JPS Interoperability Solutions, Inc. Commercial International Terms and Conditions of Sale v1.6

1. BUYER’S ACCEPTANCE OF SELLER’S TERMS AND CONDITIONS

All orders are subject to acceptance by Seller. Any order accepted by Seller is accepted with the understanding that Buyer assents to the terms and conditions set forth herein, regardless of the form or terms of Buyer’s order. This document constitutes the terms of agreement in their entirety between Buyer and Seller with respect to any order Buyer places with Seller. Buyer accepts these terms and conditions by making a purchase from or placing an order with Seller or otherwise requesting products (“Products”) from Seller. These terms and conditions are subject to change without prior notice. Any additional or different terms stated in any purchase order or other document which Buyer presents to Seller shall be considered material alterations, will be of no binding effect and are hereby objected to and rejected.  No course of dealing, usage of trade or course of performance will be relevant to, supplement or explain any terms used herein.

2. PRICES

Unless otherwise stated, quoted prices are in United States dollars and are valid for sixty (60) days from issuance unless otherwise specified. Products shall be invoiced at Seller’s prices in effect at date of shipment unless otherwise stated in a written quotation or proposal. All prices are subject to increases equal to any additional costs incurred by Seller as a result of any changes in laws or regulations or component price increases.

3. DELIVERY DATE

Lead times and delivery dates may vary depending on many circumstances.  Stated delivery dates are Seller’s estimate of the time required to produce Buyer’s order.  Seller reserves the right to re-adjust shipment schedules. Seller is not liable for any delay or failure to obtain the necessary export license or other government authorization for the Products. Acceptance by Buyer of the Products when received waives any claim resulting from a delay. If shipment is delayed by Buyer, Buyer shall pay any costs incurred by Seller for handling, storage and timely processing of Buyer’s order as well as demurrage and similar charges, if any.  IN NO CASE SHALL SELLER BE LIABLE TO BUYER, OR TO ANYONE PRESENTING CLAIMS THROUGH BUYER, FOR ANY INCIDENTAL, CONSEQUENTIAL OR SPECIAL DAMAGES ARISING FROM ANY DELAY IN DELIVERY OR ANY OTHER BREACH, FAILURE OR OMISSION BY SELLER, REGARDLESS OF THE CAUSE OR NATURE OF SUCH DELAY, BREACH, FAILURE OR OMISSION, AND SELLER’S LIABILITY IN ANY SUCH EVENT SHALL IN NO CASE EXCEED THE PURCHASE PRICE OF THE GOODS SOLD BY SELLER TO BUYER WITH RESPECT TO WHICH ANY DAMAGES ARE CLAIMED.

4. PRODUCT SPECIFICATIONS AND QUALITY

Prices and delivery schedules are based upon Seller’s standard specifications or upon product specifications and quality requirements submitted by Buyer.  Any changes to those specifications or requirements will require review and possible adjustment of price and/or delivery schedules, and may result in additional charges, tooling and other services or items needed to produce the finished product.  Any changes in product specifications or quality requirements, and any consequent price changes which are mutually agreed to in writing by Seller and Buyer, shall become part of the Agreement between the parties and are incorporated herein by this reference.

5. SHIPMENT OF ORDERS

Seller reserves the right to make partial shipments when necessary. Shipments will be invoiced separately and paid for when due, without regard to subsequent shipments.  Non-conformity or delay in shipment or delivery of any particular installment will not relieve Buyer from its obligation to accept any remaining installments.

6. TAXES

The prices of the Products and related services do not include any sales, use, excise or other tax, duty or charge or fee now or hereafter imposed by any national, provincial, state, local or governmental authority. Buyer agrees to pay or reimburse Seller for the full amount of any such taxes or other charges or fees which Seller is required to pay, with the exception of sales or use taxes where Buyer provides Seller with a valid tax exemption certificate for such Products.

7. LATE CHARGE FOR DELAYED PAYMENT

Prior to or at the time of the delivery of Products, Seller shall submit invoices to Buyer stating amounts due. Seller’s invoices are due and payable in one installment. Payment for Products shall be made by Buyer in U.S. dollars. All payments shall be made free and clear of any deductions or withholdings. If payment in full of any invoice is not made by or before the net due date, Buyer agrees to pay a service charge on the unpaid balance at the lower of one and one-half percent (1½%) per month (i.e. 18% per annum), or the maximum rate permitted by law, from the due date until the invoice and all service charges thereon have been paid in full.  If allowed by applicable law, Buyer shall also pay on demand any costs incurred by Seller (including reasonable attorneys’ fees and legal expenses) in connection with the collection of any amounts due from Buyer to Seller which are not paid as agreed herein.

