Supplier responsibility

APEX TOOL GROUP – EMEA PURCHASE ORDER TERMS AND CONDITIONS

As used herein, “Seller” means seller and its sub­sidiaries and af­fil­i­ates and “Buyer” means, as ap­plic­a­ble, Apex Tool Group GmbH, Weller Tools GmbH, Metronix Meßgeräte und Elek­tronik GmbH, Apex Tool Group SAS, Apex Tool Group Hungária Kft., Apex Tool S.r.l., Apex Tool Group B.V., Apex Tool Group AB, Apex Tool Switzer­land Sàrl, Apex Tool Group (UK Op­er­a­tions) Lim­ited and any other ap­plic­a­ble sub­sidiaries and af­fil­i­ates op­er­at­ing in the Eu­ro­pean Union from time to time. Seller hereby agrees as fol­lows:

1. Gen­eral Terms

Only the terms and con­di­tions set forth herein below apply to con­tracts based on or­ders placed by Seller or Buyer. Op­pos­ing con­di­tions and any con­di­tions de­vi­at­ing from these terms and con­di­tions of Buyer, in par­tic­u­lar Seller’s terms of de­liv­ery, shall not apply un­less ex­plic­itly agreed to by Buyer in writ­ing or in text form. The terms and con­di­tions set forth herein below shall also apply, if Buyer ac­cepts Seller’s de­liv­ery with­out reser­va­tion al­though it has knowl­edge of Seller’s op­pos­ing con­di­tions or of con­di­tions de­vi­at­ing from those of Buyer. This also ap­plies, if Seller states that Seller only wishes to ef­fect de­liv­ery in ac­cor­dance with Seller’s con­di­tions.

There are no other agree­ments, rep­re­sen­ta­tions or war­ranties other than those ex­pressly pro­vided for in the order or in these terms and con­di­tions. Any ad­di­tional and/or dif­fer­ent terms and con­di­tions con­tained in any doc­u­ment or writ­ing sent to Buyer at any time are hereby ex­pressly ob­jected to and re­jected. Ex­cept as oth­er­wise agreed to in writ­ing or in text form by Seller and Buyer, and work com­menced by Seller shall be ex­clu­sively gov­erned by the terms and con­di­tions set forth herein.

2. Ac­cep­tance of Pur­chase Order.

(a) The Terms and Con­di­tions con­tained herein shall gov­ern the pur­chase of prod­ucts and ser­vices (col­lec­tively, the “Prod­ucts”) pur­suant to a pur­chase order is­sued to Seller by Buyer (“Order”), sub­ject to any ad­di­tional terms and con­di­tions ap­pear­ing on the face of the Order. In the event there is a con­flict be­tween the terms and con­di­tions ap­pear­ing on the face of an Order and the terms and con­di­tions herein, the terms and con­di­tions on the face of an Order shall pre­vail.

(b) If the Order is con­strued as an offer by Buyer, Seller’s ac­cep­tance is strictly lim­ited to the terms of this offer. Any dif­fer­ent or ad­di­tional terms in Seller’s ac­cep­tance are valid only upon ex­press as­sent given by Buyer in writ­ing or in text form. If the Order is con­strued as Buyer’s ac­cep­tance of Seller’s offer, this ac­cep­tance is ex­pressly con­di­tional on Buyer’s ad­di­tional as­sent in writ­ing or in text form to any terms ad­di­tional to or dif­fer­ent from Seller’s offer con­tained herein. Ac­cep­tance of the Prod­ucts de­liv­ered under the Order shall not con­sti­tute ac­cep­tance of any terms ad­di­tional to or dif­fer­ent from Seller’s offer con­tained herein or on the face of an Order un­less Buyer’s ad­di­tional as­sent has been pro­vided in writ­ing or in text form.

3. Prices and Pay­ment Terms.

(a) Seller’s price shall be as stated in the Order. If the price is not stated in the Order, the price will be Seller’s low­est mar­ket price.

(b) The pur­chase price for each Prod­uct shall be all-in­clu­sive and rep­re­sents the sole and ex­clu­sive con­sid­er­a­tion to Seller here­un­der for the Prod­uct, ex­cept for taxes that are cal­cu­lated di­rectly on the pur­chase price pay­ments made by Buyer here­un­der and which Seller is legally re­quired to col­lect and pay over to tax au­thor­i­ties. The taxes for which Buyer is re­spon­si­ble shall in­clude sales and use taxes, but shall ex­clude, with­out lim­i­ta­tion, Seller’s fran­chise or busi­ness taxes, taxes based on Seller’s in­come or gross re­ceipts and taxes for which Buyer is ex­empt by law as shown by a valid tax ex­emp­tion cer­tifi­cate, when such a cer­tifi­cate is re­quired.

(c) Terms of pay­ment are net ninety (90) days, ei­ther after re­ceipt of Seller’s valid in­voice or after re­ceipt of the Prod­ucts, whichever is later. At Buyer’s op­tion, all in­voiced amounts shall be sub­ject to a two per­cent (2%) early pay­ment dis­count for all pay­ments re­mit­ted by Buyer within twenty (20) days of Buyer’s re­ceipt of such in­voice.

(d) Buyer may with­hold and apply any mon­eys payable by it under the Order to the pay­ment of any oblig­a­tions of Seller to any sub­con­trac­tors or sup­pli­ers.

4. Title, De­liv­ery and Risk of Loss.

(a) Un­less oth­er­wise agreed by the par­ties, all Prod­ucts are to be shipped DDP (Des­ti­na­tion as stip­u­lated by the Order) (In­coterms 2010). Seller will com­ply with all coun­try of ori­gin mark­ing in­struc­tions and all in­struc­tions for ex­ports to Buyer. Title to the Prod­ucts shall pass upon Buyer’s re­ceipt at the des­ti­na­tion.

(b) All ship­ments must be made in ac­cor­dance with ship­ping and rout­ing in­struc­tions as spec­i­fied by Buyer, but in any event, in com­pli­ance with all ap­plic­a­ble gov­ern­ment or freight com­pany reg­u­la­tions and Seller shall as­sume full re­spon­si­bil­ity for fail­ure to com­ply with such in­struc­tions, in­clud­ing li­a­bil­ity for a re­lease of haz­ardous ma­te­ri­als into the en­vi­ron­ment prior to Buyer’s re­ceipt of Prod­ucts. Seller shall be held li­able for any loss or dam­age prior to pas­sage of title to Buyer.

(c) Each de­liv­ery of Prod­ucts to Buyer shall in­clude a pack­ing list, which con­tains at least the fol­low­ing items: i) Order num­ber; ii) Seller’s part num­ber; iii) Buyer’s part num­ber; iv) quan­tity shipped; and v) date of ship­ment.

(d) Seller shall give Buyer writ­ten no­tice promptly upon de­ter­min­ing that any or all Prod­ucts under an Order will not ar­rive by the re­quired de­liv­ery date and will take all rea­son­able steps at Seller’s own cost to ex­pe­dite de­liv­ery. If only a por­tion of the Prod­ucts is avail­able for ship­ment to meet the re­quired de­liv­ery date, Seller shall ship the avail­able Prod­ucts un­less di­rected by Buyer to resched­ule ship­ment.

(e) If Seller and Buyer have agreed that time is of the essence and Seller fails to de­liver on time, Buyer may pur­chase re­place­ment prod­ucts else­where and Seller will be li­able for costs and dam­ages that Buyer in­curs.

(f) De­liv­ery dates and de­liv­ery pe­ri­ods as set forth in the Order are bind­ing. Com­pli­ance with the de­liv­ery date or de­liv­ery pe­riod is de­ter­mined by the date of re­ceipt of the Prod­ucts by Buyer or at any other lo­ca­tion agreed be­tween Buyer and Seller in writ­ing or in text form.
If de­liv­ery of the Prod­ucts is late for rea­sons such as mo­bi­liza­tion, war, in­ter­ac­tion, strike, lock­out or the oc­cur­rence of other un­fore­see­able, sim­i­larly se­ri­ous im­ped­i­ments as re­gards com­pli­ance with the de­liv­ery pe­riod and if such im­ped­i­ments are be­yond Seller’s con­trol, the de­liv­ery pe­riod shall be ex­tended ap­pro­pri­ately. The Seller will im­me­di­ately in­form Buyer on any such events.

