Unless otherwise agreed in writing by a duly authorized Seller representative, Products sold hereunder are not intended for use in connection with any nuclear facility or activity, military application, life support application, or medical device. If so used and any damage, injury or contamination occurs, Seller disclaims any responsibility of every kind, and Buyer shall indemnify Seller from any such damage, injury or contamination whatsoever arising out of any such use, including such damage, injury or contamination arising out of the Buyer's negligence. Seller also disclaims any responsibility and Buyer shall indemnify Seller from any and all liability or any loss or damage or judgment whatsoever arising out of any unauthorized modification or adaptation of the Product sold hereunder and the installation of any device, instrument or equipment or part thereof in or on the Products sold hereunder, the use or combination of which has not been approved by Seller.
Buyer agrees to comply fully with all export and re-export controls imposed on tangible and intangible property provided by Seller by any state, country or organization of nations within those jurisdictions in which Buyer operates or does business. Without limiting the foregoing, with respect to its exportation or re-exportation of any products or data from the United States, Buyer agrees not to export or permit exportation outside of the United States without first
a) obtaining any required written permission to do so from the
United States Office of Export Administration and other
appropriate governmental agencies of the United States,
b) complying fully and strictly with all requirements of any general license exempting the exportation from the requirement for that permission. Buyer agrees that it will not ship, transmit, or otherwise distribute any products, materials, technical data, or any derivative work based on the foregoing to another country in violation of any export controls imposed by U.S. laws or regulations and U.N. recommendations.
Buyer shall keep confidential the manufacturing and business secrets as well as any other proprietary information received from Seller and shall neither directly nor indirectly disclose the same to any third party whomsoever nor publish them in any manner whatsoever nor use them for any other purpose, in particular but without limitation for the reproduction of batteries, systems, components, and parts thereof. If Seller provide information or materials which Seller treats as proprietary or confidential, Buyer agrees to maintain such information in confidence, to take all reasonable precautions to prevent unauthorized disclosure, and to use such information only within the scope for which it was intended, until the information becomes publicly available through no fault of Buyer. Buyer shall be responsible for the compliance of Buyer’s personnel with these provisions. Buyer acknowledges and agrees that due to the unique nature of the confidential information of Seller, there can be no adequate remedy at law for any breach of its obligations hereunder, which breach may result in irreparable harm to Seller, and therefore, that upon any such breach or any threat thereof, Seller shall be entitled to appropriate relief, including injunction, without the requirement of posting a bond, and damages.
Seller may at any time make such changes in design and construction of Products as shall constitute an improvement in the judgment of Seller. Seller may furnish suitable substitutes for materials unobtainable because of priorities or regulations established by governmental authority or non-availability of materials from suppliers. Seller may discontinue or materially modify any of its products by providing Buyer with sixty (60) days advance written notice and will not be liable to Buyer for any damages resulting from such discontinuation or modification.
Any sketches, models or samples submitted by Seller shall remain the property of Seller, and shall be treated as confidential information unless Seller has in writing indicated a contrary intent. No use or disclosure of such sketches, models and samples, or any design or production techniques revealed thereby, shall be made. At the request of the Seller any submitted sketches, models and samples shall be returned immediately by the Buyer to the Seller.
Seller shall not be liable for any damage as a result of any delay or failure to deliver due to any cause beyond Seller’s reasonable control, including, without limitation, any act of Buyer, embargo or other governmental act, regulation or request, fire, accident, strike, slowdown, war, terrorism or threat thereof, riot, delay in transportation, or inability to obtain necessary labor, materials or manufacturing facilities. In the event of any such delay, the date of delivery shall be extended for a period equal to the time lost because of the delay.
In any action or arbitration brought under or in connection with these Terms and Conditions or any related agreement, the prevailing party shall be entitled to recover its actual costs and attorneys’ fees and all other litigation costs, including expert witness fees, and all actual attorneys’ fees and costs incurred in connection with the enforcement of a judgment arising from any action or proceeding.
These Terms and Conditions will be binding upon and inure to the benefit of the parties and their successors and permitted assigns. These Terms and Conditions shall not be assignable or transferable by Buyer in whole or in part, by operation of law or otherwise, without the prior written consent of Seller. Buyer may not resell Product that is not embedded into Buyer’s products under any circumstance without the express written permission from Seller.
Ambiguities, inconsistencies, or conflicts in these Terms and Conditions shall not be strictly construed against the drafter of the language but will be resolved by applying the most reasonable interpretation under the circumstances. Where the context of these Terms and Conditions requires, singular terms shall be considered plural, and plural terms shall be considered singular.
Suspension and Termination
a) Buyer is in default of performance of its obligations towards Seller, or
b) Seller has reasonable doubts with respect to Buyer's performance of its obligations to Seller and Buyer falls to provide to Seller adequate assurance (such as by means of ongoing credit approval) of Buyer's performance before the date of scheduled delivery and in any case within thirty (30) days of Seller's demand for such assurance; or if Buyer becomes insolvent or unable to pay its debts as they mature, or goes into liquidation or any bankruptcy proceeding shall be instituted by or against Buyer or if a trustee, receiver or administrator is appointed for all or a substantial part of the assets of Buyer or if Buyer enters into a deed of arrangement or makes any assignment for the benefit of its creditors, then, without prejudice to any other rights of Seller, Seller may by notice in writing forthwith: