Supplier Terms

1. TERMS AND CONDITIONS. Unless AMOGY and Supplier have entered into a separate, binding procurement agreement, these terms and conditions of purchase (the “Terms”) govern the purchase by AMOGY Inc. (“AMOGY”) of products, goods, materials, components, supplies (“Products”) and/or services (“Services”) from the supplier identified in the applicable Order (the “Supplier”). These Terms, together with AMOGY’s Supplier Code of Conduct (the “SCC”), are incorporated by reference into, and form an integral part of, each purchase order, statement of work, or similar ordering document issued by AMOGY (each, an “Order”). Each Order sets forth the commercial and transactional details specific to the purchase (including, as applicable, pricing, quantities, delivery dates, and specifications), while these Terms establish the general legal terms and conditions governing the parties’ relationship, and the Supplier Code of Conduct sets forth AMOGY’s standards of business conduct and compliance expectations applicable to Supplier. In the event of any conflict among the documents comprising an Order, the following order of precedence shall apply: (i) the applicable Order (including any exhibits or statements of work expressly incorporated therein), (ii) these Terms, and (iii) the Supplier Code of Conduct. The Supplier Code of Conduct shall control only to the extent there is no conflict with the Order or these Terms.
2. PRICES/TAXES, PAYMENT TERMS, AND ACCEPTANCE.
   1. Price. If pricing is not stated in an Order or in an executed procurement agreement, then Supplier’s pricing shall not exceed the lowest prices charged by Supplier to other similarly situated customers. Except as otherwise provided in an Order, such prices are inclusive of applicable value added tax and other similar taxes (collectively “VAT”), freight charges and duties.
   2. Taxes. AMOGY shall pay or reimburse Supplier for Value Added Tax, GST, PST, Sales and Use or any similar transaction taxes imposed on the sale of Products and/or Services sold to AMOGY under an Order provided the taxes are statutorily imposed either jointly or severally on AMOGY. AMOGY shall not pay or reimburse Supplier for any taxes which are statutorily imposed on Supplier including but not limited to, taxes imposed on Supplier’s net or gross income, capital, net worth, property, or any employment related taxes on Supplier or Supplier’s Personnel. Where Services are performed and/or Products are produced, sold or leased by Supplier in the same country as that of use by AMOGY, an Affiliate of AMOGY, or AMOGY’s Customer, then invoicing and payment shall be by and between such local country entities of the parties, unless otherwise agreed upon by the parties in writing. If AMOGY or an Affiliate of AMOGY is required by law to make any deduction or to withhold from any sum payable hereunder, then the sum payable by AMOGY or such Affiliate of AMOGY upon which the deduction is based shall be paid to Supplier net of such legally required deduction or withholding.
   3. U.S. Sales and Use Tax. For U.S. purposes, and notwithstanding any language to the contrary above, prices are exclusive of Sales and Use tax. Such taxes, if applicable, shall be added separately in Supplier’s invoice, and AMOGY shall remit such taxes to Supplier. Supplier will not invoice or otherwise attempt to collect from AMOGY any taxes with respect to which AMOGY has provided Supplier with (i) a valid resale or exemption certificate, (ii) evidence of direct payment authority, or (iii) other evidence, reasonably acceptable to Supplier that such taxes do not apply.
   4. Payment Terms. AMOGY will initiate payment for conforming invoices related to the purchase of Products and/or Services, within 30 days of the receipt of such valid and conforming invoice. AMOGY must be notified of any disputed amounts within 30 days of the receipt of the related invoice. Payment will not constitute acceptance of Products and/or Services or impair AMOGY’s right to inspect. Acceptance shall be when AMOGY deems the Products and/or Services to meet its specified criteria after relevant inspection and/or testing for Products, and written confirmation and/or milestone signoff for Services (“Acceptance”). AMOGY, at its option, and without prior notice to Supplier, shall have the right to set off or deduct from any Supplier’s invoice, any credits, refunds or claims of any kind due AMOGY.
   5. Invoicing. Except as may be prohibited by Applicable Laws, Supplier will implement an electronic invoicing process upon request by AMOGY and at Supplier’s sole expense, to submit invoices electronically to AMOGY or AMOGY’s third- party service provider in the electronic format specified by AMOGY or such third-party service provider. Supplier acknowledges and agrees that use of such process may entail disclosure of information to the service provider about the purchasing relationship between AMOGY and the Supplier, provided that such service provider is bound by AMOGY to confidentiality obligations as to Supplier’s information substantially similar to those provided under these terms. If Supplier fails to implement the electronic invoicing process within a reasonable time (not to exceed ninety (90) days) after AMOGY’s request, AMOGY may withhold payment on any invoice not received electronically until such time as Supplier submits the invoice electronically. In connection with the invoice, Supplier shall also provide all reasonably requested supporting information and/or documentation, including, but not limited to, Purchase Order number, line item, part number, packing list, proof of delivery, certificate of origin, customs documents, and evidence of milestone achievement.
3. SHIPMENT, DELIVERY, AND IMPORT/EXPORT.
   1. Late Delivery/Time is of the Essence. Time is of the essence with respect to Supplier’s performance of its obligations under any Order, including the delivery of Products and/or performance of Services in accordance with the delivery dates, milestones, or schedules specified in an Order or otherwise agreed in writing by Buyer (each, a “Delivery Date”). If Supplier expects that it will not meet the Delivery Date, Supplier shall promptly notify AMOGY of the cause of the anticipated delay, the impacted lines or quantity of Products, the revised delivery date, Supplier’s recovery plan, and all mitigation actions being taken by Supplier. If Supplier fails to deliver the Products or perform the Services by the applicable Delivery Date, AMOGY may, in addition to any other rights or remedies available at law or in equity: (i) require Supplier to expedite delivery or performance at Supplier’s expense; (ii) reschedule delivery or performance without liability to Supplier; (iii) procure substitute products or services from a third party and recover from Supplier any reasonable, documented incremental costs incurred as a result of such delay; and/or (iv) cancel all or any portion of the affected Order without liability to Supplier. Any acceptance of late delivery or performance shall not constitute a waiver of AMOGY’s rights or remedies.