(g) In case of late de­liv­ery, Buyer may – pro­vided that Buyer can cred­i­bly show that it has in­curred dam­age as a re­sult – de­mand com­pen­sa­tion for each com­plete week of delay in an amount of 0.3% per week of the price of that part of de­liv­ery which could not be put to per­ti­nent use due to the delay but not ex­ceed­ing 3% of the price thereof. Buyer’s fur­ther rights on ac­count of late de­liv­ery shall re­main un­af­fected.
If Buyer and Seller agree on a con­trac­tual penalty on top of this lump-sum, Buyer’s right to re­scind the con­tract and/or as­sert fur­ther claims shall also re­main un­af­fected. Buyer may de­mand the con­trac­tual penalty up to the time of the last pay­ment, even if it ac­cepted the de­liv­ery or ser­vice per­formed by Seller with­out any spe­cial reser­va­tion.

(h) If it be­comes ap­par­ent that Seller will be un­able to meet the de­liv­ery dates, Seller shall con­tact Buyer with­out delay. The rights to which Buyer is en­ti­tled on ac­count of late de­liv­ery under the terms of the Order, these Terms and Con­di­tions or by statute shall not be re­stricted even if Seller con­tacts Buyer in ac­cor­dance with this afore­men­tioned oblig­a­tion.

(i) Buyer re­serves the right to sus­pend ship­ment by Seller of all or part of the Order in the event of strikes, lock­outs, or other labor dis­tur­bances, or other con­tin­gen­cies be­yond Buyer’s con­trol.

(k) Buyer is a SLVS waiver cus­tomer (SLVS-Verzicht­skunde) and the trans­port risk is as­sumed by and in­sured by Seller.

5. In­spec­tion.

As soon as any de­fects in the de­liv­ery of ma­te­r­ial, work­man­ship and Prod­ucts are es­tab­lished in ac­cor­dance with the cir­cum­stances pre­vail­ing dur­ing the nor­mal course of busi­ness, Buyer shall no­tify Seller thereof im­me­di­ately in writ­ing or in text form, un­less oth­er­wise agreed, no­tably in qual­ity as­sur­ance agree­ments in which Buyer is re­leased from its oblig­a­tion to ex­am­ine the goods and give no­ti­fi­ca­tion of de­fects as pro­vided for in Sect. 377 of the Ger­man Com­mer­cial Code (HGB). No­ti­fi­ca­tion of de­fects is deemed to be in time, if it is re­ceived by Seller within a pe­riod of five work­ing days after Buyer has gained knowl­edge of the re­spec­tive de­fect. To this ex­tent, Seller waives the de­fense of de­layed no­ti­fi­ca­tion of de­fects. Buyer may re­quire Seller to re­pair, re­place or re­im­burse the pur­chase price of re­jected ma­te­ri­als or Buyer may ac­cept any Prod­ucts and, upon dis­cov­ery of non­con­for­mance, may re­ject or keep any such Prod­ucts not so con­form­ing. Cost of re­pair, re­place­ment, in­spec­tion, trans­porta­tion, repack­ag­ing and/or re-in­spec­tion by Buyer shall be at Seller’s ex­pense. Buyer’s ac­cep­tance of Prod­ucts shall not be deemed to di­min­ish Buyer’s rights or be final or bind­ing on Buyer if la­tent de­fects, fraud or mis­rep­re­sen­ta­tion on the part of Seller ex­ists.

Buyer may elect to have in­spec­tion and test­ing made on the premises of Seller or Seller’s lower-tier sub­con­trac­tors. In such event, Seller shall fur­nish with­out ad­di­tional charge all rea­son­able fa­cil­i­ties, in­for­ma­tion and as­sis­tance nec­es­sary for the safe and con­ve­nient in­spec­tion and test re­quired by the in­spec­tors in the per­for­mance of their duty.

6. War­ranty.

(a) Seller hereby war­rants to Buyer that, for a pe­riod of three (3) years fol­low­ing Buyer’s tak­ing de­liv­ery of the Prod­ucts here­un­der (the “War­ranty Pe­riod”), such Prod­uct shall: i) be fit for its in­tended pur­pose and be of mer­chantable qual­ity; ii) be free from de­fects in ma­te­ri­als, work­man­ship, and de­sign; iii) con­form strictly to the per­for­mance, func­tion­al­ity and other spec­i­fi­ca­tions and de­scrip­tions set forth in Seller’s cat­a­logs, prod­uct brochures, or other rep­re­sen­ta­tions, de­pic­tions, sam­ples or mod­els; and iv) con­form strictly to all spec­i­fi­ca­tions, draw­ings and de­scrip­tions ref­er­enced or set forth in the Order (col­lec­tively, the “Per­for­mance War­ranty”).

(b) The Ex­piry of the Per­for­mance War­ranty shall be sus­pended with re­spect to any claim made by Buyer prior to such ter­mi­na­tion or ex­pi­ra­tion.

(c) Seller agrees that Buyer may as­sign any claims against Seller under such Per­for­mance War­ranty against Seller to its cus­tomers so that Buyer’s cus­tomers may en­force such Per­for­mance War­ranty against Seller on, in and for cus­tomer’s be­half, name or ben­e­fit.

(d) Dur­ing the War­ranty Pe­riod, Seller shall, at no ad­di­tional cost to Buyer, re­pair or re­place at Buyer’s op­tion any Prod­uct that fails to con­form to its Per­for­mance War­ranty in any re­spect what­so­ever (each, a “De­fec­tive Prod­uct”) within a rea­son­able time set by Buyer.

If Buyer’s op­tion is to re­place such Prod­uct, the re­place­ment Prod­uct must con­form to the Per­for­mance War­ranty in all re­spects (“Con­form­ing Prod­uct(s)”). Re­place­ment Prod­ucts must be new prod­uct if the De­fec­tive Prod­uct was sup­posed to be new prod­uct; no re­paired or re­man­u­fac­tured prod­uct will be ac­cepted. Seller shall re­place, at Buyer’s op­tion, each De­fec­tive Prod­uct and re-de­liver a Con­form­ing Prod­uct to Buyer as soon as pos­si­ble, and in all events within a rea­son­able pe­riod of time set by Buyer after no­tice that a Prod­uct is a De­fec­tive Prod­uct.

All re­turn ship­ments of De­fec­tive Prod­ucts to Seller shall be at Seller’s sole cost, risk, and ex­pense. Seller shall bear all ship­ping costs for war­ranty re­turns and re­place­ments. Seller shall bear all rea­son­able di­rect and in­di­rect costs and ex­penses in­curred by Buyer to re­place a De­fec­tive Prod­uct with a Con­form­ing Prod­uct, in­clud­ing, but not lim­ited to, labor and travel ex­penses. Buyer has the right to re­turn Prod­uct on a per oc­cur­rence basis. No min­i­mum quan­tity shall be re­quired for re­turns.

