"Buyer"– SCD - Semiconductor Devices Ltd.
"Seller"– The entity to whom the order is addressed to, as specified in the Purchase Order. For the sake of this Agreement, Seller shall include its agencies, representatives, affiliated companies, subcontractors, vendors and successors as well.
“Agreement"– These Terms and Conditions.
“Order”- The Purchase Order, including the Agreement and all other attachments specified in it.
“Product(s)"– The goods specified in the Purchase Order which Seller is required to supply/deliver under the Order, including all parts or units, supply support items, support and test equipment and all derived and relevant software or programs as detailed in the Technical Specification (“Spec”) attached to the Purchase Order.
“Parties"– Buyer and Seller.
“Party"– Buyer or Seller as the case may be.
"Services"– The work which Seller is required to do under the Order, including installation, instruction, erection, and the applicable support for them, all as set out in the Purchase Order or in the Statement of Work (“SOW”) attached to the Purchase Order.
"Delivery Point"– Location of deliverance of Product to Buyer or its forwarder as specifically agreed and detailed in the Purchase Order.
“Order Price"– The total Price of Product and Services to be paid to Seller by the Buyer under the Order, as set out in the Purchase Order.
"Effective Date”– Date by which the order becomes effective, upon its signature and Approval by both Parties.
2.1 The Order is placed subject only to its terms and to Buyer’s reliance upon Seller’s express declaration of it possessing the skills, capability, means, and personnel to properly, timely and fully perform its obligations under the Order.
2.2 Seller’s proposal or any part thereof is not part of the Order and is not binding upon the Parties unless agreed in writing by the Buyer in the Order.
2.3 The signing of the Order by the Seller, or the commencement of performance of the Order by the Seller or failure of the Seller to notify the Buyer in writing, within 5 (five) days from the submission of the Order signed by Buyer of its refusal to sign the Order, whichever occurs first, will constitute Seller’s acceptance of the Order.
2.4 Changes to the Agreement and/or any part of the Order thereof, shall be binding only if signed by the Parties.
2.5 The Provisions detailed in the Purchase Order shall have priority over all the other provisions detailed in the Order.
3. Inspection and Testing Prior to Delivery
3.1 Buyer shall be entitled to, under its sole consideration, to inspect and test the Product, during the production phase and upon 7 (seven) days prior notice, at Seller’s facility and/or its Subcontractor’s facility. Seller and its subcontractors shall provide Buyer, free of charge, all the equipment and facilities required for the inspection and tests. The inspection and tests shall in no way relieve the Seller of its responsibilities under the Order. Any product rejected during inspection and/or tests shall be replaced under Seller’s sole expense.
3.2 Buyer, under its sole discretion, has the right to carry out either 100% inspection or sampling inspection. Any part of a Product which fails to pass a sampling inspection may be subsequently 100% inspected by Buyer and Seller shall be charged for all such inspection costs. Rejected products shall be replaced with proper ones.
3.3 In furtherance of such visits, the Seller shall provide Buyer’s representatives, with all reasonable information (written or oral) and assistance regarding the Product and the manufacture thereof, and shall make available to such representatives, reasonable telephone, facsimile and secretarial services.
3.4 Each Product will be subject to final inspection and approval by Buyer after delivery to Buyer as set forth in article 7 hereunder.
4. Quality Control
4.1 The Seller shall maintain, at its own sole risk and expense, Product quality control system that meets the Order’s requirements or in the absence of specified requirements, shall meet the highest relevant industry standards known during the performance of the Order, including but not limited to, ISO, FDA, CE and TUV.
4.2 The Seller shall issue, along with each delivered Product, a Certificate of Conformance signed by an authorized representative of the Seller’s quality control department or by an officer of the Seller and attesting that each delivered Product is in full compliance with the requirements of the Order. A serviceable tag will be attached to each and every Product.
5. Packing and Marking of the Products
5.1 Seller shall pack and preserve the delivered Products in the best commercial manner normally used for shipment of the same kind of Product by sea or by air, or as detailed in the Purchase Order, whichever shall be applicable, so as to protect them from the relevant damages and deterioration during transit and/or storage.
5.2 Each package must include its individual packing sheet. One copy of the packing list must be attached to the outside of the package in a re-sealable plastic envelope and an additional copy should be placed inside the same package. Each packing sheet shall contain:
Failure to comply with the above will delay payment.