   2. Portion of Products/Services Available. Partial or incomplete shipments require prior written approval from AMOGY. If only a portion of Products and/or Services is available for shipment or performance to meet the Delivery Date, Supplier shall promptly notify AMOGY and proceed unless otherwise directed by AMOGY. Supplier shall be responsible for any cost increase in the shipment of Products due to its failure to meet the Delivery Date and/or if such method does not comply with AMOGY’s shipping instructions.
   3. Non-Compliant Delivery. Over shipments, under shipments, and/or early deliveries may be returned at Supplier’s sole expense, or AMOGY may delay processing the early delivery invoice until the Delivery Date.
   4. Supplier Compliance. Supplier will institute processes, procedures, and controls in order to ensure compliance with the compliance terms applicable to its business dealings with AMOGY including, but not limited to, the AMOGY Supplier Code of Conduct, trade and logistics requirements, AMOGY supplier requirements for safe and legal products, cybersecurity and secure supply chain requirements, social and environmental responsibility requirements, environmental safety requirements, and governmental compliance requirements, as may be provided to Supplier from time to time. Any cost or expense incurred by AMOGY due to Supplier’s failure to comply with the foregoing requirements shall be the sole responsibility of Supplier. AMOGY reserves the right to modify the content of the requirements. Supplier shall provide AMOGY with any reasonably requested documents, materials, and information needed to confirm compliance in accordance with this provision.
   5. Trade Controls. AMOGY and Supplier will comply with all applicable export, import, customs, anti-boycott, economic sanctions, and trade-related laws and regulations of the United States, the European Union and its member states, the United Kingdom, Japan, Korea, Singapore and any other applicable jurisdictions (“Trade Controls”). To this effect, Supplier warrants that: (i) if necessary and upon AMOGY’s request, it will provide AMOGY with the export classification
   6. Import and Customs. Supplier agrees to provide AMOGY annually, or at such other time as requested by AMOGY, a Certificate of Origin, USMCA Certificate, and/or similar import or export related documentation (“Customs and Related Documentation”), as applicable, for any of the items covered by an Order as may be requested by AMOGY. The Supplier agrees to defend, indemnify, cooperate and hold harmless AMOGY and its directors, officers, employees and agents from, with and against any and all actions, claims, suits, proceedings, liabilities, losses, duties, damages, fines, penalties and expenses, including without limitation attorney’s fees, incurred or suffered, jointly or severally arising out of any non-compliance with the "Customs and Related Documentation" requirements above. Supplier warrants that it has complied and shall comply with the requirements set forth in the AMOGY SCC in effect and as may be amended from time to time. Supplier acknowledges that, without limiting any other rights AMOGY may have under these Terms and Conditions, should Supplier discover that Supplier is not in compliance with the AMOGY Supplier Code of Conduct, AMOGY may immediately cancel any outstanding Order, in whole or in part, and terminate any other agreement or relationship it may have with Supplier.
4. CHANGES.
   1. Change or Cancellation. AMOGY may, without charge, change or cancel any portion of an Order including, without limitation, quantity required, designs or specifications prior to shipment provided AMOGY gives Supplier notice. If AMOGY changes or cancels any portion of an Order with respect to tangible Products, Supplier shall provide AMOGY with a written claim for adjustment prior to shipment which contemplates Supplier’s actual costs incurred as a direct result of such change or cancellation which are not recoverable by either: (i) the sale of tangible Products to other parties within a reasonable time or (ii) the exercise by Supplier, in a commercially reasonable manner, of other mitigation measures. If the parties are unable to agree on the adjustment amount, AMOGY may, without any liability to Supplier, terminate an Order as to all Products affected. AMOGY may, without charge, terminate Services under an Order provided AMOGY gives Supplier reasonable notice. As AMOGY’s sole obligation to Supplier resulting from such Services termination, AMOGY will pay Supplier an equitable amount, as determined by AMOGY, for partially completed work in progress and the agreed price for completed Services provided and accepted prior to the date of termination.
   2. No Changes. Supplier shall not make any material changes affecting Products or Services without AMOGY’s prior written consent. This includes, but is not limited to changes in raw materials, sub-tier supplier, manufacturing location, process, tooling, firmware, software, testing/qualification methods, packaging, or certificate of origin.
   3. Forecasts. Any forecasts provided by AMOGY are non-binding estimates and for may only be used for planning purposes. Any such forecasts shall not constitute a commitment of any type by AMOGY.
   4. Discontinuance of Products. Supplier shall provide at least twelve (12) months advance written notice to AMOGY prior to Supplier’s discontinuance of manufacturing any Products. Such notice shall include, at a minimum, AMOGY part numbers, substitutions, and last date that orders will be accepted for such Products. Supplier shall provide AMOGY with a last time buy opportunity, final inventory, tooling, and reasonably assist AMOGY with an alternative part transition.