(e) If it is ob­vi­ous that the de­fect can­not be reme­died within a rea­son­able pe­riod of time ei­ther by re­pair or re­place­ment, Buyer has the right to re­duce the pur­chase price or to re­scind the con­tract with im­me­di­ate ef­fect. In the lat­ter case, Buyer shall be en­ti­tled to an im­me­di­ate and full re­fund of the pur­chase price paid to Seller for such De­fec­tive Prod­uct against re­turn­ing the De­fec­tive Prod­uct. In any case, Buyer has the right to re­duce the pur­chase price or to re­scind the con­tract after ex­pi­ra­tion to no avail of a rea­son­able time set by Buyer. If Buyer elects to re­scind the con­tract, noth­ing herein shall limit all ad­di­tional rights and reme­dies avail­able to it under law or ex­cuse the Seller from any an­cil­lary oblig­a­tions set forth herein.
No pe­riod of rea­son­able time has ei­ther to be set by Buyer, if the Seller has se­ri­ously and de­fin­i­tively re­fused re­pair or re­place­ment, if such re­pair or re­place­ment is abortive or the set­ting of a date for re­pair or re­place­ment is not rea­son­ably ac­cept­able to Buyer. Any re­pair or re­place­ment is deemed to be abortive after the sec­ond un­suc­cess­ful at­tempt, un­less some­thing can be de­rived from the na­ture of the prod­uct or the de­fect or the con­duct of the Seller.
Nor does a rea­son­able time for re­pair or re­place­ment have to be set if, on ac­count of a de­fect claimed by a con­sumer which de­fect al­ready ex­isted be­fore the Prod­uct was de­liv­ered to Buyer, Buyer had to take the Prod­uct back as a re­sult of the de­fec­tive na­ture ei­ther from Buyer’s cus­tomer in the de­liv­ery chain or di­rectly from the con­sumer, or if the con­sumer re­duced the pur­chase price.
Buyer’s right to claim dam­ages re­mains un­af­fected.

(f) Seller shall be re­spon­si­ble for all di­rect, in­di­rect and con­se­quen­tial dam­ages in­curred by Buyer re­sult­ing from the pro­vi­sion of a De­fec­tive Prod­uct or from the late de­liv­ery of a Prod­uct.

(g) After the end of the War­ranty Pe­riod, Seller shall con­tinue to offer Prod­uct sup­port to re­pair and/or pro­vide ser­vice parts for a pe­riod of ten (10) years be­gin­ning with the date the Prod­uct is dis­con­tin­ued or no longer of­fered for sale by Seller. In the event that Seller can­not, or chooses not to, offer such Prod­uct sup­port, then Seller shall pro­vide one (1) year’s no­tice be­fore dis­con­tin­u­ing such Prod­uct sup­port. Fur­ther­more, Seller shall pro­vide all of the nec­es­sary tech­ni­cal draw­ings and doc­u­men­ta­tion, as well as a roy­alty-free, non-re­vo­ca­ble li­cense to all ap­plic­a­ble in­tel­lec­tual prop­erty re­quired for the con­tin­ued re­pair or man­u­fac­tur­ing of Prod­ucts by Buyer or Buyer’s de­signee.

7. Com­pli­ance with Laws.

(a) Seller rep­re­sents, war­rants and covenants that all of the Prod­ucts, mer­chan­dise, and ma­te­ri­als de­liv­ered and/or ser­vices ren­dered here­un­der will be, and will have been pro­duced and/or pro­vided, in com­pli­ance with all ap­plic­a­ble laws, rules, reg­u­la­tions, or­ders, treaties and other re­quire­ments of re­spec­tive Eu­ro­pean Union and/or Ger­man fed­eral, na­tional, state, provin­cial and local/mu­nic­i­pal gov­ern­ments and agen­cies thereof, and that Seller and Seller’s busi­ness do and will com­ply with all ap­plic­a­ble laws, rules, reg­u­la­tions, or­ders, treaties and other re­quire­ments of Eu­ro­pean Union and/or Ger­man fed­eral, na­tional, state, provin­cial and local/mu­nic­i­pal gov­ern­ments and agen­cies thereof. Where ap­plic­a­ble, Seller hereby agrees to com­ply with the rec­og­nized Rules of Tech­nol­ogy and, in par­tic­u­lar, with the Spec­i­fi­ca­tions and Reg­u­la­tions pre­scribed by the gov­ern­ment, su­per­vi­sory au­thor­i­ties, pro­fes­sion as­so­ci­a­tions and the VDE (As­so­ci­a­tion of Ger­man Elec­trotech­ni­cal En­gi­neers) with re­gard to con­struc­tion, ex­i­gent pre­ven­tion and en­vi­ron­men­tal pro­tec­tion as well as with the ATEX Di­rec­tive.

(b) Seller shall, in the per­for­mance of an Order, com­ply with all ap­plic­a­ble laws and reg­u­la­tions in ef­fect on the date the Order is is­sued and as such may be amended from time to time. All sales of Prod­ucts must be in con­for­mance with Eu­ro­pean Union, Ger­man, and other ap­plic­a­ble ex­port con­trol laws, U.S. For­eign As­sets Con­trol and the U.S. For­eign Cor­rupt Prac­tices Act (“FCPA”) laws and reg­u­la­tions and sim­i­lar anti-cor­rup­tion laws and reg­u­la­tions that may be in ef­fect in the coun­tries of ex­port and im­port.

(c) Seller ac­knowl­edges that it is fa­mil­iar with the FCPA and its pro­hi­bi­tions re­gard­ing the pay­ment or giv­ing of any­thing of value ei­ther di­rectly or in­di­rectly, to an of­fi­cial of a for­eign gov­ern­ment or po­lit­i­cal party for the pur­pose of in­flu­enc­ing an act or de­ci­sion in their of­fi­cial ca­pac­ity or in­duc­ing the of­fi­cial to use their or their party’s in­flu­ence with that gov­ern­ment, to ob­tain or re­tain busi­ness in­volv­ing the goods. Seller agrees that it can­not co­op­er­ate with or cause Prod­ucts to be de­liv­ered to any des­ti­na­tion or en­tity that is re­stricted by U.S., Eu­ro­pean Union or Ger­man law. Fur­ther, Seller rec­og­nizes that Buyer can­not co­op­er­ate with, agree to, or com­ply with any terms or re­quests, in­clud­ing doc­u­men­tary re­quests, which are pro­hib­ited or are pe­nal­ized under U.S., Eu­ro­pean Union or Ger­man Anti-boy­cott laws or reg­u­la­tions.

(d) Seller rep­re­sents, war­rants and covenants that nei­ther it nor any of its own­ers or cus­tomers are or will be on any of the pro­hib­ited par­ties lists main­tained by var­i­ous agen­cies of the U.S. gov­ern­ment or their Eu­ro­pean Union coun­ter­parts, in­clud­ing, with­out lim­i­ta­tion, the de­nied per­sons list, the un­ver­i­fied list, the en­tity list, the de­barred list or the spe­cially des­ig­nated na­tion­als list (in­clud­ing, with­out lim­i­ta­tion, those per­sons and en­ti­ties listed pur­suant to the di­a­mond trad­ing, nar­cotics traf­fick­ing, non­pro­lif­er­a­tion and ter­ror­ist sanc­tions pro­grams ad­min­is­tered by the Of­fice of For­eign As­sets Con­trol of the U.S. De­part­ment of the Trea­sury).

(e) If any of the Prod­ucts are im­ported into any other coun­try, Seller will be re­spon­si­ble for all legal, reg­u­la­tory and ad­min­is­tra­tive re­quire­ments as­so­ci­ated with any im­por­ta­tion and the pay­ment of all as­so­ci­ated du­ties, taxes and fees. Upon Buyer’s re­quest, Seller shall pro­vide Buyer with an ap­pro­pri­ate cer­ti­fi­ca­tion stat­ing the coun­try of ori­gin for Prod­ucts, suf­fi­cient to sat­isfy the re­quire­ments of: i) the cus­toms au­thor­i­ties of the coun­try of re­ceipt; and ii) any ap­plic­a­ble ex­port li­cens­ing reg­u­la­tions.

(f) Seller shall, at its sole cost, se­cure and main­tain all nec­es­sary li­censes, per­mits, au­tho­riza­tions or other ap­provals re­quired for the op­er­a­tion of Seller’s busi­ness or any prop­erty used therein, or as nec­es­sary for Seller’s per­for­mance here­un­der. Seller shall im­me­di­ately no­tify Buyer in the event that Seller is not in com­pli­ance with any pro­vi­sion of this Sec­tion.

