Regal Beloit Terms and Conditions of Sale - Malaysia

ALL QUOTATIONS ARE OFFERED, AND ALL PURCHASE ORDERS ARE ACCEPTED, BY SELLER SUBJECT ONLY TO THESE TERMS AND CONDITIONS.



1. DEFINITIONS:


1.1  “Buyer” means the legal entity to which Seller is selling Products or Services under a Contract.


1.2  “Contract” means the agreement between Buyer and Seller governing the sale of Products and/or Services by Seller to Buyer. These Terms and Conditions,                   the Quotation (if one is issued by Seller), any purchase order acknowledgement (if one is issued by Seller), and Buyer’s purchase order (except to the extent                 that it conflicts with these Terms and Conditions, the Quotation, and/or the order acknowledgement) constitute the Contract.

1.3  “Products” means the equipment, parts, materials, supplies, and other goods that Seller has agreed to supply under the Contract. References in these                           Terms and Conditions to the purchase and sale of Products may mean, where applicable, the licensing of Software loaded on or provided with the Products.

1.4  “Quotation” means Seller’s statement identifying the Products and Services, together with any quantity, price, delivery schedule, and/or other terms                                 and conditions (in addition to or different from these Terms and Conditions), offered by Seller for sale to Buyer. A Quotation that incorporates these Terms                       and Conditions by reference shall be deemed to include these Terms and Conditions, whether or not Seller provides a complete copy of these Terms                               and Conditions to Buyer with the Quotation, with a purchase order acknowledgement, or with an invoice. Where there is a conflict between these Terms                         and Conditions and other provisions of the Quotation, the latter shall control.

1.5  “Services” means the services that Seller has agreed to provide under the Contract.

1.6  “Software” means software loaded on or provided with the Products.

1.7  “Seller” means the Regal entity -- whether Regal Beloit Corporation (“RBC”) or an RBC subsidiary – supplying Products and/or providing Services under                         the Contract.

1.8  “Terms and Conditions” means these “Terms and Conditions of Sale.”

 

 

2. CONTRACT FORMATION:

2.1  No agreement or understanding, oral or written, purporting to modify these Terms and Conditions shall be binding on Seller unless it is made in writing,                           specifically stating that it is a modification of these Terms and Conditions and it is signed by Seller’s authorized representative. No course of dealing, usage of                 trade, or course of performance shall be relevant to explain or supplement any of these Terms and Conditions. If these Terms and Conditions are deemed an                 offer, Buyer’s acceptance of Seller’s offer is expressly limited to acceptance of these Terms and Conditions. Fulfillment of Buyer’s purchase order does not                     constitute acceptance of any of Buyer’s terms and conditions and does not modify or amend these Terms and Conditions. Buyer’s purchase order for the                       purchase of Products and/or for the performance of Services shall constitute Buyer’s assent to these Terms and Conditions. Any terms and conditions                             contained in Buyer’s purchase order or other form of communication from Buyer that are additional to or different from these Terms and Conditions, shall be                   deemed rejected by Seller, unless expressly accepted in writing by Seller’s authorized representative. Alternatively, if these Terms and Conditions are                             deemed  to be a response to, an acceptance of, or a written confirmation of, Buyer’s offer, whether provided in the form of a purchase order or otherwise,                       Seller’s  acceptance is expressly conditioned upon Buyer’s assent to these Terms and Conditions. Buyer’s acceptance of Products tendered to Buyer by                         Seller shall  constitute Buyer’s express assent to all of the terms and conditions contained in these Terms and Conditions. All proposals, negotiations and                       representations,  if any, made prior to or with reference hereto are hereby superseded by these Terms and Conditions. References in this section to “these                     Terms and  Conditions” shall be deemed to mean these Terms and Conditions and Seller’s Quotation if Seller has issued a Quotation.

 


3. ACCEPTANCE OF PURCHASE ORDERS:

3.1  No Buyer purchase order shall be binding on Seller until accepted in writing by Seller, and Seller shall have no liability to Buyer with respect to purchase                         orders that are not accepted. Shipment against a purchase order shall be deemed to constitute Seller’s acceptance thereof, subject to these Terms and                           Conditions. All purchase orders shall be subject to these Terms and Conditions, whether or not the purchase orders so state. Purchase orders accepted by                     Seller may not be cancelled or modified by Buyer without the prior written consent of Seller. In the event Seller has accepted Buyer’s purchase order in                           writing, Buyer may not change its purchase order unless Seller accepts in writing any change(s) requested by Buyer (whereby Seller reserves the right to                       revise the price and delivery schedule).

4. QUOTATIONS:

4.1  Quotations shall expire and shall be void thirty (30) days from date of the Quotation, unless otherwise specified in the Quotation. The Quotation may be                           modified or withdrawn by Seller at any time before Seller’s receipt of Buyer’s conforming acceptance; provided, however, Seller reserves the right upon                           written notice to Buyer to correct any typographical or clerical errors made in any Quotation before or after receipt of Buyer’s conforming acceptance                               (whereby, if exercised by Seller, Seller shall provide Buyer an opportunity to accept or reject Seller’s corrected offer). Prices set forth in Quotations are                             subject to change in accordance with section 5 “PRICES; PRICE CHANGES.”

5. PRICE; PRICE CHANGES:

5.1  Price. The price of Products, Software or Services (“Offerings”) sold pursuant to the Contract shall be as set forth in the Quotation. If price is not specified in                   the Quotation, price shall be based upon Seller’s prices in effect at the time of shipment. Published prices are for Seller’s current Offerings, and are based                     on, in the case of Products, current standard design and construction from standard materials. Variation from current Offerings requires special pricing. Seller                 reserves the right at any time, without notice and without incurring any obligation, to discontinue and withdraw any Offerings from sale, to make changes in                     the design of Offerings, and/or to add improvements to Offerings. Seller reserves the right to discontinue any price advances, discounts, extras and other                       terms and conditions related to price without notice. Unless otherwise provided in the Quotation, price is based on delivery in accordance with section 8                         “DELIVERY; TITLE TRANSFER; RISK OF LOSS/DAMAGE; INSPECTION” and subject always to section 6 "TAXES, DUTIES AND FEES" below. Prices                         include Seller's standard packing.

5.2  Price Changes.

(a)  Seller may change price set forth in a Quotation at any time upon notice to Buyer, except where (i) the Company has expressly stated in the Quotation                             that a price is firm and has expressly stated the period during which the price will be held firm, in which case the price shall remain firm during such                                 period and (ii) where subsubsection (b) below does not apply.

