In theseConditions, the following expressions shall have the meanings set oppositethem.
1.1.Addendum: means theadditional terms and conditions incorporated into these Conditions by referencein such Addendum. Such Addendum may be part of the Order Acknowledgement. Inthe event of a conflict between the Conditions and an Addendum, the terms ofthe Addendum shall prevail. Further, such Addendum may be provided inelectronic form, in writing, and/or accessed at www.knowles.com.
1.2. Buyer: means the individual or entity namedin the Order Acknowledgement.
1.3.Conditions: meansthese terms and conditions of sale.
1.4.Contract: means theOrder Acknowledgement accepting the order for the supply of the Products asdetailed in the Order Acknowledgement, which together with these Conditions andAddendum, if applicable, constitute the entire contract for the supply of theProducts.
1.5.Contract Price: meansthe amount stated in the Order Acknowledgement as the price for the Products.
1.6. Seller:means, as applicable,Knowles Corporation, a Delaware corporation (“Knowles”), Knowles IPC(Malaysia) Sdn. Bhd., a Malaysian corporation, Knowles Electronics LLC, aDelaware limited liability company, a subsidiary of Knowles, or a division oraffiliate of Knowles identified as Seller on an Order Acknowledgment.
1.7. Laws: means: (i) legislation, regulations,codes of practice, guidance and other requirements of any relevant government,governmental or regulatory agency, or other relevant body; (ii) common law and(iii) any binding court order, judgment or decree.
1.8. OrderAcknowledgement: meansthe last document issued (which in the event of any uncertainty shall bedetermined by reference to the date on such document) by Seller to acknowledgeor accept Buyer’s order for the Products or by which Seller has offered, quotedor tendered to supply the Products, including, but not limited to, any invoicesfor the Products. The Order Acknowledgement is issued, and the Products will besupplied, upon these Conditions and any applicable Addendum only.
1.9.Products: means theproducts, goods, or materials detailed in the Order Acknowledgement to besupplied by Seller and/or services detailed in the Order Acknowledgmentprovided by Seller pursuant to the Contract.
2. FORMATIONOF CONTRACT.
Each Contractshall be deemed to incorporate these Conditions. No variation of or addition tothese Conditions shall form part of the Contract unless expressly agreed to bySeller in writing. SELLER HEREBY SPECIFICALLY OBJECTS TO AND REJECTS ANYDIFFERENT OR ADDITIONAL TERMS AND CONDITIONS IN ANY OF BUYER’S REQUEST FORQUOTATION(S), PURCHASE ORDER(S) OR SIMILAR OR ASSOCIATED FORM(S) AND/ORDOCUMENTS AND SUCH TERMS AND CONDITIONS SHALL NOT BE BINDING ON SELLER UNLESSSELLER SHALL OTHERWISE AGREE IN WRITING. Seller’s failure to object toprovisions contained in any purchase order or other written or oralcommunications from Buyer shall not constitute an acceptance of such provisionsor a waiver of any provisions of any of these Conditions. In addition, no siteusage agreement or any other click through agreement on a website will have anyapplicability or binding effect whether or not Seller clicks on an “ok,” “Iaccept,” or similar acknowledgement. Buyer’s payment for or acceptance ofreceipt of Products called for in an Order Acknowledgment shall constituteacceptance of the Contract.
3. QUOTESAND ACCEPTANCE.
3.1. Unless previously withdrawn,quotations are only valid in writing and for the period stated therein, or ifno period is stated, for thirty (30) days from the date of issue. Any orderplaced in compliance with a written quotation is subject to acceptance bySeller through issue of an Order Acknowledgement. Seller shall have noobligation to sell or deliver Products covered by Seller’s quotation unless anduntil an Order Acknowledgement is issued or upon the shipment of Products by Seller.All Products quoted “in-stock” are subject to prior sale.
3.2. All orders are subject to acceptanceby Seller through issuance of an Order Acknowledgement. Seller reserves theright to decline any order for any reason. Any telephone orders are accepted atthe risk of Buyer as Seller may make shipments before Buyer receives writtenconfirmation of the order.
