General Terms and Conditions for Aviation Lubricant Sales
These General Terms and Conditions apply to all sales and deliveries of aviation lubricants sold by ExxonMobil Oil Corporation.
DEFINITIONS: The following words and expressions will have the following meanings in the General Terms and Conditions:
“Affiliate(s)” means with respect to ExxonMobil: (1) Exxon Mobil Corporation or its successor-in- interest; (2) any parent corporation, partnership, or other entity which now or hereafter owns or controls, directly or indirectly thorough one or more intermediaries, more than fifty percent (50%) of the ownership interest having the right to vote for or appoint directors of Exxon Mobil Corporation or its successor-in-interest (“ExxonMobil’s Parent Company”); and (3) any corporation, partnership, or other entity, regardless where situated, more than fifty percent (50%) of whose ownership interest having the right to vote for or appoint directors is now or hereafter owned or controlled, directly or indirectly, through one or more intermediaries, by Exxon Mobil Corporation or its successor-in-interest or by ExxonMobil’s Parent Company.
“Affiliate(s)” means with respect to Buyer: any company, partnership, or sole proprietorship in which Buyer now or hereafter (1) owns or (2) controls, directly or indirectly, more than fifty percent (50%) of the ownership interest having the right to vote or appoint its directors or functional equivalents. In the event of a substantial change in the ownership or control of Buyer, Buyer will immediately notify Seller of the occurrence of such change. Thereupon, Seller will have the choice, in its sole discretion, to terminate any contract of which these General Terms and Conditions are a part upon thirty (30) days’ written notice.
“Agent” or “Agents” means, with respect to Seller:
(a) the servants and employees of Seller; and
(b) any distributor authorized by Seller or Supplier authorized by Seller; and
with respect to Buyer: any party specifically authorized by Buyer to
(a) place orders for Products or services with Seller;
(b) take delivery of Products;
(c) receive or settle Seller’s invoices;
(d) managed Product inventory; or
(e) transfer Product sold or delivered by Seller to Buyer.
“Buyer” means the party purchasing the Product(s). From time to time Buyer may appoint intermediaries, including agents, to place orders or take delivery in Buyer’s name and for Buyer’s account. Buyer will be fully liable for the actions or omissions of any intermediary Buyer chooses to appoint.
“Estimated Annual Requirements” means the volume and type of Product to be supplied by Seller and purchased by Buyer within a calendar year.
“Product(s)” means ExxonMobil lubricating oils, fluids, greases, and other aviation lubricating products.
“Seller” means ExxonMobil Oil Corporation with offices at 22777 Springwoods Village Parkway, Spring, TX 77389.
Unless the context does not so admit, reference herein to the singular includes reference to the plural and vice versa. Seller and Buyer may also be referred to individually as “Party” and collectively as “Parties” where the context so requires.
PRICES: Seller’s prices for Products ordered directly from Seller are those in effect on the date of order by Buyer or Buyer’s Agent and at the place from which ordered, regardless when the Products are actually loaded, shipped, or delivered; however, if Buyer requests a delivery date that is more than fourteen (14) calendar days later than the date of order, then the prices shall be those in effect as of the requested date of delivery, regardless when the Products are actually ordered, loaded, shipped, or delivered. Seller’s prices for Products ordered through and delivered by Seller’s authorized distributors are those in effect on the date of delivery by such distributors. Unless noted otherwise, prices are prior to all taxes and duties and are subject to change without advance notice. If Seller is prevented from effecting changes to price or terms of payment hereunder by any act of government authority, Seller may terminate any contract of which these General Terms and Conditions are a part by giving Buyer at least thirty (30) days’ written notice.
TAXES: Any tax, excise, or governmental charge imputed upon the value added to or on the production, sale, storage, use, or transportation of any Products sold hereunder, or imposed upon crude oil or any other raw materials from which such Products are made, which Seller may be required to pay, will be paid by Buyer to Seller if not included in the purchase price. Buyer will, upon request, provide Seller with properly completed exemption certificates for any tax from which Buyer claims exemption. If Seller, in good faith, does not include any applicable tax, excise, or government charge in its calculation and notification to Seller of the total amount owed by Buyer for any Products sold hereunder, Buyer is not relieved of the obligation to pay such tax, excise, or government charge upon subsequent notification by Seller. Seller may terminate any contract of which these General Terms and Conditions are a part, on thirty (30) days’ written notice if prevented from passing any tax or charge through to Buyer, regardless whether it is of the same class or kind listed above.
