1. Application

 

 

The Buyer hereby orders and the Seller, by accepting the purchase order, agrees that it will supply the Goods specified overleaf upon and subject to these conditions which shall govern the Contract to the exclusion of any other terms and conditions.  Any reference overleaf to the Seller’s quotation, specification, price list or like document shall be solely for the purpose of describing the Goods to be supplied and no terms and conditions endorsed upon, delivered with or referred to in such apply to the Contract.

 

 

 

2. Interpretation 

 

 

2.1 In these Conditions: –

 

“Business Day” means all days, excluding the following days: Saturdays, Sundays and all days observed by either the State of New York or the Federal Government;

 

“the Buyer” means SIP Communications Corporation a Delaware corporation whose office is at 99 Wall Street #280, New York NY 10005;

 

“these Conditions” means the standard terms and conditions of purchase set out in this document and (unless the context otherwise requires) includes any special terms and conditions agreed in writing between the Buyer and the Seller;

 

“the Contract” means the contract for the sale and purchase of the Goods constituted by the Seller’s acceptance of the Order in accordance with these Conditions (also known as the “Agreement”);

 

“the Delivery Address” means the address stated on the Order for delivery of the Goods;

 

“the Goods” means the goods (including any installment of the goods or any part of them) and/or any services described in the Order;

 

“the Order” means the Buyer’s purchase order to which these Conditions are annexed;

 

“the Price” means the price of the Goods;

 

“the Seller” means the person so described in the Order;

 

“Specification” includes any plans, drawings, data or other information relating to the Goods; and

 

“Writing” includes post transmission, electronic mail and comparable means of communication.

 

2.1 Any reference in these Conditions to a statute or a provision of a statute shall be construed as a reference to that statue or provision as amended, re-enacted or extended at the relevant time.

 

2.3 The headings in these Conditions are for convenience only and shall not affect their interpretation.

 

3. Basis of Purchase

 

3.1 The Order constitutes an offer by the Buyer to purchase the Goods subject to these Conditions.

 

3.2 The Supplier shall accept the Order placed by the Buyer and a binding contract for the supply of the Goods subject to these conditions, shall exist by whichever is the earlier of: – 

 

a) the Supplier’s acceptance of the Order, in writing or orally, subject to these conditions; or

b)Delivery of Goods

 

3.3 Any typographical clerical or other accidental error or omission in the Order placed by the Buyer or in any drawing’s specifications, instructions, tools or other material supplied by the Buyer, shall be subject to correction without any liability on the part of the Buyer.

 

3.4 No variation to the Contract shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.

 

3.5 The Agreement represents the entire agreement of the parties with respect to the subject matter hereof; and no agreement or understanding in any way modifying this Agreement (including change orders) shall be binding upon Buyer or Seller unless made in a writing that both (i) states that it amends the Agreement, and (ii) is signed by an authorized representative of each of party. All other agreements or alleged agreements and any proposals made prior to the Agreement are hereby superseded. Any reference whatsoever to, or any incorporation of, any bid, proposal, offer or quote of Seller in this Agreement shall mean and include no more than the price, schedule, quantity and/or quality terms of Seller’s bid, proposal, offer or quote, as applicable, and shall expressly exclude any of Seller’s general terms and conditions of sale. Any reference to Seller’s general terms and conditions of purchase, sale or performance in any Purchase Order or any communication or document issued or delivered by Seller (including, not limited to acknowledgements or invoices) shall not be operative, binding or effective.

 

3.6 No Minimum Quantities. Buyer is not obligated to purchase any minimum quantities from Seller under this Agreement.

 

 

4. Specification

 

4.1 The quantity, quality and description of the Goods shall, subject as provided in these Conditions, be as specified in the Order and/or in any applicable Specification supplied by the Buyer to the Seller or agreed in writing by the Buyer.

 

4.2Any Specification supplied by the Buyer to the Seller, or specifically produced by the Seller for the Buyer, in connection with the Contract, together with the copyright, design rights or any other intellectual property rights in the Specification, shall be the exclusive property of the Buyer. The Seller shall not disclose to any third party or use any such Specification except to the extent that it is or becomes public knowledge through no fault of the Seller, or as required for the purpose of the Contract.