5. QUALITY.
   1. Quality and Specifications. Supplier shall manufacture, package, label, store, and deliver all Products in strict accordance with: (a) the specifications, drawings, standards, statements of work, and other requirements set forth in the applicable Order or otherwise provided or approved in writing by AMOGY (collectively, the “Specifications”); (b) all applicable laws, regulations, and industry standards; and (c) good manufacturing practices and commercially reasonable quality control standards consistent with best practices in the industry.
   2. Traceability and Inspection. Supplier shall maintain an effective quality management system and adequate records to ensure traceability of materials, components, and manufacturing processes for the Products. Upon reasonable notice, AMOGY may review Supplier’s relevant quality records relating to the Products solely for purposes of verifying compliance with an Order. All Products are subject to AMOGY’s inspection, testing, and acceptance at any time after delivery. Inspection, testing, or acceptance by AMOGY shall not limit or waive Supplier’s warranties or AMOGY’s rights or remedies. Payment for Products shall not constitute acceptance. Supplier will inform its vendors and subcontractors of AMOGY’s right to inspect and shall secure that right for AMOGY if necessary.
   3. Non-Conforming Products. Products that fail to conform to the requirements of an Order, these Terms, or the Specifications (“Non-Conforming Products”) may be rejected by AMOGY at any time, whether or not such non-conformity is discovered upon initial inspection. At AMOGY’s option, Supplier shall, at its sole cost and expense and as AMOGY directs: (a) repair or replace such Non-Conforming Products; (b) refund the purchase price paid for such Products; and/or (c) reimburse AMOGY for reasonable, documented costs incurred in connection with the return, repair, replacement, re-procurement, inspection, testing, handling, or disposition of the Non-Conforming Products, or AMOGY may procure similar Products in substitution for the Non-Complying Products, and Supplier shall refund the cost of the Non-Complying Products and Service and reimburse AMOGY upon demand for all additional costs incurred by AMOGY. Within seven (7) days of receiving notice of nonconformity from AMOGY, Supplier shall provide AMOGY with a containment/corrective action plan that includes final closure timing and expected impact. If any Products are, or are reasonably suspected to be, defective or non-conforming in a manner that may affect safety, regulatory compliance, or AMOGY’s operations, Supplier shall promptly notify AMOGY and cooperate fully with AMOGY in investigating the issue, implementing corrective actions, and, if applicable, conducting a recall or field correction. Except to the extent caused by AMOGY’s misuse or modification of the Products, Supplier shall bear all reasonable, documented costs associated with such corrective actions or recall.
   4. Non-Conforming Services. Services that fail to conform to the requirements of an Order, these Terms, or the Specifications (“Non-Conforming Services”) may be rejected by AMOGY at any time, whether or not such non-conformity is discovered upon initial inspection. In the event of any Non-Conforming Services, AMOGY shall promptly notify Supplier, and Supplier shall, promptly re-perform the non-conforming Services or correct the applicable deliverables at no additional cost to AMOGY. If Supplier is unable to cure the breach within a reasonable period of time, or if re-performance is not commercially practicable, AMOGY may, at its option, receive a refund of the fees paid for the affected Services, without prejudice to AMOGY’s right to seek other remedies available at law or in equity for breaches not subject to this limitation.
6. WARRANTY.
   1. Product Warranties. Supplier represents and warrants that all Products, including software, will (i) be manufactured, processed, and assembled by Supplier or its authorized subcontractors; (ii) be free from malware, known security vulnerabilities, defects in design, material and workmanship; (iii) conform to all relevant specifications and any requirements and certifications regarding any applicable rules, regulations or laws; (iv) be new and contain first-quality components and parts; (v) be free and clear of all liens, encumbrances, restrictions, and claims against title or ownership; and (vi) not infringe any patent, trademark, copyright or other intellectual property right of a third party.
   2. Service Warranties. Supplier represents and warrants that all Services will be performed in a timely, professional, and workmanlike manner, using personnel with the requisite skill, training, and experience, and in accordance with (i) the applicable Order, statement of work, and any specifications or requirements agreed in writing by the parties; (ii) generally accepted industry standards and best practices applicable to the Services; and (iii) all applicable laws, regulations, and professional standards. Supplier further represents and warrants that the Services and any deliverables created by Supplier in connection therewith do not and will not infringe, misappropriate, or otherwise violate any intellectual property rights of any third party.
   3. Survival of Warranties. Except for non-infringement which shall survive indefinitely, all other warranties specified herein shall: (i) survive any inspection, delivery, Acceptance, or payment by AMOGY (ii) be in effect for the longer of Supplier’s normal warranty period or the one (1) year period following the date of Acceptance of the Products and/or Services by AMOGY and (iii) extend to AMOGY and its successors, assigns, and customers.
   4. Epidemic Failure Warranty. Supplier warrants all Products against Epidemic Failure for a period of three (3) years after AMOGY’s Acceptance. Epidemic Failure means the occurrence of the same failure, defect, or nonconformity with an Order in 2% or more of Products within any three-month period. For all Epidemic Failures, Supplier shall provide at its sole cost and expense, containment, replacement, field correction, root cause analysis, and corrective action.
   5. Warranty Remedies; No Limitation of Rights. The warranties provided by Supplier under an Order or these Terms are in addition to, and not in substitution for, any other rights or remedies available to AMOGY at law or in equity. No provision of an Order, including any warranty, cure, repair, replacement, refund, or re-performance obligation, shall be construed to limit, restrict, or waive any remedies available to AMOGY. Without limiting the foregoing, AMOGY’s acceptance of Products or Services, payment for Products or Services, or the exercise or non-exercise of any warranty remedy shall not: (a) constitute a waiver of any breach of warranty or other obligation of Supplier; (b) preclude AMOGY from pursuing any other remedies arising out of or relating to such breach; or (c) limit AMOGY’s right to recover damages, including direct, incidental, consequential, and other damages, to the fullest extent permitted by applicable law.
