 10: (i) Seller shall continue to supply any portion of Buyer’s Purchase Order not terminated; (ii) Seller shall be liable for additional costs, if any, for the purchase of such similar goods and services by Buyer to cover Seller’s default; (iii) Seller will transfer and deliver to Buyer good and marketable title, free of liens, claims and encumbrances of any kind, to the following in the manner, time and to the extent directed by Buyer, (A) any completed goods, (B) any partially completed goods, along with any parts required to complete the goods that are already in Seller’s possession, (C) all unique materials, and (D) all bills of materials and licenses necessary to manufacture and maintain the goods; and (iv) Seller shall be liable for and shall pay to Buyer and all liabilities, costs, losses, damages, expenses and fees (including reasonable attorneys’ fees) of any kind and description (including lost profits and revenues) incurred by Buyer as a result of Seller’s default.
  11. TERMINATION FOR CONVENIENCE – (a) Buyer may terminate work under Buyer’s Purchase Order in whole or in part, at any time prior to taking title, by notice. Upon any such termination, Seller shall, to the extent and at the time specified by Buyer, stop all work on Buyer’s Purchase Order, place no further orders hereunder, terminate work under orders outstanding hereunder, assign to Buyer all Seller’s interest under terminated sub-contracts and orders, settle all claims thereunder after obtaining Buyer’s approval, transfer title and make delivery to Buyer of all goods, materials, work in process, or other things held or acquired by Seller. (b) Within fifteen (15) business days from termination, Seller may submit to Buyer its written claim for termination charges, in the form and with the supporting data and detail requested by Buyer. Seller shall reasonably assess cost for raw materials, work in process, subassemblies and labor as may be included within its termination claim to determine whether or not such items may be used by Seller for the manufacture of associated products or diverted for any other purpose and to correspondingly reduce the value of its termination claim by the full list price of such products. No profit will be allowed if it appears that Seller would have sustained a loss on Buyer’s Purchase Order. In no event shall Seller be entitled to incidental or consequential damages, costs of preparing claims, attorneys’ fees, cost of tooling or equipment sales or agent commissions. Failure of Seller to assert a claim within such fifteen (15) business day period, as provided above, shall constitute an unconditional and absolute waiver by Seller of any right to make a claim for termination charges. Buyer reserves the right to verify claims hereunder, and Seller shall make available to Buyer or Buyer’s designee upon its written request all relevant books, records, inventories and facilities for its inspection and audit. In the event that Seller fails to fully afford Buyer its right of inspection and audit hereunder, Seller shall be deemed to have absolutely and irrevocably waived any claim asserted under this Section 11. This Section 11 shall not affect or impair any right of Buyer to terminate Buyer’s Purchase Order for Seller’s default.
  12. BUYER MATERIALS – Buyer shall retain title to any designs, sketches, drawings, blueprints, patterns, models, molds, tools, special appliances, and materials (a) furnished by or paid for by Buyer, (b) amortized in the unit price of items purchased by Buyer, and/or (c) with respect to equipment, necessary to perform maintenance (collectively, “Buyer’s Property”). While in Seller’s possession, Seller shall ensure that Buyer’s Property is identified as such (by tagging, marking, etc.) and segregated from Seller’s property to as to avoid commingling. Seller shall bear the risk of loss of Buyer’s Property and Seller shall, at Buyer’s option, replace or pay the replacement value of any of Buyer’s Property that is lost, damaged or destroyed. Buyer’s Property shall be (a) used exclusively in the production of goods or the provision of services required by Buyer’s Purchase Order, and shall not be used for the production of larger quantities than those specified herein, or in production, manufacture or design of any other good or for the provision of any other service without Buyer’s prior written consent, (b) subject to disposition by Buyer at any and all times, and at the termination of Buyer’s Purchase Order shall be returned to Buyer, including any used materials furnished by Buyer and any spoiled or defective materials or products which may contain any secret, proprietary, or patented device, unless Buyer shall otherwise direct in writing, and (c) kept confidential by Seller and not disclosed to third parties. Nothing in this paragraph shall be construed as imposing any obligation on Buyer to furnish to Seller any such Buyer’s Property. Seller shall insure Buyer’s Property and be liable for loss or damage while Buyer’s property is in Seller’s possession or control, ordinary wear and tear excepted.