(b)  In response to the following changes increasing Seller’s costs, effective upon notice to Buyer, Seller may change unilaterally price applicable to (i) an                               issued Quotation, even if the Quotation specifies that price is firm and/or (ii) a Contract between the parties: (a) changes in Buyer’s specifications,                                  quantities ordered, shipment arrangements and other Buyer requests; (b) changes in freight rates and other transportation related expenses; (c) changes                        in applicable laws, including, but not limited to, conditions described in Section 6 “TAXES, DUTIES and FEES” below; and (d) changes in Seller’s cost of                        production, such as in the cost of raw materials, components, and/or labor.

5.3  Services. Services prices are based on normal business hours (8 AM to 5 PM Monday through Friday). Overtime and Saturday hours will be billed at one                       and one half (1.5) times the normal business hour hourly rate. Sunday hours will be billed at two (2) times the normal business hours hourly rate; holiday                         hours will be billed at three (3) times the normal business hours hourly rate.

6. TAXES, DUTIES AND FEES:

6.1  Seller shall be responsible for taxes measured on Seller’s net income based upon performance of, or payment for, work under the Contract (“Seller Taxes”).                   Buyer shall be responsible for all other taxes, duties, fees or other charges of any kind (including, but not limited to any manufacturer’s tax, retailers’                               occupation tax, use tax, sales tax, excise tax, duty, custom, inspection or testing fee, value added tax, goods and services tax, sales and service tax, or any                   other tax, fee or charge of any nature whatsoever), and any increase in the same, imposed by any governmental authority against Buyer, Seller or Seller’s                     suppliers and/or contractors, based upon the Contract between Seller and Buyer, and whether related to production, sales, distribution, the delivery of                             Products or Software, the furnishing of Services, or any other element of Seller’s performance under the Contract, or the performance of a Seller supplier or                   contractor in support of the Contract. In the event that Seller, whether directly or indirectly through one or more of its suppliers and/or contractors, is required                   to pay any such tax, fee or charge (including any increase in the amount thereof), regardless whether such tax, fee or charge (or increase in the amount                         thereof) is imposed before or after Seller’s delivery of the Products and/or Buyer’s payment under the Contract, Buyer shall reimburse Seller for the payment                 of such tax, fee or charge (or increase in the amount thereof). Seller may add the amount to be reimbursed to the price of the Product, Software or Service or                 invoice it separately, at Seller’s election. In lieu of such reimbursement, Buyer may provide Seller, at the time the order is submitted, with an exemption                           certificate or other document acceptable to the authority imposing such tax, fee or charge. If Seller’s prices include or are intended to cover any taxes, duties                 or fees (other than Seller Taxes), any increase in such taxes, duties and/or fees shall be the basis for a price adjustment.

7. TERMS OF PAYMENT:

7.1  Terms. Terms of payment are cash in full, without set-off or discount, in Malaysian Ringgits, and by wire transfer, no later than thirty (30) days from date of                        invoice.

7.2  Payment Default. If Buyer defaults in any payment when due, or in the event that any voluntary or involuntary bankruptcy or insolvency proceedings involving                 Buyer are initiated by or against Buyer, then the whole Contract price shall immediately become due and payable upon demand, or Seller, at its option and                     without prejudice to its other lawful remedies, may defer delivery or cancel the Contract. Where delivery is deferred, and Seller does not demand immediate                   payment of the full Contract price, pro-rata payments shall become due as shipments are made.

7.3  Buyer Financial Condition. If, during the period of performance of the Contract, the financial condition of Buyer is determined by Seller not to justify the terms                 of payment specified, Seller may demand full or partial payment in advance before proceeding with the work, or satisfactory security or guarantees that                           invoices will be promptly paid when due, or, at its option, without prejudice to other lawful remedies, may defer delivery or cancel the Contract.

7.4  Delay. If delivery is delayed by Buyer, which delay must be consented to by Seller, Seller may store the Products in accordance with subsection 8.7 “Storage”                 below and Seller may submit a new estimate of cost for completion based on prevailing conditions. Payments shall become due from the date on which                         Seller is prepared to deliver the Products and storage shall be at the Buyer’s risk and expense as provided in subsection 8.7 “Storage” below. If manufacture                 is delayed by Buyer for any cause, a partial payment based upon the proportion of the order completed shall become due from the date on which Seller is                       notified of the delay.

7.5  Late Payment Charge. If any payment owed by Buyer is not paid when due, it shall bear interest, at a rate to be determined by Seller, which shall not exceed                 the maximum rate permitted by law, from the date on which it is due until it is paid.


7.6  Exceptions. Seller may take exception to the payment terms set forth in this section or different terms and conditions shall apply if Seller specifies such                           exception or different terms and conditions in Seller’s Quotation or other notice provided by Seller to Buyer prior to Seller’s receipt of Buyer’s purchase order.

8. DELIVERY; TITLE TRANSFER; RISK OF LOSS/DAMAGE; INSPECTION:

8.1  Delivery – Malaysian Buyer. For sales in Malaysia that do not involve export from Malaysia, Seller shall deliver Products to Buyer EXW Seller’s Malaysia                         point of delivery (Incoterms® 2020). The point of delivery shall be the shipping dock of Seller’s factory, warehouse or other facility that Seller designates as its                 discretion as point of delivery from time to time.

8.2  Sales Involving Exports from Malaysia

(a)  Delivery --Malaysia Buyer; Subsequent Drop Shipment to Location Outside Malaysia For sales, in Malaysia to a Malaysia Buyer, which involve drop                                 shipment at Buyer’s request and/or on Buyer’s behalf, to a location outside Malaysia, Seller shall deliver the Products to Buyer FCA Seller’s Malaysia                             point of delivery (Incoterms® 2020). The point of delivery shall be the shipping dock of Seller’s factory, warehouse or other facility that Seller designates                         at its discretion as its point of delivery from time to time. Buyer is responsible for all transportation charges incurred after delivery of the Products to the                           carrier or Buyer at the point of delivery and shall reimburse Seller for any transit insurance or freight pre-paid for the Products by Seller. Buyer shall bear                         the risk of loss and/or damage in transportation. Buyer is responsible for filing any export documents required for export from Malaysia.

(b)  Delivery – Non-Malaysian Buyer. For sales in the Malaysia to a non-Malaysian Buyer, Seller shall make available Products to Buyer’s freight forwarder                             FCA Seller’s Malaysia point of delivery (Incoterms® 2020). The point of delivery shall be the shipping dock of Seller’s factory, warehouse or other facility                         that Seller designates at its discretion as its point of delivery from time to time. Buyer is responsible for all transportation charges incurred after delivery                           of the Products to the carrier or Buyer at the point of delivery and shall reimburse Seller for any transit insurance or freight pre-paid for the Products by                           Seller. Buyer shall bear the risk of loss and/or damage in transportation. Buyer is responsible for filing any export documents required for export from                               Malaysia.

