GENERAL TERMS AND CONDITIONS
These general terms and conditions (the “Terms”) are made by and between M. Industria, S.A. de C.V., a company organized under the laws of Mexico (“Seller”) and the purchaser (“Buyer”) identified under that certain purchase order received by Seller (the “Purchase Order”). By sending a Purchase Order to Seller, Buyer acknowledges that it has read and agrees to be bound by these Terms.
1. APPLICABILITY. These Terms are the only terms which govern the sale of the goods (“Goods”) by the Seller to Buyer and shall be considered incorporated to any Purchase Order by reference.
2. ACCEPTANCE OF ORDERS. Buyer shall deliver all Purchase Orders in written form via facsimile or e-mail. By placing a Purchase Order, Buyer makes an offer to purchase the Goods pursuant to these Terms (collectively, this “Agreement”), and on no other terms. Any variations made to these Terms by Buyer in any Purchase Order are void and have no effect. Seller has the right, in its sole discretion, to accept or reject any Purchase Order placed by Buyer. Seller may accept any Purchase Order by (i) sending Seller’s confirmation of sale (the “Order Confirmation”) which shall, upon Seller’s request, be signed by Buyer and returned to Seller (via facsimile, e-mail or any other means authorized by Seller); or (ii) beginning to perform in accordance with the Purchase Order and sending notice of such commencement to Buyer, whichever occurs first. No Purchase Order is binding on Seller unless accepted by Seller pursuant to the provisions of this Section 2. For the avoidance of doubt, a Purchase Order will be considered received only if Seller issues an Order Confirmation or begins to perform pursuant to the provisions of this Section 2. The Purchase Order shall contain the following terms: (i) the number of the Purchase Order; (ii) the name of the Buyer to which the invoice should be sent; (iii) a list describing the Goods to be purchased, including information customarily used by Seller in the regular course to identify the Goods (including the measurements in millimeters or inches and reference number of each of the Goods ordered); (iv) the quantity of each of the of the Goods ordered; (v) the requested delivery date; (vi) the unit Price for each of the Goods to be purchased, which Price shall be based on Seller’s most current price list; (vii) the billing address; and (viii) street address for delivery of the Goods.
3.1. The Goods will be delivered within a reasonable time after Sellers’s acceptance of the related Purchase Order in accordance with Section 2, subject to availability of finished Goods. Any time quoted by Seller for delivery is an estimate only. Seller does not guaranty delivery of the Goods by any delivery date and shall not be liable for any delay, loss or damage arising from any delay in filling any order. However, if Seller delays shipment of all or any Goods for more than thirty (30) days after the estimated delivery date (the “Delayed Shipment Date”), then Buyer may, as its sole remedy therefor, cancel the related Purchase Order with respect to the delayed Goods by giving Seller Notice within forty-eight (48) hours of the Delayed Shipment Date. No delay in the shipment or delivery of any Goods relieves Buyer of its obligations under this Agreement, including without limitation accepting delivery of any remaining installments of Goods.
3.2. Unless otherwise agreed in writing by the parties, Seller shall deliver the Goods to the location or address set forth in the Purchase Order or the Order Confirmation (if applicable) (the “Delivery Location”) using Seller’s standard methods for packaging and shipping such Goods, pursuant to the terms of the Purchase Order.
3.3. Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Each shipment will constitute a separate sale, and Buyer shall pay for the units shipped whether such shipment is in whole or partial fulfillment of the Purchase Order.
3.4. If for any reason Buyer fails to accept delivery of any of the Goods on the date designated pursuant to Seller’s Notice that the Goods have been delivered at the Delivery Location, or if Seller is unable to deliver the Goods at the Delivery Location on such date because Buyer has not provided appropriate instructions, documents, licenses or authorizations: (i) risk of loss to the Goods shall pass to Buyer; (ii) the Goods shall be deemed to have been delivered; and (iii) Seller, at its option, may store the Goods until Buyer picks them up, whereupon Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
3.5. NON-DELIVERY. The quantity of any installment of Goods as recorded by Seller on dispatch from Seller’s place of business is conclusive evidence of the quantity received by Buyer on delivery unless Buyer can provide conclusive evidence proving the contrary. Seller shall not be liable for any non-delivery of Goods (even if caused by Seller’s negligence) unless Buyer gives written Notice to Seller of the non-delivery within two (2) days of the date when the Goods would in the ordinary course of events have been received. Any liability of Seller for non-delivery of the Goods shall be limited to replacing the Goods within a reasonable time or adjusting the invoice respecting such Goods to reflect the actual quantity delivered.
