Updated on July 7, 2023
a. “Agreement” means these terms and conditions together with any appearing on the face of Buyer’s PO, including all referenced documents (including but not limited to these terms and conditions), , exhibits, and attachments thereto.
b. “Buyer” means Renesas Electronics America Inc. and/or one or more of its subsidiaries.
c. “Buyer Purchasing Representative” means the person from Buyer’s Purchasing Department authorized by Buyer to administer this Agreement.
d. "Intellectual Property Rights" means all rights in (1) U.S. and foreign utility and/or design patents, patent applications, and utility models; (2) patents issuing on such applications; (3) continuations, continuations-in-part, divisions, reissues, reexaminations, or extensions of such patents or applications; (4) inventions, invention disclosures, and Technical Improvements; (5) copyright registrations and applications, copyrighted Works of authorship (as defined in 17 U.S.C. § 102) covered by such registrations and applications, and all other Works of authorship, whether registered or not, and all renewals, extensions, and Derivative Works thereof; (6) confidential information, know-how, and other proprietary information, and all tangible and intangible embodiments thereof; (7) other proprietary intellectual property rights of any kind; and (8) Trademarks.
e. “Party” means Buyer or Seller.
f. “PO” or “Purchase Order” as used in any document constituting a part of this Agreement shall mean this “Agreement”.
g. “Seller” means the party identified on the face of the PO with whom Buyer is creating this Agreement.
h. “Work” means all required articles, materials, supplies, goods, and/or general services constituting the subject of this Agreement. Additionally, “Service Work” means all design, consulting and other personal services constituting the subject of this Agreement.
2. Acceptance of Agreement
a. This Agreement is the complete, final, and exclusive statement of the terms of agreement between the Parties for the purchase of the Work and supersedes any and all other prior and contemporaneous written or oral communications, negotiations, and agreements between them relating to the subject matter hereof.
b. Seller’s acceptance of Buyer’s PO, acceptance of payment, commencement of performance, or shipment of any portion of goods hereunder shall constitute Seller’s unqualified acceptance of everything in these terms and conditions.
c. Additional or differing terms or conditions proposed by Seller or included in Seller’s acknowledgment hereof are hereby objected to and rejected by Buyer and have no effect unless expressly accepted in writing by Buyer.
d. Buyer’s PO may be revoked at any time prior to acceptance.
3. Applicable Laws
This Agreement shall be construed in accordance with, and disputes governed by the laws of the State of California, without reference to its conflicts of law principles. Venue for any dispute arising hereunder shall be in either Santa Clara, County, California or Brevard or Orange County, Florida.
4. Assignment or Delegation
Seller may not assign this Agreement, nor assign or otherwise delegate any of its rights or duties under this Agreement, without the prior written consent of Buyer. Any unauthorized assignment of any duties or obligations under this agreement by Seller is null and void, and immediately terminates this Agreement. Buyer may assign this Agreement at any time.
a. Buyer may at any time make changes within the general scope of this Agreement in any one or more of the following: (1) drawings, designs, or specifications; (2) method of packing or shipment; (3) place and/or time of inspection; (4) place and/or time of delivery; (5) materials, methods, or manner of production or final product; and (6) quantity. Such changes are subject to Seller’s agreement.
b. If any such change causes an increase or decrease in the cost of, or the time required for, performance of any part of this Agreement, Buyer shall make an agreed upon equitable adjustment in the Agreement price and/or delivery schedule. Provided, however, any price increase or extension of time for delivery will not be binding on Buyer unless evidenced by a PO change notice issued and signed by Buyer’s authorized representative.
c. Failure to agree to any adjustment shall be resolved in accordance with the “Disputes” provision of this Agreement.
a. Buyer Information, information provided to Seller by Buyer in any form, remains the property of Buyer, whether written or oral, including without limitation: information relating to research, development, products, methods of manufacture, trade secrets, business plans, customers, vendors, finances, personnel data, or other material provided to Seller by Buyer.
b. Seller agrees not to copy, alter, reverse engineer, modify, or directly or indirectly disclose any such Buyer Information without written consent by Buyer, except as required by law.