4. PRICE ANDDELIVERY.
4.1. Buyer shall pay the Contract Pricein accordance with Seller’s invoices from time to time. Seller, in its sole discretion,may adjust the Contract Price to conform to the actual quantity delivered ifBuyer changes the quantity of Products ordered prior to delivery.
4.2. Unless otherwise agreed in writingby the parties, the Contract Price does not contemplate consignment of Sellerinventory. Consignment of Seller inventory may be separately negotiated bySeller and Buyer. In such case, pricing (and fees) shall be modified upward toreflect additional risk, expense (including lost time value of money) andinconvenience to Seller.
4.3. Unless otherwise agreed in writingby the parties, the Products shall be delivered ex-works at Seller’s premisesspecified in the Order Acknowledgement or, if no premises are so specified, atthe premises notified by Seller to Buyer for such purpose (the term “exworks”shall be interpreted in accordance with Incoterms 2010 issued by theInternational Chamber of Commerce). Seller shall notify Buyer when delivery hastaken place. Claims for shortages and other errors in delivery must be made inwriting to Seller within ten (10) days after receipt of Products and failure togive such notice shall constitute unqualified acceptance and a waiver of allsuch claims by Buyer.
4.4. Seller shall use reasonable effortsto comply with any date quoted for delivery, or for the performance of anyother obligation, but any such date is an estimate only, unless otherwiseagreed to in writing by Seller. Seller may deliver the Products ininstallments. Payment is to be made separately, in accordance with the paymentterms, for each installment delivered having regard to the value that eachinstallment bears in relation to the value of the Products as a whole. Delay indelivery of any installment shall not relieve Buyer of its obligation to acceptremaining deliveries.
4.5. If Buyer fails to arrange forcollection of the Products within fifteen (15) days after Seller has notifiedBuyer that the Products are available for collection in accordance with Section4.3, Seller may store the Products at Buyer’s risk pending collection ordelivery (as applicable). Buyer shall reimburse Seller for all handling,transportation and storage costs incurred by Seller in relation to suchstorage, in accordance with Seller’s invoices therefor.
Seller may atany time make such changes in design and construction of the Products as shallconstitute an improvement in the judgment of Seller. Seller may furnishsuitable substitutes for materials unobtainable because of priorities orregulations established by governmental authority or non-availability ofmaterials from suppliers.
6.1. SELLER WARRANTS THAT THE PRODUCTSDELIVERED HEREUNDER WILL CONFORM AT THE TIME OF DELIVERY TO THE SPECIFICATIONS,SAMPLING PLANS AND/OR INSPECTION TECHNIQUES EXPRESSLY AGREED TO IN WRITING BYSELLER (THE “REQUIREMENTS”). PRODUCTS ALLEGED TO NOT BE IN CONFORMANCE WITH THEREQUIREMENTS SHALL BE CALLED TO SELLER’S ATTENTION BY BUYER IN WRITING WITHINTHIRTY (30) DAYS AFTER DELIVERY TO BUYER. UNLESS IMPRACTICAL, SELLER REQUIRES THATBUYER PROVIDE VERIFICATION SAMPLES BEFORE SELLER WILL ISSUE A RETURNAUTHORIZATION. IF SELLER ISSUES A RETURN AUTHORIZATION FOR RETURN TO SELLER,SHIPMENT BY BUYER IS TO BE MADE WITHIN TEN (10) DAYS
AFTER SUCHAUTHORIZATION. SELLER’S ONLY OBLIGATION HEREUNDER, WHICH IS CONDITIONAL UPONBUYER NOTIFYING SELLER AND PROVIDING SAMPLES AS PROVIDED IN THIS SECTION 6.1.,SHALL BE, AT SELLER’S OPTION, TO REPLACE OR CREDIT SUCH QUANTITY OF THEPRODUCTS WHICH IS DISCLOSED BY SELLER’S INSPECTION TO HAVE NOT BEEN IN CONFORMANCEWITH THE REQUIREMENTS WHEN DELIVERED. BEFORE USING THE PRODUCTS, BUYER SHALLDETERMINE THE
UITABILITY OFTHE PRODUCTS FOR THEIR INTENDED USE AND BUYER ASSUMES ALL RISK AND LIABILITYWHATSOEVER IN CONNECTION THEREWITH. BUYER ASSUMES THE RESPONSIBILITY FORPROVIDING AND INSTALLING ANY AND ALL DEVICES FOR THE PROTECTION OF SAFETY ANDHEALTH WITH RESPECT TO THE USE, OPERATION OR POSSESSION OF THE PRODUCTS.