 

4.3 The Goods shall be marked in accordance with the Buyer’s instructions (if any) and any applicable regulations or requirements of the carrier, and properly packed and secured so as to reach their destination in an undamaged condition in the ordinary course.

 

4.4The Seller shall not unreasonably refuse to take any steps necessary to comply with any request by the Buyer to inspect or test the Goods during manufacture, processing or storage at the premises of the Seller or any third party prior to despatch, and to provide the Buyer with any facilities reasonably required by the Buyer for inspection or testing.

 

4.5If as a result of inspection or testing the Buyer is not satisfied that the goods will comply in all respects with the Contract, and the Buyer so informs the Seller within seven days of inspection or testing, the Seller shall take such steps as are necessary to ensure compliance.

 

4.6The Seller shall comply with all applicable regulations or other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods.

 

 

5. Price

 

5.1 The Price of the Goods shall be as stated in the Order and, unless otherwise so stated, shall be: –

 

a)exclusive of any applicable sales and/or use tax; and

b) inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the Goods to the Delivery Address and any duties, imposts or levies other than value added tax.

c) No increase in the Price may be made (whether on account of increased material, labour or transport costs, fluctuation in rates of exchange or otherwise) without the prior consent of the Buyer in writing.

 

5.2 The Buyer shall be entitled to any discount for prompt payment, bulk purchase or volume of purchase customarily granted by the Seller, whether or not shown on its own terms and conditions of sale.

 

 

6. Payment

 

6.1 The Seller shall be entitled to invoice the Buyer on or at any time after delivery of the Goods, as the case may be, and each invoice shall quote the number of the Order.

 

6.2 Unless otherwise stated in the Order and unless disputed in good-faith, the Buyer shall pay the Price of the Goods within 45 days after the end of the month of receipt by the Buyer of a proper invoice or, if later, after acceptance of the Goods in question by the Buyer, but time for payment shall not be of the essence of the contract.

 

6.3 The Buyer shall be entitled to set off against the Price any sums owed to the Buyer by the Seller.

 

 

7. Delivery

 

7.1 The Goods shall be delivered to the Delivery Address on the date or within the period stated in the Order, in either case during the Buyer’s usual business hours.

 

7.2 Where it is agreed in writing that the date of delivery of the Goods is to be specified by the Seller after the placing of the Order, the Seller shall give the Buyer reasonable notice in writing of the specified date.

 

7.3 The time of delivery of the Goods is of the essence of the Contract.

 

7.4 A packing note clearly quoting the number of the Order must accompany each delivery or consignment of the goods. In the event the Goods are despatched electronically or undertaken as a service then the Seller must communicate this in writing for the approval of the Buyer. 

 

7.5 If the goods are to be delivered by installments, the Contract will be treated as a single contract and not severable.

 

7.6 The Buyer shall be entitled to reject any Goods delivered which are not in accordance with the Contract and shall not be deemed to have accepted any Goods until the Buyer has had a reasonable time to inspect them following delivery.

 

7.7 The Seller shall supply the Buyer in good time with any instructions or other information to enable the Buyer to accept delivery of the Goods.

 

7.8 The Buyer shall not be obliged to return to the Seller any packaging or packing materials for the Goods, whether or not any Goods are accepted by the Buyer.

 

7.9 The Seller acknowledges that the Buyer has a legitimate commercial interest in the Goods being delivered on the specified delivery date and that the Buyer should have an appropriate remedy if they are not so delivered. Accordingly, if the Goods are not delivered on the due date then, without prejudice to any other remedy, the Buyer shall be entitled to i) deduct from the Price or (if the Buyer has agreed to pay any part of the price in advance of delivery) to claim from the Seller by way of liquidated damages for delay 5 per cent of the Price for every week’s delay, up to a maximum of 50 per cent of the price, without prejudice to claim any other remedy for any further delay in delivery once that maximum amount of liquidated damages has been reached and/or ii)source goods of a similar description from a third party and Seller shall reimburse the Buyer for the excess cost and expenses. 

 

7.10 The Buyer shall not be deemed to have accepted the Goods until it has had 7 days to inspect them following delivery or collection as the case may be. The Buyer shall also have the right to reject the Goods as though they had not been accepted for 7 days after any latent defect in the Goods has become apparent.

 

 

8. Quality and Warranty

 

8.1 Where the Seller is not the manufacturer of the Goods, the Seller shall endeavor to transfer to the Buyer the benefit of any warranty or guarantee given to the Seller.

 

8.2 The Seller warrants that (subject to the other provisions of these conditions) upon delivery, and for a period of 12 months from the date of delivery, the Goods shall:

 

b) for a period of 2 years from the date of shipment of the Goods (the “Warranty Period“), such Goods are fit and safe for use consistent with and will materially conform to the Specifications and will be free from significant defects in material and workmanship;

 

c) Goods are free of defects in design (except for written designs provided by Buyer, unless the defects in Buyer’s designs are based on Seller’s specifications); 

 

d) no claim, lien, or action exists or is threatened against Seller that would interfere with Buyer’s use or sale of the Goods;

 

e) the Goods do not infringe any third-party Intellectual Property Rights;

 

f) Buyer will receive good and valid title to the Goods, free and clear of all encumbrances and liens of any kind; 

 

g) the Goods are new and do not contain used or reconditioned parts, unless otherwise specified in the Order;

 

h) all Goods and all parts of Goods, including, but not limited to parts that may be identified as replacement units or spare parts, shall not experience data integrity, undetected data loss, or related issues, and shall conform with any other related requirements specified;

 

i) to the extent the Goods include software code, the Goods contain no harmful code;

 

j) it has disclosed to Buyer in writing the existence of any third-party code, including open source code, that is included in or is provided in connection with the Goods and that Seller and the Goods are in compliance with all licensing agreements applicable to such third-party code; 

 

k) all authors have agreed not to assert their moral rights (personal rights associated with authorship of a work under applicable Law) in the Goods, to the extent permitted by law; and

 

l) be reasonably fit for any particular purpose for which the Goods are being bought if the Buyer had made known that purpose to the Seller in writing and the Seller has confirmed in writing that it is reasonable for the Buyer to rely on the skill and judgment of the Seller.

 

 

8.3 Remedies for Breach of Warranties. During the Warranty Period, if Goods do not comply with the warranties in this Agreement, in addition to other remedies available at Law or in this Agreement, Seller shall, at Buyer’s discretion:

 

(a) repair or replace such defective Goods; or 

(b) credit or refund the Price of such defective Goods plus any inspection, test and transportation charges paid by Buyer, less any applicable discounts, rebates, or credits. 

 

8.4 For such Goods, Buyer shall ship, at Seller’s expense and risk of loss, such allegedly defective Goods to the nearest authorized Seller location and Seller will, at Seller’s expense and risk of loss, return any repaired or replaced Good to the Delivery Location in a timely manner. 

 

8.5 If Seller fails to repair or replace Goods in a timely manner, Buyer may do so and Seller shall reimburse Buyer for actual and reasonable expenses. Buyer may return defective Goods from any Buyer location to the nearest authorized Seller location at Seller’s cost.

 

8.6 Recalls. If Buyer, any of Buyer’s customers, Seller or any governmental authority determines that any Goods sold to Buyer are defective and a recall campaign is necessary, either party may implement such recall campaign. Buyer must return defective Goods to Seller or destroy such Goods, as determined by Buyer, at Seller’s sole cost and risk. Without prejudice to Buyer’s other rights under this Clause 8, if a recall campaign is implemented, at Buyer’s option and Seller’s sole cost, Seller shall promptly either repair or replace, or credit or refund Prices for, all such returned Goods under the terms of Clause 8.3.

