TERMS OF AGREEMENT
The purchase order, together with these terms and conditions, and any attachments and exhibits, specifications, drawings, notes, instructions and other information, whether physically attached or incorporated by reference (collectively the “Purchase Order”), constitutes the entire and exclusive agreement between the KYOCERA SLD Laser, Inc. company (“KYOCERA SLD Laser, Inc.” or “KYOCERA SLD Laser”) and the supplier (the “Supplier”) identified in the Purchase Order. KYOCERA SLD Laser, Inc.’s submission of the Purchase Order is conditioned on Supplier’s agreement that any terms different from or in addition to the terms of the Purchase Order, whether communicated orally or contained in any purchase order confirmation, invoice, acknowledgement, release, acceptance or other written correspondence, irrespective of the timing, shall not form a part of the Purchase Order, even if Supplier purports to condition its acceptance of the Purchase Order on KYOCERA SLD Laser, Inc.’s agreement to such different or additional terms. Supplier’s electronic acceptance, acknowledgement of this Purchase Order, or commencement of performance constitutes Supplier’s acceptance of these terms and conditions. The Purchase Order does not constitute a firm offer within the meaning of Section 2205 of the California Commercial Code, and may be revoked at any time prior to acceptance. Notwithstanding the foregoing, if a master agreement covering procurement of the Work described in the Purchase Order exists between Supplier and KYOCERA SLD Laser, Inc., the terms of such master agreement shall prevail over any inconsistent terms herein.
2.1 “Deliverables” means the deliverables specified in the Purchase Order (and any Statement of Work) to be delivered on or before the Delivery Date.
2.2 “Delivery Date” means the date or dates specified in the Purchase Order by which the Supplier is required to deliver the Work.
2.3 “Harmful Code” means any software intentionally designed to (i) disrupt, disable, harm, or impede operation, or (ii) impair operation based on the lapse of time, including but not limited to viruses, worms, time bombs, time locks, drop-dead devices, access codes, security keys, back doors, or trap door devices.
2.4 “Intellectual Property Rights” means any and all tangible and intangible: (i) copyrights and other rights associated with works of authorship throughout the world, including but not limited to
copyrights, neighboring rights, moral rights, and mask works, and all derivative works thereof;
(ii) trademark and trade name rights and similar rights; (iii) trade secret rights; (iv) patents, designs, algorithms, utility models, and other industrial property rights, and all improvements thereto; (v) all other intellectual and industrial property rights (of every kind and nature throughout the world and however designated) whether arising by operation of law, contract, license, or otherwise; and (vi) all registrations, applications, renewals, extensions, continuations, divisions, or reissues thereof now or hereafter in force (including any rights in any of the foregoing).
2.5 “Preexisting Materials” means any Intellectual Property Rights or tangible personal
property of Supplier or KYOCERA SLD Laser, Inc. created before the date of this Purchase Order or outside the scope of this Purchase Order.
2.6 “Products” means tangible goods specified in the Purchase Order to be delivered on or before the Delivery Date.2.7 “Services” means the services that Supplier is to perform for KYOCERA SLD Laser, Inc. specified in the Purchase Order.
2.8 “Statement of Work” or “SOW” means the document specifying, without limitation, the
scope, objective, and time frame of the Work that Supplier will perform for KYOCERA SLD Laser, Inc.
2.9 “Subcontractor” means a third party performing Work under an agreement (a “Subcontract”) with Supplier.
2.10 “Supplier Personnel” means Supplier’s employees, consultants, agents, independent contractors and Subcontractors.
2.11 “Third Party Intellectual Property” means the Intellectual Property Rights of a third party which Supplier uses or incorporates into the Work.
2.12 “Work” means the Deliverables, Products and Services specified in the Purchase Order, including any SOW.
3.1 Time is of the essence in Supplier’s performance of its obligations under Section 3 of the Purchase Order. Supplier will immediately notify KYOCERA SLD Laser, Inc. if Supplier’s timely performance under the Purchase Order is delayed or is likely to be delayed. KYOCERA SLD Laser, Inc.’s acceptance of Supplier’s notice will not constitute KYOCERA SLD Laser, Inc.’s waiver of any of Supplier’s obligations. Supplier’s failure to perform under Section 3 shall be deemed a material breach by Supplier.
3.2 If Supplier delivers Work after the Delivery Date, KYOCERA SLD Laser, Inc. may reject such Work.
3.3 KYOCERA SLD Laser, Inc. will hold any Work rejected under this Purchase Order at Supplier’s risk and expense, including storage charges, while awaiting Supplier’s returns shipping instructions. Supplier will bear all return shipping charges, including without limitation, insurance charges KYOCERA SLD Laser, Inc. incurs on Supplier’s behalf. KYOCERA SLD Laser, Inc. may, in its sole discretion, destroy or sell at a public or private sale any rejected Work for which KYOCERA SLD Laser, Inc. does not receive return shipping instructions within a reasonable time, and apply the proceeds, if any, first toward any storage charges.