8.3  Delivery Dates. Delivery dates are approximate, are not guaranteed and are based upon prompt receipt by Seller from Buyer of all necessary shipping and                     other information. Seller may deliver in advance of the delivery schedule. Seller reserves the right to make delivery in installments, with all installments to be                   separately invoiced and paid for by Buyer when due per invoice, without regard to subsequent deliveries. Delivery of the Products to a commercial carrier at                   the shipping point shall constitute delivery to Buyer.

8.4  Title Transfer. Title to Products shall pass to Buyer upon the earlier of delivery of the Products to the freight forwarder/carrier or Buyer at the point of delivery                   in accordance with (i) subsection 8.1, “Delivery – Malaysian Buyer” or (ii) subsection 8.2, “Sales Involving Exports from Malaysia,” above. Subject to                               applicable law, Seller shall retain title to the Products until such time as Seller receives payment in full from Buyer. Title to Software shall not pass to Buyer                     and is subject to the applicable license.

8.5  Risk of Loss/Damage. Risk of loss and/or damage shall pass to Buyer upon delivery in accordance with (i) subsection 8.1 “Delivery – Malaysian Buyer” or (ii)                 subsection 8.2, “Sales Involving Exports from Malaysia,” above.

8.6  Delivery by Seller’s Carrier. Where the parties agree that delivery shall be made at a location other than Seller’s point of delivery, where Seller will deliver                       using its carrier or Seller’s privately owned or leased trucks, unloading at the agreed location shall constitute delivery to Buyer and Seller and Buyer shall                       then agree to modified Incoterms based on the actual point and method of delivery. Freight and handling charges by Seller may not reflect actual freight                         charges prepaid to the carrier by Seller due to incentive discounts earned by Seller based upon Seller’s aggregate volume of freight tendered to a carrier or                   when a carrier must be used which charges a rate which is different than the rate upon which Seller’s freight and handling charges were based. When                             shipments are delivered in Seller’s privately owned or leased trucks, Buyer will be charged an amount approximating the prevailing common carrier rate.

8.7  Storage. In the event that Buyer is unable to accept or wrongfully rejects delivery of the Products at time of delivery, Seller shall invoice Buyer for the full                         purchase price as if shipment had been made and: (i) if Seller is able to store such Products in its own facilities, Buyer will pay Seller the reasonable handling                 and storage charges for the period of such storage, or (ii) if Seller is unable to store such goods at its own facility, Seller reserves the right to arrange                               handling and storage in a suitable bonded warehouse for Buyer at Buyer's expense. In cases where handling and storage become necessary, it shall be                         Buyer's responsibility to notify Seller when shipment is to be made. Seller will make necessary arrangements for shipment at Buyer’s expense.

8.8  Overruns. Buyer agrees to accept overruns of up to ten percent (10%) of the quantity of Products ordered in Buyer’s purchase order on “made-to-order”                         Products. Any such additional Products shall be priced at the price charged for the specific quantity ordered.

8.9  Inspection. Buyer shall inspect and accept or reject the Products delivered pursuant to the Contract promptly after Buyer takes custody of such Products. In                   the event the Products do not comply with the applicable specifications, Buyer shall notify Seller of such non-compliance and Seller shall have a reasonable                   opportunity to correct any such non-compliance. Buyer shall be deemed to have accepted any Products delivered under the Contract and to have waived any                 such non-compliance in the event Seller does not receive such notification from Buyer within fifteen (15) days after Buyer takes custody thereof.

9. EXCUSABLE DELAYS; FORCE MAJEURE:

9.1  Excuse of Performance. Seller shall not be deemed in breach of the Contract or be liable to the Buyer in any way (whether for any ordinary, incidental, or                       consequential loss or damage) as a result of Seller’s delay in or failure of delivery, or installation of Products or performance of Services due to (i) any cause                   beyond Seller’s reasonable control, (ii) an act of God, act of Buyer, embargo or other government act, authority, regulation or request, fire, theft, accident,                       strike, slowdown or other labor disturbance, war, armed conflict, act or threat of terrorism, riot, epidemic, delay in transportation, or (iii) inability to obtain                         necessary labor, materials, components, or facilities. Should any of the aforementioned events occur, Seller, at its option, may terminate Buyer’s order with                     respect to any undelivered Products or incomplete Services or extend the delivery date for a period equal to the time lost because of delay. Notice of such                     election shall be given promptly to Buyer. In the event Seller elects to so terminate the Contract, Seller shall be released of and from all liability for failure to                     deliver the Products or to perform the Services, including, but not limited to, any and all claims on behalf of Buyer for lost profits, or any other claim of any                       nature which Buyer might have. If shipping or progress of the work is delayed or interrupted by Buyer, directly or indirectly, Buyer shall pay Seller for all                           additional charges resulting therefrom.

9.2  Allocation. If Seller determines that its ability to meet the demand for products, including the Products, or to obtain labor, materials, components or facilities is                 hindered, limited or made impracticable due to causes set forth in subsection 9.1 “Excuse of Performance” above, Seller may allocate its available supply of                   products (without obligation to acquire additional or other supplies of any such products), including the Products, among itself and its purchasers on such                       basis as Seller determines to be equitable without liability for any failure of performance which may result therefrom.


10. LIMITED WARRANTY.

10.1  Scope and Period.

(a)  Products. Seller warrants that the Products shall be delivered free from defects in material and workmanship. This warranty shall expire twelve (12)                                months from date of delivery under subsections 8.1 or 8.2, as applicable.

(b)  Repaired and/or Replaced Products and/or Parts of Products. Seller warrants that the repaired or replaced Products or parts of Products shall be                                    delivered free from defects in material and workmanship. In the case of repaired or replaced Products or parts of Products comprising warranty remedies                        for Products, this warranty shall expire upon expiration of the warranty period applicable to the Products originally supplied by Seller. In the case of other                        repaired or replaced Products or parts of Products, this warranty shall expire twelve (12) months from the date of repair of the Products or parts of the                            Products.

(c)  Services. Seller warrants that the Services shall be performed in a competent and diligent manner in accordance with any mutually agreed specification.                        This warranty shall expire ninety (90) days from the date of completion of such Services.

(d)  Software. Seller warrants that the Software shall execute, at time of delivery, in accordance with the specification agreed upon in a written and signed                            agreement by Buyer (as licensee) and Seller (as licensor) when properly installed in the Products. Firmware embedded in the Products will, at the time of                        delivery, execute Seller’s programming instructions. The warranty shall expire six (6) months from date of manufacture of the first Product in which the                           Software is loaded.