(g) If Seller is a Com­pany that en­gages in the busi­ness of ei­ther man­u­fac­tur­ing or ex­port­ing de­fense ar­ti­cles or fur­nish­ing de­fense ser­vices, then Seller hereby cer­ti­fies that it has reg­is­tered with the U.S. De­part­ment of State Di­rec­torate of De­fense Trade Con­trols and/or the ap­plic­a­ble Eu­ro­pean Union or Ger­man agency and un­der­stands its oblig­a­tion to com­ply with U.S In­ter­na­tional Traf­fic in Arms Reg­u­la­tions (“ITAR”), the Ex­port Ad­min­is­tra­tion Reg­u­la­tions (“EAR”) and their ap­plic­a­ble Eu­ro­pean Union and Ger­man coun­ter­parts. Seller shall con­trol the dis­clo­sure of and ac­cess to tech­ni­cal data in­for­ma­tion and other items re­ceived under out­stand­ing Or­ders in ac­cor­dance with U.S., Eu­ro­pean Union and Ger­man ex­port con­trol laws and reg­u­la­tions, in­clud­ing but not lim­ited to the ITAR. Seller agrees that no tech­ni­cal data, in­for­ma­tion or other items pro­vided by the Buyer in con­nec­tion with an Order shall be pro­vided to any for­eign na­tional or to a for­eign en­tity, in­clud­ing with­out lim­i­ta­tion, a for­eign sub­sidiary of Seller, with­out the ex­press writ­ten au­tho­riza­tion of Buyer and the Seller’s ob­tain­ing the ap­pro­pri­ate ex­port li­cense, tech­ni­cal as­sis­tance, agree­ment or other req­ui­site doc­u­men­ta­tion for ITAR-con­trolled tech­ni­cal data or items. Seller agrees to no­tify Buyer if Seller is listed on the De­nied Par­ties List pub­lished by the U.S. De­part­ment of Com­merce, or if Seller’s ex­port priv­i­leges are oth­er­wise de­nied, sus­pended, or re­voked in whole or in part. Seller shall in­dem­nify Buyer for all li­a­bil­i­ties penal­ties, losses, dam­ages, costs or ex­penses that may be im­posed on or in­curred by Buyer in con­nec­tion with any vi­o­la­tion of im­port or ex­port laws or reg­u­la­tions by Seller.

(h) If any of the Prod­ucts are pur­chased for in­cor­po­ra­tion into prod­ucts sold under a gov­ern­ment con­tract or sub­con­tract, the terms re­quired to be in­serted by that con­tract or sub­con­tract shall be deemed to apply to the ap­plic­a­ble Order. All rat­ing or cer­ti­fi­ca­tion re­quire­ments spec­i­fied in such gov­ern­ment con­tract or sub­con­tract or of which Seller has knowl­edge shall be com­plied with. Seller agrees to fur­nish Buyer a cer­tifi­cate of com­pli­ance with any such laws and cer­ti­fi­ca­tion re­quire­ments in such form as may be re­quested by Buyer. If Seller is a sub­con­trac­tor to Buyer on a U.S. gov­ern­ment con­tract or sub­con­tract, the par­ties agree that, to the ex­tent ap­plic­a­ble: (1) they will com­ply with the fol­low­ing, which are in­cor­po­rated herein by ref­er­ence: 41 CFR 60-1.4(a), Ex­ec­u­tive Order 13496 (29 CFR Part 471, Ap­pen­dix A to Sub­part A), re­lat­ing to the no­tice of em­ployee rights under fed­eral labor laws, 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a); and (2) they shall abide by the re­quire­ments of 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a). These reg­u­la­tions, re­spec­tively, pro­hibit dis­crim­i­na­tion against qual­i­fied pro­tected vet­er­ans and qual­i­fied in­di­vid­u­als on the basis of dis­abil­ity and re­quire af­fir­ma­tive ac­tion by cov­ered prime con­trac­tors and sub­con­trac­tors to em­ploy and ad­vance in em­ploy­ment qual­i­fied pro­tected vet­er­ans and qual­i­fied in­di­vid­u­als with dis­abil­i­ties. If Seller is a sub­con­trac­tor on a Cana­dian gov­ern­ment con­tract or sub­con­tract, it shall com­ply with any equiv­a­lent ap­plic­a­ble Cana­dian fed­eral, na­tional, state, provin­cial or mu­nic­i­pal or­ders and reg­u­la­tions, all of which are in­cor­po­rated herein by ref­er­ence.

(i) Seller is and re­mains solely re­spon­si­ble for the full com­pli­ance of de­liv­ered Prod­ucts or parts of Prod­ucts with any ap­plic­a­ble rules and reg­u­la­tions (“Leg­is­la­tion”) on re­stric­tion of haz­ardous sub­stances (“RoHS”) such as, with­out lim­i­ta­tion, the RoHS Re­cast Di­rec­tive 2011/65/EU (“RoHS-2”) as of 21 July 2011, and all fur­ther re­leases as well as all na­tional or local reg­u­la­tions is­sued in ex­e­cu­tion of RoHS-2 or any equiv­a­lent ap­plic­a­ble U.S. or Cana­dian or Eu­ro­pean Union fed­eral, provin­cial or mu­nic­i­pal laws, rules, reg­u­la­tions, or­ders, treaties and other re­quire­ments. All de­liv­ered Prod­ucts or parts of Prod­ucts must be suit­able and fit for RoHS-2 com­pli­ant pro­duc­tion and sale. Seller will com­plete and sign Buy­ers stan­dard De­c­la­ra­tion of RoHS-2 Com­pli­ance at the part num­ber level, use ap­pro­pri­ate sys­tems and processes to en­sure the ac­cu­racy of these de­ter­mi­na­tions and main­tain ap­pro­pri­ate records to allow trace­abil­ity of all Prod­ucts or parts of Prod­ucts.
Seller is and re­mains solely re­spon­si­ble for the full com­pli­ance of de­liv­ered Prod­ucts or parts of Prod­ucts with the Ad­min­is­tra­tive Mea­sures on the Con­trol of Pol­lu­tion Caused by Elec­tronic In­for­ma­tion Prod­ucts as of 28 Feb­ru­ary 2006, and Ger­man fed­eral, provin­cial or mu­nic­i­pal laws, rules, reg­u­la­tions, or­ders, treaties and other re­quire­ments in par­tic­u­lar but not lim­ited to the Ger­man Reg­u­la­tion on the re­strict­ing of the use of haz­ardous sub­stances in elec­tri­cal and elec­tronic equip­ment (Elek­troStoffV) as amended from time to time and to en­sure that the goods de­liv­ered do not con­tain any of the pro­hib­ited sub­stances pur­suant to § 3 Elek­troStoffV as amended from time to time. If Prod­ucts de­liv­ered should con­tain even minor quan­tity of the fol­low­ing pro­hib­ited sub­stances: lead, mer­cury, cad­mium or hexa­va­lent chrome, Seller is obliged to no­tify Buyer hereof with­out delay in order to en­able Buyer to com­ply with the re­quire­ments of the Elek­troStoffV as amended from time to time. All de­liv­ered Prod­ucts or parts of Prod­ucts must be suit­able and fit for RoHS com­pli­ant pro­duc­tion and sale. Seller will com­plete and sign Buyer’s stan­dard De­c­la­ra­tion of RoHS Com­pli­ance at the part num­ber level, use ap­pro­pri­ate sys­tems and processes to en­sure the ac­cu­racy of these de­ter­mi­na­tions and main­tain ap­pro­pri­ate records to allow trace­abil­ity of all Prod­ucts or parts of Prod­ucts. In­so­far as Prod­ucts or parts of Prod­ucts are not sup­plied in ac­cor­dance with the afore­men­tioned re­quire­ments, Buyer re­serves the right to can­cel blan­ket or sin­gle Or­ders. Seller un­der­takes to duly and im­me­di­ately in­form Buyer of any changes af­fect­ing RoHS com­pli­ance. In case of can­cel­la­tion of blan­ket or sin­gle Or­ders or proven vi­o­la­tions of na­tional or in­ter­na­tional RoHS com­pli­ance by the Seller, Seller un­der­takes to in­dem­nify and hold Buyer harm­less from any claim, li­a­bil­ity, loss, dam­age, judg­ment and ex­ter­nal re­spon­si­bil­ity, ir­re­spec­tive of their ju­ris­dic­tion and/or legal ground, and to bear any and all harm, loss or dam­age aris­ing to Buyer’s dis­ad­van­tage.