7. INTELLECTUAL PROPERTY.
   1. Definitions. For purposes of these Terms, “Deliverables” means all work product, inventions, discoveries, designs, developments, software (including source code and object code), firmware, documentation, data, reports, drawings, specifications, processes, materials, improvements, and other materials or results conceived, developed, authored, reduced to practice, or delivered by or on behalf of Supplier in connection with an Order, whether alone or jointly with others. “Background IP” means intellectual property owned or controlled by Supplier prior to the effective date of the applicable Order or developed independently outside the scope of such Order without use of AMOGY’s Confidential Information.
   2. Ownership of Deliverables. All Deliverables shall be deemed “works made for hire” to the maximum extent permitted under applicable law, with AMOGY deemed the author and exclusive owner thereof. To the extent that any Deliverables do not qualify as a work made for hire, Supplier hereby irrevocably assigns, transfers, and conveys to AMOGY all right, title, and interest worldwide in and to such Deliverables, including all intellectual property rights therein (including patents, copyrights, trade secrets, mask works, moral rights, and all other proprietary and industrial property rights), effective upon creation. Such assignment shall include, but not be limited to, all rights to: make, have made, use, sell, offer for sale, import, export, reproduce, modify, adapt, create derivative works, publish, distribute, sublicense, and otherwise exploit the Deliverables in any manner and in any medium now known or later developed; and register and enforce intellectual property rights in AMOGY’s name. For the avoidance of doubt, Supplier retains no ownership interest in Deliverables. Supplier represents and warrants that all employees, agents contractors, and subcontractors involved in the creation of Deliverables are bound by written agreements sufficient to assign intellectual property rights in such Deliverables to Supplier and permit assignment to AMOGY as set forth herein.
   3. Moral Rights Waiver. To the maximum extent permitted by applicable law, Supplier hereby irrevocably waives and agrees never to assert any moral rights, droit moral, or similar rights in or to the Deliverables, and shall cause its employees, contractors, subcontractors and agents to execute written waivers of such rights.
   4. Removal of AMOGY’s Trademarks. Supplier shall remove from all Products rejected, returned or not purchased, AMOGY’s name and any of AMOGY’s trademarks, trade names, insignia, part numbers, symbols, and decorative designs, prior to any other sale, use, or disposition of such Products by Supplier.
   5. Further Assurances. Supplier shall execute and deliver such additional documents and take such further actions as AMOGY may reasonably request to perfect, register, or enforce AMOGY’s rights in the Deliverables, including execution of confirmatory assignments. This obligation shall survive termination of any Order.
8. LICENSE GRANT.
   1. Background IP. To the extent any Products or Deliverable incorporates, is based upon, or requires Supplier Background IP, Supplier hereby grants to AMOGY a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid-up, transferable, sublicensable (through multiple tiers) license to use, reproduce, modify, distribute, display, perform, make, have made, sell, offer for sale, import, export, and otherwise exploit such Background IP solely as incorporated into or necessary for the full use and exploitation of the Deliverables. Except for this license, Supplier retains ownership of its Background IP.
   2. Requirements of Third-Party Licenses. Supplier shall identify all licenses and deliver to AMOGY all materials required to meet the requirements of any licenses for third party software (e.g. open-source software) that is included in the Products by, for example, including a written list of all third-party software included in any Deliverables. Supplier shall comply with all the obligations of each third-party software license (e.g., open-source license) and deliver to AMOGY all the materials required for compliance with such license(s), including, but not limited to, source code, as mandated by the license(s) (the Compliance Materials”). If the Compliance Materials are not included with the Deliverables or other materials that Supplier has previously delivered, Supplier shall deliver within seven (7) days after AMOGY’s request for the Compliance Materials for any software licensed under an open-source license. Supplier shall not use in the Deliverables any source code subject to copyleft license, including, but not limited to, any version of the GNU General Public License (“GPL”) or Affero General Public License (“AGPL”). Supplier represents and warrants that the Deliverables and any licensed Background IP do not include, and are not a derivative work of, any open-source software that would require reciprocal licensing or prohibit commercial use by AMOGY.
9. INDEMNIFICATION, INSURANCE, AND CONFIDENTIAL INFORMATION.
   1. General Indemnification. Supplier agrees to protect, defend, indemnify and hold harmless AMOGY, its affiliates, and each of their respective officers, directors, managers, members, employees, agents, successors, and assigns (collectively, the “AMOGY Indemnitees”) from and against any and all claims, demands, actions, suits, proceedings, losses, liabilities, damages, judgments, settlements, penalties, fines, costs, and expenses (including reasonable attorneys’ fees and costs of investigation and enforcement) of any kind whatsoever (collectively, “Losses”), arising out of, relating to, or resulting from: (i) the design, manufacture, sale, supply, delivery, installation, performance, use or resale of any Products or Services, including any actual or alleged defect, nonconformity, or failure to comply with specifications, warranties, or applicable law; (ii) any breach or alleged breach by Supplier of the Terms or any Order, including any representation, warranty, covenant, or other obligations hereunder; (iii) the negligence, gross negligence, recklessness, or willful misconduct of Supplier or any of its employees, agents, contractors, subcontractors, or representatives (“Representatives”); (iv) Supplier’s failure to comply with any applicable law, regulation, code, standard, or governmental order, including, but not limited to, those related to safety, environmental protection, data protection, or trade compliance; (v) any bodily injury, up to and including death, or damage to or loss of real or personal property caused by or attributable to the Products, Services, or the acts or omissions of Supplier; (vi) any recall, field action, repair, replacement, retrofit, or other corrective action involving the Products, to the extent attributable to Supplier and/or the Products; and (vii) any violation or alleged violation of any employment or labor laws by Supplier, including, but not limited to, worker’s compensation claims, employment claims, tax claims, union/collective bargaining claims, and immigration/work authorization claims made by Supplier’s Representatives. This indemnification obligations set forth herein shall apply regardless of whether the Losses are caused in part by an AMOGY Indemnitee, except to the extent such Losses are finally determined by a court of competent jurisdiction to result solely from the gross negligence or willful misconduct of an AMOGY Indemnitee. Supplier’s obligations under this Section are independent of and in addition to any other rights or remedies available to AMOGY, shall not be subject to any limitation of liability, and shall survive delivery, acceptance, payment, termination, or expiration of an Order or these Terms.