6.2. The warranty set out in Section 6.1shall not apply to: (i) Products not manufactured by Seller; (ii) Products thathave been maintained, repaired or modified by persons other than Seller orpersons authorized by Seller; (iii) Products that have been improperly orinadequately installed and/or defects caused by improper site preparation by Buyer;(iv) Products that have been improperly used, stored or operated and/or usedwith equipment not supplied and/or authorized by Seller; or (v) defects causedby abuse, negligence or accident, or loss of or damage to the Products whilstin transit.
6.3. SELLER EXCLUDES ALL OTHER WARRANTIESNOT EXPRESSLY SET FORTH IN SECTION 6.1, AND, TO THE EXTENT PERMITTED BYAPPLICABLE LAW, ALL IMPLIED WARRANTIES, WHETHER BY STATUTE, COMMON LAW, CUSTOM,USAGE OR OTHERWISE AS TO ANY MATTER, INCLUDING PERFORMANCE, SECURITY,INTEGRATION, MERCHANTABILITY, QUIET ENJOYMENT, SATISFACTORY QUALITY OR FITNESSFOR ANY PARTICULAR PURPOSE AND NONINFRINGEMENT ARE HEREBY DISCLAIMED BY SELLER.
7.CANCELLATION, RETURNS AND DELAYS BY BUYER.
7.1. Buyer may not cancel an order or anyportion thereof unless Seller provides prior written consent, in its solediscretion. If Seller consents to such cancellation, Buyer shall pay: (i) forany completed Products, the Contract Price for such Products; (ii) for anyProducts still in process, the Contract Price for such Products, adjusted bythe degree of completion on the date of cancellation; and (iii) for anyProducts not yet initiated in production, the price paid by the Seller topurchase materials specifically to fulfill Buyer’s order.
7.2. Buyer may not return any excessinventory of standard Products unless Seller provides prior written consent, inits sole discretion; if Seller consents to such return, Seller will issue Buyera credit of a maximum of 50% of the Contract Price after Seller receives theProducts, with the specific credit percentage to be determined by Seller’sreview of its inventory of Product(s) involved and review of Buyer’soutstanding payments, if any. Buyer may not return any standard Products due toBuyer’s error in ordering unless Seller provides prior written consent, in itssole discretion, and Buyer makes such return request within thirty (30) daysafter the invoice date, Buyer orders replacement Products, Buyer pays a 15%re-stocking fee and Buyer pays freight costs. Custom Products cannot bereturned for any reason (except pursuant to a warranty claim procedure asherein provided).
7.3. Buyer cannot delay scheduledshipments within a minimum window of thirty (30) days or 80% of the quoted leadtime, whichever is longer. For any other shipments, Buyer may delay suchshipment up to six (6) months from the original order date or request acancellation pursuant to Section 7.1 (which cancellation shall be at Seller’ssole discretion).
8. PAYMENTTERMS AND CREDIT APPROVAL.
8.1. The net amount of an invoice shallbe due thirty (30) days after invoice date. Invoices may be submitted aspartial shipments are made. All payments shall be made in United Statescurrency, unless otherwise specified in an applicable Addendum. Time of paymentis of the essence. If shipment shall be delayed beyond the scheduled date byBuyer in accordance with Section 7.3, payment shall be due in full when Selleris prepared to make the shipment. Under no circumstance will Buyer have a rightof set-off. Seller shall have the right to offset its payables against itsreceivables related to goods or services purchased from Buyer. If Buyer shalldefault in any payment when due, Seller, at its option without prejudice toother lawful remedies, may (i) declare the entire Contract Price immediatelydue and payable, (ii) defer delivery of Products, (iii) demand the return ofpreviously shipped Products; (iv) institute new payment terms, and/or (v)cancel the Contract. Buyer shall indemnify Seller for all collection costs,court costs, administration costs, investigation costs, attorneys’ fees and allother incidental costs, charges or expenses incurred in the collection of pastdue amounts or otherwise resulting or arising from any breach by Buyer of theContract. If Buyer desires to pay the amounts set forth on an invoice viacredit card, Buyer shall pay a surcharge fee on the amount due (the“Surcharge”), which Surcharge shall be equal to the merchant discount ratecharged by Buyer’s credit card issuer to Seller, but in no event shall suchSurcharge exceed 4%. Seller may include
such Surchargewhen processing Buyer’s payment via the credit card information provided byBuyer.