PAYMENT: Unless otherwise agreed, full payment will be made without discount, withholding, or deduction to Seller via electronic funds transfer at the time of delivery for each delivery made hereunder, including all applicable duties, taxes, fees, charges, and impositions. Payment will be made to Seller (or its assignee) in United States Dollars and, except to the extent credit is extended, in which case, the terms of payment are net thirty (30) days from date of invoice if not otherwise specified. If credit is extended and Buyer’s payment history is not consistent with the agreed credit terms or if, in Seller’s sole discretion there has been a change in Buyer’s credit worthiness, then the terms of payment may be changed by Seller at any time in its sole discretion by giving notice to Buyer, which will be effective immediately unless otherwise specified. Seller has the right to assess a late payment charge of the lesser of (a) 1.5% above the Secured Overnight Finance Rate (Reference Rate) per month, compounded daily, as published by the Federal Reserve Bank of New York on the payment due date or (b) the maximum amount allowed by law.
Payments will be remitted to Seller via wire transfer according to the following instructions:
If it is not possible to remit payments electronically, Buyer will remit payments to Seller at the following address: ExxonMobil Oil Corporation
P.O. Box 8500 K-120 Philadelphia, PA 19178-0120
United States of America
CREDIT AND SECURITY; RIGHT OF SET-OFF: Credit and Security. At Seller’s request, in its sole discretion, and at any time during the term of any contract of which these General Terms and Conditions are a part, Buyer will (i) sign and deliver to Seller a security agreement (meaning a bank-type security instrument), financing statement(s), and such other documents as may be necessary to grant, establish, attach, or perfect a security interest in favor of Seller in such collateral and in such form as is satisfactory to Seller in its sole discretion, and (ii) provide Seller copies of Buyer’s most recent financial statements (audited if available) or such other financial information as shall be satisfactory to Seller in its sole discretion. Buyer will also execute and deliver such other documents, instruments, or agreements in connection with any security agreement as Seller may reasonably require. Seller’s rights under this section are in addition to any similar or related rights in the Supply Agreement.
In its sole discretion, and at any time, Seller may (i) revoke credit; (ii) modify any and all terms and conditions of credit; (iii) require payment in advance; (iv) require security in an amount and type satisfactory to Seller; and/or (v) withhold Product shipments until receipt of any due and owing payment or requested security. Seller may accomplish any or all of the foregoing at any time, in its sole discretion, by giving written notice to Buyer, which notice may be provided by mail or by any other means specified herein, and which will be effective immediately upon receipt unless otherwise specified by Seller. No such action by Seller constitutes a change in payment terms hereunder. When Buyer takes delivery of any Product(s) sold hereunder, Buyer represents to Seller that Buyer is solvent and able to pay for such Product(s).
(a) Right of Set-off. In addition to any other right of set-off or recoupment that Seller may have under applicable law, Buyer agrees that with respect to any amounts due from Buyer or Buyer’s Affiliates to Seller or Seller’s Affiliates, Seller or Seller’s Affiliates may: (i) set-off such amounts against any amounts owing to Buyer or Buyer’s Affiliates; and/or (ii) recoup such amounts from any amounts paid and deliveries made to Buyer or Buyer’s Affiliates by Seller or Seller’s Affiliates. For purposes of Seller’s right of set-off, any and all written agreements between Buyer or Buyer’s Affiliates and Seller or Seller’s Affiliates will be deemed to be part of an integrated agreement. Buyer and Seller agree that to the extent they are engaged in one or more agreements that contain language similar to this paragraph, then such provisions will be deemed to constitute a master netting agreement, as that term is defined in the United States Bankruptcy Code or any other applicable law. Buyer acknowledges that it has obtained the consent and authorization of Buyer’s Affiliates that may be subject to the terms of this paragraph. Furthermore, upon request of Seller, Buyer will obtain the signature of any relevant Buyer’s Affiliate(s) indicating acceptance of any remedies, including the right of cross-affiliate netting, which are set forth herein.