 

8.7 The foregoing will apply even if the product warranties under Clause 8.2 or any other product warranty applicable to the Goods have expired. Seller is liable for all of Buyer’s costs associated with any recall campaign if such recall campaign is based on a reasonable determination that either:

 

(a) the Goods fail to conform to either the warranties under this Agreement or applicable law; or

(b) the basis for the recall arose from Seller’s negligence or wilful misconduct.

 

8.8 Where applicable, Seller shall pay all reasonable costs and expenses associated with determining whether a recall campaign is necessary.

 

8.9 The Seller shall not be liable for a breach of any of the warranties in Clause 8.2 unless:

 

b) the Buyer gives written notice of the defect to the Seller, and, if the defect is as a result of damage in transit to the carrier, within 7 days of the time when the Buyer discovers the defect; and

 

c) the Seller is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Seller) returns such Goods to the Seller’s place of business at the Seller’s cost for the examination to take place there.

 

 

8.10 The Company shall not be liable for a breach of any of the warranties in condition 8.2 if:

 

b) the Buyer makes any further use of such Goods after giving such notice; or

c) the defect arises because the Buyer failed to follow the Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice.

 

 

 

9. Risk and Property

 

9.1 Risk of damage to or loss of the Goods shall pass to the Buyer upon delivery to the Buyer in accordance with the Contract.

 

9.2 The property in the Goods shall pass to the Buyer upon delivery, unless payment for the Goods has been agreed to be made prior to delivery, when it shall pass to the Buyer once payment has been made and the Goods have been appropriated to the Contract.

 

9.3 Insurance. Without limiting Seller’s indemnification obligations under this Agreement, during the Term and for a period of 3 years thereafter, Seller shall, at its own expense, maintain and carry in full force and effect, at least the following types and amounts of insurance coverage, subject to the requirements set forth in below: 

 

a) Commercial general liability with limits no less than $1,000,000 for each occurrence and $2,000,000 in the aggregate, including bodily injury and property damage and products and completed operations and advertising liability, which policy will include contractual liability coverage insuring the activities of Seller under this Agreement; 

 

b) Worker’s compensation with limits no less than the greater of $1,000,000; or the minimum amount required by applicable law

 

9.4 Insurance Contract Requirements. Seller shall ensure that all insurance policies required pursuant to Section 9.3: 

 

a) are issued by insurance companies reasonably acceptable to Buyer or with a Best’s Rating of no less than A-VII; 

 

b) provide that such insurance carriers give Buyer at least 30 days’ prior notice of cancellation or non-renewal of policy coverage, provided that, prior to such cancellation, Seller has new insurance policies in place that meet the requirements of this Clause 9; 

 

c) provide that such insurance be primary insurance and any similar insurance in the name of and/or for the benefit of Seller shall be excess and non-contributory; 

 

d) name Buyer and Buyer’s Affiliates, including, in each case, all successors and permitted assigns, as additional insureds; and 

 

e) waive any right of subrogation of the insurers against Buyer.

 

9.5 Insurance Certificates. On Buyer’s written request, Seller shall provide Buyer with copies of the certificates of insurance and policy endorsements for all insurance coverage required by this Clause 9 and shall not do anything to invalidate such insurance. This shall not be construed in any manner as waiving, restricting, or limiting the liability of either party for any obligations imposed under this Agreement (including but not limited to, any provisions requiring a party hereto to indemnify, defend, and hold the other harmless under this Agreement).

 

 

10) Assignment

 

10.1 The Buyer may assign the Contract or any part of it to any person, firm or company.

 

10.2 The Seller shall not be entitled to assign the Contract or any part of it without the prior written consent of the Buyer.

 

 

 

11. Indemnity

 

11.1 The Seller shall indemnify the Buyer and its officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Party“)  in full against all against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, (including including attorneys’ fees, fees, and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers) awarded against or incurred or paid by the Indemnified Party as a result of or in connection with:-

 

b) breach of any warranty given by the Seller in relation to the Goods;

 

c) any claim that the Goods infringe, or that their importation, use or resale, infringes, the patent, copyright trade mark or other intellectual property rights of any other person, except to the extent that the claim arises from compliance with any Specification supplied by the Buyer;

 

d) any act or omission of the Seller or its employees, agents or sub-contractors in supplying, delivering or installing the Goods;

 

e) any failure by Seller or its Personnel to comply with any applicable laws.