(e)  Applicability. This warranty shall apply to any Products and/or Software bought, acquired, and/or used by an entity that, or person who, acquires the                                Products and/or Software from Buyer (a “Transferee”), except that any claim made against Seller pursuant to this warranty shall be made by Buyer only.                          Seller shall not be bound by this section to satisfy a claim under this section made against Seller by a Transferee, whether such Transferee is a direct or                          indirect Transferee of Buyer. Buyer shall provide any Transferee of a Product or Software written conspicuous notice of this section and section 11                                  “LIMITATIONS OF REMEDY AND LIABILITY” hereof.

(f)  Exceptions. The duration of the warranty of certain Products may differ from the warranty duration set forth in subsection 10.1 “Scope and Period.” Buyer                       must consult the applicable current Seller product catalog or internet site or Seller directly to confirm the applicable warranty period.

10.2  Remedies.

(a)  Products. If, prior to expiration of the warranty period set forth in subsection 10.1 “Scope and Period,” above, any Products shall be proved to Seller’s                              satisfaction to be defective or nonconforming with the warranty set forth therein, Seller will, at its sole discretion, repair or replace such defective                                      Products or components thereof, Free Carrier (“FCA”) Seller’s factory, warehouse or other facility that Seller designates at its discretion as point of                                  delivery from time to time (Incoterms® 2020), or will refund or provide Buyer with a credit in the amount of the purchase price paid therefor by Buyer, at                          Seller’s sole option. Buyer’s exclusive remedy and Seller’s sole obligation under this warranty shall be limited to such repair or replacement, FCA factory,                        warehouse or other facility that Seller designates at its discretion as point of delivery from time to time (Incoterms® 2020), or refund or credit by Seller,                            and shall be conditioned upon Seller’s receiving written notice of any defect and/or nonconformance within a reasonable period of time, but in no event                            more than thirty (30) days, after it was discovered or by reasonable care should have been discovered. All claims not made in writing and received by                              Seller within such thirty (30) day period shall be deemed waived. In no event shall Seller’s liability for such defective or nonconforming Products exceed                          the purchase price paid by Buyer for such Products. With prior approval from Seller, Buyer shall return the alleged defective Product or part, freight                                  prepaid, for Seller’s inspection, and no other Products shall be returned to any Seller office, factory, warehouse, authorized service center or other                                  facility, without Seller’s written consent.

(b)  Repaired and/or Replacement Products and/or Parts of Products. If prior to the expiration of the applicable warranty period set forth in subsection                                    10.1(b) “Repaired and/or Replaced Products and/or Parts of Products” above, any replacement Products and/or parts of Products shall be proved to                                Seller’s satisfaction to be defective or nonconforming with the warranty set forth therein, the remedy set forth in subsection 10.2(a) “Products” above                                shall apply to such replacement Products and/or parts of Products.

(c)  Services. If, prior to expiration of the warranty period set forth in subsection 10.1(c) “Services,” above, any Services shall be proved to Seller’s                                        satisfaction to be non-conforming with the warranty set forth therein, Seller will re-perform such non-conforming Services. If the Services cannot be re-                            performed, Seller, at its option, shall refund or credit monies paid by Buyer for such non-conforming Services.

(d)  Software. If, prior to expiration of the warranty period set forth in subsection 10.1(d) “Software” above, (i) Buyer provides, in writing, a complete                                        description of the claimed non-conformance in the Software, and (ii) the Software is proven to Seller’s satisfaction to be so non-conforming with the                                warranty set forth therein, Seller will correct the non-conformance by, at its option: (i) modifying or making available to Buyer instructions for modifying                            the program causing such non-conformance, or (ii) making available a corrected or replacement program FCA Seller’s factory, warehouse or other                                  facility that Seller designates at its discretion as point of delivery from time to time (Incoterms® 2020).

10.3  Exclusions - The warranties set forth in this section do not cover:

(a)  shipping expenses to and from Seller’s office, factory, warehouse, authorized service center or other destination designated by Seller for repair or                                     replacement of defective Products or any tax, duty, custom, inspection or testing fee, or any other charge of any nature related thereto;

(b)  costs of removing defective Products from, and/or disassembling, equipment in which Products are assembled or reinstalling Products and/or                                           reassembling such equipment, or testing repaired or replaced Products and/or the equipment;

(c)  field service travel and living costs and expenses;

(d)  Products subjected to abuse, neglect, negligence, misuse, misapplication, accident, damages by circumstances beyond Seller’s control, improper                                   installation (if by anyone other than Seller), improper operation (including, but not limited to, operation in excess of rated capacity or otherwise not in                               accordance with installation, maintenance, or operating instructions or requirements) improper maintenance, improper storage, and/or any other than                             normal use or service;

(e)  Products maintained, serviced, repaired or altered by anyone other than Seller or Seller’s authorized service agencies;

(f)  Products and/or parts not manufactured by Seller; for Products furnished by Seller, but manufactured by others, Seller will assign to Buyer the written                             warranty, if any, of the manufacturer, if assignment is reasonably practicable; however, Seller does not adopt or guarantee or represent that the                                       manufacturer will comply with any of the terms of the warranty of such manufacturer. In no event shall Seller have any liability for Products and/or parts                           not manufactured by Seller;

(g)  any technical advice furnished by Seller without charge to Buyer with respect to use of the Products; all such technical advice, or results obtained, is                              given and accepted at Buyer’s sole risk; and/or

(h)  failures of the Software to be interruption-free or error-free or to meet Buyer’s or any other party’s requirements; and, problems caused by use of the                              Software in conjunction with third-party software, hardware, or products.

10.4  DISCLAIMER: THE FOREGOING WARRANTIES ARE IN LIEU OF ALL OTHER EXPRESS AND IMPLIED WARRANTIES, ARISING BY OPERATION OF LAW OR OTHERWISE. NOTWITHSTANDING THIS, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, BUYER AND SELLER AGREE THAT NO WARRANTIES, CONDITIONS, REPRESENTATIONS, INDEMNITIES OR GUARANTEES IN RESPECT OF THE SALE OF THE PRODUCTS, WHETHER EXPRESS OR IMPLIED, ARISING UNDER THE SALE OF GOODS ACT 1957 SHALL APPLY TO THIS AGREEMENT AND ARE HEREBY EXCLUDED AND DISCLAIMED. NO EMPLOYEE, REPRESENTATIVE, OR AGENT OF SELLER OTHER THAN AN OFFICER OF SELLER IS AUTHORIZED TO ALTER OR MODIFY ANY PROVISION OF THIS SECTION OR TO MAKE ANY GUARANTEE, WARRANTY, OR REPRESENTATION, EXPRESS OR IMPLIED, ORALLY OR IN WRITING, WHICH IS CONTRARY TO THE FOREGOING. Except where Buyer and Seller agree in a written and signed agreement upon the specifications applicable to the Products, Software, and/or Services, any description of the Products, Software, and/or Services, whether in writing or made orally by Seller or Seller’s agents, specifications, samples, models, bulletins, drawings, diagrams, engineering sheets or similar materials used in connection with Buyer’s order are for the sole purpose of identifying the Products and shall not be construed as an express or implied warranty. Any suggestions by Seller or Seller’s agents regarding use, application or suitability of the Products shall not be construed as an express or implied warranty unless confirmed to be such in writing by Seller’s authorized officer. In the event an authorized officer of Seller sets forth any express or implied warranties in writing and (1) the actual operating conditions or other conditions or use differ from those represented by Buyer to Seller or (2) Seller has relied upon any data or information supplied by Buyer to Seller in the selection or design of Products and/or provision of Services and such data or information is inaccurate, any such warranties contained therein which are affected by such conditions shall be null and void.