3.4 Supplier will preserve, pack, package, and handle the Deliverables and Products so as to protect the Deliverables and Products from loss or damage and in accordance with best commercial practices in the absence of any specifications KYOCERA SLD Laser, Inc. may provide. Without limiting the foregoing, Supplier shall observe the requirements of any local laws and regulations relating to hazardous work, including, without limitation, with respect to its accompanying information, packing, labeling, reporting, carriage and disposal.
3.5 Supplier will include with each delivery of Products a packing list identifying the Purchase Order number, the KYOCERA SLD Laser, Inc. part number for each of the Products (if applicable), a description and the quantity of each of the Products, and the date of shipment.
3.6 Unless KYOCERA SLD Laser, Inc. expressly instructs otherwise, Supplier will deliver all Work to KYOCERA SLD Laser, Inc.’s plant at the address set forth in the Purchase Order. Supplier assumes responsibility for all shipping and delivery charges including, without limitation, customs, duties, costs, taxes and insurance. Risk of loss for the Deliverables and Products does not pass to KYOCERA SLD Laser, Inc. until acceptance in accordance with Section 6.3.7 Supplier shall not be liable for any delays or failure to perform due to causes or events beyond Supplier’s unforeseeable control provided that such delay is a force majeure consisting of an act of God, a labor strike, war or acts of terrorism, fire, explosion, earthquake, governmental act or regulation not caused by Supplier and out of Supplier’s control.
4. PRICE AND PAYMENT
4.1 Unless otherwise specified in the Purchase Order, the price for the Work includes all taxes and other charges such as shipping and delivery charges, duties, tax withholdings, customs, tariffs, imposts and government-imposed surcharges. Supplier will, at KYOCERA SLD Laser, Inc.’s request, break-out from the price all such taxes and other charges, in its invoices. Supplier shall use its best efforts to assist KYOCERA SLD Laser, Inc. in all legal efforts to minimize the taxes resulting from the performance of this Purchase Order.
4.2 KYOCERA SLD Laser, Inc. will pay Supplier the price in accordance with the payment terms set forth in the Purchase Order following the later of: (i) the Delivery Date; (ii) the date of KYOCERA SLD Laser, Inc.’s acceptance of all of the Work; or (iii) KYOCERA SLD Laser, Inc.’s receipt of a properly prepared invoice. A properly prepared invoice must include the Purchase Order number and, if required in the Purchase Order, Supplier’s certification of conformance of the Work to the requirements. Payment will be in the currency of the country in which the KYOCERA SLD Laser, Inc. entity or affiliate identified in the Purchase Order is located, and if the price set forth in the Purchase Order is not in the local currency, then KYOCERA SLD Laser, Inc. will determine the local currency equivalent of the price as of date of payment. KYOCERA SLD Laser, Inc. may, at any time, set-off any amounts Supplier owes KYOCERA SLD Laser, Inc. against any amounts KYOCERA SLD Laser, Inc. owes to Supplier or any of its affiliated companies. Under no circumstances shall KYOCERA SLD Laser, Inc. pay or advance funds to Supplier, nor shall Supplier accept such funds, other than in accordance with a valid and applicable Purchase Order for services rendered.
5. OWNERSHIP AND LICENSE
5.1 Unless otherwise specified in a SOW and except as provided in Section 5.2, KYOCERA SLD Laser, Inc. is the sole and exclusive owner of all Work (including Deliverables, Products, or Services) and Supplier hereby irrevocably assigns and transfers to KYOCERA SLD Laser, Inc. all of its worldwide right and title to, and interest in, the Work, including all associated Intellectual Property Rights.
5.2 Unless otherwise specified in a SOW, each party owns all right, title, and interest in and
to any of its Preexisting Materials. Supplier hereby grants KYOCERA SLD Laser, Inc. a perpetual, irrevocable, worldwide, transferable, royalty-free, nonexclusive license, with the right to sublicense and authorize the granting of sublicenses, to use and reproduce Supplier's Preexisting Materials in the Work to the extent necessary for KYOCERA SLD Laser, Inc.’s use, sale, offer for sale, manufacture (or copy or make improvements or derivative works) or have manufactured, distribution, exercise, and any other exploitation of its rights in the Work.
