Terms and Conditions for Supply of Products by EnduroSat Inc
Valid as of 1st of October 2021
By purchasing our products using our services, you acknowledge and agree that these Terms and Conditions (“Terms”) are a legally binding agreement between Endurosat Inc. (“the “Seller”) and you as its client (the “Buyer”) related to the sale and delivery of the Seller’s products (the “Products”) and/or services, which Products are purchased by the Buyer. The Buyer and Seller are together referred to as the “Parties”.
PLEASE READ THESE TERMS CAREFULLY. THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN THE SALE AND PURCHASE OF OUR PRODUCTS AND/OR SERVICES. BY PURCHASING OUR PRODUCTS AND/OR SERVICES, YOU ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). IF YOU DO NOT AGREE WITH ALL OF THE PROVISIONS OF THESE TERMS, YOU ARE PROHIBITED FROM ACCESSING, USING, OR TRANSACTING WITH ENDUROSAT. WHERE APPLICABLE, YOU FURTHER REPRESENT AND WARRANT THAT YOU ARE OTHERWISE LEGALLY PERMITTED TO USE THE PRODUCTS AND SERVICES IN YOUR JURISDICTION AND THAT THE SELLER IS NOT LIABLE FOR YOUR COMPLIANCE WITH SUCH APPLICABLE LAWS.
PLEASE NOTE THAT THE TERMS INCLUDE AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN THE SELLER AND THE BUYER TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. BY PURCHASING OUR PRODUCTS AND/OR USING OUR SERVICES AND ACCEPTING THESE TERMS, YOU ARE AGREEING TO MANDATORY INDIVIDUAL ARBITRATION FOR THE RESOLUTION OF DISPUTES AND WAIVING YOUR RIGHT TO A JURY TRIAL ON YOUR CLAIMS. PLEASE READ THE ARBITRATION PROVISIONS OF THESE TERMS CAREFULLY.
We reserve the right to change or modify these Terms at any time and in our sole discretion. If we make changes to these Terms, we will provide notice of such changes, such as by sending an email notification, providing notice through our website or updating the “Last Updated” date at the beginning of these Terms. By purchasing our Products and/or services, you confirm your acceptance of any revised Terms and all of the terms incorporated therein by reference. We encourage you to review the Terms frequently to ensure that you understand the terms and conditions that apply when you purchase our Products and Services.
1. Subject
1.1. These Terms regulate the relations between the Seller and the Buyer related to the sale and delivery of the Products by the Seller which products are purchased by the Buyer.
1.2. Under these Terms the Seller shall deliver and transfer ownership and the Buyer shall accept and pay for Products, as specified in a separate quotation sent by Seller to Buyer or purchase order sent from the Buyer to the Seller (the “PO”). The Parties agree that these Terms shall be deemed incorporated by reference into every respective PO entered into between the Buyer and the Seller.
1.3. The Products are produced under the Seller’s brand “EnduroSat” and the Seller and/or its affiliates are the sole legal owner of any and all Intellectual Property Rights (as defined below) in the Products provided by the Seller to the Buyer pursuant to the PO as specified in section 6 below.
2. Purchase Price
2.1. The aggregate price of the Products delivered under these Terms will be as specified in the respective PO (the “Purchase Price”).
2.2. The Purchase Price does not include any sales, use, consumption, excise taxes or any other taxes of any taxing authority. Buyer agrees to pay or reimburse Seller for any such taxes that Seller is required to pay or collect or that are required to be withheld from the Purchase Price.
2.3. The Purchase Price is payable to a bank account of the Seller specified in the PO.
3. Terms of payment
3.1. The Purchase Price under Art. 2.1 above, in addition to any transportation costs and applicable taxes, shall be paid as specified in the respective PO.
4. Delivery and Acceptance of Products
4.1. Except as otherwise specified in the PO, the delivery terms where applicable shall follow the rules of INCOTERMS 2010 DAP.
4.2 Delivery of the Products under these Terms shall be done within the certain number of business days/weeks as specified in the respective PO. Provided that in any case such period starts to count not earlier than receipt by the Seller and/or the Buyer of all the relevant (according to the applicable legislation) certificates/authorizations/statements for export/import of the Products (if needed).
