"Buyer"– SCD Semi-Conductor Devices.
"Seller"– The entity to whom the order is addressed to, as
specified in the Purchase Order. For the sake of this Agreement, Seller shall
include its agencies, representatives, affiliated companies, subcontractors,
vendors and successors as well.
“Agreement"– These Terms and Conditions.
“Order”- The Purchase Order, including the Agreement and all
other attachments specified in it.
“Product(s)"– The goods specified in the Purchase Order which Seller
is required to supply/deliver under the Order, including all parts or units,
supply support items, support and test equipment and all derived and relevant
software or programs as detailed in the Technical Specification (“Spec”)
attached to the Purchase Order.
“Parties"– Buyer and Seller.
“Party"– Buyer or Seller as the case may be.
"Services"– The work which Seller is required to do under the
Order, including installation, instruction, erection, and the applicable support
for them, all as set out in the Purchase Order or in the Statement of Work (“SOW”)
attached to the Purchase Order.
Point"– Location of deliverance of Product to Buyer
or its forwarder as specifically agreed and detailed in the Purchase Order.
Price"– The total Price of Product and Services
to be paid to Seller by the Buyer under the Order, as set out in the Purchase
Date”– Date by which the order becomes
effective, upon its signature and Approval by both Parties.
Order is placed subject only to its terms and to Buyer’s reliance upon Seller’s
express declaration of it possessing the skills, capability, means, and
personnel to properly, timely and fully perform its obligations under the
proposal or any part thereof is not part of the Order and is not binding upon
the Parties unless agreed in writing by the Buyer in the Order.
signing of the Order by the Seller, or the commencement of performance of the
Order by the Seller or failure of the Seller to notify the Buyer in writing,
within 5 (five) days from the submission of the Order signed by Buyer of its
refusal to sign the Order, whichever occurs first, will constitute Seller’s
acceptance of the Order.
to the Agreement and/or any part of the Order thereof, shall be binding only if
signed by the Parties.
Provisions detailed in the Purchase Order shall have priority over all the
other provisions detailed in the Order.
- Inspection and Testing Prior to Delivery
shall be entitled to, under its sole consideration, to inspect and test the
Product, during the production phase and upon 7 (seven) days prior notice, at
Seller’s facility and/or its Subcontractor’s facility. Seller and its
subcontractors shall provide Buyer, free of charge, all the equipment and
facilities required for the inspection and tests. The inspection and tests
shall in no way relieve the Seller of its responsibilities under the Order. Any
product rejected during inspection and/or tests shall be replaced under
Seller’s sole expense.
under its sole discretion, has the right to carry out either 100% inspection or
sampling inspection. Any part of a Product which fails to pass a sampling
inspection may be subsequently 100% inspected by Buyer and Seller shall be
charged for all such inspection costs. Rejected products shall be replaced with
furtherance of such visits, the Seller shall provide Buyer’s representatives,
with all reasonable information (written or oral) and assistance regarding the
Product and the manufacture thereof, and shall make available to such
representatives, reasonable telephone, facsimile and secretarial services.
Product will be subject to final inspection and approval by Buyer after
delivery to Buyer as set forth in article 7 hereunder.
- Quality Control
Seller shall maintain, at its own sole risk and expense, Product quality
control system that meets the Order’s requirements or in the absence of
specified requirements, shall meet the highest relevant industry standards
known during the performance of the Order, including but not limited to, ISO,
FDA, CE and TUV.
Seller shall issue, along with each delivered Product, a Certificate of
Conformance signed by an authorized representative of the Seller’s quality control
department or by an officer of the Seller and attesting that each delivered
Product is in full compliance with the requirements of the Order. A serviceable
tag will be attached to each and every Product.
- Packing and Marking of the Products
shall pack and preserve the delivered Products in the best commercial manner
normally used for shipment of the same kind of Product by sea or by air, or as
detailed in the Purchase Order, whichever shall be applicable, so as to protect
them from the relevant damages and deterioration during transit and/or storage.
package must include its individual packing sheet. One copy of the packing list
must be attached to the outside of the package in a re-sealable plastic
envelope and an additional copy should be placed inside the same package. Each
packing sheet shall contain:
Order number, item number, quantity part number/size, description of the
Product, appropriate customs forms; and
test reports, certificate of conformity, acceptance test certificate and
serviceable tag; and
copy of the relevant invoice;
1 or CO, as applicable;
other applicable documentation as set forth in the Purchase Order.