  13. NEW DEVELOPMENTS – Seller acknowledges and agrees that all works of authorship, inventions, improvements, developments and discoveries conceived, made and/or reduced to practice by Seller, solely or jointly, in the course of (i) performance of services or the development of deliverables for Buyer hereunder or (ii) the production of goods to designs and specifications furnished by Buyer to Seller hereunder as well as all patents, copyrights, trade secrets, trademarks, and other intellectual property rights therein and thereto (collectively, “Developments”), are and shall be the sole property of Buyer. Seller agrees to assign (or cause to be assigned) and hereby assigns all Developments to Buyer. Seller shall assist Buyer or Buyer’s designee, at Buyer’s expense, in all necessary or desirable actions to secure Buyer’s rights in the Developments, including the disclosure to Buyer of all relevant information and data with respect thereto and the execution and delivery of all applications, specifications, oaths, assignments and all other instruments which Buyer may deem necessary or desirable in order to apply for and obtain such rights in order to convey to Buyer, its successors, assigns and nominees the sole and exclusive right, title and interest in and to such Developments. Seller further acknowledges and agrees that Seller’s obligation to execute or cause to be executed, when it is in Seller’s power to do so, any such application, specification, oath assignment, or other instrument shall continue after the termination of Buyer’s Purchase Order. Seller further agrees to assist Buyer in enforcing all patents, trademarks, copyrights, trade secrets, or other ownership rights to protect Buyer’s exclusive interest in Developments. Buyer acknowledges and agrees that Seller shall retain sole and exclusive ownership of any invention, improvement, development, concept, discovery, or other proprietary information owned by Seller or in which Seller has an interest arising before the date of Buyer’s Purchase Order or as developed outside the scope of Buyer’s Purchase Order as shown by clear and convincing evidence (“Seller IP”). Notwithstanding the foregoing, Seller agrees that if Seller incorporates any Seller IP into any Development, Buyer is hereby granted and shall have a nonexclusive, royalty free, perpetual, irrevocable, worldwide license, including the right to sublicense, under any such Seller IP to make, have made, use, import, prepare derivative works of, reproduce, have reproduced, perform, display, offer to sell, sell, or otherwise distribute such invention, improvement, development, concept, discovery, or other proprietary information as part of or in connection with such Development. Seller represents and warrants that it will not incorporate any third party intellectual property into any Development or deliverable provided hereunder without notifying and obtaining the prior written approval of Buyer. Seller hereby waives any and all moral rights, including to the right of identification of authorship or limitation on subsequent modification, that Seller (or its employees) has or may have in any Developments. Seller represents and warrants that (1) all of its employees or contractors who perform work for it hereunder will have entered into written agreements with Seller which ensure that the work they do is subject to the terms and conditions of this section of these Terms; (2) it will not incorporate anything into deliverables to be provided to Buyer which contain intellectual property not assignable or licensable to Buyer as provided in this section; and (3) it has no outstanding agreements or obligations that are in conflict with any of the provisions of this section or that would adversely affect Seller’s performance hereunder or Buyer’s exclusive right to Developments. Seller shall not enter into any such conflicting agreement during the term of Buyer’s Purchase Order. Subject to the other terms and conditions of these Terms, the purchase price is full consideration for any design work performed by Seller in connection with these Terms and incorporated in the goods to be delivered hereunder.
  14. INDEMNITY BY SELLER – Seller shall defend, indemnify and hold harmless Buyer, its directors, officers, employees, subcontractors, agents and Buyer’s customers and their respective successors and assigns from and against any and all third party claims, causes of action, damages, suits, losses, liabilities and associated costs, expenses and fees (including attorneys’ fees), incurred by any of them and arising out of or relating to (a) any breach by Seller of any of its representations and warranties under these Terms, (b) any defective good or service provided by Seller hereunder and any act or omission of Seller and its agents; and (c) any actual or alleged direct or contributory infringement of, or inducement to infringe any United States or foreign patent, trademark, copyright or mask work right by reason of the manufacture, use or sale of the goods or services ordered, including infringement arising out of compliance with specifications furnished by Buyer (except to the extent such suit, claim or action would not have occurred but for such compliance), or for actual or alleged misuse or misappropriation of a trade secret resulting directly or indirectly from Seller’s actions.
