Terms and Conditions of Purchase
Effective April 8, 2019
1. Application of Terms and Conditions. These Terms and Conditions of Purchase (these “Terms”) shall apply to and govern all purchases and other transactions to acquire any Products by Shure Incorporated or any direct or indirect subsidiary of Shure Incorporated, including Shure Electronics (Suzhou) Co. Ltd and Shure China Trading Co., Ltd. (individually and collectively, “Purchaser”) from any person or entity (“Seller”). As used in these Terms, “Products” means all products, including, without limitation, goods, software, software licenses, and, except to the extent the particular context does not permit, any services. These Terms are incorporated into and shall apply to each order or offer by Purchaser (including any electronic form) to purchase or acquire Products (each, a “Purchase Order”) and to each contract, agreement, or other legally-binding commitment of Purchaser (including any electronic form) to purchase or acquire Products (each, a “Purchase Agreement”). No modification, waiver, or other variance of these Terms shall apply, unless specifically agreed to by Purchaser. No other terms or conditions in any order acknowledgement, acceptance, offer, invoice, or other document or communication of Seller (including any electronic form), including, without limitation, Seller’s standard printed terms and conditions, shall apply to any Purchase Order or Purchase Agreement, unless expressly agreed to by Purchaser with specific reference to those terms or conditions. Any such terms or conditions not specifically agreed to by Purchaser shall be deemed waived by Seller.
2. Forecasts. Upon Seller’s reasonable request, Purchaser will provide Seller with a 12-month planning forecast on an annual basis. The quantities listed in such forecasts will be estimated needs only based on expected demand. Purchaser makes no representation, warranty or legally-binding commitment with respect to any forecast, including, without limitation, any representation or warranty as to its accuracy or any commitment to purchase or acquire any quantity or type of Products.
3. Purchaser's Commitment. Unless otherwise specifically agreed to by Purchaser, Seller shall be solely responsible for managing its own inventory with respect to Products and their components and assumes all risks of making material commitments or production arrangements in excess of the amount or in advance of the time necessary to meet obligations to Purchaser. Purchaser has no obligation to purchase or acquire any Products exclusively from Seller or in any minimum quantity, except to the extent Purchaser may otherwise specifically agree.
4. Pricing. No price increases or charges shall be permitted unless specifically agreed to by Purchaser. If Seller’s costs or prices for any Products are reduced for any reason as of or before the time of any delivery or performance, Seller shall promptly notify Purchaser and reduce the price to Purchaser for the Products correspondingly. Seller represents and warrants that it is selling to Purchaser at the lowest or most favorable prices that it offers to any purchasers for the Products or substantially equivalent products. If during the term of a Purchase Order and/or Purchase Agreement, Purchaser has reasonable evidence to prove that Seller supplies or offers to supply to any third party any Products or substantially equivalent products at a price below that in effect for the Products provided under the Purchase Order and/or Purchase Agreement, then Seller shall promptly meet the price for the Product for the duration of the Purchase Order and/or Purchase Agreement or, if Seller fails to meet such price, then Purchaser shall have the right to revoke the Purchase Order or terminate the Purchase Agreement without liability other than to pay for Products ordered by Purchaser prior to revocation or termination that are subsequently delivered by Seller in accordance with the Purchase Order or Purchase Agreement. All prices and other sums shall be stated and payable in US Dollars, unless otherwise specified or agreed by Purchaser.
5. Cancellation by Purchaser. Purchaser reserves the right to cancel, by notice to Seller, all or any part of any Purchase Order or Purchase Agreement for any or no reason at any time. Purchaser shall not incur any cost or other liability to Seller as a result of cancellation but shall pay the agreed amount for Products previously delivered pursuant to the Purchase Order or Purchase Agreement. If Purchaser cancels all or a portion of any Purchase Order or Purchase Agreement at any time prior to delivery of the Products, Seller shall refund any advances or deposits made to Seller with respect to the cancelled Products.
