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General T's & C's for Standard Purchases

March 20, 2019

1.     INTRODUCTION

1.1       These general purchase conditions (“T&C”) shall apply to all goods and services obtained by BUYER from SELLER, unless expressly excluded within the Purchase Order, and its application subject to terms expressly agreed to in the Purchase Order or other written agreement between BUYER and SELLER (e.g., MSA). In the event of conflict between these T&C and the terms expressly agreed to in the Purchase Order, the terms in the latter shall prevail.

2.     DEFINITIONS

2.1       BUYER: ITC Global, Inc. or its subsidiary or affiliate specified in the Purchase Order.

2.2       SELLER: The firm or person specified as such in the Purchase Order.

2.3       Purchase Order: The document issued by BUYER to SELLER specifying the goods or services to be obtained, including any exhibits or referenced documents it expressly incorporates, including any framework agreement (e.g., MSA) executed by BUYER and SELLER (if applicable), but excluding any terms contained in any order acceptance or confirmation provided by SELLER.

3.     DOCUMENTATION

3.1     All documentation including but not limited to drawings, manuals, commercial and technical correspondences provided by the   SELLER shall be in English language.

4.     PURCHASE ORDER

The Purchase Order together with all its exhibits referred to and attached thereto, any framework agreement (e.g., MSA) executed by BUYER and SELLER (if applicable), and these T&C shall constitute the entire agreement ("Agreement") between the SELLER and BUYER as at the date of acceptance by the SELLER and supersede any and all quotations, negotiations and/or previous agreements either written or oral with respect to the subject of the Purchase Order. These terms and conditions shall not be amended, replaced and/or cancelled without the BUYER's express written agreement.

SELLER shall notify BUYER in writing at least 18 months prior to the discontinuation of any products, parts or materials supplied hereunder. SELLER shall extend opportunities to BUYER to place last time purchase orders with delivery not to exceed 12 months following the date of discontinuation set forth in such last time buy notification.

5.     PRICE

5.1       The price will be as stated in the Purchase Order and unless, otherwise expressly provided in the Purchase Order, will include all labour, plant, materials, equipment, machinery, vehicles, tools, facilities and services, and all ancillary and other works, expenditure, risks, overtime and contingencies, required or necessary to be undertaken, for the proper execution and completion of the works specified in the Purchase Order.

The price shall be firm and fixed and no adjustment in the price may be made whether on account of change in any legislation, increased costs of labour, materials or transport, or fluctuation in rates of exchange or otherwise. The price shall be inclusive of all costs and expenditures required to comply with all applicable laws or regulations including, without limitation, all required licenses and permits.

5.2       All taxes, dues, duties, levies and charges which must be incurred or suffered for the SELLER to perform its obligations under the Purchase Order are deemed included in the price as stated in the Purchase Order.

5.3      In the case of deliveries charged for on a reimbursable basis, payment will become due according to clause 6 only when the BUYER has had a reasonable time to examine and verify as accurate all documentation on which the account is based.

6.     TERMS OF PAYMENT

6.1      SELLER shall be entitled to invoice BUYER at the times specified in the Purchase Order. BUYER shall make payment within days following the receipt of a correct invoice formatted as reasonably instructed by BUYER, provided that all SELLER's obligations according to the Purchase Order have been fulfilled. BUYER may withhold disputed amounts.

6.2      If delivery takes place earlier than agreed, the starting point for calculation of the payment date shall be based on the receipt date of the SELLER’s invoice.

6.3     Amounts not paid within thirty days of BUYER’s receipt of SELLER’s invoice will be subject to an interest charge of the lesser of one and one-half percent per month or the highest rate permitted by applicable law. 

6.4      BUYER may set-off against amounts payable to SELLER hereunder all present and future indebtedness of SELLER to BUYER arising from this or any other transaction or occurrence.

7.     TERMS OF DELIVERY/SHIPPING INSTRUCTIONS

7.1     The parties hereto agree that their respective minimum obligations and liabilities, about applicable shipping terms used to relate to equipment and material purchased/supplied under the provisions of the Purchase Order, will be interpreted in accordance with rules prescribed in INCOTERMS 2010 and latest addenda published by the International Chamber of Commerce, Paris, France.

7.2     If the BUYER is responsible for the transportation, the SELLER shall in a reasonabletime beforedispatch, request dispatch instructions from the BUYER. If SELLER is responsible for the shipping, it shall comeas soon as possible, and not later than the date of dispatch, send an advice note to the BUYER advising of the shipmentso that BUYER may prepare for receipt of the goods.

