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General Terms and Conditions of Purchase

          Revised January 2018

CLAUSE TITLE AND NUMBER

GENERAL PROVISIONS

 

DEFINITIONS

1

ANTI-HUMAN TRAFFICKING

12

SELLER'S OBLIGATIONS

2

SUSPECT/COUNTERFEIT PARTS

13

ORDER OF PRECEDENCE

3

CONFLICT MINERALS

14

PRICE OF THE GOODS AND SERVICES

4

COMPLIANCE WITH LAWS

15

DELIVERY

5

SUPPLIER STANDARDS OF BUSINESS CONDUCT

16

PAYMENT

6

NOTIFICATION OF STATUS CHANGE

17

RISK AND PROPERTY

7

RESPONSE TO AUDIT

18

WARRANTIES AND LIABILITY

8

GENERAL

19

TERMINATION

9

SPECIFICATIONS AND INTELLECTUAL PROPERTY

20

PROHIBITED ACTIVITIES

10

CONFIDENTIALITY AND DATA PROTECTION

21

EXPORT AND IMPORT COMPLIANCE

11

 

 

 

 

                1.     DEFINITIONS

1.1   In these Conditions:

"Conditions" means these standard terms and conditions of purchase;

"Contract" means this Contract comprising the Order, the Conditions and any Specification or Special Terms for the purchase of the Goods and/or the supply of Services;

Day” means calendar day;

"Delivery Address" means the address stated on the Order;

Developed IPR” will have the meaning attributed to it in Clause 20.3;

"Goods" means the goods (including any instalment of the goods or any part of them) described in the Order;

"Intellectual Property" means (i) patents, inventions, designs, copyright and related rights, database rights, trademarks, trade names (whether registered or unregistered), and rights to apply for registration; (ii) proprietary rights in domain names; (iii) knowhow and confidential information; (iv) applications, extensions and renewals in relation to any of these rights; and (v) all other rights of a similar nature or having an equivalent effect anywhere in the world which currently exist or are recognised in the future;

"Order" means the Buyer's purchase order for the Goods and Services;

"Price" means the price of the Goods and/or the charge for the Services set out in the Order;

"Seller" means the legal entity that is supplying the Goods or Services;

"Services" means the service (if any) described in the Order and includes any deliverables provided as part of the Services;

"Special Terms" means any special terms agreed between the parties and which are appended to or incorporated in the Order, or to which these Conditions are appended; and

"Specification" means any plans, drawings, data or other information relating to the Goods or Services appended to or incorporated in the Order.

1.2   The headings in these Conditions are for convenience only and will not affect their interpretation.

1.3   A person includes a corporate or unincorporated body, words in the singular include the plural and in the plural include the singular and references to one gender includes a reference to the other gender.

1.4   Writing or written includes faxes and e-mails.

2.     SELLERS OBLIGATIONS

2.1   The Seller will comply with all applicable regulations or other legal requirements concerning the manufacture, packaging, packing and delivery of the Goods and the performance of the Services, including any regulations for goods classified as hazardous (including the Waste Electrical and Electronic Equipment Directive (2012/19/EU), REACH EC 1907/2006 and the Restriction of the Use of Certain Hazardous Substances in Electrical and Electronic Equipment Directive (Directive 2011/65/EU), and will inform the Buyer of any need for the Buyer to comply with such regulations or requirements in relation to the receipt and onward supply of the Goods and Services and where applicable will provide the Buyer with all necessary information to enable compliance (including any material safety data sheets that exist for any product or compound supplied as a free standing compound within the Goods).

2.2   The Seller will not unreasonably refuse any request by the Buyer to inspect and test the Goods during manufacture, processing or storage at the premises of the Seller or any third party prior to despatch, and the Seller will provide the Buyer with all facilities reasonably required for inspection and testing.  Any such inspection will not relieve the Seller of its obligations under this Contract nor imply acceptance by the Buyer.

2.3   If as a result of inspection or testing the Buyer is not satisfied that the Goods comply in all respects with the Contract, and the Buyer so informs the Seller within seven (7) Days of inspection or testing, the Seller will promptly take such steps as are necessary to ensure compliance.  The Buyer may conduct further inspections and tests after the Seller has carried out such steps necessary to ensure compliance.

2.4   The Goods will be marked in accordance with the Buyer's instructions and any applicable regulations or requirements of the carrier, and properly packed and secured suitable for onward sea and/or air freight so as to reach their destination in an undamaged condition in the ordinary course.  For the avoidance of doubt, all drums, containers and other packaging will be non‑returnable unless otherwise agreed in writing.

2.5   All Orders are placed by the Buyer on condition that spare parts and identical replacements for the Goods supplied by the Seller will be available to the Buyer at a fair and reasonable price for a period of ten (10) years from the date of the Order and that prior to the Goods or spare parts thereof being made obsolete at least twelve (12) months' written notice will be given by the Seller.

2.6   The Seller must advise the Buyer in writing of all the proposed changes in the Specification or method of construction and assembly of the Goods supplied including but not limited to changes in form, fit or function, service life, reliability, maintainability, interchangeability or safety.  In the event of the Buyer accepting the changes written approval will be provided to the Seller.  For the avoidance of doubt, this shall not affect the Buyer's rights of inspection under this Section 3 or imply any acceptance by the Buyer.

3.     ORDER OF PRECEDENCE

3.1   The Order constitutes an offer by the Buyer to purchase the Goods and/or acquire the Services subject to these Conditions.  The Order shall be deemed to be accepted on the earlier of the Seller issuing a written acceptance of the Order or the Seller doing any act consistent with fulfilling the Order, at which point the Contract will come into existence.

3.2   In the case of any conflict or ambiguity between any provisions contained in these Conditions, the Order or any Special Terms which have been agreed between the parties, the order of precedence shall be as follows:

3.2.1        the Special Terms;

3.2.2        the Order;

3.2.3        these Conditions.

3.3   These Conditions will apply to this Contract to the exclusion of any other terms and conditions which have been given to the Buyer or subject to which the Order is purported to be accepted by the Seller.  The Seller waives any right it might otherwise have to rely on any term endorsed upon, delivered with or contained in any documents of the Seller.

4.     PRICE OF THE GOODS AND SERVICES

4.1   Unless otherwise stated in the Order, the Price for Goods will be:  (a) exclusive of any applicable value added or other sales tax (which will be payable by the Buyer subject to receipt of a VAT or other sales invoice); and (b) be inclusive of all charges for packaging, packing, shipping, carriage, insurance and delivery of the Goods DDP to the Delivery Address (Incoterms 2010) and any duties, imposts or levies other than value added tax.  Prices for Services will be as set out in the Order.

4.2   No increase in the Price or extra charges may be made (whether on account of material, labour, or transport costs, fluctuations in rates of exchange or otherwise) without the prior consent of the Buyer in writing.

4.3   The Buyer will be entitled to, and afforded, any discount for prompt payment, bulk purchase, or volume of purchase customarily granted by the Seller, whether or not shown on the Order.

5.     DELIVERY

5.1   The Goods will be delivered to, and the Services will be performed at, the Delivery Address on the date or within the period stated in the Order, in each case during the Buyer’s usual business hours.

5.2   The Buyer will, without penalty, be entitled to delay or reschedule the date or period of delivery stated in the Order by giving not less than seven (7) Days’ notice to the Seller, specifying the revised date or period for delivery of the Goods or performance of the Services.

5.3   Where the date of delivery of the Goods, or performance of the Services, is to be specified after the placing of the Order, the Seller will give the Buyer reasonable notice of the specified date.

5.4   The time of delivery of the Goods and of performance of the Services is of the essence of this Contract.

5.5   Subject to the exercise by the Buyer of the provisions of Clause 5.2, if the Goods are not delivered or the Services are not performed on the due date or within the specified period then the Buyer will be entitled to deduct from the Price or (if the Buyer has paid the Price) to claim from the Seller by way of liquidated damages for delay, nought point one percent (0.1%) of the Price for every Day of delay up to a maximum of ten percent (10%) of the Price, at which time the Buyer will be entitled, without penalty, to terminate this Contract with immediate effect on notice to the Seller.  The provisions of this Clause 5.5 will be without prejudice to any other remedy of the Buyer, including the right to recover from the Seller any loss or damage incurred by the Buyer in excess of the amount of liquidated damages paid by the Seller.

5.6   If the Goods are to be delivered, or the Services are to be performed by instalments, the Contract will be treated as a single contract and not severable.

5.7   The Buyer will be entitled to reject any Goods delivered which are not in accordance with this Contract and the Buyer will not be deemed to have accepted any Goods until the Buyer has had a reasonable time, in no event less than thirty (30) Days, to inspect them following delivery, or in the case of a latent defect in the Goods until a reasonable time after the latent defect has become apparent.

5.8   The Seller will supply the Buyer in good time with any instructions or other information required to enable the Buyer to accept delivery of the Goods and performance of the Services.

5.9   This Section 6 shall apply to any repaired or replacement Goods supplied by the Seller.

5.10 The Buyer's rights and remedies under this Section 6 are in addition to its rights and remedies implied by statute and common law.

6.     PAYMENT

6.1   The Seller will be entitled to invoice the Buyer on, or any time after, delivery of the Goods or performance of the Services, as the case may be, and each invoice will quote the number of the Order.

6.2   Unless otherwise agreed in writing, the Buyer will pay the price of the Goods and the Services within sixty (60) Days after the end of the month of receipt by the Buyer of a properly constituted invoice or if later, after acceptance of the Goods or Services by the Buyer.  No payments will be made until the Goods and Services have been accepted.

6.3   Payment may be delayed if the Seller fails to:  (a) supply the required documentation quoting the relevant Order number, or (b) send a monthly statement of account quoting the invoice numbers applicable to each item, but the Buyer will remain entitled to all prompt payment discounts.

6.4   If following receipt of any invoice the Buyer notifies the Seller in writing of a bona fide dispute concerning the Price payable under such invoice, the Buyer will pay any undisputed amount but will be entitled to withhold the amount in dispute pending resolution in accordance with Clause 19.6.  The Seller's obligations to provide the Goods and Services shall in no way be affected by any such dispute.

6.5   The Buyer will be entitled to set off against the Price any sums owed to the Buyer by the Seller under this Contract or any other contract between the parties.

6.6   Any sums not paid to the Seller by the Buyer on the due date will be subject to an interest charge to the Buyer at the rate of two per cent (2%) above the Base Rate of Barclays Bank PLC compounded monthly on all amounts overdue until payment is made.

7.     RISK AND PROPERTY

7.1   Risk of damage to or loss of the Goods will pass to the Buyer upon delivery to the Buyer at the Delivery Address in accordance with this Contract.

7.2   Title in the Goods will pass to the Buyer upon delivery.  Notwithstanding Clauses 5.7 and 6.2, if the Buyer agrees to make payment (in part or in full) for the Goods prior to delivery, title will pass to the Buyer once payment has been made for such Goods or the Goods (including all materials which the Seller acquires or allocates for incorporation in any of the Goods) have been appropriated to the Contract, but such payment shall not constitute acceptance of the Goods.

8.    WARRANTIES & LIABILITIES

8.1   The Seller warrants to the Buyer that the Goods will be:  (a) new and of best quality and be fit for the purposes held out by the Seller or made known to the Seller in writing at the time the Order was placed; (b) free from defects in design, material and workmanship; (c) free from any export licence restrictions or regulations; (d) correspond with any relevant Specification or sample or the Special Terms; and (e) in compliance with all applicable statutory requirements and regulations relating to the sale of the Goods.

8.2   The Seller warrants to the Buyer that the Services will be performed by appropriately qualified and trained personnel, performed with due skill, care and diligence and to such a high standard of quality as it is reasonable for the Buyer to expect in all the circumstances in accordance with any Special Terms and in compliance with all applicable statutory requirements and regulations concerning the performance of the Services and with all applicable policies of the Buyer where Services are carried out at the Delivery Address.

8.3   Without prejudice to any other remedy available to the Buyer, if the Goods or Services are not supplied or performed in accordance with this Contract, then the Buyer will be entitled:  (a) to require the Seller, at the Seller’s expense to repair or supply replacement Goods or re-perform the Services as the case may be in accordance with this Contract within seven (7) Days of notification; or (b) at the Buyer’s sole option, and whether or not the Buyer has previously required the Seller to repair the Goods or to supply any replacement Goods or re-perform the Services, to treat this Contract as discharged by the Seller’s breach and require the repayment of the Price (or any part thereof) which has been paid by the Buyer in respect of such rejected Goods and Services.

8.4   The risk in any rejected Goods will revert to the Seller with effect from the date of the Buyer’s rejection notice but the title in the Goods will only revert to the Seller once the Seller has complied with its obligations under Clause 8.3.

8.5   The Seller will indemnify the Buyer in full against all liability, loss, damages, costs and expenses (including legal expenses) awarded against or incurred by the Buyer as a result of or in connection with:  (a) breach of any warranty given by the Seller in relation to the Goods or the Services; (b) any loss of or damage to property including the property of the Buyer and any personal injury or death caused in whole or in part by the neglect, act or omission of the Seller, its employees or agents; (c) any act or omission of the Seller or its employees, agents or sub-contractors in manufacturing, supplying, delivering and installing the Goods or carrying out the Services; and (d) any act or omission of any of the Seller's personnel in connection with the performance of the Services.

8.6   Nothing in this Contract will exclude or limit the liability of either party to the other party for (a) death or personal injury resulting from the negligence of that party or any of its respective directors, officers, employees, contractors or agents; (b) in respect of fraud, wilful acts of default or misconduct by that party or any of its respective directors, officers, employees, contractors or agents; (c) any damage to the tangible property of a party; (d) breach of the provisions set out in Clause 10.1; (e) pursuant to any indemnity given by a party; or (f) any other liability that cannot be excluded or limited by applicable law.

8.7   The Seller warrants that it will not solicit the Buyer's staff for employment during the period of fulfilment of the Contract or for a period one (1) year thereafter.

8.8   Subject to the foregoing, the Buyer’s liability under this Contract will be limited to the Price.

8.9   This Section 8 shall survive termination of the Contract.

9.     TERMINATION

9.1   The Buyer will be entitled to cancel the Order in respect of all or part of the Goods and/or the Services by giving notice to the Seller at any time prior to delivery of the Goods or performance of the Services, in which event the Buyer’s sole liability will be to pay the Seller its documented, reasonable and unavoidable out-of-pocket costs, less the disposal value of any Goods resulting from such cancellation, subject always to Buyer's receipt of notice thereof and a detailed invoice therefore being presented within thirty (30) Days of such cancellation.

9.2   The Buyer will be entitled to terminate this Contract without liability to the Seller by giving notice to the Seller at any time if:  (a) the Seller commits any material breach of any of the terms of the Contract (which for the avoidance of doubt, shall automatically include a breach of Clauses 10.1 or 15); or (b) the Seller makes any voluntary arrangement with its creditors (within the meaning of the insolvency Act 1986) or becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction), is unable to pay its debts as they become due, suffers any act of bankruptcy, any resolution or petition to wind up the Seller is passed or a third party seizes or threatens to seize the Goods and/or Services before legal ownership has passed to the Buyer in accordance with this Contract, an encumbrancer takes possession, or a receiver is appointed of any of the property or assets of the Seller, it ceases or threatens to cease to carry on business or any circumstance arises or event occurs in relation to the Seller or any of its material assets in any country or territory in which it carries on business or to the jurisdiction of whose courts it or any of its assets is subject which corresponds with or has an effect equivalent or similar to any of those stated in this sub-Clause 9.2(b).

9.3   The Seller may terminate the supply of any Goods or the performance of any Services under the Contract, in whole or in part, at any time by giving at least ninety (90) Days' notice to the Buyer in writing.  The Seller will thereupon reimburse any sums paid by the Buyer to the Seller in respect of the relevant Goods and/or Services plus any unavoidable costs arising from such termination including any increased costs in procuring the Goods and/or Services from an alternative supplier.

9.3   Upon the expiration or termination of this Contract for whatever reason, each party will return to the other party all material and information received in the performance of the Contract relating to the other party and its business connections, other than normal correspondence, letters, orders and the like.

9.4   The termination or expiry of this Contract will not prejudice or affect any right of action or remedy which will have accrued or will thereafter accrue to either party.

10.   PROHIBITED ACTIVITIES

10.1 Anti-Corruption Compliance:  The Seller represents, warrants and covenants that:

10.1.1      It has not and will not, directly or indirectly, pay, promise, offer, or authorise the payment of any money or anything of value to:

(a)    an officer, employee, agent or representative of any government, including any department, agency, or instrumentality thereof or any person acting in an official capacity thereof;

(b)   a candidate for political office, any political party or any official of a political party; or

(c)    any other person or entity;

while knowing or having reason to know that all or any portion of such payment or thing of value will be offered, given or promised, directly or indirectly, to any person or entity for the purpose of assisting the Buyer in obtaining or retaining business (including this Contract), or an improper business advantage.  Without limiting the generality of the foregoing, the Seller shall not directly or indirectly, pay, promise, offer, or authorise the payment of any facilitation payment intended to expedite or secure performance of a routine governmental action, such as, customs clearance on behalf of the Buyer.

10.1.2      No gratuities such as, but not limited to, gifts, travel expenses, business courtesies, hospitalities or entertainment of any nature have been or will be accepted or made in connection with this Contract where the intent was, or is, to unlawfully influence the recipient of the gratuity.  The Seller also represents that any gratuities offered or provided shall meet the following conditions:

(a)    be permitted under the UK Bribery Act and US Foreign Corrupt Practices Act and the laws and regulations of the country in which this Contract will be performed;

(b)   be consistent with applicable social and ethical standards and accepted business practices;

(c)    be of such limited value as not to be deemed a bribe, payoff or any other form of improper inducement or payment; and

(d)   be of such nature that its disclosure will not cause embarrassment for the Buyer.

10.1.3      Breach of any of the foregoing provisions of Clauses 10.1.1 and 10.1.2 by the Seller shall be considered an irreparable material breach of this Contract and shall entitle the Buyer to terminate this Contract immediately without compensation to the Seller.

10.2 Prohibited Activity:  Unless specifically authorised in writing by the Buyer, the Seller shall not engage in any of the following activities on behalf of the Buyer under this Contract:  acting as an agent of the Buyer; marketing or sales promotion; lobbying; freight forwarding; consulting services; performing offset (industrial participation) consulting or brokering services; acting as a distributor or reseller; or activity as a joint venture party.

10.3 Prohibited Contact:  Unless specifically authorised in writing by the Buyer, the Seller shall not contact, either directly or indirectly, public officials of any country other than the United States of America (“USA”), United Kingdom (“UK”), Canada, Australia, Germany, France, or Italy in furtherance of its performance on behalf of the Buyer under this Contract.

10.4 Delivery:  If the Seller is permitted to use terms other than DDP Delivery Address, the Seller shall provide the name and contact information for all freight forwarders, carriers or shipping agents expected to handle the Buyer’s consignment.  The Seller shall provide this information to the Buyer no later than ten (10) Days after order acceptance.  The Seller’s proposed freight forwarders, carriers or shipping agents must have a reputation for honesty and a company policy prohibiting bribes and facilitation payments intended to expedite or secure performance of routine governmental action, such as, customs clearance.  The Buyer retains the right to deny the Seller’s use of the Seller’s proposed freight forwarders, carriers or shipping agents within thirty (30) Days of the Seller’s notification.  If the Goods or Services contain any ITAR controlled information or equipment, the Seller shall ensure that the Buyer’s purchase does not transit through one of the Proscribed Countries listed in the US International Traffic in Arms Regulations (ITAR), 22 CFR 126.1.

11.   EXPORT AND IMPORT COMPLIANCE

11.1 Performance of the Order may involve the use of or access to products and technology of multiple origin, including the USA.  The Seller shall comply with all applicable export laws, rules and regulations including but not limited to those of the UK, the European Union and the USA (collectively hereinafter referred to as the “Export Laws and Regulations”).  From time to time, the United Nations, the European Union (and its Member States individually) and the USA may impose trade sanctions or embargoes involving trade with a particular nation.  The scope of the Export Laws and Regulations identified in this Clause includes such sanctions and embargoes.  The Seller shall comply with any and all Export Laws and Regulations, and any license(s) issued there under.  The Seller is responsible for obtaining at its cost (unless otherwise stated in the Order or Special Terms) all export authorisation(s) required to provide the Goods and/or Services to the Buyer.  The Seller shall not re-transfer any export-controlled information (e.g. technical data, technology or software) in performance of the Order to any other person or entity (including the Seller’s dual and/or third-country national employees) without first complying with all the requirements of the applicable Export Laws and Regulations.  Prior to any proposed re-transfer, the Seller shall first obtain the written consent of the Buyer and ensure any needed export authorisations have been obtained.

11.2 No consent granted by the Buyer in response to any Seller’s request shall relieve the Seller of its obligations to comply with the provisions of Clause 11.1 or the Export Laws and Regulations, nor shall any such consent constitute a waiver of the requirements of Clause 11.1 hereinabove, nor constitute consent for the Seller to violate any provision of the Export Laws and Regulations.

11.3 The Seller shall provide the applicable export controls information (e.g., classification on the UK Strategic Goods List, Export Control Classification Number (ECCN) under the Export Administration Regulation or ITAR categorization) for all Goods furnished and/or Services rendered by the Seller to the Buyer, except when the Seller is manufacturing to the Buyer’s Specification.  If the Goods and Services are based on the Buyer’s Specification, the Buyer will advise the Seller whether the technology and/or resulting Goods and Services are export controlled.  If the Seller is not the Original Equipment Manufacturer (OEM), the Seller shall obtain the applicable export control classification information from its source of supply.  The Seller will include the export controls information on its packing slips and shipping documentation and also provide to the Buyer at the Buyer’s request.

11.4 The Seller shall comply with all applicable customs laws and regulations pertaining to the importations of the Goods and/or Services.  For domestic purchase orders (that is, Orders issued to entities addressed in the same country as the Buyer), the Seller shall assume all import responsibilities.  Unless otherwise agreed in writing, the Buyer will not assume any import responsibility or liabilities for customs duty and other taxes for Goods and/or Services procured through a domestic purchase order.

11.5 The Seller agrees to provide prompt notification to the Buyer in the event of changes in circumstances such as ineligibility to contract with the UK or USA governments and initiation or existence of a government investigation that could affect Seller’s performance under the Order.

12.   ANTI-HUMAN TRAFFICKING

12.1 The Buyer prohibits its employees, agents, subcontractors, suppliers and contract labour from engaging in activities that support or promote trafficking in persons, including, but not limited to, any of the following, whether directly or indirectly:

12.1.1      Trafficking in persons, including, but not limited to the following:

(a)    sex trafficking; or

(b)   the recruitment, harbouring, transportation, provision, or obtaining of a person for labour or services through the use of force, fraud, or coercion for the purpose of subjection to involuntary servitude, debt bondage, or slavery.

12.1.2      The procurement of a commercial sex act;

12.1.3      The use of forced labour in the performance of company business;

12.1.4      The use of any form of child labour;

12.1.5      The use of misleading or fraudulent recruitment activities;

12.1.6      Charging employees’ recruitment fees;

12.1.7      Failing to pay for the return transportation at the end of employment for an employee who is not a national of the country in which the work is taking place and who was brought into that country for the purpose of working;

12.1.8      Providing or arranging housing that fails to meet the host country housing and safety standards; or

12.1.9      If required, failing to provide an employment contract, recruitment agreement, or similar work document in writing, in the individual’s native language and prior to the individual departing from his or her country of origin.

12.2 The Seller represents and warrants that it shall abide by and comply with the requirements of this Clause and any relevant applicable laws or regulations.  Further, the Seller shall require its employees, agents, contract labour, subcontractors and suppliers to abide by and comply with the requirements of this Clause.

12.3 The Buyer or its authorised representatives may, at any time, audit all pertinent books, records, work sites, offices, and documentation of the Seller in order to verify compliance with this Clause.  The Seller will, in all of its lower-tier subcontracts and contracts relating to this or any other Buyer’s Order with the Seller, include provisions which secure for the Buyer all of the rights and protections provided for within this Clause.

12.4 The Seller acknowledges that if the Seller or any of its employees, agents, or contract labour engages in any of the prohibited activities in this Clause, this Order is subject to termination.

12.5 Whenever the Seller has knowledge, whether substantiated or not, that any actual or suspected violation of this Clause has occurred, the Seller shall immediately give written notice to Buyer and provide all relevant information including, but not limited to, the nature of the actual or suspected violation.

12.6 The Seller shall provide its full cooperation during any subsequent investigation of the actual or suspected violation by the Buyer, the Buyer’s representative, or regulatory authority.  Seller’s cooperation shall include, but not be limited to, permitting inspection of its work sites, offices, and documentation, as necessary to support any investigation.

12.7 The Seller shall, at its own expense, defend, indemnify and hold harmless the Buyer and its affiliates, and all of their directors, officers, agents, employees, successors and assigns, against any claims, loss, damage or expense, regardless of how arising and even if unforeseeable, including, without limitation, payment of direct, special, incidental and consequential damages and attorney’s fees, arising out of, or relating to, the Seller’s or the Seller’s employees, agents, subcontractors, suppliers or contract labour’s failure to comply with the requirements of this Clause.

12.8 The Seller agrees to insert the substance of this Clause, including this sentence, in any lower-tier subcontract or labour contract.

13.   SUSPECT/COUNTERFEIT PARTS

13.1 The Seller shall not furnish suspect counterfeit or counterfeit parts to the Buyer under this Contract.  All material delivered under this Contract shall be authentic and traceable to the original manufacturer.  The Seller shall provide authenticity and traceability records to the Buyer upon request.  The Seller shall immediately notify the Buyer if the Seller cannot provide electronic parts, components, and/or assemblies traceable to the original component manufacturer or the original equipment manufacturer.  Upon receipt of such notification, the Buyer reserves the right to terminate this Contract at no cost to the Buyer or require specific material validation test and inspection protocol requirements to the Seller.

13.2 If suspect counterfeit or counterfeit parts are furnished under this Contract and are found in any of the Goods delivered hereunder, such items will be impounded by the Buyer.  The Seller shall promptly replace such suspect/counterfeit parts with parts acceptable to the Buyer.  The Seller shall be liable for all costs relating to the removal and replacement of said parts, including, without limitation, the Buyer's external and internal costs of removing such suspect/counterfeit parts, of reinserting replacement parts and of any testing or validation necessitated by the reinstallation of the Seller's Goods after suspect/counterfeit parts have been exchanged.  The Buyer’s remedies described herein shall not be limited by any other Clause agreed upon between the Buyer and the Seller in this Contract and are in addition to any remedies the Buyer may have at law, equity or otherwise under this Contract.  At the Buyer's request, the Seller shall return any removed suspect counterfeit or counterfeit parts to the Buyer in order that the Buyer may turn such parts over to its customer for further investigation.

13.3 The Seller agrees to insert the substance of this Clause, including this sentence, in any lower tier subcontract.

14.   CONFLICT MINERALS

14.1 If the Seller is providing Goods to the Buyer under the Order, the Seller shall use commercially reasonable efforts to:

14.1.1      identify whether such Goods contain tin, tantalum, gold or tungsten;

14.1.2      determine whether any such minerals originated in covered countries, as defined in Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the “Act”); and

14.1.3      perform appropriate due diligence on its supply chain in support of the Buyer’s obligations under the Act.

14.2 In addition, the Seller shall, as soon as reasonably practicable following the completion of the calendar year, provide a completed Conflict Minerals Reporting Template, using the form found at http://www.conflictfreesourcing.org/conflict-minerals-reporting-template/.  If requested, the Seller will promptly provide information or representations that the Buyer reasonably believes are required to meet the Buyer’s conflict minerals compliance obligations.

15.   COMPLIANCE WITH LAWS

15.1 Without limiting any other obligations under these Conditions, the Seller shall ensure that, at all times in delivery of the Goods and Services, it complies with all applicable laws and regulations, and shall ensure that its employees, agents and representatives similarly comply.

15.2 The Seller shall specifically ensure that it complies with all laws, in any part of the world, in relation to the registration for or payment of any taxes which might be due in connection with the performance of the Services or supply of any Goods, under this Contract.

15.3 The Seller shall maintain environmental, health and safety management systems as appropriate to ensure compliance with applicable laws.  The Seller further agrees to continuously promote a safe and healthy workplace and a sustainable environment related to water and air quality, water and energy conservation, greenhouse gas emission reductions, solid and hazardous waste reductions.  The Seller shall convey the requirement of this Clause to its suppliers.

16.   SUPPLIER STANDARDS OF BUSINESS CONDUCT

16.1 The Seller shall comply with the Northrop Grumman Supplier Standards of Business Conduct (available at http://www.northropgrumman.com/suppliers/OASISDocuments/NGSupplierStandardsofBusinessConduct.pdf) (the “Northrop Grumman Supplier Code”).  The Seller shall ensure that its employees are aware of their contribution to product or service conformity, their contribution to product safety, and the importance of ethical behaviour.  The Seller represents and warrants that it has not participated, and will not participate, in any conduct that violates the Northrop Grumman Supplier Code.  The Seller shall notify the Buyer if at any time the Seller becomes aware of any actual or suspected violation of the Northrop Grumman Supplier Code.  If the Buyer determines that the Seller is in violation of the Northrop Grumman Supplier Code, the Buyer may cancel the Order upon written notice to the Seller and the Buyer shall have no further obligation to the Seller.

17.   NOTIFICATION OF STATUS CHANGE

17.1 The Seller agrees to provide prompt notification to the Buyer of any event or change in circumstances that could affect the Seller’s performance of the Order such as assignment of consent agreement, change in place of performance, decrease in manufacturing capacity, diminishing manufacturing sources or material shortages, increase in production requirements, labour reductions, financial or organizational conflicts of interest, and significant financial conditions requiring any of the preceding changes.

17.2 Sellers that provided anti-corruption compliance due diligence information (e.g., related to its ownership and personnel, subsidiaries and third parties, the due diligence questionnaire, and related certifications) to a Buyer representative or through the Buyer’s Global Trust website shall provide the Buyer with prompt notification and details of any changes to information contained in such due diligence materials, and agrees to promptly cooperate with the Buyer and provide additional information reasonably requested in relation to such changes.  In the event of a material change to information contained in the due diligence material supplied to the Buyer, the Buyer reserves the right to suspend performance under this Contract by providing written notice to the Seller in order for the Buyer to conduct additional anti-corruption due diligence upon such changed circumstances.

17.3 The Seller shall notify the Buyer of any proposed change in Control within thirty (30) days prior to such event.  The notice shall describe in reasonable detail the proposed transaction structure and any proposed changes to management, operations, domicile, key locations, the board of directors and/or ownership (along with a commitment to cooperate with the Buyer and provide additional information reasonably requested related to such proposed change in Control).  The Seller shall not effect a change in Control without prior, written consent from Buyer, such consent not to be unreasonably withheld.  For purposes of this Contract, “Control” means the power, directly or indirectly, to (a) vote more than fifty (50) percent of the securities that have ordinary voting power for the election of the Seller’s directors; or (b) direct, or cause the direction of, the management and policies of the Seller whether by voting power, contract, or otherwise.  If a person obtains Control by acquiring more than fifty (50) percent of the securities that have ordinary voting power for the election of the Seller’s directors, that acquisition may be accomplished by one or multiple transfers.

17.4 Failure to provide the notice under this Clause shall be deemed a material breach of this Contract.

18    RESPONSE TO AUDIT

18.1 The Buyer shall have access to and the right to examine any of the Seller's directly pertinent records involving transactions related to this Contract and to interview any current employee regarding such transactions.  This requirement may not be construed to require the Seller to create or maintain any record that the Seller does not maintain in the ordinary course of business or pursuant to a provision of law.  The Seller shall make available at its office at all reasonable times the records, materials, and other evidence for examination, audit, or reproduction, until three (3) years after final payment under this Contract or for any longer period required by other Clauses of this Contract.

19.   GENERAL

19.1 Force Majeure:  Neither party will be liable to the other for any failure to comply with its obligations due to the following events: acts of God, civil or military disturbances, acts of governmental authority, or industrial action (excluding industrial action of the Seller’s employees) (each a “Force Majeure Event”).  In the event that a party suffers a Force Majeure Event it will notify the other party of such as soon as reasonably possible (and in any event within seven (7) Days) and advise the other party of the date it expects to resume delivery of the Goods or performance of the Services as the case may be.  In the event that the Force Majeure Event endures for more than sixty (60) Days, the parties will meet and review in good faith, the desirability of and conditions for continuation of the Contract and any failure to resolve the same will entitle the Buyer to terminate the Contract (in whole or in part) without further liability to the Seller.  The Buyer will have the right to seek a third party source for Services, at its own expense, during the Force Majeure Event, without liability to the Seller for any Services affected by the Force Majeure Event.

19.2 Assignment and Sub-contracting:  This Contract may not be assigned in whole or in part by either party without the prior written consent of the other party.

19.3 Notices:  Any notice, consent, permission or other communication required or permitted to be given by either party to the other party under the Contract will be: (a) in writing in English; (b) signed by or on behalf of the sender; and (c) addressed to the other party at its registered office or principal place of business or such other address as may have been notified pursuant to this provision to the party giving the notice.  Notices must be delivered by at least one of the following delivery methods: hand, fax, recorded delivery post (or any equivalent postal service) or e-mail.  For notice delivered by fax or email, the delivery fax number and email addresses will be those numbers and addresses as are set out in the Order and/or the Special Terms as the case may be or as notified to the other party from time to time.  Faxes will be deemed received at the time and date shown on the successful fax transmission report and email will be deemed received at the time and date of transmission shown on the saved sent copy.  Notices delivered by hand or post shall be deemed delivered on, if delivered by hand, when left at the address referred to in part (a) of this Clause 19.3 and, if sent by post one (1) Day after receipt of such notice by the Buyer.  The provisions of this Clause 19.3 shall not apply to the service of any proceedings or other documents in any legal action.

19.4 No Waiver:  The failure by the Buyer to exercise, or its delay in exercising, a right, power or remedy provided by this Contract or by law will not constitute a waiver by the Buyer of that right, power or remedy.  If the Buyer waives a breach of any provision of this Contract this will not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.

19.5 Severability:  If any provision, or part of a provision, of this Contract is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable in whole or in part that provision or part-provision will be deemed not to form part of this Contract, and the legality, validity or enforceability of the remainder of the provisions of this Contract will not be affected, unless otherwise required by operation of applicable law.  The parties will use all reasonable endeavours to agree within a reasonable time upon any lawful and reasonable variations to this Contract which may be necessary in order to achieve, to the greatest extent possible, the same commercial effect as would have been achieved by the provision, or part-provision, in question.

19.6 Dispute Resolution:  Should any question, dispute or difference whatsoever arise between the parties in relation to or in connection with this Contract:  (a) the Buyer or the Seller may give notice to the other in writing of the existence of such a question, dispute or difference and nominated representatives of both parties will meet within fourteen (14) Days of such notice to attempt to reach a solution; (b) if the parties are unable to resolve any dispute within fourteen (14) Days of its referral under (a) above, then the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution’s (CEDR’s) Model Mediation Procedure; (c) if no mutually acceptable solution is found pursuant to (b) above, then the matter will be finally settled in accordance with the Arbitration Rules of the International Chamber of Commerce by three (3) arbitrators, which Rules are deemed to be incorporated by reference into this Clause.  Arbitration will take place in London, England and the language to be used in the proceedings will be English; (d) the prevailing party in any arbitration or legal proceeding brought by one party against the other party and arising out of or in connection with this Contract will be entitled to recover its legal expenses, including arbitration costs, court costs and reasonable lawyers and experts fees.

19.7 Governing Law:  The Contract (and any part thereof) and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) will be governed by the laws of England and Wales.  Subject to Clause 19.6, the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Contract (including any non-contractual disputes or claims).

19.8 Offset:  The total value of this Contract is to be applied as offset credit in support of any present or future offset obligations, in the Seller’s country, of the Buyer or its parent company or affiliates.  The Buyer will have the right to assign, sell or otherwise transfer such credits to third parties of its choice.

19.9 Confidentiality:  A party (the “Receiving Party”) will keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (the “Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain.  The Receiving Party will restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under this Contract, and will ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.  This Clause shall survive termination and the parties agree that damages alone would not be an adequate remedy in the event of breach by either party of the provisions of this Clause 19.9.

19.10Entire Agreement:  This Contract represents the entire agreement between the parties with respect to the subject matter hereof and will apply to this Contract to the exclusion of any other terms or conditions purported to apply by any other document.  Each party acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the other party which is not set out in the Contract, and waives all rights and remedies which might otherwise be available to it in relation to any such statement, promise or representation, but for this Clause 19.10.  Nothing in this Contract will exclude or limit either party’s liability for fraud or fraudulent misrepresentation.

19.11Independent Contractors:  Nothing in this Contract will (except as expressly provided) be deemed to constitute a partnership, or create a relationship of principal and agent between the parties for any purpose.

19.12Publicity:  Neither of the parties to this Contract will make public in any way any details of this Contract without the written agreement of the other party.

19.13Third Parties:  The Contract is enforceable by the original parties only and no other persons will have any rights either under the Contracts (Right of Third Parties) Act 1999 or otherwise to enforce any term of this Contract.  The term "original parties" will include the Buyer’s parent company and any associated subsidiaries within or affiliated branches of the Northrop Grumman group.

19.14Amendments:  No alterations or amendments to this Contract will be effective unless contained in a written document signed by the authorised representatives of each of the parties.

19.15Survival:  Any terms of this Contract which are either expressed so as to survive (or are capable of surviving) expiry, variation or termination of this Contract or from their nature or context it is contemplated that they are to survive expiry, variation or termination, will remain in full force and effect notwithstanding expiry, variation or termination.

20.   SPECIFICATIONS AND INTELLECTUAL PROPERTY

20.1 The quantity, quality and description of the Goods and the Services will be subject to these Conditions and will be as specified in the Order and/or in any applicable Specification or Special Terms supplied by the Buyer to the Seller or agreed in writing by the Buyer.

20.2 Any Specification supplied by the Buyer to the Seller, or specifically produced by the Seller for the Buyer, in connection with this Contract, together with any Intellectual Property in such Specification(s), will be the exclusive property of the Buyer and the Seller will take all steps necessary to vest such rights in or to Intellectual Property in the Buyer.  The Seller will not disclose to any third party or use any such Specification except to the extent that it is or becomes public knowledge through no fault of the Seller, or as required for the purpose of this Contract.