6. Engineering Change Orders, Etc.
(a) Seller shall implement engineering change orders requested by Purchaser with respect to Products (“ECOs”), subject to and in accordance with the following procedures:
(i) Purchaser will notify Seller of any proposed ECO. The notice will include the following documentation: the ECO form with a description of the change, a revised bill of materials (if applicable), drawings, media, required implementation date, potential component liabilities (i.e., excess materials), and other matters deemed relevant by Purchaser. If the proposed changes would cause an increase or decrease in the total number of Products due under a Purchase Order previously issued and accepted or a Purchase Agreement previously entered into or in the time required for its performance, an equitable adjustment shall be made, provided, however, that any claim by either party for adjustment must be asserted in the form of a quotation within fifteen (15) days after receipt by Seller of the notice of proposed ECO.
(ii) Upon notice of a proposed ECO, Seller shall use its best commercially reasonable efforts to determine and present to Purchaser within five (5) days all costs and materials that would reasonably be impacted by the ECO. All cost impacts and material availability issues, if any, shall be mutually reviewed and agreed by Seller and Purchaser prior to Seller's implementation of the ECO.
(iii) Purchaser shall have fifteen (15) days after its receipt of all necessary information from Seller to approve or reject the implementation of any such proposed ECO. Purchaser must provide an affirmative approval to Seller if Purchaser wishes to implement the ECO. Purchaser shall be conclusively presumed to have rejected the ECO if Purchaser fails to expressly approve the ECO within that 15-day period. If Purchaser approves the ECO, the proposed ECO shall be implemented and Seller shall then deliver Products changed in accordance with the provisions of the ECO and the Purchase Order and/or the Purchase Agreement. If Purchaser rejects or is deemed to have rejected the ECO, Seller shall continue to deliver unchanged Products in accordance with the Purchase Order and/or the Purchase Agreement without regard to the ECO.
(iv) Notwithstanding the foregoing, if Purchaser indicates that a proposed ECO is an emergency ECO, the ECO shall be promptly implemented at Purchaser’s request. Purchaser shall be liable for all reasonable expedited costs resulting from emergency ECO implementation. However, Seller shall promptly present the cost impacts and any material availability issues to Purchaser, and all cost impacts and material availability issues, if any, shall be mutually reviewed and agreed to by Seller and Purchaser prior to Seller's implementation of the ECO. Each party shall act promptly and reasonably in trying to reach the agreements contemplated by this Section 6(a).
(b) With respect to any changes to Purchase Orders not subject to ECOs, Purchaser reserves the right to make those changes at any time prior to complete delivery of the relevant Products, without incurring any costs or other liability for the changes. However, if Purchaser makes such a change after the Purchase Order has been properly accepted by Seller, then Seller promptly (and in any event within five (5) days) shall notify Purchaser of any adjustment to the price or other monetary terms or delivery schedule of the Purchase Order that would reasonably result from the change, and the parties then shall negotiate an equitable adjustment or Purchaser may elect to cancel the change. Purchaser shall be deemed to have rejected any proposed adjustment that it does not expressly accept.
(c) Seller shall not make any changes in the standards, specifications, parts, materials or physical composition of, or the processes or location used to manufacture, any Products without Purchaser's prior written consent. Seller shall notify Purchaser prior to making any such changes. Changes made without Purchaser’s approval shall be sufficient cause for rejection of the delivered Product and cancellation of any Purchase Order and/or Purchase Agreement without cost to Purchaser.
7. Payments and Invoices. Except in instances where Purchaser expressly agrees to any other invoicing or payment terms, invoices for Products shall not be issued by Seller prior to the time the Products have been shipped in accordance with the applicable Purchase Order or Purchase Agreement and payment for any Products shall be due not less than the later of (i) sixty (60) days after the applicable invoice is issued and delivered to Purchaser or (ii) fourteen (14) days following receipt of the Products by Purchaser, unless special discount / payment terms have been agreed upon between Purchaser and Seller. All invoices and receiving documentation shall contain the following information: Purchase Order number(s), part number(s) and description of each Product, quantities of each Product, extending costs and unit prices, and any other information requested by Purchaser.
