Marvell PO Terms of Purchase v102025
1. GENERAL
1. The parties agree to these Purchase Order Terms and Conditions (“Terms and Conditions”) and any terms contained in the Purchase Order. In these Terms and Conditions:
"Buyer" means the Marvell entity on the Purchase Order and any of its affiliates, subsidiaries, successors or assigns.
“Seller” means the entity identified as the vendor on the Purchase Order.
"Purchase Order” means the purchase order issued by Buyer for the supply of Products or Services.
"Products” means the items ordered by the Purchase Order that are provided by Seller to Buyer and encompasses any associated software programs, subscriptions, applications, articles, materials, or other information and property.
"Services” means, individually and collectively, any of the services to be performed by Seller as set forth in the Purchase Order.
1.2 Except where the Purchase Order is issued as an ordering mechanism under the terms and conditions of a separate main agreement in effect between Buyer and Seller (“MSA”), the Purchase Order becomes a binding contract subject solely to these Terms and Conditions when accepted by Seller by (i) Seller’s acknowledgment (electronic or otherwise) of the Purchase Order, (ii) Seller’s commencement of the performance of Services, or (iii) Seller’s delivery of or commencement of the creation of Products (the accepted Purchase Order, together with the Terms and Conditions, the “Agreement”). The Purchase Order is not an acceptance of any terms previously proposed by Seller, each of which is rejected in full. Buyer’s performance is expressly made conditional on Seller’s assent to the terms of the Agreement, which controls over any conflicting terms, and any terms of an order acceptance, invoice or other document (other than a MSA) that are in addition to, or at variance with the Agreement shall have no force or effect.
2. PRICE AND PAYMENT
2.1 PAYMENT. Unless otherwise indicated on the Purchase Order, Buyer will render payment within sixty (60) days from receipt of Products accompanied by a valid invoice. Payment of invoice will not constitute acceptance of Products or Services and will be subject to adjustment for errors, shortages, defects in the Products or other failure of Seller to meet the requirements of this Agreement. Buyer may at any time set off any amount owed by Buyer to Seller against any amount owed by Seller or any of its affiliate companies to Buyer.
2.2 INVOICES. Seller will submit invoices showing the following information: purchase order number; item number; description of item; size of item; quantity of item; unit prices; each applicable tax; extended totals; and any other information specified elsewhere herein. Seller agrees to invoice Buyer no later than sixty (60) days after shipment of Products or provision of Services. Buyer will not be obligated to make payment against any invoices submitted after such period.
2.3 PRICES AND TAXES. The acceptance of the Purchase Order constitutes a warranty that the prices to be charged for Products or Services ordered do not exceed the lowest price charged to any other customer for similar quantities and delivery requirements. Unless otherwise specified, the prices set forth in this Agreement include all applicable federal, state, and local taxes.
3. SHIPMENT, DELIVERY, AND ACCEPTANCE
3.1 PACKING AND SHIPMENT. Unless otherwise specified, Seller will package and pack all Products in a manner which is (i) in accordance with good commercial practice, (ii) acceptable to common carriers for shipment at the lowest rate for the particular Products, (iii) in accordance with all applicable regulations, and (iv) adequate to ensure safe arrival of the Products at the named destination. Seller will mark all containers with necessary lifting, handling, and shipping information and with purchase order numbers, date of shipment, and the names of the consignee and consignor. An itemized packing list must accompany each shipment. No partial or complete delivery will be made prior to the due date or dates shown unless Buyer has given prior written consent. Buyer will pay only for quantities ordered. Overshipments will be held by Buyer at Seller's risk and expense for a reasonable time awaiting shipping instructions. Return shipping charges for excess quantities will be at Seller's expense.
3.2 DELIVERY. Time is of the essence under this Agreement. Unless otherwise specifically provided on the Purchase Order, shipments are DDP (Incoterms 2020) Buyer’s ship-to location (“Destination”). Title shall pass to Buyer upon acceptance of the Products at Destination.