Failure to comply with the above will delay
hereby acknowledges that the cost of the packaging and marking of the Product,
including the necessary labor, is included in the Order Price.
shall deliver the Product to the Delivery Point provided that each delivered
Product has duly passed all the necessary tests.
shall be carried out at the place and under the terms specified in the Purchase
Order and in accordance with the rules of Incoterms 2010 edition. In the event
of any contradiction between the Order and the Incoterms the terms and conditions
of the Order shall apply
recognizes that time is of the essence and warrants that the Product shall be
delivered in accordance with the quantities and schedules specified in the
- If a
Force Majeure event as defined in article 26 (which must be proven to Buyer’s
satisfaction) results in a delay of any delivery, the provisions of article
26.4 shall apply.
shall inform Buyer in writing, within 7 (seven) days of any event likely to
entail any kind of delay in the delivery of any Product, documentation or
shall have the right, in addition to any other rights and remedies which Buyer
may have under the law and/or the Order, to deduct from the Order price or to
collect from the Seller, as damages and not as penalty, a sum equal to 2% (two
percent) of the Order price of all the units of the Product not delivered on
the agreed upon delivery date specified in the Purchase Order for every week of
delay, or any part thereof up to a cap of 10% (ten percent) of the Order price.
This right shall be enforceable by the sole fact of delay without any previous
notification to the Seller or other formalities or recourse to judicial
incidence of delay in supply or performance under the Purchase Order shall be
treated as a separate delay with compliance to article 6.6 here above.
any Product, Documentation or Services is properly rejected by the Buyer, the
Seller shall be deemed to have failed to deliver it.
to the Product shall pass in proportion to payments made.
specifically provided otherwise in the Purchase Order, risk of loss of, or
damage to the Product shall remain with Seller until passage to Buyer upon
the delivered Products shall be implicitly free and clear of any and all liens,
encumbrances or any other claims of any nature whatsoever.
inspections at source conducted by any Party shall not derogate from the right
of Buyer to carry out, at its premises, a final inspection.
has the right to perform an Acceptance Test Procedure (hereinafter: “ATP”)
and to inspect the delivered Products within 30 (thirty) days after their
has the right to reject any delivered products which are found defective in
design, development, material or workmanship or otherwise not in full
conformity with the requirements of the Purchase Order, the SOW, the Spec
and/or any other applicable document signed by the Parties in connection with
the Order. Other delivered products will be deemed accepted.
case of rejection, Buyer shall have the right either to deduct from the Order
price the price of the rejected Products or to ask the Seller to replace the
defective Products with Products which meet the order’s requirements. If Buyer
exercises the second option, Seller shall bear all costs whatsoever associated
with the replacement, including any costs related to liquidated damages due to
delay in delivery.
the event that buyer returns rejected Products to the Seller, the Seller shall
within 5 (five) working days following the notification of Buyer, provide Buyer
with a letter for customs purposes acknowledging that such Products are being
returned for non-acceptance.
warrants that for a period of (i) 18 (eighteen) months commencing from the
acceptance of the product as specified in article 7 or, (ii) 12 (twelve) months
following first use of the Product, whichever is later, and for a period of 7
(seven) years beginning from the date of arrival at the Delivery Point with
respect to latent defects (hereinafter: “The Warranty Period”) or as
otherwise specified in the Purchase Order, the delivered and accepted Product
shall be free from defects in material, workmanship and design, shall meet the
specifications and shall be fit for their intended use.
notice of any defect, Seller shall, within a maximum period of 2 (two) weeks
starting from the date of submission of notice of defect and ending when Buyer
receives and accepts at its facility the modified, replaced or repaired
Product, modify, replace or repair at Buyer’s facility or at Seller’s facility
the defective Product, all according to the discretion of Buyer. For the sake
of clarity, said 2 (two) weeks period (hereinafter: “Turn Around Time”)
shall include the transportation time of the defective Product from Buyer to
Seller and the return time from Seller to Buyer or the travel time of Seller’s
personnel to the facility of the Buyer, if the repair is carried out at Buyer’s
facility. Seller shall bear all expenses whatsoever concerning the fulfillment
of these warranty provisions and shall indemnify Buyer for all costs and
damages incurred by Buyer due to the defect.