 

f) bodily injury, death of any person, or damage to real or tangible personal property caused by the acts or omissions of Seller or its personnel; and

 

g) all claims by the customers of the Buyer (and their sub-buyers) arising out of any breach whatever by the Seller of this contract for sale.

 

 

 

12. Remedies

 

12.1 Without prejudice to any other right or remedy which the Buyer may have, if any Goods are not supplied in accordance with, or the Seller fails to comply with, any of the terms of the Contract the Buyer shall be entitled to avail itself of any one or more of the following remedies at its discretion, whether or not any part of the Goods have been accepted by the Buyer:

 

b) to rescind the Order;

 

c) to reject the Goods (in whole or in part) and return them to the Seller at the risk and cost of the Seller on the basis that a full refund for the Goods so returned shall be paid forthwith by the Seller;

 

d) at the Buyer’s option to give the Seller the opportunity at the Seller’s expense either to remedy any defect in the Goods or to supply replacement Goods and carry out any other necessary work to ensure that the terms of the Contract are fulfilled;

 

e) to refuse to accept any further deliveries of the Goods but without any liability to the Seller;

 

f) to carry out at the Seller’s expense any work necessary to make the Goods comply with the Contract; and

 

g) to claim such damages as may have been sustained in consequence of the Seller’s breach or breaches of the Contract.

 

 

13. Termination

 

13.1 The Buyer shall be entitled to cancel the Contract in respect of all or part only of the Goods, without liability, by giving notice in writing to the Seller at any time prior to delivery or performance.

 

13.2 The Buyer shall be entitled to terminate the Contract without liability to the Seller by giving notice to the Seller at any time if: –

 

a) if Seller repudiates, or threatens to repudiate, any of its obligations under this Agreement;

 

b) except as otherwise specifically provided under this Clause 13.2, if Seller is in breach of, or threatens to breach, any representation, warranty, or covenant of Seller under this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by Seller within a commercially reasonable period of time under the circumstances, in no case exceeding 10 Business Days following Seller’s receipt of notice of such breach;

 

c) notwithstanding the generality of Clause 13.2 b), if Seller fails to, or threatens to fail to, timely deliver Goods conforming to the requirements of, and otherwise in accordance with, the terms and conditions of this Agreement;

 

c) if Seller becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due;

 

d) if Seller files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law;

 

e) seeks reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, or other relief with respect to it or its debts;

 

f) makes or seeks to make a general assignment for the benefit of its creditors;

 

g) applies for or has a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;

 

h) if Seller fails to provide Buyer, within a commercial reasonable time after Buyer’s request (but in no case exceeding 10 Business Days after such request) with adequate and reasonable assurance of Seller’s financial and operational capability to timely perform Seller’s obligations under this Agreement;

 

i) in the event of a Force Majeure Event affecting the Seller’s performance of this Agreement for more than 14 Business Days; 

 

j) if, without obtaining Buyer’s prior written consent, (i) Seller sells, leases, or exchanges a material portion of Seller’s assets, (ii) Seller merges or consolidates with or into another person, or (iii) a change in Control of Seller occurs; or

 

k) at its option, at any time and for any reason.

 

Any termination under this Clause 13.2 is effective on Seller’ s receipt of Buyer’s notice of termination or any later date set out in the notice.

 

 

 

14. Force Majeure

 

14.1 In the event that either party is prevented from fulfilling its obligations under this Agreement by reason of any supervening event beyond its control including but not limited to war, national emergency, flood, earthquake, strike or lockout (“Force Majeure Event”) (subject to Sub-clause 14.2) the party shall not be deemed to be in breach of its obligations under this Agreement. The party shall immediately give notice of this to the other party and must take all reasonable steps to resume performance of its obligations.