8. FREIGHT AND RISK OF LOSS

Except as otherwise stated herein, delivery of all goods shall be  (at Seller’s sole discretion)  FCA (Seller’s Place)  – Incoterms ®2010 –  at Seller’s Raleigh , NC  facility , with freight charges and cargo insurance paid  by Buyer. Buyer assumes  all  risk of loss to the goods from the time  they are delivered to a carrier. Any claim for loss or damage  in  transit  shall be against  the  carrier only. Method  and  route  of shipment are at the discretion of  Seller unless Buyer specifies otherwise. Buyer’s right to any freight  deductions is conditioned on the surrender of original paid freight bills.

9. CANCELLATION

Except for a cancellation resulting from a default by Seller, Buyer may not cancel or modify any order without Seller’s prior written consent.  In such event, Buyer shall pay Seller the contract price for all Products which have been completed by Seller prior to termination and shall reimburse Seller for Seller’s expenses for labor, material, unamortized tooling, overhead and any other commitments made and expenses incurred by Seller to date of cancellation for Products not yet produced, in accordance with Seller’s standard charges therefor.  Seller shall use its best efforts to mitigate such cost, but Seller may charge a cancellation fee of up to twenty (20) percent of the value of the cancelled purchase order in addition to the above mentioned out-of-pocket cost. Split deliveries may not be cancelled if Seller has already produced the Products and they are awaiting delivery.  No cancellation by Buyer for a default by Seller shall be effective until Seller has failed for thirty (30) days from the date it receives written notice of a default to cure such default to Buyer’s reasonable satisfaction. Shipping charges resulting from refused shipments will be immediately due and payable, including a twenty (20) percent restocking fee of Products invoice amount.

Seller may cancel any order in whole or in part if: (i) Buyer breaches any term or condition herein; (ii) any material representation made by Buyer to Seller proves to be false or misleading; (iii) Buyer is insolvent; (iv) a case naming Buyer as “debtor” is commenced under any chapter of the United States Bankruptcy Code or similar foreign legislation; (v) Buyer makes an assignment for the benefit of creditors; (vi) a receiver or trustee or foreign equivalent is appointed for Buyer’s property; (vii) a formal or informal proceeding for the dissolution, liquidation or winding up of affairs of Buyer is commenced; (viii) Seller becomes aware that the ultimate customer for the order is other than that declared by Buyer; (ix) Seller, at its sole determination, has any reason to suspect that any law may have been or may be violated, including but not limited to the FCPA (see below).  In the event of any cancellation by Seller for any of the foregoing reasons, Seller shall have the rights, in addition to its other rights, to (a) refuse to deliver Products and/or perform hereunder, and (b) be reimbursed by Buyer for Seller’s expenses for labor, material and overhead incurred by Seller to date of cancellation, in accordance with Seller’s standard charges therefor.

10. FORCE MAJEURE

Seller will make a good faith effort to complete delivery of the Products as indicated by Seller in writing. Seller shall have no liability hereunder to Buyer or to anyone presenting claims through Buyer for any delays in delivery or any breach, failure or omission on the part of Seller if caused by any law, rule, regulation, order or ruling of any national, provincial, state,  local, or other governmental authority, including, without limitation, any prohibition or limitation on export or import, or any limitation on the selling price of the Products below the price specified in Seller’s invoice; any labor disturbances, riot, fire, flood, accident, delay of common carrier, or act of God; Seller’s inability to obtain supplies, raw materials, component parts or services through its regular and usual sources of supply; delays in shipments or deliveries caused by Seller’s manufacturers and suppliers; or any other cause beyond Seller’s control. Where delivery is to be in installments, delay in delivery of any installment shall not relieve Buyer of its obligations to accept subsequent deliveries. Notwithstanding the foregoing, if a failure or delay of performance by Seller caused by force majeure continues for more than three (3) months, Seller may immediately terminate this Agreement and shall have no liability therefore.