   2. Intellectual Property Indemnification. Supplier agrees to defend, indemnify, and hold harmless AMOGY and its affiliates, subsidiaries, assigns, agents, subcontractors, distributors and customers (collectively “Indemnitees”) from and against all allegations, claims, losses, demands, fees, damages, liabilities, costs, expenses, obligations, causes of action, suits, or injuries, of any kind or nature, arising from any claim that Supplier’s Products or Services, or the use, sale or importation of them, infringes, misappropriates, or otherwise violates any intellectual property right, including, but not limited to patents, copyrights, trademarks, and/or trade secrets. Without limiting the foregoing, Supplier will pay all costs, damages and expenses (including reasonable attorneys’ fees) incurred by AMOGY and/or its Indemnitees and will pay any award with respect to any such claim or agreed to in settlement of that claim. If the use of any Products or Services is enjoined (collectively, “Infringing Products”), Supplier shall at its expense procure the right for AMOGY to continue using or receiving the Infringing Products. If Supplier is unable to do so, Supplier shall at its expense (and at Indemnitees’ option): (i) replace the Infringing Products with non-infringing Products or Services of equivalent form, function and performance; or modify the Infringing Products to be non-infringing without detracting from form, function or performance; or (ii) if unable to replace or modify the Infringing Products, refund in full all monies paid by AMOGY for the Infringing Products and pay all reasonable costs incurred by AMOGY in replacing the Infringing Products.
   3. Procedure for Indemnification Claims. AMOGY shall promptly notify Supplier of any claim. Supplier shall control the defense, provided that Supplier shall not settle any claim imposing liability or obligations on an AMOGY Indemnitee without AMOGY’s prior written consent (not to be unreasonably withheld).
10. INSURANCE. During the performance of an Order, Supplier will maintain in full force and effect, at Supplier’s expense, Workers’ Compensation insurance as required by law or regulation, having jurisdiction over Supplier’s employees. If Workers’ Compensation is through a Social Scheme, which is any compulsory insurance program administered and enforced by government, Supplier agrees to be in full compliance with such laws. Employer’s Liability insurance in amounts not less than the local currency equivalent of U.S. $5,000,000. Where permitted by law, such policies will contain a waiver of the insurer’s subrogation rights against AMOGY. In addition, Supplier shall maintain, at its expense, (A) a Comprehensive General Liability insurance policy covering claims of bodily injury (including death), products and completed operations, contractual liability, and property damage arising out of the use of the Products or the acts or omissions of Supplier under an Order, with limits of not less than U.S. $5,000,000.00; (B) Cyber Liability insurance, including coverage for data breaches, network security failures, and unauthorized access or use of systems or data, with limits not less than U.S. $5,000,000.00; and (C) Professional Liability (Errors & Omissions) insurance covering negligent acts, errors, or omissions in the performance of services under an Order, with limits of not less than U.S. $5,000,000.00. Each policy shall name AMOGY, its officers, directors, and employees as additional insureds (to the extent applicable), and shall provide that coverage thereunder shall not be canceled, non-renewed, or materially modified without at least thirty (30) days’ prior notice to AMOGY. Upon request by AMOGY, Supplier shall promptly supply AMOGY with certificates of insurance evidencing such coverage. In no event will the coverage or limits of any insurance maintained by Supplier under an Order, or the absence or unavailability of any other insurance, limit or diminish in any way Supplier’s obligations or liability to AMOGY hereunder.
11. CONFIDENTIAL INFORMATION. “Confidential Information” includes all information designated by AMOGY as confidential, the existence and the terms and conditions of an Order, and including but not limited to, all information or data concerning the Products and/or Services, general business plans, customers, costs, forecasts, and profits. Except as required for Supplier’s performance under any applicable Order, Supplier shall not use or disclose any Confidential Information obtained from AMOGY or otherwise prepared or discovered by either Supplier or AMOGY and shall protect the confidentiality of Confidential Information with the same degree of care as Supplier uses for its own similar information, but no less than reasonable care. In the event that a valid and enforceable non-disclosure agreement is in place between AMOGY and Supplier, the terms and conditions contained therein shall take precedence over this Section 11, to the extent that there are any conflicts or inconsistencies.
12. PUBLICITY/ADVERTISMENT. Supplier shall not make or authorize any news release, advertisement, or other disclosure to any third party which shall deny or confirm the existence of an Order or reveal the terms of an Order or these Terms without prior written consent of AMOGY.