5.3 Seller hereby acknowledges that the cost of the packaging and marking of the Product, including the necessary labor, is included in the Order Price.
6.1 Seller shall deliver the Product to the Delivery Point provided that each delivered Product has duly passed all the necessary tests.
6.2 Delivery shall be carried out at the place and under the terms specified in the Purchase Order and in accordance with the rules of the then current Incoterms edition. In the event of any contradiction between the Order and the Incoterms the terms and conditions of the Order shall apply
6.3 Seller recognizes that time is of the essence and warrants that the Product shall be delivered in accordance with the quantities and schedules specified in the Purchase Order.
6.4 If a Force Majeure event as defined in article 26 (which must be proven to Buyer’s satisfaction) results in a delay of any delivery, the provisions of article 26.4 shall apply.
6.5 Seller shall inform Buyer in writing, within 7 (seven) days of any event likely to entail any kind of delay in the delivery of any Product, documentation or license.
6.6 Buyer shall have the right, in addition to any other rights and remedies which Buyer may have under the law and/or the Order, to deduct from the Order price or to collect from the Seller, as damages and not as penalty, a sum equal to 1% (one percent) of the Order price of all the units of the Product not delivered on the agreed upon delivery date specified in the Purchase Order for every week of delay, or any part thereof up to a cap of 10% (ten percent) of the Order price. This right shall be enforceable by the sole fact of delay without any previous notification to the Seller or other formalities or recourse to judicial proceedings.
6.7 Exceeding the mentioned cap shall be regarded as the Supplier's breach of the Agreement and shall allow Buyer to terminate the Order for default and to additionally claim for the respective remedy.
6.8 Each incidence of delay in supply or performance under the Purchase Order shall be treated as a separate delay with compliance to article 6.6 here above.
6.9 Where any Product, Documentation or Services is properly rejected by the Buyer, the Seller shall be deemed to have failed to deliver it.
6.10 Title to the Product shall pass in proportion to payments made.
6.11 Unless specifically provided otherwise in the Purchase Order, risk of loss of, or damage to the Product shall remain with Seller until passage to Buyer upon Delivery.
6.12 All the delivered Products shall be implicitly free and clear of any and all liens, encumbrances or any other claims of any nature whatsoever.
7.1 Any inspections at source conducted by any Party shall not derogate from the right of Buyer to carry out, at its premises, a final inspection.
7.2 Buyer has the right to perform an Acceptance Test Procedure (hereinafter: “ATP”) and to inspect the delivered Products within 30 (thirty) days after their delivery.
7.3 Buyer has the right to reject any delivered products which are found defective in design, development, material or workmanship or otherwise not in full conformity with the requirements of the Purchase Order, the SOW, the Spec and/or any other applicable document signed by the Parties in connection with the Order. Other delivered products will be deemed accepted.
7.4 In case of rejection, Buyer shall have the right either to deduct from the Order price the price of the rejected Products or to ask the Seller to replace the defective Products with Products which meet the order’s requirements. If Buyer exercises the second option, Seller shall bear all costs whatsoever associated with the replacement, including any costs related to liquidated damages due to delay in delivery.
7.5 In the event that buyer returns rejected Products to the Seller, the Seller shall within 5 (five) working days following the notification of Buyer, provide Buyer with a letter for customs purposes acknowledging that such Products are being returned for non-acceptance.
8. Warranty and Maintenance
8.1 Seller warrants that for a period of (i) 18 (eighteen) months commencing from the acceptance of the product as specified in article 7 or, (ii) 12 (twelve) months following first use of the Product, whichever is later, and for a period of 7 (seven) years beginning from the date of arrival at the Delivery Point with respect to latent defects (hereinafter: “The Warranty Period”) or as otherwise specified in the Purchase Order, the delivered and accepted Product shall be free from defects in material, workmanship and design, shall meet the specifications and shall be fit for their intended use.
8.2 Upon notice of any defect, Seller shall, within a maximum period of 2 (two) weeks starting from the date of submission of notice of defect and ending when Buyer receives and accepts at its facility the modified, replaced or repaired Product, modify, replace or repair at Buyer’s facility or at Seller’s facility the defective Product, all according to the discretion of Buyer. For the sake of clarity, said 2 (two) weeks period (hereinafter: “Turn Around Time”) shall include the transportation time of the defective Product from Buyer to Seller and the return time from Seller to Buyer or the travel time of Seller’s personnel to the facility of the Buyer, if the repair is carried out at Buyer’s facility. Seller shall bear all expenses whatsoever concerning the fulfillment of these warranty provisions and shall indemnify Buyer for all costs and damages incurred by Buyer due to the defect.