Warranty Period shall automatically be extended for a period equal to the
period commencing with the date of notice of a defect and ending with the
acceptance by Buyer at its facility of the repaired/modified/replaced Product.
In no event shall the remaining Warranty Period be less than the period stated
in Article 8.1
the event that Seller fails to successfully complete a warranty repair within
the Turn Around Time, for reasons not attributable directly to Buyer, then, in
addition to any other rights or remedies Buyer may have under this Agreement
and/or applicable law, Seller shall pay to Buyer, as agreed and liquidated
damages for such delay 2% (two percent) of the Order Price for the applicable
Deliverable Product for each full week of such delay beyond the Turn Around
supplied by Seller shall be complete, accurate, up to date, free from errors
and/or defects and/or omissions and shall enable Buyer to successfully
integrate and/or operate and/or maintain the Product and any unit thereof. Upon
notice of any error or defect in the documentation, the Seller shall within 10
(ten) days from the date of submission of notice, provide Buyer with proper
documentation. In the event that the documentation incorporates information
supplied by a third Party, said information shall be supplied in the original
warranties detailed above shall inure to the benefit of Buyer’s customer and/or
the end user of the Product.
shall repair, replace or otherwise remedy defects in the Product (hereinafter:
“Maintenance Services”) which will occur subsequent to the end of
the warranty period and until 10 (ten) years after the end of the warranty
period (hereinafter: “Support Period”). The maintenance Services will be
carried out in accordance with the provisions of article 8.3 except that Buyer
shall pay for said services. The Maintenance Services price shall not exceed
the Seller’s then current maintenance rates.
agrees that for the all Support Period, it shall retain the relevant technical
personnel, necessary to provide all sorts of support and assistance to Buyer
items - The seller will maintain
production, maintenance and support capabilities of the purchased product for
15 years at least from the last P.O issued. If the seller decides to close the
production line of the product and declare it as an obsolete product, he must
inform SCD 18 months in advance. The seller will provide an opportunity for a
last time buy to purchase a considerable amount of the product before it will
declare as an obsolete product. Furthermore, the seller undertakes to find
a suitable replacement for the obsolete product, and its cost will not exceed
the price of the original product. The seller shall notify and inform its
sub-contractors regarding these provisions, in order to prevent a situation in
which a part of the main product manufactured by a sub-contractor, will become
an obsolete part and the production of the main product will be stopped as a
result. In the event that the seller will not update the buyer (SCD)
accordingly, the seller will indemnify the buyer for any damage and / or loss
of profits that may be caused by failure to notify in time.
the Support Period and bound to all terms of the Agreement, Seller undertakes
to supply Buyer with Spare Parts for the Deliverables (including all components
thereof) as Buyer may from time to time require, at reasonable and fair prices
and which in no event exceed the prices charged by Seller to its most-favored
customers purchasing the same or similar items in like or similar quantities.
may, at any time, by a written order, make changes to the Purchase Order
(hereinafter: “Change Order”). Seller shall promptly implement the
changes unless otherwise instructed in writing by Buyer. If Seller is of the
opinion that the Change Order requires a change in the terms of the Order, it
shall submit a change proposal and if Buyer finds it justified, will negotiate
with the Seller a change to the Order. Seller shall proceed with the Change
Order pending Order adjustments. Dispute will be resolved in accordance with
the provisions of article 28 below and the Seller shall proceed to carry out
the Order including the changes unless otherwise instructed in writing by
Buyer. The doctrine of Constructive Change shall not apply to this Agreement.
has the right to request technical changes to the Product. Any such request
will be in writing, and shall explain the reasons for the changes and their
effect on the Order, including, but not limited to, fit, form, function,
reliability, maintainability performance and safety.
the written approval of Buyer, Seller shall have the right to implement the
changes. Approval of any change will be issued by Buyer to the Seller only
after two units of the modified Product will successfully pass tests carried
out by the Buyer at its facility. Said units will be delivered to Buyer free of
an agreed upon date, as from the acceptance of the modified Products, Seller
shall supply to Buyer under the Order all modified units of the Product.
changes taken into count shall be properly updated, signed and documented by
- Proprietary Rights
warrants that it has obtained or will obtain in due time obtain all proprietary
or intellectual rights, which may be required for the purpose of the Order and
that are delivered to Buyer by Seller, and that the price of these rights,
unless otherwise agreed by the Parties, is incorporated in the Order Price.
