Supplier Terms & Conditions

All suppliers accepting and fulfilling purchase orders from Industrial Automation Co. agree to the following terms and conditions. 

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Supply Agreement

 

This Supply Agreement (the “Agreement”), dated effective as the date the Purchase Order was generated and approved (the “Effective Date”) is entered into by and between any entity accepting and fulfilling a Purchase Order from Industrial Automation Co. (“Seller”), and Southern Property Consultants, LLC, a North Carolina limited liability company doing business as Industrial Automation Co., with its principal place of business at 544 Pylon Drive, Raleigh, NC 27606 (“Customer/Industrial Automation”, and together with Seller, the “Parties”, and each, a “Party”).

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WHEREAS, Seller is in the business of manufacturing and/or selling certain goods in the ordinary course of its business;

 

WHEREAS, Industrial Automation wishes to purchase certain Goods (as defined below) from Seller; and

 

WHEREAS, Seller desires to manufacture and/or sell the Goods to Industrial Automation.

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NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

 

1. Definitions. Capitalized terms have the meanings set forth or referred to in this Section 1.

 

“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, Controls, is Controlled by, or is under common Control with, such Person.

 

“Background Intellectual Property Rights” means Industrial Automation’s Intellectual Property or Seller’s Intellectual Property, as applicable, except for any Foreground Intellectual Property Rights.

 

“Business Day” means any day except Saturday, Sunday, or any other day on which commercial banks located in North Carolina are authorized or required by Law to be closed for business.

 

“Claim” means any means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise brought against a Person entitled to indemnification under Section 10.

 

“Control” (and with correlative meanings, the terms “Controlled by” and “under common Control with”) means, with respect to any Person, the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of another Person, whether through the ownership or voting securities, by contract, or otherwise.

 

“Defective” means not conforming to the Product Warranty under Section 9.3.

 

“Defective Goods” means goods shipped by Seller to Industrial Automation pursuant to this Agreement that are Defective.

 

“Delivery Date” means the delivery date for Goods ordered hereunder that is set forth in a Purchase Order.

 

“Delivery Location” means the street address for delivery of the Goods specified in the applicable Purchase Order.

  

“Encumbrance” means any charge, claim, community property interest, pledge, condition, equitable interest, lien (statutory or other), option, security interest, mortgage, easement, encroachment, right of way, right of first refusal, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income or exercise of any other attribute of ownership.

 

“Equipment” means, collectively, “equipment” (as that term is defined in UCC Section 9-102(a)(33)) that is used in the manufacture, production, or assembly of Goods by Seller, and all machinery, equipment, Tooling, furnishings, and fixtures (as such terms are defined in UCC Section 9-102) now owned or hereafter acquired by Seller, of any kind, nature or description, as well as all (a) additions to, substitutions for, replacements of and accessions to any of the foregoing items, (b) attachments, components, parts (including spare parts) and accessories installed thereon or affixed thereto, and (c) Intellectual Property Rights in connection with the foregoing.

 

“Foreground Intellectual Property Rights” means any and all of the Intellectual Property Rights developed with respect to, or for incorporation into, the Goods, that are either developed by Industrial Automation alone, by Industrial Automation and Seller jointly or by Seller alone as requested by Industrial Automation in connection with this Agreement.

 

“GAAP” means US generally accepted accounting principles in effect from time to time.

 

“Goods” means the goods identified on the applicable Purchase Order and described in the Specifications.

 

“Governmental Authority” means any federal, state, local or foreign government or political subdivision thereof, or any agency or instrumentality of such government or political subdivision, or any self-regulated organization or other non-governmental regulatory authority or quasi-governmental authority (to the extent that the rules, regulations or orders of such organization or authority have the force of Law), or any arbitrator, court or tribunal of competent jurisdiction.

 

“Industrial Automation Contracts” means all contracts or agreements to which Industrial Automation is a party or to which any of its material assets are bound.

 

“Industrial Automation Parties” means Industrial Automation, its Affiliates, customers, subcontractors and successors and assigns, and each of their respective Representatives.

 

“Industrial Automation’s Intellectual Property” means all Intellectual Property Rights owned by or licensed to Industrial Automation, including all Foreground Intellectual Property Rights and any of Industrial Automation’s Background Intellectual Property Rights used in the design, production, and manufacturing of the Goods.

 

“Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to (a) Patents; (b) Trademarks; (c) internet domain names, whether or not Trademarks, registered by any authorized private registrar or Governmental Authority, web addresses, web pages, website, and URLs; (d) works of authorship, expressions, designs and design registrations, whether or not copyrightable, including copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation; (e) Trade Secrets; (f) semiconductor chips, mask works and the like; and (g) all industrial and other intellectual property rights, and all rights, interests and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the Laws of any jurisdiction throughout in any part of the world.

 

“Law” means any statute, law, ordinance, regulation, rule, code, constitution, treaty, common law, any order, writ, judgment, injunction, decree, stipulation, award, or determination entered by or with any Governmental Authority, or other requirement or rule of law of any Governmental Authority.

 

“Nonconforming Goods” means any goods received by Industrial Automation from Seller that: (a) do not conform to the product identifier listed in the applicable Purchase Order; (b) do not fully conform to the Specifications; (c) on visual inspection, Industrial Automation reasonably determines are otherwise Defective; (d) are counterfeit; or (e) exceed the quantity of Goods ordered by Industrial Automation pursuant to this Agreement or any Purchase Order. Where the context requires, Nonconforming Goods are deemed to be Goods for purposes of this Agreement.

 

“Patents” means all patents (including all reissues, divisionals, provisionals, continuations and continuations-in-part, re-examinations, renewals, substitutions and extensions thereof), patent applications, and other patent rights and any other Governmental Authority-issued indicia of invention ownership (including inventor’s certificates, petty patents, and patent utility models).

 

“Permits” means permits, licenses, franchises, approvals, authorizations, registrations, certificates, variances, and similar rights obtained or required to be obtained, from any Governmental Authority.

 

“Person” means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, Governmental Authority, or any other entity.

 

“Personnel” of a Party means any agents, employees, contractors, or subcontractors engaged or appointed by such Party.

 

“Purchase Order” means Industrial Automation’s purchase order issued to Seller hereunder, which may, among other things, specify items such as (a) the Goods to be purchased; (b) the quantity of each of the Goods ordered; (c) the Delivery Date; (d) the unit Price for each of the Goods to be purchased; (e) the billing address; and (f) the Delivery Location; in each case, including all terms and conditions attached to, or incorporated into, such purchase order, and any Release issued by Industrial Automation to Seller under the Purchase Order. For the avoidance of doubt, any references to Purchase Orders hereunder also include any applicable Releases.

 

“Release” means a document issued by Industrial Automation to Seller pursuant to a Purchase Order that identifies (to the extent not specified in the original Purchase Order) the quantities of Goods constituting Industrial Automation’s requirements or otherwise to be included in a particular order, the Delivery Locations and Requested Delivery Dates for such Goods.

 

“Representatives” means a Party’s Affiliates and each of their respective Personnel, officers, directors, partners, shareholders, attorneys, third-party advisors, successors, and permitted assigns.

 

“Seller Contracts” means all contracts or agreements to which Seller is a party or to which any of its material assets are bound.

 

“Seller Parties” means Seller, its Affiliates, customers (other than Industrial Automation), subcontractors and successors and assigns, and each of their respective Representatives.

 

“Seller’s Intellectual Property” means all Intellectual Property Rights owned by or licensed to Seller, including any of Seller’s Background Intellectual Property Rights used in the design, production, and manufacturing of the Goods.

 

“Specifications” means the standard and uniform specifications for the Goods.

 

“Taxes” means any and all present and future sales, income, stamp, and other taxes, levies, imposts, duties, deductions, charges, fees or withholdings imposed, levied, withheld, or assessed by any Governmental Authority, together with any interest or penalties imposed thereon.

 

“Tooling” means, collectively, all tooling, dies, test and assembly fixtures, gauges, jigs, patterns, casting patterns, cavities, molds, and documentation (including engineering specifications and test reports) used by Seller in connection with its manufacture and sale of the Goods, together with any accessions, attachments, parts, accessories, substitutions, replacements and appurtenances thereto.

 

“Trademarks” means all rights in and to US and foreign trademarks, service marks, trade dress, trade names, brand names, logos, symbols, trade dress, corporate names and domain names, and other similar designations of source, sponsorship, association, or origin, together with the goodwill symbolized by any of the foregoing, in each case whether registered or unregistered and including all registrations and applications for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection in any part of the world.

 

“Trade Secrets” means all inventions, discoveries, trade secrets, business and technical information and know-how, databases, data collections, patent disclosures, and other confidential and proprietary information and all rights therein.