13. ACCESS TO INFORMATION SYSTEMS. Access, if any, to AMOGY’s Information Systems is granted solely to perform the Services under an applicable Order, and is limited to those specific AMOGY Information Systems, time periods and personnel as are separately agreed to by AMOGY and Supplier from time to time. AMOGY may require Supplier’s employees, subcontractors or agents to sign individual agreements prior to access to AMOGY’s Information Systems. Use of AMOGY Information Systems during other time periods or by individuals not authorized by AMOGY is expressly prohibited. Access is subject to AMOGY business control and information protection policies, standards and guidelines as may be modified from time to time. Use of any other AMOGY Information Systems is expressly prohibited. This prohibition applies even when a AMOGY Information System that Supplier is authorized to access, serves as a gateway to other Information Systems outside Supplier’s scope of authorization. Supplier agrees to access Information Systems only from specific locations approved for access by AMOGY. For access outside of AMOGY premises, AMOGY will designate the specific network connections to be used to access Information Systems.
14. DATA SECURITY AND PRIVACY. Supplier will implement and maintain commercially reasonable privacy and security measures to protect AMOGY Data, Services and Products in accordance with the policies of AMOGY. Supplier shall only collect, store, transfer, share, view, access or otherwise process (“Process”) AMOGY Data and access information systems to the extent and manner necessary to provide the Services, software or Products, in accordance with AMOGY’s instructions, including as set out in any applicable Order or in these Terms. Any access to or use of AMOGY information systems or Processing of AMOGY Data by or on behalf of Supplier for any other purpose shall be deemed a material breach of these Terms by Supplier. Supplier shall not sell, rent, transfer, distribute, disclose, copy, alter, or remove AMOGY Data, AMOGY information system, or Product unless authorized in writing by AMOGY. Supplier shall ensure all Processing of AMOGY Data and provisioning of Services and Products complies with all Applicable Laws. If Supplier cannot Process AMOGY Data or provide Services or Products in accordance with such Applicable Laws and these terms then Supplier shall immediately notify AMOGY in writing. Supplier shall develop, implement and maintain a comprehensive information security program with information security industry standard safeguards, such as ISO 27001/2, to protect AMOGY Data against Security Breach and to provide secure Services or Products. In the event of a suspected security breach, Supplier shall notify AMOGY in writing as soon as reasonably practicable, but in no case more than forty-eight (48) hours after discovering any actual or suspected data security breach. Supplier shall also comply with any different or additional security breach notification requirements as may be provided by AMOGY to Supplier from time to time.
15. GOVERNMENTAL COMPLIANCE.
    1. General. Supplier shall comply with all federal, state, local and foreign laws, rules and regulations applicable to its obligations under these Terms and any applicable Order and, if applicable, its manufacture of the Products. Supplier shall furnish to AMOGY all information, documents, and/or materials required to enable AMOGY to comply with such laws, rules, and regulations in its use of the Products and Services or reasonably requested by AMOGY to confirm compliance with such laws, rules and regulations or with the provisions of these Terms or any applicable Order.
    2. Security. Without limiting Section 12.1, Supplier warrants that in all countries in which Supplier does business, its operations and shipments comply with all applicable laws and regulations regarding security. To the extent applicable to Supplier’s business, Supplier agrees to implement the Security Recommendations set forth by the U.S. Customs Service Customs-Trade Partnership against Terrorism (“C- TPAT”)(https://www.cbp.gov/border-security/ports- entry/cargo-security/CTPAT ) or equivalent security guidelines. In addition, Supplier shall meet or exceed security requirements designated by AMOGY. Supplier and AMOGY may perform a formal, documented security compliance audit on an annual basis, with the first audit taking place upon AMOGY’s request at any time after Supplier’s acceptance of an Order. Supplier shall immediately notify AMOGY in writing of any area where it fails to meet the applicable recommendations of C-TPAT or equivalent security guidelines, or the AMOGY Security requirements. Upon notification of Supplier’s failure to comply, whether by Supplier or through an audit or AMOGY inspection, AMOGY may either terminate the affected Order or grant a waiver of the requirement for a limited time to allow Supplier to become compliant.
    3. Invoice Certification. When and if requested by AMOGY, as a condition precedent to payment thereof, Supplier shall separately certify each invoice as follows: “We certify that contract deliverables listed hereon were produced in compliance with all applicable requirements of Sections 6, 7 and 12 of the Fair Labor Standards Act, as amended, and of regulations and orders of the U.S. Department of Labor issued under Section 14 thereof. We further certify that any and all additional contract deliverables will be produced in compliance with same.”
16. SOCIAL AND ENVIRONMENTAL RESPONSIBILITY.
    1. Chemical Substances. Supplier warrants that: (i) each chemical substance contained in Products is on the inventory of chemical substances compiled and published by the Environmental Protection Agency pursuant to the Toxic Substances Control Act and (ii) all Material Safety Data Sheets required to be provided by Supplier for Products shall be provided to AMOGY prior to shipment of the Products and shall be complete and accurate.
    2. Take Back. Supplier will accept back, free of charge, any material included in the Products or their packaging, returned freight prepaid, by AMOGY from any country that requires Products be taken back from the user at the end of life of the Products.