  15. FORCE MAJEURE – Neither party shall be liable to the other for loss or damages, for any default or delay proximately caused by any act of God, earthquake, flood, fire, explosion, strike by any third party workforce, lockout, casualty or accident, war, revolution, civil commotion, terrorism, act of public enemies, blockage or embargo, or injunction, law, order, proclamation, regulation, ordinance, demand or requirement of any government or subdivision or governmental authority first issued after the date of Buyer’s Purchase Order, the party affected gives prompt written notice of any cause to the other party (a “Force Majeure Event”) and such default or delay is not due to any negligence of such party. The party so affected shall use commercially reasonable efforts to avoid or remove the Force Majeure Event as soon as is reasonably practicable. Upon termination of the Force Majeure Event, the performance of any suspended obligation or duty shall promptly recommence. If Seller is the affected party, Seller shall, within twenty-four (24) hours of Buyer’s written request, provide reasonable assurance that the delay shall cease within thirty (30) days. If Seller cannot provide Buyer such reasonable assurance, or if the delay does not cease within thirty (30) days, then Buyer may immediately cancel Buyer’s Purchase Order without any further liability to Seller.
  16. COMPLIANCE WITH LAWS – (a) Seller represents and warrants that the goods and services provided hereunder are produced or performed in accordance with all applicable laws, rules, Executive Orders and regulations, including all equal opportunity, affirmative action, health and safety and environmental laws, rules, executive orders and regulations. Buyer reserves the right to return all goods delivered to Buyer, at Seller’s expense, and with a full refund to Buyer, that are not or have not been produced in accordance with the foregoing requirements. Seller represents and warrants to Buyer that the goods, materials, or work to be produced and furnished hereunder were or will be produced in compliance with the requirements of the Fair Labor Standards Act, as amended, and the Occupational Safety and Health Act Public Law of 1970. On request Seller shall furnish Buyer certificates of compliance with all such laws, rules, orders, and regulations. (b) Seller shall not, directly or indirectly, make any payment or gift to any employee, officer, or representative of any government or governmental agency or political party or political candidate or other instrumentality under circumstances where the payment or gift would constitute an illegal payment or gratuity under the laws of the United States or of the laws of the Seller’s country. (c) If goods listed in Buyer’s Purchase Order are required by O.S.H.A. standard 29 CFR 1910: 1200 (Hazard Communications Standard) Seller shall supply a new or updated material safety data sheet (“M.S.D.S”) under the following conditions: (i) this is the initial shipment of the product to Buyer; (ii) the goods have changed since the last shipment; and/or (iii) the M.S.D.S. on file at Buyer is over a year old. All goods must be labeled as required by the above general standard.
  17. GOVERNMENT CONTRACTS – If Buyer’s Purchase Order is issued in connection with direct performance of a government prime contract or subcontract, then the flowdown Federal Acquisition Regulation clauses (and any applicable agency supplements thereto) in effect on the date of Buyer’s Purchase Order are incorporated herein by reference. The contract number of the prime contract or subcontract is listed on the face of Buyer’s Purchase Order.
  18. INSURANCE. Seller shall at all times maintain the following types of insurance in the following minimum amounts: (i) workers compensation in accordance with statutory limits; (ii) comprehensive general liability, including coverage for premises/operations, products/completed operations and contractual liability: $2,000,000 per occurrence and the aggregate, bodily injury and property damage combined; and (iii) automobile liability: bodily injury and property damage: $1.000.000 per occurrence. Upon request, Seller shall deliver to Buyer a certificate of insurance evidencing that the Seller has the above insurance in full force and effect and naming Buyer as additional inured containing a clause which provides that such policies will not be materially changed or cancelled without 30 days’ prior written notice to Buyer.
  19. APPLICABLE LAW – The law of the State of Connecticut (without regard to the conflicts of laws principles thereof) shall govern Buyer’s Purchase Order and all matters arising out of or related thereto, including but not limited to these Terms. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. The parties hereto consent to the exclusive jurisdiction of the courts of the State of Connecticut and the United States District Court for the District of Connecticut, as well as the jurisdiction of all courts from which an appeal may be taken from such courts, for the purposes of any suit, action or other proceeding relating to Buyer’s Purchase Order or with respect to any transaction contemplated hereby or relating to the goods and services and expressly waive any and all objections as to the venue of such courts.