 

“UCC” means the Uniform Commercial Code, as adopted in the State of North Carolina.

 

“US” means the United States of America.

2. Purchase and Sale of Goods.
   • Purchase and Sale. Subject to the terms and conditions of this Agreement, during the Term, Industrial Automation shall purchase Goods from Seller, and Seller shall manufacture and/or sell Goods to Industrial Automation, at the Prices and in the quantities set forth on the applicable Purchase Order. The Parties shall, from time to time, amend the Purchase Order to reflect any agreed revisions to any of the terms described in the foregoing clauses (a)-(d); provided that no such revisions will modify this Agreement or be binding on the Parties unless such revisions have been fully approved in a signed writing by authorized Representatives of both Parties.
   • Terms of Agreement and Industrial Automation’s Purchase Order Prevail; Order of Precedence. The Parties intend for the express terms and conditions contained in this Agreement (including any Schedules and Exhibits hereto) and in any Purchase Order that are consistent with the terms and conditions of this Agreement to exclusively govern and control each of the Parties’ respective rights and obligations regarding the manufacture, purchase, and sale of the Goods, and the Parties’ agreement is expressly limited to such terms and conditions. Notwithstanding the foregoing, if any terms and conditions contained in a Purchase Order conflict with any terms and conditions contained in this Agreement, the applicable term or condition of this Agreement will prevail and such contrary terms will have no force or effect. Except for such contrary terms, the terms and conditions of all Purchase Orders are incorporated by reference into this Agreement for all applicable purposes hereunder. Without limitation of anything contained in this Section 2.2, any additional, contrary, or different terms contained in any Confirmation or any of Seller’s invoices or other communications, and any other attempt to modify, supersede, supplement or otherwise alter this Agreement, are deemed rejected by Industrial Automation and will not modify this Agreement or be binding on the Parties unless such terms have been fully approved in a signed writing by authorized Representatives of both Parties.
   • Quantity. Without limitation of the foregoing, under no circumstances will Industrial Automation be obligated to purchase any quantity of Goods in excess of its actual requirements of the Goods.
3. Ordering Procedure.
   • Purchase Orders. Industrial Automation shall issue Purchase Orders to Seller in written or electronic form. From time to time, Industrial Automation may also issue Releases to Seller. For the avoidance of doubt, Industrial Automation shall only be obligated to purchase from Seller, and Seller shall be obligated to sell to Industrial Automation, the quantities of Goods specified in a Purchase Order (including any related Release).
   • Acceptance, Rejection, and Cancellation of Purchase Orders. Seller shall confirm to Industrial Automation the receipt of each Purchase Order issued hereunder (each, a “Confirmation”) within one (1) business day following Seller’s receipt thereof in electronic form. Each Confirmation must reference Industrial Automation’s Purchase Order number, confirm acceptance of the Purchase Order or, solely if permitted under this Section 3.2, advise Industrial Automation of Seller’s rejection of such Purchase Order, the date of acceptance or rejection, and the basis for rejection, if applicable. If Seller fails to issue a Confirmation within the time set forth in the first sentence of this Section 3.2 or otherwise commences performance under such Purchase Order, Seller will be deemed to have accepted the Purchase Order. Industrial Automation may withdraw any Purchase Order prior to Seller’s acceptance thereof. Seller may only reject a Purchase Order if Seller has sent Industrial Automation a Notice of termination under Section 6.4. Seller may not cancel any previously accepted Purchase Order hereunder. Industrial Automation may only cancel a previously accepted Purchase Order pursuant to the exercise of Industrial Automation’s rights under Section 4.1.
4. Shipment, Delivery, Acceptance, and Inspection.
   • Shipment and Delivery Requirements. Time, quantity, and delivery to the Delivery Location are of the essence under this Agreement. Seller shall procure materials for, fabricate, assemble, pack, mark, and ship Goods strictly in the quantities, by the methods, to the Delivery Locations, and by the Delivery Dates specified in this Agreement or in an applicable Purchase Order or Release. Delivery times will be measured to the time that Goods are actually received at the Delivery Location. If Seller does not comply with any of its delivery obligations under this Section 4, Industrial Automation may, in Industrial Automation’s sole discretion and at Seller’s sole cost and expense, (a) approve a revised Delivery Date, (b) require expedited or premium shipment, or (c) cancel the applicable Purchase Order and obtain similar goods from other sources (and all such Goods will be deemed to have been purchased under this Agreement for purposes of satisfying Industrial Automation’s quantity requirements hereunder). Unless otherwise expressly agreed to by the Parties in writing, Seller may not make partial shipments of Goods to Industrial Automation.
   • Transfer of Title and Risk of Loss.
     • Title to Goods shipped under any Purchase Order passes to Industrial Automation upon the earliest to occur of (i) delivery of the Goods to Industrial Automation, (ii) payment of any portion of the Price for such Goods by Industrial Automation, or (iii) Industrial Automation’s acceptance of the Goods. Title will transfer to Industrial Automation even if Seller has not been paid for such Goods, provided that Industrial Automation will not be relieved of its obligation to pay for Goods in accordance with the terms hereof.
     • Notwithstanding any agreement between Industrial Automation and Seller concerning transfer of title risk of loss to Goods shipped under any Purchase Order passes to Industrial Automation upon receipt and acceptance by Industrial Automation at the Delivery Location, and Seller will bear all risk of loss or damage with respect to Goods until Industrial Automation’s receipt and acceptance of such Goods in accordance with the terms hereof.
   • Packaging and Labeling. Seller shall properly pack, mark, and ship Goods as instructed by Industrial Automation and otherwise in accordance with applicable Law and industry standards, and shall provide Industrial Automation with shipment documentation showing the Purchase Order number, Seller’s identification number for the subject Goods, the quantity of pieces in shipment, the number of cartons or containers in shipment, Seller’s name, the bill of lading number, and the country of origin.
   • Ingredients and Materials Disclosure. Upon Industrial Automation’s request, Seller shall promptly provide to Industrial Automation, in such form and detail as Industrial Automation requests, a list of all ingredients and materials incorporated in the Goods, the amount of such ingredients and materials, and information concerning any changes in or additions to such ingredients and materials.
     • Without limitation of the foregoing, upon Industrial Automation’s written request, Seller shall provide to Industrial Automation all information (in sufficient detail), with written certifications thereof, to enable Industrial Automation to timely comply with all of Industrial Automation’s and Industrial Automation’s customers’ due diligence, disclosure and audit requirements under Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Dodd-Frank Act”) and Rule 13p-1 and Form SD under the Securities Exchange Act of 1934, and all similar, applicable statutes and regulations, including due inquiry of Seller’s supply chain (and certifications by such suppliers) identifying conflict minerals (as defined in Section 1502(e)(4) of the Dodd-Frank Act) contained in each Product and the country of origin of such conflict minerals (or, following due inquiry, why such country of origin cannot be determined).
     • For each shipment of Goods, Seller shall provide Industrial Automation, in writing, sufficient advance warning and notice (in addition to including appropriate labels on Goods, containers, and packing) of any hazardous or restricted material that is an ingredient or a part of the shipment, together with such special handling instructions as may be necessary to advise logistics providers, handlers of the Goods and personnel of how to exercise that measure of care and precaution that will comply with any applicable Laws and prevent bodily injury or property damage in the handling, transportation, processing, use or disposal of the Goods, containers, and packing.
   • Inspection. Goods are subject to Industrial Automation’s inspection and approval or rejection notwithstanding Industrial Automation’s prior receipt of or payment for the Goods. Industrial Automation shall have a reasonable period of time, not to be less than ten (10) business days following delivery of the Goods to the Delivery Location (“Inspection Period”), to inspect all Goods received under this Agreement and to inform Seller, in writing, of Industrial Automation’s rejection of any Nonconforming Goods. Industrial Automation may return to Seller any or all units of rejected Goods that constitute Nonconforming Goods because they exceed the quantity stated in this Agreement or any Purchase Order. If Industrial Automation rejects any other Nonconforming Goods, Industrial Automation may elect to (a) require Seller, at Seller’s sole cost, to repair or replace the rejected Goods at the location specified by Industrial Automation (which may include Seller’s location, Industrial Automation’s location or the location of a third party), (b) purchase similar goods from another source (and apply such purchases against Industrial Automation’s quantity requirements hereunder), (c) produce similar goods itself (and apply such production quantities against Industrial Automation’s quantity requirements hereunder), (d) repair the Goods itself or have a third party repair the Goods, or (e) retain the rejected Goods; in each case without limiting the exercise by Industrial Automation of any other rights available to Industrial Automation under this Agreement or pursuant to applicable Law. All returns of Nonconforming Goods to Seller are at Seller’s sole risk and expense. Goods that are not rejected within the Inspection Period will be deemed to have been accepted by Industrial Automation; provided, however, that Industrial Automation’s acceptance of any Goods will not be deemed to be a waiver or limitation of Seller’s obligations pursuant to this Agreement (or any breach thereof), including those obligations with respect to Seller’s Product Warranty and Seller’s duty to indemnify Industrial Automation.
5. Price and Payment.