20.3 If in the course of rendering any Services any employee of the Seller or its personnel develops, either individually or in conjunction with any other person, any Intellectual Property (“Developed IPR”) the Seller will, and will procure that each of its employees, agents and subcontractors (and any employee or agent of any subcontractor) will, promptly disclose full details thereof to the Buyer and all rights in the same will vest in the Buyer.  The Seller:  (a) hereby assigns to the Buyer, by way of present and future assignment, all its rights, title and interest in any Developed IPR so arising (whether now existing or brought into being in the future) anywhere in the world; and (b) will consider itself as a trustee for the Buyer in relation to all Developed IPR and will at the request and expense of the Buyer do all things necessary to vest all rights, title and interest in any Developed IPR arising in the Buyer or its nominee absolutely as legal and beneficial owner and to secure patent or other appropriate forms of protection for such Developed IPR, including procuring that any employee, agent or subcontractor (or any employee or agent of any subcontractor) will assign all their rights, title and interest in any Developed IPR.

20.4 This Contract does not confer or grant, in any manner whatsoever, any license or right under any Intellectual Property held by the Seller, unless specifically set forth in this Contract.

20.5 The Seller shall indemnify the Buyer against liability and losses, including costs, for actual or alleged infringement of any Intellectual Property arising out of the manufacture or delivery of the Goods or performance of the Services under this Contract or out of the use or disposal by the Buyer of such Goods or Services.  This indemnity shall not apply unless the Seller shall have been informed as soon as practicable by the Buyer of the suit or action or other proceeding alleging such infringement and shall have been given such opportunity as is afforded by applicable laws, rules or regulations to participate in the defence thereof.

20.6 The indemnity in Clause 20.5 shall also not apply if:  (a) the infringement results from compliance with specific written instructions of the Buyer directing a change in the Goods or Services to be delivered or in the materials or equipment to be used, or directing a manner of performance of this Contract not normally used by the Seller, or (b) the infringement results from an addition to, or change in, the Goods or Services made subsequent to delivery or performance by the Seller, or (c) the claimed infringement is settled without the consent of the Seller, unless required by final decree of a court of competent jurisdiction.

21.   CONFIDENTIALITY AND DATA PROTECTION

21.1 For the purpose of this Contract, “Controller”, “Processor”, “Personal Data”, “Data Subject”, “Processing” and “Personal Data Breach” shall have the meanings ascribed to them in the EU General Data Protection Regulation.

21.2 The Seller shall ensure, where it Processes Personal Data as a Processor under this Contract, that:

21.2.1      It Processes Personal Data only on the Buyer’s documented instructions (including with regard to any transfer of Personal Data to a third country or an international organization), unless the Seller is required to Process Personal Data by European Union (“EU”) law or EU Member State law to which the Seller is subject.  In such a case, the Seller shall inform the Buyer of that legal requirement before Processing Personal Data, unless that law prohibits such information on important grounds of public interest;

21.2.2   It immediately informs the Buyer if, in the Seller’s opinion, an instruction infringes applicable data protection provisions;

21.2.3      It ensures that persons authorized to Process Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;

21.2.4      It implements technical and organizational measures to ensure a level of security appropriate to the risks presented by the Processing of Personal Data which the Seller shall complete in the format set out in the Annex below and include as part of the Specification, including inter alia, as appropriate:

                      - The pseudonymisation and encryption of Personal Data;
                      - The ability to ensure the ongoing confidentiality, integrity, availability and resilience of Processing systems and services;
                      - The ability to restore the availability and access to Personal Data in a timely manner in the event of a physical or technical incident;
                      - A process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the
                         processing.

21.2.5      Taking into account the nature of the Processing of Personal Data, it assists the Buyer, by appropriate technical and organizational measures, insofar as this is possible, in fulfilling the Buyer’s obligation to respond to requests for exercising Data Subjects’ rights;

21.2.6      It assists the Buyer in ensuring compliance with the Buyer’s obligations regarding security of Processing, notifications of a Personal Data Breach to the supervisory authority and to the data subject, and data protection impact assessments;

21.2.7      At the Buyer’s choice, it deletes or returns all Personal Data to the Buyer after the end of the provision of the services relating to the Processing, and deletes existing copies, unless EU law or the law of EU Member State to which the Seller is subject requires storage of Personal Data; and

21.2.8      It makes available to the Buyer all information necessary to demonstrate compliance and allow for and contribute to audits, including inspections, conducted by the Buyer or another auditor mandated by the Buyer.

21.3 The Buyer agrees that the Seller may subcontract any of the Processing operations performed on behalf of the Buyer under this Contract.  Where the Seller engages another Processor for carrying out specific Processing activities on behalf of the Buyer, the Seller shall ensure that such Processor has entered into a written agreement that imposes the same data protection obligations as set out in this Clause.  Where the Processor fails to fulfil its data protection obligations, the Seller shall remain fully liable to the Buyer for the performance of that other Processor’s obligations.

 

****

Annex – Data Processing Description

The information below shall be included in the Order:

  • Subject-matter and duration of the Processing:
  • Nature and purposes of the Processing:
  • Types of Personal Data
  • Data Subjects

 

Find all Terms & Conditions of Sales and Service for all contracts with Northrop Grumman Sperry Marine’s legal entities:

 

In Europe:

Northrop Grumman Sperry Marine BV

 

In Asia:

Northrop Grumman Sperry Marine (S) Pte Ltd

Northrop Grumman Sperry Marine Trading (Shanghai) Co., Ltd

Northrop Grumman Sperry Marine Asia Inc.

 

In The America's:

Northrop Grumman Systems Corporation, Sperry Marine

Northrop Grumman International Trading, Inc

Northrop Grumman Canada (2004) Inc.

 

 

Northrop Grumman Sperry Marine Asia Inc


1.    SALE AND PURCHASE

1.1    In these general terms of sale the following designations are used:  “Sperry Marine” refers to Northrop Grumman Sperry Marine Asia Inc.; “Buyer” refers to the natural person or corporate body making or accepting an offer or otherwise entering into a legal relationship with Sperry Marine whereby Sperry Marine supplies goods, including spare parts, or software (“Products”) and/or services, including without limitation, service labour, engineering work in developing a system, or project management (“Service Work”) to Buyer as they are described in Sperry Marine’s offer.
1.2    These general terms of sale shall be applicable exclusively to all offers and order acceptances by Sperry Marine for the sale and supply of Products and/or Service Work and the term “Agreement” herein shall apply to all such agreements based on these terms.
1.3    Deviations from, changes and/or supplements to these general terms of sale will only be valid and binding if and in so far as these have been explicitly accepted by Sperry Marine in writing (“Deviated”).
1.4    An Agreement is effective the moment when Sperry Marine has accepted the order in writing, or, in the absence of an order acceptance, as soon as Sperry Marine has commenced execution of the order.


2.    OFFERS AND CONTENTS OF THE AGREEMENT

2.1    All offers of Sperry Marine are without obligation, particularly as regards price, quantity, time of delivery and possibilities of delivery, and can be revoked by Sperry Marine at any time.  Offers of which Sperry Marine has not received a written acceptance within sixty (60) days from the offer, or any other such duration as provided for in writing by Sperry Marine, shall be cancelled automatically.  Purchase orders or other forms of written acceptance from Buyer shall constitute irrevocable offers once accepted by Sperry Marine per Subclause 1.4.
2.2    Representations made by employees of Sperry Marine or by third parties cannot be relied upon or invoked by Buyer, unless these have been confirmed by Sperry Marine in writing.
2.3    Sperry Marine may without need for Buyer’s consent introduce improvements and alterations to the Products, provided that such improvements and alterations do not fundamentally change the ordered Products in form, fit or function.


3.    DELIVERY AND RISK

3.1    All dates and times specified to Buyer for delivery or installation of the Products and/or for the performance or provision of Service Work are estimated only and Sperry Marine shall not have any liability for delay or for any damages or losses sustained by Buyer as a result of such dates or times not being met. Buyer shall not be entitled to refuse acceptance of the Products and/or Service Work as a consequence or possible consequence of such delay. All deliveries are subject to adequate provision by Buyer and receipt by Sperry Marine in a timely manner of any proforma payments, any required official export documents and licences, technical, frequency and other information necessary from Buyer for the performance of this Agreement.
3.2    Unless otherwise Deviated, all deliveries are FCA, Sperry Marine's warehouse in Vlaardingen, The Netherlands (Incoterms 2010) and after delivery the Products shall be at the risk of Buyer, including those cases in which transport has been arranged by Sperry Marine and/ or in which at the carrier’s demand the transport document stipulates that transport shall be at the risk of Sperry Marine. Sperry Marine reserves the right to determine the means of conveyance and the route of transport, unless Buyer gives express written instructions accepted by Sperry Marine.
3.3    Any costs incurred by Sperry Marine (including, without limitation storage, insurance and other administrative costs) ensuing from delay on the part of Buyer in accepting delivery or in compliance with the requirements of Clauses 4 and 6, shall be paid by Buyer.
3.4    Sperry Marine is entitled to make partial deliveries and in that case, Sperry Marine may send Buyer a separate invoice for each partial delivery and demand payment therefor.


4.    INSPECTION AND SERVICE

4.1    During the warranty period referred to in Clause 9, Sperry Marine shall at its discretion be entitled at its cost, to inspect any installed Products and/or Service Work.
4.2    In the event that Buyer requests that: (a) Sperry Marine or its authorised service partners undertake an inspection of the Products, whether or not within the warranty period referred to in Clause 9; and/ or (b) Sperry Marine performs any repairs or Service Work which it is not obliged under Clause 9, then Sperry Marine shall, if it agrees to perform such works, be entitled to charge its applicable standard rates at the time of execution. In addition, Sperry Marine may charge for the travelling and accommodation expenses of such personnel, and/ or such other associated costs, plus a ten percent (10%) mark up, and for their travelling time at the rates applicable, as defined above. Sperry Marine shall not be required to provide documentary evidence in support of such charges. If Service Work is required outside Sperry Marine’s regular working hours, the overtime rates applicable to the district from which Sperry Marine provides the Service Work shall apply.
4.3    Any publications (including online sources) containing a list of locations in which Sperry Marine maintains service stations are for information purposes only. Sperry Marine shall have the right, at any time and at its sole discretion, to modify the number and locations of its service stations.


5.    PRICES AND TERMS OF PAYMENT

5.1    Unless otherwise Deviated, all prices quoted are based on FCA Vlaardingen (Incoterms 2010), in U.S. Dollars, and shall be exclusive of all taxes and charges including, without limitation, corporate income tax, business/ turnover tax, personnel income tax, payroll tax, sales or other taxes and charges, excise tax, use and withholding taxes, arising in any country outside the country in which Sperry Marine resides, which if applicable, shall be added to the quoted prices and paid for by Buyer. For the avoidance of doubt, each party shall be responsible for any costs, charges and expenses imposed by its own banks.
5.2    In the event that the parties agree a variation or modification to the Agreement or any order, including without limitation, changes in the scope of supply, increase or reduction of the quantity supplied, change in the delivery dates of the Products or the performance dates of Service Work, the prices shall be adjusted in accordance with the standard rates used by Sperry Marine at the time of execution. In addition to the above, should delivery be extended beyond the calendar year in which the Products are originally scheduled to be delivered, the price for such Products shall be increased by four percent (4%) per calendar year.
5.3    The minimum order value which is applicable to all sales of Products and Service Works is $300 U.S. Dollars (three hundred U.S. Dollars).
5.4    Unless otherwise Deviated and pending Buyer’s credit status with Sperry Marine, full payment in the invoiced currency shall be made by Buyer not later than thirty (30) days after the invoice date, by means of payment into the bank and/or giro account stipulated by Sperry Marine, without any suspension, set-off, deduction or discount. Buyer may only submit a written notice of objection against the invoice within the term set out therein.
5.5    Without prejudice to any other rights of Sperry Marine, Buyer shall be in default without any further notice thereof being required, if he exceeds the aforesaid term of payment of thirty (30) days.  From such moment, Buyer shall owe interest at one and a half percent (1.5%) a month compounded on the amount still outstanding.  For the calculation of the amount payable due to interest, parts of months shall apply as whole months. All judicial or extrajudicial costs including all legal and professional fees (on an indemnity basis) and all court costs incurred with respect to collection of the debt shall be at the expense of Buyer.
5.6    At any time Sperry Marine shall be entitled to demand reasonable security (or, as the case may be, additional security) from Buyer for the payment of the Products and/or to suspend deliveries, until the security demanded has been provided.


6.    RETENTION OF TITLE

6.1    Sperry Marine shall retain title to the Products delivered or to be delivered until Buyer has made full payment of the price for such Products to Sperry Marine without any deductions.
6.2    As long as title to the Products has not passed to Buyer, Buyer shall not dispose of the Products or encumber them. Buyer is not permitted to attach the Products to other objects in such a manner that they cannot be easily removed. Additionally, Buyer shall ensure that adequate insurance policies are in place to cover any loss or damage to the Products.
6.3    If Buyer does not comply with its payment obligations, or Sperry Marine considers that Buyer will not be able to comply with its payment obligations, Sperry Marine shall be irrevocably authorised by Buyer to gain access to Buyer’s business premises or the premises of a third party holding the Products on behalf of Buyer without prior notice, and to take all the necessary steps to recover the Products.  Buyer is obliged to co-operate fully with Sperry Marine for this purpose.
6.4    Buyer is obliged to inform Sperry Marine without delay of the fact that third parties are claiming rights to the Products which are the property of Sperry Marine. Buyer is obliged to inform this third party, official receiver, trustee or attaching creditor of Sperry Marine’s title with respect to these Products without delay.


7.    ACCEPTANCE OF PRODUCTS

7.1    Buyer is obliged to inspect the Products or Service Works carefully after delivery and to inform Sperry Marine of any discoverable defects.  Any complaints with respect to the Products shall be notified to Sperry Marine in writing within fourteen (14) days after delivery of the Products or performance of Service Work. If Buyer reasonably demonstrates that it was not possible to discover the defect upon delivery, then the complaint must be raised in writing within fourteen (14) days after the date on which the defect was discovered or could reasonably have been discovered, but in no event (including latent defects) shall Buyer be entitled to reject the Products more than thirty (30) days after delivery.
7.2    After expiry of the dates mentioned in Subclause 7.1, Buyer is deemed to have accepted the Products and/or Service Work and the Products and/or Service Work can no longer be rejected.


8.    TERMINATION

8.1    If Buyer:
(a)    commits any material breach of any of the terms of this Agreement (which for the avoidance of doubt, shall automatically include a breach of Clause 12 and 13); and/ or
(b)    makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction), suffers any act of bankruptcy, any resolution or petition to wind up Buyer is passed, a third party seizes or threatens to seize the Products and/or Service Work before legal ownership has passed to Buyer in accordance with this Agreement, an encumbrancer takes possession or a receiver is appointed of any of the property or assets of Buyer, it ceases, or threatens to cease, to carry on business, or any circumstance arises or event occurs in relation to Buyer or any of its material assets in any country or territory in which it carries on business or to the jurisdiction of whose courts it or any of its assets is subject which corresponds with or has an effect equivalent or similar to any of those stated in this Subclause 8.1(b); and/ or
(c)    has its financial position deteriorated to such an extent that in Sperry Marine's sole opinion Buyer's capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy;
Sperry Marine shall be entitled to suspend the performance of any still current agreements wholly or partly, and in such circumstances all outstanding claims shall become payable on demand. In this event, and without prejudice to any claim or right it might otherwise make or exercise, Sperry Marine is furthermore entitled to terminate any still current agreements wholly or partly without any further notice of default by written notice to Buyer. Buyer shall be liable for all losses, costs and damages suffered by Sperry Marine as a result of such termination.
8.2    Sperry Marine may terminate the supply of any Products or the performance of any Service Work under this Agreement, in whole or in part, at any time, without reason, by giving Buyer not less than thirty (30) days’ written notice. Sperry Marine will thereupon reimburse Buyer in respect of Products that have been paid for but not yet delivered or Service Work that has been paid for but not yet performed.
8.3    Buyer may cancel its order only with the prior written consent of Sperry Marine, which consent shall be entirely at Sperry Marine’s discretion. In the event of such agreed cancellation, Buyer shall pay Sperry Marine an amount equal to the total of the following amounts:
(a)    any outstanding sums due to Sperry Marine for any orders placed by Buyer but not yet delivered, and for any Products delivered or any Service Work performed; and
(b)    all costs incurred or committed by Sperry Marine in performance of the order and allocable thereto including, without limitation, non-cancellable purchases from third party suppliers (including Service Work already performed), overhead and general and administrative expense, exclusive of any cost attributable to completed Service Work under (a); and
(c)    to the extent not already included under (a), a sum for lost profits equal to fifteen percent (15%) of the order price of the cancelled part of the order, or such higher amount of lost profits as Sperry Marine can reasonably demonstrate it has incurred by accepting the cancellation; and
(d)    to the extent not already covered by (a) and (b), an amount equal to either the order value or costs of settling and paying any claims arising out of the cancelling of Products and/or Service Work under any subcontracts or purchase orders of Sperry Marine, whichever is the higher amount.
8.4    Upon the expiration or termination of this Agreement for whatever reason, upon written instruction, each party will return to the other party all confidential information (as per Subclause 14.9 herein), other than normal correspondence, letters, orders and the like.
8.5    The termination or expiry of this Agreement will not prejudice or affect any right of action or remedy which has accrued or will thereafter accrue to either party.
8.6    Notwithstanding the termination or expiry of this Agreement, the provisions of Clauses 10 and 12, and Subclauses 14.6, 14.7 and 14.9 shall survive for a period of five (5) years following the termination or expiry of this Agreement.


9.    WARRANTY AND SUPPORT

9.1    Sperry Marine warrants that all Products manufactured by Sperry Marine, its subsidiaries or affiliates and sold by Sperry Marine to Buyer at the time of delivery will be free from material defects in material and workmanship under normal use and service when (a) installed in accordance with the applicable Sperry Marine installation drawing; and (b) Supervision of Installation (SOI) or commissioning is performed by an authorised marine service engineer (“MSE”) employed either by Sperry Marine or one its authorised service partners. No warranty shall be effective if a defective Product has been repaired or in any way worked on by anyone other than a MSE without Sperry Marine’s prior written consent.
9.2    Unless otherwise stated, for all Products sold as new, Sperry Marine’s obligation under  warranty shall be limited to defects as defined in Subclause 9.1 above of which Sperry Marine is notified within twelve (12) months after the date that a Sperry Marine authorised MSE and Buyer representative sign a completed Commissioning Report (the “Date of Installation”) or twenty four (24) months after date of shipment, from Sperry Marine, whichever period shall first expire (“Original Warranty Period”).  
9.3    The warranty for reconditioned Products or Products not sold as new under Sperry Marine’s Spares Exchange (“SPEX”) shall be for a period of three (3) months after the Date of Installation or six (6) months after date of shipment, from Sperry Marine, whichever period shall first expire.
9.4    The warranty period for Service Work shall be:
(a)    where the Service Work is performed as part of the supply of new Products under Subclause 9.2, the warranty period set forth in Subclause 9.2; or
(b)    where the Service Work is performed as part of the supply of reconditioned Products or SPEX under Subclause 9.3 herein, the warranty period set forth in Subclause 9.3; or
(c)    in all other cases, one (1) month from the date of performance and completion of the Service Work.
9.5    In case of Products sold but not manufactured by Sperry Marine, its subsidiaries or affiliates, Sperry Marine’s sole obligation shall be six (6) months from delivery of the Products, or surviving manufacturer’s standard warranty conferred to Sperry Marine, whichever is longer.
9.6    All warrantable defects shall be notified to Sperry Marine within fourteen (14) days of its discovery, but in any event within the applicable warranty period. Sperry Marine’s warranty obligations shall be limited, at Sperry Marine’s discretion, to:  (a) replacement or repair of the defective Products; or (b) a sum not exceeding the net invoice value of the defective Products; or (c) in the case of Service Work, re-performance of that Service Work.  Any repaired or replaced Products or re-performed Service Work shall benefit from the warranty set out in Subclause 9.2, 9.3 or 9.4, but in no event shall the warranty of such rectified/ repaired Products or re-performed Service Work exceed the Original Warranty Period.
9.7    It shall sometimes be necessary for an engineer to travel to the service location to effect the warranty repair.  Where Sperry Marine sends a MSE to the service location to effect the warranty repair, Buyer shall pay all associated travel and accommodation expenses of the MSE and Buyer shall pay the hourly rate for the MSE’s for any travel time in excess of a total of four (4) hours round trip.
9.8    Replacement and repair of a defective part shall be made where the Products are sent to a Sperry Marine establishment or to a service station appointed by Sperry Marine within the warranty period referred to in Clause 9, provided that shipping costs, excluding import customs fees and duties, are prepaid by Buyer and the part is found defective after inspection at the establishment or service station. Defective Products, parts which are replaced under warranty, or parts exchanged under the SPEX scheme shall be returned by Buyer at Buyer’s sole cost to Sperry Marine to be received by Sperry Marine at Sperry Marine’s warehouse no later than four (4) weeks after the replacement has been installed and the respective commissioning report has been signed. Buyer shall only return such Products and/or SPEX after written acknowledgement from Sperry Marine and shall affix to the packaging such reference numbers and/or authorisation provided. Consumables and peripheral equipment such as cables, wires, mounting equipment and mechanical components shall not be returned unless specified by Sperry Marine.  Where the defective Products or parts are not received by Sperry Marine within four (4) weeks, Buyer shall pay Sperry Marine the full list price of the relevant Products or parts and Sperry Marine shall invoice Buyer accordingly. For parts exchanged under the SPEX scheme Buyer shall pay Sperry Marine an amount equivalent to the shortfall between the agreed price and the price that would have been charged had there been no supply of used or defective equipment by Buyer and Sperry Marine shall invoice the Buyer accordingly.
9.9    No warranty shall be effective with respect to any Product that has been subjected to conditions beyond the limits of its specifications, or which has been physically damaged, or to which is attached any apparatus other than apparatus supplied by Sperry Marine for attachment or specifically approved for attachment by Sperry Marine in writing, nor does it apply to Products found to be defective due to abuse, lightning or other electrical discharge.
9.10    For the avoidance of doubt, the warranty set out in these terms includes any software installed within the Product which is required for its proper operation. Software warranty covers the remedy of defects in the software only, where this materially affects the operation of the Product and where the defects can be reproduced by Sperry Marine at any time. Sperry Marine does not warrant or represent;
(i)    that software will function without interruption or error,
(ii)    that all software defects can be eliminated,
(iii)    that software, protocols, interfaces or the like that are not of Sperry Marine origin but which are coded, provided or directed by the Buyer to be installed within the Product will function without error and/ or is compatible with the operations of the Product,
(iv)    that the software will correspond to Buyer’s requirements, and
(v)    that the software will function without error in each configuration the Buyer selects, unless such configuration has been confirmed fit for purpose by Sperry Marine.
Sperry Marine’s sole liability shall be to provide a software update for the affected Product per Subclause 9.7. A software update is a defects resolution software revision that provides fixes for features that aren't working as intended and may, at Sperry Marine’s discretion, include enhancements and additional functionality. Software updates are warranted to the same extent and duration as the Products of which they form a part of. A software upgrade, on the other hand, offers a significant change or major improvement over the existing version. A software upgrade is a separately chargeable event that does not form part of the existing Products or Service Works. Such software upgrades shall be warranted for a period of twelve (12) months from the Date of Installation. Sperry Marine reserves the right to determine, in its absolute discretion, whether a software revision constitutes a software update or software upgrade.
Under no circumstances shall Sperry Marine accept any liability for claims for loss of data.
9.11    Sperry Marine may, in its sole discretion and without notice, discontinue the sale of any Products at any time. Sperry Marine shall remain liable for the warranty of such Products under Clause 9 for the duration of the Original Warranty Period, but shall not be required to replace the discontinued Products with its successor versions. Sperry Marine may also modify the design and specifications of any existing Products, but, subject to Subclause 9.10 herein, shall not be obliged to provide such modifications on Products previously purchased by Buyer. Sperry Marine reserves the right to determine, in its absolute discretion, whether such modifications constitute a Product update or an upgrade.
9.12    The foregoing provisions set forth Sperry Marine’s sole liability for breach of warranty in respect of, or for any defect or nonconformity in, any Products or Service Work, and Sperry Marine shall have no obligation or liability in respect of any defect or nonconformity discovered after the lapse of the warranty period as specified above.  All other warranties, whether express or implied, in contract, statute or at law, are, to the extent permissible by law, herewith expressly excluded.
9.13    In the event of an unjustified warranty claim, including but not limited to instances where no fault is found or where the fault is not covered by the warranty set out in Clause 9, Buyer shall compensate Sperry Marine for any cost that it has incurred in responding to the claim.


10.    LIABILITY

10.1    Nothing in this Agreement will exclude or limit the liability of either party to the other: (a) for death or personal injury resulting from the negligence of that party or any of its respective directors, officers, employees, contractors or agents; (b) in respect of fraud or wilful misconduct by that party or any of its respective directors, officers, employees, contractors or agents; (c) for breach of the provisions set out in Clauses 13; or (d) for any other liability that cannot be excluded or limited by applicable law.
10.2    Notwithstanding any provisions to the contrary in this Agreement, and to the maximum extent permitted by law, Sperry Marine will not be liable for any of the following types of loss or damage arising under or in relation to this Agreement (whether arising from breach of contract, negligence, misrepresentation, tort, breach of statutory duty or otherwise): (a) any loss of profits, loss of capital of its use thereof, loss of vessel, loss of cargo, loss of product, business, contracts, anticipated savings, goodwill, or revenue, any wasted expenditure, or any loss or corruption of data; or (b) any indirect or consequential loss or damage whatsoever, even if Sperry Marine was aware of the possibility that such loss or damage might be incurred.
10.3    Subject to Subclause 10.1, Sperry Marine’s cumulative liability under this Agreement will be limited to the prices for the Products and Service Work charged thereunder.
10.4    Sperry Marine shall not be liable for damages that may occur as a result of inappropriate or inadequate sites, facilities, installations or transport routes provided by Buyer.


11.    INTELLECTUAL PROPERTY RIGHTS AND PATENTS

11.1    For the purpose of this Agreement, "Intellectual Property” means (a) patents, inventions, designs, copyright and related rights, database rights, trademarks, trade names (whether registered or unregistered), and rights to apply for registration; (b) proprietary rights in domain names; (c) knowhow and confidential information; (d) applications, extensions and renewals in relation to any of these rights; and (e) all other rights of a similar nature or having an equivalent effect anywhere in the world which currently exist or are recognised in the future. Sperry Marine shall grant to the Buyer a royalty-free, perpetual, transferable and non-exclusive license to use the Products and/ or Service Work in accordance with this Agreement, subject to restrictions set forth in Clause 12 hereunder. Such rights are granted on the condition that the Buyer shall not reverse engineer any Products, Service Work or any Intellectual Property embodied therein, or otherwise adapt them for other uses. The validity of the license shall cease at such time when the Buyer is no longer in possession of the Products and/ or no longer utilizes the Service Works.
11.2    All rights in or to Intellectual Property in the Products or which may arise directly or indirectly as a result of performance of the Service Work by Sperry Marine under this Agreement will be vested in Sperry Marine absolutely.
11.3    Any of Sperry Marine’s special or general purpose tools, techniques, documentation, test materials, prototypes, software, moulds, dies, or other items or materials used in the design, test, manufacture, training, installation, commissioning and other performance of this Agreement will remain in the sole ownership of Sperry Marine at all times and are not included in any offer.
11.4    In the event that Buyer submits a claim alleging violation of third party intellectual property by the Products or any component thereof, and provided that the validity of such claim or allegation has been proved to the satisfaction of Sperry Marine or in a court of final instance that the use of these Products is prohibited, Sperry Marine shall at its sole discretion and at expense: (a) grant Buyer the right to continue to use the Products by procuring applicable licenses, or (b) replace or change the Products in such a way that violation ceases to exist, or where (a) or (b) are not possible, refund to the Buyer the purchase price for the Products upon return of the Products per Subclause 9.8. The aforesaid shall be the sole and exclusive liability of Sperry Marine in relation to any actual or alleged violation of Intellectual Property.
11.5    Sperry Marine accepts no liability in respect of claims for infringement or alleged infringement of third party’s Intellectual Property arising from the execution of the Agreement in accordance with Buyer’s designs, plans or specifications and Buyer will indemnify Sperry Marine against all losses, damages, expenses or other liability arising from such claims.
11.6    Sperry Marine shall not have any obligations towards Buyer with respect to any violation of Intellectual Property or a claim related to it, which is the result of:  (a) change or expansion of the Products according to special designs or specifications provided by or on behalf of Buyer; or (b) the use of the Products in combination with appliances or equipment which have not been made by Sperry Marine; or (c) the use of the Products in a manner for which they have neither been designed nor intended; or (d) violation of any Intellectual Property in which Buyer or its subsidiary or branch office have any direct or indirect interest on account of a licence or otherwise, or (e) non receipt of payment by Sperry Marine, or (f) Buyer is aware of pre-existing Intellectual Property claims, or (g) Buyer failing to notify Sperry Marine of the claim or cooperate with Sperry Marine, or (h) Buyer continuing with infringing activities.  


12.    EXPORT CONTROL COMPLIANCE

12.1    Products may contain parts of multiple origin, including the United States of America (“USA”).  Buyer shall comply with all applicable export laws, rules and regulations including but not limited to those of the United Kingdom (“UK”), Germany, the European Community and the USA and will not export or re-export the Products in violation of any such laws, rules or regulations.  Buyer warrants that all reasonable and appropriate steps will be taken to ensure that any other person or entity purchasing or otherwise acquiring the Products from Buyer will not export or re-export in violation of the aforementioned laws, rules and regulations.
12.2    If an export licence is required for the performance of any Sperry Marine’s obligation, including but not limited to supply of Products, Service Work or warranty repairs in accordance with Clause 9, and such export licence is not granted or having been granted is revoked, Sperry Marine shall have no further obligations to Buyer under Buyer’s order and this Agreement shall automatically terminate.  In case of a cancellation due to this reason Buyer shall have no right to repayment of costs already incurred by it or for any other compensation howsoever arising, but Sperry Marine shall be entitled to all payments for Products or Service Work already performed under this Agreement.
12.3    Where an order has been accepted and Sperry Marine subsequently establishes that, in its reasonable opinion, the order is in conflict with Subclause 12.1, this order will be immediately cancelled by Sperry Marine.  In this case, Buyer shall have no right to repayment of costs already incurred by it or for any other compensation howsoever arising.
12.4    Buyer agrees that the Products and/or Service Work provided under this Agreement will not be used for any purpose connected with chemical, biological or nuclear weapons, or missiles capable of delivering such weapons; that they will not be sold or transferred if it is known or suspected that they are intended or likely to be used for such purposes; that the Products will not be re-exported or otherwise sold or transferred to a destination subject to a United Nations, European Union (“EU”), Organization for Security and Co-operation in Europe ("OSCE"), UK or USA embargo where that act would be in breach of the terms of that embargo; and that the Products, or any replica of them, will not be used in any nuclear explosive activity or unsafeguarded nuclear fuel cycle.
12.5    Unless otherwise Deviated by Sperry Marine in advance, Buyer also agrees that the Products and/or Service Work provided under this Agreement will not be re-exported or otherwise sold or transferred to a military end-use and/or end-user; or to individuals or entities that are subject to USA, UK, and/or EU trade restrictions, including, but not limited to, the US Department of Commerce’s Denied Party List and Entity List, the US Department of Treasury’s Specially Designated Nationals list and Sectorial Sanctions Identifications list, and Annex IV to Council Regulation (EU) No 960/2014.
12.6    Buyer warrants that it is not owned or controlled by, nor does it own or control, a person or entity that is subject to economic or trade sanctions imposed by the USA Government, which restrict USA companies from engaging in financial transactions with such entity for any reason, including but not limited to being resident or headquartered in or a governmental entity of a country subject to such sanctions (currently Cuba, Iran, Syria and Sudan) or a Designated National under the USA Cuban Assets Control Regulations.
12.7    Buyer further warrants that it is neither resident in nor headquartered in a country to which the export or re-export of goods or technologies that are subject to the USA Export Administration Regulations are generally embargoed (currently North Korea) nor is it owned or controlled by a governmental entity of such country. Buyer agrees that it will notify Sperry Marine if these circumstances change. For purpose of this provision, references to "ownership" are defined to mean any ownership interest, direct or indirect, of 50 percent or more, and references to "control" are defined to mean the right or ability to, directly or indirectly, dictate the decisions, actions, and/or policies of an entity or its management by any means. If at any time during the term of this Agreement, Buyer breaches this article, then, in addition to any other rights Sperry Marine may have under this Agreement, Sperry Marine may immediately terminate this Agreement.


13.    PROHIBITED ACTIVITIES

13.1 Anti-Corruption Compliance: Buyer represents, warrants and covenants that:
13.1.1     It has not and will not, directly or indirectly, pay, promise, offer, or authorize the payment of any money or anything of value to:
(a)     an officer, employee, agent or representative of any government, including any department, agency, or instrumentality thereof or any person acting in an official capacity thereof;
(b)     a candidate for political office, any political party or any official of a political party; or
(c)     any other person or entity
while knowing or having reason to know that all or any portion of such payment or thing of value will be offered, given or promised, directly or indirectly, to any person or entity for the purpose of assisting Sperry Marine in obtaining or retaining business (including this Agreement), or an improper business advantage. Without limiting the generality of the foregoing, Buyer shall not directly or indirectly, pay, promise, offer, or authorize the payment of any facilitating payment intended to expedite or secure performance of a routine governmental action, such as, customs clearance on behalf of Sperry Marine.
13.1.2     No gratuities such as, but not limited to, gifts, travel expenses, business courtesies, hospitalities or entertainment of any nature has been or will be accepted or made in connection with this Agreement where the intent was, or is, to unlawfully influence the recipient of the gratuity. Buyer also represents that any gratuities offered or provided shall meet the following conditions:
(a)     be permitted under the UK Bribery Act and US Foreign Corrupt Practices Act and the laws and regulations of the country in which this Agreement will be performed;
(b)    be consistent with applicable social and ethical standards and accepted business practices;
(c)     be of such limited value as not to be deemed a bribe, payoff or any other form of improper inducement or payment; and
(d)     be of such nature that its disclosure will not cause embarrassment for Sperry Marine.
13.1.3     Breach of any of the foregoing provisions of Clauses 13.1.1 and 13.1.2 by Buyer shall be considered an irreparable material breach of this Agreement and shall entitle Sperry Marine to terminate this Agreement immediately without compensation to Buyer.
13.2     Denied Parties: Buyer warrants that it is not owned or controlled by, nor does it own or control, a person or entity that is on the list of Specially Designated Nationals and Blocked Persons maintained by the Office of Foreign Assets Control of the USA Department of the Treasury or any list of known or suspected terrorists, terrorist organizations or other prohibited persons published by any jurisdiction in which Buyer is doing business.
13.3     Prohibited Activity: Unless specifically authorised in writing by Sperry Marine, Buyer shall not engage in any of the following activities on behalf of Sperry Marine under this Agreement: acting as an agent of Sperry Marine; marketing or sales promotion; lobbying; freight forwarding; consulting services; performing offset (industrial participation) consulting or brokering services; acting as a distributor or reseller; or activity as a joint venture party.
13.4     Prohibited Contact: Unless specifically authorised in writing by Sperry Marine, Buyer shall not contact, either directly or indirectly, public officials of any country other than the USA, UK, Canada, Australia, Germany, France, or Italy in furtherance of its performance on behalf of Sperry Marine under this Agreement.
13.5     Notification of Changes: If Buyer provided anti-corruption compliance due diligence information (e.g., related to its ownership and personnel, subsidiaries and third parties, the due diligence questionnaire, and related certifications) to Sperry Marine or through Sperry Marine’s Global Trust website, Buyer shall provide Sperry Marine with prompt notification and details of any changes to information contained in such due diligence materials, and agrees to promptly cooperate with Sperry Marine and provide additional information reasonably requested in relation to such changes. In the event of a material change to information contained in the due diligence material supplied to Sperry Marine, Sperry Marine reserves the right to suspend performance under this Agreement by providing written notice to Buyer in order for Sperry Marine to conduct additional anti-corruption due diligence upon such changed circumstances.


