Terms and Conditions of Sale
Allient, Inc. Sales Terms & Conditions
These Terms and Conditions of Sale (“Terms”) are the only terms that govern the sales of goods (the “Goods”) or services (the “Services” and collectively with Goods the “Products”) by Allient Inc. or any of its subsidiaries (collectively “Allient”, and the specific Allient entity selling the Products the “Seller”) to the party identified in the order as the buyer (the “Buyer”) regardless of whether Buyer purchases the Products through the medium of written purchase orders, electronic orders via facsimile or EDI (collectively, “Order Documents”). The accompanying Seller acknowledgement (the “Acknowlegement”) and these Terms (collectively, this “Agreement”) comprise the entire agreement between the parties and supersede all prior or contemporaneous Buyer purchase orders, understandings, agreements, negotiations, representations and warranties, and communications, both written and oral. These Terms prevail over any of Buyer’s general terms and conditions of purchase regardless of whether or when Buyer has submitted its purchase order or such terms. Fulfillment of Buyer’s order does not constitute acceptance of any of Buyer’s terms and conditions and does not serve to modify or amend these Terms..
1. SPECIFICATIONS:The specifications applicable to the Products shall be Seller’s standard specifications for such Products or, in the case of items other than Seller’s standard Products, such specifications as are set forth in the Acknowledgement (unless otherwise agreed in writing by Seller and Buyer).
2. CHANGES: Seller reserves the right to make any changes in the Products which do not adversely affect (a) with respect to Goods, the form, fit or function of such Goods and (b) with respect to services, the nature or scope of such services, in each case without the prior approval of or notification to Buyer. Buyer may request changes in process, design or method of shipment of the Products only if Buyer agrees to accept such changes in delivery times or price which are, in Seller’s judgment, reasonably necessitated thereby. Should Buyer request changes, which are, in Seller’s judgment, beyond the ability of Seller to produce or deliver within the schedule or for the price proposed by Buyer, Allient shall have the right, in its sole discretion and without liability, to reject or cancel such change or Buyer’s order. If production on the order has commenced or expenses have been incurred or commitments made as a consequence thereof, Buyer shall pay all reasonable charges with respect to cancellation of such order based Seller’s costs, commitments and expected profit.
3. SHIPMENT: The method of packing and shipment of all Goods sold hereunder shall be at the discretion of Seller, unless special written instructions have been received by and agreed to in writing by Seller. Delivery of Goods are EXW (INCOTERMS 2020) Seller’s facility as identified in the Acknowledgement (the “Delivery Point”). Seller may, in its sole discretion, without liability or penalty, make partial shipments of Goods to Buyer. Title and risk of loss pass to Buyer upon delivery of any Goods to the Delivery Point.
4. DELIVERY; INSPECTION: (a) The delivery date is approximate only. Seller will make reasonable efforts to deliver Goods and provide Services in accordance therewith but shall have no liability for failure to do so. Pro rata payments will be due from Buyer as deliveries of Goods are made and Services are performed by Seller. If a delivery is delayed as a result of any action or inaction of Buyer, Seller may invoice Buyer for the Products as of the scheduled delivery date and may charge Buyer for warehousing and other expenses incurred because of the delay. Additionally, if Seller’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants or employees, Seller shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
(b) Buyer shall inspect the Products within 10 days of receipt (“Inspection Period”). Buyer will be deemed to have accepted the Products unless it notifies Seller in writing of any Nonconforming Products (as defined below) during the Inspection Period and furnishes such written evidence or other documentation as reasonably required by Seller. “Nonconforming Products” means only the following: (i) product shipped, or Service performed, is different than identified in Buyer’s purchase order (as confirmed by Seller’s Acknowledgement); or (ii) a product’s label or packaging incorrectly identifies its contents.
(c) If Buyer timely notifies Seller of any Nonconforming Products, Seller shall, in its sole discretion, (i) replace such Nonconforming Products with conforming Products, or (ii) credit or refund the purchase price for such Nonconforming Products. For any Nonconforming Products that are Goods, Buyer shall ship, at its expense and risk of loss, the Nonconforming Products to Seller ‘s facility. If Seller exercises its option to replace Nonconforming Products, Seller shall, after receiving Buyer’s shipment of Nonconforming Products, ship to Buyer, at Buyer’s expense and risk of loss, the replaced Products.
(d) Buyer acknowledges and agrees that the remedies set forth in Section 4(b)-(c) are Buyer’s sole and exclusive remedies for the delivery of Nonconforming Products.