   • Price. Subject to Section 5.2, Industrial Automation shall purchase the Goods from Seller at the prices set forth on the applicable Purchase Order (“Prices”). All Prices include, and Seller is solely responsible for, all costs and expenses relating to packing, crating, boxing, transporting, loading and unloading, customs, Taxes, tariffs and duties, insurance, and any other similar financial contributions or obligations relating to the production, manufacture, sale, and delivery of the Goods. All Prices are firm and are not subject to increase for any reason, including changes in market conditions, increases in raw material, component, labor, or overhead costs or because of labor disruptions, changes in program timing or length, or fluctuations in production volumes.
   • Most Favored Customer. Seller represents and warrants that the Prices set forth on the applicable Purchase Order is at least as low as the price charged by Seller to other buyers for the same Goods or similar goods. If at any time during the Term, Seller charges any other buyer a lower price for the same Goods or similar goods, Seller shall apply that price to all same or similar Goods under this Agreement. If Seller fails to meet the lower price, Industrial Automation may, at its option, in addition to all of its other rights under this Agreement or at Law, terminate this Agreement without liability pursuant to Section 6.4. The Parties shall reflect any adjustment to pricing under this Section 5.2 in an amendment to the Purchase Order; provided, however, that, notwithstanding anything to the contrary contained in Section 2.1, the execution and delivery of any such amendment by each of the Parties will not be a condition to the effectiveness of such price adjustment.
   • Invoices. Seller shall issue monthly invoices to Industrial Automation for all Goods ordered in the previous month. Each invoice for Goods must set forth in reasonable detail the amounts payable by Industrial Automation under this Agreement and contain the following information, as applicable: a reference to this Agreement; Purchase Order number, amendment number, and line-item number; Seller’s name; Seller’s identification number; carrier name; ship-to address; weight of shipment; quantity of Goods shipped; number of cartons or containers in shipment; bill of lading number; country of origin; and any other information necessary for identification and control of the Goods. Industrial Automation reserves the right to return and withhold payment due to any invoices or related documents that are inaccurate or incorrectly submitted to Industrial Automation. The Parties shall seek to resolve any invoice disputes expeditiously and in good faith in accordance with the dispute resolution provisions set forth in Section 17.16. Any payment by Industrial Automation of an invoice is not an acceptance of any nonconforming element or terms on such invoice or the related Goods.
   • Payment. Except for any amounts disputed by Industrial Automation in good faith, Seller’s accurate and correctly submitted invoices will be payable within forty-five (45) days following the later of (a) Industrial Automation’s receipt of Seller’s invoice or (b) Industrial Automation’s receipt of the applicable Goods. Industrial Automation may withhold payment pending receipt of evidence, in such form and detail as Industrial Automation may reasonably direct, of the absence of any Encumbrances on the Goods. Any payment by Industrial Automation for Goods will not be deemed acceptance of the Goods or waive Industrial Automation’s right to inspect. Industrial Automation will be entitled to any discounts allowable by Seller for prompt payment even though Industrial Automation is unable to make payment within the time limits set by Seller if such failure is due to Seller’s actions or other circumstances or events beyond Industrial Automation’s reasonable control. Industrial Automation shall make all payments in US dollars by check, wire transfer, or automated clearing house.
   • Setoff; Contingent or Disputed Claims. All amounts due from Industrial Automation to Seller are net of any indebtedness of Seller to Industrial Automation. In addition to any right of set-off, deduction or recoupment provided or allowed by Law, Industrial Automation may, without notice to Seller, set off against, and deduct and recoup from, any amounts due or to become due from Industrial Automation to Seller, any amounts due or to become due from Seller to Industrial Automation, including for damages resulting from breaches by Seller of its obligations under this Agreement or any other agreement between such parties. If an obligation of Seller is disputed, contingent, or unliquidated, payment by Industrial Automation of all or any portion of the amount due may be deferred until such dispute contingency is resolved or the obligation is liquidated. In the event of Seller’s bankruptcy, if all of the contracts (including this Agreement) between Industrial Automation and Seller have not been promptly assumed by Seller (under applicable Law), Industrial Automation may withhold payment to Seller for Goods previously delivered (via administrative hold or otherwise) until the risk of potential rejection and other losses is eliminated.
6. Term; Termination.
   • Term. The term of this Agreement commences on the Effective Date and continues until it is terminated pursuant to the terms of this Agreement or applicable Law (the “Term”).
   • Industrial Automation’s Right to Terminate for Convenience.
     • Industrial Automation may, at its option, terminate all or any part of this Agreement at any time and for any reason by giving written Notice to Seller. Termination will be effective on the later to occur of Seller’s receipt of Industrial Automation’s Notice of termination or such other later date (if any) set forth in such termination Notice. Within thirty (30) days after the effective date of termination set forth in Industrial Automation’s Notice to Seller under this Section 6.2, Seller may submit to Industrial Automation a written Notice setting forth the following amounts, in sufficient detail to allow Industrial Automation to audit such amounts (a “Termination Claim”): (i) the purchase price under this Agreement for Goods finished as of the date of termination, not previously paid for, that conform to the requirements of this Agreement and were produced pursuant to this Agreement (including any Purchase Orders or Releases issued by Industrial Automation hereunder) except for any such Goods that are in Seller’s standard stock (i.e., “off-the-shelf”) or are otherwise readily marketable, to be delivered to Industrial Automation if requested, less amounts received [or that could have been received] by Seller for disposition or sale of any Goods or materials not delivered to Industrial Automation, and (ii) Seller’s out-of-pocket costs for raw materials incurred by Seller as of the date of termination in furnishing Goods under this Agreement, to the extent such costs are reasonable in amount and are properly allocable or apportionable under GAAP to the terminated portion of this Agreement and not in excess of quantities ordered by Industrial Automation pursuant to a Purchase Order and any unfulfilled Releases.
     • Subject to the terms of this Section 6.2, if the Termination Claim is timely received by Industrial Automation, Industrial Automation shall pay to Seller the amount due with respect to the Termination Claim, less any amounts owed by Seller to Industrial Automation, within sixty (60) days after Industrial Automation completes its audit and verification of the Termination Claim. Any payment of a Termination Claim will not be deemed a waiver of any of Industrial Automation’s other rights arising under this Agreement or applicable Law. A Termination Claim is Seller’s sole remedy for termination of this Agreement under this Section 6.2. Seller’s failure to timely submit a Termination Claim shall be a bar to any future action on such claim. Industrial Automation will make no payments for finished Goods, work-in-process, or raw materials fabricated or procured by Seller in amounts in excess of those included in a Termination Claim. Payments made under this Section 6.2 will not exceed the amount actually recovered by Industrial Automation from its customer that is allocable to Seller if such customer’s cancellation was the cause of Industrial Automation’s termination under this Section 6.2.
     • Except as expressly provided in this Section 6.2, Industrial Automation will not be liable for and will not be required to make payments to Seller, directly or on account of claims by Seller’s subcontractors, for loss of anticipated profit, unabsorbed overhead, interest on claims, product development and engineering costs, facilities and equipment rearrangement costs or rental, unamortized depreciation costs, and general and administrative burden charges.
   • Industrial Automation’s Right to Terminate for Cause. Industrial Automation may terminate this Agreement, by providing written Notice to Seller:
     • if Seller repudiates or threatens to repudiate, any of its obligations under this Agreement;
     • except as otherwise specifically provided under this Section 6.3, if Seller is in breach of, or threatens to breach, any representation, warranty or covenant of Seller under this Agreement and either the breach cannot be cured or, if the breach can be cured, it is not cured by Seller within a commercially reasonable period of time under the circumstances, in no case exceeding thirty (30) days following Seller’s receipt of written Notice of such breach;
     • notwithstanding the generality of Section (b) above, if Seller fails to, or threatens not to, timely deliver Goods conforming to the requirements of, and otherwise in accordance with, the terms and conditions of this Agreement;
     • if Seller (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;
     • if Seller fails to provide Industrial Automation, within a commercially reasonable time after Industrial Automation’s request (but in no case exceeding fifteen (15) days after such request) with adequate and reasonable assurance of Seller’s financial and operational capability to perform timely any of Seller’s obligations under this Agreement;
     • if, as a result of any breach by Seller of any of its obligations under this Agreement, Industrial Automation’s customer requires that Industrial Automation obtain another supplier of Goods;
     • if Seller takes any action, or fails to take any action, required under this Agreement or any other agreement between Industrial Automation and Seller, or as reasonably requested by Industrial Automation, the result of which is an imminent interruption or delay, or the threat of an imminent interruption or delay, in any production at any of Industrial Automation’s or its customer’s manufacturing facilities;
     • if without obtaining Industrial Automation’s prior written consent, (i) Seller sells, leases, or exchanges a material portion of Seller’s assets, (ii) Seller merges or consolidates with or into another Person, or (iii) a change in Control of Seller occurs; or
     • upon the occurrence of any other event constituting grounds for termination set forth in any other sections of this Agreement.