4.3. The Products shall be delivered to the Buyer by signing of a hand-over protocol or by the acceptance and signing of the transport documents by the transport agent.
4.4 The Buyer shall notify the Seller in writing within 3 (three) business days from the delivery of the Products (the “Delivery Notice”) in accordance with section 4.2 and 4.3 above, of established quantitative and qualitative variations or nonconformity of the Products which are not established at the time of delivery, after which period, the delivered Products are considered to be undamaged and duly accepted. If Buyer notifies the Seller of any variation or nonconformity in accordance with the foregoing, the Seller shall have an opportunity to cure any such variation or nonconformity in the Products within 30 thirty days thereof.
4.5. The Buyer shall indemnify the Seller for any damages the latter has suffered, and any costs incurred as a result of a fault or ungrounded notification under Art.4.4 above.
4.6. Buyer shall accept the goods as soon as practicable upon being notified by the Seller or the transport agent that the products are delivered. In case the Products are not accepted by the Buyer in accordance with section 4.3, without any reasonable written notification, the acceptance of the Products will be deemed to be by the Buyer made after 2 (two) weeks from the date of receipt of the Delivery Notice by the Buyer. In this case, the Seller has the right to unilaterally draw a hand-over protocol and will issue an invoice to the Buyer if such has not been issued.
4.6. The Parties agree that minor inconsistencies that do not violate the operation and the operational safety of the Products or reduce their functionality shall not be a reason for refusal of acceptance of the delivery of the Products.
5. Risk and Ownership
5.1. The risk of loss shall transfer to the Buyer upon signing of the hand-over protocol or by the acceptance and signing of any transportation documents by the transport agent. The transfer of the ownership title shall occur upon receipt of payment of the full Purchase Price as specified in the relevant PO.
6. Intellectual Property Ownership and Software
6.1 Notwithstanding the transfer of ownership title of the Products in accordance with Section 5.1 above, all right, title and interest in the Intellectual Property Rights and other proprietary information in the Products and any software, whether used or not and which is delivered under these Terms and the respective PO (the “Software”) are owned by Seller and/or its affiliates and shall remain so at all times, and Buyer shall take no action or assert any right inconsistent with Seller’s sole ownership of Intellectual Property thereof.
6.2 Seller hereby grants to Buyer, or undertakes to ensure that Buyer is granted, as the case may be, a limited, and non-exclusive license to use Seller’s and/or its affiliate’s Intellectual Property Rights associated with the Products and Software supplied by Seller, solely for the purposes of and to the extent necessary for effective use of the Products by the Buyer. The aforementioned license with the same scope as provided for in this Section 6 can be transferred by the Buyer to a third party upon resale, lease or transfer of the Product by the Buyer to the third party solely for the purposes of and to the extent necessary for effective use of the Products by such third party.
6.3. The Buyer does not have the right to and agrees that it shall not reveal the source code of the Software to any third parties without the prior written consent of the Seller.
6.4. The Buyer shall be entitled to make Software modifications and supplements, only in order to adjust the Product to its own needs. However, the Seller shall not be responsible for the functionality of the Products in case of source code modifications, made without the Seller’s verification. Except as explicitly authorized herein, Buyer shall not translate, reverse engineer, decompile, copy or disassemble the Software nor any parts of the Software.
6.5 For the purposes of these Terms, “Intellectual Property Rights” means (a) patents, inventions, designs, copyright and related rights, database rights, knowhow and confidential information, trade marks (whether registered or unregistered) and related goodwill, trade names (whether registered or unregistered), and rights to apply for registration; (b) all other rights of a similar nature or having an equivalent effect anywhere in the world which currently exist or are recognized in the future; and (c) all applications, extensions and renewals in relation to any such rights.
7. Representations and Warranties
7.1 Each Party represents and warrants that (i) such Party has the full right, power and authority to enter into this Terms and perform its obligations hereunder; (ii) the application or acceptance of these Terms by such Party, and the performance of its obligations and duties hereunder, do not and will not violate any agreement to which such Party is bound; (iii) these Terms once accepted by the Purchaser through the purchase of the Seller’s Products, will constitute the legal, valid and binding obligation of the Parties; and (iv) such Party will not knowingly use the rights granted to it for any unlawful purpose.