11. WARRANTY

Seller’s Product(s), exclusive of software, will conform to Seller’s then current drawings and specifications and be free from defects in material and workmanship under normal use for twelve (12) months (except for products expressly warranted by seller for eighteen (18) months), beginning on the date the Product is delivered to Buyer (“Warranty”). Seller reserves the right to repair and/or replace any repaired Product with new and/or reconditioned parts, components, or units at Seller’s sole discretion. Seller’s sole obligation, and Buyer’s exclusive remedy, for breach of the Warranty is for Seller, at its sole option, to repair or replace the Product, or refund Buyer’s purchase price for the Product(s), in the form of credit, for any part of the Product which fails to meet the Warranty. Repairs and/or replacements shall be returned to the location designated by Seller, with a written explanation of failure. Replacement components are warranted for ninety (90) calendar days or for the remainder of the in effect Product Warranty period, whichever is greater.

The aforementioned Warranty shall not apply to Product(s):

(i) used for purposes for which they are not designated or intended, (ii) which have been repaired or altered without Seller’s prior written consent, (iii) which have been subjected to misuse, negligence, Acts of God, accident or improper maintenance or installation, or (iv) upon Seller’s examination, do not disclose to Seller’s satisfaction nonconformance to the Warranty provisions herein.

Cables are covered for the initial warranty period but shall not be included under extended warranties unless so expressly stated in writing.

Software, coterminous with the applicable Product Warranty period, shall function without material defect to Seller’s then current specifications for such and Seller’s only obligation for any portion of the software that is non-functioning is the correction or replacement of the software at Seller’s sole option. Notwithstanding the foregoing, Seller makes no guarantee as to the accuracy or operational capability of the software.

THE REMEDIES SET FORTH ABOVE SHALL CONSTITUTE BUYER’S EXCLUSIVE REMEDIES FOR SELLER’S BREACH OF ANY WARRANTY WITH RESPECT TO THE PRODUCTS OR ANY OTHER LIABILITY OF SELLER TO BUYER (OTHER THAN WARRANTIES RELATING TO TITLE AND INFRINGEMENT), INCLUDING ANY ARISING OUT OF THE NEGLIGENCE OF SELLER, STRICT LIABILITY IN TORT OR ANY OTHER LEGAL THEORY.  ANY WARRANTIES SPECIFICALLY SET FORTH HEREIN, AND ANY LIABILITY OF SELLER FOR ANY BREACH OF WARRANTY, ARE CONDITIONED UPON PROPER STORAGE AND USE OF THE PRODUCTS. IMPROPER STORAGE, HANDLING, ALTERATION OR USE OF THE PRODUCTS WILL VOID ALL WARRANTIES CONTAINED HEREIN.

Unless otherwise expressly stated by Seller in writing, Seller warranty under these terms and conditions applies only to Seller manufactured, assembled, and/or brand name products.  Third party products sold through Seller will only carry the warranty (if any) offered by the manufacturer of such products, pursuant to the written terms of any such warranty.

12. RETURNS

Claims for damage, shortage or errors in shipping of the Products, inclusive of software, must be reported within three (3) business days following receipt of the Products by Buyer. In case of failure to notify Seller within the foregoing timeframe, the shipping records of Seller shall be conclusive as to the quantities and description of the Products shipped and Buyer shall be barred from any recovery for shortages, damage or errors. Buyer shall have ten (10) days from the date Buyer receives any Products to inspect such Products for defects and nonconformance which are not due to damage, shortage or errors in shipping and notify Seller, in writing, of any defects, nonconformance or rejection of such Products. After such ten (10) day period, Buyer shall be deemed to have irrevocably accepted the Products, if not previously accepted. After such acceptance, Buyer shall have no right to reject the Products for any reason or to revoke acceptance. Buyer hereby agrees that such ten (10) day period is a reasonable amount of time for such inspection and revocation. otherwise

With respect to warranty returns, upon notice and receipt of an RMA (“Returned Material Authorization”) number, Buyer may return the Product for repair or replacement (at Seller’s discretion).  Notwithstanding the foregoing, and in all instances unless otherwise authorized in writing, Seller will not accept Product warranty or non-warranty returns for credit.

Specially fabricated or ordered items, OR ANY ITEMS QUOTED OR SOLD AS NON-CANCELLABLE OR NON- RETURNABLE, may not be canceled or returned, and no refund will be made.