 

    Any termination under this Section 6.3 will be effective on Seller’s receipt of Industrial Automation’s written Notice of termination or such later date (if any) set forth in such termination Notice. Upon the occurrence of any of the events described under this Section 6.3, Industrial Automation may, in addition to any of its other rights to suspend performance under this Agreement or applicable Law, immediately suspend its performance under all or any part of this Agreement, without any liability of Industrial Automation to Seller, and, notwithstanding anything to the contrary contained in this Agreement Industrial Automation may, at its election, recover any and all damages (including direct, indirect, incidental, and consequential damages), costs (including attorneys’ and other professionals’ fees and costs), expenses and losses incurred by Industrial Automation as a result of any event described under this Section 6.3 or any breach of this Agreement by Seller.

• Seller’s Right to Terminate for Cause. Seller may terminate this Agreement, by providing written Notice to Industrial Automation:
  • if Industrial Automation is in material breach of any representation, warranty or covenant of Industrial Automation under this Agreement, and either the breach cannot be cured or, if the breach can be cured, it is not cured by Industrial Automation within a commercially reasonable period of time (in no case exceeding thirty (30) days) after Industrial Automation’s receipt of written Notice of such breach; or
  • if Industrial Automation (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due, (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law, (iii) makes or seeks to make a general assignment for the benefit of its creditors, or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

 

    Any termination under this Section 6.4 will be effective on Industrial Automation’s receipt of Seller’s written Notice of termination or such later date (if any) set forth in such Notice.

• Effect of Expiration or Termination.
  • Immediately upon the effectiveness of a Notice of termination delivered by Industrial Automation to Seller hereunder (as stated in such Notice), Seller shall, unless otherwise directed by Industrial Automation, and subject to Seller’s obligation provide resourcing cooperation under Section 6.6:
    • promptly terminate all performance under this Agreement and under any outstanding Purchase Orders;
    • transfer title and deliver to Industrial Automation all finished Goods completed prior to effectiveness of the Notice of termination; and
    • return to Industrial Automation all Bailed Property and any other property furnished by or belonging to Industrial Automation or any of Industrial Automation’s customers, or dispose of such Bailed Property or other property in accordance with Industrial Automation’s instructions (provided that Industrial Automation will reimburse Seller for the actual, reasonable costs associated with such disposal);
  • Expiration or termination of the Term will not affect any rights or obligations of the Parties that:
    • come into effect upon or after termination or expiration of this Agreement; or
    • otherwise survive the expiration or earlier termination of this Agreement pursuant to Section 17.4 and were incurred by the Parties prior to such expiration or earlier termination. 
  • Upon the expiration or earlier termination of this Agreement, each Party shall:
    • As directly by the other Party, return to the other Party or destroy all documents and tangible materials (and any copies) containing, reflecting, incorporating, or based on the other Party’s Confidential Information;
    • permanently erase all of the other Party’s Confidential Information from its computer systems, except for copies that are maintained as archive copies on its disaster recovery and/or information technology backup systems. Each Party shall destroy any such copies upon the normal expiration of its backup files; and
    • upon the other Party’s written request, certify in writing to such other Party that it has complied with the requirements of this Section 6.5(c).
  • Subject to Section 6.5(b), and except for any Termination Claim payable by Industrial Automation under Section 6.2, the Party terminating this Agreement, or in the case of the expiration of this Agreement, neither Party, will be liable to the other Party for any damage of any kind (whether direct or indirect) incurred by the other Party by reason of the expiration or earlier termination of this Agreement. Termination of this Agreement will not constitute a waiver of any of either Party’s rights, remedies or defenses under this Agreement, at law, in equity or otherwise.
• Resourcing Cooperation. Upon the expiration or earlier termination of this Agreement for any reason, to the extent requested by Industrial Automation in writing, Seller will take the following actions and such other actions as may be reasonably required by Industrial Automation to transition production of Goods from Seller to an alternative seller without production disruptions:
  • manufacture, deliver, and sell to Industrial Automation a sufficient inventory bank of Goods to ensure that the transition will proceed smoothly and without interruption or delay to Industrial Automation’s or Industrial Automation’s customers’ production of products incorporating the Goods, with pricing equivalent to the pricing in effect immediately before expiration or termination;
  • for any non-standard (i.e., not “off-the-shelf”) Goods, promptly:
    • provide to Industrial Automation all requested information and documentation regarding and access to Seller’s manufacturing process, including on-site inspections, bill-of-material data, tooling and process detail and samples of supplies and components; and
    • assign to Industrial Automation or an alternative seller any or all supply contracts or orders for raw materials or components relating to this Agreement and any outstanding Purchase Orders;
  • sell to Industrial Automation, at Seller’s actual cost, any or all work-in-process and any raw-materials inventory relating to this Agreement and any outstanding Purchase Orders;
  • sell to Industrial Automation any or all finished Goods; and
  • for any non-standard (i.e., not “off-the-shelf”) Goods, sell to Industrial Automation any or all of Seller’s Property used by Seller to manufacture Goods in accordance with the third sentence of Section 14.5.

7. Certain Obligations of Seller.
   • Quality.
     • Seller shall meet or exceed Industrial Automation’s quality standards for the Goods as adopted by Industrial Automation from time to time, and which are provided by Industrial Automation to Seller in writing. At Industrial Automation’s request, Seller shall furnish to Industrial Automation test samples of Goods as reasonably required by Industrial Automation to determine if their manufacture is in accordance with the specifications furnished by Industrial Automation and Industrial Automation’s quality standards. Seller shall perform quality inspections of Goods before delivery and shall certify inspection results in the manner requested by Industrial Automation. If the Goods are found by Industrial Automation, in Industrial Automation’s reasonable discretion, to be in compliance with Industrial Automation’s quality standards for such Goods, subject to audit by Industrial Automation, Industrial Automation will promptly reimburse Seller for Seller’s reasonable, out-of-pocket costs incurred in complying with this Section 7.1(a).
     • Seller shall work together with Industrial Automation to achieve global process improvements in the areas of technology, quality, responsiveness, delivery, and cost. At Industrial Automation’s request, Seller’s representatives shall meet with Industrial Automation to review the progress made on these objectives.
     • Seller shall provide reasonable support as requested by Industrial Automation to address and correct quality concerns. In addition to its other rights and remedies, Industrial Automation may hold Seller responsible for costs associated with quality-issue investigation and containment to the extent caused by Seller’s acts or omissions.
     • Seller shall, on a continuous basis, identify ways to improve the quality, service, performance standards, and technology for the Goods, including through participation in Industrial Automation’s quality improvement initiatives.
   • Protection Against Supply Interruptions. Seller shall, at Seller’s sole cost and expense, take such actions as are necessary or appropriate to ensure the uninterrupted supply of Goods to Industrial Automation for not less than ninety (90) days during any foreseeable or anticipated event or circumstance that could interrupt or delay Seller’s performance under this Agreement, including any labor disruption, whether or not resulting from the expiration of Seller’s labor contracts (and whether or not such occurrence constitutes a Force Majeure Event hereunder). Seller shall notify Industrial Automation at least ninety (90) days before the termination or expiration of any collective bargaining or other labor agreement that relates to Seller’s Personnel involved in the production or delivery of the Goods.
   • Duty to Advise. Seller shall promptly provide written Notice to Industrial Automation of any of the following events or occurrences, or any facts or circumstances reasonably likely to give rise to any of the following events or occurrences: (a) any failure by Seller to perform any of its obligations under this Agreement; (b) any delay in delivery of Goods; (c) any defects or quality problems relating to Goods; (d) any change in Control of Seller; (e) any deficiency in Industrial Automation specifications, samples, prototypes or test results relating to this Agreement; or (f) any failure by Seller, or its subcontractors or common carriers, to comply with Law. In addition, Seller shall promptly notify Industrial Automation in writing of any change in Seller’s authorized Representatives, insurance coverage, or professional certifications.
   • Certain Changes.
     • Seller shall promptly make any changes Industrial Automation directs in writing with respect to the Goods, which may include changes in the design, drawings, specifications, processing, inspection, testing, quality control, methods of packing and shipping, or the date or place of delivery. Any changes pursuant to this Section 7.4(a) will not affect the Price or time for delivery of Goods unless (i) within ten (10) days after Industrial Automation’s notice to Seller of the change, Industrial Automation receives from Seller written Notice of a claim for adjustment with all sufficient information and documentation regarding Seller’s costs and production timing resulting from such changes to allow Industrial Automation to perform an audit and verify such claim, and (ii) after auditing and verifying such claim, the results of such audit indicate that, in order to implement such Industrial Automation -requested changes, Seller’s actual out-of-pocket costs increased by a material amount or that implementing such changes reasonably and appropriately caused a delay in the Delivery Date of any affected Goods. Seller may increase the Prices hereunder in a per-unit amount solely to the extent necessary to compensate Seller for such commercially reasonable cost increases (but not to allow for any additional margin). If Industrial Automation’s audit and verification results indicate that Seller’s costs have or should have actually decreased, the Prices hereunder shall be deemed decreased on a per-unit basis to reflect the amount of any such cost savings. Nothing in this Section 7.4(a), including any disagreement with Industrial Automation as to any adjustment in price or time for performance, will excuse Seller from proceeding with this Agreement as changed.
     • Except for any Goods that are part of Seller’s standard stock (i.e., “off-the-shelf”), Seller may not make any changes with respect to the Goods or scope of this Agreement without Industrial Automation’s advance written approval, which may be given or withheld in Industrial Automation’s sole discretion, including (i) the location at which Goods are manufactured, (ii) any subcontractors to Seller with respect to Goods, (iii) the processes or procedures used by Seller in the production of Goods, (iv) the composition, fit, form, function or appearance of Goods, or (v) chemicals, raw materials or any components or ingredients used in the production of Goods. If Seller learns of a possible change to the Goods that may reduce costs, improve quality, or otherwise be beneficial to Industrial Automation, Seller shall promptly notify Industrial Automation of the possible change.
   • Seller’s Financial Condition.
     • Each acceptance of a Purchase Order by Seller will constitute Seller’s representation and warranty that Seller is not insolvent on a balance sheet basis, is paying all debts as they become due, is in compliance with all loan covenants and other obligations to which it is subject, and that all financial information provided to Industrial Automation concerning Seller is true and accurate, fairly represents Seller’s financial condition, and has been prepared in accordance with GAAP, uniformly and consistently applied.
     • Seller shall furnish Industrial Automation with statements accurately and fairly evidencing Seller’s financial condition as Industrial Automation may, from time to time, reasonably request. Without limitation of the foregoing, Seller shall furnish to Industrial Automation copies of any quarterly or annual financial statements delivered by Seller to any of its creditors within thirty (30) days following delivery of such financial statements to such creditor.
     • Seller shall promptly notify Industrial Automation, in writing, of any and all events that have had or may have a material adverse effect on Seller’s business or financial condition, including any change in management, sale, lease, or exchange of a material portion of Seller’s assets, a change in Control of Seller, or the breach of any loan covenants or other material obligations of Industrial Automation to its creditors. 