7.3     SELLER shall submit commercial invoices and packing lists to the BUYER at least sevendays beforeshipmentof goods being delivered by road or sea. For short delivery times, such as airfreight, SELLER shall submit commercial invoicesand packing lists at least 24 hours beforedispatch. SELLER shall not proceed to dispatch without confirmation from BUYER.

8.     PACKING LIST / ADVICE NOTE / INVOICE

8.1      Packing lists/advice notes/invoices etc. shall only relate to one Purchase Order and shall be duly marked according to specifications stated in the Purchase Order. Packing lists/advice notes and invoices shall be completedso that each item corresponds to the Purchase Order concerning theitemnumber, goods description,and specification.

8.2     If the consignment consists of more than one package, each package shall contain a detailed list of contents.

8.3     SELLER shall submit to BUYER one original invoice and one copy. BUYER may reject invoices which do not comply with the Agreement.

8.4     For all deliveries, the goods,and packing lists/advice notes, shall be duly markedwith the gross weight and dimensions. Where applicable, project-specificrequirements shall be strictly followed.

8.5     All original certificates and documents shall be sent to the applicableBUYER’s office as specified inthe Purchase Order. These documentsare a part of the delivery and invoices shall not be paid until they have been received.

8.6     For imported deliveries, SELLERmust provide, a reasonable time beforeshipment, a draft or copy of packing list, commercial invoice, airway bill or bill of lading to provide BUYER adequate time for review and preparation of customs and import procedures. Unless otherwise agreed in writing, SELLER will be responsible for all importation, including all expenses related thereto. Both parties shall comply with all applicable import/export laws.

8.7   An invoice shall at least contain the following details:

  • the Purchase Order Number
  • description of each item of the goods bythe Purchase Order
  • descriptionof the quantity delivered and unit price for each item
  • the delivery point, delivery date and delivery docket number
  • the sub-total price for each item
  • the total price for all items amount of any applicable goods and services tax/value, customs/import tax, duties or impositions
  • the total invoice amounts

9.     CERTIFICATES OF ORIGIN/CUSTOMS INVOICES

9.1     In the case of goods of EC “European Community” or EFTA origin, BUYER or any third party specified by BUYER shall be suppliedwith a certificate of originand customs invoices.

9.2      Costs incurred by BUYER due to lack of certificate of origin or customs invoices shall be charged to SELLER and deducted from the purchase price or, in the case of advance payments of the full purchase price having already been made to the SELLER, be paid by the SELLER to the BUYER within fifteen calendar days of receipt of a notice from the BUYER demanding payment.

10.   TIME OF DELIVERY

10.1   Partial deliveries shall not be accepted and cannot be considered as a partial fulfillmentof SELLER's obligations unless requested or acceptedin writing in advance by BUYER.

10.2   As soon as SELLER believes, or has grounds for believing, that the delivery will be delayed, he shall immediately notify BUYER in writing of the delay and the cause thereof. SELLER shall furthermore inform BUYER of the measures it will initiate to minimize the delay and state a revised delivery dateand in such an event the BUYER shall be entitled at its discretion to accept such revised delivery date or to cancel the Purchase Order without any liability to the BUYER.

10.3   If delivery of the goods is not made in the quantities and on the delivery date or dates specified or the rendering of the services is not completed by the date or dates specified in the Purchase Order, BUYER shall have the right, in addition to its other rights and remedies, to take either or both of the following actions:

  • direct expedited routings of the goods with the SELLER paying the difference in cost between theexpeditedroutingand the Purchase Order routing cost;
  • cancel this Purchase Order by written notice effectivewhen received by SELLER as to goods not yet shipped or services not yet renderedand to purchase substitute goods or services elsewhere and charge SELLER with any costs and/orloss incurred.

10.4   Under no circumstances shall the SELLER withhold goodsor documentation.

11. PACKAGING & INDENTIFICATION

11.1   All goodsmust be packed and labelledin conformity with a suitablepreservation, packing, identification, shipping and related documentation procedure which shall be submittedto the BUYER for prior approval.

11.2   All goods must be packed in the manner as specified by BUYER and shipped in the manner and by the route and carrier designated by BUYER (if applicable). If BUYER does not specifythe way the goods must be packed, SELLER shall pack the goodsto avoid any damage in transit. If BUYER does not specifythe manner of shipment, route or carrier, SELLER shall ship the goodsat the lowest possible transportation rates, consistent with SELLER's obligation to meet the delivery schedule and the care of the goods, set forth inthis Purchase Order.