the product or any part thereof, infringes or allegedly infringes any copy
rights, patent rights, trade secrets, trademark or any other intellectual or
proprietary rights (hereinafter: “Proprietary Rights”), Seller
shall defend and indemnify Buyer and/or its customers and/or the end user and
hold Buyer and/or its customers and/or the end user harmless, from any loss,
expense, damage, claim, action or liability (including attorney’s fees) by (i)
defending such claim, suit or proceedings to the extent required by Buyer, and
(ii) payment of any judgment therein or settlement thereof and all of Buyer’s
and/or its customers and/or end user losses, liabilities, expenses, and damages
as a result of such claim, suit or proceedings.
as result of a claim, suit or proceedings, Buyer and/or its customers and/or
the end user are prevented from using, possessing and/or selling the Product or
a system which includes the Product or any part thereof, the Seller shall, as
directed by Buyer, in addition to Seller’s obligations set forth in article
10.1 above and at Seller’s own expense either:
for Buyer and its customers and/or end user the right to continue using,
possessing, maintaining and selling the Product or part thereof; or
the Product with fully equivalent, non-infringing Product; or
the Product or part thereof so that the Product no longer infringes third Party
rights while meeting the specifications and thereafter shall deliver to Buyer
the modified Product; or
to Buyer all sums paid to Seller under the Purchase Order and indemnify Buyer
for all its damages and losses.
Provisions of this article shall survive the termination or expiration of the
reserves the right to terminate the Order or any part thereof, (i) promptly
after the Seller fails to deliver on time and/or to repair/replace a defective
Product within the Turn Around Time; and/or (ii) if Seller breaches any of the
other terms of the Order and/or Seller fails to make progress so as to endanger
the performance of the Order in accordance with its terms and Seller does not
cure the default within 15 (fifteen) days from the receipt of written notice
from Buyer; or (iii) in the event of the occurrence of any of the following:
insolvency of the Seller, filling of petition to have the Seller declared
bankrupt, provided it is not canceled within 10 (ten) days from the date of
such filing, or the execution by Seller of any assignment for the benefit of
creditors. Buyer shall have no obligation to Seller with respect to cancelled
portion of the Order.
liability shall be limited to the payment for the delivered and accepted
portion of the Order. In the event that advance payments have been made by
Buyer, all such payments shall be returned with interest of 0.5% per month or
any part thereof calculated from the payments dates made by Buyer until the
refund date. If as a result of Seller’s default the Order is terminated in
whole or in part and Buyer decides to procure the Product or a similar Product
elsewhere, Seller shall be liable for any re-procurement charges which exceed
the amount which would have been due to the Seller if he had satisfactory
completed the Order. These remedies shall be in cumulative and in addition to
any other remedies available to Buyer in law and/or in equity.
provisions contained in this article are in addition to all rights and remedies
that Buyer has under the Order and/or under law.
may from time to time and for any reason, at its discretion, terminate the
Order in whole or in part. Seller shall act in accordance with Buyer’s notice
of termination. Seller shall be entitled subject to proper mitigation of costs
satisfactory to Buyer, to the following payments:
Order price for completed Products that are delivered to, accepted and retained
Order Price for Services completed and accepted.
reasonable direct costs incurred by Seller for work in process up to the time
and to the extent of termination, but not including costs caused by
termination. In return, title to Products and work in process for which Buyer
has agreed to pay for, shall vest in Buyer and Seller shall deliver to Buyer
all the Products or any part or unit thereof including work in process, in the
manner and to the extent requested by Buyer.
termination claim by Seller shall include:
cost allocation to that part of the Order which is not terminated; or
for any profit that would have been realized on the terminated part of the
payments detailed above are the sole and exclusive payments and remedies which
are due to the Seller in the case of Termination for Convenience.
no event shall the termination costs exceed the Order Price.