8. Compliance with Laws.
   • Compliance. Seller shall at all times comply with all Laws applicable to this Agreement, Seller’s operation of its business and the exercise of its rights and performance of its obligations hereunder. Without limitation of the foregoing, Seller shall ensure the Goods and any related packaging, conform fully to any applicable Law. Upon Industrial Automation’s reasonable request, Seller shall provide Industrial Automation with (a) written certification of Seller’s compliance with applicable Laws; (b) written certification of the origin of any ingredients or materials in the Goods; and (c) any additional information regarding the Goods requested by Industrial Automation such that Industrial Automation may comply in a timely manner with its obligations under Law.
   • Permits, Licenses, and Authorizations. Seller shall obtain and maintain all Permits necessary for the exercise of its rights and performance of Seller’s obligations under this Agreement, including any Permits required for the import of Goods or any raw materials and other manufacturing parts used in the production and manufacture of the Goods, and the shipment of hazardous materials, as applicable.
9. Representations and Warranties; Product Warranty.
   • Seller’s Representations and Warranties. Seller represents and warrants to Industrial Automation that:
     • it is a corporate entity, duly organized, validly existing, and in good standing under the laws of the United States;
     • it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement;
     • it has the full right, power, and authority to enter into this Agreement and to perform its obligations hereunder;
     • the execution of this Agreement by its Representative whose signature is set forth at the end of this Agreement, and the delivery of this Agreement by Seller, have been duly authorized by all necessary action on the part of Seller;
     • the execution, delivery, and performance of this Agreement by Seller will not violate, conflict with, require consent under or result in any breach or default under (i) any of Seller’s organizational documents, (ii) any applicable Law or (iii) with or without notice or lapse of time or both, the provisions of any Seller Contract;
     • this Agreement has been executed and delivered by Seller and (assuming due authorization, execution, and delivery by Industrial Automation) constitutes the legal, valid, and binding obligation of Seller, enforceable against Seller in accordance with its terms;
     • it is in compliance with all applicable Laws and Seller Contracts relating to this Agreement, the Goods and the operation of its business (including all loan covenants and other financing obligations to which it is subject);
     • it has obtained all licenses, authorizations, approvals, consents, or permits required by applicable Laws to conduct its business generally and to exercise its rights and perform its obligations under this Agreement;
     • it is not insolvent and is paying all of its debts as they become due; and
     • all financial information that it has provided to Industrial Automation is true and accurate and fairly represents Seller’s financial condition, and has been prepared in accordance with GAAP, uniformly and consistently applied.
   • Industrial Automation’s Representations and Warranties. Industrial Automation represents and warrants to Seller that:
     • it is a corporation/limited liability company, duly organized, validly existing, and in good standing under the laws of the State of North Carolina;
     • it is duly qualified to do business and is in good standing in every jurisdiction in which such qualification is required for purposes of this Agreement, except where the failure to be so qualified, in the aggregate, would not reasonably be expected to adversely affect its ability to perform its obligations under this Agreement];
     • it has the full right, power and authority to enter into this Agreement and to perform its obligations hereunder;
     • the execution of this Agreement by its Representative whose signature is set forth at the end of this Agreement, and the delivery of this Agreement by Industrial Automation, have been duly authorized by all necessary action on the part of Industrial Automation; and
     • the execution, delivery, and performance of this Agreement by Industrial Automation will not violate, conflict with, require consent under or result in any breach or default under (i) any of Industrial Automation’s organizational documents, (ii) any applicable Law or (iii) with or without notice or lapse of time or both, the provisions of any Industrial Automation Contract; and
     • this Agreement has been executed and delivered by Industrial Automation and (assuming due authorization, execution, and delivery by Seller) constitutes the legal, valid, and binding obligation of Industrial Automation, enforceable against Industrial Automation in accordance with its terms, except as may be limited by any applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws and equitable principles related to or affecting creditors’ rights generally or the effect of general principles of equity.
   • Product Warranty. Seller warrants to Industrial Automation and any end users of the Goods that (the “Product Warranty”):
     • for the longer of the period provided by applicable law or two (2) years, the Goods will:
       • conform, in all material respects, to the Specifications;
       • conform with Industrial Automation’s quality standards;
       • be merchantable (as such term is defined in the UCC) and free from defects, latent or otherwise, in design, materials, and workmanship;
       • not infringe upon, violate or misappropriate the Intellectual Property Rights of any Person;
       • be fit and sufficient for the particular purpose intended by Industrial Automation and its customers, of which the Seller is aware (and Seller acknowledges that it knows of Industrial Automation’s intended use of the Goods and that such Goods have been selected, designed, manufactured, or assembled by Seller based upon Industrial Automation’s stated use and will be fit and sufficient for the particular purposes intended by Industrial Automation); and
       • comply with all applicable Laws.
     • each of the Goods will be new and conveyed by Seller to Industrial Automation with good title, free and clear of all Encumbrances.
   • Counterfeit Goods. Goods provided by Seller to Industrial Automation, including any that are provided by Seller’s subcontractors, must be original and genuine, and in full compliance with all of Industrial Automation’s requirements, specifications, certifications, and any supporting data representing contract performance under this Agreement Seller warrants that it has received from all of its subcontractors and suppliers all data necessary to comply with this obligation and Seller has validated all such data. Seller will ensure that none of the Goods are counterfeit, inaccurately marked, or in any manner misrepresented. Seller shall have in place a process for the prevention of counterfeit of suspected counterfeit part use and their inclusion or use on any Goods regardless of industry sector, consistent with these provisions and reasonable commercial terms for applicable industry sectors, and Industrial Automation shall have the right to audit, inspect and/or approve the process at any time before or after delivery of the Goods. If any of the Goods delivered or to be delivered under this Agreement, including any Purchase Order, is discovered to be a counterfeit item or suspected to be a counterfeit item, then Industrial Automation shall have the right to impound the item for further investigation of its authenticity. Industrial Automation’s investigation may include the participation of third parties or governmental investigative agencies as required by law or regulations or by Industrial Automation’s customer, or by Industrial Automation, in its sole discretion. Seller shall cooperate in good faith with any investigation conducted by Industrial Automation, including, but not limited to, cooperation by Seller with respect to the disclosure of all design, development, manufacturing, and other relevant documentation in respect of the item. Upon Industrial Automation’s request, Seller shall provide Industrial Automation certificates of conformance with respect to the item under investigation. Industrial Automation shall not be required to return the item to Seller during the investigation process or thereafter. Industrial Automation shall not be liable for payment to Seller of the price of any suspected counterfeit items under investigation. For purposes hereof, “counterfeit” means, without limitation, any unauthorized copy, imitation, substitute or modified part or Good, which is not a specific genuine part or Good of an original or authorized manufacturer.
   • Additional Terms. The Product Warranty (a) is in addition to all other warranties, express, implied, statutory and common law, (b) extends to the Goods’ future performance, (c) survives Seller’s delivery of the Goods, Industrial Automation’s receipt, inspection, acceptance, use of the Goods and payment for the Goods, and the termination or expiration of this Agreement, (d) inures to the benefit of Industrial Automation and its successors and assigns and the users of Industrial Automation’s or its customers’ products, and (e) may not be limited or disclaimed by Seller. Industrial Automation’s approval of the Specifications or similar requirements will not be construed to relieve Seller of any warranties. Seller shall transfer and assign to Industrial Automation all of its rights (but not any obligations) under all warranties from equipment or material manufacturers or suppliers, permitted subcontractors, or other third parties. Any applicable statute of limitations on Industrial Automation’s claims for breach of warranty will commence no earlier than the date on which Industrial Automation discovers the breach.
   • Withdrawal or Recall of Goods. If Industrial Automation, any of Industrial Automation’s customers or any Governmental Authority determines that any Goods sold to Industrial Automation are Defective and a recall campaign is necessary, Industrial Automation will have the right to implement such recall campaign and return Defective Goods to Seller or destroy such Goods, as determined by Industrial Automation in its reasonable discretion, at Seller’s sole cost and risk. If a recall campaign is implemented, at Industrial Automation’s option and Seller’s sole cost, Seller shall promptly replace any Defective Goods and provide such replacement Goods to Industrial Automation or Industrial Automation’s designee. The foregoing will apply even if the Product Warranty and any other product warranty applicable to the Goods have expired. Seller will be liable for all of Industrial Automation’s costs associated with any recall campaign if such recall campaign is based upon a reasonable determination that the Goods fail to conform to the warranties set forth in this Agreement. Where applicable, Seller shall pay all reasonable expenses associated with determining whether a recall campaign is necessary.
10. • Indemnification. Subject to the terms and conditions of this Agreement, Seller (as “Indemnifying Party”) shall indemnify, defend and hold harmless the Industrial Automation Parties and their Representatives/officers, directors, employees, agents, affiliates, successors, and permitted assigns (collectively, “Indemnified Parties”) against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers, incurred by any Indemnified Party (collectively, “Losses”), arising out or resulting from any third-party Claim or any direct Claim against Indemnifying Party alleging:
      • a breach or non-fulfillment of any of Indemnifying Party’s representations, warranties, or covenants set forth in this Agreement;
      • any negligent or more culpable act or omission of Indemnifying Party or any of its Representatives (including any recklessness or willful misconduct) in connection with Indemnifying Party’s performance under this Agreement;
      • any bodily injury, death of any Person or damage to real or tangible personal property caused by the acts or omissions of Indemnifying Party or any of its Representatives;
      • any failure by Indemnifying Party or its Personnel to comply with any applicable Laws; or
      • that any of Indemnifying Party’s Intellectual Property used in the design or production of the Goods, or that is embodied in the Goods, infringes any Intellectual Property Right of a third party; provided, however, that, without limitation of anything contained in Section 10.2, Indemnifying Party has no obligations under this Section (e) with respect to Claims to the extent arising out of:
        • any Specifications, raw materials, manufacturing parts, or other materials provided by any Indemnified Party;
        • Indemnified Party’s marketing, advertising, promotion, or sale of any product containing the Goods;
        • use of the Goods, including use of the Goods in combination with any products, materials or equipment supplied to Industrial Automation by a Person other than Indemnified Party or its authorized Representatives, if the infringement would have been avoided by the use of the Goods or use of the Goods not so combined;
        • any modifications or changes made to the Goods by or on behalf of any Person other than Indemnifying Party or its Representatives, if the infringement would have been avoided without such modification or change; or
        • goods (including Goods), products or assemblies manufactured or designed by Indemnified Party.
      • Exceptions and Limitations on Indemnification. Notwithstanding anything to the contrary in this Agreement, Indemnifying Party is not obligated to indemnify or defend any Indemnified Party against any Claim or corresponding Losses resulting directly from Indemnified Party’s or its Personnel’s:
        • gross negligence or more culpable act or omission (including recklessness or willful misconduct); or
        • bad faith failure to materially comply with any of its obligations set forth in this Agreement.