11.3   Where the Purchase Order is silent on storage requirements for the goodsthen SELLER warrants that the goodswill be stored without deterioration.

12.   RISK OF LOSS

12.1   Notwithstanding anything to the contrary stated in the Agreement, the riskof loss in transit shall not pass to BUYER until delivery and signed acceptance of the goods at the designated delivery point forthe goodsto the location identifiedon the face of the Purchase Order.

13.   INSPECTION OF SELLER DELIVERED GOODS

13.1   BUYER has the right to reject deliveries by SELLER if packaging or identification do not meet requirements stated in the Agreement.

13.2   BUYER's payment for the goods shall not constitute its acceptance of the goods. BUYER shall have the right, but not the obligation, to inspect the goods and to reject any of the goodswhich are in BUYER's judgmentdefective. Goodsso dismissed, and goodssupplied more than quantities ordered shall be returned to the SELLER at the SELLER’s expense unless other arrangements are agreedbetween the BUYER and SELLER. The fact that BUYER failed to inspect or test any goods shall not affect any of the BUYER's rights.

13.3   If goodsarrive damaged the BUYER will decideto accept or reject the delivery after inspection. If goodsare rejectedthe SELLER must bear the cost of goods returned, additional handling or any storage fees and all related costsincluding, but not limited to, replacement of the rejected items.

13.4   For goodsreceived and declared rejectedby BUYER; BUYERshall at its sole discretion elect to accept repair instead ofreplacement. Any such associated costs shall be borne by SELLER.

14.   CHANGES TO PURCHASE ORDER SPECIFICATIONS

14.1   The BUYER has the right to change the BUYER’S requirements and specifications at any time.

14.2   Changes shall be confirmed by BUYERby the issue of a change order. This change order shall after that be confirmed by SELLER. SELLER shall comeas soon as possible but no later than 14 days inform BUYER in writing the effect that the requested change will have on the price, time of delivery and technical specifications. It shall be a condition precedent to SELLER’S right (if any) to an adjustment of the price or the time of delivery that no later than 14 days after receipt of the change order he shall have notified BUYER as to the effect in his opinion (if any) on such price and time of implementing the change order.If in SELLER’S opinion any order or instruction of BUYER or any other circumstances entitles SELLER to a change order, he shall notify BUYER in writing within 14 days of the relevantorderor instructionwith details of the change order sought.

14.3   Disagreement as to compensation payable in respect of such change order shall not entitle SELLER to withhold its delivery of goods, documentation or services.

14.4   SELLER shall not transfer, assign or sublet this Agreement or any part thereof without the prior written consent of the BUYER. Any permitted transfer, assignment or sublettingshall not relieve the SELLER of his obligations hereunder. A copy of any such transfer, assignment or subcontract made by the SELLER shall be furnished forthwith to BUYER on request.

15.   TERMINATION OR SUSPENSION

15.1   BUYER may at its sole discretion choose to terminate or suspend this Agreement or any part hereof for any reason if SELLER refuses or fails to comply, or so fails to make progress as to threaten performance, with any provisions of this Agreement. SELLER will promptly advise BUYER of the quantities of applicablework and material on hand or purchased for this order prior totermination or suspension, or services completed and of the most favourabledisposition that SELLER can make thereof. SELLER will comply with BUYER’s instructions regarding disposition of such work and material. Within 30 days after receipt of such notice of termination or suspension, SELLER will submit all its claims pursuant thereto. BUYER will have the right to check such claims at any reasonable time by inspecting and auditing the records, facilities, work or materials of SELLER relating to the Purchase Order.

15.2   In the event BUYER terminates or suspends the Purchase Order in whole or in part as provided in this section, BUYER may procure, upon such terms as are reasonable, supplies or services like those so terminated, and SELLER shall be liable to BUYER for any excess cost incurred for such similar supplies or services. SELLER shall continue the performance of the Purchase Order to the extent not terminated or suspended under the provisions of this clause.

15.3   BUYER will pay SELLER the Purchase Order price for finished work, and the cost to SELLER (excluding profit or losses) of then work in-process for BUYER and raw material already purchased for BUYER than cannot be resold, less the value of any defective, damaged or destroyed work or material. BUYER will make no payments for finished work, work in-process or raw material fabricated or procured by SELLER more than BUYER’s written request. Payment made under this clause will constitute BUYER’s only liability in the event this Agreement is terminated or suspended as provided herein. The provisions of this clause will not apply to any termination or suspension by BUYER for default by SELLER or for any other cause allowed by law or under this Purchase Order.