5.3 Unless otherwise specified in an SOW, Supplier will obtain and assign to KYOCERA SLD Laser, Inc. a nonexclusive, royalty-free, worldwide, perpetual, irrevocable, transferable, sub-licensable license to use all Third Party Intellectual Property Rights and any and all useful or necessary technology rights incorporated into, required to use, or delivered with the Work. Supplier will deliver copies of the above releases and licenses to KYOCERA SLD Laser, Inc. upon KYOCERA SLD Laser, Inc.’s request.
6. INSPECTION AND ACCEPTANCE
KYOCERA SLD Laser, Inc. may reject any or all of the Work which does not conform to the applicable requirements within 10 business days of Supplier’s delivery of the Work. At KYOCERA SLD Laser, Inc.’s option, KYOCERA SLD Laser, Inc. may (i) return the nonconforming Work to Supplier for a refund or credit; (ii) requires Supplier to replace the non-conforming Work; or (iii) repair the non-conforming Work so that it meets the requirements. As an alternative to (i) through (iii), KYOCERA SLD Laser, Inc. may accept the non-conforming Work conditioned on Supplier providing a refund or credit in an amount KYOCERA SLD Laser, Inc. reasonably determines to represent the diminished value of the non-conforming Work. KYOCERA SLD Laser, Inc.’s payment to Supplier for Work prior to KYOCERA SLD Laser, Inc.’s timely rejection of such Work as nonconforming will not be deemed as acceptance by KYOCERA SLD Laser, Inc.
7.1 As used in this Section 7, “Change” means a change KYOCERA SLD Laser, Inc. directs or causes within the general scope of this Purchase Order, the applicable SOW or both.
7.2 KYOCERA SLD Laser, Inc., by written order (“Change Order”), may make Changes in accordance with this Section 7.7.3 If Supplier asserts that KYOCERA SLD Laser, Inc. has directed or caused a Change to the cost of or time for performance in a material manner for which KYOCERA SLD Laser, Inc. has not issued a Change Order, Supplier will promptly notify KYOCERA SLD Laser, Inc. in writing of the Change, providing (i) a description of the action or inaction asserted to have caused the Change; (ii) an estimate of the equitable adjustment that would be required for Supplier to perform the Changed Work; and (iii) a date no less than 30 days from the date of notice by which KYOCERA SLD Laser, Inc. must respond to Supplier’s notice so that Supplier may proceed with the Work unchanged. KYOCERA SLD Laser, Inc. will evaluate Supplier’s notice of Change in good faith, and if KYOCERA SLD Laser, Inc. agrees that it has made a constructive change, KYOCERA SLD Laser, Inc. will issue a Change Order to Supplier.
7.4 Supplier shall, as promptly as practicable, after giving the notice of the Change, or within 10 days of receiving a Change Order, submit a request for equitable adjustment specifying the adjustment in the price or time for performance resulting from the Change.
7.5 The parties shall negotiate an amendment to the applicable SOW to incorporate a Change Order providing for an equitable adjustment to the price, time for performance, or both.
7.6 Supplier will proceed with the Changed Work as directed, notwithstanding that the parties
have not negotiated the amendment to this Purchase Order or the applicable SOW to incorporate the equitable adjustment.
8. REPRESENTATIONS AND WARRANTIES
8.1 Supplier represents and warrants that:
(i) it has the full power to enter into the Purchase Order and to perform its obligations under the Purchase Order;
(ii) it has the right and unrestricted ability to assign the Work to KYOCERA SLD Laser, Inc. including, without limitation, the right to assign any Work performed by Supplier Personnel and Subcontractors provided that the Supplier Personnel and Subcontractors are bound by the obligations under the Purchase Order and associated terms and conditions thereof;
(iii) the Work, and KYOCERA SLD Laser, Inc.’s use of the Work, do not and will not infringe upon any third party’s Intellectual Property Rights, right of publicity or privacy, or any other proprietary rights, whether contractual, statutory or common law;
(iv) Supplier will not disclose to KYOCERA SLD Laser, Inc., bring onto KYOCERA SLD Laser, Inc.'s premises, or induce KYOCERA SLD Laser, Inc. to use any confidential or proprietary information that belongs to anyone other than KYOCERA SLD Laser, Inc. or Supplier which is not covered by a non-disclosure agreement between KYOCERA SLD Laser, Inc. and Supplier;
(v) Software supplied by Supplier does not contain any Harmful Code;
(vi) Supplier’s Work conforms to KYOCERA SLD Laser, Inc.’s specifications, Supplier’s quotation or proposal, and Supplier’s brochures or catalogs, and if none of the foregoing is applicable, then such Work is suitable for the intended use;
(vii) in performing its obligations under this Purchase Order it will apply the Code of Ethics and any and all codes of conduct and governance that may be found at: SLD Website