8. Product Warranties
8.1. The Seller ensures that the supplied Products are new, unused, and are consistent with the submitted specifications and technical documentation.
8.2. The time period of the warrantyof the standard products of the Seller is 12 (twelve) months from – (a) the date of delivery i.e. respectively the signing of the delivery document (transport document) under 4.2. above; or (b) or the moment at which the Buyer is deemed to have received the delivered products as per section 4.6. above.
8.3. This warranty can be claimed upon presentation of proof of purchase of the Product (e.g. invoice issued by the Seller).
8.4. The warranty is not provided and shall not be valid in the case of:
– Damages to the integrity of the Products.
– Improper storage before usage, exposure to adverse weather conditions (temperatures above 100˚C or below -45˚C), wetting of the Products or aggressive chemicals, violation of the requirements of the Seller.
– Incorrect usage carried out in violation of the instructions of the Seller (including, but not limited to exceeding the absolute maximum ratings as per the datasheets of the Products) and the applicable law.
– Damage caused by poor choice of materials for installation (if any), alterations or repairs made by the Buyer or any third party without the knowledge of the Seller.
– Manipulation or unauthorized intervention on the technical integrity of the Product or its components made by unauthorized personnel.
– Improper maintenance and failure to follow the instructions for use and operation.
– Wear out as a result of the normal use, wear and tear as a result of the impact of force majeure or unforeseen external shocks and wear caused by unrecoverable software error.
8.5. In the event that during the warranty period, one or more manufacturing defects are established, the Buyer must notify the Seller and give the Seller a chance to check and cure the defective Product and shall provide a completed standard protocol for complaints to the Seller.
8.6. In case of a manufacturing defect in the Products not attributable to the Buyer, the Seller shall at its sole discretion replace the affected Product(s) with the same or equivalent model or repair the defect in the Products, or in some cases issue a credit note may be issued for the defective Product at the selling price. The Seller should perform these actions in the shortest possible time, but not more than 30 days after the date of the signing of the complaints on the Seller’s part.
8.7. The warranty period does not restart from the beginning in case of a replacement. If it is found that the defect is attributable to the Seller, the costs related to cure, replacement or refund will be charged to the Seller. The Buyer covers the costs of sending the defective Product(s) to the office of the Seller.
8.8. In case of disagreement between the Seller and the Buyer on the reasons for defect in the Products, either Party may determine the defect and the reasons with the help of an independent inspection company. The current expenditure on payment of such control examination on the causes of the defects shall be at the expense of the Party requesting the same. The costs incurred, once the cause of the defect is established, shall be reimbursed by the responsible Party to the other Party.
8.9. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH ABOVE, SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, EITHER IN FACT OR BY OPERATION OF LAW, BY STATUTE OR OTHERWISE, UNDER THESE TERMS AND SELLER EXPRESSLY DISCLAIMS ANY OTHER WARRANTIES, WHETHER WRITTEN OR ORAL WITH RESPECT TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF QUALITY, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THIS AGREEMENT SELLER MAKES NO WARRANTY OF ANY KIND THAT THE PRODUCTS OR SOFTWARE OR RESULTS OF THE USE THEREOF, WILL MEET BUYER’S OR OTHER PERSONS’ EXPECTATIONS, OPERATE WITHOUT INTERRUPTION IN THE SPACE ENVIRONMENT, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
9. Liquidated Damages for Delay
9.1. In the case that the Seller does not deliver the Products in accordance with these Terms and the respective PO, it shall owe penalties amounting to 1% of the Purchase Price of the delayed Products for each full week of delay, but not more than 5% of full Purchase Price for such Products.
9.2. Any other claims for damages for delay by the Buyer shall be unenforceable and are hereby excluded.
9.3. If the Buyer does not pay for the Products and/or services, in accordance with these Terms and the respective PO, it shall pay a penalty of 1% of the value of delayed payment for each full week of delay, but not more than 5% of the same value, if not otherwise agreed.