11. NO LIABILITY FOR CONSEQUENTIAL OR INDIRECT DAMAGES. EXCEPT FOR LIABILITY FOR INDEMNIFICATION, LIABILITY FOR BREACH OF CONFIDENTIALITY, OR LIABILITY FOR INFRINGEMENT OR MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS, IN NO EVENT SHALL EITHER PARTY OR THEIR REPRESENTATIVES BE LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (C) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12. Intellectual Property.
    • Ownership. Each of the Parties acknowledges and agrees that:
      • each Party retains exclusive ownership of its Background Intellectual Property Rights;
      • Industrial Automation does not transfer to Seller any of its Background Intellectual Property Rights, and Seller may not use any of Industrial Automation’s Background Intellectual Property Rights other than to produce and supply Goods to Industrial Automation hereunder;
      • Seller does not transfer to Industrial Automation any of Seller’s Background Intellectual Property Rights, except that Seller grants to Industrial Automation and its customers the right to resell Goods or incorporate Goods purchased from Seller into finished goods and to sell such finished goods to its customers;
      • all Foreground Intellectual Property Rights will be owned by Industrial Automation;
      • Seller assigns to Industrial Automation all of Seller’s right, title, and interest in and to all Foreground Intellectual Property Rights, and, to the extent that any Foreground Intellectual Property Rights are copyrightable works or works of authorship (including computer programs, technical specifications, documentation, and manuals), the Parties agree that such works are “works made for hire” for Industrial Automation under the US Copyright Act;
      • Seller shall only use the Foreground Intellectual Property Rights to produce and supply Goods to Industrial Automation; and
      • Seller waives any claim against Industrial Automation, including any hold-harmless or similar claim, whether known or unknown, contingent or latent, in any way related to a claim asserted against Seller or Industrial Automation for infringement of any Intellectual Property Rights.
    • Prohibited Acts. Each of the Parties shall not:
      • take any action that interferes with the other Party’s Intellectual Property Rights, including such other Party’s ownership or exercise thereof;
      • challenge any right, title or interest of the other Party in such other Party’s Intellectual Property Rights;
      • make any claim or take any action adverse to such other Party’s ownership of its Intellectual Property Rights;
      • register or apply for registrations, anywhere in the world, the other Party’s Trademarks or any other Trademark that is similar to such other Party’s Trademarks or that incorporates such Trademarks in whole or in confusingly similar part;
      • use any mark, anywhere, that is confusingly similar to the other Party’s Trademarks;
      • misappropriate any of the other Party’s Trademarks for use as a domain name without such other Party’s prior written consent; or
      • alter, obscure, or remove any of the other Party’s Trademarks or trademark or copyright notices or any other proprietary rights notices placed on the products purchased under this Agreement (including Goods), marketing materials, or other materials.
    • License of Seller’s Background Intellectual Property Rights. Seller grants to Industrial Automation an irrevocable, non-exclusive, worldwide, perpetual, royalty-free license, with the right to grant sublicenses, to use Seller’s Background Intellectual Property Rights to produce, use, sell and to obtain, from alternate sources, products and services similar to the Goods (including related systems and components) following the expiration or earlier termination of this Agreement and in connection with Industrial Automation’s rights hereunder to purchase Goods from an alternative source at any time during the Term hereof.
13. • Scope of Confidential Information. From time to time during the Term, either Party (as the “Disclosing Party”) may disclose or make available to the other Party (as the “Receiving Party”) information about its business affairs, goods and services (including any forecasts), confidential information and materials comprising or relating to Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary information. Such information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” constitutes “Confidential Information” hereunder. Confidential Information does not include information that at the time of disclosure and as established by documentary evidence:
      • is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 13 by the Receiving Party or any of its Representatives;
      • is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information;
      • was known by or in the possession of the Receiving Party or its Representatives prior to being disclosed by or on behalf of the Disclosing Party;
      • was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information; or
      • is required to be disclosed pursuant to applicable Law.
    • Protection of Confidential Information. The Receiving Party shall:
      • protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care;
      • not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and
      • not disclose any such Confidential Information to any Person, except to the Receiving Party’s Representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.