3.3 INSPECTION AND ACCEPTANCE. Notwithstanding any prior inspection or payments, all Products will be subject to final inspection and acceptance by Buyer within a reasonable time after delivery. In case any item is defective in material or workmanship, or otherwise not in conformity with the requirements of the Purchase Order, Buyer will have the right to reject it, and may require its correction, accept it with an adjustment in price, or Buyer may terminate the Agreement in its entirety or cancel any portion of the Purchase Order with respect to the rejected Products. At its expense, Seller will promptly correct or replace any item that Buyer has rejected or required to be corrected. If, after Buyer’s request, Seller fails to promptly replace or correct any defective item, then Buyer (i) may, by contract or otherwise, replace or correct such item and charge to Seller the cost occasioned thereby, (ii) may, without further notice, cancel this Agreement for default in accordance with Section 11 below, or (iii) may require an appropriate reduction in price. Buyer shall have a period of thirty (30) days following completion of Services (or the deliverables produced by such Services) within which to inspect the Services for conformity with the Agreement and Seller’s advertised and published specification and to provide Seller with written notice of any discrepancy or rejection. If the Products delivered or Services performed do not so conform, Buyer shall have the right to reject such Products or Services.
4. FORECASTS, CHANGE ORDERS, AND SUPPLY
4.1 FORECASTS. Buyer may provide Seller a forecast of anticipated Product purchases. Except as the parties otherwise agree in writing, all forecasts are non-binding on Buyer and Buyer may purchase more or less than the quantities specified in a forecast. Seller must immediately notify Buyer of any anticipated inability to satisfy a forecast.
4.2 CHANGE ORDERS. Buyer may at any time, by a written order or notice, suspend performance, increase or decrease the ordered quantities, change the due date, or make changes in any one or more of the following: (i) applicable designs or specifications; (ii) method of shipment or packing; and/or (iii) place of delivery.
4.3 SUPPLY. If there is a shortage in materials, labor, or Products, or any combination thereof, Seller will fulfill the Purchase Order and all associated Buyer purchase orders no less favorably than any other customer of Seller. Seller will provide Buyer with as much notice as possible if it anticipates or has reason to believe that Seller’s output of the Products will not be sufficient to meet all of Buyer’s requirements for any period.
4.4 INTELLECTUAL PROPERTY. Seller assigns to Buyer, as a “work for hire,” all rights, title and interest in and to any Intellectual Property (defined below) rights with respect to all writings, software, drawings, or other copyrightable material, mask works, inventions, improvements, developments and discoveries made, conceived or reduced to practice by Seller during the course of its performance of the Services. For all Intellectual Property embodied in the Products or deliverables in which (a) Seller does not have the legal right to assign ownership to Buyer, or (b) Seller can establish was its own Intellectual Property existing prior to this Agreement and is or is part of a generally available commercial product, Seller hereby grants Buyer and its affiliates a fully paid-up, worldwide, perpetual license to install execute, use, copy, test, display, perform and distribute such Intellectual Property for Buyer’s particular use. “Intellectual Property” means any information and all worldwide rights in, arising out of, or associated with (i) procedures, designs, inventions, and discoveries; (ii) works of authorship, copyrights, and other rights in works of authorship; (iii) mask work rights, and (iv) know-how, trade secrets on a worldwide basis, including all patents issued or issuable thereon, and all trademarks, trade names, or other forms of corporate or product identification.
4.5 SUBCONTRACTORS. Seller will not delegate or subcontract any portion of the supply of Products or Services without Buyer’s prior written consent. If Buyer approves in writing for Seller to subcontract any portion of the Products or Services, Seller remains fully liable and responsible (i) for performance of the Services and the supply of Products, (ii) to ensure that the subcontractor has complied with all of Seller’s obligations hereunder, and (iii) for the acts and omissions of the subcontractor, its employees and agents (including independent contractors, consultants, and subcontractors).