5. EXCUSABLE DELAY: Seller shall not be liable for delays or defaults in delivery due to any circumstances beyond its control, including acts of God or public enemies, war or military activity, riots, insurrection or sabotage, acts or threats of terrorism, fires, floods, explosions or other catastrophes, unusually severe weather, accidents, pandemics, epidemics or quarantine restrictions, acts of local, state or national governments or public agencies, labor disputes or shortages, energy or material shortages, utility or communication failures or delays of a supplier of Allient. In the event of any such delay, the date for delivery shall be deferred for a period equal to the time lost by reason of the delay. If Allient’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants or employees, Allient shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay
6. EXPORT/IMPORT:The Product(s) may be subject United States imposed export and/or import laws. Seller will, if requested in writing by Buyer, provide Seller’s determination of the United States export classification of a Product. Notwithstanding the foregoing, Buyer is solely responsible for ensuring compliance with any and all applicable United States export and import laws.
Buyer shall promptly notify Seller of any United States export authorization(s) required and must provide a copy of any approved export authorizations obtained by the Buyer to Seller prior to the first shipment. If the applicable U.S. export authorization is a license exception or exemption, the Buyer, in writing, must provide Seller with an internally certified letter identifying the applicable license exception or exemption prior to the first shipment.
Buyer acknowledges and agrees that the Products shall not be exported, re-sold, reexported, re-transferred, or otherwise sent to any other entity without first obtaining
approval by Seller in writing and, if applicable per United States export law, the U.S. Government. Buyer represents and warrants that neither it nor any of their customers or their users is (a) located in a jurisdiction that is the subject to any comprehensive sanctions program (b) otherwise ineligible to receive exports pursuant to any applicable export control law.
Further to acceptance, the Buyer further certifies it understands its obligation to protect EAR or ITAR controlled Goods, Services and data as necessary from unauthorized disclosure or access to foreign person employees or visitors, the Buyer understands its obligation to determine whether it will require the use of third party subcontractors to access any technical data, Goods and Services. If required, the Buyer is responsible for identifying and licensing any activity that requires export authorization from the Department of Commerce, Bureau of Industry and Security or the Department of State, Directorate of Defense Trade Controls.
7. PRICES: Seller reserves the right to increase its prices (a) for Products scheduled for shipment more than six (6) months from the date of receipt of Buyer’s order by Seller, and (b) in the event of any increase in the Seller’s cost to provide the Products after the date of the Acknowledgement. Such price increase shall be effective upon at least thirty (30) days prior written notice to Buyer. Buyer shall have ten (10) days from the date of such notice to cancel its order, without charge, with respect to any Products not scheduled for shipment prior to the effective date of the price increase. All costs of shipping the Products to Buyer, including without limitation, freight, insurance (for either Buyer’s or Seller’s benefit) and special packing or handling, shall be in addition to the stated prices and shall be paid by Buyer. All invoices issued by Seller are due and payable within thirty (30) days following the date of the invoice. Payment of all sums invoiced to Buyer shall be in U.S. Dollars, except where otherwise expressly agreed to by Seller in writing. Seller shall be entitled to interest on all unpaid sums from the due date at the rate of 1.5% per month or the maximum rate allowed by applicable law, whichever is less. As collateral security for the payment of the purchase price of the Products, Buyer hereby grants to Seller a lien on and security interest in and to all of the right, title and interest of Buyer in, to, and under all unpaid Products constituting goods, wherever located, and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as all proceeds (including insurance proceeds) of the foregoing. The security interest granted under this provision constitutes a purchase money security interest under the New York Uniform Commercial Code. In the event that the Buyer requires the Seller to access any proprietary online portal(s) to process orders at any stage, the Seller may increase its prices to capture any additional or unforeseen costs associated with accessing said portal(s). Furthermore, any claim by the Buyer that additional or conflicting terms are consented to by Seller’s access to said portal(s) is without effect.
8. TAXES: In addition to the stated prices, Buyer shall pay Seller the amount of any excise, sales, use or other taxes incident to the sale of Products hereunder for which Seller may be liable or which Seller is required by law to collect unless Buyer provides Seller with an applicable tax exemption certificate.