4. SHIPPING TERMS. Delivery shall be made in accordance with the terms on the face of the Purchase Order. Unless expressly agreed to by the parties in writing in the Purchase Order approved by Seller, Seller shall select the method of shipment of, and the carrier for, the Goods.
5. TITLE AND RISK OF LOSS. Title and risk of loss passes to Buyer pursuant to the delivery terms set forth in the Purchase Order approved by Seller. As collateral security for the payment of the Price of the Goods, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to and under the Goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the applicable law.
6. CANCELLATION. Seller may in its sole discretion, without liability or penalty, cancel the Purchase Order if Buyer is in violation of any payment obligations to Seller. With the exception of Buyer’s right to cancel the Purchase Order pursuant to Section 3.1, Buyer shall have no right to cancel or amend the Purchase Order submitted by it.
7. INSPECTION AND REJECTION OF NONCONFORMING GOODS. Buyer shall inspect the Goods within five (5) days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Goods unless it notifies Seller in writing of any Nonconforming Goods during the Inspection Period and furnishes such written evidence or other documentation as required by Seller. “Nonconforming Goods” means only any Goods received by Buyer from Seller pursuant to a Purchase Order that: (i) do not significantly conform to Seller’s Industry Quality Guidelines as modified from time to time by Seller in Seller’s sole discretion (the “Guidelines”); or (iii) materially exceed the quantity of Goods ordered by Buyer pursuant to the Purchase Order (“Excess Goods”). Notwithstanding the foregoing, Buyer acknowledges and agrees that Nonconforming Goods shall not mean those Goods that would be conforming Goods but were changed pursuant to instructions or specifications provided by Buyer. If Buyer timely notifies Seller of any Nonconforming Goods, Seller shall, in its sole discretion, (a) replace such Nonconforming Goods with conforming Goods, (b) credit or refund the Price for such Nonconforming Goods, together with any reasonable shipping and handling expenses incurred by Buyer in connection therewith, or (c) if the Goods are Excess Goods and Buyer returns such Excess Goods to Seller, refund the Price for such Excess Goods, together with all shipping and handling expenses incurred by Buyer in connection therewith. Buyer shall ship, at Seller’s expense and risk of loss, the Nonconforming Goods to Seller’s facility as indicated by Seller. If Seller exercises its option to replace Nonconforming Goods, Seller shall ship to Buyer, at Seller’s expense and risk of loss, the replaced Goods to the Delivery Location. Buyer acknowledges and agrees that the remedies set forth in this Section 7 are Buyer’s exclusive remedies for the delivery of Nonconforming Goods. Except as provided under this Section 7, all sales of Goods to Buyer are made on a one-way basis and Buyer has no right to return Goods purchased under this Agreement to Seller.
8. PRICE. Buyer shall purchase the Goods from Seller at the prices set forth in the Order Confirmation (the “Prices”). If there is no Order Confirmation, Buyer shall purchase the Goods from Seller at the price set forth in Seller’s price list in effect at the time Seller accepts the related Purchase Order pursuant to Section 2. Unless otherwise agreed by the parties, all prices are Delivered Duty Paid (“DDP”). If Prices are DDP, Prices may include certain shipping charges, insurance costs, and taxes, and any duties with respect to shipment of the Goods DDP to the Delivery Location. If the Price of the Goods to be delivered should be increased by Seller before delivery of the Goods to a carrier for shipment to Buyer, then this Agreement shall be construed as if the increased prices were originally inserted herein, and Buyer shall be billed by Seller on the basis of such increased prices. Unless otherwise provided in the Order Confirmation, Prices are exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Buyer. Buyer shall be responsible for all such charges, costs and taxes; provided, that, Buyer shall not be responsible for any taxes imposed on, or with respect to, Seller’s income, revenues, gross receipts, personnel or real or personal property or other assets. Seller shall not be responsible for the economic burden of withholding taxes, it being understood and agreed that payments shall be “grossed up” by Buyer to the extent necessary to ensure that Seller is paid any amounts it is due in full.