8.2. All shipments to be made hereundershall at all times be subject to the approval of Seller’s credit department. Ifduring the Contract, the financial condition of Buyer, in Seller’s solejudgment, becomes unsatisfactory, then Seller may, at its option and withoutprejudice to any of its other remedies, (i) defer or decline to make anyshipments hereunder except upon receipt of satisfactory security or cashpayments in advance, and / or (ii) terminate the Contract.
A toolingcharge or “NRE” charge may apply to an order, as set forth in the OrderAcknowledgement, to cover partial tooling costs and/or development costs fornew and revised parts. This will be a one-time service charge covering aportion of the preparatory operations necessary to manufacture the Products,but does not constitute payment for any resulting dies, special tools orengineering which shall be and remain the property of Seller. Tooling may bereserved for use in serving Buyer, and there will be no charge for maintenanceunless Seller specifically states otherwise in the Order Acknowledgement. If toolinghas not been used for Buyer on Buyer’s behalf for over a three-year period,Seller reserves the right to scrap such tooling without notice. Anymodifications to the tooling required due to Buyer’s specification change mayrequire additional charges to Buyer. Seller will maintain ownership of anydesigns, processes, software, inventions and artwork that Seller provides, orwhich are necessitated by the design, engineering and manufacture of theProducts to Buyer’s specifications.
10. TAXESAND ASSESSMENTS.
The ContractPrice is exclusive of federal, state and local taxes and any similar taxes ortariffs. Buyer shall be solely responsible for payment of, and shall indemnifyand hold Seller harmless from and against, all taxes, duties and levies imposedby all foreign, federal, state, local and other taxing authorities (includingexport, sales, use, excise and valued-added taxes), other than taxes imposed onSeller’s net income. Buyer shall provide Seller with its state sales taxidentification number and a resale certificate or other certificate, documentor other evidence of exemption for payment or withholding of use or salestaxes, tariffs, duties or assessments as requested by Seller.
A party (the“Receiving Party”) shall keep in strict confidence all information which is ofa confidential, proprietary or non-public nature (including any technical orcommercial know-how, specifications, inventions, pricing, processes orinitiatives) and which has been disclosed to the Receiving Party by the otherparty (the “Disclosing Party”), its employees, agents or subcontractors, andany other confidential, proprietary or non-public information concerning theDisclosing Party’s business or its products or its services which the ReceivingParty may obtain. The Receiving Party shall restrict disclosure of suchconfidential, proprietary or non-public information to such of its employees,agents and subcontractors as need to know it for the purpose of discharging theReceiving Party’s obligations under the Contract, and shall ensure that suchemployees, agents and subcontractors are subject to obligations ofconfidentiality and non-use corresponding to those which bind the ReceivingParty. The Receiving Party shall only use or make copies of confidentialinformation (including any reproductions, extracts or analyses of thatconfidential information) in connection with and to the extent necessary forthe purposes of the Contract. The obligations of confidentiality and non-use inthis Section 11 are in addition to any obligations set forth in a separatewritten agreement between the parties. In the event of a conflict between thisSection 11 and the obligations of confidentiality and non-use set forth in anysuch separate written agreement, the terms of such separate written agreementshall prevail; provided such obligations of confidentiality and non-usein such separate agreement are no less restrictive than the obligations herein.
12.1. Except as otherwise provided in theOrder Acknowledgement, all intellectual property rights in, or relating to, theProducts, including any enhancements made by Seller to Buyer’s specificationsor other intellectual property, are owned by Seller and nothing in the Contractshall have the effect of transferring the ownership of such intellectualproperty rights to Buyer. Subject to the foregoing sentence, any specificationsprovided by Buyer shall remain Buyer’s intellectual property.