8.3 The Warranty Period shall automatically be extended for a period equal to the period commencing with the date of notice of a defect and ending with the acceptance by Buyer at its facility of the repaired/modified/replaced Product. In no event shall the remaining Warranty Period be less than the period stated in Article 8.1
8.4 In the event that Seller fails to successfully complete a warranty repair within the Turn Around Time, for reasons not attributable directly to Buyer, then, in addition to any other rights or remedies Buyer may have under this Agreement and/or applicable law, Seller shall pay to Buyer, as agreed and liquidated damages for such delay 2% (two percent) of the Order Price for the applicable Deliverable Product for each full week of such delay beyond the Turn Around Time.
8.5 Documentation supplied by Seller shall be complete, accurate, up to date, free from errors and/or defects and/or omissions and shall enable Buyer to successfully integrate and/or operate and/or maintain the Product and any unit thereof. Upon notice of any error or defect in the documentation, the Seller shall within 10 (ten) days from the date of submission of notice, provide Buyer with proper documentation. In the event that the documentation incorporates information supplied by a third Party, said information shall be supplied in the original form.
8.6 The warranties detailed above shall inure to the benefit of Buyer’s customer and/or the end user of the Product.
8.7 Seller shall repair, replace or otherwise remedy defects in the Product (hereinafter: “Maintenance Services”) which will occur subsequent to the end of the warranty period and until 10 (ten) years after the end of the warranty period (hereinafter: “Support Period”). The maintenance Services will be carried out in accordance with the provisions of article 8.3 except that Buyer shall pay for said services. The Maintenance Services price shall not exceed the Seller’s then current maintenance rates.
8.8 Seller agrees that for the all Support Period, it shall retain the relevant technical personnel, necessary to provide all sorts of support and assistance to Buyer upon request.
8.9 Obsolete items - The seller will maintain production, maintenance and support capabilities of the purchased product for 15 years at least from the last P.O issued. If the seller decides to close the production line of the product and declare it as an obsolete product, he must inform SCD 18 months in advance. The seller will provide an opportunity for a last time buy to purchase a considerable amount of the product before it will declare as an obsolete product. Furthermore, the seller undertakes to find a suitable replacement for the obsolete product, and its cost will not exceed the price of the original product. The seller shall notify and inform its sub-contractors regarding these provisions, in order to prevent a situation in which a part of the main product manufactured by a sub-contractor, will become an obsolete part and the production of the main product will be stopped as a result. In the event that the seller will not update the buyer (SCD) accordingly, the seller will indemnify the buyer for any damage and / or loss of profits that may be caused by failure to notify in time.
8.10 During the Support Period and bound to all terms of the Agreement, Seller undertakes to supply Buyer with Spare Parts for the Deliverables (including all components thereof) as Buyer may from time to time require, at reasonable and fair prices and which in no event exceed the prices charged by Seller to its most-favored customers purchasing the same or similar items in like or similar quantities.
9.1 Buyer may, at any time, by a written order, make changes to the Purchase Order (hereinafter: “Change Order”). Seller shall promptly implement the changes unless otherwise instructed in writing by Buyer. If Seller is of the opinion that the Change Order requires a change in the terms of the Order, it shall submit a change proposal and if Buyer finds it justified, will negotiate with the Seller a change to the Order. Seller shall proceed with the Change Order pending Order adjustments. Dispute will be resolved in accordance with the provisions of article 28 below and the Seller shall proceed to carry out the Order including the changes unless otherwise instructed in writing by Buyer. The doctrine of Constructive Change shall not apply to this Agreement.
9.2 Seller has the right to request technical changes to the Product. Any such request will be in writing, and shall explain the reasons for the changes and their effect on the Order, including, but not limited to, fit, form, function, reliability, maintainability performance and safety.
9.3 Upon the written approval of Buyer, Seller shall have the right to implement the changes. Approval of any change will be issued by Buyer to the Seller only after two units of the modified Product will successfully pass tests carried out by the Buyer at its facility. Said units will be delivered to Buyer free of charge.
9.4 On an agreed upon date, as from the acceptance of the modified Products, Seller shall supply to Buyer under the Order all modified units of the Product.