9.4. In the event that the Seller fails to perform any of its implementation obligations under these Terms and the respective PO, it shall owe a penalty of 0.5% of the Purchase Price of the Products for each full week of delay in implementation, but no more than 5% of the same value, unless otherwise agreed in these Terms and the respective PO.
9.5. Notwitstanding anything to the contrary contained in these Terms, events or circumstances that are considered force majeure, do not exempt the Buyer from the liability to pay in the event that the maturity of that payment was due under the Terms and the respective PO.
10. Limitation of liability
10.1. EXCEPT AS OTHERWISE PROVIDED IN THESE TERMS, SELLER SHALL IN NO EVENT BE LIABLE FOR ANY INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL OR CONSEQUENTIAL LOSS OR DAMAGE OR FOR ANY LOST PROFITS, LOST SAVINGS OR LOSS OF REVENUES SUFFERED BY BUYER ARISING FROM OR IN ANY WAY CONNECTED WITH THESE TERMS, THE RESPECTIVE PO AND/OR THE PURCHASE OR USE OF SELLER’S PRODUCTS AND/OR SERVICES. THE LIMITATION OF LIABILITY IN THIS SECTION APPLIES REGARDLESS OF WHETHER SELLER KNEW OF, OR COULD HAVE KNOWN OF, THE POSSIBILITY OF THE DAMAGES AND APPLIES REGARDLESS OF WHETHER THE LIMITATION OF LIABILITY CAUSES ANY REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE. SUBJECT TO THE FOREGOING, THE TOTAL AGGREGATE LIABILITY OF SELLER ARISING UNDER OR IN CONNECTION WITH THIS TERMS AND THE RESPECTIVE PO SHALL IN NO EVENT EXCEED THE AMOUNTS PAID FOR THE PARTICULAR PRODUCTS IN CONNECTION WITH WHICH THE LIABILITY AROSE, AND TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW ANY SUCH LIABILITY SHALL EXPIRE WITH THE EXPIRATION OF OBLIGATION’S OF SELLER UNDER THESE TERMS AND THE RESPECTIVE PO. THIS SECTION SHALL SURVIVE THE TERMINATION OF THESE TERMS AND THE RESPECTIVE PO FOR ANY REASON.
10.2. The Seller is not responsible and/or liable in case of official refusal by any relevant administration in charge to issue any of the needed export and/or import certificates, authorizations and/or statements for the sale and/or delivery of the Products, stopping of the production or project development of the Buyer, lost profits, lost interest and other related damages, except in cases of gross negligence or willful misconduct of the Seller.
10.3. The Parties acknowledge the worldwide outbreak of the coronavirus disease, which is likely to affect the execution of the respective PO. The Parties agree, that Seller shall be entitled to reasonable adjustments of the time schedule, milestones and delivery dates as well as to reimbursement of costs to the extent the delay and the costs are caused directly or indirectly by the outbreak of the coronavirus disease (COVID-19). Seller reserves the right to partial delivery and/or performance of service hereunder.
11. Confidentiality
11.1. Each Party shall observe confidentiality of all information (including the design and technical characteristics of the Products) and documentation received and supplied by the other Party under these Terms and/or any respective POwhich is identified as confidential and shall:
– provide information and records only to those employees who need it to fulfill their obligations;
– require their employees to treat such information and documentation confidentially as if they relate to their own confidential information;
– issue or otherwise provide such information or documentation only after the prior written consent of the other Party, which consent shall not be unreasonably withheld upon motivated objective reason.
11.2. The above restrictions do not apply in cases of enforced legislation and where for the purpose to obtain official permits and licenses, necessary information and documents shall be presented before the competent authorities, as well as when this is required by the controlling authorities under their jurisdiction.
11.3. In this case, the Party taking such action shall take the necessary care to respect the confidentiality of information provided by these authorities.
11.4. The term for compliance with the confidentiality of the information provided is five years after the termination of the applicable PO between the Parties.