ANYTHING ELSE IN THE ORDER OR IN THIS AGREEMET OR IN ANY AGREEMENT, OR IN ANY
PURCHASE ORDER ISSUED PURSUANT HERETO, OR OTHERWISE, AND EXCEPT FOR BODILY
INJURY, NEITHER PARTY SHALL BE LIABLE OR OBLIGATED WITH RESPECT TO THE SUBJECT
MATTER OF THE ORDER OR UNDER ANY AGREEMENT, TRANSACTION, NEGLIGENCE, STRICT
LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR (I) ANY MATTER BEYOND ITS
REASONABLE CONTROL; (II) ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY,
PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION
LOST PROFITS, LOST REVENUES AND LOSS OF USE, OPPORTUNITY, MARKET POTENTIAL AND
GOODWILL), EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH COSTS OR
DAMAGES AND REGARDLESS OF THE LEGAL THEORY UNDERLYING ANY ASSERTION OF SUCH
NO EVENT SHALL BUYER’S LIABILITY REGARDLESS OF THE LEGAL THEORY UNDERLYING SUCH
CLAIMS, EXCEED THE TOTAL PRICE OF THE ORDER AS DETAILED IN THE PURCHASE ORDER.
addition to all obligations and duties applied to the Parties by the Order or
by any law, the Seller, or anyone on its behalf shall implicitly abide by
Buyer’s suppliers Code of Conduct (hereinafter: “SCD's suppliers Code of
Conduct”), as set out in Buyer’s Website.
shall commit to fully comply with the SCD's suppliers Code of Conduct and to
abstain from directly or indirectly offer and/or give and/or receive any
benefit or anything of value in order to change or influence in an improper
manner, directly and/or indirectly, any decision of anyone in connection with
the Order or any Order placed consequent thereto.
shall neither directly or indirectly solicit or participate up to any extent in
any form of bribery, corruption, criminal behavior, infringement of labor laws
or any other applicable law, ordinance or regulation, improper solicitation or
unethical business behavior while the Order is valid.
shall notify Buyer immediately after revilement of any infringement of the
provisions of article 14 or the possibility of one.
is Seller’s obligation to obtain SCD's suppliers Code of Conduct and to inform
its relevant employees, Subcontractors and anyone on its behalf acting under
the Order of its provisions, and to enforce its full compliance.
to comply fully with the provisions of article 14 shall produce Buyer with the
possibility to terminate the Order for default according to article 11 as
may, at any time, by written order to Seller, require Seller to stop
immediately all or any part of the work called for by the Order for a period of
up to 90 (ninety) days after the Stop Work Order is submitted to Seller and for
any further period to which the Parties may agree. Any such Stop Work Order
shall be specifically identified as a Stop Work Order issued pursuant to this
clause. Upon receipt of a Stop Work Order, Seller shall forthwith comply with
its terms and take all reasonable steps to minimize the costs allocated to the
work covered by the Stop Work Order during the period of work stoppage. Within
a period of 90 (ninety) days after a Stop Work Order is submitted to the
Seller, or within any extension of that period to which the Parties have
agreed, Buyer shall either:
the Stop Work Order; or
the Order or a part thereof by reason of Seller’s default or for Buyer’s
convenience in accordance with the applicable provisions of this Agreement. If
a Stop Work Order issued by Buyer is canceled or the period of the Stop Work
Order or any extension thereof expires, Seller shall resume work.
consideration for the performance of all of the Seller’s obligations in
accordance with the terms of this Agreement, Buyer shall pay the Seller the
unit price of the Products as set forth in the Purchase Order.
warrants that the price of the Product as specified in the Purchase Order, do
not exceed Seller’s current selling price for the same or substantially similar
Products, while taking the relevant quantity under consideration.
Seller shall make every effort to reduce the costs of the Product on a
are not subject to any escalation and/or taxes.
Advance Payment to be paid to Seller under the Order shall only be paid after
Buyer received and approved an official irrevocable bank guarantee, the
formulation of which is approved in advance.
Terms of Payment are 90 (ninety) days End-of-Month from delivery of the Product
to SCD and/or after Buyer has received the applicable invoices, whichever is
later when both applicable, unless otherwise explicitly agreed upon in writing
by the Parties.
shall have the implicit right to set off, withhold and/or deduct all amounts
owing to it by virtue of this Agreement and/or the Order and/or any other
agreement with the Seller, from the amounts that the Seller is entitled to
under this Agreement.
in Data and Know How and Proprietary Information
to and all rights (including but not limited to Intellectual Property rights)
in all information, Know How and data that is delivered by Buyer to the Seller
shall be and remain vested in Buyer only (hereinafter: “Buyer Data”).