EVENTS OF DEFAULT:
(a) Generally. Except as otherwise provided herein, if Buyer or Seller fails to perform any of the terms of any contract of which these General Terms and Conditions are a part, the non-defaulting Party may treat such default as a breach of the entire contract and, if such default is not cured within thirty (30) days of giving written notice to the defaulting Party, the non-defaulting Party immediately may terminate such contract. In any event, termination of such contract by either Party shall not remove Buyer’s obligation to pay in full for Product(s) received.
(b) Buyer Events of Default. The Parties acknowledge that each of the following, among other things, constitutes a “Buyer Event of Default” in relation to any contract of which these General Terms and Conditions are a part:
Failure to Pay: Failure by Buyer to make payment in full by the due date for any amounts owed hereunder.
Contract to Take Delivery: Failure by Buyer to take full delivery as described herein.
Financial Instability: If Seller, in its sole discretion, concludes that Buyer or any of Buyer’s Affiliates may not, within the reasonably foreseeable future, be capable of fully performing its financial obligations herein.
Failure to Provide Security: Failure by Buyer to provide security when required herein.
Insufficient Security: Any determination by Seller, in its sole discretion, that Buyer has insufficient security for payment of amounts owed by Buyer to Seller, including that the financial condition of the entity providing the security is inadequate.
Material Adverse Change: Any determination by Seller, in its sole discretion, that there has been a material adverse change in the business or financial condition of Buyer or any of Buyer’s Affiliates.
Material Misrepresentation: Buyer has made a representation or warranty under any agreement Buyer has with Seller that proves to be untrue in any material respect.
Cross Default: Default by Buyer or any of Buyer’s Affiliates in the performance of any payment or other obligation under any other agreement that Buyer or any of Buyer’s Affiliates have with Seller or any of Seller’s Affiliates.
Insolvency: (i) the commencement by Buyer or any of Buyer’s Affiliates of a bankruptcy or similar insolvency proceeding under applicable law; (ii) the involuntary commencement against Buyer or any of Buyer’s Affiliates of a bankruptcy or similar insolvency proceeding under applicable law; (iii) the appointment of a receiver trustee, administrator, statutory manager, or analogous appointment for Buyer or any of Buyer’s Affiliates; (iv) an assignment of all or part of Buyer’s or any of Buyer’s Affiliates’ assets or business for the benefit of creditors; or (v) administrative insolvency (as defined under applicable law) or analogous condition of Buyer or any of Buyer’s Affiliates.
Performance: Failure by Buyer to timely perform any other obligation under any agreement Buyer has with Seller.
In addition to Seller’s rights and remedies under the Supply Agreement, if a Buyer Event of Default occurs, at Seller’s option and without demand, notice, or legal process, Seller may exercise any and all of its rights and remedies under any contract of which these General Terms and Conditions are a part or of any security agreement entered into in connection herewith and/or under applicable law, including without limitation, (i) suspending performance under the contract; (ii) accelerating payment obligations such that all amounts owed under the contract are immediately due and payable; (iii) terminating the contract with immediate effect; or (iv) exercising its rights against collateral and applying the proceeds against amounts due and owing under the contract.
LIMITATIONS ON WARRANTY AND LIABILITY:
(a) Seller warrants that, at the time of shipment from Seller’s facilities, the Products meet the descriptions and specifications set forth in Seller’s Product Data Sheets. Product Data Sheets for the Products are published on Seller’s website at: www.exxonmobil.com/lubes. THERE ARE NO GUARANTEES OR WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR OF FITNESS OR SUITABILITY OF THE PRODUCT FOR ANY PARTICULAR PURPOSE OR OTHERWISE, WHETHER USED ALONE OR IN COMBINATION WITH OTHER SUBSTANCES OR IN ANY PROCESS, WHICH EXTEND BEYOND THE DESCRIPTION OR SPECIFICATIONS OF THE PRODUCT SET FORTH IN THE PRODUCT DATA SHEET AS OF THE DATE OF SHIPMENT.