11.  LIMITATIONS OF REMEDY AND LIABILITY:

11.1  Breach of Warranty Claims. Buyer’s only remedy for breach of any warranty under the Contract, other than the warranty provided under section 14                                   “INTELLECTUAL PROPERTY INDEMNITY,” shall be the applicable remedy set forth in section 10 “LIMITED WARRANTY” above. Seller’s total liability for                       any and all breach of warranty claims under the Contract shall not exceed the purchase price allocable to the Product, Software or Service or part thereof                       which gives rise to the claim.

11.2   Other Claims. Seller’s liability for any claim other than a breach of warranty claim under section 10 “LIMITED WARRANTY,” whether in contract, negligence,                    tort, strict liability, indemnity or otherwise for any loss or damage arising out of, connected with, or resulting from the Contract or the performance or breach                    thereof, or from the design, manufacture, sale, delivery, resale, repair, replacement, installation, technical direction of installation, inspection, operation or                        use of any Products covered by or furnished under the Contract or from Services rendered under the Contract, shall in no case (except as provided in                            section 13 “INDEMNITY” and section 14 “INTELLECTUAL PROPERTY INDEMNITY,” and except to the extent of exclusions and limitations of liability that                      are prohibited by applicable law) exceed five percent (5%) of the purchase price allocable to the Products or part thereof or Services giving rise to the claim.

11.3  Consequential Damage Disclaimer. SELLER SHALL NOT BE LIABLE FOR AND DISCLAIMS ALL CONSEQUENTIAL, INCIDENTAL, CONTINGENT,                             SPECIAL OR PUNITIVE DAMAGES WHATSOEVER. Seller shall not be liable for lost profits or revenues, loss of use of the Products, Software or any                           related equipment or systems, cost of capital, cost of substitute products, cost of facilities or services, business interruption, downtime, shutdown, or                               slowdown costs, any other types of economic loss, penalties, special or punitive damages, and claims of Buyer’s customers for any such damages.

11.4  Expiration of Claims. All claims against Seller arising out of or related to the Contract or the performance or breach thereof shall expire unless made and                         presented to Seller in writing by Buyer before expiration of the applicable warranty period.

11.5   Precedence. The limitations of this section shall apply regardless of whether a claim is based in contract, tort (including negligence), warranty, strict liability,                    intellectual property, or otherwise, and shall take precedence over any conflicting terms and conditions, except where the limitations of liability of such                              conflicting terms limit Seller’s liability further.

12. BUYER RESPONSIBILITIES:

12.1  Buyer shall provide Seller ready access to the site where any Services are to be performed and adequate workspace and facilities to perform the Services.                     Buyer shall not require Seller or its employees, as a condition to site access or otherwise, to further agree or enter into any agreement that waives,                                 releases, indemnifies or otherwise limits any rights or expands any obligations of Seller whatsoever. Any such agreement shall be null and void. Buyer shall                   inform Seller, in writing, at the time of order placement, of any known hazardous substance or condition at the site, including, but not limited to, the presence                   of asbestos or asbestos containing materials, and shall provide Seller with any data reasonably requested by Seller regarding same. Buyer shall appoint a                     representative familiar with the site and the nature of the Services to be performed by Seller to be present at all times that Seller personnel are at the site.                       Seller shall not be liable for any expenses incurred by Buyer in removing, replacing or refurbishing any Buyer equipment or any part of Buyer’s building                           structure that restricts Seller access or ability to perform the Services. Buyer personnel shall cooperate with and provide all assistance reasonably                                   requested by Seller. Seller shall not be liable or responsible for any work performed by Buyer. Seller may suspend or terminate Services, at its sole                                discretion, without liability to Buyer if Buyer fails to meet its obligations hereunder or Seller, in its sole discretion, determines that continuing to provide                            Services to Buyer represents a hazardous condition for Seller’s employees.

13. INDEMNITY:

13.1  Third party claims. Each of Buyer and Seller (each an “Indemnified Party” and an “Indemnifying Party”) shall indemnify the other party from and against                           claims brought by a third party, for bodily injury or damage to the third party’s tangible property, to the extent such injury and/or damage is caused by the                         negligence of the Indemnifying Party, provided that the Indemnified Party gives the Indemnifying Party prompt notice of any such claim and all necessary                       information and assistance so that the Indemnifying Party, at its option, may defend or settle such claim and the Indemnified Party does not take any                               adverse position in connection with such claim. In the event that the injury or damage is caused by joint or concurrent negligence of Buyer and Seller, the                       loss or expense shall be borne by each party in proportion to its degree of negligence. For purposes of Seller’s indemnity obligations hereunder, Products                       shall not be considered third party property and the facility in which a Product or Software is used and/or the Services are performed shall not be considered                   third party property.

13.2  Indemnity by Buyer for Third Party Warranty Claims. If Buyer supplies Products or Services to a third party, uses Products or Services at a facility owned by                   a third party, and/or transfers Products and/or Software to a third party, Buyer shall indemnify and defend Seller from and against any and all claims by, and                   liability to, any such third party in excess of the limitations set forth in sections 10 “LIMITED WARRANTY” and 11 “LIMITATIONS OF REMEDY AND                                 LIABILITIES.” For purposes of this subsection, “Seller” means Seller, its affiliates, suppliers, contractors, licensors and their employees.