8. Delivery and Delays. Specific requirements regarding delivery of Products may be specified in the applicable Purchase Order, Purchase Agreement, and/or other applicable instructions of Purchaser (such as Shure’s then applicable Routing Guide). If not otherwise specified, all Products shall be delivered by Seller to Purchaser F.O.B. Purchaser’s specified facility. Delivery shall not be considered complete until all the Products ordered have been actually received and accepted by Purchaser. Seller shall bear all risk of loss or damage with respect to the Products while in transit or shipment. Time is of the essence with respect to delivery of Products. If, for any reason, Seller anticipates difficulty in complying with a required delivery date or meeting any other requirements of a Purchase Order or Purchase Agreement, Seller shall immediately notify Purchaser in writing, providing details of the anticipated difficulty in complying. However, Seller’s notice shall not relieve it from any of its obligations or liabilities under these Terms, any applicable Purchase Order and/or Purchase Agreement. If Seller does not comply with Purchaser’s delivery requirements under an accepted Purchase Order and/or Purchase Agreement, in addition to its other rights and remedies, Purchaser may, in its sole discretion, (i) require delivery by the fastest way to meet the delivery dates in any Purchase Order and/or Purchase Agreement at the sole expense of Seller, (ii) submit a revised Purchase Order, or (iii) terminate all or part of any Purchase Order and/or Purchase Agreement without liability on the side of Purchaser. Seller also shall be liable to Purchaser for all reasonable costs incurred by Purchaser associated with Seller’s failure to comply. Unless otherwise specified in the applicable Purchase Order, Purchase Agreement, and/or other applicable instructions of Purchaser, Seller shall pay all freight, insurance, and other costs with respect to the delivery of Products and all prices quoted by Seller shall be inclusive of those costs.
9. Inspection, Testing, Etc. Seller assumes all risk of loss of or damage to any Products until the Products are finally accepted by Purchaser. All Products (whether or not paid for) shall be subject to inspection, testing, and approval by Purchaser before and/or after acceptance, at Purchaser’s premises or any other location selected by Purchaser. Products rejected as damaged, defective, or otherwise not conforming in any way to a Purchase Order or Purchase Agreement may be held or returned by Purchaser to Seller at Seller’s risk and expense, including transportation and handling costs, and Purchaser in any event shall be entitled to a full refund. Seller shall promptly reimburse Purchaser for all costs incurred by Purchaser or its affiliates or any third parties designated by Purchaser to inspect, test, or otherwise as a result of, such nonconforming Products. Purchaser’s acceptance, inspection, testing, approval and/or use of or payment for any Products shall not constitute a waiver of any rights or remedies (including rights or remedies with respect to any non-conformities later discovered) and shall not relieve Seller from any liabilities or obligations under its warranties or otherwise.