15.4   If BUYER terminates the Agreement due to lack of performance by the SELLER, no further payment shall be recovered by the SELLER upon termination of the Purchase Order.

15.5 If SELLER’s personnel attend BUYER’S site, facilities or other premises, SELLER’s personnel shall be appropriately qualified, skilled and experienced in their respective trades or occupations. BUYER may require SELLER to remove (or cause to be removed) any person employed on the site, facilities or premises, who in the BUYER’s opinion:

  • persists in any misconduct or lack of care;
  • carries out duties incompetently or negligently;
  • fails to conform with any provisions of this Agreement; or
  • persists in any conduct which is prejudicial to safety, health or the protection of the environment

At the BUYER’s request, the SELLER shall appoint a suitable replacement person.

16.   QUALITY WARRANTY

16.1   SELLER shall ensure that the goods comply with standards of good workmanship, the Purchase Order specifications and applicable laws and regulations. SELLER undertakes free of charge to repair all defects caused by faults in construction, materials or production, during a period of at least twelve months from the date of successful commissioning at the shipyard or eighteen months from the Ex-Works date of dispatch of the goods by SELLER, whichever is earlier.Ifthe goodsare not suitable for the intended purpose for a period owing to SELLER's default the warranty period shall be prolongedfor a period corresponding to the time it has not been possible to use the goods for their intended purpose. If stated in the Purchase Order, SELLER shall be liable under a performance guarantee to correct and satisfy the requirements stated in the Purchase Order.

16.1.1     Parts which are replaced/repairedbythe above warranty provisions shall have a renewed warranty period equal to the original warranty period.

16.1.2     SELLER undertakes under the above warranty that the goods shall at SELLER’s cost be rectified to comply with the Purchase Order or replaced by new goodsas soon as possible and in any event no later than 14 days, or any other duration agreed by BUYER, after receipt of notice from BUYER.      

17.    INSURANCE AND LIABILITY

17.1    SELLER agrees to maintain in full force and effect at all times while it has any obligations remaining under this Agreement, policies of insurance written as primary coverage and not contributing with or in excess of any coverage which BUYER may carry.  These policies will be issued by an insurance carrier acceptable to BUYER with a Best's rating of at least A, X, or S&P rating of A or Moody’s rating of A1, A2, A3, which affords the following:

  • Commercial General Liability Insurance in US or equivalent civil or public liability including coverage for Bodily Injury, Property Damage, Personal Injury, Advertising injury, Contractual Liability, Products and Completed Operations and shall cover all liability from premises, operations, independent contractors, products-completed operations, in an amount not less than $1,000,000 per occurrence with worldwide coverage territory.  Products and Completed operations coverage will be continued for two years following date of acceptance by BUYER. A claims made policy is not permitted. If such Commercial General Liability insurance contains a general aggregate limit, it shall apply separately to the job/project;
  • Local Business Automobile Liability Insurance, including Owned, Non-owned and Hired Car coverage in an amount not less than $1,000,000 per occurrence, Combined Single Limit for Bodily Injury and Property Damage. If SELLER is operating vehicle(s) in US, Business Automobile Liability Insurance in US, including Owned, Non-owned and Hired Car coverage in an amount not less than $1,000,000 per occurrence, Combined Single Limit for Bodily Injury and Property Damage.  Business Automobile Liability Insurance will be waived if SELLER represents and warrants that SELLER personnel, who are renting vehicle in the United States in order to perform the service will purchase $1,000,000 of additional third party automobile liability insurance from the rental car company for each and every rental vehicle and such insurance will provide coverage for all drivers of those rental vehicles;
  • Workers’ Compensation Insurance or equivalent in statutory amounts in the country of origin or country of hire providing work related injury medical coverage for employees and the coverage to include employees assigned to work in the United States.  Employers Liability insurance in the amount of One Million Dollars ($1,000,000).  
  • Umbrella Excess Liability Insurance in an amount not less than $1,000,000 per occurrence, Combined Single Limit. (Note: The amount or need for Umbrella should be related to the size and scope of the project, activities or risk involved.   The Umbrella requirement can be waived if the Commercial Liability Policy provides $2 million in limits).   
  • Crime/Employee Dishonesty Insurance in an amount not less than $500,000, with an endorsement providing third party coverage including Panasonic Corporation of North America as a loss payee.
  • Professional Liability Insurance in an amount not less than $1,000,000 per occurrence providing coverage for errors, omissions, and including personal injury and advertising injury;  
  • If the Agreement concerns cloud services or similar, Network Security and Privacy Liability (“Cyber”) Insurance in an amount not less than $1,000,000 per claim and annual aggregate, covering network and privacy risks including coverage for unauthorized access, failure of security, breach of privacy perils, wrongful access and/or disclosure of confidential and/or personally identifiable information, including personal health information, as well as notification costs and regulatory defense associated with a security failure or breach of privacy. Such insurance shall be maintained in force at all times during the term of the agreement and for a period of 1 year thereafter for services completed during the term of the agreement; and
  • All Risk Property Insurance to insure physical loss or damage including earthquake, flood, theft and mysterious disappearances of BUYER property, no matter where stored or located or other property in SELLER’s care, custody and control.  SELLER will name BUYER as loss payee.