(viii) except to the extent Supplier is providing: (A) Products only; (B) Services from a Supplier location; or (C) Services in relation to marketing, educational, or a sales related event at a third party site, they have read and comply with the KYOCERA SLD Laser, Inc. Supplier Environmental Health and Safety Requirements and any and all other codes and policies that may be located at: SLD Website
(ix) it will not use or disclose any information that may identify an individual ("Personal Data") that is processed for or on behalf of KYOCERA SLD Laser, Inc., except to the extent necessary to perform under this Purchase Order;
(x) only to the extent that Supplier actually processes Personal Data it will: (A) implement and maintain appropriate technical and organizational measures and other protections for Personal Data (including, without limitation, not loading any Personal Data provided to Supplier on (a) any laptop computers or (b) any portable storage media that can be removed from Supplier's premises unless each case (i) such data has been encrypted and (ii) such data is loaded onto portable storage media solely for the purpose of moving such data to off-site storage), (B) report to KYOCERA SLD Laser, Inc. any breaches of security of Personal Data immediately after discovery (“Security Incident”), (C) cooperate fully with KYOCERA SLD Laser, Inc. in investigating any Security Incidents , (D) cooperate fully with KYOCERA SLD Laser, Inc.'s requests for access to, correction of, and destruction of Personal Data in Supplier's possession, (E) comply with all instructions or other requirements provided or issued by KYOCERA SLD Laser, Inc. from time to time relating to Personal Data, and (F) permit KYOCERA SLD Laser, Inc. and/or its duly authorized representatives, on reasonable prior notice, to inspect and audit Supplier’s business premises and computer systems to enable KYOCERA SLD Laser, Inc. to verify that Supplier is in full compliance with its processing obligations under this Purchase Order;
(xi) it will not transfer Personal Data across any country border unless it is (a) strictly unavoidable for the proper performance under this Purchase Order, and (b)notified to KYOCERA SLD Laser, Inc. in writing prior to any such transfer. Upon KYOCERA SLD Laser, Inc.’s request, Supplier shall enter into such other arrangements with KYOCERA SLD Laser, Inc. as KYOCERA SLD Laser, Inc. considers appropriate (e.g. the EU Model Clauses) in order to ensure that Supplier’s transfers are lawful.
(xii) it will not provide KYOCERA SLD Laser, Inc. with Personal Data of any third party or its own employees. Notwithstanding the foregoing, if Supplier does provide KYOCERA SLD Laser, Inc. with any Personal Data, Supplier represents and warrants that it has obtained the necessary consent to provide that Personal Data to KYOCERA SLD Laser, Inc. and to allow KYOCERA SLD Laser, Inc. to use, disclose, and transmit such Personal Data on a worldwide basis among KYOCERA SLD Laser, Inc. and its affiliates in connection with this Purchase Order; and
(xiii) no Products contain or include components (a) containing PCB’ (polychlorinated biphenyls) chemical substances or containing any materials derived from sources that have been or in violation of under any governmental policy or law or regulatory policy or law or treaties, (b) manufactured using a cadmium plating process or contain a chemical substance or mixture that is or becomes subject to a reporting requirement under Section 8(e) of the Toxic Substances Control Act, 15 U.S.C. Section 2607(e), as in effect at time of shipment or manufactured using any materials derived from sources that have been or in violation of under any governmental policy or law or regulatory policy or law or treaties or manufactured using any sources subject to human rights violations, harassment, bullying, or other harmful or bad acts against human beings.
8.2 KYOCERA SLD Laser, Inc. warrants and represents to Supplier that it has the full power to enter into the Purchase Order and to perform its obligations under the Purchase Order.
9. NO PARTNERSHIP OR EMPLOYEE RELATIONSHIP
9.1 Independent Contractors. Nothing in this Purchase Order is intended, or shall be
construed, to create a partnership, joint venture, or employer-employee relationship between the parties. Except as otherwise expressly stated in an SOW, Supplier has no authority to act on behalf of or to enter into any contract, incur any liability, or make any representation on behalf of Soraa Laser Diode, Inc.
9.2 Performance of Work. Except as otherwise expressly stated in an SOW, Supplier will
secure all licenses and permits, and supply all tools and equipment, necessary to perform the Services.
9.3 No Employee Relationship. Supplier will not be entitled to any of the benefits that Soraa Laser Diode, Inc. may make available to its employees including, but not limited to, group health or life insurance, stock options, profit sharing, or retirement benefits.