12.2. With respect to any intellectualproperty rights belonging to Seller, in the event of any third party demand,claim or action alleging that the proper use of the Products by Buyer inaccordance with any instructions and directions issued with or in relation tosuch Products by Seller infringes any patent or other intellectual propertyright belonging to a third party, Buyer shall: (i) promptly notify Seller inwriting of such claim; (ii) not make any admission in relation to or attempt tosettle or compromise the claim; (iii) give Seller express authority to conductall negotiations and proceedings, and to settle all proceedings arising fromsuch claim; and (iv) provide Seller with all available information, documentsand assistance as Seller may reasonably require. Without limitation to theforegoing, with respect to any intellectual property rights belonging toSeller, if the proper use of the Products by Buyer is held to infringe anypatent or other intellectual property right belonging to a third party, Sellershall, at its option: (a) procure for Buyer the right to continue to use theProduct(s) in question, free of any liability for such infringement; (b) modifythe
Product(s) inquestion so that it/they become(s) noninfringing; (c) substitute the Product(s)in question with functionally equivalent non-infringing Product(s); or (d)refund the Contract Price paid by Buyer for the infringing Products, subject toSection 13.2. This Section 12.2 states the entire liability of Seller and theexclusive rights of Buyer for any infringement, misappropriation or violationof third party intellectual property rights.
12.3. Buyer shall indemnify and holdSeller and its affiliates harmless against all damages and losses related to(i) any patent infringement claims covering Buyer’s products of which a Productforms only a part or subassembly or any assembly, circuit, combination, methodor process in which any such Products may be used; (ii) any trademarkinfringement claims involving any marking or branding not applied by Seller orinvolving any marking or branding applied by Seller at the request of Buyer;and (iii) any claims of infringement, misappropriation or violation of thirdparty intellectual property rights with respect to the Products if related toBuyer’s intellectual property. In addition, Buyer shall indemnify and holdSeller and its affiliates harmless against all damages and losses related toany claims resulting from the production of articles or materials to Buyer’sspecifications or from the production of articles or materials designed bySeller to meet Buyer’s requirements or arising out of the use of any equipment,materials, parts or machinery furnished by Buyer in producing articles,materials, parts or equipment to Buyer’s specifications.
13.1. Notwithstanding anything to thecontrary in the Contract, Seller will not be liable to Buyer or any party forany loss or damage to revenues, profits, other economic loss or goodwill orother special, incidental, indirect, punitive, contingent or consequentialdamages of any kind, arising out of, relating to or in connection with theContract, or the transactions contemplated hereby, whether resulting frombreach of contract, breach of warranty, negligence, strict liability, tort orother legal theory, even if Seller has been advised, knows or should have knownof the possibility of such damages, and even if any of the limited remedies ofthe Contract fail to fulfill their essential purpose.
13.2. Subject to Section 13.1 and Section6.1, in no event shall Seller’s cumulative, aggregate liability arising under,with respect to or in connection with the Contract exceed 50% of the lowestamount on any single Order Acknowledgement or related invoice for the Products.
In the event ofany unresolved dispute between the parties with respect to the Contract, thematter shall be expeditiously submitted to an executive of each party who isauthorized to represent and bind their respective party for furtherconsideration and discussion to attempt to resolve the dispute. Time is of theessence. The parties shall mutually pursue, as promptly as possible andpractical, an amicable settlement of the dispute in a reasonable, timelymanner. If Buyer’s designated representative and Seller’s designatedrepresentative are unable to resolve a dispute within a reasonable time of notless than ninety (90) days, either party may pursue its rights and remediesconsistent with the Contract and available at law or in equity. If either partyincurs any legal fees, whether or not an action is instituted, in an effort toenforce the Contract or to recover damages or injunctive relief for breach ofthe Contract, the successful or prevailing party or parties shall be entitledto reasonable attorneys’ fees and other costs in addition to any other reliefto which such party may be entitled.