17.2     SELLER agrees to deliver to BUYER, within ten (10) days of the date of this agreement and annually thereafter, Certificates of Insurance evidencing the above coverage’s with limits not less than those specified above.  Such Certificates will confirm that the General Liability and Automobile Liability policy has been endorsed to name BUYER, its officers, directors and employees as additional insured and contain a Waiver of Subrogation under the Workers’ Compensation, Business Automobile, Commercial General Liability in favor of BUYER. Further, all Certificates shall expressly provide that not less than thirty (30) days prior written notice be given BUYER in the event of a material alteration to or cancellation of the coverage’s evidenced by such certificates with no disclaimer.  The limits of insurance required shall not limit SELLER's liability under the Indemnity provision.  Failure by BUYER to receive or request such Certificates does not represent a waiver of the requirements for insurance coverage noted above. If sub-contractors are utilized, SELLER agrees to require the sub-contractor/vendor(s) to maintain and provide BUYER with evidence of the insurance coverage required above.  No subcontracts) will be allowed on the work site until acceptable Certificates of Insurance are filed with BUYER.

17.3     SELLER shall defend, indemnify, and hold BUYER harmless against all losses, liabilities, costs, and expenses (including, without limitation, BUYER’s costs of testing and inspection, court costs and reasonable attorney fees) because of claims or injuries to persons or damage to property based in whole or in part upon any act or omission of SELLER, its agents, employees and suppliers or as a consequence of any breach of SELLER’s warranties.Further, SELLER agrees to defend, indemnify, and hold BUYER harmless against all losses, liabilities, costs and expenses (including, without limitation, BUYER’s costs of testing and inspection, court costs and reasonable attorney’s fees) incurred by BUYER in connection with or related to any recall, inspection, testing, replacement or correction of the goods or any part or equipment into which the goods are incorporated, which results from or is related to, in whole or in part, a defect or alleged defect in the goods.On BUYER’s request, SELLER shall furnish BUYER with insurance certification from SELLER’s insurance carrier showing that SELLER has comprehensive general liability insurance coverage, including products liability coverage, currently in force in an amount of not less than US$1,000,000 combined single limit bodily injury and property damage. Such certification shall also contain a vendor's endorsement showing BUYER as an additional insured vendor under SELLER’s insurance policies and shall provide for thirty  days prior written noticeto BUYER from SELLER's insurance carrier in the event of cancellation or termination of such coverage. The purchase of such insurance coverage or the furnishing of such certification shall not be deemed instead ofSELLER's liability hereunder, nor shall it in any way modify SELLER’s indemnification of BUYER. SELLER may not settle or otherwise dispose of any indemnified claim without BUYER’s prior written consent.

17.4     BUYER’S  TOTAL LIABILITY  ARISING  OUT  OF  OR RELATING TO THE AGREEMENT, REGARDLESS OF THE LEGAL THEORY UNDERLYING  SUCH  CLAIM, WILL  NOT  EXCEED THE  TOTAL AMOUNT  OF PAID  INVOICES  UNDER THE AGREEMENT  IN THE  12 MONTHS PRECEDING A CLAIM. BUYER WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL OR SIMILAR DAMAGES OF ANY KIND ARISING OF OR IN CONNECTION WITH THE AGREEMENT.FORCE MAJEURE

17.5      Shipment and delivery date(s) specified are of the essence of the Purchase Order. However, SELLER shall not be liable for delays in manufacture or delivery of goods and services, and BUYER shall not be liable to accept any part of such goods and services to the extent that such delays are due to causes beyond the reasonable control of the party (BUYER or SELLER) affected thereby, such as but not limited to acts of God, acts of civil or military authorities, fires, strikes, lockouts, floods, epidemics, war or riot, provided that the party affected thereby promptly notifies the other party of such event and uses its best efforts to remedy the situation, and, provided further, that in the case of any such event affecting SELLER, SELLER shall at the request of BUYER, allocate all available production, inventories and deliveries to BUYER.