c. Seller will not disclose Buyer Information to any person outside its employ without the prior written consent of Buyer, provided however that Seller may disclose Buyer Information as required by a government agency or law, so long as Seller provides Buyer prompt notice of such requirement prior to disclosure.
d. Seller agrees to use Buyer Information only in the course of performing work under this Agreement for the benefit of Buyer. Seller may not otherwise use Buyer Information in any way, either for its own benefit or for the benefit of a third party.
e. Seller shall use the same degree of care to safeguard Buyer Information that Seller exercises in safeguarding its own proprietary or confidential information. In no event, however, shall Seller use less than a reasonable degree of care to protect the Buyer Information from unauthorized disclosure.
f. No termination, expiration or cancellation of this Agreement will affect any obligation herein respecting such Buyer Information.
Only the Buyer Purchasing Representative or an officer of Buyer has the authority to alter, amend or modify this Agreement. Such amendments, alterations or modifications must be in writing and signed by the authorized agent of Buyer.
8. Compliance with Laws
a. Seller shall comply fully with all applicable laws, orders, rules, regulations, and ordinances in the performance of this Agreement including, but not limited to, all applicable employment, tax, export control/trade compliance, environmental, and health and safety laws. Diversion of Goods contrary to U.S. law is prohibited. Seller will use its best efforts to cooperate with Buyer to identify and classify controlled items and technology transferred by Seller to Buyer.
b. Seller shall comply with the Renesas Supplier Code of Conduct. Seller must ensure that Renesas’s Supplier Code of Conduct is also observed by Seller’s subcontractors, business associates, and employees.
a. Delivery of goods shall be made pursuant to the schedule, via the carrier and to the destination specified on the face of the applicable Purchase Order.
b. Buyer reserves the right to return, shipping charges collect, all goods received significantly in advance of the delivery schedule.
c. If no delivery schedule is specified, the Purchase Order shall be filled promptly and the most reasonable form of land transportation shall be used for delivery.
d. In the event Seller fails to deliver goods by the specified delivery date, Buyer shall at its option, decline to accept the goods and terminate the Agreement or may demand its allocable fair share of Seller’s available goods and terminate the balance of the Agreement.
e. All shipments of hazardous materials will be accompanied by applicable Material Safety Data Sheets and in appropriately labeled packaging and containers.
a. For all disputes under this Agreement that are not disposed of by mutual agreement, Buyer shall have all remedies available by law and at equity.
b. Until final resolution of any dispute hereunder, Seller shall diligently proceed with the performance of this Agreement as directed by Buyer.
Work shall not be supplied in excess of quantities specified in the Agreement. Seller shall be liable for handling charges and return shipment costs for any excess quantities and at Seller’s risk of loss.
12. Government Contracts
Seller understands that goods under this Agreement may be procured by Buyer in support of or to satisfy Buyer’s obligations under agreements with Federal, State, or local governmental entities. Seller acknowledges that certain terms under such government contracts may be applicable to this Agreement. To the extent that any such terms are applicable to this Agreement, Seller agrees that such terms are hereby incorporated by reference and are made a part of this Agreement.
Seller warrants and agrees that no gratuities, in the form of gifts or otherwise, or kickbacks have been offered or shall be offered or given by Seller, to any employee, agent or representative of Buyer for the purpose of securing favorable treatment as a supplier.
Headings in the contract are for purposes of reference only and shall not limit or affect the meaning hereof.
a. Seller shall indemnify, hold harmless, and at Buyer’s request, defend Buyer, its officers, directors, agents, and employees, against all claims, liabilities, damages, losses, and expenses, including attorneys’ fees and cost of suit arising out of or in any way connected with work negligently provided under this Agreement, including, without limitation: (1) Seller failing to satisfy the Internal Revenue Service’s guidelines for an independent contractor, (2) any claim based on the negligence, omissions, or willful misconduct of Seller, (3) any claim by a third party against Buyer alleging that the Work under this Agreement or the results of such Work infringe a patent, copyright, trademark, trade secret, or other proprietary right of a third party, and (4) any claim arising out Product Liability concerning the Work.
b. Seller shall not settle any such suit or claim without Buyer’s prior written approval.
c. Seller agrees to pay or reimburse all costs that may be incurred by Buyer in enforcing this indemnity, including attorneys’ fees.