Buyer will handle and be responsible for all warranty returns from its direct and indirect end users. Products obtained from Seller which do not comply with the Warranty, whether or not previously shipped to an end user on behalf of Buyer, may only be returned to Seller by Buyer during the applicable Warranty period for corrective action in conformance to the Warranty. Buyer shall bear all costs (e.g., freight and insurance) associated with returning all non-conforming Product(s) to Seller.  Buyer shall ship equipment for warranty repair via JPS’s designated warranty return shipper (currently UPS); if Buyer elects to use a different shipper, Buyer must ship DDP to JPS’s offices in Raleigh, North Carolina. If Seller has provided Buyer with RMA number(s) to be used in returning non-conforming Products (covered by warranty) to Seller, Seller shall bear all costs associated with freight and insurance to return repaired or replaced Product(s) to Buyer’s designated location. Any damaged product must be returned in the original container (with original packaging). The original packaging must be shipped in an over pack to eliminate any further damage. All costs associated with out of warranty Product returns will be borne by Buyer.

The sole and exclusive remedy for merchandise alleged to be defective in workmanship or material will be the replacement of the merchandise subject to the manufacturer’s inspection and warranty. THE FOREGOING WARRANTY IS IN LIEU OF AND EXCLUDES ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. Seller’s Products are sold with the understanding that Buyer will test them under actual conditions of use and be solely responsible to determine the suitability of the Product for its intended use.

13. LIMITATION OF LIABILITY

EXCEPT FOR LIABILITY ARISING FROM A BREACH OF PROPRIETARY INFORMATION, BUYER’S VIOLATION OF EXPORT OR FCPA LAWS OR REGULATIONS, OR VIOLATION OF INTELLECTUAL PROPERTY RIGHTS (INCLUDING REVERSE ENGINEERING), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR INDIRECT, SPECIAL, CONSEQUENTIAL, MULTIPLE OR PUNITIVE DAMAGES, OR ANY DAMAGE DEEMED TO BE OF AN INDIRECT OR CONSEQUENTIAL NATURE ARISING OUT OF OR RELATED TO ITS PERFORMANCE UNDER THE CONTRACT, WHETHER BASED UPON BREACH OF CONTRACT, WARRANTY, NEGLIGENCE AND WHETHER GROUNDED IN TORT, CONTRACT, CIVIL LAW OR OTHER THEORIES OF LIABILITY, INCLUDING STRICT LIABILITY. SELLER’S LIABILITY FOR ANY CLAIMS, DAMAGES, LOSSES OR LIABILITIES ARISING OUT OF OR RELATING TO ITS PERFORMANCE OF AN ORDER MADE HEREUNDER SHALL NOT EXCEED THE PURCHASE PRICE OF THE PRODUCTS SOLD PER SUCH ORDER.

14. CONFIDENTIALITY

All information furnished by Seller and all information learned or observed about Seller or its operations through the parties’ performance hereunder is confidential, and Buyer shall not disclose such information to any person or use such information for any purpose other than the fulfillment of its obligations hereunder, without Seller’s prior written consent.

15. INTELLECTUAL PROPERTY RIGHTS

Notwithstanding any other provision herein, Seller (and its licensors or other suppliers, as applicable) retains (i) all copyrights, patent rights, trade secret rights as well as any and all other proprietary rights in or to the Products, software, all documentation and other related materials, and all copies and derivative works thereof (by whomever produced), (ii) all service marks, trademarks, trade names or any other designations of Seller, and (iii) all title to, and, except as expressly licensed herein, all rights to the software components and portions of the Products.

16. REVERSE ENGINEERING

Buyer agrees not to obtain information about the Products being purchased pursuant to this Agreement by cutting into, disassembling, inspecting the interiors of, or otherwise reverse engineering the Products; and Buyer further agrees not to use information obtained in such a manner to develop its own products. Buyer also agrees not to enable or assist others to so obtain or use such information.  In the event any such actions nevertheless occur, all data and results and/or any inventions, discoveries, or works arising there from shall be solely owned by Seller and Buyer shall, at its expense, assign any such inventions or discoveries to Seller. Nothing in this Paragraph shall be construed as preventing Buyer from developing and manufacturing its own products independently and without use of any such information.