5. WARRANTY
5.1 Seller warrants that all Products, or “works for hire,” or deliverables delivered (i) will be free from defects in workmanship, material, and manufacture, (ii) will comply with the requirements of this Agreement, including any drawings or specifications incorporated herein or samples furnished by Seller, (iii) where design is Seller's responsibility, will be free from defects in design, (iv) will be free from security interests, liens or encumbrances, (v) will be new and not used or refurbished and not contain used or refurbished parts unless so indicated in the Purchase Order, (vi) will contain only materials obtained directly from the original component or equipment manufacturer (or an authorized reseller or distributor), and (vii) not infringe the intellectual property rights of any third party. Seller warrants that all Products purchased hereunder will be of merchantable quality and will be fit for the purposes intended by Buyer. Seller warrants that it will notify Buyer in writing twelve (12) months prior to implementing any material change to or discontinuance of any Products, including any change to its form, fit, function, design, appearance, location of manufacture, components, component vendor, SKU, or manufacturing process. Seller warrants that the Services will conform to the specifications in the Agreement, and that the Services will be performed in a professional and workmanlike manner consistent with the highest professional standards in Seller’s industry. The foregoing warranties are in addition to all other warranties, whether express or implied, and will survive any delivery, inspection, acceptance or payment by Buyer. All warranties run to the benefit of Buyer and its customers. Buyer's approval of Seller's materials or design will not relieve Seller of any warranties.
5.2 If any Products or deliverables delivered do not meet the warranties specified herein or any other applicable warranties, Buyer may, at its option, (i) require Seller to correct any defective or nonconforming Products by repair or replacement at no cost to Buyer, or (ii) return such defective or nonconforming Products to Seller at Seller's expense and recover from Seller the Purchase Order price thereof, or (iii) correct the defective or nonconforming Products itself and charge Seller with the cost of such correction. Any corrected, repaired, or replacement Products shall be subject to the warranties in this Section.
6. COMPLIANCE
6.1 COMPLIANCE WITH LAWS. Seller warrants that Seller has obtained any and all consents, permits, licenses, and authorizations necessary for or in connection with providing the Services and Products to Buyer and that Seller and Seller's employees, consultants, and contractors have complied and shall comply with all applicable laws, rules, regulations, ordinances, and codes in performance of Services and provision of Products hereunder. Seller will indemnify, defend and hold Buyer harmless for any loss, damages or costs arising from or caused in any way by any actual or alleged violation of any federal, state or local law, ordinance, rule or regulation, or failure to so comply with this Section.
6.2 RULES AND POLICIES. Seller warrants that if it and/or its employees or agents (including approved independent contractors, consultants and subcontractors) are present on Buyer’s premises or using any Buyer property or resources, that they will comply with Buyer’s policies, directions, instructions, and rules applicable to visitors, including but not limited to those relating to the safety and security of persons and Buyer’s facilities, property, networks, technology, and Intellectual Property rights.
6.3 CODE OF CONDUCT. Seller warrants that it shall comply with the Marvell Supplier Code of Conduct, which sets forth basic standards that Buyer expects its suppliers to adopt, implement, and adhere to, regardless of local business practices or social customs. The Marvell Supplier Code of Conduct can be found at www.marvell.com, and may be updated from time to time. Seller further agrees that Seller shall not solicit, induce, or otherwise cause any employee or contractor of Buyer to violate the Marvell Supplier Code of Conduct. Seller represents and warrants that as of the date it accepts the Purchase Order, it has disclosed to Buyer, in writing, the existence of any of the following relationships: (i) any relationship between Seller and any officer, director and/or employee of Buyer; and (ii) any relationship between any officer or director of Seller and any officer, director and/or employee of Buyer.