10. Representations and Warranties. (a) Without limitation to any other representations, warranties, or commitments which Seller makes at any time, Seller represents and warrants to Purchaser that: (i) at the time of each sale or provision of Products to or for the account of Purchaser, Seller shall transfer to Purchaser (or to whomever it has designated under the applicable Purchase Order and/or Purchase Agreement), good and marketable title (or, as applicable, other requisite legal rights) to the Products free and clear of all security interests, liens, and other encumbrances, all of which current and future security interests, liens, and other encumbrances are hereby waived and released by Seller; (ii) all Products (including each of their components) shall be new and unused and free from defects in materials, workmanship and design and shall conform strictly to all specifications and standards (including any plans, drawings, designs and samples) furnished or specified by Seller and agreed to by Purchaser, or by Purchaser if specifications or standards are furnished or specified by Purchaser; (iii) all Products shall be merchantable and shall be fit for the particular purposes for which Purchaser intends if the particular purposes were reasonably communicated or inferable at or before the time of the applicable Purchase Order or Purchase Agreement; (iv) the Products shall be safe for any use consistent with such standards and specifications, including, without limitation, use on, in, or in conjunction with Purchaser’s products; (v) the Products shall comply with all applicable statutes, regulations, rules, orders, directives and other laws of the United States, the People’s Republic of China (the “PRC”), and all other applicable jurisdictions and shall be properly produced, labeled, marked, stored, handled, sold and delivered to Purchaser in compliance with all applicable laws; (vi) neither the Products, nor the purchase, use, distribution, import, export, resale, and display of the Products, including any associated labels, packaging, instructions, promotional materials, or other associated documentation provided by Seller, shall infringe any patent, copyright, trademark, trade secret, mask work right, license, or other intellectual property right of any third party; and (vii) with respect to any services provided under a Purchase Order and/or Purchase Agreement, (A) Seller shall provide the services in a commercially reasonable manner, in accordance with the Purchase Order and/or Purchase Agreement, all applicable laws, and the highest prevailing standards of its industry, and (B) all services (including any resulting work product) shall be Seller’s original work.
(b) If Seller becomes aware of any claim of any infringement of any patent, copyright, trademark, trade secret, mask work right, license, or other intellectual property right of any third party, Seller shall promptly notify Purchaser in writing. If Seller is unable, promptly and in any event within thirty (30) days of such notice, to replace, modify, or procure the right for Purchaser to continue to purchase, use, distribute, resell, import, export, and display the affected Product and associated documentation (including any such work product), Seller shall, without limiting Purchaser’s other rights or remedies, accept the return of any affected Products, if practicable, and shall promptly refund the full amount paid by Purchaser (including freight or other associated charges). Seller’s warranties with respect to defect in materials and workmanship of Products used on, in, or in conjunction with Purchaser’s products (“Purchaser’s Units”) shall extend for at least the time period of Purchaser’s warranties to its customers with respect to such Purchaser’s Units. Upon notice from Purchaser that a Product failed to comply with such warranty within the warranty period, in addition to any rights or remedies Purchaser may otherwise have, Seller shall reimburse Purchaser for all direct and indirect costs incurred by Purchaser as result of such failure, including, without limitation, all repair and replacement costs and, at Purchaser’s election, Seller shall promptly replace such failed Products at no cost to Purchaser. At Purchaser’s discretion, failed Products shall be returned to Seller at Seller’s risk and expense, including transportation and handling costs.
11. RoHS Compliance. Without limiting any other provision of these Terms, Seller shall only furnish Products to or for the account of Purchaser that are compliant with Directives 2011/65/EU and 2015/863/EU of the European Parliament and of the Council of the European Union (the Restriction of Hazardous Substances or “RoHS” Directive), the Management Methods for Controlling Pollution Caused by Electronic Information Products Regulation of the Peoples’ Republic of China (so-called “China RoHS”), and other similar laws of other jurisdictions into which the Products are sold or shipped. Seller shall provide appropriate documentation or proof of such compliance at the Purchaser’s request.