17. INTENDED USE

Buyer acknowledges that it uses the Equipment for business purposes and therefore agrees that all consumer protection terms implied by law shall not apply. Buyer acknowledges that JPS products are designed to commercial industry specifications and are Commercial Off The Shelf products.  Guidelines for use in industries or applications requiring other specifications are the responsibility of Buyer and it is at the sole discretion of Buyer to use JPS products in environments outside the specifications of JPS products.  Products are not intended for use in intrinsically safe environments (unless intrinsically safe equipment is specifically ordered and supplied and used in accordance with the supplied instructions).

18. ACCEPTANCE OF MERCHANDISE

The Products shall be deemed accepted by Buyer when Buyer (i) notifies Seller of acceptance in writing, (ii) uses the Products or permits use by others, (iii) remits payment for the Products to Seller, or (iv) fails to notify Seller of rejection within ten (10) days after Buyer takes possession of the Products.

19. DELIVERY DELAYS AND STORAGE

If any Products are not shipped within 30 days after notification to Buyer that they are ready for shipment, for any reason beyond Seller’s reasonable control, including Buyer’s failure to give shipping instructions, Seller may terminate the order, or store such Products at Buyer’s risk in a warehouse or yard or upon Seller’s premises and Buyer shall pay all handling, transportation and storage costs at the prevailing commercial rates.

If Buyer causes or request a significant delay in shipment, Seller may, at its discretion, terminate the order without incurring any liability to Buyer.

20. MODIFICATIONS /SEVERABILITY

Except as otherwise expressly set forth herein this document is the final written expression of all of the terms of the agreement between Buyer and Seller with respect to the sale of the Products. No terms or conditions other than those stated herein, and no written or oral agreement or understanding which in any way purports to waive or modify these terms or conditions, whether made by any agent, representative or salesperson of Seller or contained in Buyer’s purchase order, shipping release form or elsewhere, shall be binding on Seller unless agreed to in writing by an authorized representative of Seller.

In the event that any condition or clause of this agreement that is not of a fundamental nature is held to be illegal or unenforceable, the validity or enforceability of the remainder of the agreement shall not be affected.

21. NO WAIVER

Seller’s failure to insist upon performance of any of the terms and conditions set forth herein or to exercise any right hereunder on any one or more occasions shall not be deemed to be a waiver of such terms, conditions or rights, nor shall it be deemed to be a waiver of any other term, condition or right set forth herein.

22. APPLICABLE LAW

THESE TERMS AND CONDITIONS SHALL BE INTERPRETED IN THE ENGLISH LANGUAGE, GOVERNED BY AND CONSTRUED ACCORDING TO THE LAWS OF THE STATE OF NORTH CAROLINA, U.S.A, (EXCLUDING ITS CONFLICT OF LAWS RULES) AND EXCLUDES APPLICATION OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS.  

23. DISPUTES AND ARBITRATION

Any and all disputes, controversies or claims arising out of or relating to this agreement, or the existence, breach, performance, termination, or invalidity thereof shall be settled by final and binding arbitration in the City of Raleigh, North Carolina in the United States of America before a panel of three arbitrators administered by the American Arbitration Association in accordance with its International Arbitration Rules.   Each party shall appoint an arbitrator, with the party-appointed arbitrators selecting the umpire.  The proceedings shall be in English and shall be confidential.  Judgment upon the arbitration award or decision may be entered in any court having jurisdiction thereof.  Any award rendered by the Arbitrators may include compensatory damages and costs against either party but, except with respect to violation of Seller’s intellectual property rights (including any violation by Buyer of the Reverse Engineering provisions of Section 16 above) or Buyer’s violation of export regulations, FCPA legislation, or similar laws, under no circumstances are the Arbitrators authorized or empowered to award punitive or multiple monetary damages against either party. Notwithstanding any other provisions of this order, either party may seek injunctive relief in any court of competent jurisdiction for improper use or disclosure of the other party’s proprietary data.

24. PARTIES, ASSIGNMENT

As used herein, “Buyer” and “Seller” include their respective heirs, executors, personal representatives, successors and assigns. No right or interest arising under this document shall be assigned by Buyer and no delegation of any obligation owed by Buyer shall be made without the prior written permission of Seller.