to and all rights (including but not limited to Intellectual Property rights)
in all information, Know How and data designed and/or developed and/or acquired
and/or generated in connection with the performance of this Agreement shall be
owned exclusively by Buyer (hereinafter: “Program Data”).
shall be entitled to use Buyer Data and the Program Data (collectively the “Data”)
for the purpose of performing the Order only and for no other purpose. The Data
shall be clearly marked as Buyer’s property and shall be separately segregated
from items owned by the Seller. The Seller shall maintain the Data in
confidence and secrecy and shall not disclose and/or transfer and/or reveal the
Data to any third party. Seller may make available the Data only to those of
its employees who have a “Need to Know Basis” in connection with the
performance of this Agreement.
the purpose of the Order, Data shall include but is not limited to: copyrights,
patents, trademarks, sketches, planning documents, software (including source code),
instructions and procedures relating to development, production, assembly,
quality control, maintenance, operation and production regardless of form (such
as magnetic media).
shall indemnify Buyer and hold Buyer harmless from any loss, expense, damage,
claim, action or liability (including attorney’s fees) produced due to Seller’s
infringement or misuse of Buyer Data or Program Data.
information proprietary to Seller and disclosed in the Products and information
furnished to Buyer or services performed shall be deemed to have been disclosed
as part of the consideration hereof and Buyer shall have the right to use same
for any purpose and for any reason as Buyer may deem necessary and/or fit as if
such information were Buyer Data.
provisions of this article shall survive the termination or expiration of the
Order or any part thereof.
- Materials and Insurance
Any material furnished by
Buyer to Seller other than on a charge basis will be deemed loaned to the
Seller. Seller agrees to fully compensate Buyer for such materials which are
not returned to Buyer either as originally loaned or as an integrated part of
the Product. Seller agrees to procure a policy or policies of insurance
satisfactory to Buyer, insuring all Buyer’s property while on Seller’s premises
against loss and/or damages and insuring the Product until its delivery.
Seller warrants that the
Product and any part thereof shall be new, i.e. the Product is not used,
reconditioned or assembled for no more than 12 (twelve) months prior to its
delivery, and operated solely for the purpose of the Order, and that the
Product is manufactured in a good workmanlike manner with proper design and
materials, and with compatibility to the specifications of the Buyer.
shall indemnify and hold harmless Buyer, its officers, employees, agents,
customers and invitees from and against all claims, judgments, liabilities,
losses and damages of every and/or any nature (including costs and
expenses incident thereto) caused by an act or omission of the Seller, its
officers, employees, agent invitees, vendors or anyone acting on its behalf,
directly or indirectly resulting from the performance of the order by the
Seller and/or its Subcontractors and/or anyone on its behalf.
shall not be liable in no event for any kind of damages, including inter alia,
for any loss of use or profit by Seller, unless such damage was caused due to
negligence of the Buyer.
- Taxes, Permits and Export
taxes – governmental, municipal or other taxes, levies and/or compulsory
payments will be paid by the Seller only.
- As a
material provision for the validity of the Order, Seller shall be responsible
to procure on his sole expense a valid Export License, if required, and Buyer
shall be responsible to procure on his sole expense a valid Import License, if
required. Seller shall provide Buyer with copies of declarations/forms
submitted for the Export License and of the Export License when granted and
shall inform Buyer within 7 (seven) days of obtaining, or denial to obtain, or
cancellation or any restrictions of any such license.
Buyer's obligations under the Order are conditioned upon Seller obtaining the
applicable, valid and unrestricted Export License for shipment of the Product
to Israel and/or End-User's country. If such licenses are not obtained within
60 (sixty) days after the Effective Date of Agreement, or are revoked prior to
delivery, Buyer has the right to terminate the Order and all payments under it,
if applicable, and shall be refunded within 30 (thirty) days together with
interest thereon at the maximum available legal rate from the date each such
payment was made until the date of its repayment in full.
obtaining the relevant export approval, Seller shall inform the Buyer of any
limitations or provisions that may affect Buyer’s use of the Product, or which
may affect Seller’s ability to comply with its obligations under the Order.