12. Purchaser’s Intellectual Property Rights and Materials. If Purchaser provides or makes available to Seller, or if Seller makes, produces, creates, conceives, invents, acquires, or reduces to practice for Purchaser, any information, data, plans, works of authorship, inventions, concepts, specifications, drawings, designs, copyrights, trademarks, patents, trade secrets, or other intellectual property, in any written, verbal, electronic, visual, or other form, including, without limitation, as part of any tools, equipment, samples, models, or prototypes (all of the foregoing intellectual property, collectively, “Purchaser IP”), or any tools, parts, dies, molds, products, patterns, electrotypes, plates, art work, layouts, engravings, forms, proofs, negatives, or other equipment or materials (all of the foregoing equipment and materials, collectively, “Purchaser Materials”), then Purchaser and/or Purchaser’s relevant affiliate(s) shall be the exclusive owner of all Purchaser Materials and Purchaser IP and Seller hereby assigns to Purchaser and/or Purchaser’s relevant affiliate(s) as designated by Purchaser any and all rights in and to any Purchaser Materials or Purchaser IP that Seller might otherwise have or acquire; except that Purchaser hereby grants to Seller a non-exclusive, revocable, non-transferable, non-sublicenseable, royalty-free right and license to use the Purchaser IP and Purchaser Materials, solely as required for Seller’s design, development, manufacture, marketing, sale, provision, distribution, or service of any Products to or for the account of Purchaser in accordance with the applicable Purchase Orders and/or Purchase Agreements. Except for the foregoing right and license granted to Seller to use Purchaser IP and Purchaser Materials, Seller shall not have or acquire any rights in any of the Purchaser IP or the Purchaser Materials, and Seller shall not in any event register, or contest Purchaser’s or Purchaser’s relevant affiliates’ rights to, any Purchaser IP or Purchaser Materials, or any associated intellectual property rights. Seller also shall execute and deliver to Purchaser and/or Purchaser’s relevant affiliates any documents or instruments, and take any other actions, as Purchaser may reasonably request in order to register Purchaser’s and/or Purchaser’s relevant affiliates’ rights in the Purchaser IP and/or Purchaser Materials. If any part of the Products is based on, incorporates, or is an improvement or derivative of, or cannot be reasonably and fully used, distributed, and otherwise exploited by Purchaser and/or Purchaser’s relevant affiliates without using or violating intellectual property rights owned or licensed by Seller and not assigned under these Terms, then Seller hereby grants to Purchaser and/or Purchaser’s relevant affiliates a perpetual, irrevocable, worldwide royalty-free, non-exclusive, sublicenseable right and license to exploit and exercise all such intellectual property rights in support of Purchaser’s and/or Purchaser’s relevant affiliates’ exploitation of such Products in its/their business. Seller shall on Purchaser’s behalf maintain all Purchaser Materials in fully-insured, good, and secure condition, conspicuously mark them as Purchaser’s property and reflect the same on Seller’s books and records, segregate the Purchaser Materials from Seller’s other property and possessions to the extent reasonably practicable, and return the Purchaser Materials to Purchaser promptly upon Purchaser’s request or termination of the parties’ relationship at any time.
13. Confidentiality. All information constituting part of the Purchaser IP, and all other information disclosed or made available to Seller by or on behalf of Purchaser, including, without limitation, information relating to Purchaser, Purchaser’s affiliates, and their respective ownership, businesses, plans, research, development, products, technologies, trade secrets, methods, operations, processes, customers, suppliers and other business relations, the relationship between Seller and Purchaser, and information embodying or derived from any of the foregoing (collectively, “Confidential Information”), shall belong to Purchaser and/or Purchaser’s affiliates and shall be kept strictly confidential by Seller in accordance with its own measures for ensuring the confidentiality of its own most confidential and proprietary information (but using at least commercially reasonable measures), Seller shall not use or authorize any person or entity to use any Confidential Information for any purpose other than that is specifically provided under a Purchase Order and/or Purchase Agreement (including these Terms), and Seller shall not disclose any Confidential Information to any person or entity other than Seller’s own employees, agents and permitted subcontractors on a need-to-know basis who likewise agree to be legally bound by such confidentiality and use restrictions for each of Seller’s and Purchaser’s benefit. All tangible or readable forms of the Confidential Information shall be plainly marked or otherwise adequately identified by Seller as “Confidential and Proprietary to Shure” (however, Seller’s failure to mark or identify shall not affect the confidentiality of any Confidential Information or Seller’s obligations as provided herein) and shall be promptly delivered to Purchaser upon request without further cost to Purchaser. Any information concerning Seller or its business, products, services, methods, processes or otherwise which Seller may disclose to Purchaser incident to the furnishing of the Products shall, unless otherwise specifically agreed by Purchaser, be considered to have been disclosed as a part of the consideration for the applicable Purchase Order and/or Purchase Agreement and not in confidence and Seller shall not assert any claim against Purchaser or Purchaser’s affiliates by reason of Purchaser’s or Purchaser’s affiliates’ use thereof.