14.    GENERAL CONDITIONS

14.1    Force Majeure: Sperry Marine will not be liable for any failure to perform its obligations (excluding payment obligations) or delay in performance of the same under this Agreement where such failure or delay is due to any cause beyond Sperry Marine’s control (a “Force Majeure Event”).  In the event that a Force Majeure Event endures for more than sixty (60) days, the parties will meet and review in good faith, the desirability of and conditions for continuation of this Agreement and any failure to resolve the same will entitle Sperry Marine to terminate Buyer’s order (in whole or in part) without further liability to Buyer. The parties expressly agree that Force Majeure Event shall include, but is not limited to; government actions, omissions or delay; fire; strike; war; civil commotion; factory closure due to outbreak of communicable diseases; earthquake; and other Acts of God.
14.2    Assignment: This Agreement may not be assigned in whole or in part by either party without the prior written consent of the other except as part of a merger, consolidation or re-organisation or voluntary sale or transfer of all or substantially all of the relevant party’s assets where the merged, consolidated or re-organised corporation or entity, or the transferee of such sale or transfer, has the authority and power to effectively perform that party’s obligations under this Agreement.
14.3    Notices: Any notice, consent, permission or other communication required or permitted to be given by either party under this Agreement shall be:  (a) in writing; (b) in English; (c) and signed by or on behalf of the sender.  Notices must be delivered by at least one of the following delivery methods:  (a) hand or recorded delivery post (or any equivalent postal service) to the address specified by one party to the other party; or (b) e-mail.  For notice delivered by e-mail, the e-mail addresses will be those set out in the order and/or order acknowledgement, as may be formally updated in writing from time to time.  E-mail will be deemed received at the time and date of transmission shown on the saved sent copy.
14.4    No Waiver: The failure by Sperry Marine to exercise, or its delay in exercising, a right, power or remedy provided by this Agreement or by law will not constitute a waiver by Sperry Marine of that right, power or remedy. If Sperry Marine waives a breach of any provision of this Agreement this will not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.
14.5    Severability:  If any provision, or part of a provision, of this Agreement, is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable, that provision or part-provision will be deemed not to form part of the Agreement, and the legality, validity or enforceability of the remainder of the provisions of this Agreement will not be affected, unless otherwise required by operation of applicable law. The parties will use all reasonable endeavours to agree within a reasonable time upon any lawful and reasonable variations to this Agreement which may be necessary in order to achieve, to the greatest extent possible, the same commercial effect as would have been achieved by the provision, or part-provision, in question.
14.6    Dispute Resolution: Should any question, dispute or difference whatsoever arise between the parties in relation to or in connection with this Agreement: (a) Buyer or Sperry Marine may give notice to the other in writing of the existence of such a question, dispute or difference and nominated representatives of both parties will discuss within fourteen (14) days of such notice to attempt to reach a solution; (b) if the parties are unable to resolve any dispute within fourteen (14) days of its referral under (a) above, then the parties will attempt to settle it by mediation in accordance with the mediation procedures of the Hong Kong International Arbitration Centre (HKIAC); (c) if no mutually acceptable solution is found pursuant to (b) above, then the matter will be finally settled in accordance with the Arbitration Rules of the Hong Kong International Arbitration Centre (HKIAC) by three (3) arbitrators, which Rules are deemed to be incorporated by reference into this Subclause. Arbitration will take place in Hong Kong and the language to be used in the proceedings shall be English; and (d) the prevailing party in any arbitration or legal proceeding brought by one party against the other party and arising out of or in connection with this Agreement will be entitled to recover its legal expenses, including arbitration costs, court costs and reasonable lawyers and experts fees.
14.7    Governing Law: This Agreement (and any part thereof) and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) will be governed by the laws of Hong Kong. Subject to Subclause 14.6, the courts of Hong Kong will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement (including any non-contractual disputes or claims). The UN Convention for International Sale of Goods shall not apply.
14.8    Offset: The total value of this Agreement may be applied as offset credit by Sperry Marine as it sees fit in support of any present or future offset obligations. Sperry Marine will have the right to assign, sell, or otherwise transfer such credits to third parties of its choice to be used in meeting the offset obligations of said third parties.
14.9    Confidentiality: A party (the “Receiving Party”) will keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (the “Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party will restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under this Agreement, and will ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.
14.10    Data Protection: Sperry Marine shall, at its own cost, comply with Personal Data (Privacy) Ordinance (Cap. 486) (“Privacy Regulations”) and shall only process, use or disclose Personal Data (as defined within the Privacy Regulations), (a) strictly for the purposes of fulfilling its obligations for which the Personal Data is provided; (b) with Buyer’s prior written consent; or (c) when required by law or an order of court, but shall notify Buyer as soon as practicable before complying with such law or order of court.  Buyer agrees that Sperry Marine may subcontract the aforesaid Personal Data processing operations.  Where Sperry Marine engages another party for such purposes, it shall ensure that such party has entered into a written agreement that imposes the same data protection obligations as set out in this Subclause.
14.11    Entire Agreement: This Agreement represents the entire agreement between the parties with respect to the subject matter hereof and will apply to this Agreement to the exclusion of any other terms or conditions purported to apply by any other document.
14.12    Independent Contractors: Nothing in this Agreement will (except as expressly provided) be deemed to constitute a partnership, or create a relationship of principal and agent between the parties for any purpose.
14.13    Third Parties: This Agreement is enforceable by the original parties only and any other persons will have no rights whatever either under this Agreement, Contracts (Rights of Third Parties) Ordinance or otherwise to enforce any term of this Agreement.  The term "original parties" will include Sperry Marine’s parent company and any associated subsidiaries within the Northrop Grumman group.
14.14    Amendments: No alterations or amendments to this Agreement will be effective unless contained in a written document signed by the authorised representatives of each of the parties.
14.15    Waste Electrical and Electronic Equipment: Where Buyer is based in the EU or UK, Buyer confirms that they assume responsibility for the correct disposal or onward sale of the Products at the end of its service life with Buyer in accordance with the EU WEEE (Waste Electrical and Electronic Equipment) Directive (2012/19/EC) or such regulations or directives of analogous or similar effect in the relevant territory(ies).
14.16    Compliance with Tax Laws: Buyer shall specifically ensure that it complies with all laws, in any part of the world, in relation to the registration for or payment of any taxes which might be due in connection with the performance of the Service Work or supply of any Products, under this Agreement.  Without limiting the foregoing, Buyer shall:  (a) not, directly or indirectly, knowingly participate, be concerned in or take steps with a view to, the fraudulent evasion of tax by another person; (b) provide prompt notification to Sperry Marine of any tax offence related to the Service Work or any attempt to evade the proper payment of tax in relation the Service Work; and (c) include the substance of this Subclause in all subcontracts or other agreements with its agents, representatives or subcontractors performing any Service Work and be responsible for the observance and performance by such agents, representatives or subcontractors of this Subclause.  For purposes of this Subclause, the terms “tax” or “taxes” includes income tax, property tax, payroll tax, sales tax, value added tax, and similar taxes.

 

Northrop Grumman Sperry Marine Trading (Shanghai) Co., Ltd

 

1.    SALE AND PURCHASE

1.1    In these general terms of sale the following designations are used:  “Sperry Marine” refers to Northrop Grumman Sperry Marine Trading (Shanghai) Co., Ltd; “Buyer” refers to the natural person or corporate body making or accepting an offer or otherwise entering into a legal relationship with Sperry Marine whereby Sperry Marine supplies goods, including spare parts, or software (“Products”) and/or services, including without limitation, service labour, engineering work in developing a system, or project management (“Service Work”) to Buyer as they are described in Sperry Marine’s offer.
1.2    These general terms of sale shall be applicable exclusively to all offers and order acceptances by Sperry Marine for the sale and supply of Products and/or Service Work and the term “Agreement” herein shall apply to all such agreements based on these terms.
1.3    Deviations from, changes and/or supplements to these general terms of sale will only be valid and binding if and in so far as these have been explicitly accepted by Sperry Marine in writing (“Deviated”).
1.4    An Agreement is effective the moment when Sperry Marine has accepted the order in writing, or, in the absence of an order acceptance, as soon as Sperry Marine has commenced execution of the order.

2.    OFFERS AND CONTENTS OF THE AGREEMENT

2.1    All offers of Sperry Marine are without obligation, particularly as regards price, quantity, time of delivery and possibilities of delivery, and can be revoked by Sperry Marine at any time.  Offers of which Sperry Marine has not received a written acceptance within sixty (60) days from the offer, or any other such duration as provided for in writing by Sperry Marine, shall be cancelled automatically.  Purchase orders or other forms of written acceptance from Buyer shall constitute irrevocable offers once accepted by Sperry Marine per Subclause 1.4.
2.2    Representations made by employees of Sperry Marine or by third parties cannot be relied upon or invoked by Buyer, unless these have been confirmed by Sperry Marine in writing.
2.3    Sperry Marine may without need for Buyer’s consent introduce improvements and alterations to the Products, provided that such improvements and alterations do not fundamentally change the ordered Products in form, fit or function.

3.    DELIVERY AND RISK

3.1    All dates and times specified to Buyer for delivery or installation of the Products and/or for the performance or provision of Service Work are estimated only and Sperry Marine shall not have any liability for delay or for any damages or losses sustained by Buyer as a result of such dates or times not being met. Buyer shall not be entitled to refuse acceptance of the Products and/or Service Work as a consequence or possible consequence of such delay. All deliveries are subject to adequate provision by Buyer and receipt by Sperry Marine in a timely manner of any proforma payments, any required official export documents and licences, technical, frequency and other information necessary from Buyer for the performance of this Agreement.
3.2    Unless otherwise Deviated, all deliveries are FCA, Sperry Marine's warehouse in Vlaardingen, The Netherlands (Incoterms 2010) and after delivery the Products shall be at the risk of Buyer, including those cases in which transport has been arranged by Sperry Marine and/ or in which at the carrier’s demand the transport document stipulates that transport shall be at the risk of Sperry Marine. Sperry Marine reserves the right to determine the means of conveyance and the route of transport, unless Buyer gives express written instructions accepted by Sperry Marine.
3.3    Any costs incurred by Sperry Marine (including, without limitation storage, insurance and other administrative costs) ensuing from delay on the part of Buyer in accepting delivery or in compliance with the requirements of Clauses 4 and 6, shall be paid by Buyer.
3.4    Sperry Marine is entitled to make partial deliveries and in that case, Sperry Marine may send Buyer a separate invoice for each partial delivery and demand payment therefor.

4.    INSPECTION AND SERVICE

4.1    During the warranty period referred to in Clause 9, Sperry Marine shall at its discretion be entitled at its cost, to inspect any installed Products and/or Service Work.
4.2    In the event that Buyer requests that: (a) Sperry Marine or its authorised service partners undertake an inspection of the Products, whether or not within the warranty period referred to in Clause 9; and/ or (b) Sperry Marine performs any repairs or Service Work which it is not obliged under Clause 9, then Sperry Marine shall, if it agrees to perform such works, be entitled to charge its applicable standard rates at the time of execution. In addition, Sperry Marine may charge for the travelling and accommodation expenses of such personnel, and/ or such other associated costs, plus a ten percent (10%) mark up, and for their travelling time at the rates applicable, as defined above. Sperry Marine shall not be required to provide documentary evidence in support of such charges. If Service Work is required outside Sperry Marine’s regular working hours, the overtime rates applicable to the district from which Sperry Marine provides the Service Work shall apply.
4.3    Any publications (including online sources) containing a list of locations in which Sperry Marine maintains service stations are for information purposes only. Sperry Marine shall have the right, at any time and at its sole discretion, to modify the number and locations of its service stations.

5.    PRICES AND TERMS OF PAYMENT

5.1    Unless otherwise Deviated, all prices quoted are based on FCA Vlaardingen (Incoterms 2010), in Euros, and shall be:  (a) exclusive of Value Added Taxes (VAT) or other taxes and charges, which if applicable, shall be added to the quoted prices and paid for by Buyer; and (b) exclusive of any other taxes and charges including, without limitation, corporate income tax, business/ turnover tax, personnel income tax, payroll tax, sales or other taxes and charges, excise tax, use and withholding taxes, arising in any country outside the country in which Sperry Marine resides, which if applicable, shall be added to the quoted prices and paid for by Buyer. For the avoidance of doubt, each party shall be responsible for any costs, charges and expenses imposed by its own banks.
5.2    In the event that the parties agree a variation or modification to the Agreement or any order, including without limitation, changes in the scope of supply, increase or reduction of the quantity supplied, change in the delivery dates of the Products or the performance dates of Service Work, the prices shall be adjusted in accordance with the standard rates used by Sperry Marine at the time of execution. In addition to the above, should delivery be extended beyond the calendar year in which the Products are originally scheduled to be delivered, the price for such Products shall be increased by four percent (4%) per calendar year.
5.3    The minimum order value which is applicable to all sales of Products and Service Works is USD300 (three hundred U.S. Dollars).
5.4    Unless otherwise Deviated and pending Buyer’s credit status with Sperry Marine, full payment in the invoiced currency shall be made by Buyer not later than thirty (30) days after the invoice date, by means of payment into the bank and/or giro account stipulated by Sperry Marine, without any suspension, set-off, deduction or discount.  Buyer may only submit a written notice of objection against the invoice within the term set out therein.
5.5    Without prejudice to any other rights of Sperry Marine, Buyer shall be in default without any further notice thereof being required, if he exceeds the aforesaid term of payment of thirty (30) days.  From such moment, Buyer shall owe interest at one and a half percent (1.5%) a month compounded on the amount still outstanding.  For the calculation of the amount payable due to interest, parts of months shall apply as whole months.  All judicial or extrajudicial costs including all legal and professional fees (on an indemnity basis) and all court costs incurred with respect to collection of the debt shall be at the expense of Buyer.
5.6    At any time Sperry Marine shall be entitled to demand reasonable security (or, as the case may be, additional security) from Buyer for the payment of the Products and/or to suspend deliveries, until the security demanded has been provided.

6.    RETENTION OF TITLE

6.1    Sperry Marine shall retain title to the Products delivered or to be delivered until Buyer has made full payment of the price for such Products to Sperry Marine without any deductions.
6.2    As long as title to the Products has not passed to Buyer, Buyer shall not dispose of the Products or encumber them.  Buyer is not permitted to attach the Products to other objects in such a manner that they cannot be easily removed. Additionally, Buyer shall ensure that adequate insurance policies are in place to cover any loss or damage to the Products.
6.3    If Buyer does not comply with its payment obligations, or Sperry Marine considers that Buyer will not be able to comply with its payment obligations, Sperry Marine shall be irrevocably authorised by Buyer to gain access to Buyer’s business premises or the premises of a third party holding the Products on behalf of Buyer without prior notice, and to take all the necessary steps to recover the Products.  Buyer is obliged to co-operate fully with Sperry Marine for this purpose.
6.4    Buyer is obliged to inform Sperry Marine without delay of the fact that third parties are claiming rights to the Products which are the property of Sperry Marine.  Buyer is obliged to inform this third party, official receiver, trustee or attaching creditor of Sperry Marine’s title with respect to these Products without delay.

7.    ACCEPTANCE OF PRODUCTS

7.1    Buyer is obliged to inspect the Products or Service Works carefully after delivery and to inform Sperry Marine of any discoverable defects.  Any complaints with respect to the Products shall be notified to Sperry Marine in writing within fourteen (14) days after delivery of the Products or performance of Service Work.  If Buyer reasonably demonstrates that it was not possible to discover the defect upon delivery, then the complaint must be raised in writing within fourteen (14) days after the date on which the defect was discovered or could reasonably have been discovered, but in no event (including latent defects) shall Buyer be entitled to reject the Products more than thirty (30) days after delivery.
7.2    After expiry of the dates mentioned in Subclause 7.1, Buyer is deemed to have accepted the Products and/or Service Work and the Products and/or Service Work can no longer be rejected.

8.    TERMINATION

8.1    If Buyer:
(a)    commits any material breach of any of the terms of this Agreement (which for the avoidance of doubt, shall automatically include a breach of Clause 12 and 13); and / or
(b)    makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction), suffers any act of bankruptcy, any resolution or petition to wind up Buyer is passed, a third party seizes or threatens to seize the Products and/or Service Work before legal ownership has passed to Buyer in accordance with this Agreement, an encumbrancer takes possession or a receiver is appointed of any of the property or assets of Buyer, it ceases, or threatens to cease, to carry on business, or any circumstance arises or event occurs in relation to Buyer or any of its material assets in any country or territory in which it carries on business or to the jurisdiction of whose courts it or any of its assets is subject which corresponds with or has an effect equivalent or similar to any of those stated in this Subclause 8.1(b); and/ or
(c)    has its financial position deteriorated to such an extent that in Sperry Marine's sole opinion Buyer's capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy;
Sperry Marine shall be entitled to suspend the performance of any still current agreements wholly or partly, and in such circumstances all outstanding claims shall become payable on demand.  In this event, and without prejudice to any claim or right it might otherwise make or exercise, Sperry Marine is furthermore entitled to terminate any still current agreements wholly or partly without any further notice of default by written notice to Buyer.  Buyer shall be liable for all losses, costs and damages suffered by Sperry Marine as a result of such termination.
8.2    Sperry Marine may terminate the supply of any Products or the performance of any Service Work under this Agreement, in whole or in part, at any time, without reason, by giving Buyer not less than thirty (30) days’ written notice. Sperry Marine will thereupon reimburse Buyer in respect of Products that have been paid for but not yet delivered or Service Work that has been paid for but not yet performed.
8.3    Buyer may cancel its order only with the prior written consent of Sperry Marine, which consent shall be entirely at Sperry Marine’s discretion.  In the event of such agreed cancellation, Buyer shall pay Sperry Marine an amount equal to the total of the following amounts:
(a)    any outstanding sums due to Sperry Marine for any orders placed by Buyer but not yet delivered, and for any Products delivered or any Service Work performed; and
(b)    all costs incurred or committed by Sperry Marine in performance of the order and allocable thereto including, without limitation, non-cancellable purchases from third party suppliers (including Service Work already performed), overhead and general and administrative expense, exclusive of any cost attributable to completed Service Work under (a); and
(c)    to the extent not already included under (a), a sum for lost profits equal to fifteen percent (15%) of the order price of the cancelled part of the order, or such higher amount of lost profits as Sperry Marine can reasonably demonstrate it has incurred by accepting the cancellation; and
(d)    to the extent not already covered by (a) and (b), an amount equal to either the order value or costs of settling and paying any claims arising out of the cancelling of Products and/or Service Work under any subcontracts or purchase orders of Sperry Marine, whichever is the higher amount.
8.4    Upon the expiration or termination of this Agreement for whatever reason, upon written instruction, each party will return to the other party all confidential information (as per Subclause 14.9 herein), other than normal correspondence, letters, orders and the like.
8.5    The termination or expiry of this Agreement will not prejudice or affect any right of action or remedy which has accrued or will thereafter accrue to either party.
8.6    Notwithstanding the termination or expiry of this Agreement, the provisions of Clauses 10 and 12, and Subclauses 14.6, 14.7 and 14.9 shall survive for a period of five (5) years following the termination or expiry of this Agreement.

9.    WARRANTY AND SUPPORT

9.1    Sperry Marine warrants that all Products manufactured by Sperry Marine, its subsidiaries or affiliates and sold by Sperry Marine to Buyer at the time of delivery will be free from material defects in material and workmanship under normal use and service when (a) installed in accordance with the applicable Sperry Marine installation drawing; and (b) Supervision of Installation (SOI) or commissioning is performed by an authorised marine service engineer (“MSE”) employed either by Sperry Marine or one its authorised service partners. No warranty shall be effective if a defective Product has been repaired or in any way worked on by anyone other than a MSE without Sperry Marine’s prior written consent.
9.2    Unless otherwise stated, for all Products sold as new, Sperry Marine’s obligation under  warranty shall be limited to defects as defined in Subclause 9.1 above of which Sperry Marine is notified within twelve (12) months after the date that a Sperry Marine authorised MSE and Buyer representative sign a completed Commissioning Report (the “Date of Installation”) or twenty four (24) months after date of shipment, from Sperry Marine, whichever period shall first expire (“Original Warranty Period”).  
9.3    The warranty for reconditioned Products or Products not sold as new under Sperry Marine’s Spares Exchange (“SPEX”) shall be for a period of three (3) months after the Date of Installation or six (6) months after date of shipment, from Sperry Marine, whichever period shall first expire.
9.4    The warranty period for Service Work shall be:
(a)    where the Service Work is performed as part of the supply of new Products under Subclause 9.2, the warranty period set forth in Subclause 9.2; or
(b)    where the Service Work is performed as part of the supply of reconditioned Products or SPEX under Subclause 9.3 herein, the warranty period set forth in Subclause 9.3; or
(c)    in all other cases, one (1) month from the date of performance and completion of the Service Work.
9.5    In case of Products sold but not manufactured by Sperry Marine, its subsidiaries or affiliates, Sperry Marine’s sole obligation shall be six (6) months from delivery of the Products, or surviving manufacturer’s standard warranty conferred to Sperry Marine, whichever is longer.
9.6    All warrantable defects shall be notified to Sperry Marine within fourteen (14) days of its discovery, but in any event within the applicable warranty period. Sperry Marine’s warranty obligations shall be limited, at Sperry Marine’s discretion, to:  (a) replacement or repair of the defective Products; or (b) a sum not exceeding the net invoice value of the defective Products; or (c) in the case of Service Work, re-performance of that Service Work.  Any repaired or replaced Products or re-performed Service Work shall benefit from the warranty set out in Subclause 9.2, 9.3 or 9.4, but in no event shall the warranty of such rectified/ repaired Products or re-performed Service Work exceed the Original Warranty Period.
9.7    It shall sometimes be necessary for an engineer to travel to the service location to effect the warranty repair.  Where Sperry Marine sends a MSE to the service location to effect the warranty repair, Buyer shall pay all associated travel and accommodation expenses of the MSE and Buyer shall pay the hourly rate for the MSE’s for any travel time in excess of a total of four (4) hours round trip.
9.8    Replacement and repair of a defective part shall be made where the Products are sent to a Sperry Marine establishment or to a service station appointed by Sperry Marine within the warranty period referred to in Clause 9, provided that shipping costs, excluding import customs fees and duties, are prepaid by Buyer and the part is found defective after inspection at the establishment or service station. Defective Products, parts which are replaced under warranty, or parts exchanged under the SPEX scheme shall be returned by Buyer at Buyer’s sole cost to Sperry Marine to be received by Sperry Marine at Sperry Marine’s warehouse no later than four (4) weeks after the replacement has been installed and the respective commissioning report has been signed. Buyer shall only return such Products and/or SPEX after written acknowledgement from Sperry Marine and shall affix to the packaging such reference numbers and/or authorisation provided. Consumables and peripheral equipment such as cables, wires, mounting equipment and mechanical components shall not be returned unless specified by Sperry Marine.  Where the defective Products or parts are not received by Sperry Marine within four (4) weeks, Buyer shall pay Sperry Marine the full list price of the relevant Products or parts and Sperry Marine shall invoice Buyer accordingly. For parts exchanged under the SPEX scheme Buyer shall pay Sperry Marine an amount equivalent to the shortfall between the agreed price and the price that would have been charged had there been no supply of used or defective equipment by Buyer and Sperry Marine shall invoice the Buyer accordingly.
9.9    No warranty shall be effective with respect to any Product that has been subjected to conditions beyond the limits of its specifications, or which has been physically damaged, or to which is attached any apparatus other than apparatus supplied by Sperry Marine for attachment or specifically approved for attachment by Sperry Marine in writing, nor does it apply to Products found to be defective due to abuse, lightning or other electrical discharge.
9.10    For the avoidance of doubt, the warranty set out in these terms includes any software installed within the Product which is required for its proper operation. Software warranty covers the remedy of defects in the software only, where this materially affects the operation of the Product and where the defects can be reproduced by Sperry Marine at any time. Sperry Marine does not warrant or represent;
(i)    that software will function without interruption or error,
(ii)    that all software defects can be eliminated,
(iii)    that software, protocols, interfaces or the like that are not of Sperry Marine origin but which are coded, provided or directed by the Buyer to be installed within the Product will function without error and/ or is compatible with the operations of the Product,
(iv)    that the software will correspond to Buyer’s requirements, and
(v)    that the software will function without error in each configuration the Buyer selects, unless such configuration has been confirmed fit for purpose by Sperry Marine.
Sperry Marine’s sole liability shall be to provide a software update for the affected Product per Subclause 9.7. A software update is a defects resolution software revision that provides fixes for features that aren't working as intended and may, at Sperry Marine’s discretion, include enhancements and additional functionality. Software updates are warranted to the same extent and duration as the Products of which they form a part of. A software upgrade, on the other hand, offers a significant change or major improvement over the existing version. A software upgrade is a separately chargeable event that does not form part of the existing Products or Service Works. Such software upgrades shall be warranted for a period of twelve (12) months from the Date of Installation. Sperry Marine reserves the right to determine, in its absolute discretion, whether a software revision constitutes a software update or software upgrade.
Under no circumstances shall Sperry Marine accept any liability for claims for loss of data.
9.11    Sperry Marine may, in its sole discretion and without notice, discontinue the sale of any Products at any time. Sperry Marine shall remain liable for the warranty of such Products under Clause 9 for the duration of the Original Warranty Period, but shall not be required to replace the discontinued Products with its successor versions. Sperry Marine may also modify the design and specifications of any existing Products, but, subject to Subclause 9.10 herein, shall not be obliged to provide such modifications on Products previously purchased by Buyer. Sperry Marine reserves the right to determine, in its absolute discretion, whether such modifications constitute a Product update or an upgrade.
9.12    The foregoing provisions set forth Sperry Marine’s sole liability for breach of warranty in respect of, or for any defect or nonconformity in, any Products or Service Work, and Sperry Marine shall have no obligation or liability in respect of any defect or nonconformity discovered after the lapse of the warranty period as specified above.  All other warranties, whether express or implied, in contract, statute or at law, are, to the extent permissible by law, herewith expressly excluded.
9.13    In the event of an unjustified warranty claim, including but not limited to instances where no fault is found or where the fault is not covered by the warranty set out in Clause 9, Buyer shall compensate Sperry Marine for any cost that it has incurred in responding to the claim.

10.    LIABILITY

10.1    Nothing in this Agreement will exclude or limit the liability of either party to the other: (a) for death or personal injury resulting from the negligence of that party or any of its respective directors, officers, employees, contractors or agents; (b) in respect of fraud or wilful misconduct by that party or any of its respective directors, officers, employees, contractors or agents; (c) for breach of the provisions set out in Clauses 13; or (d) for any other liability that cannot be excluded or limited by applicable law.
10.2    Notwithstanding any provisions to the contrary in this Agreement, and to the maximum extent permitted by law, Sperry Marine will not be liable for any of the following types of loss or damage arising under or in relation to this Agreement (whether arising from breach of contract, negligence, misrepresentation, tort, breach of statutory duty or otherwise): (a) any loss of profits, loss of capital of its use thereof, loss of vessel, loss of cargo, loss of product, business, contracts, anticipated savings, goodwill, or revenue, any wasted expenditure, or any loss or corruption of data; or (b) any indirect or consequential loss or damage whatsoever, even if Sperry Marine was aware of the possibility that such loss or damage might be incurred.
10.3    Subject to Subclause 10.1, Sperry Marine’s cumulative liability under this Agreement will be limited to the prices for the Products and Service Work charged thereunder.
10.4    Sperry Marine shall not be liable for damages that may occur as a result of inappropriate or inadequate sites, facilities, installations or transport routes provided by Buyer.

11.    INTELLECTUAL PROPERTY RIGHTS AND PATENTS

11.1    For the purpose of this Agreement, "Intellectual Property” means (a) patents, inventions, designs, copyright and related rights, database rights, trademarks, trade names (whether registered or unregistered), and rights to apply for registration; (b) proprietary rights in domain names; (c) knowhow and confidential information; (d) applications, extensions and renewals in relation to any of these rights; and (e) all other rights of a similar nature or having an equivalent effect anywhere in the world which currently exist or are recognised in the future. Sperry Marine shall grant to the Buyer a royalty-free, perpetual, transferable and non-exclusive license to use the Products and/ or Service Work in accordance with this Agreement, subject to restrictions set forth in Clause 12 hereunder. Such rights are granted on the condition that the Buyer shall not reverse engineer any Products, Service Work or any Intellectual Property embodied therein, or otherwise adapt them for other uses. The validity of the license shall cease at such time when the Buyer is no longer in possession of the Products and/ or no longer utilizes the Service Works.
11.2    All rights in or to Intellectual Property in the Products or which may arise directly or indirectly as a result of performance of the Service Work by Sperry Marine under this Agreement will be vested in Sperry Marine absolutely.
11.3    Any of Sperry Marine’s special or general purpose tools, techniques, documentation, test materials, prototypes, software, moulds, dies, or other items or materials used in the design, test, manufacture, training, installation, commissioning and other performance of this Agreement will remain in the sole ownership of Sperry Marine at all times and are not included in any offer.
11.4    In the event that Buyer submits a claim alleging violation of third party intellectual property by the Products or any component thereof, and provided that the validity of such claim or allegation has been proved to the satisfaction of Sperry Marine or in a court of final instance that the use of these Products is prohibited, Sperry Marine shall at its sole discretion and at expense: (a) grant Buyer the right to continue to use the Products by procuring applicable licenses, or (b) replace or change the Products in such a way that violation ceases to exist, or where (a) or (b) are not possible, refund to the Buyer the purchase price for the Products upon return of the Products per Subclause 9.8. The aforesaid shall be the sole and exclusive liability of Sperry Marine in relation to any actual or alleged violation of Intellectual Property.
11.5    Sperry Marine accepts no liability in respect of claims for infringement or alleged infringement of third party’s Intellectual Property arising from the execution of the Agreement in accordance with Buyer’s designs, plans or specifications and Buyer will indemnify Sperry Marine against all losses, damages, expenses or other liability arising from such claims.
11.6    Sperry Marine shall not have any obligations towards Buyer with respect to any violation of Intellectual Property or a claim related to it, which is the result of:  (a) change or expansion of the Products according to special designs or specifications provided by or on behalf of Buyer; or (b) the use of the Products in combination with appliances or equipment which have not been made by Sperry Marine; or (c) the use of the Products in a manner for which they have neither been designed nor intended; or (d) violation of any Intellectual Property in which Buyer or its subsidiary or branch office have any direct or indirect interest on account of a licence or otherwise, or (e) non receipt of payment by Sperry Marine, or (f) Buyer is aware of pre-existing Intellectual Property claims, or (g) Buyer failing to notify Sperry Marine of the claim or cooperate with Sperry Marine, or (h) Buyer continuing with infringing activities. 

12.    EXPORT CONTROL COMPLIANCE

12.1    Products may contain parts of multiple origin, including the United States of America (“USA”).  Buyer shall comply with all applicable export laws, rules and regulations including but not limited to those of the United Kingdom (“UK”), Germany, the European Community and the USA and will not export or re-export the Products in violation of any such laws, rules or regulations.  Buyer warrants that all reasonable and appropriate steps will be taken to ensure that any other person or entity purchasing or otherwise acquiring the Products from Buyer will not export or re-export in violation of the aforementioned laws, rules and regulations.
12.2    If an export licence is required for the performance of any Sperry Marine’s obligation, including but not limited to supply of Products, Service Work or warranty repairs in accordance with Clause 9, and such export licence is not granted or having been granted is revoked, Sperry Marine shall have no further obligations to Buyer under Buyer’s order and this Agreement shall automatically terminate.  In case of a cancellation due to this reason Buyer shall have no right to repayment of costs already incurred by it or for any other compensation howsoever arising, but Sperry Marine shall be entitled to all payments for Products or Service Work already performed under this Agreement.
12.3    Where an order has been accepted and Sperry Marine subsequently establishes that, in its reasonable opinion, the order is in conflict with Subclause 12.1, this order will be immediately cancelled by Sperry Marine.  In this case, Buyer shall have no right to repayment of costs already incurred by it or for any other compensation howsoever arising.
12.4    Buyer agrees that the Products and/or Service Work provided under this Agreement will not be used for any purpose connected with chemical, biological or nuclear weapons, or missiles capable of delivering such weapons; that they will not be sold or transferred if it is known or suspected that they are intended or likely to be used for such purposes; that the Products will not be re-exported or otherwise sold or transferred to a destination subject to a United Nations, European Union (“EU”), Organization for Security and Co-operation in Europe ("OSCE"), UK or USA embargo where that act would be in breach of the terms of that embargo; and that the Products, or any replica of them, will not be used in any nuclear explosive activity or unsafeguarded nuclear fuel cycle.
12.5    Unless otherwise Deviated by Sperry Marine in advance, Buyer also agrees that the Products and/or Service Work provided under this Agreement will not be re-exported or otherwise sold or transferred to a military end-use and/or end-user; or to individuals or entities that are subject to USA, UK, and/or EU trade restrictions, including, but not limited to, the US Department of Commerce’s Denied Party List and Entity List, the US Department of Treasury’s Specially Designated Nationals list and Sectorial Sanctions Identifications list, and Annex IV to Council Regulation (EU) No 960/2014.
12.6    Buyer warrants that it is not owned or controlled by, nor does it own or control, a person or entity that is subject to economic or trade sanctions imposed by the USA Government, which restrict USA companies from engaging in financial transactions with such entity for any reason, including but not limited to being resident or headquartered in or a governmental entity of a country subject to such sanctions (currently Cuba, Iran, Syria and Sudan) or a Designated National under the USA Cuban Assets Control Regulations.
12.7    Buyer further warrants that it is neither resident in nor headquartered in a country to which the export or re-export of goods or technologies that are subject to the USA Export Administration Regulations are generally embargoed (currently North Korea) nor is it owned or controlled by a governmental entity of such country. Buyer agrees that it will notify Sperry Marine if these circumstances change. For purpose of this provision, references to "ownership" are defined to mean any ownership interest, direct or indirect, of 50 percent or more, and references to "control" are defined to mean the right or ability to, directly or indirectly, dictate the decisions, actions, and/or policies of an entity or its management by any means. If at any time during the term of this Agreement, Buyer breaches this article, then, in addition to any other rights Sperry Marine may have under this Agreement, Sperry Marine may immediately terminate this Agreement.

13.    PROHIBITED ACTIVITIES

13.1 Anti-Corruption Compliance: Buyer represents, warrants and covenants that:
13.1.1     It has not and will not, directly or indirectly, pay, promise, offer, or authorize the payment of any money or anything of value to:
(a)     an officer, employee, agent or representative of any government, including any department, agency, or instrumentality thereof or any person acting in an official capacity thereof;
(b)     a candidate for political office, any political party or any official of a political party; or
(c)     any other person or entity
while knowing or having reason to know that all or any portion of such payment or thing of value will be offered, given or promised, directly or indirectly, to any person or entity for the purpose of assisting Sperry Marine in obtaining or retaining business (including this Agreement), or an improper business advantage. Without limiting the generality of the foregoing, Buyer shall not directly or indirectly, pay, promise, offer, or authorize the payment of any facilitating payment intended to expedite or secure performance of a routine governmental action, such as, customs clearance on behalf of Sperry Marine.
13.1.2     No gratuities such as, but not limited to, gifts, travel expenses, business courtesies, hospitalities or entertainment of any nature has been or will be accepted or made in connection with this Agreement where the intent was, or is, to unlawfully influence the recipient of the gratuity. Buyer also represents that any gratuities offered or provided shall meet the following conditions:
(a)     be permitted under the UK Bribery Act and US Foreign Corrupt Practices Act and the laws and regulations of the country in which this Agreement will be performed;
(b)    be consistent with applicable social and ethical standards and accepted business practices;
(c)     be of such limited value as not to be deemed a bribe, payoff or any other form of improper inducement or payment; and
(d)     be of such nature that its disclosure will not cause embarrassment for Sperry Marine.
13.1.3     Breach of any of the foregoing provisions of Clauses 13.1.1 and 13.1.2 by Buyer shall be considered an irreparable material breach of this Agreement and shall entitle Sperry Marine to terminate this Agreement immediately without compensation to Buyer.
13.2     Denied Parties: Buyer warrants that it is not owned or controlled by, nor does it own or control, a person or entity that is on the list of Specially Designated Nationals and Blocked Persons maintained by the Office of Foreign Assets Control of the USA Department of the Treasury or any list of known or suspected terrorists, terrorist organizations or other prohibited persons published by any jurisdiction in which Buyer is doing business.
13.3     Prohibited Activity: Unless specifically authorised in writing by Sperry Marine, Buyer shall not engage in any of the following activities on behalf of Sperry Marine under this Agreement: acting as an agent of Sperry Marine; marketing or sales promotion; lobbying; freight forwarding; consulting services; performing offset (industrial participation) consulting or brokering services; acting as a distributor or reseller; or activity as a joint venture party.
13.4     Prohibited Contact: Unless specifically authorised in writing by Sperry Marine, Buyer shall not contact, either directly or indirectly, public officials of any country other than the USA, UK, Canada, Australia, Germany, France, or Italy in furtherance of its performance on behalf of Sperry Marine under this Agreement.
13.5     Notification of Changes: If Buyer provided anti-corruption compliance due diligence information (e.g., related to its ownership and personnel, subsidiaries and third parties, the due diligence questionnaire, and related certifications) to Sperry Marine or through Sperry Marine’s Global Trust website, Buyer shall provide Sperry Marine with prompt notification and details of any changes to information contained in such due diligence materials, and agrees to promptly cooperate with Sperry Marine and provide additional information reasonably requested in relation to such changes. In the event of a material change to information contained in the due diligence material supplied to Sperry Marine, Sperry Marine reserves the right to suspend performance under this Agreement by providing written notice to Buyer in order for Sperry Marine to conduct additional anti-corruption due diligence upon such changed circumstances.