9.4 Supplier’s Obligations Flowing from Payments It Makes. Supplier is solely responsible
for all taxes and withholdings, severance and redundancy pay, benefits (including, without limitation, vacation, sick leave, holidays, pension or profit sharing contributions, stock options, etc.), and other similar obligations, whether statutory or otherwise, with respect to payments made by Supplier relating to the performance of all its work and its receipt of fees under this Purchase Order.
9.5 Indemnification. In addition to any other indemnity obligations, Supplier will defend, indemnify, and hold Soraa Laser Diode, Inc. harmless from any and all claims made by any person or any entity on account of an alleged failure to satisfy any obligation specified in Sections 9.3 and 9.4
9.6 Removal of Supplier Employees. At Soraa Laser Diode, Inc.’s direction and for reasonable cause, Supplier will remove any Supplier Personnel or Subcontractor from performance of Services.
10. ASSIGNMENT AND SUBCONTRACTING
10.1 Supplier may not assign any of its rights or delegate any of its obligations under the
Purchase Order without KYOCERA SLD Laser, Inc.’s prior written consent, which KYOCERA SLD Laser, Inc. will not unreasonably withhold. KYOCERA SLD Laser, Inc. may, at its option, void any attempted assignment or delegation undertaken without KYOCERA SLD Laser, Inc.'s prior written consent.
10.2 Supplier may not subcontract any of its rights or obligations under the Purchase Order
without KYOCERA SLD Laser, Inc.’s prior written consent. If KYOCERA SLD Laser, Inc. consents to the use of a Subcontractor, Supplier will: (i) guarantee and will remain liable for the performance of all subcontracted obligations; (ii) indemnify KYOCERA SLD Laser, Inc. for all damages and costs of any kind, subject to the limitations in Section 13 (Indemnification), incurred by KYOCERA SLD Laser, Inc. or any third party and caused by the acts and omissions of Supplier’s Subcontractors’
and (iii) make all payments to its Subcontractors. If Supplier fails to timely pay a Subcontractor for work performed, KYOCERA SLD Laser, Inc. will have the right, but not the obligation, to pay the Subcontractor and offset any amount due to Supplier by any amount paid to the Subcontractor. Supplier will defend, indemnify and hold KYOCERA SLD Laser, Inc. harmless for all damages and costs of any kind, without limitation, incurred by KYOCERA SLD Laser, Inc. and caused by Supplier’s failure to pay a Subcontractor.
10.3 To the extent allowed by applicable law, no person who is not a party to Purchase Order
shall be entitled to enforce or take the benefit of any of its terms whether as a result of applicable
legislation, custom or otherwise.
11. TERM AND TERMINATION
1.1 The Purchase Order will remain in effect with respect to any SOW already issued prior to
expiration of the term of the Purchase Order until such SOW is either terminated or the Work is completed and accepted.
11.2 KYOCERA SLD Laser, Inc. may terminate this Purchase Order, any SOW, or both at any time, for no reason or for any reason, upon 15 days written notice to Supplier. Upon receipt of notice of such termination, Supplier will inform KYOCERA SLD Laser, Inc. of the extent to which it has completed performance as of the date of the notice, and Supplier will collect and deliver to KYOCERA SLD Laser, Inc. whatever Work then exists. KYOCERA SLD Laser, Inc. will pay Supplier for Work performed and accepted through the effective date of the termination, provided that KYOCERA SLD Laser, Inc. will not be obligated to pay any more than the payment that would have become due had Supplier completed and KYOCERA SLD Laser, Inc. had accepted the Work. KYOCERA SLD Laser, Inc. will have no further payment obligation in connection with any termination.
11.3 Either party may terminate the Purchase Order, any SOW or both, immediately by
delivering written notice to the other party upon the occurrence of any of the following events: (i) a
receiver is appointed for either party or its property; (ii) either makes a general assignment for the benefit of its creditors; (iii) either party commences, or has commenced against it, proceedings under any bankruptcy, insolvency or debtor's relief law, if such proceedings are not dismissed within 60 days; or (iv) either party is liquidating, dissolving, or ceasing to do business in the ordinary course. 11.4 KYOCERA SLD Laser, Inc. may immediately terminate the Purchase Order upon written notice to Supplier if there is a change in ownership representing 20 percent or more of the equity ownership of Supplier.
11.5 Either party may terminate this Purchase Order, any SOW or both, immediately by delivering written notice to the other party for any material breach not cured within 30 days of receipt of notice of the breach. KYOCERA SLD Laser, Inc. shall have no further payment obligation to Supplier under any terminated SOW if KYOCERA SLD Laser, Inc. terminates the SOW under this Section 11.5.
11.6 Any obligations or duties which, by their nature, extend beyond the expiration or termination of the Purchase Order shall survive the expiration or termination of the Purchase Order.