14. Indemnification; Insurance. Seller shall indemnify, hold harmless and defend Purchaser, its affiliates, and their respective owners, directors, officers, agents, successors and assigns from and against any and all losses, damages, costs, expenses (including reasonable attorneys’ fees and all arbitration and enforcement fees), and other liabilities suffered or incurred by any of them, in any manner arising out of or resulting from: (a) Seller’s breach or violation of any representation, warranty, obligation or agreement made under any Purchase Order and/or Purchase Agreement (including these Terms); (b) Seller’s entry upon Purchaser’s property for any reason; or (c) the design, manufacture, handling, storage, sale, distribution or use of any Products, including, without limitation, injury to persons or damage to property, actually or allegedly caused by any dangerous or defective condition in any Products, but excluding any such liabilities that are finally proved to be caused directly and exclusively by Purchaser’s negligent actions or unauthorized alteration or misuse of Products. Seller shall maintain appropriate commercial general liability (and other) insurance, including products and contractual liability insurance, in a form and amount reasonably satisfactory to Purchaser, but not less than a combined single limit of $1,000,000 per occurrence and $2,000,000 aggregate in excess of its deductible and/or self-insured retention, shall name Purchaser as additional insured and loss payee as its interest appear, and shall provide appropriate evidence of the same to Purchaser upon request at any time.
15. Taxes. Unless otherwise specified in any applicable Purchase Agreement, Seller shall be solely responsible for paying all sales, use, personal property, value-added and other taxes, duties, tariffs, imposts and other charges (collectively, “Taxes”) imposed under any existing or future laws and regulations upon or with respect to the sale, purchase, delivery, storage, use, transportation, export, import, or other transactions between the parties related to any Products in any applicable jurisdictions (excluding income taxes imposed upon Purchaser). Applicable Taxes shall be stated separately on Seller’s invoices and other applicable documents. Seller also shall be solely responsible for filing the appropriate governmental forms related to Taxes, except to the extent otherwise expressly agreed in any Purchase Agreement. Upon Purchaser’s request, Seller shall provide proof of its payments and filings with respect to Taxes.
16. Default; Remedies. Each of the following events or circumstances shall constitute a “Default”: (a) Seller shall fail to satisfy when due, or shall otherwise breach or violate, any representations, warranties, liabilities, or obligations to Purchaser, whether existing now or in the future, and whether arising pursuant to a Purchase Agreement or otherwise, however evidenced or arising (collectively, “Obligations”); (b) any guarantor of Obligations shall fail to satisfy when due any of its obligations or liabilities to Purchaser; or (c) Seller or any such guarantor shall become insolvent or fail to pay its debts generally as they become due, or any action or proceeding is commenced by or against Seller or any such guarantor as debtor, or against either’s property, under any bankruptcy, receivership, reorganization, debt arrangement, insolvency, or similar law. If a Default occurs, or if Purchaser reasonably anticipates that a Default will occur, Purchaser, at its option, shall have: (i) all rights and remedies available under any Purchase Orders and/or Purchase Agreements (including these Terms); (ii) any other rights or remedies provided to it under applicable laws; (iii) the right to cancel, suspend or terminate all or any part of any Purchase Orders or Purchase Agreements or any other obligations of Purchaser or rights, benefits, or privileges afforded to Seller, without incurring any cost or liability on the side of Purchaser; (iv) the right to produce, purchase or otherwise acquire the Products (or parts thereof) elsewhere on such terms or in such manner as Purchaser may deem appropriate, in which case Seller shall be liable to Purchaser for any excess costs or other expenses incurred by Purchaser; and (v) the right to acquire, by notice to Seller, all right, title, and interest in and to all or any portion of materials acquired by Seller for the performance of any Purchase Order or Purchase Agreement, work-in-process and/or completed Products specified in such notice for a price equal to Seller’s original net cost for such materials, in which case such right, title, and interest shall pass immediately to Purchaser upon payment for the same. All rights and remedies of Purchaser shall be cumulative. No waiver by Purchaser of any Default will waive any other Default or the same Default on a different occasion. Failure to exercise any right or remedy by Purchaser shall not be a waiver or modification of any Obligations or any rights or remedies of Purchaser.