12. Indemnification
12.1. Seller and Buyer (each, in such capacity, the “Indemnifying Party”) shall defend, indemnify and hold harmless the other party (each, in such capacity, the “Indemnified Parties”), against any and all liability, claims, suits, actions, demands, and any proceedings of any kind, threatened, asserted or filed against an Indemnified Party by any third party (“Claims”) and any damages, losses, expenses, liabilities or costs incurred including attorneys’ fees, in connection with such Claims arising out of the Indemnifying Party’s or its personnel, agents’ or representatives’: (i) breach of any of its representations, warranties or covenants set forth in Section 7 of these Terms, (ii) gross negligence or willful misconduct in connection with this Terms and/or the applicable PO, or damage to property of any person caused by either Indemnifying Party; (iii) any breach or alleged breach of its confidentiality obligations hereunder; (iv) where Buyer is the Indemnifying Party, the use by Buyer of any intellectual property material, other than the Seller’s Software, in connection with the Products that infringes, misappropriates or violates any third party Intellectual Property Right; or the use by Buyer of the Seller’s Software in a manner not permitted by law. Notwithstanding anything to the contrary contained herein, any damages, losses, expenses, liabilities or costs incurred, including attorneys’ fees, by the Indemnifying Party in satisfaction of its indemnification obligations contained in Section 12 shall not exceed two times the price paid for by the Products.
12.2 The Indemnified Party will provide the Indemnifying Party with reasonably prompt written notice of any third party Claims and reasonable information and assistance, at the Indemnifying Party’s expense, to help the Indemnifying Party to defend such Claims. An Indemnified Party’s failure to give prompt notice shall not constitute a waiver of the Indemnified Party’s right to indemnification and shall affect Indemnifying Party’s indemnification obligations only to the extent that the Indemnifying Party’s rights are materially prejudiced by such failure or delay. Neither party will have any right, without the other party’s written consent, to settle any such claim if such settlement arises from or is part of any criminal action, suit or proceeding or contains a stipulation to or admission or acknowledgment of, any liability, infringement or wrongdoing on the part of other party or its affiliates or otherwise requires the other party or its affiliates to take or refrain from taking any material action.
13. Force Majeure
13.1. Force Majeure shall be deemed to be (but not limited to) the following circumstances: war, an act of God, disease, epidemic, pandemic, quarantine, labor dispute, unavailability of transportation, goods or services, governmental restrictions or actions, war (declared or undeclared), acts of terrorism, or other hostilities, or any other event, condition or cause which is not foreseeable on the date of the respective PO and is beyond the reasonable control of the Party.
13.2. In the case of “force majeure” where these circumstances affect the obligations of either Party, the time for performance shall be extended by as much as the force majeure events/circumstances were in force.
13.3. Each Party shall notify the other Party of the occurrence and the termination of the force majeure event within 10 working days of its occurrence, regardless of the nature of the event, and the respective termination of such event. This notification must be confirmed by the relevant authorities of the country where this event has occurred or proven otherwise beyond a reasonable doubt.
13.4. In the event that the above notification and confirmation were not submitted within the agreed occurrence of force majeure, the Party claiming the force majeure shall be liable for damages the other Party has suffered as a result of the non-performance.
13.5. In the event of force majeure, provided that the event delays the implementation of the respective PO by more than 60 days, the Buyer and the Seller have the right to terminate the respective PO by signing a termination protocol. In this case, no penalties are due and neither Party shall be liable to the other Party.
14. Product Information
14.1. Any information and product data contained in catalogs, brochures and price lists are binding for the Seller only if they are specified or attached/specified to the respective PO or a quotation sent by Seller to Buyer.
15. Changes
15.1 Quantitative increases, decreases, modifications and/or other changes for which the Seller is not responsible and which are a result of a request of the Buyer, changes in laws, regulations of the relevant authorities or changes in the technique will be checked with regard to their impact on prices and terms and will be offered to the Buyer by the Seller. Mutual agreement regarding such changes shall be reached between the Parties in writing.
16. Rights and Obligations of the Parties
16.1. Neither Party is entitled to transfer rights nor obligations to a third party under these Terms and the respective PO without the written consent of the other Party, which should not be unreasonably withheld.