14.    GENERAL CONDITIONS

14.1    Force Majeure:  Sperry Marine will not be liable for any failure to perform its obligations (excluding payment obligations) or delay in performance of the same under this Agreement where such failure or delay is due to any cause beyond Sperry Marine’s control (a “Force Majeure Event”).  In the event that a Force Majeure Event endures for more than sixty (60) days, the parties will meet and review in good faith, the desirability of and conditions for continuation of this Agreement and any failure to resolve the same will entitle Sperry Marine to terminate Buyer’s order (in whole or in part) without further liability to Buyer. The parties expressly agree that Force Majeure Event shall include, but is not limited to; government actions, omissions or delay; fire; strike; war; civil commotion; factory closure due to outbreak of communicable diseases; earthquake; and other Acts of God.
14.2    Assignment:  This Agreement may not be assigned in whole or in part by either party without the prior written consent of the other except as part of a merger, consolidation or re-organisation or voluntary sale or transfer of all or substantially all of the relevant party’s assets where the merged, consolidated or re-organised corporation or entity, or the transferee of such sale or transfer, has the authority and power to effectively perform that party’s obligations under this Agreement.
14.3    Notices:  Any notice, consent, permission or other communication required or permitted to be given by either party under this Agreement shall be:  (a) in writing; (b) in English; (c) and signed by or on behalf of the sender.  Notices must be delivered by at least one of the following delivery methods:  (a) hand or recorded delivery post (or any equivalent postal service) to the address specified by one party to the other party; or (b) e-mail.  For notice delivered by e-mail, the e-mail addresses will be those set out in the order and/or order acknowledgement, as may be formally updated in writing from time to time.  E-mail will be deemed received at the time and date of transmission shown on the saved sent copy.
14.4    No Waiver:  The failure by Sperry Marine to exercise, or its delay in exercising, a right, power or remedy provided by this Agreement or by law will not constitute a waiver by Sperry Marine of that right, power or remedy. If Sperry Marine waives a breach of any provision of this Agreement this will not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.
14.5    Severability:  If any provision, or part of a provision, of this Agreement, is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable, that provision or part-provision will be deemed not to form part of the Agreement, and the legality, validity or enforceability of the remainder of the provisions of this Agreement will not be affected, unless otherwise required by operation of applicable law. The parties will use all reasonable endeavours to agree within a reasonable time upon any lawful and reasonable variations to this Agreement which may be necessary in order to achieve, to the greatest extent possible, the same commercial effect as would have been achieved by the provision, or part-provision, in question.
14.6    Dispute Resolution:  Should any question, dispute or difference whatsoever arise between the parties in relation to or in connection with this Agreement:  (a) Buyer or Sperry Marine may give notice to the other in writing of the existence of such a question, dispute or difference and nominated representatives of both parties will discuss within fourteen (14) days of such notice to attempt to reach a solution; (b) if the parties are unable to resolve any dispute within fourteen (14) days of its referral under (a) above, then the parties will attempt to settle it by mediation in accordance with the China Council for the Promotion of International Trade (CCPIT) Mediation Center; (c) if no mutually acceptable solution is found pursuant to (b) above, then the matter will be finally settled in accordance with the Arbitration Rules of the Shanghai International Economic and Trade Arbitration Commission by three (3) arbitrators, which Rules are deemed to be incorporated by reference into this Subclause.  Arbitration will take place in the People’s Republic of China and the language to be used in the proceedings shall be English; and (d) the prevailing party in any arbitration or legal proceeding brought by one party against the other party and arising out of or in connection with this Agreement will be entitled to recover its legal expenses, including arbitration costs, court costs and reasonable lawyers and experts fees.
14.7    Governing Law:  This Agreement (and any part thereof) and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) will be governed by the laws of the People’s Republic of China. The UN Convention for International Sale of Goods shall not apply.
14.8    Offset:  The total value of this Agreement may be applied as offset credit by Sperry Marine as it sees fit in support of any present or future offset obligations. Sperry Marine will have the right to assign, sell, or otherwise transfer such credits to third parties of its choice to be used in meeting the offset obligations of said third parties.
14.9    Confidentiality:  A party (the “Receiving Party”) will keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (the “Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party will restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under this Agreement, and will ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.
14.10    Data Protection:  Sperry Marine shall, at its own cost, comply with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (collectively “GDPR Regulations”) and shall only process, use or disclose Personal Data (as defined within the GDPR Regulations), (a) strictly for the purposes of fulfilling its obligations for which the Personal Data is provided; (b) with Buyer’s prior written consent; or (c) when required by law or an order of court, but shall notify Buyer as soon as practicable before complying with such law or order of court.  Buyer agrees that Sperry Marine may subcontract the aforesaid Personal Data processing operations.  Where Sperry Marine engages another party for such purposes, it shall ensure that such party has entered into a written agreement that imposes the same data protection obligations as set out in this Subclause.
14.11    Entire Agreement:  This Agreement represents the entire agreement between the parties with respect to the subject matter hereof and will apply to this Agreement to the exclusion of any other terms or conditions purported to apply by any other document.
14.12    Independent Contractors:  Nothing in this Agreement will (except as expressly provided) be deemed to constitute a partnership, or create a relationship of principal and agent between the parties for any purpose.
14.13    Third Parties:  This Agreement is enforceable by the original parties only and any other persons will have no rights whatever either under this Agreement or any other laws or otherwise to enforce any term of this Agreement.  The term "original parties" will include Sperry Marine’s parent company and any associated subsidiaries within the Northrop Grumman group.
14.14    Amendments:  No alterations or amendments to this Agreement will be effective unless contained in a written document signed by the authorised representatives of each of the parties.
14.15    Waste Electrical and Electronic Equipment:  Where Buyer is based in the EU or UK, Buyer confirms that they assume responsibility for the correct disposal or onward sale of the Products at the end of its service life with Buyer in accordance with the EU WEEE (Waste Electrical and Electronic Equipment) Directive (2012/19/EC) or such regulations or directives of analogous or similar effect in the relevant territory(ies).
14.16    Compliance with Tax Laws:  Buyer shall specifically ensure that it complies with all laws, in any part of the world, in relation to the registration for or payment of any taxes which might be due in connection with the performance of the Service Work or supply of any Products, under this Agreement.  Without limiting the foregoing, Buyer shall:  (a) not, directly or indirectly, knowingly participate, be concerned in or take steps with a view to, the fraudulent evasion of tax by another person; (b) provide prompt notification to Sperry Marine of any tax offence related to the Service Work or any attempt to evade the proper payment of tax in relation the Service Work; and (c) include the substance of this Subclause in all subcontracts or other agreements with its agents, representatives or subcontractors performing any Service Work and be responsible for the observance and performance by such agents, representatives or subcontractors of this Subclause.  For purposes of this Subclause, the terms “tax” or “taxes” includes income tax, property tax, payroll tax, sales tax, value added tax, and similar taxes.
14.17    Governing Language: This Agreement is written in both English and Chinese. In case of any discrepancy between the two languages, the English language version shall prevail.
 

Northrop Grumman Sperry Marine (S) Pte Ltd

 

1.    SALE AND PURCHASE

1.1    In these general terms of sale the following designations are used: “Sperry Marine” refers to Northrop Grumman Sperry Marine (S) Pte Ltd; “Buyer” refers to the natural person or corporate body making or accepting an offer or otherwise entering into a legal relationship with Sperry Marine whereby Sperry Marine supplies goods, including spare parts, or software (“Products”) and/or services, including without limitation, service labour, engineering work in developing a system, or project management (“Service Work”) to Buyer as they are described in Sperry Marine’s offer.
1.2    These general terms of sale shall be applicable exclusively to all offers and order acceptances by Sperry Marine for the sale and supply of Products and/or Service Work and the term “Agreement” herein shall apply to all such agreements based on these terms.
1.3    Deviations from, changes and/or supplements to these general terms of sale will only be valid and binding if and in so far as these have been explicitly accepted by Sperry Marine in writing (“Deviated”).
1.4    An Agreement is effective the moment when Sperry Marine has accepted the order in writing, or, in the absence of an order acceptance, as soon as Sperry Marine has commenced execution of the order.

2.    OFFERS AND CONTENTS OF THE AGREEMENT

2.1    All offers of Sperry Marine are without obligation, particularly as regards price, quantity, time of delivery and possibilities of delivery, and can be revoked by Sperry Marine at any time.  Offers of which Sperry Marine has not received a written acceptance within sixty (60) days from the offer, or any other such duration as provided for in writing by Sperry Marine, shall be cancelled automatically.  Purchase orders or other forms of written acceptance from Buyer shall constitute irrevocable offers once accepted by Sperry Marine per Subclause 1.4.
2.2    Representations made by employees of Sperry Marine or by third parties cannot be relied upon or invoked by Buyer, unless these have been confirmed by Sperry Marine in writing.
2.3    Sperry Marine may without need for Buyer’s consent introduce improvements and alterations to the Products, provided that such improvements and alterations do not fundamentally change the ordered Products in form, fit or function.

3.    DELIVERY AND RISK

3.1    All dates and times specified to Buyer for delivery or installation of the Products and/or for the performance or provision of Service Work are estimated only and Sperry Marine shall not have any liability for delay or for any damages or losses sustained by Buyer as a result of such dates or times not being met. Buyer shall not be entitled to refuse acceptance of the Products and/or Service Work as a consequence or possible consequence of such delay. All deliveries are subject to adequate provision by Buyer and receipt by Sperry Marine in a timely manner of any proforma payments, any required official export documents and licences, technical, frequency and other information necessary from Buyer for the performance of this Agreement.
3.2    Unless otherwise Deviated, all deliveries are FCA, Sperry Marine's warehouse in Vlaardingen, The Netherlands (Incoterms 2010) and after delivery the Products shall be at the risk of Buyer, including those cases in which transport has been arranged by Sperry Marine and/ or in which at the carrier’s demand the transport document stipulates that transport shall be at the risk of Sperry Marine. Sperry Marine reserves the right to determine the means of conveyance and the route of transport, unless Buyer gives express written instructions accepted by Sperry Marine.
3.3    Any costs incurred by Sperry Marine (including, without limitation storage, insurance and other administrative costs) ensuing from delay on the part of Buyer in accepting delivery or in compliance with the requirements of Clauses 4 and 6, shall be paid by Buyer.
3.4    Sperry Marine is entitled to make partial deliveries and in that case, Sperry Marine may send Buyer a separate invoice for each partial delivery and demand payment therefor.

4.    INSPECTION AND SERVICE

4.1    During the warranty period referred to in Clause 9, Sperry Marine shall at its discretion be entitled at its cost, to inspect any installed Products and/or Service Work.
4.2    In the event that Buyer requests that: (a) Sperry Marine or its authorised service partners undertake an inspection of the Products, whether or not within the warranty period referred to in Clause 9; and/ or (b) Sperry Marine performs any repairs or Service Work which it is not obliged under Clause 9, then Sperry Marine shall, if it agrees to perform such works, be entitled to charge its applicable standard rates at the time of execution. In addition, Sperry Marine may charge for the travelling and accommodation expenses of such personnel, and/ or such other associated costs, plus a ten percent (10%) mark up, and for their travelling time at the rates applicable, as defined above. Sperry Marine shall not be required to provide documentary evidence in support of such charges. If Service Work is required outside Sperry Marine’s regular working hours, the overtime rates applicable to the district from which Sperry Marine provides the Service Work shall apply.
4.3    Any publications (including online sources) containing a list of locations in which Sperry Marine maintains service stations are for information purposes only. Sperry Marine shall have the right, at any time and at its sole discretion, to modify the number and locations of its service stations.

5.    PRICES AND TERMS OF PAYMENT

5.1    Unless otherwise Deviated, all prices quoted are based on FCA Vlaardingen (Incoterms 2010), in Euros, and shall be:  (a) exclusive of Goods and Services Tax (GST) or other taxes and charges, which if applicable, shall be added to the quoted prices and paid for by Buyer; and (b) exclusive of any other taxes and charges including, without limitation, corporate income tax, business/ turnover tax, personnel income tax, payroll tax, sales or other taxes and charges, excise tax, use and withholding taxes, arising in any country outside the country in which Sperry Marine resides, which if applicable, shall be added to the quoted prices and paid for by Buyer. For the avoidance of doubt, each party shall be responsible for any costs, charges and expenses imposed by its own banks.
5.2    In the event that the parties agree a variation or modification to the Agreement or any order, including without limitation, changes in the scope of supply, increase or reduction of the quantity supplied, change in the delivery dates of the Products or the performance dates of Service Work, the prices shall be adjusted in accordance with the standard rates used by Sperry Marine at the time of execution. In addition to the above, should delivery be extended beyond the calendar year in which the Products are originally scheduled to be delivered, the price for such Products shall be increased by four percent (4%) per calendar year.
5.3    The minimum order value which is applicable to all sales of Products and Service Works is EUR 250 (two hundred and fifty Euros).
5.4    Unless otherwise Deviated and pending Buyer’s credit status with Sperry Marine, full payment in the invoiced currency shall be made by Buyer not later than thirty (30) days after the invoice date, by means of payment into the bank and/or giro account stipulated by Sperry Marine, without any suspension, set-off, deduction or discount.  Buyer may only submit a written notice of objection against the invoice within the term set out therein.
5.5    Without prejudice to any other rights of Sperry Marine, Buyer shall be in default without any further notice thereof being required, if he exceeds the aforesaid term of payment of thirty (30) days.  From such moment, Buyer shall owe interest at one and a half percent (1.5%) a month compounded on the amount still outstanding.  For the calculation of the amount payable due to interest, parts of months shall apply as whole months.  All judicial or extrajudicial costs including all legal and professional fees (on an indemnity basis) and all court costs incurred with respect to collection of the debt shall be at the expense of Buyer.
5.6    At any time Sperry Marine shall be entitled to demand reasonable security (or, as the case may be, additional security) from Buyer for the payment of the Products and/or to suspend deliveries, until the security demanded has been provided.

6.    RETENTION OF TITLE

6.1    Sperry Marine shall retain title to the Products delivered or to be delivered until Buyer has made full payment of the price for such Products to Sperry Marine without any deductions.
6.2    As long as title to the Products has not passed to Buyer, Buyer shall not dispose of the Products or encumber them.  Buyer is not permitted to attach the Products to other objects in such a manner that they cannot be easily removed. Additionally, Buyer shall ensure that adequate insurance policies are in place to cover any loss or damage to the Products.
6.3    If Buyer does not comply with its payment obligations, or Sperry Marine considers that Buyer will not be able to comply with its payment obligations, Sperry Marine shall be irrevocably authorised by Buyer to gain access to Buyer’s business premises or the premises of a third party holding the Products on behalf of Buyer without prior notice, and to take all the necessary steps to recover the Products.  Buyer is obliged to co-operate fully with Sperry Marine for this purpose.
6.4    Buyer is obliged to inform Sperry Marine without delay of the fact that third parties are claiming rights to the Products which are the property of Sperry Marine.  Buyer is obliged to inform this third party, official receiver, trustee or attaching creditor of Sperry Marine’s title with respect to these Products without delay.

7.    ACCEPTANCE OF PRODUCTS

7.1    Buyer is obliged to inspect the Products or Service Works carefully after delivery and to inform Sperry Marine of any discoverable defects.  Any complaints with respect to the Products shall be notified to Sperry Marine in writing within fourteen (14) days after delivery of the Products or performance of Service Work.  If Buyer reasonably demonstrates that it was not possible to discover the defect upon delivery, then the complaint must be raised in writing within fourteen (14) days after the date on which the defect was discovered or could reasonably have been discovered, but in no event (including latent defects) shall Buyer be entitled to reject the Products more than thirty (30) days after delivery.
7.2    After expiry of the dates mentioned in Subclause 7.1, Buyer is deemed to have accepted the Products and/or Service Work and the Products and/or Service Work can no longer be rejected.

8.    TERMINATION

8.1    If Buyer:
(a)    commits any material breach of any of the terms of this Agreement (which for the avoidance of doubt, shall automatically include a breach of Clause 12 and 13); and / or
(b)    makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction), suffers any act of bankruptcy, any resolution or petition to wind up Buyer is passed, a third party seizes or threatens to seize the Products and/or Service Work before legal ownership has passed to Buyer in accordance with this Agreement, an encumbrancer takes possession or a receiver is appointed of any of the property or assets of Buyer, it ceases, or threatens to cease, to carry on business, or any circumstance arises or event occurs in relation to Buyer or any of its material assets in any country or territory in which it carries on business or to the jurisdiction of whose courts it or any of its assets is subject which corresponds with or has an effect equivalent or similar to any of those stated in this Subclause 8.1(b); and/ or
(c)    has its financial position deteriorated to such an extent that in Sperry Marine's sole opinion Buyer's capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy;
Sperry Marine shall be entitled to suspend the performance of any still current agreements wholly or partly, and in such circumstances all outstanding claims shall become payable on demand.  In this event, and without prejudice to any claim or right it might otherwise make or exercise, Sperry Marine is furthermore entitled to terminate any still current agreements wholly or partly without any further notice of default by written notice to Buyer.  Buyer shall be liable for all losses, costs and damages suffered by Sperry Marine as a result of such termination.
8.2    Sperry Marine may terminate the supply of any Products or the performance of any Service Work under this Agreement, in whole or in part, at any time, without reason, by giving Buyer not less than thirty (30) days’ written notice. Sperry Marine will thereupon reimburse Buyer in respect of Products that have been paid for but not yet delivered or Service Work that has been paid for but not yet performed.
8.3    Buyer may cancel its order only with the prior written consent of Sperry Marine, which consent shall be entirely at Sperry Marine’s discretion.  In the event of such agreed cancellation, Buyer shall pay Sperry Marine an amount equal to the total of the following amounts:
(a)    any outstanding sums due to Sperry Marine for any orders placed by Buyer but not yet delivered, and for any Products delivered or any Service Work performed; and
(b)    all costs incurred or committed by Sperry Marine in performance of the order and allocable thereto including, without limitation, non-cancellable purchases from third party suppliers (including Service Work already performed), overhead and general and administrative expense, exclusive of any cost attributable to completed Service Work under (a); and
(c)    to the extent not already included under (a), a sum for lost profits equal to fifteen percent (15%) of the order price of the cancelled part of the order, or such higher amount of lost profits as Sperry Marine can reasonably demonstrate it has incurred by accepting the cancellation; and
(d)    to the extent not already covered by (a) and (b), an amount equal to either the order value or costs of settling and paying any claims arising out of the cancelling of Products and/or Service Work under any subcontracts or purchase orders of Sperry Marine, whichever is the higher amount.
8.4    Upon the expiration or termination of this Agreement for whatever reason, upon written instruction, each party will return to the other party all confidential information (as per Subclause 14.9 herein), other than normal correspondence, letters, orders and the like.
8.5    The termination or expiry of this Agreement will not prejudice or affect any right of action or remedy which has accrued or will thereafter accrue to either party.
8.6    Notwithstanding the termination or expiry of this Agreement, the provisions of Clauses 10 and 12, and Subclauses 14.6, 14.7 and 14.9 shall survive for a period of five (5) years following the termination or expiry of this Agreement.

9.    WARRANTY AND SUPPORT

9.1    Sperry Marine warrants that all Products manufactured by Sperry Marine, its subsidiaries or affiliates and sold by Sperry Marine to Buyer at the time of delivery will be free from material defects in material and workmanship under normal use and service when (a) installed in accordance with the applicable Sperry Marine installation drawing; and (b) Supervision of Installation (SOI) or commissioning is performed by an authorised marine service engineer (“MSE”) employed either by Sperry Marine or one its authorised service partners. No warranty shall be effective if a defective Product has been repaired or in any way worked on by anyone other than a MSE without Sperry Marine’s prior written consent.
9.2    Unless otherwise stated, for all Products sold as new, Sperry Marine’s obligation under  warranty shall be limited to defects as defined in Subclause 9.1 above of which Sperry Marine is notified within twelve (12) months after the date that a Sperry Marine authorised MSE and Buyer representative sign a completed Commissioning Report (the “Date of Installation”) or twenty four (24) months after date of shipment, from Sperry Marine, whichever period shall first expire (“Original Warranty Period”).  
9.3    The warranty for reconditioned Products or Products not sold as new under Sperry Marine’s Spares Exchange (“SPEX”) shall be for a period of three (3) months after the Date of Installation or six (6) months after date of shipment, from Sperry Marine, whichever period shall first expire.
9.4    The warranty period for Service Work shall be:
(a)    where the Service Work is performed as part of the supply of new Products under Subclause 9.2, the warranty period set forth in Subclause 9.2; or
(b)    where the Service Work is performed as part of the supply of reconditioned Products or SPEX under Subclause 9.3 herein, the warranty period set forth in Subclause 9.3; or
(c)    in all other cases, one (1) month from the date of performance and completion of the Service Work.
9.5    In case of Products sold but not manufactured by Sperry Marine, its subsidiaries or affiliates, Sperry Marine’s sole obligation shall be six (6) months from delivery of the Products, or surviving manufacturer’s standard warranty conferred to Sperry Marine, whichever is longer.
9.6    All warrantable defects shall be notified to Sperry Marine within fourteen (14) days of its discovery, but in any event within the applicable warranty period. Sperry Marine’s warranty obligations shall be limited, at Sperry Marine’s discretion, to:  (a) replacement or repair of the defective Products; or (b) a sum not exceeding the net invoice value of the defective Products; or (c) in the case of Service Work, re-performance of that Service Work.  Any repaired or replaced Products or re-performed Service Work shall benefit from the warranty set out in Subclause 9.2, 9.3 or 9.4, but in no event shall the warranty of such rectified/ repaired Products or re-performed Service Work exceed the Original Warranty Period.
9.7    It shall sometimes be necessary for an engineer to travel to the service location to effect the warranty repair.  Where Sperry Marine sends a MSE to the service location to effect the warranty repair, Buyer shall pay all associated travel and accommodation expenses of the MSE and Buyer shall pay the hourly rate for the MSE’s for any travel time in excess of a total of four (4) hours round trip.
9.8    Replacement and repair of a defective part shall be made where the Products are sent to a Sperry Marine establishment or to a service station appointed by Sperry Marine within the warranty period referred to in Clause 9, provided that shipping costs, excluding import customs fees and duties, are prepaid by Buyer and the part is found defective after inspection at the establishment or service station. Defective Products, parts which are replaced under warranty, or parts exchanged under the SPEX scheme shall be returned by Buyer at Buyer’s sole cost to Sperry Marine to be received by Sperry Marine at Sperry Marine’s warehouse no later than four (4) weeks after the replacement has been installed and the respective commissioning report has been signed. Buyer shall only return such Products and/or SPEX after written acknowledgement from Sperry Marine and shall affix to the packaging such reference numbers and/or authorisation provided. Consumables and peripheral equipment such as cables, wires, mounting equipment and mechanical components shall not be returned unless specified by Sperry Marine.  Where the defective Products or parts are not received by Sperry Marine within four (4) weeks, Buyer shall pay Sperry Marine the full list price of the relevant Products or parts and Sperry Marine shall invoice Buyer accordingly. For parts exchanged under the SPEX scheme Buyer shall pay Sperry Marine an amount equivalent to the shortfall between the agreed price and the price that would have been charged had there been no supply of used or defective equipment by Buyer and Sperry Marine shall invoice the Buyer accordingly.
9.9    No warranty shall be effective with respect to any Product that has been subjected to conditions beyond the limits of its specifications, or which has been physically damaged, or to which is attached any apparatus other than apparatus supplied by Sperry Marine for attachment or specifically approved for attachment by Sperry Marine in writing, nor does it apply to Products found to be defective due to abuse, lightning or other electrical discharge.
9.10    For the avoidance of doubt, the warranty set out in these terms includes any software installed within the Product which is required for its proper operation. Software warranty covers the remedy of defects in the software only, where this materially affects the operation of the Product and where the defects can be reproduced by Sperry Marine at any time. Sperry Marine does not warrant or represent;
(i)    that software will function without interruption or error,
(ii)    that all software defects can be eliminated,
(iii)    that software, protocols, interfaces or the like that are not of Sperry Marine origin but which are coded, provided or directed by the Buyer to be installed within the Product will function without error and/ or is compatible with the operations of the Product,
(iv)    that the software will correspond to Buyer’s requirements, and
(v)    that the software will function without error in each configuration the Buyer selects, unless such configuration has been confirmed fit for purpose by Sperry Marine.
Sperry Marine’s sole liability shall be to provide a software update for the affected Product per Subclause 9.7. A software update is a defects resolution software revision that provides fixes for features that aren't working as intended and may, at Sperry Marine’s discretion, include enhancements and additional functionality. Software updates are warranted to the same extent and duration as the Products of which they form a part of. A software upgrade, on the other hand, offers a significant change or major improvement over the existing version. A software upgrade is a separately chargeable event that does not form part of the existing Products or Service Works. Such software upgrades shall be warranted for a period of twelve (12) months from the Date of Installation. Sperry Marine reserves the right to determine, in its absolute discretion, whether a software revision constitutes a software update or software upgrade.
Under no circumstances shall Sperry Marine accept any liability for claims for loss of data.
9.11    Sperry Marine may, in its sole discretion and without notice, discontinue the sale of any Products at any time. Sperry Marine shall remain liable for the warranty of such Products under Clause 9 for the duration of the Original Warranty Period, but shall not be required to replace the discontinued Products with its successor versions. Sperry Marine may also modify the design and specifications of any existing Products, but, subject to Subclause 9.10 herein, shall not be obliged to provide such modifications on Products previously purchased by Buyer. Sperry Marine reserves the right to determine, in its absolute discretion, whether such modifications constitute a Product update or an upgrade.
9.12    The foregoing provisions set forth Sperry Marine’s sole liability for breach of warranty in respect of, or for any defect or nonconformity in, any Products or Service Work, and Sperry Marine shall have no obligation or liability in respect of any defect or nonconformity discovered after the lapse of the warranty period as specified above.  All other warranties, whether express or implied, in contract, statute or at law, are, to the extent permissible by law, herewith expressly excluded.
9.13    In the event of an unjustified warranty claim, including but not limited to instances where no fault is found or where the fault is not covered by the warranty set out in Clause 9, Buyer shall compensate Sperry Marine for any cost that it has incurred in responding to the claim.

10.    LIABILITY

10.1    Nothing in this Agreement will exclude or limit the liability of either party to the other: (a) for death or personal injury resulting from the negligence of that party or any of its respective directors, officers, employees, contractors or agents; (b) in respect of fraud or wilful misconduct by that party or any of its respective directors, officers, employees, contractors or agents; (c) for breach of the provisions set out in Clauses 13; or (d) for any other liability that cannot be excluded or limited by applicable law.
10.2    Notwithstanding any provisions to the contrary in this Agreement, and to the maximum extent permitted by law, Sperry Marine will not be liable for any of the following types of loss or damage arising under or in relation to this Agreement (whether arising from breach of contract, negligence, misrepresentation, tort, breach of statutory duty or otherwise): (a) any loss of profits, loss of capital of its use thereof, loss of vessel, loss of cargo, loss of product, business, contracts, anticipated savings, goodwill, or revenue, any wasted expenditure, or any loss or corruption of data; or (b) any indirect or consequential loss or damage whatsoever, even if Sperry Marine was aware of the possibility that such loss or damage might be incurred.
10.3    Subject to Subclause 10.1, Sperry Marine’s cumulative liability under this Agreement will be limited to the prices for the Products and Service Work charged thereunder.
10.4    Sperry Marine shall not be liable for damages that may occur as a result of inappropriate or inadequate sites, facilities, installations or transport routes provided by Buyer.

11.    INTELLECTUAL PROPERTY RIGHTS AND PATENTS

11.1    For the purpose of this Agreement, "Intellectual Property” means (a) patents, inventions, designs, copyright and related rights, database rights, trademarks, trade names (whether registered or unregistered), and rights to apply for registration; (b) proprietary rights in domain names; (c) knowhow and confidential information; (d) applications, extensions and renewals in relation to any of these rights; and (e) all other rights of a similar nature or having an equivalent effect anywhere in the world which currently exist or are recognised in the future. Sperry Marine shall grant to the Buyer a royalty-free, perpetual, transferable and non-exclusive license to use the Products and/ or Service Work in accordance with this Agreement, subject to restrictions set forth in Clause 12 hereunder. Such rights are granted on the condition that the Buyer shall not reverse engineer any Products, Service Work or any Intellectual Property embodied therein, or otherwise adapt them for other uses. The validity of the license shall cease at such time when the Buyer is no longer in possession of the Products and/ or no longer utilizes the Service Works.
11.2    All rights in or to Intellectual Property in the Products or which may arise directly or indirectly as a result of performance of the Service Work by Sperry Marine under this Agreement will be vested in Sperry Marine absolutely.
11.3    Any of Sperry Marine’s special or general purpose tools, techniques, documentation, test materials, prototypes, software, moulds, dies, or other items or materials used in the design, test, manufacture, training, installation, commissioning and other performance of this Agreement will remain in the sole ownership of Sperry Marine at all times and are not included in any offer.
11.4    In the event that Buyer submits a claim alleging violation of third party intellectual property by the Products or any component thereof, and provided that the validity of such claim or allegation has been proved to the satisfaction of Sperry Marine or in a court of final instance that the use of these Products is prohibited, Sperry Marine shall at its sole discretion and at expense: (a) grant Buyer the right to continue to use the Products by procuring applicable licenses, or (b) replace or change the Products in such a way that violation ceases to exist, or where (a) or (b) are not possible, refund to the Buyer the purchase price for the Products upon return of the Products per Subclause 9.8. The aforesaid shall be the sole and exclusive liability of Sperry Marine in relation to any actual or alleged violation of Intellectual Property.
11.5    Sperry Marine accepts no liability in respect of claims for infringement or alleged infringement of third party’s Intellectual Property arising from the execution of the Agreement in accordance with Buyer’s designs, plans or specifications and Buyer will indemnify Sperry Marine against all losses, damages, expenses or other liability arising from such claims.
11.6    Sperry Marine shall not have any obligations towards Buyer with respect to any violation of Intellectual Property or a claim related to it, which is the result of:  (a) change or expansion of the Products according to special designs or specifications provided by or on behalf of Buyer; or (b) the use of the Products in combination with appliances or equipment which have not been made by Sperry Marine; or (c) the use of the Products in a manner for which they have neither been designed nor intended; or (d) violation of any Intellectual Property in which Buyer or its subsidiary or branch office have any direct or indirect interest on account of a licence or otherwise, or (e) non receipt of payment by Sperry Marine, or (f) Buyer is aware of pre-existing Intellectual Property claims, or (g) Buyer failing to notify Sperry Marine of the claim or cooperate with Sperry Marine, or (h) Buyer continuing with infringing activities. 

12.    EXPORT CONTROL COMPLIANCE

12.1    Products may contain parts of multiple origin, including the United States of America (“USA”).  Buyer shall comply with all applicable export laws, rules and regulations including but not limited to those of the United Kingdom (“UK”), Germany, the European Community and the USA and will not export or re-export the Products in violation of any such laws, rules or regulations.  Buyer warrants that all reasonable and appropriate steps will be taken to ensure that any other person or entity purchasing or otherwise acquiring the Products from Buyer will not export or re-export in violation of the aforementioned laws, rules and regulations.
12.2    If an export licence is required for the performance of any Sperry Marine’s obligation, including but not limited to supply of Products, Service Work or warranty repairs in accordance with Clause 9, and such export licence is not granted or having been granted is revoked, Sperry Marine shall have no further obligations to Buyer under Buyer’s order and this Agreement shall automatically terminate.  In case of a cancellation due to this reason Buyer shall have no right to repayment of costs already incurred by it or for any other compensation howsoever arising, but Sperry Marine shall be entitled to all payments for Products or Service Work already performed under this Agreement.
12.3    Where an order has been accepted and Sperry Marine subsequently establishes that, in its reasonable opinion, the order is in conflict with Subclause 12.1, this order will be immediately cancelled by Sperry Marine.  In this case, Buyer shall have no right to repayment of costs already incurred by it or for any other compensation howsoever arising.
12.4    Buyer agrees that the Products and/or Service Work provided under this Agreement will not be used for any purpose connected with chemical, biological or nuclear weapons, or missiles capable of delivering such weapons; that they will not be sold or transferred if it is known or suspected that they are intended or likely to be used for such purposes; that the Products will not be re-exported or otherwise sold or transferred to a destination subject to a United Nations, European Union (“EU”), Organization for Security and Co-operation in Europe ("OSCE"), UK or USA embargo where that act would be in breach of the terms of that embargo; and that the Products, or any replica of them, will not be used in any nuclear explosive activity or unsafeguarded nuclear fuel cycle.
12.5    Unless otherwise Deviated by Sperry Marine in advance, Buyer also agrees that the Products and/or Service Work provided under this Agreement will not be re-exported or otherwise sold or transferred to a military end-use and/or end-user; or to individuals or entities that are subject to USA, UK, and/or EU trade restrictions, including, but not limited to, the US Department of Commerce’s Denied Party List and Entity List, the US Department of Treasury’s Specially Designated Nationals list and Sectorial Sanctions Identifications list, and Annex IV to Council Regulation (EU) No 960/2014.
12.6    Buyer warrants that it is not owned or controlled by, nor does it own or control, a person or entity that is subject to economic or trade sanctions imposed by the USA Government, which restrict USA companies from engaging in financial transactions with such entity for any reason, including but not limited to being resident or headquartered in or a governmental entity of a country subject to such sanctions (currently Cuba, Iran, Syria and Sudan) or a Designated National under the USA Cuban Assets Control Regulations.
12.7    Buyer further warrants that it is neither resident in nor headquartered in a country to which the export or re-export of goods or technologies that are subject to the USA Export Administration Regulations are generally embargoed (currently North Korea) nor is it owned or controlled by a governmental entity of such country. Buyer agrees that it will notify Sperry Marine if these circumstances change. For purpose of this provision, references to "ownership" are defined to mean any ownership interest, direct or indirect, of 50 percent or more, and references to "control" are defined to mean the right or ability to, directly or indirectly, dictate the decisions, actions, and/or policies of an entity or its management by any means. If at any time during the term of this Agreement, Buyer breaches this article, then, in addition to any other rights Sperry Marine may have under this Agreement, Sperry Marine may immediately terminate this Agreement.

13.    PROHIBITED ACTIVITIES

13.1 Anti-Corruption Compliance: Buyer represents, warrants and covenants that:
13.1.1     It has not and will not, directly or indirectly, pay, promise, offer, or authorize the payment of any money or anything of value to:
(a)     an officer, employee, agent or representative of any government, including any department, agency, or instrumentality thereof or any person acting in an official capacity thereof;
(b)     a candidate for political office, any political party or any official of a political party; or
(c)     any other person or entity
while knowing or having reason to know that all or any portion of such payment or thing of value will be offered, given or promised, directly or indirectly, to any person or entity for the purpose of assisting Sperry Marine in obtaining or retaining business (including this Agreement), or an improper business advantage. Without limiting the generality of the foregoing, Buyer shall not directly or indirectly, pay, promise, offer, or authorize the payment of any facilitating payment intended to expedite or secure performance of a routine governmental action, such as, customs clearance on behalf of Sperry Marine.
13.1.2     No gratuities such as, but not limited to, gifts, travel expenses, business courtesies, hospitalities or entertainment of any nature has been or will be accepted or made in connection with this Agreement where the intent was, or is, to unlawfully influence the recipient of the gratuity. Buyer also represents that any gratuities offered or provided shall meet the following conditions:
(a)     be permitted under the UK Bribery Act and US Foreign Corrupt Practices Act and the laws and regulations of the country in which this Agreement will be performed;
(b)    be consistent with applicable social and ethical standards and accepted business practices;
(c)     be of such limited value as not to be deemed a bribe, payoff or any other form of improper inducement or payment; and
(d)     be of such nature that its disclosure will not cause embarrassment for Sperry Marine.
13.1.3     Breach of any of the foregoing provisions of Clauses 13.1.1 and 13.1.2 by Buyer shall be considered an irreparable material breach of this Agreement and shall entitle Sperry Marine to terminate this Agreement immediately without compensation to Buyer.
13.2     Denied Parties: Buyer warrants that it is not owned or controlled by, nor does it own or control, a person or entity that is on the list of Specially Designated Nationals and Blocked Persons maintained by the Office of Foreign Assets Control of the USA Department of the Treasury or any list of known or suspected terrorists, terrorist organizations or other prohibited persons published by any jurisdiction in which Buyer is doing business.
13.3     Prohibited Activity: Unless specifically authorised in writing by Sperry Marine, Buyer shall not engage in any of the following activities on behalf of Sperry Marine under this Agreement: acting as an agent of Sperry Marine; marketing or sales promotion; lobbying; freight forwarding; consulting services; performing offset (industrial participation) consulting or brokering services; acting as a distributor or reseller; or activity as a joint venture party.
13.4     Prohibited Contact: Unless specifically authorised in writing by Sperry Marine, Buyer shall not contact, either directly or indirectly, public officials of any country other than the USA, UK, Canada, Australia, Germany, France, or Italy in furtherance of its performance on behalf of Sperry Marine under this Agreement.
13.5     Notification of Changes: If Buyer provided anti-corruption compliance due diligence information (e.g., related to its ownership and personnel, subsidiaries and third parties, the due diligence questionnaire, and related certifications) to Sperry Marine or through Sperry Marine’s Global Trust website, Buyer shall provide Sperry Marine with prompt notification and details of any changes to information contained in such due diligence materials, and agrees to promptly cooperate with Sperry Marine and provide additional information reasonably requested in relation to such changes. In the event of a material change to information contained in the due diligence material supplied to Sperry Marine, Sperry Marine reserves the right to suspend performance under this Agreement by providing written notice to Buyer in order for Sperry Marine to conduct additional anti-corruption due diligence upon such changed circumstances.

14.    GENERAL CONDITIONS

14.1    Force Majeure:  Sperry Marine will not be liable for any failure to perform its obligations (excluding payment obligations) or delay in performance of the same under this Agreement where such failure or delay is due to any cause beyond Sperry Marine’s control (a “Force Majeure Event”).  In the event that a Force Majeure Event endures for more than sixty (60) days, the parties will meet and review in good faith, the desirability of and conditions for continuation of this Agreement and any failure to resolve the same will entitle Sperry Marine to terminate Buyer’s order (in whole or in part) without further liability to Buyer. The parties expressly agree that Force Majeure Event shall include, but is not limited to; government actions, omissions or delay; fire; strike; war; civil commotion; factory closure due to outbreak of communicable diseases; earthquake; and other Acts of God.
14.2    Assignment:  This Agreement may not be assigned in whole or in part by either party without the prior written consent of the other except as part of a merger, consolidation or re-organisation or voluntary sale or transfer of all or substantially all of the relevant party’s assets where the merged, consolidated or re-organised corporation or entity, or the transferee of such sale or transfer, has the authority and power to effectively perform that party’s obligations under this Agreement.
14.3    Notices:  Any notice, consent, permission or other communication required or permitted to be given by either party under this Agreement shall be:  (a) in writing; (b) in English; (c) and signed by or on behalf of the sender.  Notices must be delivered by at least one of the following delivery methods:  (a) hand or recorded delivery post (or any equivalent postal service) to the address specified by one party to the other party; or (b) e-mail.  For notice delivered by e-mail, the e-mail addresses will be those set out in the order and/or order acknowledgement, as may be formally updated in writing from time to time.  E-mail will be deemed received at the time and date of transmission shown on the saved sent copy.
14.4    No Waiver:  The failure by Sperry Marine to exercise, or its delay in exercising, a right, power or remedy provided by this Agreement or by law will not constitute a waiver by Sperry Marine of that right, power or remedy. If Sperry Marine waives a breach of any provision of this Agreement this will not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.
14.5    Severability:  If any provision, or part of a provision, of this Agreement, is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable, that provision or part-provision will be deemed not to form part of the Agreement, and the legality, validity or enforceability of the remainder of the provisions of this Agreement will not be affected, unless otherwise required by operation of applicable law. The parties will use all reasonable endeavours to agree within a reasonable time upon any lawful and reasonable variations to this Agreement which may be necessary in order to achieve, to the greatest extent possible, the same commercial effect as would have been achieved by the provision, or part-provision, in question.
14.6    Dispute Resolution:  Should any question, dispute or difference whatsoever arise between the parties in relation to or in connection with this Agreement:  (a) Buyer or Sperry Marine may give notice to the other in writing of the existence of such a question, dispute or difference and nominated representatives of both parties will discuss within fourteen (14) days of such notice to attempt to reach a solution; (b) if the parties are unable to resolve any dispute within fourteen (14) days of its referral under (a) above, then the parties will attempt to settle it by mediation in the State Courts Centre for Dispute Resolution (SCCDR); (c) if no mutually acceptable solution is found pursuant to (b) above, then the matter will be finally settled in accordance with the Arbitration Rules of the Singapore International Arbitration Centre (SIAC) by three (3) arbitrators, which Rules are deemed to be incorporated by reference into this Subclause. Arbitration will take place in Singapore and the language to be used in the proceedings shall be English; and (d) the prevailing party in any arbitration or legal proceeding brought by one party against the other party and arising out of or in connection with this Agreement will be entitled to recover its legal expenses, including arbitration costs, court costs and reasonable lawyers and experts fees.
14.7    Governing Law:  This Agreement (and any part thereof) and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) will be governed by the laws of Singapore. Subject to Subclause 14.6, the courts of Singapore will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement (including any non-contractual disputes or claims). The UN Convention for International Sale of Goods shall not apply.
14.8    Offset:  The total value of this Agreement may be applied as offset credit by Sperry Marine as it sees fit in support of any present or future offset obligations. Sperry Marine will have the right to assign, sell, or otherwise transfer such credits to third parties of its choice to be used in meeting the offset obligations of said third parties.
14.9    Confidentiality:  A party (the “Receiving Party”) will keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (the “Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party will restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under this Agreement, and will ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.
14.10    Data Protection:  Sperry Marine shall, at its own cost, comply with Personal Data Protection Act 2012 (“GDPR Regulations”) and shall only process, use or disclose Personal Data (as defined within the GDPR Regulations), (a) strictly for the purposes of fulfilling its obligations for which the Personal Data is provided; (b) with Buyer’s prior written consent; or (c) when required by law or an order of court, but shall notify Buyer as soon as practicable before complying with such law or order of court.  Buyer agrees that Sperry Marine may subcontract the aforesaid Personal Data processing operations.  Where Sperry Marine engages another party for such purposes, it shall ensure that such party has entered into a written agreement that imposes the same data protection obligations as set out in this Subclause.
14.11    Entire Agreement:  This Agreement represents the entire agreement between the parties with respect to the subject matter hereof and will apply to this Agreement to the exclusion of any other terms or conditions purported to apply by any other document.
14.12    Independent Contractors:  Nothing in this Agreement will (except as expressly provided) be deemed to constitute a partnership, or create a relationship of principal and agent between the parties for any purpose.
14.13    Third Parties:  This Agreement is enforceable by the original parties only and any other persons will have no rights whatever either under this Agreement, Contracts (Rights of Third Parties) Act 2001 or otherwise to enforce any term of this Agreement.  The term "original parties" will include Sperry Marine’s parent company and any associated subsidiaries within the Northrop Grumman group.
14.14    Amendments:  No alterations or amendments to this Agreement will be effective unless contained in a written document signed by the authorised representatives of each of the parties.
14.15    Waste Electrical and Electronic Equipment:  Where Buyer is based in the EU or UK, Buyer confirms that they assume responsibility for the correct disposal or onward sale of the Products at the end of its service life with Buyer in accordance with the EU WEEE (Waste Electrical and Electronic Equipment) Directive (2012/19/EC) or such regulations or directives of analogous or similar effect in the relevant territory(ies).
14.16    Compliance with Tax Laws:  Buyer shall specifically ensure that it complies with all laws, in any part of the world, in relation to the registration for or payment of any taxes which might be due in connection with the performance of the Service Work or supply of any Products, under this Agreement.  Without limiting the foregoing, Buyer shall:  (a) not, directly or indirectly, knowingly participate, be concerned in or take steps with a view to, the fraudulent evasion of tax by another person; (b) provide prompt notification to Sperry Marine of any tax offence related to the Service Work or any attempt to evade the proper payment of tax in relation the Service Work; and (c) include the substance of this Subclause in all subcontracts or other agreements with its agents, representatives or subcontractors performing any Service Work and be responsible for the observance and performance by such agents, representatives or subcontractors of this Subclause.  For purposes of this Subclause, the terms “tax” or “taxes” includes income tax, property tax, payroll tax, sales tax, value added tax, and similar taxes.
 