12. CONFIDENTIAL INFORMATION AND PUBLICITY
12.1 In this Purchase Order, “Confidential Information” means the terms and conditions of this
Purchase Order or any relevant SOW, the existence of discussions between the Parties, any and all documents, software, reports, data, records, forms and other materials obtained by one party (the “Receiving Party”) from the other party (the “Disclosing Party”) , or at the request or direction of the Disclosing Party in the course of performing the Services: (i) that have been marked as confidential; (ii) whose confidential nature has been made known by the Disclosing Party to the Receiving Party; or (iii) that due to their character and nature, a reasonable person under like circumstances would treat as confidential.
12.2 The Receiving Party may use the Confidential Information solely for the purpose of
furtherance of the business relationship between the parties, as provided in this Purchase Order and shall not disclose the Confidential Information to any third party, other than to Affiliates and to employees of the Receiving Party and its Affiliates who have a need to have access to and knowledge of the Confidential Information, solely for the purpose authorized above. Each party shall take appropriate measures by instruction and agreement prior to disclosure to such employees to assure against unauthorized use or disclosure.
12.3 The Receiving Party shall have no obligation with respect to information which (i) was
rightfully in possession of or known to the Receiving Party without any obligation of confidentiality prior to receiving it from the Disclosing Party; (ii) is, or subsequently becomes, legally and publicly available without breach of this Purchase Order; (iii) is rightfully obtained by the Receiving Party from a source other than the Disclosing Party without any obligation of confidentiality; (iv) is developed by or for the Receiving Party without use of the Confidential Information and such independent development can be shown by documentary evidence; (v) becomes available to the Receiving Party by wholly lawful inspection or analysis of products offered for sale; (vi) is transmitted by a party after receiving written notification from the other party that it does not desire to receive any further Confidential Information; (vii) is disclosed by the Receiving Party pursuant to a valid order issued by a court or government agency, provided that the Receiving Party provides (a) prior written notice to the Disclosing Party of such obligation and (b) the opportunity to oppose such disclosure. Upon written demand by the Disclosing Party, the Receiving Party shall: (i) cease using the Confidential Information, (ii) return the Confidential Information and all copies, notes or extracts thereof to the Disclosing Party within seven (7) days of receipt of demand, and (iii) upon request of the Disclosing Party, certify in writing that the Receiving Party has complied with the obligations set forth in this paragraph.
12.4 Each party shall retain all right, title and interest to such party's Confidential Information.
No license under any trademark, patent or copyright, or application for same which are now or thereafter may be obtained by such party is either granted or implied by the conveying of Confidential Information. The Receiving Party shall not reverse-engineer, decompile, or disassemble any software disclosed to it and shall not remove, overprint or deface any notice of copyright, trademark, logo, legend, or other notices of ownership from any originals or copies of Confidential Information it obtains from the Disclosing Party. WITHOUT PREJUDICE TO THE EXPRESS WARRANTIES PROVIDED ELSEWHERE IN THIS PURCHASE ORDER, CONFIDENTIAL INFORMATION IS PROVIDED "AS IS" WITH ALL FAULTS. IN NO EVENT, SHALL THE DISCLOSING PARTY BE LIABLE FOR THE ACCURACY OR COMPLETENESS OF THE CONFIDENTIAL INFORMATION. None of the Confidential Information is closed by the parties constitutes any representation, warranty, assurance, guarantee or inducement by either party to the other with respect to the infringement of trademarks, patents, copyrights, any right of privacy, or any rights of third persons.
12.5 Supplier shall obtain KYOCERA SLD Laser, Inc.’s written consent prior to any publication, presentation, public announcement, or press release concerning its relationship as a supplier to KYOCERA SLD Laser, Inc.
13.1 As used in this Section 13, a “Claim” is any claim, demand, loss, damage, liability, cost or expense (including professional fees and costs as incurred) for which one party (the “Indemnifying Party”) may be obligated to defend, indemnify and hold the other party (the “Indemnified Party”) harmless.
13.2 Supplier shall defend, indemnify and hold KYOCERA SLD Laser, Inc. harmless from and against any and all Claims as incurred, arising out of or in connection with any (i) act or omission of Supplier (including its Subcontractors) in the performance of the Work; or (ii) any infringement of a third party’s Intellectual Property Rights or any other rights.
13.3 KYOCERA SLD Laser, Inc. shall indemnify and hold Supplier harmless from and against any and all Claims as incurred, arising out of or in connection with: (i) Supplier’s use of KYOCERA SLD Laser, Inc.’s products or services in connection with the Work; (ii) Supplier’s use of information or materials provided to Supplier by KYOCERA SLD Laser, Inc.; or (iii) infringement a third party’s Intellectual Property Rights or any other rights resulting from Supplier’s adherence to KYOCERA SLD Laser, Inc.’s written instructions.