14. INTELLECTUAL PROPERTY INDEMNITY:

14.1   Seller warrants that, to the best of its knowledge, Products, Services and/or Software furnished hereunder, and any part thereof, (each a “Delivered Item”)                      shall be delivered free of any rightful claim of any third party not affiliated with Buyer for infringement of any patent granted in Malaysia, any trademark                            registered with the Intellectual Property Corporation of Malaysia and/or any copyright registered with the Intellectual Property Corporation of Malaysia.                            Seller will, at its own expense, defend or settle any suits that may be instituted against Buyer for alleged infringement by the Delivered Item of any patent                        granted in Malaysia, any trademark registered with the Intellectual Property Corporation of Malaysia and/or any copyright registered with the Intellectual                          Property Corporation of Malaysia provided that: (a) such alleged infringement consists of the use of the Delivered Item for (i) any of the purposes for which                      Buyer informed Seller such Delivered Items would be used, or (ii) if Buyer did not so inform Seller, any of the purposes for which Seller reasonably believed                    such Delivered Items would be used; (b) Buyer shall have made all payments for such Delivered Items then due hereunder; (c) Buyer shall give Seller                            immediate notice in writing of any such suit and transmit to Seller immediately upon receipt of all processes and papers served upon Buyer; (d) Buyer does                    not take any position adverse to Seller in connection with such claim; and (e) Buyer shall permit Seller through Seller’s counsel, either in the name of Buyer                    or in the name of Seller, to defend such suit(s) and give all needed information, assistance and authority to enable Seller to do so. In case of a final award                      of damages in any such suit, Seller will pay such award but will not be responsible for any compromise or settlement made without its written consent. In                        case the Delivered Item itself is in such suit held to infringe any valid patent issued in the United States and/or a trademark and/or copyright registered in                        the United States, and its use is enjoined, or in the event of a settlement or compromise approved by Seller which shall preclude future use of the Delivered                    Item, Seller shall, at its own expense and at its sole option, either: (a) procure rights to continue using such Delivered Item; (b) modify the Delivered Item to                    render it non-infringing; (c) replace the Delivered Item with a non-infringing Product and/or Software; or (d) refund the purchase price paid by Buyer for the                      Delivered Item after return of the Delivered Item to Seller (less reasonable depreciation for any period of use). Notwithstanding the foregoing, Seller shall                        not be held responsible for claims of infringement of any patents covering the use of the Delivered Item in combination with other goods or materials not                          furnished by Seller. The foregoing states the entire liability of Seller for intellectual property infringement, and IN NO EVENT SHALL SELLER BE LIABLE                        FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES ATTRIBUTABLE TO AN INTELLECTUAL PROPERTY INFRINGEMENT. Buyer, at its own expense,                    shall defend Seller against, and/or settle, (a) any patent, trademark, copyright or other intellectual property infringement claim pertaining to a Delivered Item                    furnished by Seller to Buyer manufactured in accordance with designs, drawings or other descriptions proposed or furnished by Buyer; and (b) any claim                        against Seller of contributory infringement resulting from the use or resale by Buyer of a Delivered Item sold hereunder. Buyer shall indemnify Seller for any                    award against Seller or settlement by Seller regarding any such claims and attorneys’ fees and defense costs incurred in defense of such claims.

15. OWNERSHIP OF PROPERTY.

15.1  Unless otherwise agreed in a written agreement signed by Seller, all material, equipment, facilities, product samples and special tooling (the meaning of                         which term includes, but is not limited to, tools, jigs, dies, fixtures, molds, patterns, special taps, special gauges, special test equipment, and manufacturing                     aids and replacements thereof), used, made, conceived, developed or acquired by Seller for and/or in connection with the Contract (“Seller Property”), shall                   remain the property of Seller and will vest in and inure to Seller’s sole benefit. The foregoing shall apply notwithstanding any charges therefor which may                         have been or may be imposed by Seller on Buyer. Buyer shall have no claim to, nor ownership interest in, any Seller Property in whatever form and Buyer                     shall return any Seller Property to Seller upon written request from Seller. Buyer shall not give, loan, exhibit, sell or transfer any such property or                                     reproduction thereof to any person, organization or entity who is not authorized by Seller in writing to receive it and shall not enable such person,                                     organization or entity to furnish products or parts therefore or services similar to the Products or Services.

16. OWNERSHIP OF INTELLECTUAL PROPERTY.

16.1  All drawings, know-how, designs, specifications, inventions, devices, developments, processes, software, copyrights, trademarks, patents and applications                     therefore, and other information or intellectual property used, made, conceived, developed or acquired by Seller in connection with the Contract (whether or                   not disclosed or otherwise provided to Buyer by Seller) and all rights therein (collectively, “Seller Intellectual Property”) will remain the property of Seller and                   will vest in and inure to Seller’s sole benefit and will be kept confidential by Buyer in accordance with these terms and conditions. Buyer shall have no claim                   to, nor ownership interest in, any Seller Intellectual Property and any such Seller Intellectual Property, in whatever form and any copies thereof (including                       but not limited to product samples), shall be promptly returned to Seller upon written request from Seller. Buyer acknowledges that no license or rights of                         any sort are granted to Buyer hereunder in respect of any Seller Intellectual Property other than (a) as set forth in section 17 “SOFTWARE LICENSE” below                   and (b) the limited right to use the Seller’s proprietary Products purchased from Seller. Unless specifically provided for and itemized for payment as agreed                     to by Seller, the sale of Products or Services by Seller to Buyer does not include delivery of any design, development or related services associated with                         Seller Intellectual Property. Seller retains all rights, title and interest in drawings, engineering instructions, specifications, and all other written data, if any,                         furnished with the Products and/or Services.

17. SOFTWARE LICENSE:

17.1   License Grant: Notwithstanding any other provision herein to the contrary, Seller shall retain all rights of ownership and title in its respective Software and                        firmware, including all worldwide intellectual property and proprietary rights. Seller grants Buyer a limited, non-exclusive, non-sublicensable, non-                                    transferable (except as defined in subsection 17.2 “Scope of License”), royalty-free, limited license to use the Software and firmware in the Malaysia solely                      for its own internal business purposes and solely in conjunction with (a) the operation of the Products purchased and sold under the Contract and/or other                      product meeting Seller’s specifications; and (b) any other purpose agreed upon in a written and signed agreement between Buyer and Seller. Buyer shall                        only have those rights to Software and firmware explicitly granted herein, and any and all other rights are retained by Seller or its licensors (as described in                    subsection 17.3 “Third Party Software”).

17.2  Scope of License: Except as set forth in subsection 17.3 “Third Party Software,” below, all Software and firmware shall be governed by these Terms and                         Conditions. Upon Seller’s prior written approval, Buyer may make a reasonable number of copies of Software as necessary for backup, configuration,                             installation, and restoration of the Products. Also upon Seller’s prior written approval, Buyer may authorize a third-party contractor or service provider to                         exercise the rights set forth in the preceding sentence solely on Buyer’s behalf and for Buyer’s benefit. Buyer may transfer possession of Software and its                       media and firmware to another party only in conjunction with the transfer of the Products on which the Software and firmware is loaded and only upon                             agreement of the other party to the terms and conditions of the Contract. Upon such transfer, Buyer shall destroy all Buyer’s copies of Software and                                 firmware and related documentation and ensure that any third-party contractor or service provider does the same. All licenses and grants pursuant to the                       Contract shall immediately terminate once Buyer no longer rightfully owns or possesses the Products. Upon Seller’s request, Buyer shall provide Seller with                   written notice of any such transfer providing the name, address, and contact information of the subsequent Buyer within fifteen (15) days of such transfer.