6.4 EXPORT COMPLIANCE. Seller agrees to comply with all applicable export control and sanction laws and regulations. If requested by Buyer, Seller shall provide Buyer with the U.S. Department of Commerce, Bureau of Industry and Security Export Control Classification Number (“ECCN”) or comparable number from any relevant foreign governmental agency, for any and all products, software and technical data supplied hereunder. In addition to the above, Seller confirms that it is not listed on any U.S. government prohibited party list, including but not limited to the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons List, or the Department of State’s Debarred Parties List, as published and revised from time to time.
6.5 ADDITIONAL COMPLIANCE OBLIGATIONS. Seller and its subcontractor(s) shall abide by the requirements of 41 CFR 60-1.4(a), 60-300.5(a), 60-741.5(a). This regulation prohibits discrimination against individuals on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status, and disability status, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment individuals on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, protected veteran status, and disability status.
6.6 GENERATIVE AI. Seller warrants that any Generative AI tools used in the creation or modification of Products or provision of Services to Marvell (other than those provided by Buyer) shall be disclosed in the Purchase Order and/or prominently displayed in the Product documentation. Seller warrants that (i) no Marvell Data is used to train a publicly available Generative AI tool or data set; and (ii) any materials provided to Buyer are labeled with information on the Generative AI Tool utilized. "Generative AI Tools" means any and all machine learning, deep learning, and other artificial intelligence technologies, including statistical learning algorithms, models (including large language models), neural networks, and other AI tools or methodologies, all software implementations of any of the foregoing, and related hardware or equipment capable of generating various types of content (including text, images, video, audio, or computer code) based on user-supplied prompts.
7. PRIVACY & SECURITY
7.1 DATA AND NETWORK SECURITY. To the extent Seller has access to Buyer’s or its affiliates’ information technology systems, confidential or personally identifiable information, or is performing services where Buyer is granting access to a third party platform or cloud service that Buyer or its affiliates use for its internal business purposes (collectively, “Marvell Data”), Seller shall: (a) maintain and enforce an information security program including safety and physical and technical security policies and procedures that are consistent with and are at least equal to applicable best industry practices and standards including obtaining annual third party penetration testing, certifications or assessment reports (e.g. SOC 2 Type II, NIST, ISO or industry-standard successor audit), and onsite inspections of Seller controlled facilities offering services to Buyer; (b) provide technical and organizational safeguards against accidental, unlawful, or unauthorized access to or use, destruction, loss, alteration, disclosure, transfer, commingling or processing of such information that ensure a level of security appropriate to the risk presented by Seller’s access to Marvell Data, consistent with best industry practice and standards; (c) ensure compliance with applicable data security and privacy laws; and (d) take all reasonable measures to secure and defend all locations, equipment, systems, and other materials and facilities employed in connection with the Products or Services against malicious software, “hackers,” and others who may seek, without authorization, to disrupt, damage, modify, access or otherwise use Seller’s systems or the information found therein. Any access to Marvell Data is strictly for the purpose of Seller’s performance under this Agreement. Seller agrees to delete Marvell Data within thirty (30) days of the expiration of the Agreement, unless otherwise required by law or such deletion is infeasible. Any retained Marvell Data shall be treated in accordance with Section 8.1 until it is destroyed.
7.2 NOTIFICATION OF SECURITY INCIDENT. Seller will notify Buyer immediately following the discovery of any incident that involves or reasonably may involve the unauthorized access, use, disclosure, or loss of any Marvell Data or any other suspected breach or compromise of the security, confidentiality or integrity of any Marvell Data (“Security Incident”). Seller agrees that it will use diligent efforts to remedy such Security Incident in a timely manner and refrain from notifying, for or on behalf of Buyer or any Buyer personnel, any regulatory authority, or other person of any such Security Incident unless Buyer specifically requests in writing that Seller do so. No more than ten (10) days following the discovery (or following the date additional material information becomes available), Seller will supplement the initial notification, with information including: (a) the identification of each individual or entity whose information was or is believed to have been involved; (b) a reasonably detailed description of the types of information involved; (c) all other information reasonably requested by Buyer, including all information necessary to enable Buyer to perform and document a risk assessment; and (d) all other information necessary for Buyer to provide notice to a customer, individuals, a government agency, or the media, if required.