16. Independent Contractor
a. Seller is an independent contractor for all purposes, without any express or implied authority to bind Buyer by contract or otherwise.
b. Seller, its employees, agents, or subcontractors are not agents or employees of Buyer, and therefore are not entitled to any employee benefits from Buyer.
c. Seller shall be responsible for all costs and expenses incident to performing its obligations under this Agreement and shall provide Seller’s own supplies and equipment.
17. Injunctive Relief
Due to the intellectual nature of the obligations and promises of Seller under this Agreement, Seller’s breach of any of the promises such contained in the Agreement (including, but not limited to the provisions under the headings “Confidentiality”, “Intellectual Property, and “Compliance with Laws”) may result in irreparable and continuing damage to Buyer for which there will be no adequate remedy at law. In the event of such breach, Buyer shall be entitled to seek injunctive relief, or a decree of specific performance, or both, and any such other and further appropriate relief.
a. Buyer’s final inspection and acceptance shall be after delivery.
b. Buyer and its customers may inspect all Work at reasonable times and places, including but not limited to, during manufacture and before delivery.
c. Seller shall provide any and all information, facilities, and assistance required for safe and convenient inspection without additional charge.
d. Work shall not be deemed accepted until Buyer has run an adequate test to determine whether the goods conform to the specifications hereof. Use of a portion of the goods for the purpose of testing shall not constitute an acceptance of the work. Buyer shall have the right to reject goods tendered that do not wholly conform with the specifications hereof. Rejected Work will be returned to Seller by common carrier at Seller’s sole risk and expense.
e. No such inspection shall relieve Seller of its obligations to furnish all Work in accordance with the requirements of this Agreement.
f. Seller shall not re-tender rejected Work without disclosing the corrective action taken.
a. Seller shall be solely responsible for procuring and maintaining, and requiring its associates and subcontractors to procure and maintain, adequate health, auto, workers’ compensation, unemployment compensation, disability, liability, and other insurance as required by law or as is common practice in Seller’s industry, trade, or businesses, whichever affords greater coverage.
b. Upon Buyer’s request, Seller shall send a “Certificate of Insurance” showing Seller’s compliance with these requirements. Seller shall name Buyer as an additional insured for the duration of this Agreement.
c. Insurance maintained by Seller pursuant to this provision of the Agreement shall be considered primary with respect to the Buyer’s interest and is not contributory with any insurance that Buyer may carry.
20. Intellectual Property
a. Seller warrants that it has the right to manufacture and/or transfer the Work hereunder and Buyer has the right to use, lease or sell any such goods and services without infringing the rights of any third party.
b. Seller shall, at its own expense, indemnify, hold harmless and defend Buyer against any liability, claim, suit or proceeding brought against Buyer which is based on a claim, whether rightful or otherwise, that Work furnished under this Agreement constitutes an infringement of any patent, copyright, trademark, trade secret or other third party proprietary right, and Seller shall pay all damages, costs or expenses, including attorneys’ fees, of Buyer in connection therewith.
c. In case Work furnished under this Agreement is held to constitute an infringement and the use of said Work is enjoined, Seller shall, at its own expense, either procure for Buyer the right to continue using said Work, or replace same with substantially equal but non-infringing goods and/or services meeting the requirements of this Agreement. In the event neither of the foregoing is done, Seller shall be liable to Buyer for all damages arising as a result thereof.