If any creditterms are extended in connection with the Contract, Buyer hereby grants toSeller a purchase money security interest to secure payment, performance andsatisfaction of all present and future debts, obligations or other indebtednessof Buyer to Seller, in all Products acquired from Seller, as well as all otheridentifiable proceeds from the sale of such Products, and a security interestin any related accounts receivable. Buyer hereby irrevocably authorizes Sellerfrom time to time to file a copy of any initial financing statements,continuation statements and any amendments thereto to perfect its securityinterests and to provide any other information required to make any suchfilings. At Seller’s request, Buyer shall pay the cost of filing any initialfinancing statements, continuation statements or any amendments thereto orpromptly reimburse Seller for the cost thereof, as applicable. Buyer shallprovide Seller with thirty (30) days’ prior written notice of any name change,change in place of business, or, if more than one, its chief executive office,or its mailing address, its organizational number, type of organization,jurisdiction of organization or other legal structure. Buyer hereby appointsSeller as Buyer’s attorney-in-fact for the purposes of carrying out theprovisions of this Section 15 and taking any action and executing anyinstrument which Seller may deem necessary or advisable to accomplish thepurposes hereof, which appointment is irrevocable and coupled with an interest.This Section 15 is intended to enable Seller to avail itself, in addition toall other rights and remedies available at law, in equity or as contemplated inthe Contract, of all rights and remedies of a holder of a purchase moneysecurity interest under the Uniform Commercial Code of the applicablejurisdiction and Buyer shall cooperate with Seller and take all necessaryactions, including, without limitation, executing any additional documentsrequested by Seller, to cause it to receive all such rights and remedies.
If Seller andBuyer agree to use an electronic data interchange (“EDI”) system to facilitatepurchase and sale transactions, Buyer agrees that (i) it will not contest: (a)any contract of sale resulting from an EDI transaction under the provisions ofany Law relating to whether agreements must be in writing or signed by theparty to be bound thereby; or (b) the admissibility of copies of EDI recordsunder the business records exception to the hearsay rule, the best evidencerule or any other similar rule, on the basis that such records were notoriginated or maintained in documentary form, and (ii) that these Conditionsshall apply to any such transactions. Seller and Buyer will negotiate and agreeon technical standards and methods to use in making EDI purchases, and will usereasonable security procedures to protect EDI records from improper access. Inthe event of a conflict, the business records maintained by Seller regardingEDI purchases made by Buyer shall be deemed to be conclusive.
Except asotherwise provided or limited in the Contract, Buyer shall indemnify and holdharmless Seller against any and all losses, damages and expenses (includingattorney’s fees and other costs of defending any action) that it may sustain orincur as a result of the use, operation or possession of the Products by anycustomer of Buyer, Buyer, its affiliates, or its and their respectivedirectors, employees, agents or representatives, the negligent or willful actor negligent or willful omission of Buyer, its affiliates, or its and theirrespective directors, employees, agents or representatives and/or thealteration or modification of the Products or the use or combination of theProducts with other products, devices or services by any customer of Buyer,Buyer, its affiliates, or its or their respective directors, employees, agentsor representatives.
18.GOVERNING LAW AND VENUE.
The Contractand all claims arising from the relationship between Seller and Buyer shall beinterpreted, governed and enforced by the laws of the State of Illinois, UnitedStates of America, without regard to any conflict of laws principles and to theexclusion of the provisions of the United Nations Convention on theInternational Sale of Goods. All litigation between Seller and Buyer which mayarise out of or in connection with the Contract or any transaction between themshall be subject to the exclusive jurisdiction of the courts of the State ofIllinois, and each hereby consents to the jurisdiction of such courts. Any andall processes directed to Buyer in any such litigation may be served upon itoutside of the State of Illinois with the same force and effect as if suchservice had been made within the State of Illinois. Nothing contained in theContract shall prevent Seller from applying to the appropriate court in anypart of the world for an injunction or other like remedy to restrain Buyer fromcommitting any breach or anticipated breach of the Contract and for equitablerelief.
English shallbe the governing language of the Contract. If the Contract or these Conditionsare translated into another language from the English version and there is anyconflict between the non-English version and the English version, the Englishversion shall govern.
Buyer’s rights,interests and obligations hereunder may not be assigned, transferred ordelegated by Buyer without the specific prior written authorization of Seller.Any attempted assignment, transfer or delegation by Buyer will be wholly voidand totally ineffective for all purposes.