9.5 All changes taken into count shall be properly updated, signed and documented by the Parties.
10. Proprietary Rights
10.1 Seller warrants that it has obtained or will obtain in due time all proprietary or intellectual rights, which may be required for the purpose of the Order and that are delivered to Buyer by Seller, and that the price of these rights, unless otherwise agreed upon by the Parties, is incorporated in the Order Price.
10.2 If the product or any part thereof, infringes or allegedly infringes any copy rights, patent rights, trade secrets, trademark or any other intellectual or proprietary rights (hereinafter: “Proprietary Rights”), Seller shall defend and indemnify Buyer and/or its customers and/or the end user and hold Buyer and/or its customers and/or the end user harmless, from any loss, expense, damage, claim, action or liability (including attorney’s fees) by (i) defending such claim, suit or proceedings to the extent required by Buyer, and (ii) payment of any judgment therein or settlement thereof and all of Buyer’s and/or its customers and/or end user losses, liabilities, expenses, and damages as a result of such claim, suit or proceedings.
10.3 Following the proper delivery of the Products to the Buyer, Buyer shall become the sole owner of the Product and shall be entitled to use, commercialize and transfer the Products as it deems fit and subject to its sole consideration.
10.4 If as result of a claim, suit or proceedings, Buyer and/or its customers and/or the end user are prevented from using, possessing and/or selling the Product or a system which includes the Product or any part thereof, the Seller shall, as directed by Buyer, in addition to Seller’s obligations set forth in article 10.1 above and at Seller’s own expense either:
10.5 The Provisions of this article shall survive the termination or expiration of the Order.
11. Termination for Default
11.1 Buyer reserves the right to terminate the Order or any part thereof, (i) promptly after the Seller fails to deliver on time and/or to repair/replace a defective Product within the Turn Around Time; and/or (ii) if Seller breaches any of the other terms of the Order and/or Seller fails to make progress so as to endanger the performance of the Order in accordance with its terms and Seller does not cure the default within 15 (fifteen) days from the receipt of written notice from Buyer; or (iii) in the event of the occurrence of any of the following: insolvency of the Seller, filling of petition to have the Seller declared bankrupt, provided it is not canceled within 10 (ten) days from the date of such filing, or the execution by Seller of any assignment for the benefit of creditors. Buyer shall have no obligation to Seller with respect to cancelled portion of the Order.
11.2 Buyer’s liability shall be limited to the payment for the delivered and accepted portion of the Order. If as a result of Seller’s default the Order is terminated in whole or in part and Buyer decides to procure the Product or a similar Product elsewhere, Seller shall be liable for any re-procurement charges which exceed the amount which would have been due to the Seller if he had satisfactory completed the Order. These remedies shall be in cumulative and in addition to any other remedies available to Buyer in law and/or in equity.
11.3 The provisions contained in this article are in addition to all rights and remedies that Buyer has under the Order and/or under law.
12. Termination for Convenience
12.1 Buyer may from time to time and for any reason, at its discretion, terminate the Order in whole or in part. Seller shall act in accordance with Buyer’s notice of termination. Seller shall be entitled subject to proper mitigation of costs satisfactory to Buyer, to the following payments:
12.2 No termination claim by Seller shall include:
12.3 The payments detailed above are the sole and exclusive payments and remedies which are due to the Seller in the case of Termination for Convenience.
12.4 In no event shall the termination costs exceed the Order Price.
13.1 NOTWITHSTANDING ANYTHING ELSE IN THE ORDER OR IN THIS AGREEMET OR IN ANY AGREEMENT, OR IN ANY PURCHASE ORDER ISSUED PURSUANT HERETO, OR OTHERWISE, AND EXCEPT FOR BODILY INJURY, NEITHER PARTY SHALL BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT MATTER OF THE ORDER OR UNDER ANY AGREEMENT, TRANSACTION, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY MATTER BEYOND ITS REASONABLE CONTROL; (II) ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST REVENUES AND LOSS OF USE, OPPORTUNITY, MARKET POTENTIAL AND GOODWILL), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND REGARDLESS OF THE LEGAL THEORY UNDERLYING ANY ASSERTION OF SUCH LIABILITY.
13.2 IN NO EVENT SHALL BUYER’S LIABILITY REGARDLESS OF THE LEGAL THEORY UNDERLYING SUCH CLAIMS, EXCEED THE TOTAL PRICE OF THE ORDER AS DETAILED IN THE PURCHASE ORDER.