9. PAYMENT TERMS. Buyer shall pay all invoiced amounts due to Seller within forty-five (45) days from the date of Seller’s invoice. Buyer shall make all payments hereunder as provided in the Purchase Order. Buyer shall make all payments in US Dollars by check or wire transfer in accordance with the instructions provided by Seller. Buyer shall notify Seller in writing of any dispute with any invoice (along with substantiating documentation and a reasonably detailed description of the dispute) within ten (10) days from the date of such invoice. Buyer will be deemed to have accepted all invoices for which Seller does not receive timely notification of disputes, and shall pay all undisputed amounts due under such invoices within the period set forth in this Section 10. The parties shall seek to resolve all such disputes expeditiously and in good faith. In the event the parties are unable to resolve any dispute pursuant to this Section 10 the parties shall resolve such dispute by binding arbitration pursuant to Section 21 hereof. Buyer shall pay interest on all late payments at the highest rate permissible under applicable law, calculated daily and compounded monthly; provided, however, that Buyer shall not be required to pay interest on amounts disputed by Buyer and agreed to be discounted by Seller, or amounts disputed by Buyer and for which Buyer obtains a favorable award pursuant to Section 21. Buyer shall reimburse Seller for all costs incurred in collecting any late payments, including, without limitation, attorneys’ fees. In addition to all other remedies available under these Terms or at law (which Seller does not waive by the exercise of any rights hereunder), Seller shall be entitled to suspend the delivery of any Goods and cancel any future Purchase Order and Order Confirmation if Buyer fails to pay any amounts when due. Buyer shall not withhold payment of any amounts due and payable by reason of any set-off of any claim or dispute with Seller, whether relating to Seller’s breach, bankruptcy or otherwise.
10. LIMITED WARRANTY.
10.1. Seller warrants to Buyer that: (i) the Goods will not be Nonconforming Goods when received by Buyer; (ii) for a period set forth in Exhibit “A-1” and Exhibit “A-2” attached hereto and incorporated herein by reference, from the date of the invoice of the Goods (the “Warranty Period”), such Goods will materially conform to the Guidelines in effect as of the date of manufacture under the corresponding Purchase Order; and (iii) Buyer will receive good and valid title to the Goods.
10.2. EXCEPT FOR THE WARRANTY SET FORTH IN SECTION 11.1, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO THE GOODS, INCLUDING ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY OF TITLE; OR (d) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE.
10.3. The warranties under Section 11.1 do not apply where: (i) the Goods have been subjected to abuse, misuse, neglect, negligence, accident, improper testing, improper installation, improper storage, improper handling, abnormal physical stress, abnormal environmental conditions; (ii) the defect arises because Buyer failed to follow Seller’s oral or written instructions as to the storage, installation, commissioning, use or maintenance of the Goods; (iii) the Goods have been reconstructed, repaired, or altered without the prior written consent of Seller or by persons other than Seller or its authorized representatives; (iv) the Goods have been used with any third-party product, hardware or product that has not been previously approved in writing by Seller; (v) Buyer makes any further use of such Goods after giving such Notice; or (vi) in any other event provided in Exhibit “A-1” or Exhibit “A-2”.
10.4. Products manufactured by a third party (“Third Party Products”) may constitute, contain, be contained in, incorporated into, attached to or packaged together with, the Goods. Third Party Products are not covered by the warranty in Section 11.1. For the avoidance of doubt, Seller makes no representations or warranties with respect to any Third Party Products.
10.5. Seller shall not be liable for a breach of the warranty set forth in Section 11.1 unless: (i) Buyer gives written Notice of the defect, reasonably describing such defect, to Seller within two (2) business days of the time when Buyer discovers or ought to have discovered the defect; (ii) Seller is given a reasonable opportunity after receiving the notice to examine such Goods and Buyer (if requested to do so by Seller) returns such Goods to Seller’s place of business at Seller’s cost for the examination to take place there; and (iii) Seller’s inspection and testing reveals, to Seller’s reasonable satisfaction, that such Goods are defective and any such defect has not been caused or contributed to by any of the factors described under Section 11.3.
10.6. Subject to Sections 11.3, 11.4 and 11.5 above, with respect to any such Goods during the Warranty Period, Seller shall, in its sole discretion, either: (i) repair or replace such Goods (or the defective part) or (ii) credit or refund the Price of such Goods at the pro rata contract rate provided that, if Seller so requests, Buyer shall, at Seller’s expense, return such Goods to Seller.
10.7. THE REMEDIES SET FORTH IN SECTION 11 SHALL BE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTY SET FORTH IN SECTION 11.1.