- Option to Purchase and/or to Change Delivery
Dates and Quantities
grants Buyer the option to purchase additional items of the Product and/or
Services under the quantities, prices and terms which are at least as good as
the current ones applicable to the Buyer, but in any case are reasonable and
fair and in no event exceed the terms and prices charged by Seller to its
most-favored customers purchasing the same or similar Products in same or
similar quantities and with a reasonable discount (hereinafter: “Option to
Option to Purchase shall be valid for a period of 24 (twenty-four) months from
shall have the right to exercise The Option to Purchase as a one indivisible
offer or divide it to purchase the applicable units under its consideration.
shall be entitled under its sole discretion to require Seller to delay
deliveries for a period of up to 3 (three) months from the original requested delivery
date per each order with no financial consequences, fines, indemnification or
interest of any kind. Such request shall be delivered to Seller in writing.
shall be entitled under its sole discretion to require Seller to increase or
decrease the quantity of each order in a volume of up to 30% (thirty percent)
of the original order's volume with no financial consequences, fines,
indemnification or interest of any kind. Such request shall be delivered to
Seller in writing.
Buyer shall be entitled
to assign any or all of its rights and obligations under the Order to any of
its subsidiaries or affiliates. However, neither this Agreement nor any duty,
right or interest set forth herein or in the Order may be delegated, assigned,
subcontracted or otherwise transferred in any manner by the Seller unless
otherwise approved in writing by Buyer at its sole discretion.
The failure of either
Party at any time to enforce any of the provisions of this Agreement or to
require performance by the other Party of any of the provisions hereof, shall
in no way be construed to be a waiver of such provisions or in any way affect
the validity of this Agreement or any part thereof, or the right of either
Party thereafter to enforce each and every such provisions.
Party shall be in default on account of the interruption of its performance
under this Agreement by extraordinary natural disturbances, acts of God, acts
of a government in its sovereign capacity, any civil commotion, riot,
insurrection or hostilities, or any other circumstances beyond the control of
the Parties which will operate to frustrate the Agreement, or that arise
without the fault of negligence of such Party and that result in delay of
performance hereunder. Any such delay shall be referred to herein as a “Force
Majeure” and shall entitle the delayed Party to a corresponding extension
of the schedule. The Party whose performance is delayed by such events shall
use its best efforts to notify the other Party within 3 (three) days after the
occurrence of such an event, and shall take all reasonable measures to mitigate
the effect of such delay.
Seller is prevented from or delayed in performing any of its obligations under
the Order, the event shall not be counted as a Force Majeure event if the event
was not beyond the reasonable expectation of the Parties and the Seller could
easily be expected to have avoided or overcome it or its effects.
respect to delays in performance of Seller’s subcontractors, such delays shall
be deemed excusable delays with respect to Seller only if such subcontractors'
performance is prevented by a cause set forth in article 27.1 above, and when
Seller could not have obtained the Product or Services from other sources in
sufficient time to prevent interruption of its performance of this Agreement.
- If a
Force Majeure results in the extending of any delivery date under this
Agreement by more than 60 (sixty) days, Buyer may terminate this Agreement in
whole or in part and the provisions of article 12 (“Termination for
Convenience”) shall apply except that Seller shall not be entitled to any
profit for such termination.
Without derogating from
any prior confidentiality obligation or non-disclosure agreement from any kind
which the Parties may have signed or agreed upon, throughout the term of the
Order and for a period of 5 (five) years following Acceptance of the last
Product, Seller agrees that the Order and the performance thereof shall be kept
confidential and shall be dealt with in accordance with Seller's usual
procedures relating to its proprietary information. Buyer's identity or any
other information concerning the Order shall not be disclosed without the prior
written consent of Buyer.
All disputes between the
Parties which cannot be settled by agreement between the Parties shall be
finally and exclusively settled by the courts of Haifa, Israel.
All notices and other
communications shall be given in writing by personal delivery, registered
airmail, Telecopier (fax), or cable, and shall be addressed to the respective
Party as follows, unless such address is changed by written notice to the other
Fax: (+)972-4-9902686 11
In the event that any
part of the Order or the Agreement is determined to be invalid or unenforceable
to any extent, such part, provision or condition shall be severed from the
remaining parts which shall continue to be valid and enforceable to the fullest
extent by law.
This Agreement and the
Order shall be governed by and construed in accordance with the laws of the
State of Israel.
The headings of the
articles of these Terms shall not be used to construe and/or interpret these
between the Parties, as well as all documentation, manuals, software listings
and other writings, in connection with this agreement shall be in the English