(b) This warranty is given instead of, and excludes, all other express or implied conditions, warranties, or other contractual undertakings concerned with any of the following: the condition or quality of the Products, fitness of the Products for any particular purpose, or compliance of the Products with any description which might otherwise arise under any statute.
(c) If Product is proved not to meet the specifications set forth in Seller’s Product Data Sheets, Seller may, at its option, replace it at the next mutually convenient place where supplies can reasonably be made available or refund any sums paid by Buyer for the Product. Buyer will accept such replacement or repayment in satisfaction of all claims it may have with regard to the defect(s).
(d) Seller’s maximum liability for all claims for any reason is the invoice price of the Product(s) involved. Neither Party will be liable to the other Party in contract, tort, negligence, breach of statutory laws, or otherwise for any losses, damages, costs, or expenses of any nature whatsoever that may be incurred or suffered by or in any event could otherwise be awarded to that other Party which are of a special, incidental, punitive, consequential, indirect, or exemplary nature, including, without limitation, any economic loss or other loss of turnover, profits, business, or goodwill.
(e) The remedies set forth in this Section 7 are exclusive, and no other remedy or remedies are available to Buyer, whether in law or equity. Buyer and Seller agree that the remedies contained herein are adequate remedies.
CLAIMS: Any claim for deficiency in quantity or quality is hereby waived unless Buyer, within thirty (30) days after delivery, gives written notice of such claim to Seller at its indicated address and, where practicable, gives Seller or Seller’s Agents an opportunity to inspect the Product(s) in question. Any claim of any other kind (not relating to quantity or quality) based on, or arising out of, any contract of which these General Terms and Conditions are a part is hereby waived unless Buyer gives written notice to Seller at its indicated address within thirty (30) days after the event, action, or inaction to which such claim relates. Any claim of any kind by Buyer, based on or arising out of such contract, is barred unless asserted by Buyer by commencement of an action against Seller within twelve (12) months after delivery or other event, action, or inaction to which such claim relates. This provision shall survive any termination of such contract.
INDEMNIFICATION: Buyer will indemnify and hold Seller, its Affiliates, and Seller’s Agents harmless against any losses, damages, costs, or expenses (including reasonable attorney fees), which Seller, its Affiliates, or Seller’s Agents may incur or for which Seller, its Affiliates, or Seller’s Agents may become liable, arising out of the wrongful or negligent acts or omissions of Buyer, of its employees, officers, or directors, or of Buyer’s Agents in connection with any contract of which these General Terms and Conditions are a part.
Seller will indemnify and hold Buyer harmless against any losses, damages, costs, or expenses (including reasonable attorney fees), which Buyer may incur or for which Buyer may become liable, arising out of the wrongful or negligent acts or omissions of Seller, of its employees, officers, or directors, or of Seller’s Agents in connection with any contract of which these General Terms and Conditions are a part.
GROSS NEGLIGENCE AND WILLFUL MISCONDUCT: Notwithstanding anything to the contrary contained in these General Terms and Conditions or in any contract of which these General Terms and Conditions are a part, each Party will bear full responsibility, without limit, and in no event will be required to indemnify the other for, any gross negligence or willful misconduct attributable to its managerial or senior supervisory personnel.
HEALTH AND SAFETY: Seller will provide Buyer or Buyer’s Agents any Material Safety Data Sheets, which include safety and health information and warnings concerning the Products and the containers for such Products sold hereunder, that are required by regulations in place at the agreed Point(s) of Delivery. Buyer agrees to communicate such information to all persons Buyer can reasonably foresee may be exposed to or who may handle such materials or containers, including, but not limited to, Buyer’s employees, Agents, contractors, and customers. Buyer will instruct its employees, Agents, contractors, and customers on the safe handling, use, selling, storage, transportation, and disposal of the Products. If Buyer fails to disseminate such information, Buyer agrees to indemnify Seller, its Affiliates, and their officers, directors, and employees, as well as Seller’s Agents, against any and all losses, damages, costs, expenses (including reasonable attorney fees), or any other liability arising out of or in any way connected with such failure, including, but not limited to, liability for personal injury, sickness, death, and property damage and loss.