17.3  Third-Party Software: Seller’s Software and firmware may include certain third-party software that is integrated or embedded therein or provided with the                         Software and firmware (“Third-Party Software”). Third-Party Software is included in the term “Software” for purposes of this Contract. Notwithstanding any                       other provision herein to the contrary, each respective third-party licensor shall retain all rights of ownership and title in its Third-Party Software, including all                   worldwide intellectual property and proprietary rights. Buyer’s use of Third-Party Software and firmware shall be governed by these Terms and Conditions                       and the respective third-party licensor’s license terms.

17.4   Use Restrictions: Buyer shall not (a) copy, display, transfer, adapt, modify, or distribute in any form the Software and firmware except as set forth in the                            Contract or in Seller documentation provided by Seller to Buyer with the Software and firmware; (b) reverse engineer, disassemble, decompile, or otherwise                    translate the Software or firmware’s object code, unless expressly permitted by applicable law without the possibility of contractual waiver; or (c) sublicense                    or lease the Software and firmware or any copy thereof except with the transfer of the Products on which the Software and firmware is loaded. Except as                        provided under the terms of Seller’s standard escrow agreement between Seller and Buyer, if applicable, Buyer shall not make available to any party,                              without prior written consent from Seller or its authorized agent, source code for the Software and firmware. Buyer shall not, directly or indirectly, export or                      re-export, or knowingly permit the export or re-export of, the Products, or any technical information about the Products, to any country for which the United                     States Export Administration Act, any regulation thereunder, or any similar United States law or regulation, requires an export license or other United States                   Government approval, unless Buyer obtains the appropriate export license and obtains written approval from Seller.

17.5  Maintenance and Support: Seller may offer to Buyer the option to purchase from Seller annual Software maintenance and support services under the terms                   and conditions of Seller’s then-standard maintenance and support agreement. Buyer may renew this maintenance term at Seller’s then-current                                       maintenance rates. In the event Buyer purchases additional Software licenses, maintenance fees for such licenses shall be prorated to be coterminous with                   Buyer’s existing maintenance period. In no event shall Seller be responsible for providing maintenance services for a period during which maintenance                           coverage is lapsed.

18. CONFIDENTIAL INFORMATION.

18.1  All information furnished or made available by Seller to Buyer in connection with the subject matter of the Contract shall be held in confidence by Buyer.                         Buyer may not use such information or disclose such information to others without Seller’s prior written consent. The obligations in this paragraph will not                       apply to any information which (a) at the time of disclosure was or thereafter becomes, generally available to the public by publication or otherwise through                     no breach by Buyer of any obligation herein, (b) Buyer can show by written records was in Buyer’s possession prior to disclosure by Seller, (c) is legally                           made available to Buyer by or through a third party having no direct or indirect confidentiality obligation to Seller with respect to such information, or (d) is                       required to be disclosed by Buyer in the course of any legal proceedings or by any governmental authority or regulatory body.

19. SECURITY AGREEMENT AND FINANCING STATEMENTS:

19.1  As security for payment of the purchase price under the Contract, Buyer hereby irrevocably grants Seller a security interest in the Products purchased by                       Buyer, together with all accessories, attachments and replacement parts and all substitutions, replacements and proceeds thereof and/or over the Buyer's                       other assets, to secure payment of the purchase price and of all monies which may be due under the Contract. Buyer hereby authorizes Seller to file all                           financing statements, any amendments and continuations thereof, or any other documents necessary or reasonably required, for the perfection and                                 protection of a security interest under applicable law, and to deliver notice to prior holders of security interests, of Seller’s security interest in the Products to                   protect its interest. In particular, the Buyer agrees that the Seller shall retain sole ownership to the Products and the Buyer acknowledges that the Seller's                       ownership rights and claims over the Products shall remain valid until full and final settlement of the price has been made. The Buyer further agrees to                           ensure that its accounts shall record ownership to the Products in the name of the Seller until full and final settlement of the price has been made.


20. INSURANCE:

20.1  Until payment in full of the purchase price, Buyer shall maintain insurance covering all Products sold by Seller to Buyer in such amounts and against such                       risks as is customary by companies engaged in the same or similar business and similarly located, and shall, upon Seller’s request, furnish evidence of                           such insurance satisfactory to Seller.

21. RETURN OF PRODUCTS:

21.1  No Product or part shall be returned to Seller without written authorization and shipping instructions first having been obtained from Seller.

22. ASSIGNMENT AND SUBCONTRACTING:

22.1  Buyer shall not assign, transfer or novate its rights or delegate its duties hereunder, or any interest therein, to any other person, whether by operation of law                   or otherwise, without Seller’s prior written approval. Seller may, without the necessity of obtaining Buyer’s prior written consent, assign, transfer or novate                       the Contract or subcontract the production of all or any portion of the Products and/or performance of the Services.

23. CANCELLATION:

23.1  No purchase order submitted to Seller may be cancelled by Buyer without the prior written consent of Seller, which consent will at all times be conditioned                       on Buyer’s agreement to pay Seller’s cancellation charge. For a finished Product that, in Seller’s judgment, is readily resalable to others, the cancellation                       charge shall be fifteen percent (15%) of the invoice price of the Product. For all other cancellations, the cancellation charge shall amount to all cost and                           expenses incurred by Seller and arising out of or in connection with Buyer’s purchase order plus reasonable profit. In no event shall the cancellation charge                   be less than ten percent (10%) of the invoice price of the Product or more than the invoice price.

24. HIGH-RISK APPLICATION USE DISCLAIMER:

24.1  PRODUCTS AND SERVICES SOLD BY SELLER ARE NOT INTENDED FOR USE IN CONNECTION WITH ANY NUCLEAR FACILITY OR ACTIVITY,                           CRITICAL SAFETY SYSTEM, MEDICAL DEVICE, MILITARY DEVICE, SATELLITE, AVIATION EQUIPMENT, AIR TRAFFIC CONTROL EQUIPMENT, OR                     OTHER HIGH-RISK APPLICATIONS (COLLECTIVELY, “HIGH RISK APPLICATIONS”). SELLER SHALL NOT USE OR PERMIT OTHERS TO USE                                  PRODUCTS OR SERVICES FOR SUCH HIGH-RISK APPLICATIONS WITHOUT SELLER’S PRIOR WRITTEN CONSENT. IF SO USED WITHOUT                              SELLER’S PRIOR WRITTEN CONSENT, SELLER DISCLAIMS ALL LIABILITY FOR ANY DAMAGE, INJURY OR CONTAMINATION, AND BUYER SHALL                    INDEMNIFY AND HOLD SELLER, ITS OFFICERS, AGENTS, EMPLOYEES, SUCCESSORS, ASSIGNS AND CUSTOMERS HARMLESS FROM AND                          AGAINST ANY AND ALL SUCH LIABILITY. SELLER’S CONSENT, IF ANY, WILL BE CONDITIONED UPON ADDITIONAL TERMS AND CONDITIONS                            ACCEPTABLE TO SELLER.