25. RECIPROCAL WAIVER OF CLAIMS

Where the qualified anti-terrorism technologies (“QATT”) has been deployed in defense against, response to or recovery from an act of terrorism as that latter term is defined under the U.S. Department of Homeland Securities’ SAFETY Act, Seller and Buyer of the QATT agree to waive all claims against each other, including their officers, directors, agents or other representatives, arising out of the manufacture, sale, use or operation of the QATT, and further agree that each is responsible for losses, including business interruption losses, that it sustains, or for losses sustained by its own employees resulting from an activity arising out of such act of terrorism.

26. NOTICE

Notice shall be deemed effective when received or refused, if sent to the other party at the address provided by the other party. Unless otherwise advised in writing, the address to which any notice to Seller should be sent is: JPS Interoperability Solutions, Inc., 5800 Departure Drive, Raleigh, NC 27616.

27. EXPORT COMPLIANCE

a) Buyer acknowledges the importance of complying with the export control regulations of the United States Government, as amended from time to time. Buyer shall not re-export any Products outside the country or Territory authorized under this agreement without Seller’ express written consent. Accordingly, Buyer agrees to do the following:

(i) identify and provide Seller with end user and end use for all equipment sales with submission of Buyer’s purchase order.

(ii) indemnify Seller for all liabilities, penalties, losses, damages, cost or expenses that may be imposed on or incurred by Buyer in connection with any violations of such laws and regulations.

(iii) comply with all export, import and customs laws and regulations of the country of destination, and shall be responsible for all import duties, excise taxes, and similar charges.

(iv) immediately notify Seller whenever the Sale shall be classified as a reexport. Buyer shall provide Seller with the destination country, end user/customer, and end use information prior to the sale of the equipment.

(v) not provide any technical data, information or other items provided by Seller in connection with this Agreement to any foreign persons or to a foreign entity, including without limitation, a foreign subsidiary of Buyer without the express written authorization of Seller and Buyer obtaining the appropriate export license.

(vi) immediately notify Seller if buyer is or becomes listed on any Excluded or Denied Party List of any agency of the U.S. Government or its export privileges are denied, suspended or revoked.

b) Buyer agrees to provide information concerning citizenship or export status of Buyer’s personnel, if requested by Seller. Buyer agrees to provide such information as necessary and certifies the information to be true and correct.

c) Buyer warrants that it is and agrees that it shall remain in compliance with all requirements that the Government of the United States imposes on exports, reexports, and deemed exports of Products and support services, including but not limited to technical data, to those foreign countries, entities, or nationals embargoed, prohibited, or otherwise restricted from time to time under applicable United States laws and regulations, including the regulations administered by the Office of Foreign Assets Control of the United States Department of the Treasury, the Directorate of Defense Trade Controls of the United States Department of State, and the Bureau of Industry and Security of the United States Department of Commerce (including the Office of Antiboycott Compliance). In addition, Buyer acknowledges that the manufacturers’ warranties for exported Products may vary or may be null and void for Products exported outside the United States.

d) Buyer shall comply with all export laws, restrictions, national security controls and regulations of the United States and other applicable foreign agency or authority, and shall not export or reexport, or allow the export or reexport of Products or any component of the Products in contravention of these laws. Buyer further warrants that it shall take all reasonable and appropriate steps, including but not limited to, obtaining warranties, guarantees, or other assurances, to ensure that any other person or entity purchasing or otherwise procuring Products or support services shall not make an export, reexport, or deemed export of the products or services in violation of the requirements of any laws, regulation, policy, order, or license of, or issued by, an agency of the Government of the United States.

e) If at any time Buyer becomes aware of (i) any information or circumstances that suggest that any of the covenants of Section 27 may not be accurate, or (ii) any export, reexport, or deemed export of Seller’ Products in violation of the requirements of any law, regulation, policy, order, or license of, or issued by, an agency of the Government of the United States by any Person purchasing or otherwise procuring the Products, it shall notify Seller immediately in writing, but not more than seven (7) days after becoming aware of any such circumstances.

f) For purposes of this Agreement, the term “Person” means any individual, corporation, company, voluntary association, partnership, joint venture, trust, unincorporated organization or government (or any agency, instrumentality or political subdivision thereof).