(k) To the ex­tent re­quired by ap­plic­a­ble law, Seller shall be re­spon­si­ble for the col­lec­tion, treat­ment, re­cov­ery or dis­posal of: (i) the Prod­ucts or any part thereof when they are deemed by law to be ‘waste’; and (ii) any items for which the Prod­ucts or any part thereof are re­place­ments. If Seller is re­quired by ap­plic­a­ble law, in­clud­ing, with­out lim­i­ta­tion, waste elec­tri­cal and elec­tronic equip­ment Leg­is­la­tions, Eu­ro­pean Di­rec­tive 2012/19/EU (“WEEE”) and re­lated Leg­is­la­tions in EU Mem­ber States, to dis­pose of ‘waste’ Prod­ucts or any part thereof, Seller shall dis­pose of such Prod­ucts en­tirely at its own cost (in­clud­ing all han­dling and trans­porta­tion costs).

(l) Seller is and re­mains solely re­spon­si­ble for the full com­pli­ance of de­liv­ered Prod­ucts, parts of Prod­ucts or sub­stances with the re­quire­ments of Reg­u­la­tion (EC) No. 1907/2006 as of 7 July 2017 as amended or var­ied and all fur­ther re­leases as well as any na­tional reg­u­la­tions is­sued in ex­e­cu­tion of this reg­u­la­tion (“REACH”). Seller guar­an­tees that all oblig­a­tions under REACH, in par­tic­u­lar all in­for­ma­tion re­quire­ments vis-à-vis Buyer, have been ful­filled. This in­cludes in par­tic­u­lar the pro­vi­sion of a com­pre­hen­sive safety data sheet in ac­cor­dance with REACH. In­so­far as Prod­ucts, parts of Prod­ucts or sub­stances are not sup­plied in ac­cor­dance with the afore­men­tioned re­quire­ments, Buyer re­serves the right to can­cel any Order. Seller un­der­takes to duly and im­me­di­ately in­form Buyer of any changes af­fect­ing REACH com­pli­ance. In case of can­cel­la­tion of blan­ket or sin­gle Or­ders or proven vi­o­la­tions of na­tional or in­ter­na­tional REACH com­pli­ance reg­u­la­tions by Seller, Seller un­der­takes to in­dem­nify and hold Buyer harm­less from any claim, li­a­bil­ity, loss, dam­age, judg­ment and ex­ter­nal re­spon­si­bil­ity, ir­re­spec­tive of their ju­ris­dic­tion and/or legal ground, and to bear any and all harm, loss or dam­age aris­ing to Buyer’s dis­ad­van­tage.

(m) Seller ac­knowl­edges that Buyer is re­quired to com­ply with Sec­tion 1502 of the United States Dodd-Frank Wall Street Re­form and Con­sumer Pro­tec­tion Act (“the Dodd-Frank Act”) and inter alia must file dis­clo­sures and re­ports with the United States Se­cu­ri­ties and Ex­change Com­mis­sion re­lated to the use of tin, tan­ta­lum, tung­sten and gold (“Con­flict Min­er­als”). Seller rep­re­sents and war­rants that it will source, and track the chain of cus­tody of, all Con­flict Min­er­als con­tained in any prod­ucts or ma­te­ri­als pro­vided by Seller to Buyer in ac­cor­dance with the OECD Due Dili­gence Guid­ance for Re­spon­si­ble Sup­ply Chains of Min­er­als from Con­flict-Af­fected and High-Risk Areas (or such other in­ter­na­tion­ally rec­og­nized due dili­gence stan­dard as Buyer and Seller may jointly agree upon). At Buyer’s re­quest (which may be as fre­quently as quar­terly at Buyer’s dis­cre­tion), Seller must ex­e­cute and de­liver to Buyer de­c­la­ra­tions in the form of the EICC-GESI Con­flict Min­er­als Re­port­ing Tem­plate as adopted by EICC-GESI from time to time, or (at Buyer’s dis­cre­tion) in any other form that Buyer rea­son­ably re­quests. Seller agrees and rep­re­sents that all prod­ucts and ma­te­ri­als pro­vided by Seller to Buyer after De­cem­ber 31, 2014 shall be “Con­flict Free” (as de­fined in the Dodd-Frank Act) and at Buyer’s re­quest from time to time Seller shall ex­e­cute and de­liver to Buyer a writ­ten de­c­la­ra­tion to the same ef­fect.

(n) Seller is and re­mains solely re­spon­si­ble for the full com­pli­ance of de­liv­ered Prod­ucts, parts of Prod­ucts or sub­stances with the re­quire­ments of the State of Cal­i­for­nia’s Safe Drink­ing Water and Toxic En­force­ment Act of 1986 (Propo­si­tion 65). Seller shall pro­vide no­ti­fi­ca­tion to Buyer of the pres­ence of Propo­si­tion 65 chem­i­cals in Seller’s prod­ucts at the time of de­liv­ery, and shall no­tify Buyer of any changes in the pres­ence of Propo­si­tion 65 chem­i­cals as soon as such changes are known. Sell­ers no­ti­fi­ca­tion to Buyer shall be suf­fi­cient if made in writ­ing by elec­tronic mail to ATGPC@​Ape​xtoo​lgro​up.​com.

8. In­dem­ni­fi­ca­tion.

(a) SELLER SHALL IN­DEM­NIFY, HOLD HARM­LESS AND, AT BUYER’S RE­QUEST, DE­FEND BUYER, ITS OF­FI­CERS, DI­REC­TORS, CUS­TOMERS, AGENTS AND EM­PLOY­EES, AGAINST ALL CLAIMS, SUITS, LI­A­BIL­I­TIES, DAM­AGES, LOSSES AND EX­PENSES, IN­CLUD­ING AT­TOR­NEYS’ FEES AND COSTS OF SUIT ARIS­ING OUT OF OR IN ANY WAY CON­NECTED WITH THE PROD­UCTS PRO­VIDED UNDER THIS AGREE­MENT, IN­CLUD­ING, WITH­OUT LIM­I­TA­TION: (I) BREACH OR NON-FUL­FILL­MENT OF ANY REP­RE­SEN­TA­TION, WAR­RANTY OR COVENANT UNDER/REP­RE­SEN­TA­TION OR WAR­RANTY SET FORTH IN SEC­TION SET FORTH HEREIN BY SELLER; (II) ANY NEG­LI­GENT OR MORE CUL­PA­BLE ACT OR OMIS­SION OF SELLER (IN­CLUD­ING ANY RECK­LESS OR WILL­FUL MIS­CON­DUCT) IN CON­NEC­TION WITH THE PER­FOR­MANCE OF ITS OBLIG­A­TIONS HERE­UN­DER; (III) ANY BOD­ILY IN­JURY, DEATH OF ANY PER­SON OR DAM­AGE TO REAL OR TAN­GI­BLE PER­SONAL PROP­ERTY CAUSED BY THE NEG­LI­GENT OR MORE CUL­PA­BLE ACTS OR OMIS­SIONS OF SELLER; (IV) ANY FAIL­URE BY SELLER TO COM­PLY WITH ANY AP­PLIC­A­BLE FED­ERAL, STATE OR LOCAL LAWS, REG­U­LA­TIONS OR CODES IN THE PER­FOR­MANCE OF ITS OBLIG­A­TIONS UNDER THIS AGREE­MENT; AND (V) ANY CLAIM BY A THIRD PARTY AGAINST BUYER AL­LEG­ING THAT THE PROD­UCTS OR SER­VICES PRO­VIDED UNDER THIS AGREE­MENT, IN­FRINGE A PATENT, COPY­RIGHT, TRADE­MARK, TRADE SE­CRET OR OTHER PRO­PRI­ETARY RIGHT OF A THIRD PARTY, WHETHER SUCH ARE PRO­VIDED ALONE OR IN COM­BI­NA­TION WITH OTHER PROD­UCTS, SOFT­WARE OR PROCESSES. SELLER SHALL NOT SET­TLE ANY SUCH SUIT OR CLAIM WITH­OUT BUYER’S PRIOR WRIT­TEN AP­PROVAL. SELLER AGREES TO PAY AND RE­IM­BURSE ALL COSTS THAT MAY BE IN­CURRED BY BUYER IN EN­FORC­ING THIS IN­DEM­NITY, IN­CLUD­ING AT­TOR­NEY’S FEES.