14.1 In addition to all obligations and duties applied to the Parties by the Order or by any law, the Seller, or anyone on its behalf shall implicitly abide by Buyer’s suppliers Code of Conduct (hereinafter: “SCD's suppliers Code of Conduct”), as set out in Buyer’s Website.
14.2 Seller shall commit to fully comply with the SCD's suppliers Code of Conduct and to abstain from directly or indirectly offer and/or give and/or receive any benefit or anything of value in order to change or influence in an improper manner, directly and/or indirectly, any decision of anyone in connection with the Order or any Order placed consequent thereto.
14.3 Seller shall neither directly or indirectly solicit or participate up to any extent in any form of bribery, corruption, criminal behavior, infringement of labor laws or any other applicable law, ordinance or regulation, improper solicitation or unethical business behavior while the Order is valid.
14.4 Seller shall notify Buyer immediately after revilement of any infringement of the provisions of article 14 or the possibility of one.
14.5 It is Seller’s obligation to obtain SCD's suppliers Code of Conduct and to inform its relevant employees, Subcontractors and anyone on its behalf acting under the Order of its provisions, and to enforce its full compliance.
14.6 Failure to comply fully with the provisions of article 14 shall produce Buyer with the possibility to terminate the Order for default according to article 11 as aforementioned.
15. Stop Work Order
15.1 Buyer may, at any time, by written order to Seller, require Seller to stop immediately all or any part of the work called for by the Order for a period of up to 90 (ninety) days after the Stop Work Order is submitted to Seller and for any further period to which the Parties may agree. Any such Stop Work Order shall be specifically identified as a Stop Work Order issued pursuant to this clause. Upon receipt of a Stop Work Order, Seller shall forthwith comply with its terms and take all reasonable steps to minimize the costs allocated to the work covered by the Stop Work Order during the period of work stoppage. Within a period of 90 (ninety) days after a Stop Work Order is submitted to the Seller, or within any extension of that period to which the Parties have agreed, Buyer shall either:
16.1 In consideration for the performance of all of the Seller’s obligations in accordance with the terms of this Agreement, Buyer shall pay the Seller the unit price of the Products as set forth in the Purchase Order.
16.2 Seller warrants that the price of the Product as specified in the Purchase Order, do not exceed Seller’s current selling price for the same or substantially similar Products, while taking the relevant quantity under consideration.
16.3 The Seller shall make every effort to reduce the costs of the Product on a quarterly basis.
16.4 Prices are not subject to any escalation and/or taxes.
17. Terms of payment
17.1 An Advance Payment to be paid to Seller under the Order shall only be paid after Buyer received and approved an official irrevocable bank guarantee, the formulation of which is approved in advance.
17.2 The Terms of Payment are 90 (ninety) days End-of-Month from delivery of the Product to SCD and/or after Buyer has received the applicable invoices, whichever is later when both applicable, unless otherwise explicitly agreed upon in writing by the Parties.
17.3 Buyer shall have the implicit right to set off, withhold and/or deduct all amounts owing to it by virtue of this Agreement and/or the Order and/or any other agreement with the Seller, from the amounts that the Seller is entitled to under this Agreement.
17.4 Any changes to payment instructions or wire information for Seller's accounts shall require a secondary verification via a personal call with SCD's purchasing department. SCD may refuse to make payment, without incurring any liability thereof, if it is not convinced of the authenticity and properness of such change request.
18. Rights in Data and Know How and Proprietary Information
18.1 Title to and all rights (including but not limited to Intellectual Property rights) in all information, Know How and data that are delivered by Buyer to the Seller shall be and remain vested in Buyer only (hereinafter: “Buyer Data”).
18.2 Title to and all rights (including but not limited to Intellectual Property rights) in all information, Know How and data designed and/or developed and/or acquired and/or generated in connection with the performance of this Agreement shall be owned exclusively by Buyer (hereinafter: “Program Data”).
18.3 Seller shall be entitled to use Buyer Data and the Program Data (collectively the “Data”) for the purpose of performing the Order only and for no other purpose. The Data shall be clearly marked as Buyer’s property and shall be separately segregated from items owned by the Seller. The Seller shall maintain the Data in confidence and secrecy and shall not disclose and/or transfer and/or reveal the Data to any third party. Seller may make available the Data only to those of its employees who have a “Need to Know Basis” in connection with the performance of this Agreement.