9. WARRANTY: (a) Scope of Warranty. Subject to the provisions of this Section 9, and subject to Section 19 below, Seller warrants that any (a) Goods sold to Buyer hereunder, with the
exception of Experimental Products (as defined below), will be free from material defects in material and workmanship furnished by Seller and will conform in all material
respects to the applicable mutually agreed upon specifications, and (b) Services will be performed in a professional and workmanlike manner. This warranty shall apply only
where Buyer has given Seller written notice of a breach of such warranty (i) within twelve (12) months following the date of Seller’s shipment of Goods or provision of
Services, or (ii) in the case of any Product to be used in space, within the earlier of (A) twelve (12) months the date of Seller’s shipment of Goods or provision of Services or
(B) upon ignition of the first stage engine of the launch vehicle carrying the Product into space.
(b) Exceptions. The warranty in Section 9(a) does not extend to any Product that has been subjected to abuse, misuse, neglect or accident or stored in an improper manner
and does not apply to any Product that has been repaired or altered by any party other than Seller. Seller assumes no risk and shall be subject to no liability for any damages
or loss resulting from the specific use or application made of the Products. All parts manufactured by a third party (a “Third Party Product”) and incorporated into, contained
in, attached to, or packaged with any Products are not subject to the warranty in this Section 9, and are limited to the warranty of the specific manufacturer or supplier, which
such warranty shall, if assignable, be assigned by Seller to the Buyer. SELLER MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO ANY THIRD-PARTY PRODUCT, INCLUDING ANY (i) WARRANTY OF MERCHANTABILITY; (ii) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (iii) WARRANTY OF TITLE; OR (iv) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY;
WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
(c) Warranty Claims Process. Subject to Section 10 below, Buyer shall return to Seller any Product claimed by Buyer to be nonconforming for warranty validation purposes.
Shipping charges for returned Products will be paid by Seller only for Products repaired or replaced pursuant to warranty. Otherwise such charges will be Buyer’s responsibility.
(d) Remedies. Seller’s liability for any Product that is validated by Seller as defective or nonconforming, whether based on breach of warranty, negligent manufacture or product
liability is exclusively limited to, at Seller’s election, repair or replacement of such Products or Seller giving a credit to Buyer in an amount equal to the purchase price with respect to such Products.
(e) NO OTHER WARRANTIES; EXCLUSIVE REMEDIES. EXCEPT FOR THE WARRANTIES SET FORTH IN SECTION 9(a), SELLER MAKES NO WARRANTIES WHATSOEVER WITH RESPECT TO THE PRODUCTS, INCLUDING ANY WARRANTY OF MERCHANTABILITY; WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. THE REMEDIES SET FORTH IN SECTION
9)(d) ARE THE BUYER’S SOLE AND EXCLUSIVE REMEDY AND SELLER’S ENTIRE LIABILITY FOR ANY BREACH OF THE LIMITED WARRANTIES SET FORTH IN SECTION 9(a).
10. RETURNS: Written authorization must be obtained from Seller prior to the return of any Products for any reason including return for repair, replacement or credit. Issuance of credit for any returned Products shall be made at Seller’s option. Seller shall have the right prior to return to inspect, at Buyer’s plant, any Products claimed to be defective or nonconforming. Risk of loss or damage to any Products returned to Seller shall remain with Buyer until they are received by Allient.
11. EXPERIMENTAL PRODUCTS: If Seller delivers Product identified as “prototypes”, “samples”, “for engineering approval”, “for evaluation” or terms of similar import (collectively, “Experimental Products”), Buyer agrees that such Products are confidential and experimental in nature, that Buyer will limit the availability of such only to those of its employees as are necessary to carry out the testing and evaluation contemplated by the parties and to no others without the prior written consent of Seller, and that all information concerning such Products received or generated by Buyer shall be and remain the proprietary property of Seller and shall not be disclosed to any third party. Buyer’s receipt, use and evaluation of such Products shall be at Buyer’s sole risk. It is anticipated that changes may be made in the manufacture of such Products based on such tests and, therefore, Buyer shall communicate to Seller all information and data accumulated during Buyer’s testing and evaluation of the Products, all of which shall be the sole and exclusive property of Seller. Buyer shall return all such Products covered under this Section 11 to Seller within ten (10) days following Buyer’s receipt of Seller’s written request therefor. Buyer shall not compile, decompile, reverse engineer, disassemble or otherwise copy or reduce to practice any Experimental Products.
12. TOOLING: All tooling and equipment whether funded in whole or in part by Buyer shall remain the sole physical and intellectual property of the Seller for use by the Buyer unless otherwise agreed in writing by the Parties. Seller may charge Buyer for the cost of maintenance and rework of such tooling and equipment. For the avoidance of doubt, the Seller shall retain all rights in and to any and all intellectual property that may be contained or embodied in such tooling or equipment irrespective of whether or not Buyer has paid the full cost of any such tooling or equipment.