II. Service Work
a. Seller agrees that Buyer shall be the owner of all rights in intellectual property created, conceived, developed or otherwise generated under Service Work in the performance of this Agreement by or on behalf of Seller. Seller hereby assigns and agrees to assign all right, title, and interest in the foregoing to Buyer, including without limitation all copyrights, patent rights and other intellectual property rights therein and further agrees to execute, at Buyer's request and expense, all documentation necessary to perfect title therein in Buyer. Seller agrees that it shall maintain and disclose to Buyer written records of, and otherwise provide Buyer with reasonable access to, the subject matter covered by this clause and that all such subject matter shall be deemed to be confidential information of Buyer and subject to the confidentiality terms herein. Seller agrees to assist Buyer, at Buyer's request and expense, in every reasonable way in obtaining, maintaining, and enforcing Intellectual Property Rights on the subject matter covered by this clause. Seller shall execute written agreements with Seller's employees and agents (including, without limitation, contractors) to ensure that Seller can comply with the terms herein, including the intellectual property and confidentiality terms.
b. Seller will use commercially reasonable efforts to ensure that the Work and/or Service Work performed and delivered under this Agreement shall not infringe or otherwise violate the Intellectual Property Rights of any third party in the United States or any foreign country. To the extent Seller or one of its agents causes or contributes to an infringement or violation of Intellectual Property Rights of a person or entity as described below, Seller agrees to defend, indemnify and hold harmless Buyer, its stockholders, officers, directors, employees, agents, and customers from and against any claims, damages, losses, costs and expenses, including reasonable attorneys' fees, but excluding any indirect, punitive, special, exemplary, incidental or consequential damages of whatever kind or nature, but not excluding damages for willful infringement, arising out of any action by a third party that is based upon a claim that the Work and/or Service Work performed or delivered by Seller or one of its agents under this Agreement infringes or otherwise violates the Intellectual Property Rights of any person or entity.
c. Seller grants Buyer a paid-up, royalty free, perpetual, transferable non-exclusive license under all Intellectual Property Rights (and the right to sub-license such rights) owned or controlled by Seller or its agents, and needed to fully exploit any Work and/or Service Work generated in the performance of this Agreement by or on behalf of Seller.
This Agreement shall be construed neutrally with respect to Seller and Buyer, and the role of either Party in drafting or negotiating this Agreement shall not be relevant to disputes relating to this Agreement or to the interpretation or enforcement of this Agreement.
22. Limits on Liability
IN NO EVENT SHALL BUYER BE LIABLE TO SELLER OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST REVENUE, INCIDENTAL, INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT, WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
23. Material Breach
Seller’s breach of any promise in this agreement including, but not limited to the promises under the headings “Assignment or Delegation”, “Confidentiality”, “Compliance with Laws”, “Delivery”, and “Warranty” will result in immediate Termination of this Agreement.
24. New Materials
Work provided by Seller shall consist of new materials, not used, recycled, or reconditioned, or of such age as to impair its usefulness or safety unless otherwise agreed by Buyer in writing.
a. Seller agrees not to interfere with the business of Buyer in any manner.
b. Seller of custom goods or services to Buyer further agrees not to solicit or induce any employee or independent contractor to terminate or breach an employment, contractual, or other relationship with Buyer, during and for a period of two (2) years immediately after the termination or expiration of this Agreement.
Except as otherwise provided herein, all notices to be furnished by the Seller shall be in writing and promptly sent to the Buyer Purchasing Representative.
27. Order of Precedence
Any inconsistencies in the Agreement shall be resolved in accordance with the following descending order of precedence: (1) terms appearing on the face of Buyer’s Purchase Order; (2) exhibits or attachments to Buyer’s Purchase Order as applicable, including any special terms and conditions listed therein; (3) Any signed master purchase agreement between the parties, and (4) these Corporate Purchasing Terms and Conditions.
28. Ownership of Work Product
a. For the purposes of this Agreement, “Work Product” shall include, without limitation, all designs, discoveries, creations, works, devices, masks, models, work in progress, service deliverables, inventions, products, computer programs, procedures, improvements, developments, drawings, notes, documents, information, and materials made, conceived or developed by Seller alone or with others which result from or relate to the work performed hereunder. “Work Product” does not include goods that are manufactured by Seller and sold to Buyer without having been designed, customized, or modified for Buyer.
b. Work Product, at all times shall be held as the sole and exclusive property of Buyer. Seller hereby agrees to irrevocably assign and transfer all of its right, title, and interest in and to the Work Product including all associated intellectual property rights to Buyer.