11. COMPLIANCE WITH LAW.
11.1. Buyer shall comply with all applicable laws, regulations and ordinances. Buyer shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement and shall not engage in any activity or transaction involving the Goods, by way of shipment, use or otherwise, that violates any law. Buyer shall comply with all export and import laws of all countries involved in the sale of the Goods under this Agreement or any resale of the Goods by Buyer. Buyer assumes all responsibility for shipments of Goods requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.
11.2. Buyer and its representatives are and have been, in compliance with the Foreign Corrupt Practices Act of 1977, as amended (“FCPA”). Neither Buyer nor any of its representatives has: (a) used any corporate funds for any unlawful contribution, gift, entertainment, or other unlawful expense relating to political activity or to influence official action; (b) made any direct or indirect unlawful payment to any foreign or domestic government official or employee from corporate funds; (c) made any bribe, rebate, payoff, influence payment, kickback, or other unlawful payment; or (d) failed to disclose fully any contribution or payment made by Buyer (or made by any person acting on its behalf of which Buyer is aware) that violates the FCPA. Without limiting the generality of Section 12.1, Buyer shall, and shall cause its representatives to, comply with the FCPA, including maintaining and complying with all policies and procedures to ensure compliance with the FCPA.
11.3. Buyer is, and prior to the date of this Agreement has been, in compliance with the International Emergency Economic Powers Act (50 U.S.C. § 1701) and all other laws administered by the Office of Foreign Assets Control of the US Treasury Department or any other governmental authority imposing economic sanctions and trade embargoes (“Economic Sanctions Laws”) against countries (“Embargoed Countries”) and persons designated in such laws (collectively, “Embargoed Targets”). Buyer is not has not been, an Embargoed Target or otherwise subject to any Economic Sanctions Law. Without limiting the generality of Section 12.1, Buyer shall comply with all Economic Sanctions Laws. Without limiting the generality of the foregoing, Buyer shall not: (i) directly or indirectly export, reexport, transship, or otherwise deliver the Goods or any portion of the Goods to an Embargoed Target; or (ii) broker, finance, or otherwise facilitate any transaction in violation of any Economic Sanctions Law.
12. TERMINATION. In addition to any remedies that may be provided under these Terms, Seller may terminate this Agreement and cancel any Purchase Order with immediate effect upon written Notice to Buyer, if Buyer: (i) fails to pay any amount when due under this Agreement and such failure continues for three (3) days after Buyer’s receipt of written Notice of nonpayment; (ii) has not otherwise performed or complied with any of these Terms, in whole or in part; or (iii) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
13. WAIVER AND AMENDMENT. No waiver by Seller of any of the provisions of this Agreement is effective unless explicitly set forth in writing and signed by Seller. No failure to exercise, or delay in exercising, any right, remedy, power or privilege arising from this Agreement operates, or may be construed, as a waiver thereof. No single or partial exercise of any right, remedy, power or privilege hereunder precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. No amendment to or modification of this Agreement is effective unless it is in writing, identified as an amendment to this Agreement and signed by an authorized representative of each party.
14. CONFIDENTIAL INFORMATION. Seller (as the “Disclosing Party”) may disclose or make available to Buyer (as the “Receiving Party”) information about its business affairs, goods and services, confidential information and materials comprising or relating to Intellectual Property Rights, trade secrets, third-party confidential information, and other sensitive or proprietary 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” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure: (i) 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 by the Receiving Party or any of its representatives; (ii) 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; (iii) 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 on a non-confidential basis; (iv) 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 (v) is required to be disclosed pursuant to applicable law. The Receiving Party shall: (i) 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; (ii) 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 (iii) 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 15 caused by any of its representatives. At the Disclosing Party’s written request, the Receiving Party and its representatives shall promptly return or destroy all Confidential Information and copies thereof that it has received under this Agreement.
15. INDEMNITY. Buyer shall indemnify, defend and hold harmless Seller and its representatives, officers, directors, employees, agents, affiliates, successors and assigns (collectively, “Seller 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 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 of the Seller Indemnified Parties (collectively, “Losses”), arising out or resulting from any claim relating to: (a) breach or non-fulfillment of any representation, warranty, or covenant under this Agreement by Buyer or its personnel; (b) any act or omission of Buyer or its personnel (including any recklessness or willful misconduct) in connection with the performance of its obligations under this Agreement; (c) any bodily injury, death of any person or damage to real or tangible personal property caused by the negligent acts or omissions of Buyer or its personnel; (d) any installation or use of the Goods in any way inconsistent with Seller’s instructions and specifications; or (e) any failure by Buyer or its personnel to comply with any applicable laws. Notwithstanding the foregoing, Buyer is not obligated to indemnify or defend a Seller Indemnified Party for any Losses arising out or resulting from the Seller Indemnified Party’s gross negligence or willful misconduct.