18.     RIGHT TO INFORMATION

18.1    Upon request, BUYER shall be entitled to obtain all necessary information from SELLER as stated under the Purchase Order such as,progress reports, information relating to SELLER’ssuppliers, etc.

18.2    SELLER shall permit BUYER or BUYER's clients or suppliers to carry out such inspections as BUYER deems to be necessary. Inspectionscarried out by the BUYER shall not relieve the SELLER of its contractual responsibilities.

19.     OWNERSHIP

19.1    Proprietary rights to the goods, or parts of the goods, together with the technical documentation to be supplied by SELLER according to the Purchase Order passes to the BUYER on payment.

19.2    All drawings, specifications and other technical documentation which is transmitted by BUYER to SELLER shall remain the property of BUYER and shall not be copied or disclosed to any third party without the prior written consent of BUYER.

20.   INTELLECTUAL PROPERTY

20.1   SELLER warrants that Seller warrants that (a) any goods, services, or documentation delivered pursuant to this Agreement, (b) the use of any such good, service, or documentation separately or in any combination, and (c) any Seller intellectual property shall not conflict with, misappropriate, infringe, or violate the rights including, without limitation, any property or any patent, copyright, trademark or other intellectual property rights of any person or entity.

20.2    SELLER shall defend, indemnify, and hold BUYER harmless against all losses and liabilities arising out of or related to claims by third parties (including, without limitation, court costs and attorney's fees) in relation toany patent or intellectual property infringement by SELLER. SELLER may not settle or otherwise dispose of any indemnified claim without BUYER’s prior written consent.

21.   GOVERNING LAW AND DISPUTES

21.1    This Agreement is governed by and construed in accordance withthe laws of BUYER’s principleplace of business. To avoid any doubt, BUYER’s jurisdiction of formation (e.g., country of incorporation) or registered address for services of process do not determine where BUYER is basedfor the purposes ofthis section. BUYER’s principleplaces of business include:

Americas. If BUYER is based in North America, South America, or Central America and Mexico, all claims (contract, tort, or otherwise) arising out of or relating to any Agreements will be governed by and construed in accordance with the laws of the state of New York, excluding any choice of law rule thereof that would direct the application of the laws of another jurisdiction.SELLER agrees that state and federal courts in New York will have exclusive jurisdiction aboutany proceedings arising out of or aboutany agreement initiated by BUYER. BUYER will have the right to initiateany proceedings arising out of or aboutany Agreement in any court having jurisdiction.

Europe Middle-East Africa. If BUYER is based in Europe, Middle East, Or Africa, all claims (contract, tort, or otherwise) arising out of or relating to any agreements will be governed by the and construed in accordance in accordance with the laws of England and Wales, excluding any choice of law rule thereof that would direct the application of the laws of another jurisdiction.SELLER agrees that English courts will have exclusive jurisdiction aboutany proceedings arising out of or aboutany agreement initiated by BUYER. BUYER will have the right to initiateany proceedings arising out of or aboutany Agreement in any court having jurisdiction.

Australia Pacific. If BUYER is based in Australia, New Zealand, or elsewhere in the Asia Pacific region, all claims (contract, tort, or otherwise) arising out of or relating to any agreements will be governed by the and construed in accordance in accordance with the laws of Western Australia, excluding any choice of law rule thereof that would direct the application of the laws of another jurisdiction.SELLER agrees that Western Australian courts will have exclusive jurisdiction overany proceedings arising out of or aboutany agreement initiated by BUYER. BUYER will have the right to initiateany proceedings arising out of or aboutany Agreement in any court having jurisdiction.

22.2     In the event of any dispute, claim, question, or disagreement arising from or relating to any Purchase Order or the breach thereof, the parties shall use reasonable efforts to settle the dispute, claim, question, or disagreement through a meeting of executives of each partywithout legal counsel present. Such meeting must occur within thirty days of receipt of notice of such dispute, claim, question, or disagreement. Such meetingmay occurvia telephone if both parties agree. The parties shall memorialize the results of such meeting in writing.

22.     CONFIDENTIALITY

22.1    Either party (“Disclosing Party”) may disclose its confidential or proprietary information (“Confidential Information”) to facilitate performance of the Agreement. The party receiving such information (“Receiving Party”) agrees (1) not to disclose the Confidential Information to anyone other than those of its employees (or those of BUYER’S affiliates) with a need to know the same, except as the Disclosing Party may otherwise agree in writing; (2) to use the same degree of care as it uses to protect its own confidential information (but in no case less than reasonable care) in protecting the Disclosing Party’s Confidential Information; (3) not to copy or reverse engineer any Confidential Information disclosed under the Agreement; (4) not to remove any ownership or confidentiality notice contained within the Confidential Information; (5) to promptly report to the Disclosing Party any actual or suspected breach of this Article; and (6) to take all reasonable steps requested by the Disclosing Party to prevent, control, or remedy any breach of the Agreement.