7.3 PRIVACY. Seller warrants that at all times Seller will comply with the applicable provisions of all federal, state or local laws or ordinances and all orders, rules and regulations issued thereunder relating to the privacy, security, integrity and availability of personal data, or restrictions on the processing, movement, or transfer of such personal data (“Privacy Laws”). Seller agrees that when collecting, accessing, or using any personal information that can identify an individual, Seller will only collect, access, use and disclose the minimum information necessary to enable Seller to perform its obligations in this Purchase Order, and that it will do so only in accordance with Buyer's instructions. Seller will immediately report to Buyer if there is any disclosures, loss, misuse, unauthorized access, disclosure, alteration, or destruction of personal data. Seller shall be responsible for ensuring that any transfer of personal data complies with all applicable Privacy Laws, including, but not limited to, any cross-border transfer requirements or prohibitions. Seller will, at Buyer’s request or if required by law, enter into an appropriate agreement with Buyer governing any transfer of personal information, including, but not limited to the EU Standard Contractual Clauses, unless another adequacy mechanism for the transfer exists.
7.4 BUSINESS CONTINUITY PLAN. Seller shall develop and provide to Buyer upon request a business continuity plan that reasonably demonstrates business continuity management capability and delineates the prevention and recovery of threats that may interrupt or negatively impact supply. The business continuity plan should be periodically updated by Seller and approved by Buyer, and changes in circumstances that may materially affect supply should be promptly communicated to Buyer, and a plan for resolution should be implemented.
8. CONFIDENTIAL INFORMATION
8.1 NON-DISCLOSURE OF CONFIDENTIAL INFORMATION. Seller shall keep confidential and otherwise protect from disclosure any and all information, data, materials, suggestions, ideas, specifications, customers, plans, or projects, purchases obtained, exposed to, or provided by Buyer in connection with the Agreement, the existence of this Agreement and anything identified as confidential. Seller shall protect Buyer’s confidential information by using the same degree of care, but no less than a reasonable degree of care, to prevent the unauthorized use or disclosure of Buyer’s confidential information as the Seller uses to protect its own comparable confidential information. Seller will not quote for sale to others, without Buyer's written authorization, any Products purchased under Buyer's specifications or drawings. All specifications, drawings, samples, and other data furnished by Buyer will be treated by Seller as confidential information, will remain Buyer's property, and will be returned to Buyer on request. Seller agrees that breach of this Section would cause Buyer irreparable injury, for which monetary damages would not provide adequate compensation and that in addition to any other remedy, Buyer will be entitled to seek injunctive relief against such breach of threatened breach, without proving actual damages or posting a bond or other security.
8.2 NO PUBLICITY. Seller shall not make, use, or authorize any press releases, advertising, sales literature, customer lists, or other publicity relating to or using Buyer’s name, logo, or both, or the existence of this Agreement or any relationship between Buyer and Seller.
9. INDEMNIFICATION
9.1 SCOPE. Seller shall defend, indemnify, and hold harmless Buyer and Buyer's affiliates, directors, officers, employees, sub-licensees, customers, agents, attorneys, successors, and assigns ("Indemnified Parties"), against and from any and all claims, losses, and damages, and other costs (including reasonable attorneys' fees and costs of suit) that may be incurred or asserted against any Indemnified Party arising out of any of the following: (i) the performance of the Services or Seller's other obligations under this Agreement by Seller or its employees, consultants, contractors, or agents; (ii) any claim that any part of the Services, or the Products, or the use thereof: (a) infringes any patent, copyright, trademark right, or other Intellectual Property right of a third party, (b) is a misappropriation of any third party trade secret, and/or (c) harms or causes the death of a person, causes property damage, or violates any other rights of Buyer or a third party; and (iii) any negligence, breach of contract, breach of warranty or representation, willful misconduct, errors, or omissions of Seller. Seller shall not enter into any settlement that affects Buyer's rights or interest without Buyer's prior written approval. The above indemnifications are in addition to all other rights of indemnification of Buyer against Seller.