(a) If an escape, spillage, or discharge of Product (“Spill”) occurs while Product is being delivered to Buyer, Buyer will promptly inform Seller and agree with Seller to take such action as is reasonably necessary to remove the Product and mitigate the effects of the Spill. However, notwithstanding the cause of the Spill, Seller may, at its option, upon notice to Buyer (or to Buyer’s employees, officers, or Agents) take such measures and incur such expenses as are reasonably necessary, in the judgment of Seller, to remove the Product and mitigate the effects of the Spill. Buyer will cooperate and render such assistance as is required by Seller in the course of such action. Any expenses, damages, costs, fines, or penalties arising from the Spill (for purposes of this section, “Costs”) shall be paid by the Party that caused or contributed to the Spill by its negligent acts or omissions. If both Parties have acted negligently, the Costs shall be divided between the Parties in accordance with their respective degree of culpability. Each Party agrees to indemnify the other Party and to hold it harmless against all Costs which, under this Section, are stated to be for the account of the indemnifying party.
(b) At Seller’s request, Buyer agrees to provide Seller with all documents and other information concerning any Spill or any program for prevention.
DELIVERY, TITLE, AND RISK OF LOSS: Title to the product and risk of loss shall pass to Buyer or Buyer’s Agent at the named point of delivery or upon delivery to a carrier at Seller’s point of supply if Buyer’s location or INCOTERMS are not otherwise specified. If Seller is to pay freight, selection of carrier and routing of shipments shall be at Seller’s option.
MINIMUM ORDER RESTRICTIONS, SERVICES, SURCHARGES AND LEAD TIMES: Buyer’s order will be subject to Minimum Order Restrictions, Service Charges, Surcharges and Lead Time Restrictions in effect at the time of the order unless otherwise agreed to by the Parties.
SPECIFICATION CHANGES AND PRODUCT DISCONTINUANCE: Seller may, at its discretion:
(a) change or alter the quality or specifications of any of the Products sold pursuant to any contract of which these General Terms and Conditions are a part, or (b) discontinue the manufacture of any such Products. If, in the opinion of Seller, such change or alteration will materially affect the performance of such Products, Seller will give Buyer thirty (30) days’ written notice, and Buyer may terminate any such contract with respect to the supply of such Products.
FORCE MAJEURE; CONTINGENCIES:
(a) Seller, its Affiliates, and Seller’s Agents are not liable for loss, damage, or demurrage due to any delay or failure in performance (except for payment obligations), in whole or in part, caused (i) by circumstances reasonably beyond the control of Seller, including but not limited to acts of God, acts or threats of terrorism, transportation failure, breakdowns, diminishment or failure of power, telecommunications, data systems, or networks, equipment failure, shortage or inability to obtain Product or raw material for Product, and good-faith compliance with any governmental order or the request (whether valid or invalid) of any governmental authority or person purporting to act therefore; or (ii) when the supply of Product, or any constituent thereof, or any facility of production, manufacture, storage, transportation, distribution, or delivery contemplated by Seller, its Affiliates, or Seller’s Agents is, for any cause whatsoever not within the reasonable control of Seller, its Affiliates, or Seller’s Agents, interrupted, unavailable, or inadequate. Seller, its Affiliates, and Seller’s Agents will not be required to remove any such cause or replace any affected source of supply or facility if doing so would involve additional expense or a departure from Seller’s, its Affiliates’, Seller’s Agents’, or Seller’s suppliers’ normal practice. Where Seller invokes force majeure, Seller will (i) immediately notify the Buyer as soon as reasonably practicable, (ii) make commercially reasonable efforts to mitigate the impact of the cause of non-performance and remedy the same, and (iii) resume performance under this Agreement as soon as this cause has gone, with Buyer being released from its contractual obligations until such time. Notwithstanding any other notice requirement in this Agreement, actual notice (e.g., phone, email, letter) to a counterparty of a delay or failure described in this provision will constitute effective notice for purposes of this provision.
b) Notwithstanding the provisions of the above paragraph, if Seller, its Affiliates, or Seller’s Agents at any time and for any reason (including a force majeure event as set forth above in Section 16(a)) believe that there may be such a shortage of supply of Product(s) such that Seller may be unable to meet the demands of all its customers, Seller, its Affiliates, and Seller’s Agents may allocate Seller’s available and anticipated supply of Product(s) among its customers in a fair and equitable manner as determined in Seller’s sole discretion. Seller, its Affiliates, and Agents will not be required to make up any deliveries omitted in accordance with this Clause. Buyer will not be liable for failure to receive Product if prevented from receiving or using Product in its customary manner by any cause beyond its reasonable control, provided that nothing contained herein excuses Buyer from full and timely payment for any and all Products delivered.