18.4 For the purpose of the Order, Data shall include but is not limited to: copyrights, patents, trademarks, sketches, planning documents, software (including source code), instructions and procedures relating to development, production, assembly, quality control, maintenance, operation and production regardless of form (such as magnetic media).
18.5 Seller shall indemnify Buyer and hold Buyer harmless from any loss, expense, damage, claim, action or liability (including attorney’s fees) produced due to Seller’s infringement or misuse of Buyer Data or Program Data.
18.6 Any information proprietary to Seller and disclosed in the Products and information furnished to Buyer or services performed shall be deemed to have been disclosed as part of the consideration hereof and Buyer shall have the right to use same for any purpose and for any reason as Buyer may deem necessary and/or fit as if such information were Buyer Data.
18.7 The provisions of this article shall survive the termination or expiration of the Order or any part thereof.
19. Materials and Insurance
Any material furnished by Buyer to Seller other than on a charge basis will be deemed loaned to the Seller. Seller agrees to fully compensate Buyer for such materials which are not returned to Buyer either as originally loaned or as an integrated part of the Product. Seller agrees to procure a policy or policies of insurance satisfactory to Buyer, insuring all Buyer’s property while on Seller’s premises against loss and/or damages and insuring the Product until its delivery.
20. The Materials
Seller warrants that the Product and any part thereof shall be new, i.e. the Product is not used, reconditioned or assembled for no more than 12 (twelve) months prior to its delivery, and operated solely for the purpose of the Order, and that the Product is manufactured in a good workmanlike manner with proper design and materials, and with compatibility to the specifications of the Buyer.
21.1 Seller shall indemnify and hold harmless Buyer, its officers, employees, agents, customers and invitees from and against all claims, judgments, liabilities, losses and damages of every and/or any nature (including costs and expenses incident thereto) caused by an act or omission of the Seller, its officers, employees, agent invitees, vendors or anyone acting on its behalf, directly or indirectly resulting from the performance of the order by the Seller and/or its Subcontractors and/or anyone on its behalf.
21.2 Buyer shall not be liable in no event for any kind of damages, including inter alia, for any loss of use or profit by Seller, unless such damage was caused due to negligence of the Buyer.
22. Taxes, Permits and Export
22.1 All taxes – governmental, municipal or other taxes, levies and/or compulsory payments will be paid by the Seller only.
22.2 As a material provision for the validity of the Order, Seller shall be responsible to procure on his sole expense a valid Export License, if required, and Buyer shall be responsible to procure on his sole expense a valid Import License, if required. Seller shall provide Buyer with copies of declarations/forms submitted for the Export License and of the Export License when granted and shall inform Buyer within 7 (seven) days of obtaining, or denial to obtain, or cancellation or any restrictions of any such license.
22.3 All Buyer's obligations under the Order are conditioned upon Seller obtaining the applicable, valid and unrestricted Export License for shipment of the Product to Israel and/or End-User's country. If such licenses are not obtained within 60 (sixty) days after the Effective Date of Agreement, or are revoked prior to delivery, Buyer has the right to terminate the Order and all payments under it, if applicable, and shall be refunded within 30 (thirty) days together with interest thereon at the maximum available legal rate from the date each such payment was made until the date of its repayment in full.
22.4 Upon obtaining the relevant export approval, Seller shall inform the Buyer of any limitations or provisions that may affect Buyer’s use of the Product, or which may affect Seller’s ability to comply with its obligations under the Order.
23. Option to Purchase and/or to Change Delivery Dates and Quantities
23.1 Seller grants Buyer the option to purchase additional items of the Product and/or Services under the quantities, prices and terms which are at least as good as the current ones applicable to the Buyer, but in any case are reasonable and fair and in no event exceed the terms and prices charged by Seller to its most-favored customers purchasing the same or similar Products in same or similar quantities and with a reasonable discount (hereinafter: “Option to Purchase”).
23.2 The Option to Purchase shall be valid for a period of 24 (twenty-four) months from Effective Date.
23.3 Buyer shall have the right to exercise The Option to Purchase as a one indivisible offer or divide it to purchase the applicable units under its consideration.
23.4 Buyer shall be entitled under its sole discretion to require Seller to delay deliveries for a period of up to 3 (three) months from the original requested delivery date per each order with no financial consequences, fines, indemnification or interest of any kind. Such request shall be delivered to Seller in writing.