25. GOVERNING LAW; VENUE:

25.1  Governing Law. These Terms and Conditions and the Contract shall be governed by and construed in accordance with the laws of Malaysia. The rights and                   obligations of Seller and Buyer shall not be governed by the provisions of the United Nations Convention on Contracts for the Internal Sale of Goods.

25.2  Venue. Seller and Buyer irrevocably submit to the exclusive jurisdiction of the competent courts located of Kuala Lumpur, Malaysia to settle any disputes or                     claims arising out of or in connection with the Contract, whether on the basis of breach of contract, tort, or otherwise, and Seller and Buyer waive any                             objection based on improper venue or forum non conveniens, for the resolution of any dispute relating to these Terms and Conditions or the Contract.


26. LAWS.


26.1  New or Changed Laws: If Seller's obligations under the Contract will be increased by reason of the making or amendment after the date of Seller's                                   Quotation of any law or any order, regulation or by-law having the force of law that will affect the performance of Seller's obligations under the Contract, the                     Contract price and delivery period will be adjusted accordingly and/or performance of the Contract suspended or terminated, as appropriate, as notified by                     Seller.

26.2  Export and Import Control Laws: Buyer shall comply, in the receipt and use of the Products and the Software, with all applicable import and export control                       laws, regulations, orders and requirements of the jurisdictions in which the Seller and Buyer are established and from which Products and Software are                           provided. Buyer shall not transfer, release, import, or export Products and/or Software in violation of such applicable laws, regulations or other legal                                 requirements. Buyer shall provide a completed end-user certification in a form satisfactory to Seller upon Seller’s request. Buyer agrees that all applicable                       import, export control and sanctions laws, regulations, orders and requirements, as they may be amended from time to time, including without limitation                           those of the United States, the European Union and the jurisdictions in which Seller and Buyer are established or from which Products, Software, Services                     and/or related items may be supplied, and the requirements of any licenses, authorizations, general licenses or license exceptions relating thereto will apply                   to its receipt and use of Products, Software, Services and related items. If Seller or Seller affiliate should fail to receive any necessary or advisable licenses,                   authorizations or approvals, even arising from inaction by any relevant government authority, or if any such licenses, authorizations or approvals are denied                   or revoked, or if there is a change in any applicable laws, regulations, orders or requirements that would prohibit Seller or Seller affiliate from fulfilling the                         Contract, or would in Seller’s reasonable judgment otherwise expose Seller or Seller affiliate to a risk of liability under such laws, regulations, orders or                           requirements if it fulfilled the Contract, Seller and Seller affiliate will be relieved without penalty of all obligations under the Contract. In no event may Buyer                     use, transfer, release, export or reexport any such Products, Software, Services or related items in violation of such applicable laws, regulations, orders or                     requirements or the requirements of any licenses, authorizations or license exceptions relating thereto. In addition, Seller has in place policies not to                               distribute its products for use in certain countries based on applicable laws and regulations, including but not limited to UN, U.S., UK, and European Union                     regulations. This Contract has been entered into on the basis that the Products are not sold, will not be re-sold, made available or in any way used in any                       such country in breach of Seller policies. Seller reserves the right to refuse support of any Products, Software, Services and/or related items that are in                           breach of this section. Any failure by Buyer to comply with this provision and all applicable laws pertaining to the importation, exportation, distribution, sales,                   promotion and marketing of Products, Software, Services and related items will constitute a default giving Seller the right to immediate termination of this                       Contract and/or the right to elect not to recognize the warranties associated with the Products, Software, Services or related items. Buyer shall accept full                       responsibility for any and all civil or criminal liabilities and costs arising from any breaches of those laws and regulations and will defend, indemnify and hold                   Seller harmless from and against any and all fines, damages, levies, costs and judgments which Seller may be required to pay. Buyer represents and                             warrants that it is not a party listed as a specially designated terrorist, specially designated national, and/or blocked person or party which otherwise                               appears on any list maintained by the U.S. Treasury Department Office of Foreign Assets Control, U.S. Commerce Department Bureau of Industry and                           Security, U.S. State Department, EU or UK designated parties lists.

26.3  Compliance with Anti-Bribery Laws: Buyer represents and warrants that it has not and shall not, directly or through any intermediary, pay, give, promise to                       give or offer to give anything of value to a government official or representative, a political party official, a candidate for political office, an officer or employee                   of a public international organization or any other person, individual or entity at the suggestion, request or direction or for the benefit of any of the above-                         described persons and entities for the purposes of inducing such person(s) to use their influence to assist Seller in obtaining or retaining business or to                           benefit Seller or any other person in any way, and will not otherwise breach any applicable anti-bribery legislation, including but not limited to the Foreign                         Corrupt Practices Act of the United States, the UK Bribery Act and the Prevention of Corruption Act of India, each as amended from time to time. Any                             breach of this obligation shall constitute a material breach of the Contract. Any breach of this section shall be grounds for immediate termination of this                           Contract. Buyer shall protect, indemnify and hold harmless Seller and its affiliates from any claim, damages, liabilities, costs, fees and expenses incurred by                   Seller or its affiliates as a result of Buyer’s breach.

27. WAIVER:

27.1  No waiver by Seller of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay                   in exercising, by Seller any right, remedy, power or privilege arising from these Terms and Conditions shall operate or be construed as a waiver thereof; nor                   shall any single or partial exercise by Seller of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise                   of any other right, remedy, power or privilege.

28. ENTIRE AGREEMENT:

28.1  The Contract constitutes the entire agreement between Seller and Buyer relating to the subject matter hereof, and all prior agreements, correspondence,                       discussions and understandings of Seller and Buyer (whether oral or written) are merged herein and superseded hereby.

29. ATTORNEYS’ FEES:

29.1  Buyer agrees to pay all of Seller’s costs and expenses of collection and related litigation, including but not limited to attorneys’ fees and costs.

30. SALVATORY CLAUSE:

30.1  The invalidity, in whole or in part, of any of the provisions of these Terms and Conditions, shall not affect the enforceability of any of the other provisions                           thereof.

31. APPLICABILITY:

31.1  These Terms and Conditions as stated herein are applicable as of the date of publication and until such time as changed by Seller.

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