13. PROPRIETARY RIGHTS: All Intellectual Property Rights (as defined below) generated under the Agreement in any Products or arising out of the performance of any services shall vest in and be the exclusive property of Seller. No right of license is granted to Buyer in respect of the existing or future Intellectual Property Rights of Seller, except the right to use the Products or resell the Products. Buyer shall not cause or permit the reverse engineering, disassembly, or decompilation of the Products. Sale of the Product to Buyer (including the provision of Experimental Products under Section 11 above) does not convey a license, implied or otherwise, under any patent, trademark, copyright or any other intellectual property right in which Seller has an interest, and does not convey rights to any descriptive data, including, but not limited to, Seller’s drawings, trade secrets, processes or tooling. Buyer hereby acknowledges and agrees that Seller owns and retains all right, title and interest to any and all intellectual property of whatever nature as may be embodied in any Product (including in any Experimental Product). For purposes of this Agreement, “Intellectual Property Rights” means any and all rights in, arising out of, or associated with any of the following in any jurisdiction throughout the world: (a) issued patents and patent applications (whether provisional or non-provisional), including divisionals, continuations, continuations-in-part, substitutions, reissues, reexaminations, extensions, or restorations of any of the foregoing, and other Governmental Authority-issued indicia of invention ownership (including certificates of invention, petty patents, and patent utility models); (b) trademarks, service marks, brands, certification marks, logos, trade dress, trade names, and other similar indicia of source or origin, together with the goodwill connected with the use of and symbolized by, and all registrations, applications for registration, and renewals of, any of the foregoing; (c) copyrights and works of authorship, whether or not copyrightable, and all registrations, applications for registration, and renewals of any of the foregoing; (d) internet domain names and social media account or user names (including “handles”), whether or not trademarks, all associated web addresses, URLs, websites and web pages, social media sites and pages, and all content and data thereon or relating thereto, whether or not copyrights; (e) mask works, and all registrations, applications for registration, and renewals thereof; (f) industrial designs, and all patents, registrations, applications for registration, and renewals thereof; (g) trade secrets, know-how, inventions (whether or not patentable), discoveries, improvements, technology, business and technical information, databases, data compilations and collections, tools, methods, processes, techniques, and other confidential and proprietary information and all rights therein; (h) computer programs, operating systems, applications, firmware and other code, including all source code and object code, application programming interfaces, data files, databases, protocols, specifications, and other documentation thereof; (i) rights of publicity; and (j) all other intellectual or industrial property and proprietary rights.
14. FINANCIAL RESPONSIBILITY: In the event that Buyer fails to fulfill the terms of payment for any shipment of Products or if Seller shall have a reasonable doubt at any time as to Buyer’s ability to pay for Products ordered Seller may, at its option and without liability, (i) change the terms of payment or (ii) defer further production and shipments until satisfactory performance has been made by Buyer and Seller is satisfied as to Buyer’s financial ability; such change or deferment shall not prejudice any claim for damages Seller may otherwise have against Buyer.
15. CANCELLATION:Seller may, at its option and without liability, cancel Buyer’s order if: (a) Buyer’s payments are in default or Buyer breaches any provision of the Agreement, (b) any cause specified in Section 5 hereof (“Excusable Delay”) makes it commercially impracticable, in Seller’s judgment, to deliver the Products within a reasonable time, or (c) Buyer becomes insolvent or the subject of a proceeding under any bankruptcy law. Such cancellation shall not prejudice Seller’s rights to any amounts then due or affect any other rights Seller may have under applicable law.
16. CLAIMS: Claims for shortages, incorrect materials or invoicing errors must be made by Buyer within five (5) days after receipt of shipment. Claims for non-receipt of shipment must be made within five (5) days after receipt of Seller’s invoice. If Seller has agreed to pay for any transportation charges, claims for such charges must be made within ninety (90) days after shipping date.
17. PRODUCT LIABILITY: Buyer shall indemnify and hold harmless Seller, its directors, manager, officers, agents and employees against all expense, loss, costs, damage or liability or whatever kind or nature, including attorney’s fees, arising from any claim or action for product defect where the alleged defect relates to design, labeling, manufacture or other specifications supplied by Buyer. At the request of Seller, Buyer shall defend at its own expense all such claims or actions, provided that Seller shall be entitled, at its election, to participate in such defense
18. LIMITATION OF LIABILITY: (a) IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR ANY THIRD PARTY FOR ANY LOSS OF USE, REVENUE OR PROFIT, LOSS OF DATA OR DIMINUTION IN VALUE OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
(b) IN NO EVENT SHALL SELLER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL OF THE AMOUNTS PAID TO SELLER FOR THE PRODUCTS SOLD HEREUNDER $250,000, WHICHEVER IS LESS.