    3. Conflict Minerals. For purposes of this provision, “Conflict Minerals” means tantalum, tin, tungsten, gold, and any other mineral or its derivatives determined by the U.S. Secretary of State to be financing conflict in the Democratic Republic of the Congo (“DRC”) or adjoining countries, as well as any additional minerals subject to analogous reporting obligations under applicable law. Supplier represents and warrants that is shall: (i) comply with all applicable U.S. federal, state, and international laws and regulations governing Conflict Minerals, including reporting, due diligence, disclosure, and record-keeping obligations; (ii) conduct due diligence on the source and chain of custody of Conflict Minerals contained in Products supplied under this Agreement in accordance with the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas (or any successor or similar standards required by law); (iii) provide AMOGY with any certifications, reports, information, disclosures, and supporting documentation reasonably requested by AMOGY to demonstrate compliance with applicable Conflict Minerals laws, including without limitation SEC Form SD and associated Conflict Minerals Report, as required; (iv) promptly notify AMOGY in writing if Supplier becomes aware that any Product supplied hereunder contains Conflict Minerals that are not “DRC conflict-free” as defined by applicable law or if Supplier’s due diligence identifies actual or potential non-compliance with applicable Conflict Minerals laws; (v) flow down the requirements of this provision to its suppliers of goods, parts, components, materials, processing, or services that are necessary to the manufacturing of Products supplied to AMOGY; and (vi) take commercially reasonable steps to remediate any adverse findings in its supply chain identified through due diligence. Supplier shall maintain all records relating to compliance with this provision for a minimum of five (5) years following delivery of the applicable Products and shall permit Buyer or Buyer’s designee to audit such records upon reasonable notice.
17. AUDIT. During the term of an Order and for a period of five (5) years following the expiration or termination of said Order, AMOGY or its designated representative may, upon reasonable prior notice and during normal business hours, audit Supplier’s books, records, systems, and facilities to the extent reasonably necessary to verify Supplier’s compliance with the applicable Order, any accompanying terms and conditions, and applicable law. Supplier shall reasonably cooperate with any such audit. Audits shall be conducted in a manner intended to minimize disruption to Supplier’s operations.
18. FORCE MAJEURE. Supplier shall be excused from failure or delay in performance under an Order only to the extent directly caused by events beyond Seller’s reasonable control and not due in any way to its fault or negligence, including acts of God, war, terrorism, civil unrest, governmental actions, natural disasters, epidemics or pandemics, or labor strikes not involving Seller’s workforce (each, a “Force Majeure Event”). Supplier shall provide prompt written notice to AMOGY describing: (i) the Force Majeure Event; (ii) its expected duration; (iii) its business continuity/disaster recovery plan; and (iv) all efforts and actions being taken to mitigate the circumstances giving rise to the Force Majeure Event. Supplier shall use diligent, commercially reasonable efforts to mitigate the effects and resume full performance as soon as practicable, including, but not limited to, using alternative sources, alternative locations, and expeditious shipping/transportation options. Increases in cost, supply chain disruptions, shortages of materials, or subcontractor failures shall not constitute Force Majeure Events unless directly caused by an otherwise qualifying event. A Force Majeure Event shall not excuse Seller’s obligations to (a) comply with applicable law, (b) maintain confidentiality, (c) honor warranties, or (d) indemnify AMOGY. If any Force Majeure Event continues for more than thirty (30) days, or materially impairs Seller’s ability to perform, AMOGY may, upon written notice, terminate the affected Order or other agreement without liability and receive a refund of any prepaid amounts for goods not delivered or services not performed.
19. REMEDIES. AMOGY hereby reserves all rights and remedies set forth in these Terms, an Order, or that are available at law or in equity. All such remedies are cumulative and may be exercised by AMOGY separately or concurrently. No remedy shall be deemed exclusive unless expressly stated to be exclusive in these Terms or the applicable Order. Except as expressly stated in these Terms or the applicable Order, AMOGY’s rights and remedies shall not be limited, waived or restricted by any limitation or liability, exclusion of damages, or other restriction proposed by Supplier. The exercise of any remedy shall not preclude the exercise of any other remedy.
20. TERMINATION.
    1. For Convenience. AMOGY may terminate an Order, in whole or in part, for convenience upon thirty (30) days’ prior written notice to Supplier. In the event of such termination, Supplier’s sole and exclusive remedy shall be payment for (i) Products shipped and accepted or Services performed by Supplier through the effective date of termination, and (ii) any unavoidable, reasonable, and documented out-of-pocket expenses incurred by Supplier prior to the effective date of termination that are expressly authorized in, and supported by, these Terms or the applicable Order. In no event shall Supplier be entitled to lost profits, anticipated overhead, or any other consequential, incidental, or special damages arising from a termination for convenience.
    2. Termination For Cause. Either party may terminate an Order upon fourteen (14) days’ prior written notice if the other party materially breaches the terms of the Order and fails to cure such breach within the fourteen (14)-day notice period. For purposes of this Section 20(B) The term “material breach” shall include, without limitation, any: (i) proceeding, whether voluntary or involuntary, in bankruptcy or insolvency; (ii) appointment, with or without a Party’s consent, of a receiver or an assignee for the benefit of creditors; (iii) failure of Supplier to provide AMOGY with reasonable assurances of performance on AMOGY’s request; or (iv) other failure to comply with an Order. In the event that AMOGY terminates an Order in whole or in part for cause, AMOGY may procure, products or services substantially similar to the Products or Services that were subject to the terminated Order. Supplier shall reimburse AMOGY upon demand for any and all additional costs incurred in connection with the substitute products or services.
    3. Effect of Termination. Upon termination for any reason, Supplier shall promptly cease all work under the affected Order except as necessary to mitigate costs or as directed by AMOGY.