g) Buyer acknowledges that it may need to register as a broker under the ITAR, 22 Code of Federal Regulations Part 129, and obtain licenses as required. Buyer agrees to comply with all such requirements.  Seller shall take such reasonable action to support Buyer with its independent efforts and obligations to comply with any applicable registration and licensing requirements, although Seller’ inability or failure to provide support shall serve as no excuse for Buyer to not comply with the subject requirements, nor is such inability or failure to provide support a breach of this Agreement or a ground giving rise to any claim by Buyer against Seller.

h) Buyer covenants and agrees that no document relating to its use, export, reexport, deemed export, resale, release, or other transfer of any Product or support services will contain provisions reflecting participation in or cooperation with a foreign boycott that is not sanctioned by the United States, including without limitation the Arab League boycott of Israel. Buyer further covenants and agrees that it will not provide any document to Seller which contains provisions reflecting participation in or cooperation with a foreign boycott that is not sanctioned by the United States, including without limitation the Arab League boycott of Israel.

i) In no event shall Seller be liable in the event national EXPORT LICENSES NECESSARY FOR THE SALE ARE DENIED OR SUSPENDED.

j) In the event that Seller determines that any pending international sale of Seller Products made by Buyer involves a person on any denied parties list, Seller shall terminate the pending sale without incurring any cost or liability.

k) In addition to any other remedies that Seller may have against Buyer for a breach of Section 27, Seller may terminate the order and the underlying Agreement forthwith.

28. ANTI-CORRUPTION COMPLIANCE

a) Each Party acknowledges that it attaches great importance in maintaining an ethical approach to doing business and in prohibiting any unethical or corrupt activity by their respective employees or principals.

b) For purposes of these terms and conditions, the term “FCPA” means the Foreign Corrupt Practices Act of 1977 of the United States of America, as amended by the Foreign Corrupt Practices Act Amendments of 1988 and 1998 and as may be further amended and supplemented from time to time.

c) Each Party also acknowledges that its actions may subject it or the other Party to liability under the FCPA, the laws, rules, and policies of the home country of Buyer and customer(s), and any other country with regulatory jurisdiction over the activities to be undertaken under this Agreement (together and individually hereinafter referred to as the “Anti-Corruption Requirements”).

d) Each Party represents and warrants to, and covenants and agrees with each other Party that:

(i) No payments have been used, nor will be used, for any activity or purpose where a reasonable belief exists that the Anti-Corruption Requirements would be violated or that either Party would be exposed to liability under the Anti-Corruption Requirements.

(ii) It is familiar with the Anti-Corruption Requirements and their purposes, restrictions and prohibitions.

e) In connection with its performance of this Agreement, Buyer has not, directly or indirectly, offered, paid, given, promised to pay or give, or authorized the payment or giving of any money, gift, or anything of value, and will not, directly or indirectly, offer, pay, give, promise to pay or give, or authorize the payment or giving of any money, gift, or anything of value to: (i) any foreign official (as defined herein), any foreign political party or official thereof, or any candidate for foreign political office; or (ii) any person while knowing that all or a portion of such money, gift or thing of value will be offered, paid, given or promised, directly or indirectly, to any such foreign official, foreign political party or official thereof, or to any candidate for foreign political office, (each such official, political party or official thereof or candidate or person being herein called a “Restricted Person”); or (iii) any officer, director, shareholder, employee or agent of any foreign government entity or person; for the purpose of influencing any act or decision of such foreign official, foreign political party or official thereof, candidate or person, officer, director, shareholder, employee or agent in his, her or its official capacity, or inducing such foreign official, foreign political party or official thereof, or candidate or person to do or omit to do any act in violation of the lawful duty of such foreign official, foreign political party or official thereof, candidate or person, or securing any improper advantage; or inducing such foreign official, foreign political party or official thereof, candidate or person, officer, director, shareholder, employee or agent to use his, her or its influence with any foreign government or instrumentality thereof or any customer to affect or influence any act or decision of such foreign government or instrumentality or customer; in order to assist Buyer in obtaining or retaining business with, or directing business to, any person. As used herein, “foreign official” means any officer or employee of a foreign government or any department, agency, or instrumentality thereof, or any enterprise owned or controlled by a foreign government, department, agency or instrumentality, or of a public international organization, or any person acting in an official capacity for or on behalf of any such government or department, agency, or instrumentality, or for or on behalf of any such public international organization. “Foreign” means any nation outside of the United States, including Buyer’s own nation.