22.2    The obligations under the Agreement shall not extend to Confidential Information that the Receiving Party can demonstrate via written records:

a.) was in the public domain at the time it was disclosed; or

b.) becomes part of the public domain at no fault of the Receiving Party including, without limitation to disclosure in a U.S. or foreign patent; or

c.) was known to the Receiving Party at the time of disclosure; or

d.) is independently developed by the Receiving Party’s employees who had no access to the Confidential Information; or

e.) is received from a third party not having confidentiality obligations to the Disclosing Party; or

f.) is disclosed by the Receiving Party pursuant to a judicial order, a requirement of a governmental agency, or by operation of law, provided that the Receiving Party gives the Disclosing Party timely notice of such order or requirement; or

g.) is approved for release upon the Disclosing Party’s prior written consent.

22.3     Receiving Party’s confidentiality obligations under the Agreement shall survive for a period of sixty months following termination of the Agreement.

22.4     Confidential Information is provided “AS IS.”

22.5     The parties understand that by disclosing the Confidential Information to the Receiving Party, the Disclosing Party does not grant any express, implied, nor other licensing right to use the Confidential Information except as necessary to perform Receiving Party’s duties under the Agreement.

22.6     The Receiving Party shall comply with all laws, rules, and regulations applicable to the export of the Confidential Information. Furthermore, the Receiving Party shall not export nor re-export such Confidential Information without any applicable approval or license required under such laws, rules, and regulations.

22.7     Upon the written request of the Disclosing Party, the Receiving Party shall return or destroy all Confidential Information, including all notes and analyses created from information contained in the Confidential Information. Furthermore, the Receiving Party shall provide the Disclosing Party with a written statement certifying that the Confidential Information has been returned or destroyed. Notwithstanding the above, the Receiving Party may retain one copy of the Disclosing Party’s Confidential Information in a secure location within the Receiving Party’s legal department solely for evidentiary purposes. Such copy shall remain expressly subject to the provisions of the Agreement.

23.     CLAIMS AND CONTRA-CHARGES

23.1     Save where otherwise expressly provided otherwise in the Agreement, all claimsby the SELLER upon the BUYER for costs, damages, price variation, extensions of time ora financial nature, however,expressed, shall be notified in writing not later than thirty calendar  days after the circumstance or event giving rise to the claim unless such claim could not be discovered at the time of such circumstances or event through reasonable due diligence, in which case notice must be given within thirty calendar days after the notifying party becomes aware of such claim. The notice shall givereasonable details of the claimand full details of the claimshall be providedwithin a further fourteen days from the date of the notice.

23.2     The details shall specify the relevant clause or another basisof the claimand shall include substantiation of the amount andextension to which SELLER considers itself to be entitled to relating to the Agreement. Compliance with this clause shall be a condition precedent to SELLER’S entitlement to any claim.

23.3    If BUYER considers itself to be entitled to any payment under any clauseof this Agreement, BUYER shall give notice and details to SELLER. The notice shall be given as soon as practicable after BUYER becomes aware of the event or circumstances giving rise to the claim.

23.4     The details shall specify the relevant clause or another basisof the claimand shall include substantiation of the amount to which BUYER considers itself to be entitledrelating to this Agreement.

23.5    In respect of BUYER’s entitlement under Clause 24.3, BUYER may deduct this amount from any monies due, or to become due, to the SELLER. Also, BUYER shall be entitled to deduct from moniesdue, or to become due to SELLER, all costs, expenses,and damages for which BUYER may become liable to third parties because of any act, omission or default of SELLER under this Agreement

24.     COMPLIANCE

24.1    Export Controls & Sanctioned Countries: Company acknowledges and agrees to comply with all U.S. export control laws and any other applicable export/import control laws. Without limiting the foregoing, in no instance may Services be used in or Equipment imported into the following countries without the express written consent of BUYER, which will only be provided upon a showing to BUYER’s discretionary satisfaction that the proposed use or importation is licensed or otherwise authorized by the applicable U.S. government authority: Cuba, Iran, Syria, Sudan, and North Korea.