 

    The Receiving Party shall be responsible for any breach of this Section 13 caused by any of its Representatives. On the expiration or earlier termination of this Agreement, and at any time during or after the Term at the Disclosing Party’s written request, the Receiving Party and its Representatives shall, pursuant to Section 6.5(c), promptly return or destroy all Confidential Information and copies thereof that it has received under this Agreement as directed by the Disclosing Party.

14. Tangible Property.
    • Bailment.
      • All Equipment and other tangible property of every description, including supplies, materials, machinery, equipment, drawings, photographic negatives and positives, artwork, copy layout, electronic data, and other items, furnished by Industrial Automation (or Industrial Automation’s customers), either directly or indirectly, to Seller or to any supplier to Seller in connection with or related to this Agreement, or for which Seller has been at least partially reimbursed by Industrial Automation (collectively, “Bailed Property”) is and will at all times remain the property of Industrial Automation (or Industrial Automation’s customer(s)), as applicable) and be held by Seller on a bailment-at-will basis.
      • Only Industrial Automation has any right, title, or interest in and to Bailed Property, except for Seller’s limited right, subject to Industrial Automation’s sole discretion, to use the Bailed Property in the performance of Seller’s obligations under this Agreement. Seller shall not use the Bailed Property for any other purpose. Seller shall not commingle Bailed Property with the property of Seller or with that of a Person other than Industrial Automation or Seller and shall not move any Bailed Property from Seller’s premises without the prior written approval by Industrial Automation. Industrial Automation may, at any time, for any reason and without payment of any kind, retake possession of any Bailed Property without the necessity of payment or notice to Seller, or a hearing or a court order, which rights, if any, are waived by Seller. Upon Industrial Automation’s request, Bailed Property will be immediately released to Industrial Automation or delivered to Industrial Automation by Seller. Seller’s continued holding of Bailed Property after demand has been made by Industrial Automation for delivery will substantially impair the value thereof, and, accordingly, Industrial Automation will be entitled to a court order of possession without any need of proving damages or posting of a bond. To the fullest extent permitted by law, Seller shall not allow any Encumbrance to be imposed on or attach to the Bailed Property through Seller or as a result of Seller’s action or inaction, and Seller hereby waives any Encumbrance that it may have or acquire in the Bailed Property.
      • Seller acknowledges and agrees that (a) Industrial Automation is neither the manufacturer of the Bailed Property nor the manufacturer’s agent, (b) Industrial Automation is bailing Bailed Property to Seller for Seller’s benefit, (c) Seller has inspected the Bailed Property and is satisfied that the Bailed Property is suitable and fit for its intended purposes, of which Seller is aware, and (d) INDUSTRIAL AUTOMATION HAS NOT MADE AND DOES NOT MAKE ANY REPRESENTATION OR WARRANTY WHATSOEVER, EITHER EXPRESS OR IMPLIED, AS TO THE FITNESS, CONDITION, MERCHANTABILITY, DESIGN OR OPERATION OF THE BAILED PROPERTY OR ITS FITNESS FOR ANY PARTICULAR PURPOSE. Notwithstanding the foregoing, if the bailment relationship described in this Section 14.1 is deemed to be a secured financing transaction, Seller grants to Industrial Automation a continuing security interest in any rights or interests it may have in the Bailed Property.
    • Tooling Orders.
      • Seller may not charge Industrial Automation for the cost of manufacturing or procuring any Tooling or other materials used in the production and sale of the Goods unless Industrial Automation agrees in writing to reimburse Seller for Seller’s actual reasonable costs of manufacturing or procuring such Tooling or other materials (a “Reimbursement Authorization”). Payment for such Tooling or materials will be due only after (a) Industrial Automation has successfully completed all testing of such Tooling or materials required by Industrial Automation, which will be conducted at Seller’s sole cost and expense, (b) Industrial Automation has successfully conducted a tooling audit in accordance with its customer’s requirements, and (c) Seller has provided to Industrial Automation detailed invoices documenting the actual costs incurred by Seller for such Tooling or materials, including copies of any invoice issued to Seller by any third party with respect thereto, and other any other information reasonably requested by Industrial Automation with respect to such Tooling or materials (which may include CAD models and drawings). Industrial Automation shall pay Seller only the actual cost of such Tooling or materials, not to exceed the authorized amount, if any, stated in the applicable Reimbursement Authorization.
      • Such Tooling or other materials that are subject to a Reimbursement Authorization provided by Industrial Automation will become Bailed Property (and title thereto will vest in Industrial Automation) immediately upon completion of all testing required by Industrial Automation (provided that Industrial Automation will not be relieved of its obligation to pay for such Tooling or materials in accordance with the terms of this Agreement) or if earlier, any payment by Industrial Automation to Seller therefor. Any payments made by Industrial Automation for Bailed Property are expressly intended by Industrial Automation to be held in trust for the benefit of any subcontractors or suppliers used by Seller to fabricate the Bailed Property that relates to such payments, and Seller agrees to hold such payments as trustee in express trust for such subcontractors or suppliers until Seller has paid the subcontractors or suppliers in full for the Bailed Property. Industrial Automation will not pay for any Tooling necessary for the production of sample products unless otherwise provided in the applicable Reimbursement Authorization.
    • Maintenance; Risk of Loss. Seller shall bear all risk of loss of and damage to Bailed Property. Seller shall, at its own expense, for the benefit of Industrial Automation, insure all Bailed Property with full and extended coverage for all losses, for its full replacement value, in accordance with the terms of Section 16. As and when it is commercially reasonable to do so, Seller shall, at its sole cost and expense, maintain, repair, refurbish and replace Bailed Property. All replacement parts, additions, improvements, and accessories for such Bailed Property will automatically become Industrial Automation’s property upon their incorporation into or attachment to the Bailed Property. All replacements of Bailed Property will also be Industrial Automation’s property. Seller shall replace any missing components of or inserts to any Bailed Property.
    • Inventory. Seller will maintain a written inventory of all Bailed Property that sets forth a description and the location of all Bailed Property, and provide a copy of this inventory to Industrial Automation upon request. Seller shall mark all Bailed Property permanently and conspicuously to identify it as the property of Industrial Automation, and indicate Industrial Automation’s name and address. Seller shall immediately sign any documents reasonably requested by Industrial Automation to evidence all of Industrial Automation’s rights to and interests in Bailed Property. Seller grants to Industrial Automation a limited and irrevocable power of attorney, coupled with an interest, to execute and record on Seller’s behalf any documents with respect to Bailed Property that Industrial Automation determines are reasonably necessary to reflect Industrial Automation’s interest in the Bailed Property.
    • Seller’s Property. Unless otherwise agreed to by Industrial Automation in writing, Seller, at its sole expense, shall furnish, keep in good condition, and replace when necessary all Equipment and other items necessary or helpful for the production of the Goods (excluding Bailed Property, “Seller’s Property”). Seller shall insure Seller’s Property with full and extended coverage for all losses, for its full replacement value, in accordance with the terms of Section 16.
15. Inspection and Audit Rights. Seller hereby grants to Industrial Automation, Industrial Automation’s customers, and each of their authorized Representatives, access to Seller’s premises (including Seller’s manufacturing operations used in production of the Goods) and all pertinent documents and other information, whether stored in tangible or intangible form, including any books, records, and accounts, in any way related to Seller’s performance under this Agreement (including Sellers’ processes and procedures), Goods, Bailed Property, or any payment or other transaction occurring in connection with this Agreement, for the purpose of auditing Seller’s compliance with the terms of this Agreement, including Seller’s charges for Goods, or inspecting or conducting an inventory of finished Goods, work-in-process or raw-material inventory or Bailed Property; provided that any physical inventory inspection may take place no more frequently than one (1) time each calendar year, unless otherwise agreed by the Parties. Seller agrees to cooperate fully with Industrial Automation in connection with any such audit or inspection. Seller shall maintain, during the Term and for a period of the longer of three (3) years after the Term or the amount of time required by applicable Law, complete and accurate books and records and any other financial information in accordance with GAAP. Seller shall segregate its records and otherwise cooperate with Industrial Automation so as to facilitate any audit by Industrial Automation. Seller shall reimburse Industrial Automation for all amounts associated with errors discovered during an audit. In addition, Seller shall reimburse Industrial Automation for the amount of Industrial Automation’s reasonable costs and expenses incurred in conducting the audit if the results of such audit indicate that such discrepancy is greater than five percent (5%) of the total amount actually payable by Industrial Automation for the period examined. If requested by Industrial Automation, Seller shall use its best efforts to permit Industrial Automation and its Representatives to obtain from subcontractors or other suppliers to Seller the information and permission to conduct the reviews specified with respect to Seller in this Section 15.
16. During the Term, Seller shall, at its own expense, maintain and carry in full force and effect commercial general liability insurance (including product liability) in a sum no less than one million dollars ($1,000,000) per occurrence and two million dollars ($2,000,000) in the aggregate, all-risk property insurance covering Bailed Property and all of Seller’s Property, including Equipment, for its full replacement value, and workers compensation insurance with coverage amounts not less than required by applicable Law in the jurisdiction(s) in which any obligation of Seller under this Agreement will be performed with financially sound and reputable insurers. Upon Industrial Automation’s reasonable request, Seller shall provide Industrial Automation with a certificate of insurance evidencing the insurance coverage specified in this Section. The certificate of insurance shall name Industrial Automation as an additional insured and loss payee. Seller shall provide Industrial Automation with thirty (30) days’ advance written notice in the event of a cancellation or material change in such insurance policy. Seller waives and Seller shall cause its insurers to waive, any right of subrogation or other recovery against Industrial Automation, its Affiliates, and their insurers.
17. • Further Assurances. Upon Industrial Automation’s reasonable request, Seller shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Agreement.
    • Relationship of the Parties. The relationship between Seller and Industrial Automation is solely that of vendor and vendee and they are independent contracting parties. Nothing in this Agreement creates any agency, joint venture, partnership, or other form of joint enterprise, employment, or fiduciary relationship between the Parties. Neither Party has any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other Party or to bind the other Party to any contract, agreement, or undertaking with any third party.
    • Entire Agreement. This Agreement, including and together with any related exhibits, schedules, and the applicable terms of any Purchase Orders, constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
    • Survival. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein will survive the expiration or earlier termination of this Agreement; and (b) Sections 4, 6, 7, 9, 10, 11, 12, 13, 14, 15, and 17 of this Agreement, as well as any other provision that, in order to give proper effect to its intent, should survive such expiration or termination, will survive the expiration or earlier termination of this Agreement. 
    • Notices. All notices, requests, consents, claims, demands, waivers, and other communications under this Agreement (each, a “Notice”) must be in writing and addressed to the other Party at its address set forth in the applicable Purchase Order (or to such other address that the receiving Party may designate from time to time in accordance with this section). All Notices must be delivered by personal delivery, e-mail, nationally recognized overnight courier, or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a Notice is effective only (a) on receipt by the receiving Party, and (b) if the Party giving the Notice has complied with the requirements of this Section.