13.4 Each party will indemnify and hold the other party harmless from and against any and all Claims, as incurred, arising out of any negligent or willful acts or omissions of the Indemnifying Party which results in personal injury (including death) or damage to tangible property (not including lost or damaged data).
13.5 The Indemnified Party will provide the Indemnifying Party with prompt written notice of the Claim and permit the Indemnifying Party to control the defense, settlement, adjustment, or compromise of any Claim. The Indemnified Party may employ counsel at its own expense to assist it with respect to any Claim. The Indemnified Party will have no authority to settle any Claim on the Indemnified Party’s behalf.
13.6 If a third party enjoins or interferes with KYOCERA SLD Laser, Inc.’s use of any Work, then in addition to Supplier’s obligations under Section 13.2, Supplier will use its best efforts to (i) obtain any licenses necessary to permit KYOCERA SLD Laser, Inc. to continue to use the Work; (ii) replace or modify the Work as necessary to permit KYOCERA SLD Laser, Inc. to continue to use of the Work; or if (i) and (ii) are not commercially reasonable, then (iii) promptly refund to KYOCERA SLD Laser, Inc. the amount paid for any Work for which a third party enjoins or interferes with KYOCERA SLD Laser, Inc.’s use of the Work.
13.7 Nothing in this Section shall limit any other remedy of the parties.
14.1 NOTWITHSTANDING ANYTHING ELSE IN THE PURCHASE ORDER OR
OTHERWISE, KYOCERA SLD LASER, INC. WILL NOT BE LIABLE TO SUPPLIER WITH RESPECT TO THE SUBJECT MATTER OF THE PURCHASE ORDER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY AMOUNTS IN EXCESS IN THE AMOUNT KYOCERA SLD LASER, INC. PAID TO SUPPLIER IN THE SIX MONTHS PRECEDING THE EVENT OR CIRCUMSTANCE GIVING RISE TO SUCH LIABILITY.
14.2 IN NO EVENT WILL KYOCERA SLD LASER, INC. BE LIABLE TO SUPPLIER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL DAMAGES OR LOSS OF PROFITS ARISING OUT OF, OR IN CONNECTION WITH, THE PURCHASE ORDER, WHETHER OR NOT KYOCERA SLD LASER, INC. WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
14.3 THE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL
PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN. NOTHING IN THE PURCHASE ORDER LIMITS EITHER PARTY'S LIABILITY FOR BODILY INJURY OF A PERSON, DEATH, OR PHYSICAL DAMAGE TO PROPERTY OR ANY LIABILITY WHICH CANNOT BE EXCLUDED UNDER APPLICABLE LAW.
Supplier will secure and maintain insurance providing coverage for liabilities to third parties for bodily injury (personal injury) and damage to property in amounts sufficient to protect KYOCERA SLD Laser, Inc. in the event of such injury or damage, and will be in compliance with any and all laws, regulations or orders addressing the liabilities of an employer to its employees for injuries and disease suffered in connection with employment. Supplier further will maintain such additional types and limits of insurance as is customary for a company of similar size and similar operations to Supplier in the jurisdiction or jurisdictions in which Supplier’s operations take place.
16. COMPLIANCE WITH LAWS
Supplier represents and warrants that it will comply with all applicable local and national laws and regulations pertaining to its performance of its obligations under this Purchase Order. In particular and without limitation, Supplier shall not act in any fashion or take any action that will render KYOCERA SLD Laser, Inc. liable for a violation of any applicable anti-bribery legislation (including without limitation, the U.S. Foreign Corrupt Practices Act and the UK Bribery Act 2010), which prohibits the offering, giving or promising to offer or give, or receiving, directly or indirectly, money or anything of value to any third party to assist it them or KYOCERA SLD Laser, Inc. in retaining or obtaining business or in performing the Work. Without limiting the foregoing, to the extent that Supplier is a US federal contractor or covered subcontractor as contemplated in accordance with the applicable laws and regulations, then Supplier agrees that this Purchase Order will be subject to the requirements of 41 CFR 60-1.4 and 29 CFR part 471, Appendix A to Subpart A, and the requirements of 41 CFR 60-300.5(a) and 41 CFR 60-741.5(a), which are incorporated herein by reference. The latter two regulations prohibit discrimination against qualified individuals on the basis of protected veteran status and disability and require affirmative action to employ and advance in employment protected veterans and qualified individuals with disabilities. Supplier’s failure to comply with this provision shall constitute a material breach of this Purchase Order.