16.2. The Buyer shall not have the right to re-export/re-sell the Products (including incorporated in other products) to a purchasing country or a country of destination which is subject to an arms embargo imposed by a binding resolution of the Security Council of the United Nations. The Buyer shall not use the Products (including incorporated in other products) for providing of any services to a purchasing country or a country of destination or to any third party from a country which is subject to an arms embargo imposed by a binding resolution of the Security Council of the United Nations.
16.3. The Buyer declares that the Products will not be used nor are the Products intended, in their entirety or in part, to be used in connection with the development, production, handling, operation, maintenance, storage, detection, identification or dissemination of chemical, biological or nuclear weapons or other nuclear explosive devices or the development, production, maintenance or storage of missiles capable of delivering such weapons. The Buyer shall not have the right to re-export and/or re-sell the Products (including incorporated in other products) to any third party for which there is any doubt that it will use the Products for the purposes specified in the preceding sentence.
16.4. The Seller has the right to assign these Terms and the respective PO together with all rights and obligations arising from it to another affiliated company of the Seller’s group.
16.5. In the event that the Buyer subsequently decides to re-sell the Products delivered under these Terms and the respective PO to other person/entity, the Buyer is obliged preliminarily to seek the permission of the Seller, and if requested by the Seller – the Export Control authority of the Seller. In case of official institutional confirmation, the Buyer shall impose similar obligations on non-military product use, export control and IP protection. The end user or any of its official representatives must not be included in any Sanctioned Party Lists of the European Union, USA, United Nations or elsewhere.
17. Export Control
17.1. Seller shall comply with all United States laws and regulations controlling the export of certain commodities and technical data, including without limitation all Export Administration Regulations of the United States Department of Commerce, including any legislative and/or regulatory changes thereof enacted after the date of conclusion/execution of this agreement. Among other things, these laws and regulations prohibit or require a license for the export of certain types of commodities and technical data to specified countries. Seller hereby gives written assurance that it will comply with all United States export control laws and regulations, including any legislative and/or regulatory changes thereof enacted after the date of conclusion/execution of this agreement, that it bears sole responsibility for any violation of such laws and regulations, and that it will indemnify, defend, and hold Buyer harmless for the consequences of any such violation.
17.2. By accepting these Terms and the respective PO, the Buyer explicitly declares that it or its affiliates are not blacklisted, i.e. not included in any present or future Sanctioned Party Lists of the EU or the USA or elsewhere. The Buyer also declares that it is and will not be a commercial representative of a blacklisted party, nor is or will be acting for and on behalf of a blacklisted party.
17.3. For avoidance of doubt the Seller shall not be obliged to fulfill these Terms or any respective PO, if such fulfillment is prevented by any impediments arising out of national or international foreign trade or customs requirements or any embargos or other sanctions.
17.4. If the Buyer transfers goods to a third party (hardware and/ or software and/ or technology as well as corresponding documentation, regardless of the mode of provision delivered by the Seller), the Buyer shall comply with all applicable and future national and international (re-) export control regulations and trade sanctions. In any event of such transfer of goods, works and services the Buyer shall comply with the (re-) export control regulations of the European Union, USA, and any other relevant jurisdiction which may be imposed on Buyer and/or the products from time to time, including any legislative and/or regulatory changes enacted after the date of conclusion/execution of this agreement.
17.5. The Buyer shall indemnify and hold harmless the Seller and its affiliates from and against any claim, proceeding, action, fine, loss, cost and damages arising out of or relating to any noncompliance with export control regulations by the Buyer, and the Buyer shall compensate the Seller and its affiliates for all losses and expenses resulting thereof.
17.6. For avoidance of doubt the word “sanction” or variation thereof are used herein, such terms shall be construed and interpreted to include economic, trade, or financial sanctions laid down, administered or enforced by under the laws of the United Nations, the USA, the European Union and/or its Member States, the UK or any other relevant jurisdiction.