16. LIMITATION OF LIABILITY. NEITHER SELLER NOR ITS REPRESENTATIVES SHALL BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT OR DIMINUTION IN VALUE, OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED: (I) THE VALUE OF THE PURCHASE ORDER WITHOUT REGARD FOR ANY PREVIOUS PURCHASE ORDER, OR (II) THE AMOUNT OF LIABILITY INSURED BY SELLER’S INSURANCE COMPANY, WHICHEVER IS LESS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, BUYER ASSUMES ALL RISK AND LIABILITY FOR THE RESULTS OBTAINED BY THE USE OF ANY GOODS IN THE PRACTICE OF ANY PROCESS, WHETHER IN TERMS OF OPERATING COSTS, GENERAL EFFECTIVENESS, SUCCESS OR FAILURE, AND REGARDLESS OF ANY ORAL OR WRITTEN STATEMENTS MADE BY SELLER, BY WAY OF TECHNICAL ADVICE OR OTHERWISE, RELATED TO THE USE OF THE GOODS.
17. FORCE MAJEURE. No party shall be liable or responsible to the other party, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement (except for any obligations to make payments to the other party under this Agreement), to the extent it is caused by or results from acts beyond the control of the impacted party (the “Impacted Party”), but only for the duration and to the extent of any such failure or delay, including, without limitation: (i) acts of God; (ii) flood, fire, earthquake or explosion; (iii) epidemic; (iv) pandemic; (v) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (vi) requirements of law; (vii) actions, embargoes or blockades in effect on or after the date of this Agreement; (viii) action by any governmental authority; (ix) national or regional emergency; or (x) strikes, labor stoppages, or slowdowns or other industrial disturbances; (xi) shortage of adequate power or transportation facilities (each a “Force Majeure Event”). The Impacted Party shall give Notice within fifteen (15) business 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 the 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.
18. ASSIGNMENT. Buyer shall not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of Seller. Any purported assignment or delegation in violation of this Section is null and void. No assignment or delegation relieves Buyer of any of its obligations under this Agreement. Seller may assign any of its rights or delegate any of its obligations to any person.
19. INTELLECTUAL PROPERTY. Buyer acknowledges and agrees that: (a) any and all Seller’s Intellectual Property Rights are the sole and exclusive property of Seller or its licensors; (b) Buyer shall not acquire any ownership interest in any of Seller’s Intellectual Property Rights under this Agreement; (c) any goodwill derived from the use by Buyer of Seller’s Intellectual Property Rights inures to the benefit of Seller or its licensors, as the case may be; (d) if Buyer acquires any Intellectual Property Rights, rights in or relating to any Goods (including any rights in any trademarks, derivative works, or patent improvements relating thereto) by operation of law, or otherwise, such rights are deemed and are hereby irrevocably assigned to Seller or its licensors, as the case may be, without further action by either of the parties; and (e) Buyer shall use Seller’s Intellectual Property Rights solely for purposes of using the Goods under this Agreement and only in accordance with this Agreement and the instructions of Seller. Buyer shall not: (i) take any action that might interfere with any of Seller’s Intellectual Property Rights, including Seller’s ownership or exercise thereof; (ii) challenge any right, title, or interest of Seller in or to Seller’s Intellectual Property Rights; (iii) make any claim or take any action adverse to Seller’s ownership of Seller’s Intellectual Property Rights; (iv) register or apply for registrations, anywhere in the world, for Seller’s trademarks or any other trademark that is similar to Seller’s trademarks or that incorporates Seller’s trademarks in whole or in part; (v) use any mark or any intellectual property, anywhere that is confusingly similar to Seller’s Intellectual Property Rights; (vi) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Goods or any Seller’s trademarks; (vii) misappropriate any of Seller’s trademarks for use as a domain name without prior written consent from Seller, in Seller’s sole discretion; or (viii) alter, obscure or remove any Seller’s trademarks, or trademark or copyright notices or any other proprietary rights notices placed on the Goods, marketing materials or other materials that Seller may provide. “Intellectual Property Rights” means all industrial and other intellectual property rights comprising or relating to: (i) patents; (ii) trademarks; (iii) internet domain names, whether or not trademarks, registered by any authorized private registrar or governmental authority, web addresses, web pages, websites, and URLs; (iv) 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; (v) trade secrets; (vi) semiconductor chips, mask works, and the like; and (vii) 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.