Northrop Grumman Sperry Marine B.V.

 

1.    SALE AND PURCHASE

1.1    In these general terms of sale the following designations are used: “Sperry Marine” refers to Northrop Grumman Sperry Marine B.V.; “Buyer” refers to the natural person or corporate body making or accepting an offer or otherwise entering into a legal relationship with Sperry Marine whereby Sperry Marine supplies goods, including spare parts, or software (“Products”) and/or services, including without limitation, service labour, engineering work in developing a system, or project management (“Service Work”) to Buyer as they are described in Sperry Marine’s offer.
1.2    These general terms of sale shall be applicable exclusively to all offers and order acceptances by Sperry Marine for the sale and supply of Products and/or Service Work and the term “Agreement” herein shall apply to all such agreements based on these terms.
1.3    Deviations from, changes and/or supplements to these general terms of sale will only be valid and binding if and in so far as these have been explicitly accepted by Sperry Marine in writing (“Deviated”).
1.4    An Agreement is effective the moment when Sperry Marine has accepted the order in writing, or, in the absence of an order acceptance, as soon as Sperry Marine has commenced execution of the order.

2.    OFFERS AND CONTENTS OF THE AGREEMENT

2.1    All offers of Sperry Marine are without obligation, particularly as regards price, quantity, time of delivery and possibilities of delivery, and can be revoked by Sperry Marine at any time.  Offers of which Sperry Marine has not received a written acceptance within sixty (60) days from the offer, or any other such duration as provided for in writing by Sperry Marine, shall be cancelled automatically.  Purchase orders or other forms of written acceptance from Buyer shall constitute irrevocable offers once accepted by Sperry Marine per Subclause 1.4.
2.2    Representations made by employees of Sperry Marine or by third parties cannot be relied upon or invoked by Buyer, unless these have been confirmed by Sperry Marine in writing.
2.3    Sperry Marine may without need for Buyer’s consent introduce improvements and alterations to the Products, provided that such improvements and alterations do not fundamentally change the ordered Products in form, fit or function.

3.    DELIVERY AND RISK

3.1    All dates and times specified to Buyer for delivery or installation of the Products and/or for the performance or provision of Service Work are estimated only and Sperry Marine shall not have any liability for delay or for any damages or losses sustained by Buyer as a result of such dates or times not being met. Buyer shall not be entitled to refuse acceptance of the Products and/or Service Work as a consequence or possible consequence of such delay. All deliveries are subject to adequate provision by Buyer and receipt by Sperry Marine in a timely manner of any proforma payments, any required official export documents and licences, technical, frequency and other information necessary from Buyer for the performance of this Agreement.
3.2    Unless otherwise Deviated, all deliveries are FCA, Sperry Marine's warehouse in Vlaardingen, The Netherlands (Incoterms 2010) and after delivery the Products shall be at the risk of Buyer, including those cases in which transport has been arranged by Sperry Marine and/ or in which at the carrier’s demand the transport document stipulates that transport shall be at the risk of Sperry Marine. Sperry Marine reserves the right to determine the means of conveyance and the route of transport, unless Buyer gives express written instructions accepted by Sperry Marine.
3.3    Any costs incurred by Sperry Marine (including, without limitation storage, insurance and other administrative costs) ensuing from delay on the part of Buyer in accepting delivery or in compliance with the requirements of Clauses 4 and 6, shall be paid by Buyer.
3.4    Sperry Marine is entitled to make partial deliveries and in that case, Sperry Marine may send Buyer a separate invoice for each partial delivery and demand payment therefor.

4.    INSPECTION AND SERVICE

4.1    During the warranty period referred to in Clause 9, Sperry Marine shall at its discretion be entitled at its cost, to inspect any installed Products and/or Service Work.
4.2    In the event that Buyer requests that: (a) Sperry Marine or its authorised service partners undertake an inspection of the Products, whether or not within the warranty period referred to in Clause 9; and/ or (b) Sperry Marine performs any repairs or Service Work which it is not obliged under Clause 9, then Sperry Marine shall, if it agrees to perform such works, be entitled to charge its applicable standard rates at the time of execution. In addition, Sperry Marine may charge for the travelling and accommodation expenses of such personnel, and/ or such other associated costs, plus a ten percent (10%) mark up, and for their travelling time at the rates applicable, as defined above. Sperry Marine shall not be required to provide documentary evidence in support of such charges. If Service Work is required outside Sperry Marine’s regular working hours, the overtime rates applicable to the district from which Sperry Marine provides the Service Work shall apply.
4.3    Any publications (including online sources) containing a list of locations in which Sperry Marine maintains service stations are for information purposes only. Sperry Marine shall have the right, at any time and at its sole discretion, to modify the number and locations of its service stations.

5.    PRICES AND TERMS OF PAYMENT

5.1    Unless otherwise Deviated, all prices quoted are based on FCA Vlaardingen (Incoterms 2010), in Euros, and shall be:  (a) exclusive of Value Added Taxes (VAT) or other taxes and charges, which if applicable, shall be added to the quoted prices and paid for by Buyer; and (b) exclusive of any other taxes and charges including, without limitation, corporate income tax, business/ turnover tax, personnel income tax, payroll tax, sales or other taxes and charges, excise tax, use and withholding taxes, arising in any country outside the country in which Sperry Marine resides, which if applicable, shall be added to the quoted prices and paid for by Buyer. For the avoidance of doubt, each party shall be responsible for any costs, charges and expenses imposed by its own banks.
5.2    In the event that the parties agree a variation or modification to the Agreement or any order, including without limitation, changes in the scope of supply, increase or reduction of the quantity supplied, change in the delivery dates of the Products or the performance dates of Service Work, the prices shall be adjusted in accordance with the standard rates used by Sperry Marine at the time of execution. In addition to the above, should delivery be extended beyond the calendar year in which the Products are originally scheduled to be delivered, the price for such Products shall be increased by four percent (4%) per calendar year.
5.3    The minimum order value which is applicable to all sales of Products and Service Works is EUR 250 (two hundred and fifty Euros).
5.4    Unless otherwise Deviated and pending Buyer’s credit status with Sperry Marine, full payment in the invoiced currency shall be made by Buyer not later than thirty (30) days after the invoice date, by means of payment into the bank and/or giro account stipulated by Sperry Marine, without any suspension, set-off, deduction or discount.  Buyer may only submit a written notice of objection against the invoice within the term set out therein.
5.5    Without prejudice to any other rights of Sperry Marine, Buyer shall be in default without any further notice thereof being required, if he exceeds the aforesaid term of payment of thirty (30) days.  From such moment, Buyer shall owe interest at one and a half percent (1.5%) a month compounded on the amount still outstanding.  For the calculation of the amount payable due to interest, parts of months shall apply as whole months.  All judicial or extrajudicial costs including all legal and professional fees (on an indemnity basis) and all court costs incurred with respect to collection of the debt shall be at the expense of Buyer.
5.6    At any time Sperry Marine shall be entitled to demand reasonable security (or, as the case may be, additional security) from Buyer for the payment of the Products and/or to suspend deliveries, until the security demanded has been provided.

6.    RETENTION OF TITLE

6.1    Sperry Marine shall retain title to the Products delivered or to be delivered until Buyer has made full payment of the price for such Products to Sperry Marine without any deductions.
6.2    As long as title to the Products has not passed to Buyer, Buyer shall not dispose of the Products or encumber them.  Buyer is not permitted to attach the Products to other objects in such a manner that they cannot be easily removed. Additionally, Buyer shall ensure that adequate insurance policies are in place to cover any loss or damage to the Products.
6.3    If Buyer does not comply with its payment obligations, or Sperry Marine considers that Buyer will not be able to comply with its payment obligations, Sperry Marine shall be irrevocably authorised by Buyer to gain access to Buyer’s business premises or the premises of a third party holding the Products on behalf of Buyer without prior notice, and to take all the necessary steps to recover the Products.  Buyer is obliged to co-operate fully with Sperry Marine for this purpose.
6.4    Buyer is obliged to inform Sperry Marine without delay of the fact that third parties are claiming rights to the Products which are the property of Sperry Marine.  Buyer is obliged to inform this third party, official receiver, trustee or attaching creditor of Sperry Marine’s title with respect to these Products without delay.

7.    ACCEPTANCE OF PRODUCTS

7.1    Buyer is obliged to inspect the Products or Service Works carefully after delivery and to inform Sperry Marine of any discoverable defects.  Any complaints with respect to the Products shall be notified to Sperry Marine in writing within fourteen (14) days after delivery of the Products or performance of Service Work.  If Buyer reasonably demonstrates that it was not possible to discover the defect upon delivery, then the complaint must be raised in writing within fourteen (14) days after the date on which the defect was discovered or could reasonably have been discovered, but in no event (including latent defects) shall Buyer be entitled to reject the Products more than thirty (30) days after delivery.
7.2    After expiry of the dates mentioned in Subclause 7.1, Buyer is deemed to have accepted the Products and/or Service Work and the Products and/or Service Work can no longer be rejected.

8.    TERMINATION

8.1    If Buyer:
(a)    commits any material breach of any of the terms of this Agreement (which for the avoidance of doubt, shall automatically include a breach of Clause 12 and 13); and / or
(b)    makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction), suffers any act of bankruptcy, any resolution or petition to wind up Buyer is passed, a third party seizes or threatens to seize the Products and/or Service Work before legal ownership has passed to Buyer in accordance with this Agreement, an encumbrancer takes possession or a receiver is appointed of any of the property or assets of Buyer, it ceases, or threatens to cease, to carry on business, or any circumstance arises or event occurs in relation to Buyer or any of its material assets in any country or territory in which it carries on business or to the jurisdiction of whose courts it or any of its assets is subject which corresponds with or has an effect equivalent or similar to any of those stated in this Subclause 8.1(b); and/ or
(c)    has its financial position deteriorated to such an extent that in Sperry Marine's sole opinion Buyer's capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy;
Sperry Marine shall be entitled to suspend the performance of any still current agreements wholly or partly, and in such circumstances all outstanding claims shall become payable on demand.  In this event, and without prejudice to any claim or right it might otherwise make or exercise, Sperry Marine is furthermore entitled to terminate any still current agreements wholly or partly without any further notice of default by written notice to Buyer.  Buyer shall be liable for all losses, costs and damages suffered by Sperry Marine as a result of such termination.
8.2    Sperry Marine may terminate the supply of any Products or the performance of any Service Work under this Agreement, in whole or in part, at any time, without reason, by giving Buyer not less than thirty (30) days’ written notice. Sperry Marine will thereupon reimburse Buyer in respect of Products that have been paid for but not yet delivered or Service Work that has been paid for but not yet performed.
8.3    Buyer may cancel its order only with the prior written consent of Sperry Marine, which consent shall be entirely at Sperry Marine’s discretion.  In the event of such agreed cancellation, Buyer shall pay Sperry Marine an amount equal to the total of the following amounts:
(a)    any outstanding sums due to Sperry Marine for any orders placed by Buyer but not yet delivered, and for any Products delivered or any Service Work performed; and
(b)    all costs incurred or committed by Sperry Marine in performance of the order and allocable thereto including, without limitation, non-cancellable purchases from third party suppliers (including Service Work already performed), overhead and general and administrative expense, exclusive of any cost attributable to completed Service Work under (a); and
(c)    to the extent not already included under (a), a sum for lost profits equal to fifteen percent (15%) of the order price of the cancelled part of the order, or such higher amount of lost profits as Sperry Marine can reasonably demonstrate it has incurred by accepting the cancellation; and
(d)    to the extent not already covered by (a) and (b), an amount equal to either the order value or costs of settling and paying any claims arising out of the cancelling of Products and/or Service Work under any subcontracts or purchase orders of Sperry Marine, whichever is the higher amount.
8.4    Upon the expiration or termination of this Agreement for whatever reason, upon written instruction, each party will return to the other party all confidential information (as per Subclause 14.9 herein), other than normal correspondence, letters, orders and the like.
8.5    The termination or expiry of this Agreement will not prejudice or affect any right of action or remedy which has accrued or will thereafter accrue to either party.
8.6    Notwithstanding the termination or expiry of this Agreement, the provisions of Clauses 10 and 12, and Subclauses 14.6, 14.7 and 14.9 shall survive for a period of five (5) years following the termination or expiry of this Agreement.

9.    WARRANTY AND SUPPORT

9.1    Sperry Marine warrants that all Products manufactured by Sperry Marine, its subsidiaries or affiliates and sold by Sperry Marine to Buyer at the time of delivery will be free from material defects in material and workmanship under normal use and service when (a) installed in accordance with the applicable Sperry Marine installation drawing; and (b) Supervision of Installation (SOI) or commissioning is performed by an authorised marine service engineer (“MSE”) employed either by Sperry Marine or one its authorised service partners. No warranty shall be effective if a defective Product has been repaired or in any way worked on by anyone other than a MSE without Sperry Marine’s prior written consent.
9.2    Unless otherwise stated, for all Products sold as new, Sperry Marine’s obligation under  warranty shall be limited to defects as defined in Subclause 9.1 above of which Sperry Marine is notified within twelve (12) months after the date that a Sperry Marine authorised MSE and Buyer representative sign a completed Commissioning Report (the “Date of Installation”) or twenty four (24) months after date of shipment, from Sperry Marine, whichever period shall first expire (“Original Warranty Period”).  
9.3    The warranty for reconditioned Products or Products not sold as new under Sperry Marine’s Spares Exchange (“SPEX”) shall be for a period of three (3) months after the Date of Installation or six (6) months after date of shipment, from Sperry Marine, whichever period shall first expire.
9.4    The warranty period for Service Work shall be:
(a)    where the Service Work is performed as part of the supply of new Products under Subclause 9.2, the warranty period set forth in Subclause 9.2; or
(b)    where the Service Work is performed as part of the supply of reconditioned Products or SPEX under Subclause 9.3 herein, the warranty period set forth in Subclause 9.3; or
(c)    in all other cases, one (1) month from the date of performance and completion of the Service Work.
9.5    In case of Products sold but not manufactured by Sperry Marine, its subsidiaries or affiliates, Sperry Marine’s sole obligation shall be six (6) months from delivery of the Products, or surviving manufacturer’s standard warranty conferred to Sperry Marine, whichever is longer.
9.6    All warrantable defects shall be notified to Sperry Marine within fourteen (14) days of its discovery, but in any event within the applicable warranty period. Sperry Marine’s warranty obligations shall be limited, at Sperry Marine’s discretion, to:  (a) replacement or repair of the defective Products; or (b) a sum not exceeding the net invoice value of the defective Products; or (c) in the case of Service Work, re-performance of that Service Work.  Any repaired or replaced Products or re-performed Service Work shall benefit from the warranty set out in Subclause 9.2, 9.3 or 9.4, but in no event shall the warranty of such rectified/ repaired Products or re-performed Service Work exceed the Original Warranty Period.
9.7    It shall sometimes be necessary for an engineer to travel to the service location to effect the warranty repair.  Where Sperry Marine sends a MSE to the service location to effect the warranty repair, Buyer shall pay all associated travel and accommodation expenses of the MSE and Buyer shall pay the hourly rate for the MSE’s for any travel time in excess of a total of four (4) hours round trip.
9.8    Replacement and repair of a defective part shall be made where the Products are sent to a Sperry Marine establishment or to a service station appointed by Sperry Marine within the warranty period referred to in Clause 9, provided that shipping costs, excluding import customs fees and duties, are prepaid by Buyer and the part is found defective after inspection at the establishment or service station. Defective Products, parts which are replaced under warranty, or parts exchanged under the SPEX scheme shall be returned by Buyer at Buyer’s sole cost to Sperry Marine to be received by Sperry Marine at Sperry Marine’s warehouse no later than four (4) weeks after the replacement has been installed and the respective commissioning report has been signed. Buyer shall only return such Products and/or SPEX after written acknowledgement from Sperry Marine and shall affix to the packaging such reference numbers and/or authorisation provided. Consumables and peripheral equipment such as cables, wires, mounting equipment and mechanical components shall not be returned unless specified by Sperry Marine.  Where the defective Products or parts are not received by Sperry Marine within four (4) weeks, Buyer shall pay Sperry Marine the full list price of the relevant Products or parts and Sperry Marine shall invoice Buyer accordingly. For parts exchanged under the SPEX scheme Buyer shall pay Sperry Marine an amount equivalent to the shortfall between the agreed price and the price that would have been charged had there been no supply of used or defective equipment by Buyer and Sperry Marine shall invoice the Buyer accordingly.
9.9    No warranty shall be effective with respect to any Product that has been subjected to conditions beyond the limits of its specifications, or which has been physically damaged, or to which is attached any apparatus other than apparatus supplied by Sperry Marine for attachment or specifically approved for attachment by Sperry Marine in writing, nor does it apply to Products found to be defective due to abuse, lightning or other electrical discharge.
9.10    For the avoidance of doubt, the warranty set out in these terms includes any software installed within the Product which is required for its proper operation. Software warranty covers the remedy of defects in the software only, where this materially affects the operation of the Product and where the defects can be reproduced by Sperry Marine at any time. Sperry Marine does not warrant or represent;
(i)    that software will function without interruption or error,
(ii)    that all software defects can be eliminated,
(iii)    that software, protocols, interfaces or the like that are not of Sperry Marine origin but which are coded, provided or directed by the Buyer to be installed within the Product will function without error and/ or is compatible with the operations of the Product,
(iv)    that the software will correspond to Buyer’s requirements, and
(v)    that the software will function without error in each configuration the Buyer selects, unless such configuration has been confirmed fit for purpose by Sperry Marine.
Sperry Marine’s sole liability shall be to provide a software update for the affected Product per Subclause 9.7. A software update is a defects resolution software revision that provides fixes for features that aren't working as intended and may, at Sperry Marine’s discretion, include enhancements and additional functionality. Software updates are warranted to the same extent and duration as the Products of which they form a part of. A software upgrade, on the other hand, offers a significant change or major improvement over the existing version. A software upgrade is a separately chargeable event that does not form part of the existing Products or Service Works. Such software upgrades shall be warranted for a period of twelve (12) months from the Date of Installation. Sperry Marine reserves the right to determine, in its absolute discretion, whether a software revision constitutes a software update or software upgrade.
Under no circumstances shall Sperry Marine accept any liability for claims for loss of data.
9.11    Sperry Marine may, in its sole discretion and without notice, discontinue the sale of any Products at any time. Sperry Marine shall remain liable for the warranty of such Products under Clause 9 for the duration of the Original Warranty Period, but shall not be required to replace the discontinued Products with its successor versions. Sperry Marine may also modify the design and specifications of any existing Products, but, subject to Subclause 9.10 herein, shall not be obliged to provide such modifications on Products previously purchased by Buyer. Sperry Marine reserves the right to determine, in its absolute discretion, whether such modifications constitute a Product update or an upgrade.
9.12    The foregoing provisions set forth Sperry Marine’s sole liability for breach of warranty in respect of, or for any defect or nonconformity in, any Products or Service Work, and Sperry Marine shall have no obligation or liability in respect of any defect or nonconformity discovered after the lapse of the warranty period as specified above.  All other warranties, whether express or implied, in contract, statute or at law, are, to the extent permissible by law, herewith expressly excluded.
9.13    In the event of an unjustified warranty claim, including but not limited to instances where no fault is found or where the fault is not covered by the warranty set out in Clause 9, Buyer shall compensate Sperry Marine for any cost that it has incurred in responding to the claim.

10.    LIABILITY

10.1    Nothing in this Agreement will exclude or limit the liability of either party to the other: (a) for death or personal injury resulting from the negligence of that party or any of its respective directors, officers, employees, contractors or agents; (b) in respect of fraud or wilful misconduct by that party or any of its respective directors, officers, employees, contractors or agents; (c) for breach of the provisions set out in Clauses 13; or (d) for any other liability that cannot be excluded or limited by applicable law.
10.2    Notwithstanding any provisions to the contrary in this Agreement, and to the maximum extent permitted by law, Sperry Marine will not be liable for any of the following types of loss or damage arising under or in relation to this Agreement (whether arising from breach of contract, negligence, misrepresentation, tort, breach of statutory duty or otherwise): (a) any loss of profits, loss of capital of its use thereof, loss of vessel, loss of cargo, loss of product, business, contracts, anticipated savings, goodwill, or revenue, any wasted expenditure, or any loss or corruption of data; or (b) any indirect or consequential loss or damage whatsoever, even if Sperry Marine was aware of the possibility that such loss or damage might be incurred.
10.3    Subject to Subclause 10.1, Sperry Marine’s cumulative liability under this Agreement will be limited to the prices for the Products and Service Work charged thereunder.
10.4    Sperry Marine shall not be liable for damages that may occur as a result of inappropriate or inadequate sites, facilities, installations or transport routes provided by Buyer.

11.    INTELLECTUAL PROPERTY RIGHTS AND PATENTS

11.1    For the purpose of this Agreement, "Intellectual Property” means (a) patents, inventions, designs, copyright and related rights, database rights, trademarks, trade names (whether registered or unregistered), and rights to apply for registration; (b) proprietary rights in domain names; (c) knowhow and confidential information; (d) applications, extensions and renewals in relation to any of these rights; and (e) all other rights of a similar nature or having an equivalent effect anywhere in the world which currently exist or are recognised in the future. Sperry Marine shall grant to the Buyer a royalty-free, perpetual, transferable and non-exclusive license to use the Products and/ or Service Work in accordance with this Agreement, subject to restrictions set forth in Clause 12 hereunder. Such rights are granted on the condition that the Buyer shall not reverse engineer any Products, Service Work or any Intellectual Property embodied therein, or otherwise adapt them for other uses. The validity of the license shall cease at such time when the Buyer is no longer in possession of the Products and/ or no longer utilizes the Service Works.
11.2    All rights in or to Intellectual Property in the Products or which may arise directly or indirectly as a result of performance of the Service Work by Sperry Marine under this Agreement will be vested in Sperry Marine absolutely.
11.3    Any of Sperry Marine’s special or general purpose tools, techniques, documentation, test materials, prototypes, software, moulds, dies, or other items or materials used in the design, test, manufacture, training, installation, commissioning and other performance of this Agreement will remain in the sole ownership of Sperry Marine at all times and are not included in any offer.
11.4    In the event that Buyer submits a claim alleging violation of third party intellectual property by the Products or any component thereof, and provided that the validity of such claim or allegation has been proved to the satisfaction of Sperry Marine or in a court of final instance that the use of these Products is prohibited, Sperry Marine shall at its sole discretion and at expense: (a) grant Buyer the right to continue to use the Products by procuring applicable licenses, or (b) replace or change the Products in such a way that violation ceases to exist, or where (a) or (b) are not possible, refund to the Buyer the purchase price for the Products upon return of the Products per Subclause 9.8. The aforesaid shall be the sole and exclusive liability of Sperry Marine in relation to any actual or alleged violation of Intellectual Property.
11.5    Sperry Marine accepts no liability in respect of claims for infringement or alleged infringement of third party’s Intellectual Property arising from the execution of the Agreement in accordance with Buyer’s designs, plans or specifications and Buyer will indemnify Sperry Marine against all losses, damages, expenses or other liability arising from such claims.
11.6    Sperry Marine shall not have any obligations towards Buyer with respect to any violation of Intellectual Property or a claim related to it, which is the result of:  (a) change or expansion of the Products according to special designs or specifications provided by or on behalf of Buyer; or (b) the use of the Products in combination with appliances or equipment which have not been made by Sperry Marine; or (c) the use of the Products in a manner for which they have neither been designed nor intended; or (d) violation of any Intellectual Property in which Buyer or its subsidiary or branch office have any direct or indirect interest on account of a licence or otherwise, or (e) non receipt of payment by Sperry Marine, or (f) Buyer is aware of pre-existing Intellectual Property claims, or (g) Buyer failing to notify Sperry Marine of the claim or cooperate with Sperry Marine, or (h) Buyer continuing with infringing activities. 

12.    EXPORT CONTROL COMPLIANCE

12.1    Products may contain parts of multiple origin, including the United States of America (“USA”).  Buyer shall comply with all applicable export laws, rules and regulations including but not limited to those of the United Kingdom (“UK”), Germany, the European Community and the USA and will not export or re-export the Products in violation of any such laws, rules or regulations.  Buyer warrants that all reasonable and appropriate steps will be taken to ensure that any other person or entity purchasing or otherwise acquiring the Products from Buyer will not export or re-export in violation of the aforementioned laws, rules and regulations.
12.2    If an export licence is required for the performance of any Sperry Marine’s obligation, including but not limited to supply of Products, Service Work or warranty repairs in accordance with Clause 9, and such export licence is not granted or having been granted is revoked, Sperry Marine shall have no further obligations to Buyer under Buyer’s order and this Agreement shall automatically terminate.  In case of a cancellation due to this reason Buyer shall have no right to repayment of costs already incurred by it or for any other compensation howsoever arising, but Sperry Marine shall be entitled to all payments for Products or Service Work already performed under this Agreement.
12.3    Where an order has been accepted and Sperry Marine subsequently establishes that, in its reasonable opinion, the order is in conflict with Subclause 12.1, this order will be immediately cancelled by Sperry Marine.  In this case, Buyer shall have no right to repayment of costs already incurred by it or for any other compensation howsoever arising.
12.4    Buyer agrees that the Products and/or Service Work provided under this Agreement will not be used for any purpose connected with chemical, biological or nuclear weapons, or missiles capable of delivering such weapons; that they will not be sold or transferred if it is known or suspected that they are intended or likely to be used for such purposes; that the Products will not be re-exported or otherwise sold or transferred to a destination subject to a United Nations, European Union (“EU”), Organization for Security and Co-operation in Europe ("OSCE"), UK or USA embargo where that act would be in breach of the terms of that embargo; and that the Products, or any replica of them, will not be used in any nuclear explosive activity or unsafeguarded nuclear fuel cycle.
12.5    Unless otherwise Deviated by Sperry Marine in advance, Buyer also agrees that the Products and/or Service Work provided under this Agreement will not be re-exported or otherwise sold or transferred to a military end-use and/or end-user; or to individuals or entities that are subject to USA, UK, and/or EU trade restrictions, including, but not limited to, the US Department of Commerce’s Denied Party List and Entity List, the US Department of Treasury’s Specially Designated Nationals list and Sectorial Sanctions Identifications list, and Annex IV to Council Regulation (EU) No 960/2014.
12.6    Buyer warrants that it is not owned or controlled by, nor does it own or control, a person or entity that is subject to economic or trade sanctions imposed by the USA Government, which restrict USA companies from engaging in financial transactions with such entity for any reason, including but not limited to being resident or headquartered in or a governmental entity of a country subject to such sanctions (currently Cuba, Iran, Syria and Sudan) or a Designated National under the USA Cuban Assets Control Regulations.
12.7    Buyer further warrants that it is neither resident in nor headquartered in a country to which the export or re-export of goods or technologies that are subject to the USA Export Administration Regulations are generally embargoed (currently North Korea) nor is it owned or controlled by a governmental entity of such country. Buyer agrees that it will notify Sperry Marine if these circumstances change. For purpose of this provision, references to "ownership" are defined to mean any ownership interest, direct or indirect, of 50 percent or more, and references to "control" are defined to mean the right or ability to, directly or indirectly, dictate the decisions, actions, and/or policies of an entity or its management by any means. If at any time during the term of this Agreement, Buyer breaches this article, then, in addition to any other rights Sperry Marine may have under this Agreement, Sperry Marine may immediately terminate this Agreement.

13.    PROHIBITED ACTIVITIES

13.1 Anti-Corruption Compliance: Buyer represents, warrants and covenants that:
13.1.1     It has not and will not, directly or indirectly, pay, promise, offer, or authorize the payment of any money or anything of value to:
(a)     an officer, employee, agent or representative of any government, including any department, agency, or instrumentality thereof or any person acting in an official capacity thereof;
(b)     a candidate for political office, any political party or any official of a political party; or
(c)     any other person or entity
while knowing or having reason to know that all or any portion of such payment or thing of value will be offered, given or promised, directly or indirectly, to any person or entity for the purpose of assisting Sperry Marine in obtaining or retaining business (including this Agreement), or an improper business advantage. Without limiting the generality of the foregoing, Buyer shall not directly or indirectly, pay, promise, offer, or authorize the payment of any facilitating payment intended to expedite or secure performance of a routine governmental action, such as, customs clearance on behalf of Sperry Marine.
13.1.2     No gratuities such as, but not limited to, gifts, travel expenses, business courtesies, hospitalities or entertainment of any nature has been or will be accepted or made in connection with this Agreement where the intent was, or is, to unlawfully influence the recipient of the gratuity. Buyer also represents that any gratuities offered or provided shall meet the following conditions:
(a)     be permitted under the UK Bribery Act and US Foreign Corrupt Practices Act and the laws and regulations of the country in which this Agreement will be performed;
(b)    be consistent with applicable social and ethical standards and accepted business practices;
(c)     be of such limited value as not to be deemed a bribe, payoff or any other form of improper inducement or payment; and
(d)     be of such nature that its disclosure will not cause embarrassment for Sperry Marine.
13.1.3     Breach of any of the foregoing provisions of Clauses 13.1.1 and 13.1.2 by Buyer shall be considered an irreparable material breach of this Agreement and shall entitle Sperry Marine to terminate this Agreement immediately without compensation to Buyer.
13.2     Denied Parties: Buyer warrants that it is not owned or controlled by, nor does it own or control, a person or entity that is on the list of Specially Designated Nationals and Blocked Persons maintained by the Office of Foreign Assets Control of the USA Department of the Treasury or any list of known or suspected terrorists, terrorist organizations or other prohibited persons published by any jurisdiction in which Buyer is doing business.
13.3     Prohibited Activity: Unless specifically authorised in writing by Sperry Marine, Buyer shall not engage in any of the following activities on behalf of Sperry Marine under this Agreement: acting as an agent of Sperry Marine; marketing or sales promotion; lobbying; freight forwarding; consulting services; performing offset (industrial participation) consulting or brokering services; acting as a distributor or reseller; or activity as a joint venture party.
13.4     Prohibited Contact: Unless specifically authorised in writing by Sperry Marine, Buyer shall not contact, either directly or indirectly, public officials of any country other than the USA, UK, Canada, Australia, Germany, France, or Italy in furtherance of its performance on behalf of Sperry Marine under this Agreement.
13.5     Notification of Changes: If Buyer provided anti-corruption compliance due diligence information (e.g., related to its ownership and personnel, subsidiaries and third parties, the due diligence questionnaire, and related certifications) to Sperry Marine or through Sperry Marine’s Global Trust website, Buyer shall provide Sperry Marine with prompt notification and details of any changes to information contained in such due diligence materials, and agrees to promptly cooperate with Sperry Marine and provide additional information reasonably requested in relation to such changes. In the event of a material change to information contained in the due diligence material supplied to Sperry Marine, Sperry Marine reserves the right to suspend performance under this Agreement by providing written notice to Buyer in order for Sperry Marine to conduct additional anti-corruption due diligence upon such changed circumstances.

14.    GENERAL CONDITIONS

14.1    Force Majeure:  Sperry Marine will not be liable for any failure to perform its obligations (excluding payment obligations) or delay in performance of the same under this Agreement where such failure or delay is due to any cause beyond Sperry Marine’s control (a “Force Majeure Event”).  In the event that a Force Majeure Event endures for more than sixty (60) days, the parties will meet and review in good faith, the desirability of and conditions for continuation of this Agreement and any failure to resolve the same will entitle Sperry Marine to terminate Buyer’s order (in whole or in part) without further liability to Buyer. The parties expressly agree that Force Majeure Event shall include, but is not limited to; government actions, omissions or delay; fire; strike; war; civil commotion; factory closure due to outbreak of communicable diseases; earthquake; and other Acts of God.
14.2    Assignment:  This Agreement may not be assigned in whole or in part by either party without the prior written consent of the other except as part of a merger, consolidation or re-organisation or voluntary sale or transfer of all or substantially all of the relevant party’s assets where the merged, consolidated or re-organised corporation or entity, or the transferee of such sale or transfer, has the authority and power to effectively perform that party’s obligations under this Agreement.
14.3    Notices:  Any notice, consent, permission or other communication required or permitted to be given by either party under this Agreement shall be:  (a) in writing; (b) in English; (c) and signed by or on behalf of the sender.  Notices must be delivered by at least one of the following delivery methods:  (a) hand or recorded delivery post (or any equivalent postal service) to the address specified by one party to the other party; or (b) e-mail.  For notice delivered by e-mail, the e-mail addresses will be those set out in the order and/or order acknowledgement, as may be formally updated in writing from time to time.  E-mail will be deemed received at the time and date of transmission shown on the saved sent copy.
14.4    No Waiver:  The failure by Sperry Marine to exercise, or its delay in exercising, a right, power or remedy provided by this Agreement or by law will not constitute a waiver by Sperry Marine of that right, power or remedy. If Sperry Marine waives a breach of any provision of this Agreement this will not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.
14.5    Severability:  If any provision, or part of a provision, of this Agreement, is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable, that provision or part-provision will be deemed not to form part of the Agreement, and the legality, validity or enforceability of the remainder of the provisions of this Agreement will not be affected, unless otherwise required by operation of applicable law. The parties will use all reasonable endeavours to agree within a reasonable time upon any lawful and reasonable variations to this Agreement which may be necessary in order to achieve, to the greatest extent possible, the same commercial effect as would have been achieved by the provision, or part-provision, in question.
14.6    Dispute Resolution:  Should any question, dispute or difference whatsoever arise between the parties in relation to or in connection with this Agreement:  (a) Buyer or Sperry Marine may give notice to the other in writing of the existence of such a question, dispute or difference and nominated representatives of both parties will discuss within fourteen (14) days of such notice to attempt to reach a solution; (b) if the parties are unable to resolve any dispute within fourteen (14) days of its referral under (a) above, then the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution’s (CEDR’s) Model Mediation Procedure; (c) if no mutually acceptable solution is found pursuant to (b) above, then the matter will be finally settled in accordance with the Arbitration Rules of the International Chamber of Commerce by three (3) arbitrators, which Rules are deemed to be incorporated by reference into this Subclause.  Arbitration will take place in London, England and the language to be used in the proceedings shall be English; and (d) the prevailing party in any arbitration or legal proceeding brought by one party against the other party and arising out of or in connection with this Agreement will be entitled to recover its legal expenses, including arbitration costs, court costs and reasonable lawyers and experts fees.
14.7    Governing Law:  This Agreement (and any part thereof) and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) will be governed by the laws of England and Wales. Subject to Subclause 14.6, the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement (including any non-contractual disputes or claims). The UN Convention for International Sale of Goods shall not apply.
14.8    Offset:  The total value of this Agreement may be applied as offset credit by Sperry Marine as it sees fit in support of any present or future offset obligations. Sperry Marine will have the right to assign, sell, or otherwise transfer such credits to third parties of its choice to be used in meeting the offset obligations of said third parties.
14.9    Confidentiality:  A party (the “Receiving Party”) will keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (the “Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party will restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under this Agreement, and will ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.
14.10    Data Protection:  Sperry Marine shall, at its own cost, comply with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (collectively “GDPR Regulations”) and shall only process, use or disclose Personal Data (as defined within the GDPR Regulations), (a) strictly for the purposes of fulfilling its obligations for which the Personal Data is provided; (b) with Buyer’s prior written consent; or (c) when required by law or an order of court, but shall notify Buyer as soon as practicable before complying with such law or order of court.  Buyer agrees that Sperry Marine may subcontract the aforesaid Personal Data processing operations.  Where Sperry Marine engages another party for such purposes, it shall ensure that such party has entered into a written agreement that imposes the same data protection obligations as set out in this Subclause.
14.11    Entire Agreement:  This Agreement represents the entire agreement between the parties with respect to the subject matter hereof and will apply to this Agreement to the exclusion of any other terms or conditions purported to apply by any other document.
14.12    Independent Contractors:  Nothing in this Agreement will (except as expressly provided) be deemed to constitute a partnership, or create a relationship of principal and agent between the parties for any purpose.
14.13    Third Parties:  This Agreement is enforceable by the original parties only and any other persons will have no rights whatever either under this Agreement, Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of this Agreement.  The term "original parties" will include Sperry Marine’s parent company and any associated subsidiaries within the Northrop Grumman group.
14.14    Amendments:  No alterations or amendments to this Agreement will be effective unless contained in a written document signed by the authorised representatives of each of the parties.
14.15    Waste Electrical and Electronic Equipment:  Where Buyer is based in the EU or UK, Buyer confirms that they assume responsibility for the correct disposal or onward sale of the Products at the end of its service life with Buyer in accordance with the EU WEEE (Waste Electrical and Electronic Equipment) Directive (2012/19/EC) or such regulations or directives of analogous or similar effect in the relevant territory(ies).
14.16    Compliance with Tax Laws:  Buyer shall specifically ensure that it complies with all laws, in any part of the world, in relation to the registration for or payment of any taxes which might be due in connection with the performance of the Service Work or supply of any Products, under this Agreement.  Without limiting the foregoing, Buyer shall:  (a) not, directly or indirectly, knowingly participate, be concerned in or take steps with a view to, the fraudulent evasion of tax by another person; (b) provide prompt notification to Sperry Marine of any tax offence related to the Service Work or any attempt to evade the proper payment of tax in relation the Service Work; and (c) include the substance of this Subclause in all subcontracts or other agreements with its agents, representatives or subcontractors performing any Service Work and be responsible for the observance and performance by such agents, representatives or subcontractors of this Subclause.  For purposes of this Subclause, the terms “tax” or “taxes” includes income tax, property tax, payroll tax, sales tax, value added tax, and similar taxes.
 