18. OFAC Compliance.
18.1. Neither the Buyer nor the Buyer’s directors, officers, managers or employees is or will be an OFAC Sanctioned Person (as defined below) or an entity that is directly or indirectly owned fifty percent (50%) or more in the aggregate by one or more OFAC Sanctioned Persons.. The Buyer and the Buyer’s directors, officers or employees shall comply with and will not violate the USA Patriot Act of 2001, as amended through the date of these Terms and/or any respective PO, to the extent applicable to the Buyer, and all other applicable anti-money laundering laws and regulations. Nothing in these Terms and each respective PO will result in a violation by anyone of any of the OFAC Sanctions (as defined below) or of any anti-money laundering laws of the United States or any other applicable jurisdiction. For purposes of this Section:
(a) “OFAC Sanctions” means any sanctions program administered by the Office of Foreign Assets Control of the U.S. Department of the Treasury (“OFAC”) under authority delegated to the Secretary of the Treasury (the “Treasury Secretary”) by the President of the United States or provided to the Treasury Secretary by statute, and any order or license issued by, or under authority delegated by, the President or provided to the Treasury Secretary by statute in connection with a sanctions program thus administered by OFAC.
(b) “OFAC Sanctioned Person” means any government, country, corporation or other entity, group or individual with whom or which the OFAC Sanctions prohibit a U.S. Person from engaging in transactions, and includes without limitation any individual or corporation or other entity that appears on the current OFAC list of Specially Designated Nationals and Blocked Persons (the “SDN List”).
(c) “U.S. Person” means any U.S. citizen, permanent resident alien, entity organized under the laws of the United States (including foreign branches), or any person (individual or entity) in the United States, and, with respect to the Cuban Assets Control Regulations, also includes any corporation or other entity that is owned or controlled by one of the foregoing, without regard to where it is organized or doing business.
19. Termination of a PO
19.1. Both Parties shall have the right to terminate the respective PO at any time by mutual consent. In this case they shall sign a protocol in the form specified by Seller, regulating all their relations concerning termination.
19.2. Either Party shall have the right to terminate the PO upon unilateral prior notice given to the other Party:
(a) at occurrence of a force majeure event lasting more than 60 days, or
(b) immediately, in case of official refusal by any relevant administration in charge to issue any of the needed export/import certificates, authorizations and/or statements for the sale and/or delivery of the Products (if such are needed). In this case the Parties shall regulate their property relations concerning termination by signing a bilateral Protocol.
20. Partial Invalidity
20.1. A decision of a competent court or arbitrator or arbitral tribunal or amendment of legislation which makes any provision of these Terms and/or any respective PO invalid or unenforceable will be limited to this provision and will not make the whole Terms and/or any respective PO or any other condition of it invalid, void or unenforceable, and all other conditions will remain in full force and effect.
20.2. The Parties undertake the responsibility to make every effort to agree to a valid, effective and enforceable provision to replace the provision deemed to be invalid, ineffective or unenforceable, that most closely reflects the purpose of the invalid, ineffective or unenforceable provision.
21. Communication between the Parties
21.1. Official communication – all messages, announcements and/or notices between the Seller and the Buyer in relation to the implementation of these Terms and the respective PO should be submitted in writing and submitted for signature to the responsible person or, if their delivery could be verified in any other way – including by courier, fax or e-mail as provided in the relevant PO.
21.2. Communication between the Parties shall take place in English language.
21.3. The Parties shall be allowed informal communication in order to facilitate the implementation of these Terms and the respective PO – by phone, email, etc.
21.4. The informal communication has no legal value under this these Terms and the respective PO and is not considered officially accepted unless confirmed in writing.
21.5. Either Party shall appoint a respective authorized person, in the respective PO, to be liable for these Terms and the respective PO performance and the binding correspondence.
21.6. Either Party shall have the right to replace its appointed authorized person at any time without the consent of the other Party, however, the other Party shall be immediately notified thereof.