• Interpretation. For purposes of this Agreement: (a) the words “include,” “includes” and “including” is deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments and appendices attached to, this Agreement; (y) to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The Parties drafted this Agreement without regard to any presumption or rule requiring construction or interpretation against the Party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
• Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
• Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability does not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
• Amendment and Modification. No amendment to this Agreement is effective unless it is in writing and signed by an authorized Representative of each Party.
• Waiver.
  • No waiver under this Agreement is effective unless it is in writing the Party waiving its right.
  • Any waiver authorized on one occasion is effective only in that instance and only for the purpose stated, and does not operate as a waiver on any future occasion.
  • None of the following constitutes a waiver or estoppel of any right, remedy, power, privilege, or condition arising from this Agreement:
    • any failure or delay in exercising any right, remedy, power or privilege or in enforcing any condition under this Agreement; or
    • any act, omission, or course of dealing between the Parties.
  • Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise.
  • Equitable Remedies. Each Party acknowledges and agrees that (a) a breach or threatened breach by such Party of any of its obligations under Section 13 would give rise to irreparable harm to the other Party for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by such Party of any such obligations, the other Party shall, in addition to any and all other rights and remedies that may be available to such Party at law, at equity or otherwise in respect of such breach, be entitled to equitable relief, including a temporary restraining order, an injunction, specific performance and any other relief that may be available from a court of competent jurisdiction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy. Each Party agrees that such Party will not oppose or otherwise challenge the appropriateness of equitable relief or the entry by a court of competent jurisdiction of an order granting equitable relief, in either case, consistent with the terms of this Section 17.12.
  • Assignment. Seller may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Industrial Automation. Industrial Automation may assign any of its rights or delegate any of its obligations to any Affiliate or to any Person acquiring all or substantially all of Industrial Automation’s assets. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves the assigning or delegating Party of any of its obligations under this Agreement.
  • Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties and their respective permitted successors and permitted assigns.
  • No Third-Party Beneficiaries. Except as expressly set forth in the second sentence of this Section 17.15, this Agreement benefits solely the parties to this Agreement and their respective permitted successors and permitted assigns, and nothing in this Agreement, express or implied, confers on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. The Parties hereby designate each Indemnified Party as a third-party beneficiary of Section 10.1, each Industrial Automation Party and any end users of the Goods as third-party beneficiaries of Section 9.3, each Industrial Automation Party as a third-party beneficiary of Section 5.5, having the right to enforce such Sections.
  • Dispute Resolution. Any dispute, controversy, or claim arising out of or relating to this Agreement, or the breach, termination or invalidity hereof (each, a “Dispute”), shall be submitted for negotiation and resolution to the primary contact of the Seller (or to such other person of equivalent or superior position designated by Seller in a written Notice to Industrial Automation) and the sales manager of Industrial Automation (or to such other person of equivalent or superior position designated by Industrial Automation in a written Notice to Seller), by delivery of written Notice (each, a “Dispute Notice”) from either of the Parties to the other Party. Such persons shall negotiate in good faith to resolve the Dispute. If the Parties are unable to resolve any Dispute within sixty (60) days after delivery of the applicable Dispute Notice, either Party may file suit in a court of competent jurisdiction in accordance with the provisions of Section 17.18 hereunder.
  • Governing Law. This Agreement, including all exhibits, schedules, attachments and appendices attached hereto and thereto, and all matters arising out of or relating to this Agreement, are governed by and construed in accordance with, the Laws of the State of North Carolina, United States of America, without regard to the conflict of laws provisions thereof. The Parties agree that the United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
  • Choice of Forum. Each Party irrevocably and unconditionally agrees that it shall not commence any action, litigation or proceeding of any kind whatsoever against the other Party in any way arising from or relating to this Agreement, including all exhibits, schedules, attachments and appendices attached hereto and thereto, and all contemplated transactions, including contract, equity, tort, fraud, and statutory claims, in any forum other than the Eastern District of North Carolina or, if such court does not have subject-matter jurisdiction, the courts of the State of North Carolina sitting in Wake County, and any appellate court from any thereof. Each Party irrevocably and unconditionally submits to the exclusive jurisdiction of such courts and agrees to bring any such action, litigation or proceeding only in the Eastern District of North Carolina or, if such court does not have subject-matter jurisdiction, the courts of the State of North Carolina sitting in Wake County. Each Party agrees that a final judgment in any such action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law.
  • Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together is deemed to be one and the same agreement.
  • Force Majeure. No Party shall be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such Party’s (the “Impacted Party”) failure or delay is caused by or results from the following force majeure events (“Force Majeure Event(s)”): (a) acts of God; (b) flood, fire, earthquake, epidemic, or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (d) government order, law, or action; (e) embargoes or blockades in effect on or after the date of this Agreement; and (f) national or regional emergency. The Impacted Party shall give notice within five (5) days of the Force Majeure Event to the other Party, stating the period of time the occurrence is expected to continue. The Impacted Party shall use diligent efforts to end the failure or delay and ensure the effects of such Force Majeure Event are minimized. The Impacted Party shall resume the performance of its obligations as soon as reasonably practicable after the removal of the cause. In the event that the Impacted Party’s failure or delay remains uncured for a period of thirty (30) consecutive days following written notice given by it under this Section 17.20, the other Party may thereafter terminate this Agreement upon written notice without liability to the Impacted Party; provided that payment for Goods sold prior to the date of termination shall be remitted in accordance with the terms and conditions of this Agreement.
  • No Public Announcements or Trademark Use. Unless expressly permitted under this Agreement, Seller shall not:
    • make any statement (whether oral or in writing) in any press release, external advertising, marketing, or promotion materials regarding the subject matter of this Agreement, Industrial Automation, or Industrial Automation’s business unless:
      • it has received the express written consent of Industrial Automation, or
      • it is required to do so by Law.
    • use any of Industrial Automation’s Trademarks without the prior written consent of Industrial Automation.