17. Purchaser’s Rules and Regulations. If Seller or its employees, agents or subcontractors enter upon any property of Purchaser, they shall comply with Purchaser’s rules and regulations, including its environmental, health, safety and security rules and regulations, related to its property.
18. Governing Law and Jurisdiction. All Purchase Orders and/or Purchase Agreements (including these Terms) shall be governed by and construed under the laws of the State of Illinois, United States of America, without regard to its conflicts of laws principles, unless both Purchaser and Seller are located in the PRC, in which case the laws of the PRC shall govern, without regard to its conflicts of laws principles. However, Seller and Purchaser exclude the application of the United Nations Convention on Contracts for the International Sale of Goods, without implication that such Convention otherwise applies. In the event of any dispute arising from or in connection with any Purchase Order and/or Purchase Agreement (including these Terms) that cannot be resolved by consultation within thirty (30) days, any lawsuit or other legal proceeding which is commenced to resolve any matter arising under or relating to any Purchase Agreement or any other matter between Purchaser and Seller shall (subject to Purchaser’s right to commence and prosecute any legal proceeding in any other appropriate jurisdiction or venue) be commenced and prosecuted only in a federal or state court located in Cook County, in the State of Illinois, United States of America, and Seller and Purchaser each consents to the jurisdiction and venue of such court, provided that if both Purchaser and Seller are located in the PRC: (i) the dispute shall be submitted to Shanghai International Arbitration Centre (“SHIAC”) for arbitration in Shanghai which shall be conducted in accordance withD SHIAC’s arbitration rules in effect at the time of applying for arbitration; (ii) the arbitration tribunal shall consist of three (3) arbitrators, who shall have the ability to speak both Chinese and English; (iii) the arbitration procedure shall be conducted and the arbitral award shall be made in English; and (iv) the arbitral award is final and binding upon both parties. Any legal proceeding against Purchaser for any claim or cause of action asserted in connection with a Purchase Order and/or Purchase Agreement or purchase or Products, must be commenced within one (1) year after the claim or cause of action in that legal proceeding shall have first accrued.
19. Severability and Survival. If any provision in these Terms or any Purchase Order and/or Purchase Agreement is determined to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions of these Terms or any Purchase Order and/or Purchase Agreement shall be unaffected and such provision shall be reformed to the extent necessary to be legal, valid, and enforceable. Seller’s liabilities and obligations pursuant to these Terms which are intended to survive the completion (or termination) of any applicable Purchase Order(s) or Purchase Agreement(s) and the transactions contemplated thereunder, including, without limitation, Seller’s liabilities and obligations under Sections 10 through 16 of these Terms, shall so survive indefinitely.
20. Assignment. Seller shall not assign, delegate, or subcontract any of its rights and/or obligations under any Purchase Order and/or Purchase Agreement (including these Terms) to any third party without Purchaser’s prior written consent, and any such attempted delegation or assignment without consent shall be void. In any event, Seller shall remain fully liable for all of its obligations notwithstanding any assignment or subcontract. Purchaser may assign all or any portion of its rights under any Purchase Order and/or Purchase Agreement (including these Terms) to any affiliate of Purchaser or any other third party.
21. Integration. No Purchase Order and/or Purchase Agreement (including these Terms) may be modified or waived, in whole or in part, except in a writing expressly accepted by the party against which enforcement is sought (except as otherwise expressly set forth in these Terms). All stenographic and clerical errors contained in any Purchase Order and/or Purchase Agreement may be corrected by Purchaser without the consent of Seller. No course of dealing or usage of the trade shall be applicable, unless expressly incorporated into a Purchase Order and/or Purchase Agreement or these Terms.
22. Purchaser’s Trademarks. Except as may be expressly granted by Purchaser in writing, Seller shall not have any right, and Purchaser has not granted any license to Seller, to use any of Purchaser’s or Purchaser’s affiliates’ corporate names, trade names, trademarks, service marks, logos or copyrights in Seller’s publicity, advertising or marketing.
23. Independent Contractor. Seller is an independent contractor, and neither Seller nor its employees, agents or subcontractors shall be considered an employee, agent or partner of Purchaser by virtue of any Purchase Order and/or Purchase Agreement or the transactions thereunder. Seller shall be solely responsible and liable for all acts and omissions of its employees, agents and subcontractors. Seller shall notify Purchaser promptly (and in any event within five (5) days) after becoming aware of any change in ownership or control (including senior management), directly or indirectly, of Seller that would reasonably be expected to allow a competitor of Purchaser or Purchaser’s affiliates to gain ownership or control of Seller.
24. Force Majeure. Notwithstanding anything to the contrary in these Terms, each party shall be excused for delays in its performance under any Purchase Order and/or Purchase Agreement caused by acts of God, labor strikes, wars, acts of government, acts of terrorism, or any other cause beyond the party’s reasonable control and not attributable to its negligence. In such event, the time for the party’s performance shall be extended without liability by the period of any such delay. The non-performing party will notify the other party as soon as possible and will use its best commercially reasonable efforts to remedy the non-performance. Seller's ability to sell Products at a more advantageous price or an increase in Seller’s production costs shall not constitute such a cause beyond its reasonable control.
25. Ethical Business Conduct. Purchaser is committed to a policy of fair, honest and ethical business practices, and Seller accepts such policy as a governing principle of its relationship with Purchaser. Purchaser prohibits its employees from using their positions for personal financial gain or from accepting any personal advantage from anyone under circumstances which might reasonably be interpreted as an attempt to influence the recipients in the conduct of their duties. Seller shall not extend any gratuity or special favor to employees of Purchaser under those circumstances.
26. Certifications. From time to time, at Purchaser’s request, Seller shall provide certificates to Purchaser verifying its compliance with laws or any other matters contemplated under these Terms, in each case in form and substance reasonably satisfactory to Purchaser.
27. Quality Improvement. Seller shall participate in Purchaser’s quality initiatives, as reasonably requested by Purchaser, and shall devote sufficient resources to such initiatives.
28. Spare Parts. Seller shall make available to Purchaser all functional components of the Products during the term of the applicable Purchase Agreement and/or Purchase Order and for a period of at least ten years from end of the term of the Purchase Agreement and/or Purchase Order, at the lowest price at which Seller sells such components.
29. Notices. All notices, consents, approvals, agreements and other communications contemplated under these Terms, the Purchase Agreement and/or Purchase Order shall be in writing and may be delivered in person or by receipted courier, facsimile transmission, e-mail, or postage prepaid certified or registered mail, return receipt requested, addressed to the intended recipient at its address set forth in the applicable Purchase Order or Purchase Agreement. Communications shall be considered delivered as of the times as set forth below: on the date of actual receipt by the intended recipient if delivered in person or e-mail; on the date it is received by the intended recipient verified by the certification or record of the post office or courier concerned if transmitted by registered mail or courier; and on the date set forth on the transmission confirmation when transmitted by facsimile. Either party may change its address for notice by giving written notice to the other party of the change in the manner provided in this Section.