(c) Seller will be under no liability to Buyer whatsoever in respect of any claim arising out of an event which is caused, or contributed to, by the Products and such event occurs after the commencement of a launch procedure of a vehicle carrying such Products into space.
(d) The parties expressly agree that this Section 18 is a bargained-for provision with the respect to the Products.
19. BUYER INDEMNIFICATION: Buyer shall indemnify and hold harmless Allient and its directors, officers, agents and employees against all expense, loss, costs, damage or liability or whatever kind or nature, including attorney’s fees, arising from any claim or action for any violation by Buyer of this Agreement. At the request of Seller, Buyer shall defend at its own expense all such claims or actions, provided that Seller or a designated affiliate of Seller shall be entitled, at its election, to participate in such defense.
20. CONFIDENTIAL INFORMATION: All non-public, confidential or proprietary information of Allient, including but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Allient to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “confidential” in connection with this Agreement is confidential, solely for the use of performing this Agreement and may not be disclosed to third parties or copied unless authorized in advance by Seller in writing. Upon Seller’s request, Buyer shall promptly return and/or destroy all documents and other materials received from Allient. Allient shall be entitled to injunctive relief for any violation of this Section. This Section does not apply to information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party.
21. WAIVER: Failure by Seller to insist upon strict performance of any provision hereof by Buyer shall not be deemed to be a waiver by Seller of its rights or remedies, or a waiver by it of any subsequent default by Buyer.
22. RELATIONSHIP OF THE PARTIES: The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
23. NO THIRD-PARTY BENEFICIARIES: This Agreement is for the sole benefit of Seller and Buyer and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these Terms; provided that Allient is a third party beneficiary of Section 20.
24. ASSIGNMENT: Buyer shall not assign any of its rights or obligations hereunder without the prior written consent of Seller. Any attempted assignment without Seller’s express written consent shall be void and of no effect.
25. NOTICES: Any notices and other communications required or permitted to be given hereunder shall be in writing and shall be effective when delivered personally or electronically transmitted (later confirmed in writing) or, if mailed, three (3) days after air mailing, postage prepaid.
26. CORRECTIONS: Clerical errors, typographical errors or obvious errors or omissions in any sales quotes, order acknowledgements, invoices and other similar sales related documents are subject to correction by Seller on notice to Buyer.
27. SEVERABILITY: In the event that one or more provisions hereof should be held to be unenforceable in any respect, this document shall be construed as if such unenforceable provision(s) had not been contained herein
28. ENTIRE AGREEMENT:The Agreement contains the entire agreement of the Parties, and supersedes any prior negotiations and all other agreements, representations, warranties, undertakings and understandings of the parties with respect to the subject matter hereof. This Agreement may only be amended or modified in a writing stating specifically that it amends this Agreement and is signed by an authorized representative of Buyer and Seller. If Buyer and Seller have executed a confidentiality agreement or overriding master agreement covering the sale of Products to which this document relates, the terms of said confidentiality agreement and/or overriding master agreement shall prevail over the terms stated herein to the extent of any conflict
29. GOVERNING LAW, VENUE FOR DISPUTES AND WAIVER OF JURY TRIAL: For sales of Product by Seller from a facility within the United States, (a) the Agreement shall, in all respects, be governed by the laws of the state in which Seller’s facility that is shipping the Goods, or from which the personnel providing the Services, is located, without regard to its conflicts of laws provisions and the UN Convention on Contracts for the International Sale of Goods 1980 (Vienna Sales Convention), and (b) any action brought by either party with respect to this Agreement shall be brought exclusively in any state or federal court having jurisdiction in the location at which Seller’s facility that is shipping the Goods, or from which the personnel providing the Services, is located. EACH OF THE PARTIES HERETO HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, OR ANY TRANSACTION CONTEMPLATED HEREBY. For sales of Product by Seller from a facility outside of the United States, (a) such sales and Buyer’s purchase of Products hereunder shall, in all respects, be governed by the laws of the country in which such Seller facility is located, without regard to that country’s conflicts of law provisions and the UN Convention on Contracts for the International Sale of Goods 1980 (Vienna Sales Convention) and, (b) venue for any action brought by either party with respect to such sales shall be brought in any court of competent jurisdiction located in such country.