(b) With­out lim­it­ing the gen­er­al­ity of sec­tion (a) above, if the use by Buyer of any Prod­uct is en­joined (the “In­fring­ing Prod­uct”), Seller shall at its ex­pense use its best ef­forts to pro­cure the right for Buyer to con­tinue using the In­fring­ing Prod­uct. If Seller is un­able to do so, Seller shall at its ex­pense: (i) re­place the In­fring­ing Prod­uct with a non-in­fring­ing prod­uct; (ii) mod­ify the In­fring­ing Prod­uct to be non-in­fring­ing; or (iii) if un­able to re­place or mod­ify the In­fring­ing Prod­uct, re­fund in full all amounts paid by Buyer for the In­fring­ing Prod­uct.

(c) With­out lim­it­ing the gen­er­al­ity of sec­tion (a) above Seller shall, at Buyer’s re­quest, de­fend Buyer, its of­fi­cers, di­rec­tors, cus­tomers, agents and em­ploy­ees, against all costs and ex­penses re­lated to or in con­nec­tion with a re­call ac­tion which Buyer has to con­duct or has con­ducted.

9. In­sur­ance.

Seller agrees to ob­tain and main­tain the fol­low­ing in­sur­ance poli­cies at Seller’s sole cost and ex­pense:

(a) Com­mer­cial Gen­eral Li­a­bil­ity In­sur­ance cov­er­ing li­a­bil­ity for prop­erty dam­age, per­sonal in­jury and death aris­ing out of op­er­a­tions, prod­ucts-com­pleted op­er­a­tions, con­trac­tual li­a­bil­ity, with min­i­mum lim­its of EUR 5 mil­lion per oc­cur­rence (the “CGL Pol­icy”);

(b) Au­to­mo­bile Li­a­bil­ity In­sur­ance cov­er­ing li­a­bil­ity aris­ing out of any auto (in­clud­ing owned, hired, leased, op­er­ated and non-owned autos) with min­i­mum lim­its of EUR 1 mil­lion per oc­cur­rence com­bined sin­gle limit; and

(c) Statu­tory Work­ers’ Com­pen­sa­tion in­sur­ance (or equiv­a­lent as re­quired under ap­plic­a­ble law) as re­quired by ap­plic­a­ble law.

(d) Buyer shall be named as an ad­di­tional in­sured on the CGL Pol­icy for all op­er­a­tions of Seller here­un­der and for all li­a­bil­ity for which Seller is re­spon­si­ble under the Order. The CGL Pol­icy shall con­tain stan­dard cross li­a­bil­ity clauses, and Seller shall cause such poli­cies to be en­dorsed to pro­vide con­trac­tual li­a­bil­ity cov­er­age specif­i­cally cov­er­ing this Agree­ment as an in­sured con­tract, if nec­es­sary, to ob­tain cov­er­age of this Order there­un­der. All In­sur­ance Poli­cies shall re­quire that Buyer be given at least thirty (30) days writ­ten no­tice of can­cel­la­tion, non-re­newal, or any ma­te­r­ial change therein.

10. Can­cel­la­tion of Pur­chase Or­ders.

If Seller fails to con­firm Buyer’s Order within 5 busi­ness days of re­ceipt thereof, Buyer shall be en­ti­tled to can­cel the Order in whole or in part, with­out an oblig­a­tion or li­a­bil­ity to Seller. Buyer’s con­fir­ma­tion form en­closed with the Order or any method of ex­change or trans­mis­sion of elec­tronic data agreed be­tween Buyer and Seller should be used to con­firm the Order. In this con­text, the state­ment must be given in writ­ing or in text form.

11. Ter­mi­na­tion.

Buyer may at any time ter­mi­nate all or part of Seller’s per­for­mance here­un­der by no­tice in writ­ing or in text form to Seller. Upon re­ceipt of such no­tice, Seller shall elim­i­nate its per­for­mance and all or­ders and sub­con­tracts to the ex­tent they re­late to such per­for­mance. To the ex­tent the Order cov­ers Prod­ucts nor­mally car­ried in Seller’s in­ven­tory, Buyer shall have no li­a­bil­ity for any ter­mi­na­tion of the Order, in whole or in part, prior to ship­ment, or will have li­a­bil­ity for Prod­ucts al­ready shipped to the ex­tent Buyer has ac­cepted such Prod­ucts. To the ex­tent the Order cov­ers Prod­ucts not nor­mally car­ried in Seller’s in­ven­tory, the fol­low­ing pro­vi­sions will apply. Seller shall promptly ad­vise Buyer of the quan­ti­ties of Prod­ucts and raw ma­te­r­ial on hand or pur­chased prior to ter­mi­na­tion and of the most fa­vor­able dis­po­si­tion thereof. Seller shall com­ply with Buyer’s in­struc­tions re­gard­ing dis­po­si­tion of Prod­ucts and raw ma­te­ri­als. Seller shall sub­mit to Buyer writ­ten no­tice of its in­tent to sub­mit claims based on such ter­mi­na­tion within a rea­son­able pe­riod of time, in gen­eral fif­teen (15) days from the date of no­tice of ter­mi­na­tion and de­tail and sub­stan­ti­ate such claims within a rea­son­able pe­riod of time, in gen­eral thirty (30) days there­after, or Seller waives such claims in their en­tirety. Buyer shall only pay Seller the Order price of fin­ished Prod­ucts ac­cepted by Buyer, and the cost to Seller ex­clud­ing prof­its and losses, of work in process and raw ma­te­ri­als re­lat­ing hereto, less the agreed value of any Prod­ucts used or sold by Seller with Buyer’s con­sent. Seller has an oblig­a­tion to mit­i­gate dam­ages and Buyer may deduct from any amounts owed any such dam­ages that Seller could have mit­i­gated but did not. Buyer may ver­ify such claims at any rea­son­able time(s) by any rea­son­able method. Buyer will not pay for fin­ished work, work in process, or raw ma­te­ri­als fab­ri­cated or pro­cured by Seller un­nec­es­sar­ily in ad­vance or in ex­cess of Buyer’s de­liv­ery re­quire­ments here­un­der. Notwith­stand­ing the above, any pay­ments under this para­graph shall not ex­ceed the ag­gre­gate price spec­i­fied in the Order, less any pay­ments made or to be made. Pay­ment under this para­graph (if any) is Buyer’s only li­a­bil­ity if the Order is ter­mi­nated.