If a contingency of the kind addressed in this Section 16(b) persists for a continuous period of sixty(60) days, either Party is entitled to terminate any contract of which these General Terms and Conditions are a part by giving the other Party at least thirty (30) days’ written notice.
GOVERNMENT OFFICIALS AND CONFLICTS OF INTEREST:
(a) Government Officials. Buyer represents and warrants that no part- or full-time government official, government employee, or public servant (hereafter an “Government Official”) or close relative of a Government Official has or will have any direct or indirect ownership or other legal or beneficial interest in it or any of Buyer’s Affiliates, or in the contractual relationship established by or related to any contract of which these General Terms and Conditions are a part, and that no such Government Official serves as an officer, director, employee, or Agent of Buyer.
(b) Conflicts of Interest. The Parties desire to avoid any actual or apparent conflict between their employees’ and Agents’ own personal interest and the interest of the other Party. To that end, Buyer shall establish and maintain precautions to prevent its employees and Agents from engaging in any conduct or activity for the purpose of, or that might have the apparent purpose of, influencing employees or Agents of Seller, its Affiliates, or Seller’s Agents to act contrary to the best interests of Seller. Such prohibited conduct includes, but is not limited to, making, receiving, providing, exchanging, or offering: gifts exceeding a nominal value; entertainment beyond that which can be considered normal and customary in a business setting; or payments, loans, ownership interests, or anything of value, to employees or Agents of Seller or to third parties as stated below. The obligation in this Section 15(b) also applies to the activities of Buyer’s employees and Agents with respect to their interactions with the close family members of Sellers’ employees, of Seller’s Affiliates employees, and of Seller’s Agents.
EXPORT COMPLIANCE: The sales of Products under any contract of which these General Terms and Conditions are a part, unless otherwise indicated, constitute domestic sales within the United States. In the event Buyer elects to export, re-export, or transfer Product, Buyer undertakes to determine any Export License requirements, to obtain any Export License or other official authorization, and to carry out any customs and export formalities for the export of Product in accordance with the requirements of the Export Administration Regulations for routed export transactions.
COMPLIANCE WITH LAWS: Each Party promises that:
(a) the execution and performance of its obligations relating to any contract of which these General Terms and Conditions are a part do not, and will not, violate or conflict with any law applicable to it, any order of any governmental or regulatory body, or any contractual restriction binding on it; and
(b) it has complied with and will comply with all laws, regulations, orders, and requirements of all competent authorities relating to the performance of its duties contemplated herein.
Notwithstanding anything to the contrary, no provision herein shall be interpreted or applied so as to require either Party to do, or refrain from doing, anything which would constitute a violation of, or result in a loss of economic benefit under, the anti-boycott, export controls, or trade sanctions laws or regulations of the United States.
IMMEDIATE TERMINATION: In the event that Seller determines, in its sole discretion, that Buyer has failed to comply with the terms of Sections 17, 18, or 19 of these General Terms and Conditions, or that Buyer has misrepresented, either affirmatively or by omission, any representation or warranty required in Sections 17, 18, or 19, Seller may, in its sole discretion, immediately terminate any contract of which these General Terms and Conditions are a part.
JURISDICTION, LAW, AND ENFORCEMENT:
(a) Any contract of which these General Terms and Conditions are a part will be governed by and construed in accordance with the laws of the State of New York to the exclusion of any conflicts of law rules which would apply the laws of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply.
(b) Any claim arising out of or relating to any contract of which these General Terms and Conditions are a part, will be brought exclusively in a court of competent jurisdiction in New York, New York, and the Parties hereby consent to personal jurisdiction in such a court.