29. Packing and Shipment
a. Unless otherwise specified, all Work is to be packed in accordance with reasonable commercial practice. No charge will be allowed for packing, boxing, or cartage unless otherwise agreed to by Buyer in writing.
b. A complete packing list shall be enclosed with all shipments. Seller shall mark containers or packages with necessary lifting, loading, and shipping information, including Buyer Purchase Order number, item number, and the names and addresses of consignor and consignee. Bills of lading shall include the Buyer PO number.
30. Payment, Price, and Taxes
a. Buyer shall pay Seller (1) the amount agreed upon and specified in the PO, or (2) Seller’s price on date of shipment of goods or commencement of services, whichever is lower, as full consideration for the Seller’s performance pursuant to this Agreement. Seller represents that the price charged for the Work covered by this Agreement does not exceed the lowest price charged by Seller to buyers of a similar class for similar goods under similar conditions. Seller represents that prices comply with applicable government regulations in effect at time of quotation, sale, or delivery.
b. Prices specified by Seller shall include all shipping and transportation charges. Applicable sales tax shall be set forth as a separate line item. Unless otherwise agreed, the contract price will include all applicable federal, state and local taxes of any kind in effect on the date of Buyer’s purchase order.
c. No additional charges or taxes will be charged as a result of failure by Seller to have included any applicable tax or transportation charge or as a result of any change in Seller’s tax liabilities.
d. Seller shall bear any and all transportation taxes assessable upon the goods prior to receipt and acceptance by Buyer.
e. Seller shall invoice Buyer for all goods delivered and all services actually performed. Each invoice must be provided to Buyer within ninety (90) days of completion of the services or delivery of the goods and must reference the applicable purchase order. Buyer reserves the right to return all incorrect invoices. Buyer may adjust Seller’s invoice for shortages, rejections or other failure to comply with the requirements of this agreement, and make payment accordingly.
f. Buyer shall pay the invoiced amount within sixty (60) days after receipt of a correct invoice, or within the time mutually agreed upon with the Seller. Seller will receive no royalty or other remuneration on the production or distribution of any products developed by Seller in connection with or based on the Work hereunder this Agreement.
a. For the purchase of goods, Seller’s sole remedy in the event of breach of this Agreement by Buyer shall be the right to recover damages in the amount equal to the difference between market price of the work completed at the time of breach and the purchase price specified in this Agreement.
b. No alternate method of measuring damages shall apply. Seller shall have no right to resell goods for Buyer’s account in the event of wrongful rejection, revocation of acceptance, failure to make payment, or repudiation by Buyer, and any resale so made shall be for the account of the Seller.
32. Risk of Loss and Title
a. Seller assumes all risk of loss until receipt of all goods by Buyer.
b. Title to the goods shall pass to Buyer upon receipt and acceptance of the goods by Buyer.
c. If the goods are destroyed prior to title passing to Buyer, Buyer may cancel the Agreement or require delivery of substitute goods of equal quantity and quality. Such delivery will be made as soon as commercially practicable. In the case of a partial loss of goods, Buyer shall have the right to require delivery of the goods not destroyed.
33. Quality Control
a. Unless this Agreement contains other specific quality requirements, Seller shall provide and maintain a quality control system to an industry recognized quality standard for the work covered by this Agreement.
b. Records of all quality control inspection work by Seller shall be kept complete and available to Buyer and its customers.
If any provision of this Agreement shall be deemed to be invalid, illegal, or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. Both Parties agree to replace any invalid provision with a valid provision that closely approximates the intent and economic effect of the invalid provision.