12. Spe­cial Tool­ing.

“Spe­cial Tool­ing” means all pat­terns, dies, fix­tures, molds, jigs, mod­els, gauges, in­spec­tion de­vices, spe­cial cut­ting tools, spe­cial test de­vices, draw­ings, tem­plates and any re­place­ments thereof, which, be­fore the date hereof, Seller did not own or use and which Seller has been or will be re­quired to ac­quire and use solely for pur­poses of fur­nish­ing Prod­ucts here­un­der, but ex­cludes tools, cap­i­tal items or prop­erty owned or fur­nished by Buyer. Prior writ­ten ap­proval for pur­chase of any Spe­cial Tool­ing is re­quired, and such re­quest shall de­tail each item and its price. Seller shall use all Spe­cial Tool­ing solely for per­for­mance of the Order or as Buyer di­rects in writ­ing, main­tain Spe­cial Tool­ing in good con­di­tion, fully cov­ered by in­sur­ance, and re­place it at Seller’s cost if lost, stolen, de­stroyed, or oth­er­wise ren­dered unfit for use to the ex­tent this is at­trib­ut­able to Seller. Seller shall per­mit in­spec­tion and sup­ply Buyer with de­tailed state­ments of Spe­cial Tool­ing upon re­quest. Upon com­ple­tion, can­cel­la­tion, or ter­mi­na­tion of work for which Spe­cial Tool­ing is re­quired, Seller shall list Prod­ucts and the Spe­cial Tool­ing used in con­nec­tion there­with, in­clud­ing the un­amor­tized cost and fair mar­ket value of each item, and shall in writ­ing if Buyer so elects, trans­fer pos­ses­sion and title of the Spe­cial Tool­ing to Buyer, free and clear of liens and en­cum­brances, in ex­change for the lesser of the un­amor­tized cost or fair mar­ket value of the tool­ing. Buyer may dis­pose of Spe­cial Tool­ing with­out tak­ing pos­ses­sion thereof and re­ceive any re­sult­ing sal­vage or re­sale rev­enues and may enter Seller’s premises to ob­tain pos­ses­sion of any Spe­cial Tool­ing.

13. Own­er­ship of Work Prod­uct.

(a) For pur­poses of this Order, "Work Prod­uct" shall in­clude, with­out lim­i­ta­tion, all de­signs, dis­cov­er­ies, cre­ations, works, de­vices, masks, mod­els, work in progress, ser­vice de­liv­er­ables, in­ven­tions, prod­ucts, Spe­cial Tool­ing, com­puter pro­grams, pro­ce­dures, im­prove­ments, de­vel­op­ments, draw­ings, notes, doc­u­ments, busi­ness processes, in­for­ma­tion and ma­te­ri­als made, con­ceived or de­vel­oped by Seller alone or with oth­ers which re­sult from or re­late to the ser­vices per­formed or Prod­ucts de­liv­ered here­un­der. Stan­dard Prod­ucts man­u­fac­tured by Seller and sold to Buyer with­out hav­ing been de­signed, cus­tomized or mod­i­fied in any way for Buyer do not con­sti­tute Work Prod­uct. All Work Prod­uct, if Buyer pays the pur­chase price rel­e­vant for that Work Prod­uct, shall at all times be and re­main the sole and ex­clu­sive prop­erty of Buyer. Seller hereby agrees to ir­rev­o­ca­bly as­sign and trans­fer to Buyer and does hereby as­sign and trans­fer to Buyer all of its world­wide right, title and in­ter­est in and to the Work Prod­uct in­clud­ing all as­so­ci­ated in­tel­lec­tual prop­erty rights. Seller hereby waives any and all moral and other rights in any Work Prod­uct or any other in­tel­lec­tual prop­erty cre­ated, de­vel­oped or ac­quired in re­spect of the Prod­ucts. Buyer will have the sole right to de­ter­mine the treat­ment of any Work Prod­uct, in­clud­ing the right to keep it as trade se­cret, ex­e­cute and file patent ap­pli­ca­tions on it, to use and dis­close it with­out prior patent ap­pli­ca­tion, to file reg­is­tra­tions for copy­right or trade­mark in its own name or to fol­low any other pro­ce­dure that Buyer deems ap­pro­pri­ate. Seller agrees: i) to dis­close promptly in writ­ing to Buyer all Work Prod­uct in its pos­ses­sion; ii) to as­sist Buyer in every rea­son­able way, at Buyer’s ex­pense, to se­cure, per­fect, reg­is­ter, apply for, main­tain, and de­fend for Buyer’s ben­e­fit all copy­rights, patent rights, mask work rights, trade se­cret rights, and all other pro­pri­etary rights or statu­tory pro­tec­tions in and to the Work Prod­uct in Buyer’s name as it deems ap­pro­pri­ate; and iii) to oth­er­wise treat all Work Prod­uct as Buyer Con­fi­den­tial In­for­ma­tion as de­fined herein. These oblig­a­tions to dis­close, as­sist, ex­e­cute and keep con­fi­den­tial sur­vive the ex­pi­ra­tion or ter­mi­na­tion of this Agree­ment. All tools and equip­ment sup­plied by Buyer to Seller shall re­main the sole prop­erty of Buyer.

(b) Seller will en­sure that Sell­ers sub­con­trac­tors ap­pro­pri­ately waive any and all claims and as­sign to Buyer any and all rights or any in­ter­ests in any Work Prod­uct or orig­i­nal works cre­ated in con­nec­tion with this Order. Seller ir­rev­o­ca­bly agrees not to as­sert against Buyer or its di­rect or in­di­rect cus­tomers, as­signees or li­censees any claim of any in­tel­lec­tual prop­erty rights of Buyer af­fect­ing the Work Prod­uct.

(c) Buyer will not have rights to any works con­ceived or re­duced to prac­tice by Seller which were de­vel­oped en­tirely on Sell­ers own time with­out using equip­ment, sup­plies, fa­cil­i­ties or trade se­cret or Buyer Con­fi­den­tial In­for­ma­tion, un­less: i) such works re­late to Buyer’s busi­ness, or Buyer’s ac­tual or demon­stra­bly an­tic­i­pated re­search or de­vel­op­ment; or ii) such works re­sult from any ser­vices per­formed by Seller for Buyer.

14. Con­fi­den­tial­ity.

(a) Seller will ac­quire knowl­edge of Buyer Con­fi­den­tial In­for­ma­tion (as de­fined below) in con­nec­tion with its per­for­mance here­un­der and agrees to keep such Buyer Con­fi­den­tial In­for­ma­tion in con­fi­dence dur­ing and fol­low­ing ter­mi­na­tion or ex­pi­ra­tion of this Order. "Buyer Con­fi­den­tial In­for­ma­tion" in­cludes but is not lim­ited to all in­for­ma­tion, whether writ­ten or oral, in any form, in­clud­ing, with­out lim­i­ta­tion, in­for­ma­tion re­lat­ing to the re­search, de­vel­op­ment, prod­ucts, meth­ods of man­u­fac­ture, trade se­crets, busi­ness plans, cus­tomers, ven­dors, fi­nances, per­son­nel data, Work Prod­uct (as de­fined herein) and other ma­te­r­ial or in­for­ma­tion con­sid­ered pro­pri­etary by Buyer re­lat­ing to the cur­rent or an­tic­i­pated busi­ness or af­fairs of Buyer which is dis­closed di­rectly or in­di­rectly to Seller. In ad­di­tion, Buyer Con­fi­den­tial In­for­ma­tion means any third par­tys pro­pri­etary or con­fi­den­tial in­for­ma­tion dis­closed to Seller in the course of pro­vid­ing Prod­ucts to Buyer. Buyer Con­fi­den­tial In­for­ma­tion does not in­clude any in­for­ma­tion: i) which Seller law­fully knew with­out re­stric­tion on dis­clo­sure be­fore Buyer dis­closed it to Seller; ii) which is now or be­comes pub­licly known through no wrong­ful act or fail­ure to act of Seller; iii) which Seller de­vel­oped in­de­pen­dently with­out use of the Buyer Con­fi­den­tial In­for­ma­tion, as ev­i­denced by ap­pro­pri­ate doc­u­men­ta­tion; or iv) which is here­after law­fully fur­nished to Seller by a third party as a mat­ter of right and with­out re­stric­tion on dis­clo­sure. In ad­di­tion, Seller may dis­close Con­fi­den­tial In­for­ma­tion which is re­quired to be dis­closed pur­suant to a re­quire­ment of a gov­ern­ment agency or law but only after Seller pro­vides prompt no­tice to Buyer of such re­quire­ment and gives Buyer the op­por­tu­nity to chal­lenge or limit the scope of the dis­clo­sure.