ENTIRE AGREEMENT: Unless expressly made part of another agreement between the Parties, these General Terms and Conditions constitute the entire agreement between the Parties regarding the subject matter hereof and control any sale and delivery of Products by Seller, its Affiliates, or Seller’s Agents. Any terms or conditions of any order, any other purchase order, or any other documents that are at variance with this Agreement shall be void and of no effect. THERE ARE NO ORAL UNDERSTANDINGS, REPRESENTATIONS, OR WARRANTIES REGARDING THE SALE AND DELIVERY OF PRODUCTS THAT ARE NOT FULLY SET FORTH HEREIN.
(a) Official Language. Any contract of which these General Terms and Conditions are a part shall be executed and performed in the English language.
(b) Headings. The headings and organization of any contract of which these General Terms and Conditions are a part are for convenience only and in no way limit, amplify, or otherwise affect the terms of such contract.
(c) Amendment. These General Terms and Conditions may not be amended, and no terms or conditions will be deemed added to these General Terms and Conditions, unless the amendment, additional terms, or conditions are signed by duly authorized representatives of both Buyer and Seller.
(d) Prevalence. The terms and conditions set forth herein will prevail over any terms put forward by Buyer, either prior or subsequent to Buyer having received these General Terms and Conditions, unless Seller expressly agrees to those terms in writing. Seller’s acknowledgment or acceptance of purchase order forms containing terms or conditions at variance with those set forth herein will have no effect and will not modify the terms and conditions set forth herein.
(e) Assignment. Any contract between Buyer and Seller of which these General Terms and Conditions are a part may not be assigned in whole or in part by Buyer or Seller without the written consent of the other Party, except that Seller may upon written notice to Buyer assign its obligation under any such contract to any Seller Affiliate.
(f) Subcontracting. Seller reserves the right to carry out its obligations (either in part or in whole) hereunder through its Affiliates or its authorized distributors Agents.
(g) No Waiver. No claim or right arising out of any contract of which these General Terms and Conditions are a part may be discharged in whole or in part by waiver or renunciation of the claim or right unless the waiver or renunciation is supported by consideration and is in writing and signed by the aggrieved party.
(h) Severability. Should any provision hereof be finally determined to be inconsistent with or contrary to applicable law, such provision will be deemed amended or omitted to conform therewith without affecting any other provision hereof or the validity thereof.
(i) Right to Enforce. Seller’s Affiliates and Agents have the right to enforce and rely upon the terms of any contract of which these General Terms and Conditions are a part.
(j) Relationship of Parties. Both Parties, in the performance of any contract of which these General Terms and Conditions are a part, are separate legal entities and are each acting in their own capacity and not as employees, partners, joint venturers, fiduciaries, associates, or agents of one another, and neither has the power or authority to bind or obligate the other, except as may otherwise be provided by agreement. The employees or Agents of one Party are not the employees or Agents of the other for any purpose whatsoever.
(k) Confidentiality. Each Party, including Affiliates and Agents, will treat as proprietary and confidential any information so identified that is disclosed to it by the other Party, including, but not limited to, the contents and terms of any contract of which these General Terms and Conditions are a part and the transactions contemplated hereby; and, except as necessary for the performance of any such contract, will make no disclosures with respect to such matters without the express written consent of the other Party. A Party may make disclosures to the extent they are required by applicable law, provided the disclosing Party gives the other Party as much notice as possible and takes all reasonable steps to preserve confidentiality as permitted by law.
(l) Press Releases. Buyer will not issue any press releases or make public statements concerning Seller or any of Seller’s Affiliates without prior written approval of Seller.
(m) Trademarks. Nothing contained herein confers upon Buyer the right to use Seller’s or Seller’s Affiliates’ trademarks, trade dress, or brand names.
(n) Data protection. Buyer agrees that any information or data communicated by Buyer may be subject to data processing by Seller, its Affiliates, or Seller’s Agents for purposes related to Buyer’s purchase of Product, including, but not limited to, the keeping of customer records and accounts, invoicing, product supply, marketing, and the enhancement of service quality. Such information and data may be transferred and stored outside the territory of the European Economic Area. If the information or data should cross the borders of the European Economic Area, Seller warrants that it will be handled with the same care as within the European Economic Area. According to applicable law, Buyer has a right of access and rectification of its information and data by sending a letter to Seller.