35. Stop Work Order
a. Seller shall stop work for up to ninety (90) days in accordance with the terms of any written notice received from Buyer, or for such longer period of time as the Parties may agree.
b. Seller shall take all reasonable steps to minimize the incurrence of costs allocable to the work covered by this Agreement during the period of work stoppage.
c. Within such period, Buyer shall either terminate this Agreement or continue the work by written notice to Seller. In the event of a continuation, an equitable adjustment in accordance with the principles of the “Changes” clause shall be made to the price, delivery schedule, or other provision affected by the work stoppage, if applicable, provided that the claim for equitable adjustment is made within thirty (30) days after such continuation.
Any obligations and duties which by their nature extend beyond the expiration or termination of this Agreement shall survive the expiration or termination of this Agreement.
a. Buyer may terminate this Agreement upon written notice to Seller if Seller fails to perform or otherwise breaches any promise in this Agreement, files a petition in bankruptcy, becomes insolvent, or dissolves. In the event of such termination, Buyer shall pay Seller for the portion of the work satisfactorily performed and those conforming goods delivered to Buyer through the date of termination, less appropriate offsets, including any additional costs to be incurred by Buyer in completing the work.
b. Buyer may terminate this Agreement for any other reason upon thirty (30) days’ written notice to Seller. Seller shall cease to perform work under this Agreement on the date of termination specified in such notice. In the event of such termination, Buyer shall be liable to Seller only for those services satisfactorily performed and those conforming goods delivered to Buyer through the date of termination, less appropriate offsets.
c. Seller may terminate this Agreement upon written notice to Buyer, if Buyer fails to pay Seller within thirty (30) days after Seller notifies Buyer in writing that payment is past due.
d. Upon the expiration or termination of this Agreement for any reason (1) each Party will be released from all obligations to the other arising after the date of expiration or termination, except for those which by their terms or nature survive such termination or expiration; and (2) Seller will promptly notify Buyer of all Buyer Information or any Work Product in Seller’s possession and, at the expense of Seller and in accordance with Buyer’s instructions, will promptly deliver to Buyer all such Information and/or Work Product.
e. Seller shall continue all work not terminated.
38. Timely Performance
a. Time is of the essence. Seller’s timely performance is a critical element of this Agreement.
b. Unless Buyer has authorized advance shipment in writing, Buyer may store at Seller’s expense, or return, shipping charges collect, all Work received in advance of the scheduled delivery date.
c. If Seller becomes aware of difficulty in performing the Work under this Agreement, Seller shall notify Buyer in a timely manner by writing, giving pertinent details. Such notice shall not change any delivery schedule.
d. In the event of a Termination or Change, no claim will be allowed for any manufacture or procurement in advance of Seller’s normal flow time unless there has been prior written consent by Buyer.
a. All tools, dies, jigs, and fixtures specifically manufactured or produced by Seller for the performance of this Agreement whether to the design of Seller, Buyer, or a third party, that are paid for by Buyer are the property of Buyer. The cost of such tooling shall be included in the total price provided for by this Agreement.
b. Tools, dies, jigs, and fixtures made or acquired by Seller for the manufacture of goods which are standard commercial goods, and normally sold to parties other than Buyer shall remain the property of the Seller.
c. Buyer’s tools shall be and remain the property of Buyer. Seller shall use Buyer’s tools solely for the performance of work under this Agreement. Seller shall keep the tools in good repair and condition for the duration of this Agreement. Upon earlier demand by Buyer or termination or expiration of this Agreement, Seller shall at its own cost deliver Buyer’s tools to the Buyer plant in a timely manner.
a. Failure by Buyer to enforce any of the provision(s) of this Agreement shall not be construed as a waiver of the requirement(s) of such provisions(s), or as a waiver of the right of Buyer thereafter to enforce each and every such provision.
b. Buyer’s approval of documents shall not relieve Seller from complying with any requirements of this Agreement.
c. A waiver of any default hereunder or of any term or condition of this Agreement shall not be deemed to be a continuing waiver or a waiver of any other default or any other term or condition.
a. Seller warrants that all goods delivered shall be free from defects in materials and workmanship and shall conform to all applicable specifications for a period of twelve (12) months from the date of delivery to Buyer or for the period provided in Seller’s standard warranty covering the goods, whichever is longer. Additionally, goods purchased shall be subject to all written and oral express warranties made by Seller’s agents, and to all warranties provided for by the applicable laws of Florida. All warranties shall be construed as conditions as well as warranties and shall not be exclusive. Seller shall furnish to Buyer Seller’s standard warranty and service guaranty applicable to the goods.