(b) Seller agrees not to copy, alter or di­rectly or in­di­rectly dis­close any Buyer Con­fi­den­tial In­for­ma­tion. Ad­di­tion­ally, Seller agrees to limit its in­ter­nal dis­tri­b­u­tion of Buyer Con­fi­den­tial In­for­ma­tion to Sell­ers em­ploy­ees who have a need to know, and to take steps to en­sure that the dis­sem­i­na­tion is so lim­ited. In no event will Seller use less than the de­gree of care and means that it uses to pro­tect its own in­for­ma­tion of like kind, but in any event not less than rea­son­able care to pre­vent the unau­tho­rized use of Buyer Con­fi­den­tial In­for­ma­tion.

(c) Seller fur­ther agrees not to use Buyer Con­fi­den­tial In­for­ma­tion ex­cept in the course of per­form­ing here­un­der and will not use such Buyer Con­fi­den­tial In­for­ma­tion for its own ben­e­fit or for the ben­e­fit of any third party. The min­gling of Buyer Con­fi­den­tial In­for­ma­tion with in­for­ma­tion of Seller shall not af­fect the con­fi­den­tial na­ture or own­er­ship of the same as stated here­un­der. Seller agrees not to de­sign or man­u­fac­ture any prod­ucts which in­cor­po­rate Buyer Con­fi­den­tial In­for­ma­tion ex­cept as au­tho­rized by the Order. All Buyer Con­fi­den­tial In­for­ma­tion is and shall re­main the prop­erty of Buyer. Upon Buy­ers writ­ten re­quest or the ter­mi­na­tion of this Agree­ment, Seller shall re­turn, trans­fer or as­sign to Buyer all Buyer Con­fi­den­tial In­for­ma­tion, in­clud­ing all Work Prod­uct, as de­fined herein, and all copies thereof.

15. Blan­ket Pur­chase Or­ders.

If Prod­ucts pur­chased are cov­ered under a blan­ket Order, no ship­ment can be made, or in­voice is­sued, until a re­lease Order is is­sued. Unau­tho­rized ship­ments will be held at Seller’s risk and ex­pense. A blan­ket Order au­tho­rizes Seller to pro­cure raw ma­te­ri­als suf­fi­cient to meet de­liv­ery of the quan­tity of a re­lease Order, but only to man­u­fac­ture and de­liver such re­spec­tive quan­ti­ties at such re­spec­tive times as is in­di­cated on the re­lease Order pro­vided by Buyer. Buyer will not as­sume any li­a­bil­ity in the event Seller en­gages in any man­u­fac­ture be­fore the time spec­i­fied, or in ex­cess of the quan­tity re­quired to meet such re­spec­tive de­liv­er­ies.

16. Changes in Process or Method of Man­u­fac­tur­ing.

Seller agrees that it will not in­voke any changes in process or method or lo­ca­tion of man­u­fac­tur­ing with­out Buyer’s prior con­sent in writ­ing or in text form. Seller fur­ther agrees that any con­tem­plated changes in process or method of man­u­fac­tur­ing will be sub­mit­ted to Buyer in suf­fi­cient time to en­able Buyer a rea­son­able op­por­tu­nity in which to eval­u­ate such changes.

17. Non-In­ter­fer­ence with Busi­ness.

Dur­ing and for a pe­riod of two years im­me­di­ately after the ter­mi­na­tion or ex­pi­ra­tion of this Agree­ment, Seller agrees not to un­law­fully in­ter­fere with the busi­ness of Buyer in any man­ner, and fur­ther agrees not to so­licit or in­duce any em­ployee or in­de­pen­dent con­trac­tor to ter­mi­nate or breach an em­ploy­ment, con­trac­tual or other re­la­tion­ship with Buyer.

18. Non-Ex­clu­sive Agree­ment.

This is not an ex­clu­sive agree­ment. Buyer is free to en­gage oth­ers to per­form ser­vices or pro­vide Prod­ucts the same as or sim­i­lar to Sell­ers. Seller is free to, and is en­cour­aged to, ad­ver­tise, offer and pro­vide Sell­ers ser­vices and/or goods to oth­ers; pro­vided how­ever, that Seller does not breach this Agree­ment.

19. Lim­i­ta­tion of Li­a­bil­ity.

IN NO EVENT SHALL BUYER BE LI­ABLE TO SELLER OR SELL­ERS AGENTS, SUB­CON­TRAC­TORS, OR ANY THIRD PARTY FOR ANY IN­CI­DEN­TAL, IN­DI­RECT, SPE­CIAL OR CON­SE­QUEN­TIAL DAM­AGES ARIS­ING OUT OF, OR IN CON­NEC­TION WITH, THIS AGREE­MENT, RE­GARD­LESS OF WHETHER BUYER WAS AD­VISED OF THE POS­SI­BIL­ITY OF SUCH DAM­AGE AND RE­GARD­LESS OF WHETHER SUCH DAM­AGES WERE CAUSED BY BUY­ERS NEG­LI­GENCE, BREACH OF CON­TRACT, OR OTHER AC­TION­ABLE CON­DUCT OR OMIS­SION.

20. Pub­lic­ity.

Seller shall not, with­out the prior writ­ten con­sent of Buyer, ad­ver­tise or oth­er­wise dis­close that Seller has en­tered into the Order with Buyer. Seller shall not use Buyer’s name or trade­mark in any press re­lease, mar­ket­ing or ad­ver­tis­ing ma­te­ri­als with­out Buyer’s prior writ­ten con­sent.

21. Waiver.

No waiver of any pro­vi­sion of these terms and con­di­tions (or any right or de­fault here­un­der) shall be ef­fec­tive un­less in writ­ing and signed by Buyer. Any such waiver shall be ef­fec­tive only for the in­stance given, and shall not op­er­ate as a waiver with re­spect to any other rights or oblig­a­tions under the Order or ap­plic­a­ble law in con­nec­tion with any other in­stances or cir­cum­stances.

22. En­tire Agree­ment.

These terms and con­di­tions, to­gether with the terms on the face of any Order is­sued here­un­der, con­sti­tute the final and en­tire agree­ment be­tween Buyer and Seller with re­spect to the pur­chase of Prod­ucts and su­per­sede any terms and con­di­tions in any ac­knowl­edge­ment form, in­voice or other doc­u­ment of Seller. These terms and con­di­tions may be amended only by a writ­ten in­stru­ment duly ex­e­cuted by both par­ties, and may not be amended orally or by course of per­for­mance. This also ap­plies to any amend­ment of this pro­vi­sion re­quir­ing writ­ten form as well as to any waiver thereof.

23. Choice of Law and Ju­ris­dic­tion.

The Order shall be gov­erned by and con­strued in ac­cor­dance with the laws of the Fed­eral Re­pub­lic of Ger­many, ex­clu­sive of the United Na­tions Con­ven­tion on the con­tracts for in­ter­na­tional sale of goods and with­out ref­er­ence to its choice of law rules. 

The courts com­pe­tent for the city in which the Buyer or any of its af­fil­i­ates has its reg­is­tered place of busi­ness shall have the ex­clu­sive ju­ris­dic­tion over any is­sues re­lat­ing to the Order.

24. As­sign­ment.

Seller may not assign, transfer or subcontract the performance of its services, or any of its rights and/or obligations hereunder, without Buyer’s prior written consent.