9.2 PROCEDURE. If a lawsuit is brought against Buyer for which it has a right to indemnity, then: (i) Buyer shall give to Seller written notice promptly after notice of such lawsuit is served on Buyer; (ii) Buyer will tender to Seller control of the defense of such lawsuit; and (iii) Buyer will provide reasonable assistance to Seller at Seller’s expense in the defense of such lawsuit; provided that, if Seller does not promptly accept responsibility for such defense in writing and thereafter diligently pursue the defense thereof, then Buyer may (at Seller's expense) take responsibility for the defense without limiting Buyer's other rights and remedies under this Agreement.
10. LIMITATION OF LIABILITY
BUYER WILL NOT BE LIABLE FOR SPECIAL, INDIRECT, CONSEQUENTIAL (INCLUDING WITHOUT LIMITATION, LOST PROFITS), SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT. BUYER’S LIABILITY FOR ANY CLAIM OF ANY KIND ARISING OUT OF OR RELATING TO THIS AGREEMENT WILL NOT EXCEED THE PRICE OF THE PRODUCT OR SERVICE GIVING RISE TO THE CLAIM. ANY MATERIALS PROVIDED BY BUYER PURSUANT TO THIS PURCHASE ORDER ARE PROVIDED “AS-IS” AND WITHOUT ANY WARRANTY OF ANY KIND, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION ALL WARRANTIES REGARDING ACCURACY, COMPLETENESS, UTILITY, CONDITION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND TITLE.
11. TERMINATION
11.1 BUYER TERMINATION. Buyer, in its sole discretion, may terminate this Agreement and cancel any Purchase Order in whole or in part, at any time, with or without cause by providing notice in writing to Seller. In such event Buyer shall not be liable for any damages, including without limitation termination, cancellation, charge back or restocking charges, damages or other expenses and in no event shall Buyer be liable or incur liability to Seller for any loss of profits, loss of opportunity, or any other costs or damages on the Agreement or portion of an Agreement terminated.
11.2 DEFAULT. If Buyer terminates or cancels this Agreement for Seller's default or breach, Seller shall immediately refund any amounts received by Buyer under this Agreement, and Buyer may procure, upon such terms and in such manner as Buyer may deem appropriate, Products or Services similar or substantially similar to those canceled. Seller will then be liable to Buyer for any excess costs incurred. If all or a portion of this Agreement is canceled for Seller's default, Buyer may require Seller to transfer title and to deliver to Buyer, in the manner and to the extent directed by Buyer, (i) all completed items not yet delivered, and (ii) any partially completed items and materials that Seller has produced or acquired for the performance of the terminated portion. Seller will, upon direction of Buyer, protect and preserve the property listed in this paragraph that is in Seller’s possession. Payment for completed items delivered to and accepted by Buyer under this paragraph will be in an amount (not to exceed the contract price) agreed upon by Seller and Buyer; however, Seller's obligation to carry out Buyer's direction as to delivery, protection, and preservation of the property will not be contingent upon prior agreement as to such amount. Nothing in this Section 11 is intended to excuse Seller from proceeding with any uncancelled portion of this Agreement.
11.3 EFFECT OF TERMINATION. If Buyer has terminated this Agreement for convenience, Seller will stop all work under this Agreement, protect all property in which Buyer has or may acquire an interest, and transfer title and make delivery to Buyer of all articles, materials, work in process, and other things held or acquired by Seller in connection with the terminated portion of this Agreement. Seller will proceed promptly to comply with Buyer's instructions respecting each of the foregoing without awaiting settlement or payment of its termination claim. Buyer will pay Seller the Purchase Order price for all Products delivered and accepted by Buyer or Services rendered, but not previously paid for, up until the date of termination.