If anyprovision of the Contract is for any reason held to be invalid, illegal orunenforceable by a court of competent jurisdiction, the remaining provisions ofthe Contract shall be unimpaired and shall remain in full force and effect, andthe invalid, illegal or unenforceable provision shall be replaced by a valid,legal and enforceable provision that comes closest to the intent of the partiesunderlying the invalid, illegal or unenforceable provision.
The Contractconstitutes the terms and conditions to the contract of sale and purchasebetween Seller and Buyer with respect to the Products covered by the Contract,and supersedes any prior and contemporaneous written and oral agreements,understandings, representations and quotations with respect thereto (with theexception of any written agreements between Seller and Buyer which specificallyidentify themselves as governing in the event of a conflict). No modificationhereof shall be of any force or effect unless in writing and signed by theparty claiming to be bound thereby. Any provision of the Contract which, by itsnature, would survive termination or expiration of the Contract shall surviveany such termination or expiration.
Neither partyshall be liable for damages under the Contract for a delay or failure in itsperformance of any obligation (except the obligation to make payments when due)under the Contract (including for the avoidance of doubt obligations arisingunder these Conditions and the documents referred to in these Conditions) as aresult of causes beyond its reasonable control, including war, strikes,lockouts, embargoes, terrorism, insurrection, riots, inability to obtainmaterials or labor due to governmental acts, rules, regulations or directives,breakdown of machinery, accidents, fires, floods or other natural disasters.Upon the giving of prompt written notice to the other party of any such causesof a delay or failure in its performance of any obligation under the Contract,the time of performance by the party so affected shall be extended to theextent and for the period that its performance of such obligations is preventedby such cause. Seller may, during any period of shortage due to any of theabove force majeure circumstances, allocate its available supply of Productsamong itself and its other buyers in such manner as Seller, in its solejudgment, deems fair and equitable.
No failure ofSeller to insist upon strict compliance by Buyer with the Contract or toexercise any right accruing from any default of Buyer shall impair Seller’srights in case Buyer’s default continues or in case of any subsequent defaultby Buyer. Waiver by Seller of any breach by Buyer of the Contract shall not beconstrued as a waiver of any other existing or future breach.
25.COMPLIANCE WITH LAWS
25.1. In performing its obligations andexercising its rights under the Contract, Buyer shall, at all times, actethically and in compliance with all applicable Laws of the United States andany jurisdiction in which Buyer is established or conducts operations relatingto the Contract, including (without limitation) any applicable Laws in forcefrom time to time regarding bribery, fraudulent acts, corrupt practices and/ormoney laundering and any applicable Laws in force from time to time regardingimport/export regulations, tax and/or customs and duties (the “Import/ExportLegislation”). Buyer expressly acknowledges that a Product may also be subjectto the Import/Export Legislation of the country into which the Product is sold,and Buyer shall abide by such Import/Export Legislation.
25.2. Buyer shall ensure that theProducts, and any other products or technology acquired from Seller under theContract, will not be exported, sold, diverted, transferred or otherwisedisposed of in violation of the Import/Export Legislation, either in theiroriginal form or after being incorporated into other items.
MalaysianAddendum to Terms and Conditions of Sale (Malaysia)
This Malaysian Addendum to Termsand Conditions of Sale (the “Addendum”) supplements the Terms andConditions of Sale (the "Conditions") regarding a contract asdefined in the Conditions (the "Contract"). Terms not definedherein shall have the same meaning as in the Conditions. In case of anyconflict between this Addendum and the Conditions, this Addendum shall prevail.
Amending Clause 5 of theConditions, subject to Buyer's consent in writing, Seller may at any time makesuch changes in design and construction of the Products as shall constitute animprovement in the judgment of Seller. Seller may furnish suitable substitutesfor materials unobtainable because of priorities or regulations established bygovernmental authority or non-availability of materials from suppliers.
3. PAYMENT TERMS.
Amending Clause 8.1 of theConditions, payments may be made in Ringgit Malaysia.
4. GOVERNING LAW.
ThisMalaysian Addendum (Sale) is governed by Malaysian law, without regard to anyconflict of law principles and to the exclusion of the provisions of the UnitedNations Convention on the International Sale of Goods.