22. Arbitration
22.1. The Parties shall seek to resolve any dispute, controversy or claim arising out of or in connection with these Terms and any respective PO, including without limitation, any dispute regarding the enforceability of any provision, through good faith negotiations between them within 30 days of any notice of dispute being served or such longer period of time as may be mutually agreed between the Parties. If the Parties are unable to resolve the dispute within this timeframe, and one or both parties desire to pursue the dispute, the complaining party must submit the dispute to binding arbitration in accordance with the rules and regulations of the American Arbitration Association. The Parties will share equally the cost of arbitrating such dispute. The arbitrator(s) shall not be empowered to award punitive or other damages in excess of compensatory damages, and both parties irrevocably waive the right to any such damages. Judgment on the award rendered by the arbitrator(s) may be entered by any court having jurisdiction over the dispute. In the event that the parties cannot agree upon an arbitrator within a 10 (ten) day period after submitting the dispute for arbitration, each party shall designate an arbitrator and those two arbitrators shall choose a third arbitrator, with that third arbitrator serving as the sole arbitrator of the dispute. The place of arbitration shall be in the State of Delaware.
23. Applicable Law
23.1. These Terms and every respective PO entered pursuant to these Terms constitutes a contract under the laws of the State of Delaware and for all purposes shall be governed by and construed in accordance with the substantive laws of the State of Delaware, without regard to its principles of conflicts of laws provisions.
23.2 The rights and obligations under Terms and every respective PO entered pursuant to these Terms, shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods and/or any local implementing legislation related thereto, the application of which is expressly excluded.
24. Prohibition of Export to the Russian Federation and the Republic of Belarus
(This clause does not apply to the Buyers registered within the territory of: the EU member states, the USA, Canada, Japan, South Korea, Australia, New Zealand, the UK, Norway, Switzerland)
24.1. Buyer shall not sell, export or (re-)export, license, transfer, directly or indirectly, to any natural or legal person, entity or body in the Russian Federation or the Republic of Belarus or for use in the Russian Federation or the Republic of Belarus any goods, products, technology, or other deliverables supplied/sold or made available by Seller (including, but not limited to, hardware, software, technology, documentation, information, data, any material or information protected by means of intellectual property rights or constituting trade secrets) to Buyer under the Agreement as amended from time to time.
24.2. Buyer shall undertake its best efforts to ensure that the purpose of article 24.1 herein is not prevented, hindered or frustrated in any way by any of its affiliates, investors, advisors and any third party, including but not limited to resellers, consignees, distributors, vendors, exporters or merchants.
24.3. Buyer shall set up and maintain an adequate monitoring mechanism, including but not limited to due diligence measures, to detect conduct of any such third party, that would prevent, hinder or frustrate the purpose of article 24.1 herein.
24.4. Any violation of articles 24.1, 24.2 or 24.3 shall constitute a material breach of the Agreement, as amended from time to time, and Seller shall be entitled to seek appropriate remedies at its own discretion, including, but not limited to:
(i) request a plan to remedy the infringement;
(ii) terminate the Agreement;
(iii) suspend any of its business relationships with the Buyer and/or any Buyer’s academic staff, officers, directors, investors, affiliate organisations or companies, until the breach of article 24.1 is remedied/cured; and/or
(iv) terminate all contracts with the Buyer and/or any Buyer’s academic staff, officers, directors, investors, affiliate organisations or companies.
24.5. In any case Buyer will indemnify and hold harmless Seller, its affiliates, subcontractors, and their representatives, against any claims, damages, fines and costs (including attorney’s fees and expenses) relating in any way to Buyer’s non-compliance with articles 24.1, 24.2, 24.3, 24.5 or 24.7 herein.
24.6. Buyer shall immediately inform Seller in writing about any problems or issues in applying article 24, including any relevant activities by third parties that could prevent, hinder or frustrate the purpose of article 24.1. Buyer shall inform Seller concerning compliance with the obligations under article 24 within one (1) week of the request by Seller of such information.
24.7. In the event that Buyer subsequently decides to (re-)sell, supply, license, transfer or (re-)export goods, products, technology, or other deliverables supplied/sold or made available by Seller (including, but not limited to, hardware, software, technology, documentation, information, data, any material or information protected by means of intellectual property rights or constituting trade secrets) under the Agreement as amended from time to time to a third party, Buyer shall impose the same obligations as specified in article 24 prior to the intended (re-)sale, supply, license, transfer, or (re-)export.