f) In connection with its performance of this Agreement, Buyer shall maintain books, records, and accounts, which in reasonable detail, accurately and fairly reflect the transactions and asset dispositions of Buyer and allow Seller, its affiliates and parent companies to maintain accurate books and records and comply with the requirements for internal management controls set forth in the Anti-Corruption Requirements as well as relevant U.S. laws and regulations.

g) Except as set forth on the applicable purchase order, neither Buyer nor any of its principals, consultants, officers, directors, shareholders, employees and agents is a Restricted Person. Neither Buyer nor any of its principals, consultants, officers, directors, shareholders, employees or agents has performed or shall perform any act which Seller reasonably believes would constitute a violation of the Anti-Corruption Requirements or which Seller reasonably believes would cause Seller to be in violation of the Anti-Corruption Requirements, or present a credible risk, as determined by Seller’s reasonable belief, of a violation of the Anti-Corruption Requirements.  Buyer further agrees to hold Seller harmless and indemnify Seller from any loss, damage, fine or penalty or expense whatsoever that they may suffer as a result of Buyer’s failure to comply with these terms and conditions.

h) If at any time Buyer becomes aware of information or circumstances that suggest any of the representations, warranties, and covenants referenced in these terms and conditions may not be accurate, it shall notify Seller immediately in writing, but not less than seven (7) days after becoming aware of such circumstances.

i) No Restricted Person has a right to share directly or indirectly in any compensation payable under any sale or purchase order. No compensation payable under any Seller related transaction has been used, nor will be used, for any activity or purpose that would violate the FCPA or that might expose Seller to liability under the FCPA.

j) Buyer is not authorized to act as a distributor of Seller in respect to any matter if before, during or subsequent to being so engaged, Buyer engages in any activity inconsistent with these Anti-Corruption Requirements, the representations, warranties, and covenants, or Seller’s policy in connection with or related to any matters concerning its appointment under this Agreement.

k) Buyer warrants that it and its officers, employees or representatives have not, for the purpose of improperly obtaining or rewarding favorable treatment in connection with the award of any sale of Seller Products or services: (1) provided, attempted to provide, or offered to provide any gratuity or kickback; have not (2) solicited, accepted, or attempted to accept any gratuity or kickback; or (3) included, directly or indirectly, the amount of any gratuity or kickback prohibited by (1) or (2) of this paragraph in the price charged by Buyer. Any breach of this warranty shall constitute a material breach of these terms and conditions.  The term “kickback” means any money, fee, commission, credit, gift, gratuity, thing of value, or compensation of any kind which is provided, directly or indirectly, to a customer or customer’s officers, employees or representatives, including any of their family members, subcontractors, or sub-contractor employees, for the purpose of improperly obtaining or rewarding favorable treatment in connection with a sale.

l) Buyer shall certify the continuing accuracy and truthfulness of the foregoing representations and warranties at the time of each purchase.

m) If at any time Seller reasonably believes that the representations or covenants of this Section 28 have not been maintained, or reasonably believes that a payment or action that may violate the Anti-Corruption Requirements may have occurred, Seller shall give notice to Buyer and Buyer agrees that Seller can terminate this order as it deems appropriate. Buyer agrees to forego any litigation or claims against Seller for such suspension or termination of this order.

n) The obligations of Buyer under this Section 28 shall survive any termination or expiration of the underlying Agreement concluded between the parties.

29. SUBSEQUENT ORDERS FROM BUYER

If Buyer submits subsequent orders for additional quantities of the Products described herein (and whether such additional orders are at the same or a different price), such additional orders shall be subject to the terms and conditions contained herein. THE TERMS AND CONDITIONS SET FORTH HEREIN WILL GOVERN ALL REORDERS AND ADDITIONAL ORDERS FOR GOODS OF THE KIND DESCRIBED HEREIN. ANY TERMS OR CONDITIONS CONTAINED IN ANY REORDER OR ADDITIONAL ORDER WHICH ARE DIFFERENT FROM OR ADDITIONAL TO THESE TERMS AND CONDITIONS WILL BE OF NO BINDING EFFECT AND ARE HEREBY REJECTED.  Seller reserves the right to make changes in the design or specifications of any of its standard Products at any time without notice to Buyer.