24.2    Privacy: SELLER warrants that SELLER will obtain, whenever required under applicable law, legally binding, effective, and transferable consent sufficient for collection and processing of information that can, either alone or in combination with other information, be used to identify an individual (“Personal Data”) by BUYER in conjunction with the Network Services provided hereunder and subject to all other terms governing the handling of Personal Data as set forth in the Agreement. SELLER and BUYER agree that (a) SELLER will transfer the consent to BUYER, as necessary, (b) consent obtained in accordance with this provision shall not exceed the scope and duration necessary to complete the performance under the Agreement, and (c) while performing the Agreement, BUYER will not exceed the limitations of the consent.

24.3    Legal & Anti-Corruption Compliance: 

24.3.1             Understanding of the Foreign Corrupt Practices Act and Other Applicable Anti-Corruption and Anti-Bribery Laws:SELLER and its officers, directors, employees, agents, parents, direct or indirect subsidiaries or joint ventures (“Covered Representatives”) acknowledge BUYER and its employees, officers, directors and representatives are subject to the U.S. Foreign Corrupt Practices Act (the “FCPA”), as well as other similar state, national, and international anti-corruption and anti-bribery laws (these laws, together with the FCPA are collectively referred to as “Anti-Corruption Laws”).  

24.3.2             The Anti-Corruption Laws makes it unlawful for BUYER (or anyone acting on its behalf) to offer, pay, promise to pay, or authorize the payment of any money, gift, or anything of value including, without limitation, bribes, kickbacks, entertainment, or any benefit to any Government Official (defined below) or to an intermediary for payment to any Government Official for the purpose of obtaining or retaining business or securing any improper advantage for PAC. “Government Official” means any officer or employee of a government including, without limitation, any federal, regional or local department, agency, corporation or instrumentality owned or controlled by the government, any official of a political party, including immediate family members or nominees of such officials, any official or employee of a public international organization (e.g., the United Nations or World Bank), any person acting in an official capacity for or on behalf of such entities, or any candidate for political office.

24.3.3             SELLER represents that it has read and understands the Anti-Corruption Laws, BUYER’s Business Partner Policy, and other relevant BUYER policies that impose obligations on the SELLER and all Covered Representatives in connection with this Agreement.

24.3.4             SELLER hereby certifies (and agrees to confirm these certifications to BUYER in writing at BUYER’s reasonable request) that (i) it understands the Anti-Corruption Laws and (ii) neither SELLER nor its Covered Representatives has paid or will pay, offered or will offer to pay, or given or will give anything of value to any (a) Government Official or to any other person with the knowledge that the payment, promise, or gift, in whole or in part, would be passed on to a Government Official or (b) any existing or prospective customer (whether or not owned or controlled by a government) in order to influence an official act or decision that would assist BUYER or SELLER in securing improper advantage or in obtaining or retaining business or directing business to any other person or entity, and (iii) SELLER and its Covered Representatives will otherwise comply with all Anti-Corruption Laws, BUYER’s Business Partner Policy, and relevant BUYER policies imposing obligations on the SELLER in connection with this Agreement. SELLER acknowledges that no employee, officer, or other representative of BUYER is authorized to waive SELLER’s compliance within this Paragraph.

24.3.5             Upon reasonable belief that SELLER has violated any of the warranties or agreements contained herein regarding compliance with the Anti-Corruption Laws, BUYER may access to and the right to audit and examine all records and other material relating to the Agreement  (“Records”). SELLER warrants that it will maintain complete and accurate Records for a period of five years after the completion of services. BUYER or, at BUYER’s discretion, a third party representative may, free of charge, audit SELLER’s Records.  Any such representative must sign a non-disclosure agreement at least as restrictive as the confidentiality terms of the Agreement before participating in any such audit.  BUYER shall bear the cost of such an audit, except where the audit reveals breaches of the Agreement by BUYER.  The audit rights provided herein shall survive any termination or expiration of this Agreement.

24.4    Violations: If BUYER reasonably believes that SELLER has violated any term in this “Compliance” section, including, without limitation, investigation of SELLER by any law enforcement or regulatory agency, BUYER may upon immediately suspend Service or payment or terminate the Agreement or any portion thereof without liability.

25        GENERAL

25.1     The failure of BUYER to insist on the performance of any of the terms hereof, or to exercise any right or privilege hereunder, or BUYER’s waiver of any breaches by SELLER hereof, shall not thereafter waive any such terms, conditions, rights or privileges that BUYER may have hereunder.

25.2     All of the terms and conditions hereof shall apply to additional quantities of products or services ordered by BUYER except to the extent covered by a new agreement or purchase order.

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