Northrop Grumman Systems Corporation, Sperry Marine

 

1.    SALE AND PURCHASE

1.1    In these general terms of sale the following designations are used: “Sperry Marine” refers to Northrop Grumman Systems Corporation, Sperry Marine; “Buyer” refers to the natural person or corporate body making or accepting an offer or otherwise entering into a legal relationship with Sperry Marine whereby Sperry Marine supplies goods, including spare parts, or software (“Products”) and/or services, including without limitation, service labour, engineering work in developing a system, or project management (“Service Work”) to Buyer as they are described in Sperry Marine’s offer.
1.2    These general terms of sale shall be applicable exclusively to all offers and order acceptances by Sperry Marine for the sale and supply of Products and/or Service Work and the term “Agreement” herein shall apply to all such agreements based on these terms.
1.3    Deviations from, changes and/or supplements to these general terms of sale will only be valid and binding if and in so far as these have been explicitly accepted by Sperry Marine in writing (“Deviated”).
1.4    An Agreement is effective the moment when Sperry Marine has accepted the order in writing, or, in the absence of an order acceptance, as soon as Sperry Marine has commenced execution of the order.

2.    OFFERS AND CONTENTS OF THE AGREEMENT

2.1    All offers of Sperry Marine are without obligation, particularly as regards price, quantity, time of delivery and possibilities of delivery, and can be revoked by Sperry Marine at any time.  Offers of which Sperry Marine has not received a written acceptance within sixty (60) days from the offer, or any other such duration as provided for in writing by Sperry Marine, shall be cancelled automatically.  Purchase orders or other forms of written acceptance from Buyer shall constitute irrevocable offers once accepted by Sperry Marine per Subclause 1.4.
2.2    Representations made by employees of Sperry Marine or by third parties cannot be relied upon or invoked by Buyer, unless these have been confirmed by Sperry Marine in writing.
2.3    Sperry Marine may without need for Buyer’s consent introduce improvements and alterations to the Products, provided that such improvements and alterations do not fundamentally change the ordered Products in form, fit or function.

3.    DELIVERY AND RISK

3.1    All dates and times specified to Buyer for delivery or installation of the Products and/or for the performance or provision of Service Work are estimated only and Sperry Marine shall not have any liability for delay or for any damages or losses sustained by Buyer as a result of such dates or times not being met. Buyer shall not be entitled to refuse acceptance of the Products and/or Service Work as a consequence or possible consequence of such delay. All deliveries are subject to adequate provision by Buyer and receipt by Sperry Marine in a timely manner of any proforma payments, any required official export documents and licences, technical, frequency and other information necessary from Buyer for the performance of this Agreement.
3.2    Unless otherwise Deviated, delivery for domestic United States of America (“USA”) sales shall be F.O.B. Destination, Freight Prepaid and added to the sales order (Uniform Commercial Code, Article 2), whilst delivery for export sales outside of the USA shall be FCA, Sperry Marine’s warehouse, St. Rose, Louisiana (Incoterms 2010). After delivery the Products shall be at the risk of Buyer, including those cases in which transport has been arranged by Sperry Marine and/ or in which at the carrier’s demand the transport document stipulates that transport shall be at the risk of Sperry Marine. Sperry Marine reserves the right to determine the means of conveyance and the route of transport, unless Buyer gives express written instructions accepted by Sperry Marine.
3.3    Any costs incurred by Sperry Marine (including, without limitation storage, insurance and other administrative costs) ensuing from delay on the part of Buyer in accepting delivery or in compliance with the requirements of Clauses 4 and 6, shall be paid by Buyer.
3.4    Sperry Marine is entitled to make partial deliveries and in that case, Sperry Marine may send Buyer a separate invoice for each partial delivery and demand payment therefor.

4.    INSPECTION AND SERVICE

4.1    During the warranty period referred to in Clause 9, Sperry Marine shall at its discretion be entitled at its cost, to inspect any installed Products and/or Service Work.
4.2    In the event that Buyer requests that: (a) Sperry Marine or its authorised service partners undertake an inspection of the Products, whether or not within the warranty period referred to in Clause 9; and/ or (b) Sperry Marine performs any repairs or Service Work which it is not obliged under Clause 9, then Sperry Marine shall, if it agrees to perform such works, be entitled to charge its applicable standard rates at the time of execution. In addition, Sperry Marine may charge for the travelling and accommodation expenses of such personnel, and/ or such other associated costs, plus a ten percent (10%) mark up, and for their travelling time at the rates applicable, as defined above. Sperry Marine shall not be required to provide documentary evidence in support of such charges. If Service Work is required outside Sperry Marine’s regular working hours, the overtime rates applicable to the district from which Sperry Marine provides the Service Work shall apply.
4.3    Any publications (including online sources) containing a list of locations in which Sperry Marine maintains service stations are for information purposes only. Sperry Marine shall have the right, at any time and at its sole discretion, to modify the number and locations of its service stations.

5.    PRICES AND TERMS OF PAYMENT

5.1    Unless otherwise Deviated, all prices quoted are based on delivery terms as per Subclause 3.2 (Incoterms 2010), in U.S. Dollars, and shall be:  (a) exclusive of sales or other taxes and charges, which if applicable, shall be added to the quoted prices and paid for by Buyer; and (b) exclusive of any other taxes and charges including, without limitation, corporate income tax, business/ turnover tax, personnel income tax, payroll tax, sales or other taxes and charges, excise tax, use and withholding taxes, arising in any country outside the country in which Sperry Marine resides, which if applicable, shall be added to the quoted prices and paid for by Buyer. For the avoidance of doubt, each party shall be responsible for any costs, charges and expenses imposed by its own banks.
5.2    In the event that the parties agree a variation or modification to the Agreement or any order, including without limitation, changes in the scope of supply, increase or reduction of the quantity supplied, change in the delivery dates of the Products or the performance dates of Service Work, the prices shall be adjusted in accordance with the standard rates used by Sperry Marine at the time of execution. In addition to the above, should delivery be extended beyond the calendar year in which the Products are originally scheduled to be delivered, the price for such Products shall be increased by four percent (4%) per calendar year.
5.3    The minimum order value which is applicable to all sales of Products and Service Works is $300.00 U.S. Dollars (three hundred U.S. Dollars).
5.4    Unless otherwise Deviated and pending Buyer’s credit status with Sperry Marine, full payment in the invoiced currency shall be made by Buyer not later than thirty (30) days after the invoice date, by means of payment into the bank and/or giro account stipulated by Sperry Marine, without any suspension, set-off, deduction or discount.  Buyer may only submit a written notice of objection against the invoice within the term set out therein.
5.5    Without prejudice to any other rights of Sperry Marine, Buyer shall be in default without any further notice thereof being required, if he exceeds the aforesaid term of payment of thirty (30) days.  From such moment, Buyer shall owe interest at one and a half percent (1.5%) a month compounded on the amount still outstanding.  For the calculation of the amount payable due to interest, parts of months shall apply as whole months.  All judicial or extrajudicial costs including all legal and professional fees (on an indemnity basis) and all court costs incurred with respect to collection of the debt shall be at the expense of Buyer.
5.6    At any time Sperry Marine shall be entitled to demand reasonable security (or, as the case may be, additional security) from Buyer for the payment of the Products and/or to suspend deliveries, until the security demanded has been provided.

6.    RETENTION OF TITLE

6.1    Sperry Marine shall retain title to the Products delivered or to be delivered until Buyer has made full payment of the price for such Products to Sperry Marine without any deductions.
6.2    As long as title to the Products has not passed to Buyer, Buyer shall not dispose of the Products or encumber them.  Buyer is not permitted to attach the Products to other objects in such a manner that they cannot be easily removed. Additionally, Buyer shall ensure that adequate insurance policies are in place to cover any loss or damage to the Products.
6.3    If Buyer does not comply with its payment obligations, or Sperry Marine considers that Buyer will not be able to comply with its payment obligations, Sperry Marine shall be irrevocably authorised by Buyer to gain access to Buyer’s business premises or the premises of a third party holding the Products on behalf of Buyer without prior notice, and to take all the necessary steps to recover the Products.  Buyer is obliged to co-operate fully with Sperry Marine for this purpose.
6.4    Buyer is obliged to inform Sperry Marine without delay of the fact that third parties are claiming rights to the Products which are the property of Sperry Marine.  Buyer is obliged to inform this third party, official receiver, trustee or attaching creditor of Sperry Marine’s title with respect to these Products without delay.

7.    ACCEPTANCE OF PRODUCTS

7.1    Buyer is obliged to inspect the Products or Service Works carefully after delivery and to inform Sperry Marine of any discoverable defects.  Any complaints with respect to the Products shall be notified to Sperry Marine in writing within fourteen (14) days after delivery of the Products or performance of Service Work.  If Buyer reasonably demonstrates that it was not possible to discover the defect upon delivery, then the complaint must be raised in writing within fourteen (14) days after the date on which the defect was discovered or could reasonably have been discovered, but in no event (including latent defects) shall Buyer be entitled to reject the Products more than thirty (30) days after delivery.
7.2    After expiry of the dates mentioned in Subclause 7.1, Buyer is deemed to have accepted the Products and/or Service Work and the Products and/or Service Work can no longer be rejected.

8.    TERMINATION

8.1    If Buyer:
(a)    commits any material breach of any of the terms of this Agreement (which for the avoidance of doubt, shall automatically include a breach of Clause 12 and 13); and / or
(b)    makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction), suffers any act of bankruptcy, any resolution or petition to wind up Buyer is passed, a third party seizes or threatens to seize the Products and/or Service Work before legal ownership has passed to Buyer in accordance with this Agreement, an encumbrancer takes possession or a receiver is appointed of any of the property or assets of Buyer, it ceases, or threatens to cease, to carry on business, or any circumstance arises or event occurs in relation to Buyer or any of its material assets in any country or territory in which it carries on business or to the jurisdiction of whose courts it or any of its assets is subject which corresponds with or has an effect equivalent or similar to any of those stated in this Subclause 8.1(b); and/ or
(c)    has its financial position deteriorated to such an extent that in Sperry Marine's sole opinion Buyer's capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy;
Sperry Marine shall be entitled to suspend the performance of any still current agreements wholly or partly, and in such circumstances all outstanding claims shall become payable on demand.  In this event, and without prejudice to any claim or right it might otherwise make or exercise, Sperry Marine is furthermore entitled to terminate any still current agreements wholly or partly without any further notice of default by written notice to Buyer.  Buyer shall be liable for all losses, costs and damages suffered by Sperry Marine as a result of such termination.
8.2    Sperry Marine may terminate the supply of any Products or the performance of any Service Work under this Agreement, in whole or in part, at any time, without reason, by giving Buyer not less than thirty (30) days’ written notice. Sperry Marine will thereupon reimburse Buyer in respect of Products that have been paid for but not yet delivered or Service Work that has been paid for but not yet performed.
8.3    Buyer may cancel its order only with the prior written consent of Sperry Marine, which consent shall be entirely at Sperry Marine’s discretion.  In the event of such agreed cancellation, Buyer shall pay Sperry Marine an amount equal to the total of the following amounts:
(a)    any outstanding sums due to Sperry Marine for any orders placed by Buyer but not yet delivered, and for any Products delivered or any Service Work performed; and
(b)    all costs incurred or committed by Sperry Marine in performance of the order and allocable thereto including, without limitation, non-cancellable purchases from third party suppliers (including Service Work already performed), overhead and general and administrative expense, exclusive of any cost attributable to completed Service Work under (a); and
(c)    to the extent not already included under (a), a sum for lost profits equal to fifteen percent (15%) of the order price of the cancelled part of the order, or such higher amount of lost profits as Sperry Marine can reasonably demonstrate it has incurred by accepting the cancellation; and
(d)    to the extent not already covered by (a) and (b), an amount equal to either the order value or costs of settling and paying any claims arising out of the cancelling of Products and/or Service Work under any subcontracts or purchase orders of Sperry Marine, whichever is the higher amount.
8.4    Upon the expiration or termination of this Agreement for whatever reason, upon written instruction, each party will return to the other party all confidential information (as per Subclause 14.9 herein), other than normal correspondence, letters, orders and the like.
8.5    The termination or expiry of this Agreement will not prejudice or affect any right of action or remedy which has accrued or will thereafter accrue to either party.
8.6    Notwithstanding the termination or expiry of this Agreement, the provisions of Clauses 10 and 12, and Subclauses 14.6, 14.7 and 14.9 shall survive for a period of five (5) years following the termination or expiry of this Agreement.

9.    WARRANTY AND SUPPORT

9.1    Sperry Marine warrants that all Products manufactured by Sperry Marine, its subsidiaries or affiliates and sold by Sperry Marine to Buyer at the time of delivery will be free from material defects in material and workmanship under normal use and service when (a) installed in accordance with the applicable Sperry Marine installation drawing; and (b) Supervision of Installation (SOI) or commissioning is performed by an authorised marine service engineer (“MSE”) employed either by Sperry Marine or one its authorised service partners. No warranty shall be effective if a defective Product has been repaired or in any way worked on by anyone other than a MSE without Sperry Marine’s prior written consent.
9.2    Unless otherwise stated, for all Products sold as new, Sperry Marine’s obligation under  warranty shall be limited to defects as defined in Subclause 9.1 above of which Sperry Marine is notified within twelve (12) months after the date that a Sperry Marine authorised MSE and Buyer representative sign a completed Commissioning Report (the “Date of Installation”) or twenty four (24) months after date of shipment, from Sperry Marine, whichever period shall first expire (“Original Warranty Period”).  
9.3    The warranty for reconditioned Products or Products not sold as new under Sperry Marine’s Spares Exchange (“SPEX”) shall be for a period of three (3) months after the Date of Installation or six (6) months after date of shipment, from Sperry Marine, whichever period shall first expire.
9.4    The warranty period for Service Work shall be:
(a)    where the Service Work is performed as part of the supply of new Products under Subclause 9.2, the warranty period set forth in Subclause 9.2; or
(b)    where the Service Work is performed as part of the supply of reconditioned Products or SPEX under Subclause 9.3 herein, the warranty period set forth in Subclause 9.3; or
(c)    in all other cases, one (1) month from the date of performance and completion of the Service Work.
9.5    In case of Products sold but not manufactured by Sperry Marine, its subsidiaries or affiliates, Sperry Marine’s sole obligation shall be six (6) months from delivery of the Products, or surviving manufacturer’s standard warranty conferred to Sperry Marine, whichever is longer.
9.6    All warrantable defects shall be notified to Sperry Marine within fourteen (14) days of its discovery, but in any event within the applicable warranty period. Sperry Marine’s warranty obligations shall be limited, at Sperry Marine’s discretion, to:  (a) replacement or repair of the defective Products; or (b) a sum not exceeding the net invoice value of the defective Products; or (c) in the case of Service Work, re-performance of that Service Work.  Any repaired or replaced Products or re-performed Service Work shall benefit from the warranty set out in Subclause 9.2, 9.3 or 9.4, but in no event shall the warranty of such rectified/ repaired Products or re-performed Service Work exceed the Original Warranty Period.
9.7    It shall sometimes be necessary for an engineer to travel to the service location to effect the warranty repair.  Where Sperry Marine sends a MSE to the service location to effect the warranty repair, Buyer shall pay all associated travel and accommodation expenses of the MSE and Buyer shall pay the hourly rate for the MSE’s for any travel time in excess of a total of four (4) hours round trip.
9.8    Replacement and repair of a defective part shall be made where the Products are sent to a Sperry Marine establishment or to a service station appointed by Sperry Marine within the warranty period referred to in Clause 9, provided that shipping costs, excluding import customs fees and duties, are prepaid by Buyer and the part is found defective after inspection at the establishment or service station. Defective Products, parts which are replaced under warranty, or parts exchanged under the SPEX scheme shall be returned by Buyer at Buyer’s sole cost to Sperry Marine to be received by Sperry Marine at Sperry Marine’s warehouse no later than four (4) weeks after the replacement has been installed and the respective commissioning report has been signed. Buyer shall only return such Products and/or SPEX after written acknowledgement from Sperry Marine and shall affix to the packaging such reference numbers and/or authorisation provided. Consumables and peripheral equipment such as cables, wires, mounting equipment and mechanical components shall not be returned unless specified by Sperry Marine.  Where the defective Products or parts are not received by Sperry Marine within four (4) weeks, Buyer shall pay Sperry Marine the full list price of the relevant Products or parts and Sperry Marine shall invoice Buyer accordingly. For parts exchanged under the SPEX scheme Buyer shall pay Sperry Marine an amount equivalent to the shortfall between the agreed price and the price that would have been charged had there been no supply of used or defective equipment by Buyer and Sperry Marine shall invoice the Buyer accordingly.
9.9    No warranty shall be effective with respect to any Product that has been subjected to conditions beyond the limits of its specifications, or which has been physically damaged, or to which is attached any apparatus other than apparatus supplied by Sperry Marine for attachment or specifically approved for attachment by Sperry Marine in writing, nor does it apply to Products found to be defective due to abuse, lightning or other electrical discharge.
9.10    For the avoidance of doubt, the warranty set out in these terms includes any software installed within the Product which is required for its proper operation. Software warranty covers the remedy of defects in the software only, where this materially affects the operation of the Product and where the defects can be reproduced by Sperry Marine at any time. Sperry Marine does not warrant or represent;
(i)    that software will function without interruption or error,
(ii)    that all software defects can be eliminated,
(iii)    that software, protocols, interfaces or the like that are not of Sperry Marine origin but which are coded, provided or directed by the Buyer to be installed within the Product will function without error and/ or is compatible with the operations of the Product,
(iv)    that the software will correspond to Buyer’s requirements, and
(v)    that the software will function without error in each configuration the Buyer selects, unless such configuration has been confirmed fit for purpose by Sperry Marine.
Sperry Marine’s sole liability shall be to provide a software update for the affected Product per Subclause 9.7. A software update is a defects resolution software revision that provides fixes for features that aren't working as intended and may, at Sperry Marine’s discretion, include enhancements and additional functionality. Software updates are warranted to the same extent and duration as the Products of which they form a part of. A software upgrade, on the other hand, offers a significant change or major improvement over the existing version. A software upgrade is a separately chargeable event that does not form part of the existing Products or Service Works. Such software upgrades shall be warranted for a period of twelve (12) months from the Date of Installation. Sperry Marine reserves the right to determine, in its absolute discretion, whether a software revision constitutes a software update or software upgrade.
Under no circumstances shall Sperry Marine accept any liability for claims for loss of data.
9.11    Sperry Marine may, in its sole discretion and without notice, discontinue the sale of any Products at any time. Sperry Marine shall remain liable for the warranty of such Products under Clause 9 for the duration of the Original Warranty Period, but shall not be required to replace the discontinued Products with its successor versions. Sperry Marine may also modify the design and specifications of any existing Products, but, subject to Subclause 9.10 herein, shall not be obliged to provide such modifications on Products previously purchased by Buyer. Sperry Marine reserves the right to determine, in its absolute discretion, whether such modifications constitute a Product update or an upgrade.
9.12    The foregoing provisions set forth Sperry Marine’s sole liability for breach of warranty in respect of, or for any defect or nonconformity in, any Products or Service Work, and Sperry Marine shall have no obligation or liability in respect of any defect or nonconformity discovered after the lapse of the warranty period as specified above.  All other warranties, whether express or implied, in contract, statute or at law, are, to the extent permissible by law, herewith expressly excluded.
9.13    In the event of an unjustified warranty claim, including but not limited to instances where no fault is found or where the fault is not covered by the warranty set out in Clause 9, Buyer shall compensate Sperry Marine for any cost that it has incurred in responding to the claim.

10.    LIABILITY

10.1    Nothing in this Agreement will exclude or limit the liability of either party to the other: (a) for death or personal injury resulting from the negligence of that party or any of its respective directors, officers, employees, contractors or agents; (b) in respect of fraud or wilful misconduct by that party or any of its respective directors, officers, employees, contractors or agents; (c) for breach of the provisions set out in Clauses 13; or (d) for any other liability that cannot be excluded or limited by applicable law.
10.2    Notwithstanding any provisions to the contrary in this Agreement, and to the maximum extent permitted by law, Sperry Marine will not be liable for any of the following types of loss or damage arising under or in relation to this Agreement (whether arising from breach of contract, negligence, misrepresentation, tort, breach of statutory duty or otherwise): (a) any loss of profits, loss of capital of its use thereof, loss of vessel, loss of cargo, loss of product, business, contracts, anticipated savings, goodwill, or revenue, any wasted expenditure, or any loss or corruption of data; or (b) any indirect or consequential loss or damage whatsoever, even if Sperry Marine was aware of the possibility that such loss or damage might be incurred.
10.3    Subject to Subclause 10.1, Sperry Marine’s cumulative liability under this Agreement will be limited to the prices for the Products and Service Work charged thereunder.
10.4    Sperry Marine shall not be liable for damages that may occur as a result of inappropriate or inadequate sites, facilities, installations or transport routes provided by Buyer.

11.    INTELLECTUAL PROPERTY RIGHTS AND PATENTS

11.1    For the purpose of this Agreement, "Intellectual Property” means (a) patents, inventions, designs, copyright and related rights, database rights, trademarks, trade names (whether registered or unregistered), and rights to apply for registration; (b) proprietary rights in domain names; (c) knowhow and confidential information; (d) applications, extensions and renewals in relation to any of these rights; and (e) all other rights of a similar nature or having an equivalent effect anywhere in the world which currently exist or are recognised in the future. Sperry Marine shall grant to the Buyer a royalty-free, perpetual, transferable and non-exclusive license to use the Products and/ or Service Work in accordance with this Agreement, subject to restrictions set forth in Clause 12 hereunder. Such rights are granted on the condition that the Buyer shall not reverse engineer any Products, Service Work or any Intellectual Property embodied therein, or otherwise adapt them for other uses. The validity of the license shall cease at such time when the Buyer is no longer in possession of the Products and/ or no longer utilizes the Service Works.
11.2    All rights in or to Intellectual Property in the Products or which may arise directly or indirectly as a result of performance of the Service Work by Sperry Marine under this Agreement will be vested in Sperry Marine absolutely.
11.3    Any of Sperry Marine’s special or general purpose tools, techniques, documentation, test materials, prototypes, software, moulds, dies, or other items or materials used in the design, test, manufacture, training, installation, commissioning and other performance of this Agreement will remain in the sole ownership of Sperry Marine at all times and are not included in any offer.
11.4    In the event that Buyer submits a claim alleging violation of third party intellectual property by the Products or any component thereof, and provided that the validity of such claim or allegation has been proved to the satisfaction of Sperry Marine or in a court of final instance that the use of these Products is prohibited, Sperry Marine shall at its sole discretion and at expense: (a) grant Buyer the right to continue to use the Products by procuring applicable licenses, or (b) replace or change the Products in such a way that violation ceases to exist, or where (a) or (b) are not possible, refund to the Buyer the purchase price for the Products upon return of the Products per Subclause 9.8. The aforesaid shall be the sole and exclusive liability of Sperry Marine in relation to any actual or alleged violation of Intellectual Property.
11.5    Sperry Marine accepts no liability in respect of claims for infringement or alleged infringement of third party’s Intellectual Property arising from the execution of the Agreement in accordance with Buyer’s designs, plans or specifications and Buyer will indemnify Sperry Marine against all losses, damages, expenses or other liability arising from such claims.
11.6    Sperry Marine shall not have any obligations towards Buyer with respect to any violation of Intellectual Property or a claim related to it, which is the result of:  (a) change or expansion of the Products according to special designs or specifications provided by or on behalf of Buyer; or (b) the use of the Products in combination with appliances or equipment which have not been made by Sperry Marine; or (c) the use of the Products in a manner for which they have neither been designed nor intended; or (d) violation of any Intellectual Property in which Buyer or its subsidiary or branch office have any direct or indirect interest on account of a licence or otherwise, or (e) non receipt of payment by Sperry Marine, or (f) Buyer is aware of pre-existing Intellectual Property claims, or (g) Buyer failing to notify Sperry Marine of the claim or cooperate with Sperry Marine, or (h) Buyer continuing with infringing activities. 

12.    EXPORT CONTROL COMPLIANCE

12.1    Products may contain parts of multiple origin, including the United States of America (“USA”).  Buyer shall comply with all applicable export laws, rules and regulations including but not limited to those of the United Kingdom (“UK”), Germany, the European Community and the USA and will not export or re-export the Products in violation of any such laws, rules or regulations.  Buyer warrants that all reasonable and appropriate steps will be taken to ensure that any other person or entity purchasing or otherwise acquiring the Products from Buyer will not export or re-export in violation of the aforementioned laws, rules and regulations.
12.2    If an export licence is required for the performance of any Sperry Marine’s obligation, including but not limited to supply of Products, Service Work or warranty repairs in accordance with Clause 9, and such export licence is not granted or having been granted is revoked, Sperry Marine shall have no further obligations to Buyer under Buyer’s order and this Agreement shall automatically terminate.  In case of a cancellation due to this reason Buyer shall have no right to repayment of costs already incurred by it or for any other compensation howsoever arising, but Sperry Marine shall be entitled to all payments for Products or Service Work already performed under this Agreement.
12.3    Where an order has been accepted and Sperry Marine subsequently establishes that, in its reasonable opinion, the order is in conflict with Subclause 12.1, this order will be immediately cancelled by Sperry Marine.  In this case, Buyer shall have no right to repayment of costs already incurred by it or for any other compensation howsoever arising.
12.4    Buyer agrees that the Products and/or Service Work provided under this Agreement will not be used for any purpose connected with chemical, biological or nuclear weapons, or missiles capable of delivering such weapons; that they will not be sold or transferred if it is known or suspected that they are intended or likely to be used for such purposes; that the Products will not be re-exported or otherwise sold or transferred to a destination subject to a United Nations, European Union (“EU”), Organization for Security and Co-operation in Europe ("OSCE"), UK or USA embargo where that act would be in breach of the terms of that embargo; and that the Products, or any replica of them, will not be used in any nuclear explosive activity or unsafeguarded nuclear fuel cycle.
12.5    Unless otherwise Deviated by Sperry Marine in advance, Buyer also agrees that the Products and/or Service Work provided under this Agreement will not be re-exported or otherwise sold or transferred to a military end-use and/or end-user; or to individuals or entities that are subject to USA, UK, and/or EU trade restrictions, including, but not limited to, the US Department of Commerce’s Denied Party List and Entity List, the US Department of Treasury’s Specially Designated Nationals list and Sectorial Sanctions Identifications list, and Annex IV to Council Regulation (EU) No 960/2014.
12.6    Buyer warrants that it is not owned or controlled by, nor does it own or control, a person or entity that is subject to economic or trade sanctions imposed by the USA Government, which restrict USA companies from engaging in financial transactions with such entity for any reason, including but not limited to being resident or headquartered in or a governmental entity of a country subject to such sanctions (currently Cuba, Iran, Syria and Sudan) or a Designated National under the USA Cuban Assets Control Regulations.
12.7    Buyer further warrants that it is neither resident in nor headquartered in a country to which the export or re-export of goods or technologies that are subject to the USA Export Administration Regulations are generally embargoed (currently North Korea) nor is it owned or controlled by a governmental entity of such country. Buyer agrees that it will notify Sperry Marine if these circumstances change. For purpose of this provision, references to "ownership" are defined to mean any ownership interest, direct or indirect, of 50 percent or more, and references to "control" are defined to mean the right or ability to, directly or indirectly, dictate the decisions, actions, and/or policies of an entity or its management by any means. If at any time during the term of this Agreement, Buyer breaches this article, then, in addition to any other rights Sperry Marine may have under this Agreement, Sperry Marine may immediately terminate this Agreement.

13.    PROHIBITED ACTIVITIES

13.1 Anti-Corruption Compliance: Buyer represents, warrants and covenants that:
13.1.1     It has not and will not, directly or indirectly, pay, promise, offer, or authorize the payment of any money or anything of value to:
(a)     an officer, employee, agent or representative of any government, including any department, agency, or instrumentality thereof or any person acting in an official capacity thereof;
(b)     a candidate for political office, any political party or any official of a political party; or
(c)     any other person or entity
while knowing or having reason to know that all or any portion of such payment or thing of value will be offered, given or promised, directly or indirectly, to any person or entity for the purpose of assisting Sperry Marine in obtaining or retaining business (including this Agreement), or an improper business advantage. Without limiting the generality of the foregoing, Buyer shall not directly or indirectly, pay, promise, offer, or authorize the payment of any facilitating payment intended to expedite or secure performance of a routine governmental action, such as, customs clearance on behalf of Sperry Marine.
13.1.2     No gratuities such as, but not limited to, gifts, travel expenses, business courtesies, hospitalities or entertainment of any nature has been or will be accepted or made in connection with this Agreement where the intent was, or is, to unlawfully influence the recipient of the gratuity. Buyer also represents that any gratuities offered or provided shall meet the following conditions:
(a)     be permitted under the UK Bribery Act and US Foreign Corrupt Practices Act and the laws and regulations of the country in which this Agreement will be performed;
(b)    be consistent with applicable social and ethical standards and accepted business practices;
(c)     be of such limited value as not to be deemed a bribe, payoff or any other form of improper inducement or payment; and
(d)     be of such nature that its disclosure will not cause embarrassment for Sperry Marine.
13.1.3     Breach of any of the foregoing provisions of Clauses 13.1.1 and 13.1.2 by Buyer shall be considered an irreparable material breach of this Agreement and shall entitle Sperry Marine to terminate this Agreement immediately without compensation to Buyer.
13.2     Denied Parties: Buyer warrants that it is not owned or controlled by, nor does it own or control, a person or entity that is on the list of Specially Designated Nationals and Blocked Persons maintained by the Office of Foreign Assets Control of the USA Department of the Treasury or any list of known or suspected terrorists, terrorist organizations or other prohibited persons published by any jurisdiction in which Buyer is doing business.
13.3     Prohibited Activity: Unless specifically authorised in writing by Sperry Marine, Buyer shall not engage in any of the following activities on behalf of Sperry Marine under this Agreement: acting as an agent of Sperry Marine; marketing or sales promotion; lobbying; freight forwarding; consulting services; performing offset (industrial participation) consulting or brokering services; acting as a distributor or reseller; or activity as a joint venture party.
13.4     Prohibited Contact: Unless specifically authorised in writing by Sperry Marine, Buyer shall not contact, either directly or indirectly, public officials of any country other than the USA, UK, Canada, Australia, Germany, France, or Italy in furtherance of its performance on behalf of Sperry Marine under this Agreement.
13.5     Notification of Changes: If Buyer provided anti-corruption compliance due diligence information (e.g., related to its ownership and personnel, subsidiaries and third parties, the due diligence questionnaire, and related certifications) to Sperry Marine or through Sperry Marine’s Global Trust website, Buyer shall provide Sperry Marine with prompt notification and details of any changes to information contained in such due diligence materials, and agrees to promptly cooperate with Sperry Marine and provide additional information reasonably requested in relation to such changes. In the event of a material change to information contained in the due diligence material supplied to Sperry Marine, Sperry Marine reserves the right to suspend performance under this Agreement by providing written notice to Buyer in order for Sperry Marine to conduct additional anti-corruption due diligence upon such changed circumstances.

14.    GENERAL CONDITIONS

14.1    Force Majeure:  Sperry Marine will not be liable for any failure to perform its obligations (excluding payment obligations) or delay in performance of the same under this Agreement where such failure or delay is due to any cause beyond Sperry Marine’s control (a “Force Majeure Event”).  In the event that a Force Majeure Event endures for more than sixty (60) days, the parties will meet and review in good faith, the desirability of and conditions for continuation of this Agreement and any failure to resolve the same will entitle Sperry Marine to terminate Buyer’s order (in whole or in part) without further liability to Buyer. The parties expressly agree that Force Majeure Event shall include, but is not limited to; government actions, omissions or delay; fire; strike; war; civil commotion; factory closure due to outbreak of communicable diseases; earthquake; and other Acts of God.
14.2    Assignment:  This Agreement may not be assigned in whole or in part by either party without the prior written consent of the other except as part of a merger, consolidation or re-organisation or voluntary sale or transfer of all or substantially all of the relevant party’s assets where the merged, consolidated or re-organised corporation or entity, or the transferee of such sale or transfer, has the authority and power to effectively perform that party’s obligations under this Agreement.
14.3    Notices:  Any notice, consent, permission or other communication required or permitted to be given by either party under this Agreement shall be:  (a) in writing; (b) in English; (c) and signed by or on behalf of the sender.  Notices must be delivered by at least one of the following delivery methods:  (a) hand or recorded delivery post (or any equivalent postal service) to the address specified by one party to the other party; or (b) e-mail.  For notice delivered by e-mail, the e-mail addresses will be those set out in the order and/or order acknowledgement, as may be formally updated in writing from time to time.  E-mail will be deemed received at the time and date of transmission shown on the saved sent copy.
14.4    No Waiver:  The failure by Sperry Marine to exercise, or its delay in exercising, a right, power or remedy provided by this Agreement or by law will not constitute a waiver by Sperry Marine of that right, power or remedy. If Sperry Marine waives a breach of any provision of this Agreement this will not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.
14.5    Severability:  If any provision, or part of a provision, of this Agreement, is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable, that provision or part-provision will be deemed not to form part of the Agreement, and the legality, validity or enforceability of the remainder of the provisions of this Agreement will not be affected, unless otherwise required by operation of applicable law. The parties will use all reasonable endeavours to agree within a reasonable time upon any lawful and reasonable variations to this Agreement which may be necessary in order to achieve, to the greatest extent possible, the same commercial effect as would have been achieved by the provision, or part-provision, in question.
14.6    Dispute Resolution:  Should any question, dispute or difference whatsoever arise between the parties in relation to or in connection with this Agreement:  (a) Buyer or Sperry Marine may give notice to the other in writing of the existence of such a question, dispute or difference and nominated representatives of both parties will discuss within fourteen (14) days of such notice to attempt to reach a solution; (b) if the parties are unable to resolve any dispute within fourteen (14) days of its referral under (a) above, then the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution’s (CEDR’s) Model Mediation Procedure; (c) if no mutually acceptable solution is found pursuant to (b) above, then the matter will be finally settled in accordance with the Arbitration Rules of the International Chamber of Commerce by three (3) arbitrators, which Rules are deemed to be incorporated by reference into this Subclause.  Arbitration will take place in the Commonwealth of Virginia and the language to be used in the proceedings shall be English; and (d) the prevailing party in any arbitration or legal proceeding brought by one party against the other party and arising out of or in connection with this Agreement will be entitled to recover its legal expenses, including arbitration costs, court costs and reasonable lawyers and experts fees.
14.7    Governing Law:  This Agreement (and any part thereof) and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) will be governed by the laws of the Commonwealth of Virginia. Subject to Subclause 14.6, the courts of the Commonwealth of Virginia will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement (including any non-contractual disputes or claims). The UN Convention for International Sale of Goods shall not apply.
14.8    Offset:  The total value of this Agreement may be applied as offset credit by Sperry Marine as it sees fit in support of any present or future offset obligations. Sperry Marine will have the right to assign, sell, or otherwise transfer such credits to third parties of its choice to be used in meeting the offset obligations of said third parties.
14.9    Confidentiality:  A party (the “Receiving Party”) will keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (the “Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain.  The Receiving Party will restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under this Agreement, and will ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.
14.10    Data Protection:  Sperry Marine shall, at its own cost, comply with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (collectively “GDPR Regulations”) and shall only process, use or disclose Personal Data (as defined within the GDPR Regulations), (a) strictly for the purposes of fulfilling its obligations for which the Personal Data is provided; (b) with Buyer’s prior written consent; or (c) when required by law or an order of court, but shall notify Buyer as soon as practicable before complying with such law or order of court.  Buyer agrees that Sperry Marine may subcontract the aforesaid Personal Data processing operations. Where Sperry Marine engages another party for such purposes, it shall ensure that such party has entered into a written agreement that imposes the same data protection obligations as set out in this Subclause.
14.11    Entire Agreement:  This Agreement represents the entire agreement between the parties with respect to the subject matter hereof and will apply to this Agreement to the exclusion of any other terms or conditions purported to apply by any other document.
14.12    Independent Contractors:  Nothing in this Agreement will (except as expressly provided) be deemed to constitute a partnership, or create a relationship of principal and agent between the parties for any purpose.
14.13    Third Parties:  This Agreement is enforceable by the original parties only and any other persons will have no rights whatever either under this Agreement or any other laws or otherwise to enforce any term of this Agreement.  The term "original parties" will include Sperry Marine’s parent company and any associated subsidiaries within the Northrop Grumman group.
14.14    Amendments:  No alterations or amendments to this Agreement will be effective unless contained in a written document signed by the authorised representatives of each of the parties.
14.15    Waste Electrical and Electronic Equipment:  Where Buyer is based in the EU or UK, Buyer confirms that they assume responsibility for the correct disposal or onward sale of the Products at the end of its service life with Buyer in accordance with the EU WEEE (Waste Electrical and Electronic Equipment) Directive (2012/19/EC) or such regulations or directives of analogous or similar effect in the relevant territory(ies).
14.16    Compliance with Tax Laws:  Buyer shall specifically ensure that it complies with all laws, in any part of the world, in relation to the registration for or payment of any taxes which might be due in connection with the performance of the Service Work or supply of any Products, under this Agreement.  Without limiting the foregoing, Buyer shall:  (a) not, directly or indirectly, knowingly participate, be concerned in or take steps with a view to, the fraudulent evasion of tax by another person; (b) provide prompt notification to Sperry Marine of any tax offence related to the Service Work or any attempt to evade the proper payment of tax in relation the Service Work; and (c) include the substance of this Subclause in all subcontracts or other agreements with its agents, representatives or subcontractors performing any Service Work and be responsible for the observance and performance by such agents, representatives or subcontractors of this Subclause.  For purposes of this Subclause, the terms “tax” or “taxes” includes income tax, property tax, payroll tax, sales tax, value added tax, and similar taxes.