21. ANTI-CORRUPTION LAWS.
    1. Compliance with Anti-Corruption laws. Supplier agrees that it is familiar with the provisions of the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act and other applicable anti-corruption legislation in other jurisdictions in which Supplier conducts business or which otherwise apply to Supplier (collectively, and with related regulations, the “Anti- Corruption Laws”), and that it shall not in connection with the transactions contemplated by any Order make any payment or transfer anything of value, offer, promise or give a financial or other advantage or request, agree to receive or accept a financial or other advantage either directly or indirectly to any government official or government employee (including employees of a government corporation or public international organization) or to any political party or candidate for public office; or to any other person or entity with an intent to obtain or retain business or otherwise gain an improper business advantage in violation of Anti-Corruption Laws. Supplier further agrees that it will not take any action which would cause AMOGY to be in violation of any Anti-Corruption Laws. Supplier will promptly notify AMOGY if it becomes aware of any such violation and indemnify AMOGY for any losses, damages, fines or penalties that AMOGY may suffer or incur arising out of or incidental to any such violation. In case of breach of the above, AMOGY may suspend or terminate an Order at any time without notice, liability, or indemnity. Supplier shall, upon AMOGY’s request, allow AMOGY to conduct periodic audits of Supplier’s books and records to ascertain compliance with applicable Anti-Corruption Laws. This provision will survive termination of an Order for any reason. Each of Supplier’s employee, agent, representative, subcontractor, or other party who has been or will be engaged by Supplier in connection with an Order will be made aware of the above obligations; will agree to comply with them; and will have signed, prior to beginning such involvement, an agreement with Supplier stating that they are aware of the above obligations and agree to comply with them. In addition, Supplier is and will be responsible for and will indemnify AMOGY to the greatest extent permitted by law against any and all liability that may arise from the actions of such employee, agent, representative, subcontractor, or other party and any of their failures to comply with these Terms or any applicable Order and/or their corresponding agreement with Supplier.
    2. Failure to Comply. Supplier understands and acknowledges that failure to comply with or being found by AMOGY at AMOGY’s sole discretion, to be incapable of complying with Supplier’s industrial security obligations under an Order shall constitute a material breach of the affected Order and AMOGY shall have the unilateral right to terminate the affected Order for cause or require Supplier to implement and give to AMOGY a satisfactory remediation and mitigation plan. Such plans shall become part of Supplier’s Obligations under these Terms and the applicable Order, including, but not limited to, AMOGY’s right to audit.
22. MISCELLANEOUS.
    1. No Assignment. Supplier shall not delegate or assign its rights or obligation without AMOGY’s prior written consent. Any attempted delegation or assignment by Supplier without such consent shall be void.
    2. Choice of Law. All Orders shall be interpreted and governed by the domestic laws of the state of New York, without regard to its conflict of laws principles. The parties irrevocably agree that any legal action or proceeding arising out of or relating to an Order shall be brought exclusively in the state or federal courts located within the State of New York, and the parties hereby consent to the exclusive jurisdiction and venue of such courts and waive any objection based on inconvenient forum or otherwise.
    3. Damages Waiver. EXCEPT FOR LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED AS A MATTER OF APPLICABLE LAW, IN NO EVENT SHALL AMOGY, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SUBCONTRACTORS BE LIABLE TO SUPPLIER FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, OR LOST-PROFIT DAMAGES, WHETHER BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, STATUTE, OR ANY OTHER LEGAL OR EQUITABLE THEORY, ARISING OUT OF, RELATING TO, OR RESULTING FROM AN ORDER OR THE PERFORMANCE OR NON-PERFORMANCE OF OBLIGATIONS HEREUNDER, EVEN IF AMOGY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
    4. Limitation of Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, AMOGY’S TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATING TO AN ORDER, THE PRODUCTS OR SERVICES, OR THEIR PERFORMANCE OR NON-PERFORMANCE, SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID OR PAYABLE BY AMOGY TO SUPPLIER UNDER THE APPLICABLE ORDER GIVING RISE TO THE CLAIM. NOTHING IN THIS PROVISION SHALL BE CONSTRUED TO LIMIT OR EXCLUDE LIABILITY TO THE EXTENT SUCH LIMITATION OR EXCLUSION IS PROHIBITED BY APPLICABLE LAW. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS
    5. Relationship of the Parties. The parties are independent contracting parties, and nothing in these Terms or any Order shall be deemed to create any partnership, joint venture, agency, fiduciary, or employment relationship between AMOGY and Supplier. Supplier is an independent contractor and has no authority to act for or on behalf of AMOGY, to represent or bind AMOGY in any manner, or to incur any obligation or liability on AMOGY’s behalf. Supplier shall not hold itself out as having any such authority. Supplier shall be solely responsible for all compensation of its personnel and for the payment of all wages, benefits, payroll taxes, employment taxes, insurance premiums (including workers’ compensation and unemployment insurance), and any other taxes or statutory obligations arising out of its performance under any Order, and Supplier shall indemnify and hold AMOGY harmless from any claims, liabilities, or assessments relating thereto. AMOGY shall not be precluded from independently developing, acquiring from other third parties, distributing or marketing other Products or Services which may perform the same or similar functions as the Products or Services provided by Supplier under any Order.
    6. No Waiver. No failure or delay by AMOGY in exercising any right or remedy shall operate as a waiver thereof, nor shall any single or partial exercise preclude any other or further exercise of any right or remedy. Any waiver must be in writing and signed by an authorized representative of AMOGY.
    7. Survival. Any provisions of an Order or these Terms that by their nature should survive expiration or termination shall survive, including without limitation provisions relating to payment obligations, confidentiality, intellectual property, warranties, indemnification, limitation of liability, audit, and dispute resolution.
    8. Severability. If any provision of an Order or these Terms is held to be invalid, illegal, or unenforceable, the remaining provisions shall remain in full force and effect, and the invalid, illegal, or unenforceable provision shall be deemed modified to the minimum extent necessary to make it enforceable.