17. GOVERNING LAW
The Purchase Order will be construed in accordance with, and all disputes will be governed by, the laws of the State of California, without regard to its conflict of laws rules. The parties specifically waive application of the UN Convention on Contracts for the International Sale of Goods. Supplier irrevocably consents to the personal jurisdiction of the state and federal courts in and for Santa Clara County, California, or the U.S. District Court for the Northern District of California and irrevocably waives any claim it may have that any proceedings brought in such courts have been brought in an inconvenient forum.
18.1 Any notice to be given under the Purchase Order will be in writing and addressed to the party at the address stated in the front of the Purchase Order. Notices will be deemed given and effective (i) if personally delivered, upon delivery, (ii) if sent by an overnight service with tracking capabilities, upon receipt; (iii) if sent by fax or electronic mail, at such time as the party which sent the notice receives confirmation of receipt by the applicable method of transmittal; or (iv) if sent by certified or registered mail, within five days of deposit in the mail. 18.2 If there is a conflict between or among the Purchase Order and any documents attached to and incorporated by reference, the conflict will be resolved as follows:
18.2.1 A conflict between the terms of the Purchase Order and those set forth in an exhibit or hyperlink will be resolved in favor of the Purchase Order.
18.2.2 A conflict between the terms of the Purchase Order and those set forth in an SOW will be resolved in favor of the SOW.
18.2.3 A conflict between the terms of an exhibit or hyperlink and those set forth in an SOW will be resolved in favor of the SOW.
18.3 If any court of competent jurisdiction holds that any provision of the Purchase Order is illegal, invalid, or unenforceable, the legality, validity, and enforceability of the remaining provisions of the Purchase Order will not be affected or impaired, and all remaining terms of this Purchase Order remain in full force and effect, provided that this provision shall not be applied to defeat the intent of the parties.
18.4 A party’s election not to insist on strict performance of any requirement of the Purchase Order will not operate or be construed to waive any future omission or breach, or any other provision of the Purchase Order
19. No Forced or Compulsory Labor
9.1 Supplier hereby represents that by submission of its offer under this Agreement to KYOCERA SLD Laser or by its acceptance of KYOCERA SLD Laser’s subcontract or Purchase Order that it —
19.2 Will not engage in any trafficking in persons or related activities or illegal activities, including but not limited to the use of forced labor, slavery, or other involuntary or illegal acts, in the performance of the contract;
19.3 Has hiring and subcontracting policies to protect the rights of its employees and the rights of
subcontractor employees and will comply with those policies in the performance of this contract; and
19.4 Has notified its employees and subcontractors of — (1) The responsibility to report trafficking in persons violations by the Contractor, Contractor employees, or subcontractor employees, at any tier.
20. No Changes without Approval
20.1 All communication, technical guidance and instructions having contractual impact shall
be accomplished directly between an authorized representative of KYOCERA SLD Laser and the Supplier’s authorized representative. No contract or specification deviations shall be made without the written authorization of the KYOCERA SLD Laser.
20.2 No changes in materials, processes, procedures, design interfaces or software which
affects the form, fit, function, safety, weight, maintainability, service life, reliability,
replaceability, or interchangeability of the items to be delivered to KYOCERA SLD Laser shall be
made without prior written approval/acknowledgement from KYOCERA SLD Laser. Prior to
implementing such a change the Supplier shall submit a Supplier Change Request (SCR) form notifying KYOCERA SLD Laser of the impending change. Form completion instructions are included to provide direction. Section 2, completed by KYOCERA SLD Laser, dispositions the change and identifies resulting actions which will be communicated back to the Supplier by KYOCERA SLD Laser.
20.3 Listed below are examples (not all inclusive) of events which the Supplier shall evaluate
for Product impacts as defined above.
20.4 It is the Supplier’s responsibility to fully comply with all the instructions listed on the
KYOCERA SLD Laser Purchase Order. Lack of written approval shall not relieve the Supplier of the
responsibility to fully comply with all of the requirements of the purchase order. The Supplier shall not receive compensation in any form from KYOCERA SLD Laser for unauthorized activity.
21. HUMAN RIGHTS; CHILD AND FORCED LABOR
The Company strives to conduct business in a highly ethical and responsible manner, and expects the same of our suppliers, customers, vendors and other business partners. The Company is committed to promoting, supporting and respecting human rights. In accordance with these principles, the Company will not participate in any activity that solicits or encourages human rights abuse, child labor, harassment or bullying, or compulsory labor. If you are aware of any evidence that suggests a violation of human rights, or of child or forced labor, in any operations or activities linked to the Company or its business, please notify the Company’s Human Resources Department or your manager immediately.