 

14.2 Sub-clause 14.1 shall not apply with respect to strikes and lockouts where such action has been induced by the party so incapacitated. 

 

14.3 Each party shall be liable to pay to the other damages for any breach of this Agreement and all expenses and costs incurred by that party in enforcing its rights under this Agreement.

 

14.4 If and when the period of such incapacity exceeds 3 months, then this Agreement shall automatically terminate unless the parties first agree otherwise in writing. 

 

 

15. Intellectual Property Ownership Rights

 

15.1 All pre-existing intellectual property rights, including the right to patent, copyright, trademarks, mask works and design rights in the Goods (“Pre-Existing IPRs”) shall remain vested absolutely in the Seller and/or its licensors, as the case may be.

 

15.2 The Seller hereby grants, including by way of a present licence of future rights (or shall procure that any relevant third party shall grant) a perpetual non-exclusive, irrevocable, royalty-free licence (with the right to grant sub-licences) for the Buyer to use the Pre-Existing IPRs and to use, copy and publish (electronically and in hard copy formats) the descriptions of the Goods where such is required by its customers solely to the extent necessary to utilise the services as contemplated by this Order for the benefit of its customers.  This licence shall include the right to make any and all documentation available at any time to the Buyer. All Pre-Existing IPRs in the Goods descriptions shall remain vested absolutely in the Seller (or its consultants, Sellers or sub-contractors, in which case the Seller shall ensure that it has the right to license such descriptions.

 

15.3 All intellectual property rights, including copyright in documents and data and any specially written software, created by the Seller specifically for the purposes of this Order (and paid for by the Buyer) shall vest in the Buyer (“Designated IPRs”) and the Seller shall, it its own cost and expense, promptly take any action and do anything and execute any document necessary to effect this purpose and shall, upon request from the Buyer, assist the Buyer to promptly apply for Designated IPR protection. 

 

15.4 In the event of any delay in the vesting of any Designated IPRs in the Buyer under this Order, the Seller shall hold such rights in trust for the Buyer.

 

15.5 The Seller hereby assigns to the Buyer, for no additional payment, with full title guarantee all right, title and interest to or in the Designated IPRs referred to here of any and all encumbrances and third-party rights. 

 

15.6 The Seller shall from time to time at the Buyer’s request deliver up to the Buyer all source code, or other materials, embodying or embedded within Designated IPRs and specially written software and any adaptations and modifications to the same.

 

15.7 The assignment under this clause shall be a present assignment of future rights that shall take effect immediately on the coming into existence of the relevant Designated IPRs. The Seller shall ensure that any author of the Designated IPRs the title in which is to pass to the Buyer hereunder unconditionally and irrevocably waives all moral rights which may exist now or in the future in respect of the aforementioned Designated IPRs. 

 

 

 

16. Confidentiality

 

16.1 For the purposes of this Agreement “Restricted Information” means, in relation to either party, information which is disclosed to that party by the other party pursuant to or in connection with this Agreement (whether orally or in writing or any other medium, and whether or not the information is expressly stated to be confidential or marked as such).

 

16.2 Each party undertakes that, except as provided by Clause 16.8 or as authorised in writing by the other party, it shall, at all times during the continuance of this Agreement and for 2 years after its termination: –

 

a) use its best endeavors to keep confidential all Restricted Information;

 

b) not disclose any Restricted Information to any other person;

 

c) not use any Restricted Information for any purpose other than as contemplated by and subject to the terms of this Agreement;

 

d) not make any copies of, record in any way or part with possession of any Restricted Information; and

 

e) ensure that none of its directors, officers, employees, agents or advisers does any act which, if done by that party, would be a breach of the provisions of (a), (b), (c) or (d) above.