 

Northrop Grumman International Trading, Inc

 

1.    SALE AND PURCHASE

1.1    In these general terms of sale the following designations are used: “Sperry Marine” refers to Northrop Grumman International Trading, Inc.; “Buyer” refers to the natural person or corporate body making or accepting an offer or otherwise entering into a legal relationship with Sperry Marine whereby Sperry Marine supplies goods, including spare parts, or software (“Products”) and/or services, including without limitation, service labour, engineering work in developing a system, or project management (“Service Work”) to Buyer as they are described in Sperry Marine’s offer.
1.2    These general terms of sale shall be applicable exclusively to all offers and order acceptances by Sperry Marine for the sale and supply of Products and/or Service Work and the term “Agreement” herein shall apply to all such agreements based on these terms.
1.3    Deviations from, changes and/or supplements to these general terms of sale will only be valid and binding if and in so far as these have been explicitly accepted by Sperry Marine in writing (“Deviated”).
1.4    An Agreement is effective the moment when Sperry Marine has accepted the order in writing, or, in the absence of an order acceptance, as soon as Sperry Marine has commenced execution of the order.

2.    OFFERS AND CONTENTS OF THE AGREEMENT

2.1    All offers of Sperry Marine are without obligation, particularly as regards price, quantity, time of delivery and possibilities of delivery, and can be revoked by Sperry Marine at any time.  Offers of which Sperry Marine has not received a written acceptance within sixty (60) days from the offer, or any other such duration as provided for in writing by Sperry Marine, shall be cancelled automatically.  Purchase orders or other forms of written acceptance from Buyer shall constitute irrevocable offers once accepted by Sperry Marine per Subclause 1.4.
2.2    Representations made by employees of Sperry Marine or by third parties cannot be relied upon or invoked by Buyer, unless these have been confirmed by Sperry Marine in writing.
2.3    Sperry Marine may without need for Buyer’s consent introduce improvements and alterations to the Products, provided that such improvements and alterations do not fundamentally change the ordered Products in form, fit or function.

3.    DELIVERY AND RISK

3.1    All dates and times specified to Buyer for delivery or installation of the Products and/or for the performance or provision of Service Work are estimated only and Sperry Marine shall not have any liability for delay or for any damages or losses sustained by Buyer as a result of such dates or times not being met. Buyer shall not be entitled to refuse acceptance of the Products and/or Service Work as a consequence or possible consequence of such delay. All deliveries are subject to adequate provision by Buyer and receipt by Sperry Marine in a timely manner of any proforma payments, any required official export documents and licences, technical, frequency and other information necessary from Buyer for the performance of this Agreement.
3.2    Unless otherwise Deviated, delivery for domestic United States of America (“USA”) sales shall be F.O.B. Destination, Freight Prepaid and added to the sales order (Uniform Commercial Code, Article 2), whilst delivery for export sales outside of the USA shall be FCA, Sperry Marine’s warehouse, St. Rose, Louisiana (Incoterms 2010). After delivery the Products shall be at the risk of Buyer, including those cases in which transport has been arranged by Sperry Marine and/ or in which at the carrier’s demand the transport document stipulates that transport shall be at the risk of Sperry Marine. Sperry Marine reserves the right to determine the means of conveyance and the route of transport, unless Buyer gives express written instructions accepted by Sperry Marine.
3.3    Any costs incurred by Sperry Marine (including, without limitation storage, insurance and other administrative costs) ensuing from delay on the part of Buyer in accepting delivery or in compliance with the requirements of Clauses 4 and 6, shall be paid by Buyer.
3.4    Sperry Marine is entitled to make partial deliveries and in that case, Sperry Marine may send Buyer a separate invoice for each partial delivery and demand payment therefor.

4.    INSPECTION AND SERVICE

4.1    During the warranty period referred to in Clause 9, Sperry Marine shall at its discretion be entitled at its cost, to inspect any installed Products and/or Service Work.
4.2    In the event that Buyer requests that: (a) Sperry Marine or its authorised service partners undertake an inspection of the Products, whether or not within the warranty period referred to in Clause 9; and/ or (b) Sperry Marine performs any repairs or Service Work which it is not obliged under Clause 9, then Sperry Marine shall, if it agrees to perform such works, be entitled to charge its applicable standard rates at the time of execution. In addition, Sperry Marine may charge for the travelling and accommodation expenses of such personnel, and/ or such other associated costs, plus a ten percent (10%) mark up, and for their travelling time at the rates applicable, as defined above. Sperry Marine shall not be required to provide documentary evidence in support of such charges. If Service Work is required outside Sperry Marine’s regular working hours, the overtime rates applicable to the district from which Sperry Marine provides the Service Work shall apply.
4.3    Any publications (including online sources) containing a list of locations in which Sperry Marine maintains service stations are for information purposes only. Sperry Marine shall have the right, at any time and at its sole discretion, to modify the number and locations of its service stations.

5.    PRICES AND TERMS OF PAYMENT

5.1    Unless otherwise Deviated, all prices quoted are based on delivery terms as per Subclause 3.2 (Incoterms 2010), in U.S. Dollars, and shall be:  (a) exclusive of sales or other taxes and charges, which if applicable, shall be added to the quoted prices and paid for by Buyer; and (b) exclusive of any other taxes and charges including, without limitation, corporate income tax, business/ turnover tax, personnel income tax, payroll tax, sales or other taxes and charges, excise tax, use and withholding taxes, arising in any country outside the country in which Sperry Marine resides, which if applicable, shall be added to the quoted prices and paid for by Buyer. For the avoidance of doubt, each party shall be responsible for any costs, charges and expenses imposed by its own banks.
5.2    In the event that the parties agree a variation or modification to the Agreement or any order, including without limitation, changes in the scope of supply, increase or reduction of the quantity supplied, change in the delivery dates of the Products or the performance dates of Service Work, the prices shall be adjusted in accordance with the standard rates used by Sperry Marine at the time of execution. In addition to the above, should delivery be extended beyond the calendar year in which the Products are originally scheduled to be delivered, the price for such Products shall be increased by four percent (4%) per calendar year.
5.3    The minimum order value which is applicable to all sales of Products and Service Works is $300.00 U.S. Dollars (three hundred U.S. Dollars).
5.4    Unless otherwise Deviated and pending Buyer’s credit status with Sperry Marine, full payment in the invoiced currency shall be made by Buyer not later than thirty (30) days after the invoice date, by means of payment into the bank and/or giro account stipulated by Sperry Marine, without any suspension, set-off, deduction or discount.  Buyer may only submit a written notice of objection against the invoice within the term set out therein.
5.5    Without prejudice to any other rights of Sperry Marine, Buyer shall be in default without any further notice thereof being required, if he exceeds the aforesaid term of payment of thirty (30) days.  From such moment, Buyer shall owe interest at one and a half percent (1.5%) a month compounded on the amount still outstanding.  For the calculation of the amount payable due to interest, parts of months shall apply as whole months.  All judicial or extrajudicial costs including all legal and professional fees (on an indemnity basis) and all court costs incurred with respect to collection of the debt shall be at the expense of Buyer.
5.6    At any time Sperry Marine shall be entitled to demand reasonable security (or, as the case may be, additional security) from Buyer for the payment of the Products and/or to suspend deliveries, until the security demanded has been provided.

6.    RETENTION OF TITLE

6.1    Sperry Marine shall retain title to the Products delivered or to be delivered until Buyer has made full payment of the price for such Products to Sperry Marine without any deductions.
6.2    As long as title to the Products has not passed to Buyer, Buyer shall not dispose of the Products or encumber them.  Buyer is not permitted to attach the Products to other objects in such a manner that they cannot be easily removed. Additionally, Buyer shall ensure that adequate insurance policies are in place to cover any loss or damage to the Products.
6.3    If Buyer does not comply with its payment obligations, or Sperry Marine considers that Buyer will not be able to comply with its payment obligations, Sperry Marine shall be irrevocably authorised by Buyer to gain access to Buyer’s business premises or the premises of a third party holding the Products on behalf of Buyer without prior notice, and to take all the necessary steps to recover the Products.  Buyer is obliged to co-operate fully with Sperry Marine for this purpose.
6.4    Buyer is obliged to inform Sperry Marine without delay of the fact that third parties are claiming rights to the Products which are the property of Sperry Marine.  Buyer is obliged to inform this third party, official receiver, trustee or attaching creditor of Sperry Marine’s title with respect to these Products without delay.

7.    ACCEPTANCE OF PRODUCTS

7.1    Buyer is obliged to inspect the Products or Service Works carefully after delivery and to inform Sperry Marine of any discoverable defects.  Any complaints with respect to the Products shall be notified to Sperry Marine in writing within fourteen (14) days after delivery of the Products or performance of Service Work.  If Buyer reasonably demonstrates that it was not possible to discover the defect upon delivery, then the complaint must be raised in writing within fourteen (14) days after the date on which the defect was discovered or could reasonably have been discovered, but in no event (including latent defects) shall Buyer be entitled to reject the Products more than thirty (30) days after delivery.
7.2    After expiry of the dates mentioned in Subclause 7.1, Buyer is deemed to have accepted the Products and/or Service Work and the Products and/or Service Work can no longer be rejected.

8.    TERMINATION

8.1    If Buyer:
(a)    commits any material breach of any of the terms of this Agreement (which for the avoidance of doubt, shall automatically include a breach of Clause 12 and 13); and / or
(b)    makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction), suffers any act of bankruptcy, any resolution or petition to wind up Buyer is passed, a third party seizes or threatens to seize the Products and/or Service Work before legal ownership has passed to Buyer in accordance with this Agreement, an encumbrancer takes possession or a receiver is appointed of any of the property or assets of Buyer, it ceases, or threatens to cease, to carry on business, or any circumstance arises or event occurs in relation to Buyer or any of its material assets in any country or territory in which it carries on business or to the jurisdiction of whose courts it or any of its assets is subject which corresponds with or has an effect equivalent or similar to any of those stated in this Subclause 8.1(b); and/ or
(c)    has its financial position deteriorated to such an extent that in Sperry Marine's sole opinion Buyer's capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy;
Sperry Marine shall be entitled to suspend the performance of any still current agreements wholly or partly, and in such circumstances all outstanding claims shall become payable on demand.  In this event, and without prejudice to any claim or right it might otherwise make or exercise, Sperry Marine is furthermore entitled to terminate any still current agreements wholly or partly without any further notice of default by written notice to Buyer.  Buyer shall be liable for all losses, costs and damages suffered by Sperry Marine as a result of such termination.
8.2    Sperry Marine may terminate the supply of any Products or the performance of any Service Work under this Agreement, in whole or in part, at any time, without reason, by giving Buyer not less than thirty (30) days’ written notice. Sperry Marine will thereupon reimburse Buyer in respect of Products that have been paid for but not yet delivered or Service Work that has been paid for but not yet performed.
8.3    Buyer may cancel its order only with the prior written consent of Sperry Marine, which consent shall be entirely at Sperry Marine’s discretion.  In the event of such agreed cancellation, Buyer shall pay Sperry Marine an amount equal to the total of the following amounts:
(a)    any outstanding sums due to Sperry Marine for any orders placed by Buyer but not yet delivered, and for any Products delivered or any Service Work performed; and
(b)    all costs incurred or committed by Sperry Marine in performance of the order and allocable thereto including, without limitation, non-cancellable purchases from third party suppliers (including Service Work already performed), overhead and general and administrative expense, exclusive of any cost attributable to completed Service Work under (a); and
(c)    to the extent not already included under (a), a sum for lost profits equal to fifteen percent (15%) of the order price of the cancelled part of the order, or such higher amount of lost profits as Sperry Marine can reasonably demonstrate it has incurred by accepting the cancellation; and
(d)    to the extent not already covered by (a) and (b), an amount equal to either the order value or costs of settling and paying any claims arising out of the cancelling of Products and/or Service Work under any subcontracts or purchase orders of Sperry Marine, whichever is the higher amount.
8.4    Upon the expiration or termination of this Agreement for whatever reason, upon written instruction, each party will return to the other party all confidential information (as per Subclause 14.9 herein), other than normal correspondence, letters, orders and the like.
8.5    The termination or expiry of this Agreement will not prejudice or affect any right of action or remedy which has accrued or will thereafter accrue to either party.
8.6    Notwithstanding the termination or expiry of this Agreement, the provisions of Clauses 10 and 12, and Subclauses 14.6, 14.7 and 14.9 shall survive for a period of five (5) years following the termination or expiry of this Agreement.

9.    WARRANTY AND SUPPORT

9.1    Sperry Marine warrants that all Products manufactured by Sperry Marine, its subsidiaries or affiliates and sold by Sperry Marine to Buyer at the time of delivery will be free from material defects in material and workmanship under normal use and service when (a) installed in accordance with the applicable Sperry Marine installation drawing; and (b) Supervision of Installation (SOI) or commissioning is performed by an authorised marine service engineer (“MSE”) employed either by Sperry Marine or one its authorised service partners. No warranty shall be effective if a defective Product has been repaired or in any way worked on by anyone other than a MSE without Sperry Marine’s prior written consent.
9.2    Unless otherwise stated, for all Products sold as new, Sperry Marine’s obligation under  warranty shall be limited to defects as defined in Subclause 9.1 above of which Sperry Marine is notified within twelve (12) months after the date that a Sperry Marine authorised MSE and Buyer representative sign a completed Commissioning Report (the “Date of Installation”) or twenty four (24) months after date of shipment, from Sperry Marine, whichever period shall first expire (“Original Warranty Period”).  
9.3    The warranty for reconditioned Products or Products not sold as new under Sperry Marine’s Spares Exchange (“SPEX”) shall be for a period of three (3) months after the Date of Installation or six (6) months after date of shipment, from Sperry Marine, whichever period shall first expire.
9.4    The warranty period for Service Work shall be:
(a)    where the Service Work is performed as part of the supply of new Products under Subclause 9.2, the warranty period set forth in Subclause 9.2; or
(b)    where the Service Work is performed as part of the supply of reconditioned Products or SPEX under Subclause 9.3 herein, the warranty period set forth in Subclause 9.3; or
(c)    in all other cases, one (1) month from the date of performance and completion of the Service Work.
9.5    In case of Products sold but not manufactured by Sperry Marine, its subsidiaries or affiliates, Sperry Marine’s sole obligation shall be six (6) months from delivery of the Products, or surviving manufacturer’s standard warranty conferred to Sperry Marine, whichever is longer.
9.6    All warrantable defects shall be notified to Sperry Marine within fourteen (14) days of its discovery, but in any event within the applicable warranty period. Sperry Marine’s warranty obligations shall be limited, at Sperry Marine’s discretion, to:  (a) replacement or repair of the defective Products; or (b) a sum not exceeding the net invoice value of the defective Products; or (c) in the case of Service Work, re-performance of that Service Work.  Any repaired or replaced Products or re-performed Service Work shall benefit from the warranty set out in Subclause 9.2, 9.3 or 9.4, but in no event shall the warranty of such rectified/ repaired Products or re-performed Service Work exceed the Original Warranty Period.
9.7    It shall sometimes be necessary for an engineer to travel to the service location to effect the warranty repair.  Where Sperry Marine sends a MSE to the service location to effect the warranty repair, Buyer shall pay all associated travel and accommodation expenses of the MSE and Buyer shall pay the hourly rate for the MSE’s for any travel time in excess of a total of four (4) hours round trip.
9.8    Replacement and repair of a defective part shall be made where the Products are sent to a Sperry Marine establishment or to a service station appointed by Sperry Marine within the warranty period referred to in Clause 9, provided that shipping costs, excluding import customs fees and duties, are prepaid by Buyer and the part is found defective after inspection at the establishment or service station. Defective Products, parts which are replaced under warranty, or parts exchanged under the SPEX scheme shall be returned by Buyer at Buyer’s sole cost to Sperry Marine to be received by Sperry Marine at Sperry Marine’s warehouse no later than four (4) weeks after the replacement has been installed and the respective commissioning report has been signed. Buyer shall only return such Products and/or SPEX after written acknowledgement from Sperry Marine and shall affix to the packaging such reference numbers and/or authorisation provided. Consumables and peripheral equipment such as cables, wires, mounting equipment and mechanical components shall not be returned unless specified by Sperry Marine.  Where the defective Products or parts are not received by Sperry Marine within four (4) weeks, Buyer shall pay Sperry Marine the full list price of the relevant Products or parts and Sperry Marine shall invoice Buyer accordingly. For parts exchanged under the SPEX scheme Buyer shall pay Sperry Marine an amount equivalent to the shortfall between the agreed price and the price that would have been charged had there been no supply of used or defective equipment by Buyer and Sperry Marine shall invoice the Buyer accordingly.
9.9    No warranty shall be effective with respect to any Product that has been subjected to conditions beyond the limits of its specifications, or which has been physically damaged, or to which is attached any apparatus other than apparatus supplied by Sperry Marine for attachment or specifically approved for attachment by Sperry Marine in writing, nor does it apply to Products found to be defective due to abuse, lightning or other electrical discharge.
9.10    For the avoidance of doubt, the warranty set out in these terms includes any software installed within the Product which is required for its proper operation. Software warranty covers the remedy of defects in the software only, where this materially affects the operation of the Product and where the defects can be reproduced by Sperry Marine at any time. Sperry Marine does not warrant or represent;
(i)    that software will function without interruption or error,
(ii)    that all software defects can be eliminated,
(iii)    that software, protocols, interfaces or the like that are not of Sperry Marine origin but which are coded, provided or directed by the Buyer to be installed within the Product will function without error and/ or is compatible with the operations of the Product,
(iv)    that the software will correspond to Buyer’s requirements, and
(v)    that the software will function without error in each configuration the Buyer selects, unless such configuration has been confirmed fit for purpose by Sperry Marine.
Sperry Marine’s sole liability shall be to provide a software update for the affected Product per Subclause 9.7. A software update is a defects resolution software revision that provides fixes for features that aren't working as intended and may, at Sperry Marine’s discretion, include enhancements and additional functionality. Software updates are warranted to the same extent and duration as the Products of which they form a part of. A software upgrade, on the other hand, offers a significant change or major improvement over the existing version. A software upgrade is a separately chargeable event that does not form part of the existing Products or Service Works. Such software upgrades shall be warranted for a period of twelve (12) months from the Date of Installation. Sperry Marine reserves the right to determine, in its absolute discretion, whether a software revision constitutes a software update or software upgrade.
Under no circumstances shall Sperry Marine accept any liability for claims for loss of data.
9.11    Sperry Marine may, in its sole discretion and without notice, discontinue the sale of any Products at any time. Sperry Marine shall remain liable for the warranty of such Products under Clause 9 for the duration of the Original Warranty Period, but shall not be required to replace the discontinued Products with its successor versions. Sperry Marine may also modify the design and specifications of any existing Products, but, subject to Subclause 9.10 herein, shall not be obliged to provide such modifications on Products previously purchased by Buyer. Sperry Marine reserves the right to determine, in its absolute discretion, whether such modifications constitute a Product update or an upgrade.
9.12    The foregoing provisions set forth Sperry Marine’s sole liability for breach of warranty in respect of, or for any defect or nonconformity in, any Products or Service Work, and Sperry Marine shall have no obligation or liability in respect of any defect or nonconformity discovered after the lapse of the warranty period as specified above.  All other warranties, whether express or implied, in contract, statute or at law, are, to the extent permissible by law, herewith expressly excluded.
9.13    In the event of an unjustified warranty claim, including but not limited to instances where no fault is found or where the fault is not covered by the warranty set out in Clause 9, Buyer shall compensate Sperry Marine for any cost that it has incurred in responding to the claim.

10.    LIABILITY

10.1    Nothing in this Agreement will exclude or limit the liability of either party to the other: (a) for death or personal injury resulting from the negligence of that party or any of its respective directors, officers, employees, contractors or agents; (b) in respect of fraud or wilful misconduct by that party or any of its respective directors, officers, employees, contractors or agents; (c) for breach of the provisions set out in Clauses 13; or (d) for any other liability that cannot be excluded or limited by applicable law.
10.2    Notwithstanding any provisions to the contrary in this Agreement, and to the maximum extent permitted by law, Sperry Marine will not be liable for any of the following types of loss or damage arising under or in relation to this Agreement (whether arising from breach of contract, negligence, misrepresentation, tort, breach of statutory duty or otherwise): (a) any loss of profits, loss of capital of its use thereof, loss of vessel, loss of cargo, loss of product, business, contracts, anticipated savings, goodwill, or revenue, any wasted expenditure, or any loss or corruption of data; or (b) any indirect or consequential loss or damage whatsoever, even if Sperry Marine was aware of the possibility that such loss or damage might be incurred.
10.3    Subject to Subclause 10.1, Sperry Marine’s cumulative liability under this Agreement will be limited to the prices for the Products and Service Work charged thereunder.
10.4    Sperry Marine shall not be liable for damages that may occur as a result of inappropriate or inadequate sites, facilities, installations or transport routes provided by Buyer.

11.    INTELLECTUAL PROPERTY RIGHTS AND PATENTS

11.1    For the purpose of this Agreement, "Intellectual Property” means (a) patents, inventions, designs, copyright and related rights, database rights, trademarks, trade names (whether registered or unregistered), and rights to apply for registration; (b) proprietary rights in domain names; (c) knowhow and confidential information; (d) applications, extensions and renewals in relation to any of these rights; and (e) all other rights of a similar nature or having an equivalent effect anywhere in the world which currently exist or are recognised in the future. Sperry Marine shall grant to the Buyer a royalty-free, perpetual, transferable and non-exclusive license to use the Products and/ or Service Work in accordance with this Agreement, subject to restrictions set forth in Clause 12 hereunder. Such rights are granted on the condition that the Buyer shall not reverse engineer any Products, Service Work or any Intellectual Property embodied therein, or otherwise adapt them for other uses. The validity of the license shall cease at such time when the Buyer is no longer in possession of the Products and/ or no longer utilizes the Service Works.
11.2    All rights in or to Intellectual Property in the Products or which may arise directly or indirectly as a result of performance of the Service Work by Sperry Marine under this Agreement will be vested in Sperry Marine absolutely.
11.3    Any of Sperry Marine’s special or general purpose tools, techniques, documentation, test materials, prototypes, software, moulds, dies, or other items or materials used in the design, test, manufacture, training, installation, commissioning and other performance of this Agreement will remain in the sole ownership of Sperry Marine at all times and are not included in any offer.
11.4    In the event that Buyer submits a claim alleging violation of third party intellectual property by the Products or any component thereof, and provided that the validity of such claim or allegation has been proved to the satisfaction of Sperry Marine or in a court of final instance that the use of these Products is prohibited, Sperry Marine shall at its sole discretion and at expense: (a) grant Buyer the right to continue to use the Products by procuring applicable licenses, or (b) replace or change the Products in such a way that violation ceases to exist, or where (a) or (b) are not possible, refund to the Buyer the purchase price for the Products upon return of the Products per Subclause 9.8. The aforesaid shall be the sole and exclusive liability of Sperry Marine in relation to any actual or alleged violation of Intellectual Property.
11.5    Sperry Marine accepts no liability in respect of claims for infringement or alleged infringement of third party’s Intellectual Property arising from the execution of the Agreement in accordance with Buyer’s designs, plans or specifications and Buyer will indemnify Sperry Marine against all losses, damages, expenses or other liability arising from such claims.
11.6    Sperry Marine shall not have any obligations towards Buyer with respect to any violation of Intellectual Property or a claim related to it, which is the result of:  (a) change or expansion of the Products according to special designs or specifications provided by or on behalf of Buyer; or (b) the use of the Products in combination with appliances or equipment which have not been made by Sperry Marine; or (c) the use of the Products in a manner for which they have neither been designed nor intended; or (d) violation of any Intellectual Property in which Buyer or its subsidiary or branch office have any direct or indirect interest on account of a licence or otherwise, or (e) non receipt of payment by Sperry Marine, or (f) Buyer is aware of pre-existing Intellectual Property claims, or (g) Buyer failing to notify Sperry Marine of the claim or cooperate with Sperry Marine, or (h) Buyer continuing with infringing activities. 

12.    EXPORT CONTROL COMPLIANCE

12.1    Products may contain parts of multiple origin, including the United States of America (“USA”).  Buyer shall comply with all applicable export laws, rules and regulations including but not limited to those of the United Kingdom (“UK”), Germany, the European Community and the USA and will not export or re-export the Products in violation of any such laws, rules or regulations.  Buyer warrants that all reasonable and appropriate steps will be taken to ensure that any other person or entity purchasing or otherwise acquiring the Products from Buyer will not export or re-export in violation of the aforementioned laws, rules and regulations.
12.2    If an export licence is required for the performance of any Sperry Marine’s obligation, including but not limited to supply of Products, Service Work or warranty repairs in accordance with Clause 9, and such export licence is not granted or having been granted is revoked, Sperry Marine shall have no further obligations to Buyer under Buyer’s order and this Agreement shall automatically terminate.  In case of a cancellation due to this reason Buyer shall have no right to repayment of costs already incurred by it or for any other compensation howsoever arising, but Sperry Marine shall be entitled to all payments for Products or Service Work already performed under this Agreement.
12.3    Where an order has been accepted and Sperry Marine subsequently establishes that, in its reasonable opinion, the order is in conflict with Subclause 12.1, this order will be immediately cancelled by Sperry Marine.  In this case, Buyer shall have no right to repayment of costs already incurred by it or for any other compensation howsoever arising.
12.4    Buyer agrees that the Products and/or Service Work provided under this Agreement will not be used for any purpose connected with chemical, biological or nuclear weapons, or missiles capable of delivering such weapons; that they will not be sold or transferred if it is known or suspected that they are intended or likely to be used for such purposes; that the Products will not be re-exported or otherwise sold or transferred to a destination subject to a United Nations, European Union (“EU”), Organization for Security and Co-operation in Europe ("OSCE"), UK or USA embargo where that act would be in breach of the terms of that embargo; and that the Products, or any replica of them, will not be used in any nuclear explosive activity or unsafeguarded nuclear fuel cycle.
12.5    Unless otherwise Deviated by Sperry Marine in advance, Buyer also agrees that the Products and/or Service Work provided under this Agreement will not be re-exported or otherwise sold or transferred to a military end-use and/or end-user; or to individuals or entities that are subject to USA, UK, and/or EU trade restrictions, including, but not limited to, the US Department of Commerce’s Denied Party List and Entity List, the US Department of Treasury’s Specially Designated Nationals list and Sectorial Sanctions Identifications list, and Annex IV to Council Regulation (EU) No 960/2014.
12.6    Buyer warrants that it is not owned or controlled by, nor does it own or control, a person or entity that is subject to economic or trade sanctions imposed by the USA Government, which restrict USA companies from engaging in financial transactions with such entity for any reason, including but not limited to being resident or headquartered in or a governmental entity of a country subject to such sanctions (currently Cuba, Iran, Syria and Sudan) or a Designated National under the USA Cuban Assets Control Regulations.
12.7    Buyer further warrants that it is neither resident in nor headquartered in a country to which the export or re-export of goods or technologies that are subject to the USA Export Administration Regulations are generally embargoed (currently North Korea) nor is it owned or controlled by a governmental entity of such country. Buyer agrees that it will notify Sperry Marine if these circumstances change. For purpose of this provision, references to "ownership" are defined to mean any ownership interest, direct or indirect, of 50 percent or more, and references to "control" are defined to mean the right or ability to, directly or indirectly, dictate the decisions, actions, and/or policies of an entity or its management by any means. If at any time during the term of this Agreement, Buyer breaches this article, then, in addition to any other rights Sperry Marine may have under this Agreement, Sperry Marine may immediately terminate this Agreement.

13.    PROHIBITED ACTIVITIES

13.1 Anti-Corruption Compliance: Buyer represents, warrants and covenants that:
13.1.1     It has not and will not, directly or indirectly, pay, promise, offer, or authorize the payment of any money or anything of value to:
(a)     an officer, employee, agent or representative of any government, including any department, agency, or instrumentality thereof or any person acting in an official capacity thereof;
(b)     a candidate for political office, any political party or any official of a political party; or
(c)     any other person or entity
while knowing or having reason to know that all or any portion of such payment or thing of value will be offered, given or promised, directly or indirectly, to any person or entity for the purpose of assisting Sperry Marine in obtaining or retaining business (including this Agreement), or an improper business advantage. Without limiting the generality of the foregoing, Buyer shall not directly or indirectly, pay, promise, offer, or authorize the payment of any facilitating payment intended to expedite or secure performance of a routine governmental action, such as, customs clearance on behalf of Sperry Marine.
13.1.2     No gratuities such as, but not limited to, gifts, travel expenses, business courtesies, hospitalities or entertainment of any nature has been or will be accepted or made in connection with this Agreement where the intent was, or is, to unlawfully influence the recipient of the gratuity. Buyer also represents that any gratuities offered or provided shall meet the following conditions:
(a)     be permitted under the UK Bribery Act and US Foreign Corrupt Practices Act and the laws and regulations of the country in which this Agreement will be performed;
(b)    be consistent with applicable social and ethical standards and accepted business practices;
(c)     be of such limited value as not to be deemed a bribe, payoff or any other form of improper inducement or payment; and
(d)     be of such nature that its disclosure will not cause embarrassment for Sperry Marine.
13.1.3     Breach of any of the foregoing provisions of Clauses 13.1.1 and 13.1.2 by Buyer shall be considered an irreparable material breach of this Agreement and shall entitle Sperry Marine to terminate this Agreement immediately without compensation to Buyer.
13.2     Denied Parties: Buyer warrants that it is not owned or controlled by, nor does it own or control, a person or entity that is on the list of Specially Designated Nationals and Blocked Persons maintained by the Office of Foreign Assets Control of the USA Department of the Treasury or any list of known or suspected terrorists, terrorist organizations or other prohibited persons published by any jurisdiction in which Buyer is doing business.
13.3     Prohibited Activity: Unless specifically authorised in writing by Sperry Marine, Buyer shall not engage in any of the following activities on behalf of Sperry Marine under this Agreement: acting as an agent of Sperry Marine; marketing or sales promotion; lobbying; freight forwarding; consulting services; performing offset (industrial participation) consulting or brokering services; acting as a distributor or reseller; or activity as a joint venture party.
13.4     Prohibited Contact: Unless specifically authorised in writing by Sperry Marine, Buyer shall not contact, either directly or indirectly, public officials of any country other than the USA, UK, Canada, Australia, Germany, France, or Italy in furtherance of its performance on behalf of Sperry Marine under this Agreement.
13.5     Notification of Changes: If Buyer provided anti-corruption compliance due diligence information (e.g., related to its ownership and personnel, subsidiaries and third parties, the due diligence questionnaire, and related certifications) to Sperry Marine or through Sperry Marine’s Global Trust website, Buyer shall provide Sperry Marine with prompt notification and details of any changes to information contained in such due diligence materials, and agrees to promptly cooperate with Sperry Marine and provide additional information reasonably requested in relation to such changes. In the event of a material change to information contained in the due diligence material supplied to Sperry Marine, Sperry Marine reserves the right to suspend performance under this Agreement by providing written notice to Buyer in order for Sperry Marine to conduct additional anti-corruption due diligence upon such changed circumstances.

14.    GENERAL CONDITIONS

14.1    Force Majeure:  Sperry Marine will not be liable for any failure to perform its obligations (excluding payment obligations) or delay in performance of the same under this Agreement where such failure or delay is due to any cause beyond Sperry Marine’s control (a “Force Majeure Event”).  In the event that a Force Majeure Event endures for more than sixty (60) days, the parties will meet and review in good faith, the desirability of and conditions for continuation of this Agreement and any failure to resolve the same will entitle Sperry Marine to terminate Buyer’s order (in whole or in part) without further liability to Buyer. The parties expressly agree that Force Majeure Event shall include, but is not limited to; government actions, omissions or delay; fire; strike; war; civil commotion; factory closure due to outbreak of communicable diseases; earthquake; and other Acts of God.
14.2    Assignment:  This Agreement may not be assigned in whole or in part by either party without the prior written consent of the other except as part of a merger, consolidation or re-organisation or voluntary sale or transfer of all or substantially all of the relevant party’s assets where the merged, consolidated or re-organised corporation or entity, or the transferee of such sale or transfer, has the authority and power to effectively perform that party’s obligations under this Agreement.
14.3    Notices:  Any notice, consent, permission or other communication required or permitted to be given by either party under this Agreement shall be:  (a) in writing; (b) in English; (c) and signed by or on behalf of the sender.  Notices must be delivered by at least one of the following delivery methods:  (a) hand or recorded delivery post (or any equivalent postal service) to the address specified by one party to the other party; or (b) e-mail.  For notice delivered by e-mail, the e-mail addresses will be those set out in the order and/or order acknowledgement, as may be formally updated in writing from time to time.  E-mail will be deemed received at the time and date of transmission shown on the saved sent copy.
14.4    No Waiver:  The failure by Sperry Marine to exercise, or its delay in exercising, a right, power or remedy provided by this Agreement or by law will not constitute a waiver by Sperry Marine of that right, power or remedy. If Sperry Marine waives a breach of any provision of this Agreement this will not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.
14.5    Severability:  If any provision, or part of a provision, of this Agreement, is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable, that provision or part-provision will be deemed not to form part of the Agreement, and the legality, validity or enforceability of the remainder of the provisions of this Agreement will not be affected, unless otherwise required by operation of applicable law. The parties will use all reasonable endeavours to agree within a reasonable time upon any lawful and reasonable variations to this Agreement which may be necessary in order to achieve, to the greatest extent possible, the same commercial effect as would have been achieved by the provision, or part-provision, in question.
14.6    Dispute Resolution:  Should any question, dispute or difference whatsoever arise between the parties in relation to or in connection with this Agreement:  (a) Buyer or Sperry Marine may give notice to the other in writing of the existence of such a question, dispute or difference and nominated representatives of both parties will discuss within fourteen (14) days of such notice to attempt to reach a solution; (b) if the parties are unable to resolve any dispute within fourteen (14) days of its referral under (a) above, then the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution’s (CEDR’s) Model Mediation Procedure; (c) if no mutually acceptable solution is found pursuant to (b) above, then the matter will be finally settled in accordance with the Arbitration Rules of the International Chamber of Commerce by three (3) arbitrators, which Rules are deemed to be incorporated by reference into this Subclause.  Arbitration will take place in the Commonwealth of Virginia and the language to be used in the proceedings shall be English; and (d) the prevailing party in any arbitration or legal proceeding brought by one party against the other party and arising out of or in connection with this Agreement will be entitled to recover its legal expenses, including arbitration costs, court costs and reasonable lawyers and experts fees.
14.7    Governing Law:  This Agreement (and any part thereof) and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) will be governed by the laws of the Commonwealth of Virginia. Subject to Subclause 14.6, the courts of the Commonwealth of Virginia will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement (including any non-contractual disputes or claims). The UN Convention for International Sale of Goods shall not apply.
14.8    Offset:  The total value of this Agreement may be applied as offset credit by Sperry Marine as it sees fit in support of any present or future offset obligations. Sperry Marine will have the right to assign, sell, or otherwise transfer such credits to third parties of its choice to be used in meeting the offset obligations of said third parties.
14.9    Confidentiality:  A party (the “Receiving Party”) will keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (the “Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain.  The Receiving Party will restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under this Agreement, and will ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.
14.10    Data Protection:  Sperry Marine shall, at its own cost, comply with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (collectively “GDPR Regulations”) and shall only process, use or disclose Personal Data (as defined within the GDPR Regulations), (a) strictly for the purposes of fulfilling its obligations for which the Personal Data is provided; (b) with Buyer’s prior written consent; or (c) when required by law or an order of court, but shall notify Buyer as soon as practicable before complying with such law or order of court.  Buyer agrees that Sperry Marine may subcontract the aforesaid Personal Data processing operations. Where Sperry Marine engages another party for such purposes, it shall ensure that such party has entered into a written agreement that imposes the same data protection obligations as set out in this Subclause.
14.11    Entire Agreement:  This Agreement represents the entire agreement between the parties with respect to the subject matter hereof and will apply to this Agreement to the exclusion of any other terms or conditions purported to apply by any other document.
14.12    Independent Contractors:  Nothing in this Agreement will (except as expressly provided) be deemed to constitute a partnership, or create a relationship of principal and agent between the parties for any purpose.
14.13    Third Parties:  This Agreement is enforceable by the original parties only and any other persons will have no rights whatever either under this Agreement or any other laws or otherwise to enforce any term of this Agreement.  The term "original parties" will include Sperry Marine’s parent company and any associated subsidiaries within the Northrop Grumman group.
14.14    Amendments:  No alterations or amendments to this Agreement will be effective unless contained in a written document signed by the authorised representatives of each of the parties.
14.15    Waste Electrical and Electronic Equipment:  Where Buyer is based in the EU or UK, Buyer confirms that they assume responsibility for the correct disposal or onward sale of the Products at the end of its service life with Buyer in accordance with the EU WEEE (Waste Electrical and Electronic Equipment) Directive (2012/19/EC) or such regulations or directives of analogous or similar effect in the relevant territory(ies).
14.16    Compliance with Tax Laws:  Buyer shall specifically ensure that it complies with all laws, in any part of the world, in relation to the registration for or payment of any taxes which might be due in connection with the performance of the Service Work or supply of any Products, under this Agreement.  Without limiting the foregoing, Buyer shall:  (a) not, directly or indirectly, knowingly participate, be concerned in or take steps with a view to, the fraudulent evasion of tax by another person; (b) provide prompt notification to Sperry Marine of any tax offence related to the Service Work or any attempt to evade the proper payment of tax in relation the Service Work; and (c) include the substance of this Subclause in all subcontracts or other agreements with its agents, representatives or subcontractors performing any Service Work and be responsible for the observance and performance by such agents, representatives or subcontractors of this Subclause.  For purposes of this Subclause, the terms “tax” or “taxes” includes income tax, property tax, payroll tax, sales tax, value added tax, and similar taxes.