20. GOVERNING LAW AND JURISDICTION. THIS AGREEMENT AND THE LEGAL RELATIONSHIP BETWEEN THE PARTIES HERETO SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF YUCATAN, MEXICO WITHOUT GIVING EFFECT TO THE CONFLICT OF LAWS PRINCIPLES THEREOF. THE PARTIES AGREE THAT THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THIS AGREEMENT. Notwithstanding anything in this Agreement to the contrary, any action arising out of, relat¬ing to, or in connection with, this Agreement, including any question regarding its exis¬tence, validity or termi¬nation, or regarding a breach of this Agreement, shall be referred to and settled by arbitration under and in accordance with the Rules of Arbitration of the International Chamber of Commerce (the “ICC Rules”), as amended and in effect on the date that demand for arbitration is filed. Each party hereto consents to such arbitration as the sole and exclusive method of resolving any such action. Notwithstanding the foregoing, nothing in this Section 21 shall prevent either party from seeking provisional measures from any court of competent jurisdiction, and any such request shall not be deemed incompatible with the agreement to arbitrate or a waiver of the right to arbitrate. The arbitration proceeding will take place in Merida, Yucatan, Mexico and be conducted in the English language. The arbitration will consist of one (1) arbitrator appointed by the International Court of Arbitration pursuant to the ICC Rules. The arbitrator shall award to the prevailing party, if any, as determined by the arbitrator, its costs and expenses, including reasonable outside attorney’s fees. The award of the arbitrator shall be final and binding on the parties thereto. Judgment upon any arbitral award rendered may be entered and a confirmation order sought in any court having jurisdiction thereof. For purposes of any proceeding to enforce this arbitration agreement, for provisional measures or to enforce or confirm an award of the arbitrator, each party hereto hereby expressly submits to the non-exclusive jurisdiction of the courts located in Yucatan, Mexico. EACH PARTY HEREBY KNOWINGLY, VOLUN¬TARILY, AND INTENTIONALLY WAIVES ANY RIGHTS IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY SUCH ACTION OR PROCEEDING.
21. NOTICES. All notices, request, consents, claims, demands, waivers and other communications hereunder (each, a “Notice”) shall be in writing and addressed to the parties at the addresses set forth on the Purchase Order and the Order Confirmation (if applicable) or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) 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 (i) upon receipt of the receiving party, and (ii) if the party giving the Notice has complied with the requirements of this Section.
22. RELATIONSHIP OF THE PARTIES. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
23. NO THIRD-PARTY BENEFICIARIES. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms.
24. SEVERABILITY. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
25. SURVIVAL. The provisions of Sections 12, 15, 16, 17 and 20 shall survive the expiration or earlier termination of this Agreement for any reason. Notwithstanding any right under any applicable statute of limitations to bring a claim, no action based upon or arising in any way out of this Agreement may be brought by either party after the expiration of the applicable survival period and the parties waive the right to file any such action after the expiration of the applicable survival or other period; provided, however, that the foregoing waiver and limitation do not apply to the collection of any amounts due to Seller under this Agreement.
26. EQUITABLE REMEDIES. Buyer acknowledges and agrees that (a) a breach or threatened breach by Buyer of any of its obligations under Section 15 and Section 20 would give rise to irreparable harm to Seller for which monetary damages would not be an adequate remedy and (b) in the event of a breach or a threatened breach by Buyer of any such obligations, Seller shall, in addition to any and all other rights and remedies that may be available to Seller 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. Buyer agrees that Buyer 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 27.
27. 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. Notwithstanding the previous sentence, the parties intend that Buyer’s right under Section 7 and Section 11 are Buyer’s exclusive remedies for the events specified therein.
28. COUNTERPARTS. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, e-mail or other means of electronic transmission is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.
29. ENTIRE AGREEMENT. This Agreement, including all related exhibits, 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. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless whether or when Buyer has submitted its Purchase Order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms. This Agreement is binding on and inures to the benefit of the parties to this Agreement and their respective permitted successors and permitted assigns.