 

16.3 Either party may: –

 

a) disclose any Restricted Information to: –

 

b) any sub-contractor or supplier of that party;

 

c) any governmental or other authority or regulatory body; or

 

d) any employee or officer of that party or of any of the aforementioned persons;

to such extent only as is necessary for the purposes contemplated by this Agreement, or as required by law, and in each case subject to that party first informing the person in question that the Restricted Information is confidential and (except where the disclosure is to any such body as is mentioned  above or any employee or officer of any such body) obtaining and submitting to the other party a written undertaking from the person in question, as nearly as practicable in the terms of this Clause, to keep the Restricted Information confidential and to use it only for the purposes for which the disclosure is made and

 

1.2  use any Restricted Information for any purpose, or disclosure it to any other person, to the extent only that it is at the date of this Agreement, or at any time after that date becomes, public knowledge through no fault of that party, provided that in doing so that party does not disclose any part of that Restricted Information which is not public knowledge.

 

1.3 The provisions of this Clause shall continue in force in accordance with their terms, notwithstanding the termination of this Agreement for any reason.

 

 

 

2. Notices

 

17.1 All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”, and with the correlative meaning “Notify”) must be in writing and addressed to the other Party at its address set out in any document which forms part of the Contract or such other address as shall be notified. Unless otherwise agreed herein, all Notices must be delivered by personal delivery, nationally recognized overnight courier or certified or registered mail (in each case, return receipt requested, postage prepaid). Notice given by email (with confirmation of transmission), will satisfy the requirements of this Section 17.1. Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.

 

17.2 Communications addressed to the Buyer shall be marked for the attention of Financial Controller.

 

 

18. Waiver

 

No waiver by the Buyer of any breach of the Contract by the Seller shall be considered as a waiver of any subsequent breach of the same or any other provision.

 

 

19. Equitable Remedies. 

 

Seller acknowledges and agrees that (a) a breach or threatened breach by Seller of any of its obligations under this Agreement would give rise to irreparable harm to the Buyer for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by Seller of any such obligations, Buyer shall, in addition to any and all other rights and remedies that may be available to Buyer at law, at equity, or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance, and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Seller agrees that Seller will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Clause 19.

 

 

20. Severance

 

If any provisions of these Conditions are held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provisions in question shall not be affected thereby.

 

 

21. Third Party Rights

 

 This Agreement benefits solely the parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.

 

 

22. Ethics

 

The Seller accepts that the Buyer has an Ethics Policy and should adopt the same or similar standards. Also the Seller is committed to ensuring that there is no slavery or human trafficking in its own business or its supply chains.

 

 

23. Dispute Resolution

 

Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination, or invalidity hereof (each, a “Dispute”), shall be submitted for negotiation and resolution to an officer of Seller (or to such other person of equivalent or superior position designated by Seller in a written Notice to Buyer) and an officer of Buyer (or to such other person of equivalent or superior position designated by Buyer in a written Notice to Seller), by delivery of written Notice (each, a “Dispute Notice”) from either of the parties to the other party. Such persons shall negotiate in good faith to resolve the Dispute. If the Parties cannot resolve any Dispute within 30 Business Days after delivery of the applicable Dispute Notice, either party may file suit in a court of competent jurisdiction in accordance with the provisions of Clause 24 and Clause 25 hereunder.

 

 

24. Choice of Law. 

 

This Agreement, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the Laws of the State of New York, United States of America, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of New York. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.

 

 

25. Choice of Forum. 

 

Each party irrevocably and unconditionally agrees that it will not commence any action, litigation, or proceeding of any kind whatsoever against the other party in any way arising from or relating to this Agreement, in any forum other than the courts of the State of New York sitting in New York City, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation, or proceeding only in New York City. Each party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.

 

 

26. Waiver of Jury Trial. 

 

Each party acknowledges and agrees that any controversy that may arise under this Agreement, is likely to involve complicated and difficult issues and, therefore, each such party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement. Each party certifies and acknowledges that (a) no representative of the other party has represented, expressly or otherwise, that such other party would not seek to enforce the foregoing waiver in the event of a legal action, (b) such party has considered the implications of this waiver, (c) such party makes this waiver voluntarily, and (d) such party has been induced to enter into this Agreement by, among other things, the mutual waivers and certifications in this Clause 26.

 

 

27. Counterparts. 

 

This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. Notwithstanding anything to the contrary in Section 18.04, a signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.