 

Northrop Grumman Canada (2004) Inc.

 

1.    SALE AND PURCHASE

1.1    In these general terms of sale the following designations are used: “Sperry Marine” refers to Northrop Grumman Canada (2004) Inc..; “Buyer” refers to the natural person or corporate body making or accepting an offer or otherwise entering into a legal relationship with Sperry Marine whereby Sperry Marine supplies goods, including spare parts, or software (“Products”) and/or services, including without limitation, service labour, engineering work in developing a system, or project management (“Service Work”) to Buyer as they are described in Sperry Marine’s offer.
1.2    These general terms of sale shall be applicable exclusively to all offers and order acceptances by Sperry Marine for the sale and supply of Products and/or Service Work and the term “Agreement” herein shall apply to all such agreements based on these terms.
1.3    Deviations from, changes and/or supplements to these general terms of sale will only be valid and binding if and in so far as these have been explicitly accepted by Sperry Marine in writing (“Deviated”).
1.4    An Agreement is effective the moment when Sperry Marine has accepted the order in writing, or, in the absence of an order acceptance, as soon as Sperry Marine has commenced execution of the order.

2.    OFFERS AND CONTENTS OF THE AGREEMENT

2.1    All offers of Sperry Marine are without obligation, particularly as regards price, quantity, time of delivery and possibilities of delivery, and can be revoked by Sperry Marine at any time.  Offers of which Sperry Marine has not received a written acceptance within sixty (60) days from the offer, or any other such duration as provided for in writing by Sperry Marine, shall be cancelled automatically.  Purchase orders or other forms of written acceptance from Buyer shall constitute irrevocable offers once accepted by Sperry Marine per Subclause 1.4.
2.2    Representations made by employees of Sperry Marine or by third parties cannot be relied upon or invoked by Buyer, unless these have been confirmed by Sperry Marine in writing.
2.3    Sperry Marine may without need for Buyer’s consent introduce improvements and alterations to the Products, provided that such improvements and alterations do not fundamentally change the ordered Products in form, fit or function.

3.    DELIVERY AND RISK

3.1    All dates and times specified to Buyer for delivery or installation of the Products and/or for the performance or provision of Service Work are estimated only and Sperry Marine shall not have any liability for delay or for any damages or losses sustained by Buyer as a result of such dates or times not being met. Buyer shall not be entitled to refuse acceptance of the Products and/or Service Work as a consequence or possible consequence of such delay. All deliveries are subject to adequate provision by Buyer and receipt by Sperry Marine in a timely manner of any proforma payments, any required official export documents and licences, technical, frequency and other information necessary from Buyer for the performance of this Agreement.
3.2    Unless otherwise Deviated, all deliveries are FCA, Sperry Marine's warehouse in Vlaardingen, The Netherlands (Incoterms 2010) and after delivery the Products shall be at the risk of Buyer, including those cases in which transport has been arranged by Sperry Marine and/ or in which at the carrier’s demand the transport document stipulates that transport shall be at the risk of Sperry Marine. Sperry Marine reserves the right to determine the means of conveyance and the route of transport, unless Buyer gives express written instructions accepted by Sperry Marine.
3.3    Any costs incurred by Sperry Marine (including, without limitation storage, insurance and other administrative costs) ensuing from delay on the part of Buyer in accepting delivery or in compliance with the requirements of Clauses 4 and 6, shall be paid by Buyer.
3.4    Sperry Marine is entitled to make partial deliveries and in that case, Sperry Marine may send Buyer a separate invoice for each partial delivery and demand payment therefor.

4.    INSPECTION AND SERVICE

4.1    During the warranty period referred to in Clause 9, Sperry Marine shall at its discretion be entitled at its cost, to inspect any installed Products and/or Service Work.
4.2    In the event that Buyer requests that: (a) Sperry Marine or its authorised service partners undertake an inspection of the Products, whether or not within the warranty period referred to in Clause 9; and/ or (b) Sperry Marine performs any repairs or Service Work which it is not obliged under Clause 9, then Sperry Marine shall, if it agrees to perform such works, be entitled to charge its applicable standard rates at the time of execution. In addition, Sperry Marine may charge for the travelling and accommodation expenses of such personnel, and/ or such other associated costs, plus a ten percent (10%) mark up, and for their travelling time at the rates applicable, as defined above. Sperry Marine shall not be required to provide documentary evidence in support of such charges. If Service Work is required outside Sperry Marine’s regular working hours, the overtime rates applicable to the district from which Sperry Marine provides the Service Work shall apply.
4.3    Any publications (including online sources) containing a list of locations in which Sperry Marine maintains service stations are for information purposes only. Sperry Marine shall have the right, at any time and at its sole discretion, to modify the number and locations of its service stations.

5.    PRICES AND TERMS OF PAYMENT

5.1    Unless otherwise Deviated, all prices quoted are based on FCA Vlaardingen (Incoterms 2010), in Euros, and shall be:  (a) exclusive of Value Added Taxes (VAT) or other taxes and charges, which if applicable, shall be added to the quoted prices and paid for by Buyer; and (b) exclusive of any other taxes and charges including, without limitation, corporate income tax, business/ turnover tax, personnel income tax, payroll tax, sales or other taxes and charges, excise tax, use and withholding taxes, arising in any country outside the country in which Sperry Marine resides, which if applicable, shall be added to the quoted prices and paid for by Buyer. For the avoidance of doubt, each party shall be responsible for any costs, charges and expenses imposed by its own banks.
5.2    In the event that the parties agree a variation or modification to the Agreement or any order, including without limitation, changes in the scope of supply, increase or reduction of the quantity supplied, change in the delivery dates of the Products or the performance dates of Service Work, the prices shall be adjusted in accordance with the standard rates used by Sperry Marine at the time of execution. In addition to the above, should delivery be extended beyond the calendar year in which the Products are originally scheduled to be delivered, the price for such Products shall be increased by four percent (4%) per calendar year.
5.3    The minimum order value which is applicable to all sales of Products and Service Works is EUR 250 (two hundred and fifty Euros).
5.4    Unless otherwise Deviated and pending Buyer’s credit status with Sperry Marine, full payment in the invoiced currency shall be made by Buyer not later than thirty (30) days after the invoice date, by means of payment into the bank and/or giro account stipulated by Sperry Marine, without any suspension, set-off, deduction or discount.  Buyer may only submit a written notice of objection against the invoice within the term set out therein.
5.5    Without prejudice to any other rights of Sperry Marine, Buyer shall be in default without any further notice thereof being required, if he exceeds the aforesaid term of payment of thirty (30) days.  From such moment, Buyer shall owe interest at one and a half percent (1.5%) a month compounded on the amount still outstanding.  For the calculation of the amount payable due to interest, parts of months shall apply as whole months.  All judicial or extrajudicial costs including all legal and professional fees (on an indemnity basis) and all court costs incurred with respect to collection of the debt shall be at the expense of Buyer.
5.6    At any time Sperry Marine shall be entitled to demand reasonable security (or, as the case may be, additional security) from Buyer for the payment of the Products and/or to suspend deliveries, until the security demanded has been provided.

6.    RETENTION OF TITLE

6.1    Sperry Marine shall retain title to the Products delivered or to be delivered until Buyer has made full payment of the price for such Products to Sperry Marine without any deductions.
6.2    As long as title to the Products has not passed to Buyer, Buyer shall not dispose of the Products or encumber them.  Buyer is not permitted to attach the Products to other objects in such a manner that they cannot be easily removed. Additionally, Buyer shall ensure that adequate insurance policies are in place to cover any loss or damage to the Products.
6.3    If Buyer does not comply with its payment obligations, or Sperry Marine considers that Buyer will not be able to comply with its payment obligations, Sperry Marine shall be irrevocably authorised by Buyer to gain access to Buyer’s business premises or the premises of a third party holding the Products on behalf of Buyer without prior notice, and to take all the necessary steps to recover the Products.  Buyer is obliged to co-operate fully with Sperry Marine for this purpose.
6.4    Buyer is obliged to inform Sperry Marine without delay of the fact that third parties are claiming rights to the Products which are the property of Sperry Marine.  Buyer is obliged to inform this third party, official receiver, trustee or attaching creditor of Sperry Marine’s title with respect to these Products without delay.

7.    ACCEPTANCE OF PRODUCTS

7.1    Buyer is obliged to inspect the Products or Service Works carefully after delivery and to inform Sperry Marine of any discoverable defects.  Any complaints with respect to the Products shall be notified to Sperry Marine in writing within fourteen (14) days after delivery of the Products or performance of Service Work.  If Buyer reasonably demonstrates that it was not possible to discover the defect upon delivery, then the complaint must be raised in writing within fourteen (14) days after the date on which the defect was discovered or could reasonably have been discovered, but in no event (including latent defects) shall Buyer be entitled to reject the Products more than thirty (30) days after delivery.
7.2    After expiry of the dates mentioned in Subclause 7.1, Buyer is deemed to have accepted the Products and/or Service Work and the Products and/or Service Work can no longer be rejected.

8.    TERMINATION

8.1    If Buyer:
(a)    commits any material breach of any of the terms of this Agreement (which for the avoidance of doubt, shall automatically include a breach of Clause 12 and 13); and / or
(b)    makes any voluntary arrangement with its creditors (within the meaning of the Insolvency Act 1986) or becomes subject to an administration order or goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction), suffers any act of bankruptcy, any resolution or petition to wind up Buyer is passed, a third party seizes or threatens to seize the Products and/or Service Work before legal ownership has passed to Buyer in accordance with this Agreement, an encumbrancer takes possession or a receiver is appointed of any of the property or assets of Buyer, it ceases, or threatens to cease, to carry on business, or any circumstance arises or event occurs in relation to Buyer or any of its material assets in any country or territory in which it carries on business or to the jurisdiction of whose courts it or any of its assets is subject which corresponds with or has an effect equivalent or similar to any of those stated in this Subclause 8.1(b); and/ or
(c)    has its financial position deteriorated to such an extent that in Sperry Marine's sole opinion Buyer's capability to adequately fulfil its obligations under this Agreement has been placed in jeopardy;
Sperry Marine shall be entitled to suspend the performance of any still current agreements wholly or partly, and in such circumstances all outstanding claims shall become payable on demand.  In this event, and without prejudice to any claim or right it might otherwise make or exercise, Sperry Marine is furthermore entitled to terminate any still current agreements wholly or partly without any further notice of default by written notice to Buyer.  Buyer shall be liable for all losses, costs and damages suffered by Sperry Marine as a result of such termination.
8.2    Sperry Marine may terminate the supply of any Products or the performance of any Service Work under this Agreement, in whole or in part, at any time, without reason, by giving Buyer not less than thirty (30) days’ written notice. Sperry Marine will thereupon reimburse Buyer in respect of Products that have been paid for but not yet delivered or Service Work that has been paid for but not yet performed.
8.3    Buyer may cancel its order only with the prior written consent of Sperry Marine, which consent shall be entirely at Sperry Marine’s discretion.  In the event of such agreed cancellation, Buyer shall pay Sperry Marine an amount equal to the total of the following amounts:
(a)    any outstanding sums due to Sperry Marine for any orders placed by Buyer but not yet delivered, and for any Products delivered or any Service Work performed; and
(b)    all costs incurred or committed by Sperry Marine in performance of the order and allocable thereto including, without limitation, non-cancellable purchases from third party suppliers (including Service Work already performed), overhead and general and administrative expense, exclusive of any cost attributable to completed Service Work under (a); and
(c)    to the extent not already included under (a), a sum for lost profits equal to fifteen percent (15%) of the order price of the cancelled part of the order, or such higher amount of lost profits as Sperry Marine can reasonably demonstrate it has incurred by accepting the cancellation; and
(d)    to the extent not already covered by (a) and (b), an amount equal to either the order value or costs of settling and paying any claims arising out of the cancelling of Products and/or Service Work under any subcontracts or purchase orders of Sperry Marine, whichever is the higher amount.
8.4    Upon the expiration or termination of this Agreement for whatever reason, upon written instruction, each party will return to the other party all confidential information (as per Subclause 14.9 herein), other than normal correspondence, letters, orders and the like.
8.5    The termination or expiry of this Agreement will not prejudice or affect any right of action or remedy which has accrued or will thereafter accrue to either party.
8.6    Notwithstanding the termination or expiry of this Agreement, the provisions of Clauses 10 and 12, and Subclauses 14.6, 14.7 and 14.9 shall survive for a period of five (5) years following the termination or expiry of this Agreement.

9.    WARRANTY AND SUPPORT

9.1    Sperry Marine warrants that all Products manufactured by Sperry Marine, its subsidiaries or affiliates and sold by Sperry Marine to Buyer at the time of delivery will be free from material defects in material and workmanship under normal use and service when (a) installed in accordance with the applicable Sperry Marine installation drawing; and (b) Supervision of Installation (SOI) or commissioning is performed by an authorised marine service engineer (“MSE”) employed either by Sperry Marine or one its authorised service partners. No warranty shall be effective if a defective Product has been repaired or in any way worked on by anyone other than a MSE without Sperry Marine’s prior written consent.
9.2    Unless otherwise stated, for all Products sold as new, Sperry Marine’s obligation under  warranty shall be limited to defects as defined in Subclause 9.1 above of which Sperry Marine is notified within twelve (12) months after the date that a Sperry Marine authorised MSE and Buyer representative sign a completed Commissioning Report (the “Date of Installation”) or twenty four (24) months after date of shipment, from Sperry Marine, whichever period shall first expire (“Original Warranty Period”).  
9.3    The warranty for reconditioned Products or Products not sold as new under Sperry Marine’s Spares Exchange (“SPEX”) shall be for a period of three (3) months after the Date of Installation or six (6) months after date of shipment, from Sperry Marine, whichever period shall first expire.
9.4    The warranty period for Service Work shall be:
(a)    where the Service Work is performed as part of the supply of new Products under Subclause 9.2, the warranty period set forth in Subclause 9.2; or
(b)    where the Service Work is performed as part of the supply of reconditioned Products or SPEX under Subclause 9.3 herein, the warranty period set forth in Subclause 9.3; or
(c)    in all other cases, one (1) month from the date of performance and completion of the Service Work.
9.5    In case of Products sold but not manufactured by Sperry Marine, its subsidiaries or affiliates, Sperry Marine’s sole obligation shall be six (6) months from delivery of the Products, or surviving manufacturer’s standard warranty conferred to Sperry Marine, whichever is longer.
9.6    All warrantable defects shall be notified to Sperry Marine within fourteen (14) days of its discovery, but in any event within the applicable warranty period. Sperry Marine’s warranty obligations shall be limited, at Sperry Marine’s discretion, to:  (a) replacement or repair of the defective Products; or (b) a sum not exceeding the net invoice value of the defective Products; or (c) in the case of Service Work, re-performance of that Service Work.  Any repaired or replaced Products or re-performed Service Work shall benefit from the warranty set out in Subclause 9.2, 9.3 or 9.4, but in no event shall the warranty of such rectified/ repaired Products or re-performed Service Work exceed the Original Warranty Period.
9.7    It shall sometimes be necessary for an engineer to travel to the service location to effect the warranty repair.  Where Sperry Marine sends a MSE to the service location to effect the warranty repair, Buyer shall pay all associated travel and accommodation expenses of the MSE and Buyer shall pay the hourly rate for the MSE’s for any travel time in excess of a total of four (4) hours round trip.
9.8    Replacement and repair of a defective part shall be made where the Products are sent to a Sperry Marine establishment or to a service station appointed by Sperry Marine within the warranty period referred to in Clause 9, provided that shipping costs, excluding import customs fees and duties, are prepaid by Buyer and the part is found defective after inspection at the establishment or service station. Defective Products, parts which are replaced under warranty, or parts exchanged under the SPEX scheme shall be returned by Buyer at Buyer’s sole cost to Sperry Marine to be received by Sperry Marine at Sperry Marine’s warehouse no later than four (4) weeks after the replacement has been installed and the respective commissioning report has been signed. Buyer shall only return such Products and/or SPEX after written acknowledgement from Sperry Marine and shall affix to the packaging such reference numbers and/or authorisation provided. Consumables and peripheral equipment such as cables, wires, mounting equipment and mechanical components shall not be returned unless specified by Sperry Marine.  Where the defective Products or parts are not received by Sperry Marine within four (4) weeks, Buyer shall pay Sperry Marine the full list price of the relevant Products or parts and Sperry Marine shall invoice Buyer accordingly. For parts exchanged under the SPEX scheme Buyer shall pay Sperry Marine an amount equivalent to the shortfall between the agreed price and the price that would have been charged had there been no supply of used or defective equipment by Buyer and Sperry Marine shall invoice the Buyer accordingly.
9.9    No warranty shall be effective with respect to any Product that has been subjected to conditions beyond the limits of its specifications, or which has been physically damaged, or to which is attached any apparatus other than apparatus supplied by Sperry Marine for attachment or specifically approved for attachment by Sperry Marine in writing, nor does it apply to Products found to be defective due to abuse, lightning or other electrical discharge.
9.10    For the avoidance of doubt, the warranty set out in these terms includes any software installed within the Product which is required for its proper operation. Software warranty covers the remedy of defects in the software only, where this materially affects the operation of the Product and where the defects can be reproduced by Sperry Marine at any time. Sperry Marine does not warrant or represent;
(i)    that software will function without interruption or error,
(ii)    that all software defects can be eliminated,
(iii)    that software, protocols, interfaces or the like that are not of Sperry Marine origin but which are coded, provided or directed by the Buyer to be installed within the Product will function without error and/ or is compatible with the operations of the Product,
(iv)    that the software will correspond to Buyer’s requirements, and
(v)    that the software will function without error in each configuration the Buyer selects, unless such configuration has been confirmed fit for purpose by Sperry Marine.
Sperry Marine’s sole liability shall be to provide a software update for the affected Product per Subclause 9.7. A software update is a defects resolution software revision that provides fixes for features that aren't working as intended and may, at Sperry Marine’s discretion, include enhancements and additional functionality. Software updates are warranted to the same extent and duration as the Products of which they form a part of. A software upgrade, on the other hand, offers a significant change or major improvement over the existing version. A software upgrade is a separately chargeable event that does not form part of the existing Products or Service Works. Such software upgrades shall be warranted for a period of twelve (12) months from the Date of Installation. Sperry Marine reserves the right to determine, in its absolute discretion, whether a software revision constitutes a software update or software upgrade.
Under no circumstances shall Sperry Marine accept any liability for claims for loss of data.
9.11    Sperry Marine may, in its sole discretion and without notice, discontinue the sale of any Products at any time. Sperry Marine shall remain liable for the warranty of such Products under Clause 9 for the duration of the Original Warranty Period, but shall not be required to replace the discontinued Products with its successor versions. Sperry Marine may also modify the design and specifications of any existing Products, but, subject to Subclause 9.10 herein, shall not be obliged to provide such modifications on Products previously purchased by Buyer. Sperry Marine reserves the right to determine, in its absolute discretion, whether such modifications constitute a Product update or an upgrade.
9.12    The foregoing provisions set forth Sperry Marine’s sole liability for breach of warranty in respect of, or for any defect or nonconformity in, any Products or Service Work, and Sperry Marine shall have no obligation or liability in respect of any defect or nonconformity discovered after the lapse of the warranty period as specified above.  All other warranties, whether express or implied, in contract, statute or at law, are, to the extent permissible by law, herewith expressly excluded.
9.13    In the event of an unjustified warranty claim, including but not limited to instances where no fault is found or where the fault is not covered by the warranty set out in Clause 9, Buyer shall compensate Sperry Marine for any cost that it has incurred in responding to the claim.

10.    LIABILITY

10.1    Nothing in this Agreement will exclude or limit the liability of either party to the other: (a) for death or personal injury resulting from the negligence of that party or any of its respective directors, officers, employees, contractors or agents; (b) in respect of fraud or wilful misconduct by that party or any of its respective directors, officers, employees, contractors or agents; (c) for breach of the provisions set out in Clauses 13; or (d) for any other liability that cannot be excluded or limited by applicable law.
10.2    Notwithstanding any provisions to the contrary in this Agreement, and to the maximum extent permitted by law, Sperry Marine will not be liable for any of the following types of loss or damage arising under or in relation to this Agreement (whether arising from breach of contract, negligence, misrepresentation, tort, breach of statutory duty or otherwise): (a) any loss of profits, loss of capital of its use thereof, loss of vessel, loss of cargo, loss of product, business, contracts, anticipated savings, goodwill, or revenue, any wasted expenditure, or any loss or corruption of data; or (b) any indirect or consequential loss or damage whatsoever, even if Sperry Marine was aware of the possibility that such loss or damage might be incurred.
10.3    Subject to Subclause 10.1, Sperry Marine’s cumulative liability under this Agreement will be limited to the prices for the Products and Service Work charged thereunder.
10.4    Sperry Marine shall not be liable for damages that may occur as a result of inappropriate or inadequate sites, facilities, installations or transport routes provided by Buyer.

11.    INTELLECTUAL PROPERTY RIGHTS AND PATENTS

11.1    For the purpose of this Agreement, "Intellectual Property” means (a) patents, inventions, designs, copyright and related rights, database rights, trademarks, trade names (whether registered or unregistered), and rights to apply for registration; (b) proprietary rights in domain names; (c) knowhow and confidential information; (d) applications, extensions and renewals in relation to any of these rights; and (e) all other rights of a similar nature or having an equivalent effect anywhere in the world which currently exist or are recognised in the future. Sperry Marine shall grant to the Buyer a royalty-free, perpetual, transferable and non-exclusive license to use the Products and/ or Service Work in accordance with this Agreement, subject to restrictions set forth in Clause 12 hereunder. Such rights are granted on the condition that the Buyer shall not reverse engineer any Products, Service Work or any Intellectual Property embodied therein, or otherwise adapt them for other uses. The validity of the license shall cease at such time when the Buyer is no longer in possession of the Products and/ or no longer utilizes the Service Works.
11.2    All rights in or to Intellectual Property in the Products or which may arise directly or indirectly as a result of performance of the Service Work by Sperry Marine under this Agreement will be vested in Sperry Marine absolutely.
11.3    Any of Sperry Marine’s special or general purpose tools, techniques, documentation, test materials, prototypes, software, moulds, dies, or other items or materials used in the design, test, manufacture, training, installation, commissioning and other performance of this Agreement will remain in the sole ownership of Sperry Marine at all times and are not included in any offer.
11.4    In the event that Buyer submits a claim alleging violation of third party intellectual property by the Products or any component thereof, and provided that the validity of such claim or allegation has been proved to the satisfaction of Sperry Marine or in a court of final instance that the use of these Products is prohibited, Sperry Marine shall at its sole discretion and at expense: (a) grant Buyer the right to continue to use the Products by procuring applicable licenses, or (b) replace or change the Products in such a way that violation ceases to exist, or where (a) or (b) are not possible, refund to the Buyer the purchase price for the Products upon return of the Products per Subclause 9.8. The aforesaid shall be the sole and exclusive liability of Sperry Marine in relation to any actual or alleged violation of Intellectual Property.
11.5    Sperry Marine accepts no liability in respect of claims for infringement or alleged infringement of third party’s Intellectual Property arising from the execution of the Agreement in accordance with Buyer’s designs, plans or specifications and Buyer will indemnify Sperry Marine against all losses, damages, expenses or other liability arising from such claims.
11.6    Sperry Marine shall not have any obligations towards Buyer with respect to any violation of Intellectual Property or a claim related to it, which is the result of:  (a) change or expansion of the Products according to special designs or specifications provided by or on behalf of Buyer; or (b) the use of the Products in combination with appliances or equipment which have not been made by Sperry Marine; or (c) the use of the Products in a manner for which they have neither been designed nor intended; or (d) violation of any Intellectual Property in which Buyer or its subsidiary or branch office have any direct or indirect interest on account of a licence or otherwise, or (e) non receipt of payment by Sperry Marine, or (f) Buyer is aware of pre-existing Intellectual Property claims, or (g) Buyer failing to notify Sperry Marine of the claim or cooperate with Sperry Marine, or (h) Buyer continuing with infringing activities. 

12.    EXPORT CONTROL COMPLIANCE

12.1    Products may contain parts of multiple origin, including the United States of America (“USA”).  Buyer shall comply with all applicable export laws, rules and regulations including but not limited to those of the United Kingdom (“UK”), Germany, the European Community and the USA and will not export or re-export the Products in violation of any such laws, rules or regulations.  Buyer warrants that all reasonable and appropriate steps will be taken to ensure that any other person or entity purchasing or otherwise acquiring the Products from Buyer will not export or re-export in violation of the aforementioned laws, rules and regulations.
12.2    If an export licence is required for the performance of any Sperry Marine’s obligation, including but not limited to supply of Products, Service Work or warranty repairs in accordance with Clause 9, and such export licence is not granted or having been granted is revoked, Sperry Marine shall have no further obligations to Buyer under Buyer’s order and this Agreement shall automatically terminate.  In case of a cancellation due to this reason Buyer shall have no right to repayment of costs already incurred by it or for any other compensation howsoever arising, but Sperry Marine shall be entitled to all payments for Products or Service Work already performed under this Agreement.
12.3    Where an order has been accepted and Sperry Marine subsequently establishes that, in its reasonable opinion, the order is in conflict with Subclause 12.1, this order will be immediately cancelled by Sperry Marine.  In this case, Buyer shall have no right to repayment of costs already incurred by it or for any other compensation howsoever arising.
12.4    Buyer agrees that the Products and/or Service Work provided under this Agreement will not be used for any purpose connected with chemical, biological or nuclear weapons, or missiles capable of delivering such weapons; that they will not be sold or transferred if it is known or suspected that they are intended or likely to be used for such purposes; that the Products will not be re-exported or otherwise sold or transferred to a destination subject to a United Nations, European Union (“EU”), Organization for Security and Co-operation in Europe ("OSCE"), UK or USA embargo where that act would be in breach of the terms of that embargo; and that the Products, or any replica of them, will not be used in any nuclear explosive activity or unsafeguarded nuclear fuel cycle.
12.5    Unless otherwise Deviated by Sperry Marine in advance, Buyer also agrees that the Products and/or Service Work provided under this Agreement will not be re-exported or otherwise sold or transferred to a military end-use and/or end-user; or to individuals or entities that are subject to USA, UK, and/or EU trade restrictions, including, but not limited to, the US Department of Commerce’s Denied Party List and Entity List, the US Department of Treasury’s Specially Designated Nationals list and Sectorial Sanctions Identifications list, and Annex IV to Council Regulation (EU) No 960/2014.
12.6    Buyer warrants that it is not owned or controlled by, nor does it own or control, a person or entity that is subject to economic or trade sanctions imposed by the USA Government, which restrict USA companies from engaging in financial transactions with such entity for any reason, including but not limited to being resident or headquartered in or a governmental entity of a country subject to such sanctions (currently Cuba, Iran, Syria and Sudan) or a Designated National under the USA Cuban Assets Control Regulations.
12.7    Buyer further warrants that it is neither resident in nor headquartered in a country to which the export or re-export of goods or technologies that are subject to the USA Export Administration Regulations are generally embargoed (currently North Korea) nor is it owned or controlled by a governmental entity of such country. Buyer agrees that it will notify Sperry Marine if these circumstances change. For purpose of this provision, references to "ownership" are defined to mean any ownership interest, direct or indirect, of 50 percent or more, and references to "control" are defined to mean the right or ability to, directly or indirectly, dictate the decisions, actions, and/or policies of an entity or its management by any means. If at any time during the term of this Agreement, Buyer breaches this article, then, in addition to any other rights Sperry Marine may have under this Agreement, Sperry Marine may immediately terminate this Agreement.

13.    PROHIBITED ACTIVITIES

13.1 Anti-Corruption Compliance: Buyer represents, warrants and covenants that:
13.1.1     It has not and will not, directly or indirectly, pay, promise, offer, or authorize the payment of any money or anything of value to:
(a)     an officer, employee, agent or representative of any government, including any department, agency, or instrumentality thereof or any person acting in an official capacity thereof;
(b)     a candidate for political office, any political party or any official of a political party; or
(c)     any other person or entity
while knowing or having reason to know that all or any portion of such payment or thing of value will be offered, given or promised, directly or indirectly, to any person or entity for the purpose of assisting Sperry Marine in obtaining or retaining business (including this Agreement), or an improper business advantage. Without limiting the generality of the foregoing, Buyer shall not directly or indirectly, pay, promise, offer, or authorize the payment of any facilitating payment intended to expedite or secure performance of a routine governmental action, such as, customs clearance on behalf of Sperry Marine.
13.1.2     No gratuities such as, but not limited to, gifts, travel expenses, business courtesies, hospitalities or entertainment of any nature has been or will be accepted or made in connection with this Agreement where the intent was, or is, to unlawfully influence the recipient of the gratuity. Buyer also represents that any gratuities offered or provided shall meet the following conditions:
(a)     be permitted under the UK Bribery Act and US Foreign Corrupt Practices Act and the laws and regulations of the country in which this Agreement will be performed;
(b)    be consistent with applicable social and ethical standards and accepted business practices;
(c)     be of such limited value as not to be deemed a bribe, payoff or any other form of improper inducement or payment; and
(d)     be of such nature that its disclosure will not cause embarrassment for Sperry Marine.
13.1.3     Breach of any of the foregoing provisions of Clauses 13.1.1 and 13.1.2 by Buyer shall be considered an irreparable material breach of this Agreement and shall entitle Sperry Marine to terminate this Agreement immediately without compensation to Buyer.
13.2     Denied Parties: Buyer warrants that it is not owned or controlled by, nor does it own or control, a person or entity that is on the list of Specially Designated Nationals and Blocked Persons maintained by the Office of Foreign Assets Control of the USA Department of the Treasury or any list of known or suspected terrorists, terrorist organizations or other prohibited persons published by any jurisdiction in which Buyer is doing business.
13.3     Prohibited Activity: Unless specifically authorised in writing by Sperry Marine, Buyer shall not engage in any of the following activities on behalf of Sperry Marine under this Agreement: acting as an agent of Sperry Marine; marketing or sales promotion; lobbying; freight forwarding; consulting services; performing offset (industrial participation) consulting or brokering services; acting as a distributor or reseller; or activity as a joint venture party.
13.4     Prohibited Contact: Unless specifically authorised in writing by Sperry Marine, Buyer shall not contact, either directly or indirectly, public officials of any country other than the USA, UK, Canada, Australia, Germany, France, or Italy in furtherance of its performance on behalf of Sperry Marine under this Agreement.
13.5     Notification of Changes: If Buyer provided anti-corruption compliance due diligence information (e.g., related to its ownership and personnel, subsidiaries and third parties, the due diligence questionnaire, and related certifications) to Sperry Marine or through Sperry Marine’s Global Trust website, Buyer shall provide Sperry Marine with prompt notification and details of any changes to information contained in such due diligence materials, and agrees to promptly cooperate with Sperry Marine and provide additional information reasonably requested in relation to such changes. In the event of a material change to information contained in the due diligence material supplied to Sperry Marine, Sperry Marine reserves the right to suspend performance under this Agreement by providing written notice to Buyer in order for Sperry Marine to conduct additional anti-corruption due diligence upon such changed circumstances.

14.    GENERAL CONDITIONS

14.1    Force Majeure:  Sperry Marine will not be liable for any failure to perform its obligations (excluding payment obligations) or delay in performance of the same under this Agreement where such failure or delay is due to any cause beyond Sperry Marine’s control (a “Force Majeure Event”).  In the event that a Force Majeure Event endures for more than sixty (60) days, the parties will meet and review in good faith, the desirability of and conditions for continuation of this Agreement and any failure to resolve the same will entitle Sperry Marine to terminate Buyer’s order (in whole or in part) without further liability to Buyer. The parties expressly agree that Force Majeure Event shall include, but is not limited to; government actions, omissions or delay; fire; strike; war; civil commotion; factory closure due to outbreak of communicable diseases; earthquake; and other Acts of God.
14.2    Assignment:  This Agreement may not be assigned in whole or in part by either party without the prior written consent of the other except as part of a merger, consolidation or re-organisation or voluntary sale or transfer of all or substantially all of the relevant party’s assets where the merged, consolidated or re-organised corporation or entity, or the transferee of such sale or transfer, has the authority and power to effectively perform that party’s obligations under this Agreement.
14.3    Notices:  Any notice, consent, permission or other communication required or permitted to be given by either party under this Agreement shall be:  (a) in writing; (b) in English; (c) and signed by or on behalf of the sender.  Notices must be delivered by at least one of the following delivery methods:  (a) hand or recorded delivery post (or any equivalent postal service) to the address specified by one party to the other party; or (b) e-mail.  For notice delivered by e-mail, the e-mail addresses will be those set out in the order and/or order acknowledgement, as may be formally updated in writing from time to time.  E-mail will be deemed received at the time and date of transmission shown on the saved sent copy.
14.4    No Waiver:  The failure by Sperry Marine to exercise, or its delay in exercising, a right, power or remedy provided by this Agreement or by law will not constitute a waiver by Sperry Marine of that right, power or remedy. If Sperry Marine waives a breach of any provision of this Agreement this will not operate as a waiver of a subsequent breach of that provision, or as a waiver of a breach of any other provision.
14.5    Severability:  If any provision, or part of a provision, of this Agreement, is found by any court or authority of competent jurisdiction to be illegal, invalid or unenforceable, that provision or part-provision will be deemed not to form part of the Agreement, and the legality, validity or enforceability of the remainder of the provisions of this Agreement will not be affected, unless otherwise required by operation of applicable law. The parties will use all reasonable endeavours to agree within a reasonable time upon any lawful and reasonable variations to this Agreement which may be necessary in order to achieve, to the greatest extent possible, the same commercial effect as would have been achieved by the provision, or part-provision, in question.
14.6    Dispute Resolution:  Should any question, dispute or difference whatsoever arise between the parties in relation to or in connection with this Agreement:  (a) Buyer or Sperry Marine may give notice to the other in writing of the existence of such a question, dispute or difference and nominated representatives of both parties will discuss within fourteen (14) days of such notice to attempt to reach a solution; (b) if the parties are unable to resolve any dispute within fourteen (14) days of its referral under (a) above, then the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution’s (CEDR’s) Model Mediation Procedure; (c) if no mutually acceptable solution is found pursuant to (b) above, then the matter will be finally settled in accordance with the Arbitration Rules of the International Chamber of Commerce by three (3) arbitrators, which Rules are deemed to be incorporated by reference into this Subclause.  Arbitration will take place in London, England and the language to be used in the proceedings shall be English; and (d) the prevailing party in any arbitration or legal proceeding brought by one party against the other party and arising out of or in connection with this Agreement will be entitled to recover its legal expenses, including arbitration costs, court costs and reasonable lawyers and experts fees.
14.7    Governing Law:  This Agreement (and any part thereof) and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) will be governed by the laws of England and Wales. Subject to Subclause 14.6, the courts of England and Wales will have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement (including any non-contractual disputes or claims). The UN Convention for International Sale of Goods shall not apply.
14.8    Offset:  The total value of this Agreement may be applied as offset credit by Sperry Marine as it sees fit in support of any present or future offset obligations. Sperry Marine will have the right to assign, sell, or otherwise transfer such credits to third parties of its choice to be used in meeting the offset obligations of said third parties.
14.9    Confidentiality:  A party (the “Receiving Party”) will keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (the “Disclosing Party”), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party will restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under this Agreement, and will ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party.
14.10    Data Protection:  Sperry Marine shall, at its own cost, comply with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 (collectively “GDPR Regulations”) and shall only process, use or disclose Personal Data (as defined within the GDPR Regulations), (a) strictly for the purposes of fulfilling its obligations for which the Personal Data is provided; (b) with Buyer’s prior written consent; or (c) when required by law or an order of court, but shall notify Buyer as soon as practicable before complying with such law or order of court.  Buyer agrees that Sperry Marine may subcontract the aforesaid Personal Data processing operations.  Where Sperry Marine engages another party for such purposes, it shall ensure that such party has entered into a written agreement that imposes the same data protection obligations as set out in this Subclause.
14.11    Entire Agreement:  This Agreement represents the entire agreement between the parties with respect to the subject matter hereof and will apply to this Agreement to the exclusion of any other terms or conditions purported to apply by any other document.
14.12    Independent Contractors:  Nothing in this Agreement will (except as expressly provided) be deemed to constitute a partnership, or create a relationship of principal and agent between the parties for any purpose.
14.13    Third Parties:  This Agreement is enforceable by the original parties only and any other persons will have no rights whatever either under this Agreement, Contracts (Rights of Third Parties) Act 1999 or otherwise to enforce any term of this Agreement.  The term "original parties" will include Sperry Marine’s parent company and any associated subsidiaries within the Northrop Grumman group.
14.14    Amendments:  No alterations or amendments to this Agreement will be effective unless contained in a written document signed by the authorised representatives of each of the parties.
14.15    Waste Electrical and Electronic Equipment:  Where Buyer is based in the EU or UK, Buyer confirms that they assume responsibility for the correct disposal or onward sale of the Products at the end of its service life with Buyer in accordance with the EU WEEE (Waste Electrical and Electronic Equipment) Directive (2012/19/EC) or such regulations or directives of analogous or similar effect in the relevant territory(ies).
14.16    Compliance with Tax Laws:  Buyer shall specifically ensure that it complies with all laws, in any part of the world, in relation to the registration for or payment of any taxes which might be due in connection with the performance of the Service Work or supply of any Products, under this Agreement.  Without limiting the foregoing, Buyer shall:  (a) not, directly or indirectly, knowingly participate, be concerned in or take steps with a view to, the fraudulent evasion of tax by another person; (b) provide prompt notification to Sperry Marine of any tax offence related to the Service Work or any attempt to evade the proper payment of tax in relation the Service Work; and (c) include the substance of this Subclause in all subcontracts or other agreements with its agents, representatives or subcontractors performing any Service Work and be responsible for the observance and performance by such agents, representatives or subcontractors of this Subclause.  For purposes of this Subclause, the terms “tax” or “taxes” includes income tax, property tax, payroll tax, sales tax, value added tax, and similar taxes.