23.5 Buyer shall be entitled under its sole discretion to require Seller to increase or decrease the quantity of each order in a volume of up to 30% (thirty percent) of the original order's volume with no financial consequences, fines, indemnification or interest of any kind. Such request shall be delivered to Seller in writing.
Buyer shall be entitled to assign any or all of its rights and obligations under the Order to any of its subsidiaries or affiliates. However, neither this Agreement nor any duty, right or interest set forth herein or in the Order may be delegated, assigned, subcontracted or otherwise transferred in any manner by the Seller unless otherwise approved in writing by Buyer at its sole discretion.
25. Non Waiver
The failure of either Party at any time to enforce any of the provisions of this Agreement or to require performance by the other Party of any of the provisions hereof, shall in no way be construed to be a waiver of such provisions or in any way affect the validity of this Agreement or any part thereof, or the right of either Party thereafter to enforce each and every such provisions.
26. Force Majeure
26.1 Neither Party shall be in default on account of the interruption of its performance under this Agreement by extraordinary natural disturbances, acts of God, acts of a government in its sovereign capacity, any civil commotion, riot, insurrection or hostilities, or any other circumstances beyond the control of the Parties which will operate to frustrate the Agreement, or that arise without the fault of negligence of such Party and that result in delay of performance hereunder. Any such delay shall be referred to herein as a “Force Majeure” and shall entitle the delayed Party to a corresponding extension of the schedule. The Party whose performance is delayed by such events shall use its best efforts to notify the other Party within 3 (three) days after the occurrence of such an event, and shall take all reasonable measures to mitigate the effect of such delay.
26.2 If Seller is prevented from or delayed in performing any of its obligations under the Order, the event shall not be counted as a Force Majeure event if the event was not beyond the reasonable expectation of the Parties and the Seller could easily be expected to have avoided or overcome it or its effects.
26.3 With respect to delays in performance of Seller’s subcontractors, such delays shall be deemed excusable delays with respect to Seller only if such subcontractors' performance is prevented by a cause set forth in article 27.1 above, and when Seller could not have obtained the Product or Services from other sources in sufficient time to prevent interruption of its performance of this Agreement.
26.4 If a Force Majeure results in the extending of any delivery date under this Agreement by more than 60 (sixty) days, Buyer may terminate this Agreement in whole or in part and the provisions of article 12 (“Termination for Convenience”) shall apply except that Seller shall not be entitled to any profit for such termination.
27. Confidentiality and Protection of Information
Without derogating from any prior confidentiality obligation or non-disclosure agreement from any kind which the Parties may have signed or agreed upon, throughout the term of the Order and for a period of 5 (five) years following Acceptance of the last Product, Seller agrees that the Order and the performance thereof shall be kept confidential and shall be dealt with in accordance with Seller's usual procedures relating to its proprietary information. Buyer's identity or any other information concerning the Order shall not be disclosed without the prior written consent of Buyer.
Seller must protect any confidential and proprietary information, whether of itself or of others, including personal information, from unauthorized access, destruction, use, modification and disclosure, through appropriate physical and electronic security procedures. Seller shall assure extension of this requirement to all their sub-tier sources.
In any case of infringement or breach of the Seller's, or anyone working on its behalf in connection with Buyer, which leads or may lead to an affect, disclosure or obtainment of Buyer's Proprietary Information or any part thereof, Seller shall immediately notify Buyer and advise on the actions taken to minimize the damages and unauthorized disclosure of the Proprietary Information.
The Seller shall be liable for any damages and cost affected on Buyer and the assuming of all cost and actions required to handle the breach until its proper finalization.
All disputes between the Parties which cannot be settled by agreement between the Parties shall be finally and exclusively settled by the courts of Tel Aviv, Israel.
All notices and other communications shall be given in writing by personal delivery, registered airmail or digital with a formal approval of acceptance by Buyer, and shall be addressed to the respective Party as follows, unless such address is changed by written notice to the other Party:
SCD - SEMICONDUCTORS DEVICES LTD.
In the event that any part of the Order or the Agreement is determined to be invalid or unenforceable to any extent, such part, provision or condition shall be severed from the remaining parts which shall continue to be valid and enforceable to the fullest extent by law.
31. Governing Law
This Agreement and the Order shall be governed by and construed in accordance with the laws of the State of Israel.
The headings of the articles of these Terms shall not be used to construe and/or interpret these Terms.
All correspondence between the Parties, as well as all documentation, manuals, software listings and other writings, in connection with this agreement shall be in the English language.