  20. COUNTRY OF ORIGIN – Seller warrants that the goods specified by Buyer’s Purchase Order are of U.S. origin unless on or before the time it supplies the goods, Seller notifies Buyer’s customs department in writing to the contrary. In the event the goods delivered hereunder are of foreign origin, and Seller fails to so notify Buyer, or notifies Buyer erroneously, Seller shall defend, indemnify and hold Buyer harmless from all losses, liabilities, costs, damages, expenses and fees (including attorneys’ fees) arising from said failure or error, including but not limited to damages, penalties, tariffs, imposts, surcharges, incurred by Buyer as a result thereof.
  21. EXPORT CONTROL. Seller acknowledges that all commodities, software and technology are subject to U.S. export control laws and regulations, including without limitation, the Export Administration Regulations, 15 C.F.R. Parts 730 to 774; the International Traffic in Arms Regulations, 22 C.F.R. Parts 120 to 130; and the Foreign Assets Control Regulations codified at 31 C.F.R. Chapter V. Diversion contrary to U.S. law is prohibited. Seller hereby agrees that Seller will not transfer, export or reexport the products and related technology except in compliance with all applicable U.S. export laws and regulations. Seller shall obtain, at its own expense, licenses, export and import documents, and other approvals as are necessary for each party to fulfill its obligations under Buyer’s Purchase Order. Seller shall inform Buyer of applicable export license terms and conditions. Buyer may terminate, cancel or otherwise be excused from performing any obligations it may have under Buyer’s Purchase Order if (1) an export license or other approval required to be obtained by Seller is not approved by the U.S. government, (2) an existing license or approval is revoked for any reason by the U.S. government, and/or (3) the U.S. government changes the applicable export control laws or regulations thereby making it impermissible for Seller to provide the subject items. If Seller embarks on any course of conduct that leads to a violation of applicable export controls, Seller agrees to indemnify, defend and hold harmless Buyer from and against any claims, damages, liabilities, losses, costs, expenses and fees (including reasonable attorneys’ fees) to the extent arising out of or related to Buyer’s course of conduct, acts or omissions
  22. LIMITATION OF LIABILITY AND ACTION – IN NO EVENT SHALL BUYER BE LIABLE TO SELLER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, CONTINGENT OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER BUYER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ANY CLAIMS ARISING OUT OF OR RELATED TO BUYER’S PURCHASE ORDER MUST BE BROUGHT BY SELLER WITHIN ONE (1) YEAR FROM THE DATE OF ISSUANCE OF BUYER’S PURCHASE ORDER. SELLER’S FAILURE TO BRING ANY SUCH ACTION CONSTITUTES AN IRREVOCABLE WAIVER OF ANY AND ALL SUCH CLAIMS.
  23. SUBCONTRACTING AND ASSIGNMENT; NO PUBLICITY – Seller shall not subcontract for all or any portion of the goods or services supplied to Buyer without Buyer’s prior written consent. No right or obligation under Buyer’s Purchase Order may be delegated or assigned by Seller (whether by merger, consolidation, operation of law or otherwise) without the prior written consent of Buyer in each case, and any purported delegation or assignment in violation of this Section 23 shall be voidable at Buyer’s election. Any publicity regarding Buyer’s Purchase Order (e.g., pictures, descriptions, notice of award, press releases or samples) by Seller is prohibited except with Buyer’s express prior written consent in each case.
  24. WAIVER – In the event either party fails to insist on performance of any of the terms and conditions of Buyer’s Purchase Order, or fails to exercise any of its rights or privileges hereunder, such failure shall not constitute a waiver of such terms, conditions, rights or privileges. Any waiver by Buyer under this Agreement must be in a writing signed by an authorized officer of Buyer.
  25. SEVERABILITY – If any of the provisions contained herein shall be held to be unenforceable for any reason, such unenforceability shall not affect any other provision of herein, but such unenforceable provision(s) shall be replaced with a provision(s) which most closely approximates from an economic viewpoint each such unenforceable provision(s) but is enforceable under applicable law.
  26. ENFORCEMENT. Buyer shall be entitled to recover reasonable attorneys’ fees and costs to enforce its rights in connection with any action or proceeding arising out of or relating to these Terms.
  27. ENTIRE AGREEMENT – Buyer’s Purchase Order including these Terms (together with any Buyer releases hereunder) constitute the entire agreement between the parties with respect to the matter contained herein and supersedes all prior agreements with respect thereto.