b. Seller represents and warrants that all services shall be completed in a professional, workmanlike manner, with the degree of skill and care that is required by current, good, and sound professional procedures. Further, Seller represents and warrants that the services shall be completed in accordance with applicable specifications and shall be correct and appropriate for the purposes contemplated in this Agreement. Seller represents and warrants that the performance of services under this Agreement will not conflict with, or be prohibited in any way by, any other agreement or statutory restriction to which Seller is bound.
c. Seller further warrants that at the time of delivery to Buyer it has title to the Goods, free and clear of any and all liens and encumbrances. The foregoing warranties will constitute conditions and are in addition to all other warranties at law or in equity or under this order and will not be deemed to be inclusive.
d. All warranties and service guaranties shall run to Buyer, its successors, assigns, customers and users of its products.
e. Buyer's approval of Seller's material or design will not relieve Seller of the warranties set forth in this clause, nor will waiver by Buyer of any drawing or specification requirement for one or more of the Works constitute a waiver of such requirements for the remaining Works to be delivered hereunder unless so stated by Buyer in writing. The provisions of this clause will not limit or affect the rights of Buyer under this Agreement.
f. If any nonconformity with the goods and services under this agreement appears, Seller at Buyer’s option, shall promptly repair, replace, or re-perform the Work. Transportation of replacement Work, return of non-conforming Work, and repeat performance shall be at Seller’s sole expense. If repair, replacement, or re-performance of Work is not timely, Buyer may elect to return the non-conforming Work or repair, to replace Work, or to re-procure the work at Seller’s expense.
g. Seller warrants that it will take such steps as may be reasonably necessary to prevent personal injury or property damage during any work hereunder that may be performed by any employees, agents or subcontractors of Seller at Buyer’s facility.
42. Social Responsibility and Conflict Minerals
Seller agrees to implement standards pertaining to labor, health & safety, environmental, management systems, and ethics as set forth in the Responsible Business Alliance ("RBA") if such standards are not already in-place. If Seller provides Buyer with Works that contain tin, tungsten, tantalum, or gold, Seller shall provide Buyer with a completed Conflict Mineral Reporting Template (“CMRT”) using the latest version published by the Conflict-Free Sourcing Initiative at the time the Works are provided to Buyer. If any conflict mineral data, including without limitation the smelter names or mine locations, included on the CMRT changes between the time it is furnished to Buyer and the end of that calendar year, Seller will immediately provide an updated CMRT to Buyer.
43. Generative AI Tools
a. Seller will not, without Buyer’s prior written approval in each case, use any Generative AI Tools (as defined below) in connection with the Services to be provided to Buyer under this Agreement, including without limitation using or including the Output (or any derivative work thereof) from any Generative AI Tool in any deliverable or work product delivered by Seller to Buyer. For purposes of the foregoing, the term “Generative AI Tool” means any software, technology, tool, or service (including any online or cloud-based service) that (i) uses or relies upon machine-learning models that have been trained on large volumes of data (including, but not limited to publicly available data) and (ii) is capable of generating text, images, sounds, videos, software code, or any other material, information, or content (collectively, “Outputs”) in response to input prompts. The term “Generative AI Tool” includes, but is not limited to, OpenAI ChatGPT, Google Bard, Microsoft Bing Chat (AI-enabled), GitHub Co-Pilot, Amazon CodeWhisperer, and other similar generative AI tools and services, whether publicly or privately available.
d. Seller will indemnify and hold harmless Buyer and its officers, directors, employees, agents and affiliates from and against any claims, suits, actions, proceedings, demands, damages, losses, liabilities, costs and expenses (including reasonable attorneys’ fees) incurred or suffered by them in connection with, arising out of or related to a breach of this Section by Seller or Seller’s use of any Generative AI Tool.