12. MISCELLANEOUS
12.1 NOTICES. When notice is required, notice will be given in writing by a recognized overnight carrier or registered mail addressed to the other party. Notices will be sent to the addresses set forth on the Purchase Order or at such other address as either party may provide in writing. A copy of any notice provided to Buyer will be sent to: Marvell Semiconductor, Inc., 5488 Marvell Lane, Santa Clara, California 95054, Attn: Legal Department.
12.2 INSURANCE. Seller agrees to maintain comprehensive public liability and property damage insurance in amounts customarily maintained in Seller’s industry, insuring against liability for, among other things, general liability, auto, worker’s compensation and employer’s liability, bodily injury and property damage.
12.3 AUDIT. Seller agrees that Buyer shall have access to and the right to audit, examine any books, ledgers, support records or documentation, papers, invoices, logs, records and related procedures and controls of the Seller (including its suppliers) involving transactions related to or in connection with this Agreement, including Seller’s obligations under Section 7, to the extent necessary to verify Seller’s compliance with the provisions of this Agreement or the nature and extent of costs incurred under this Agreement.
12.4 INDEPENDENT CONTRACTORS. Buyer and Seller are independent contractors, and no other relationship is intended, including a partnership, franchise, joint venture, agency, employer/employee, fiduciary, or other special relationship. Seller shall defend, indemnify, and hold harmless Indemnified Parties, against and from any and all claims losses and damages, and other costs (including reasonable attorneys' fees and costs of suit) that may be incurred or asserted against any Indemnified Party arising out of (i) any claim that any employee, contractor, subcontractor, or agent of Seller is classified as an employee of Buyer, or (ii) Seller’s failure to comply with applicable employment or labor laws.
12.5 NOTICE OF DELAYS. Whenever any event delays or threatens to delay the timely performance of this Agreement, Seller will immediately notify Buyer of such event and furnish all relevant details. Receipt by Buyer of such notice will not constitute a waiver of the due dates hereunder.
12.6 APPLICABLE LAW AND VENUE. This Agreement and the rights and obligations of the parties with respect to their relationship under this Agreement will be construed and interpreted by the laws of the state of California without regard to any conflict of law principles that would apply any other law. The exclusive jurisdiction and venue of any action under this Agreement shall be the state courts of California for the County of Santa Clara or the United States District Court for the Northern District of California and each of the parties hereto submits itself to the exclusive jurisdiction and venue of such courts for the purpose of any such action. The parties specifically disclaim the UN Convention on Contracts for the International Sale of Goods.
12.7 REMEDIES. Seller acknowledges that a breach of this Agreement cannot be adequately compensated for by money damages and agrees that specific performance is an appropriate remedy for any breach or threatened breach of the Agreement. Accordingly, Seller hereby consents to the issuance of any injunctive relief or the enforcement of other equitable remedies against it at the suit of Buyer (without bond or other security), to compel performance of any of the terms of this Agreement.
12.8 ASSIGNMENTS. No right or obligation under this Agreement may be assigned by Seller without the prior written consent of Buyer, and any purported assignment without such consent will be void. Buyer may assign this Agreement at any time if such assignment is considered necessary by Buyer in connection with a sale of Buyer's assets or a transfer of its obligations.
12.9 CONFLICTS. If there is a conflict between the Agreement and any other documents related to the Products or Services, the order of precedence of the documents will be as follows: (i) the MSA, (ii) the Terms and Conditions, (iii) supplemental terms set forth on the front of the Purchase Order, and (iv) other document(s) incorporated into the Agreement by reference, if any.
12.10 SEVERABILITY. The parties intend that if a court holds that any provision or part of this Agreement is invalid or unenforceable under applicable law, the court will modify the provision or part to the minimum extent necessary to make it valid and enforceable, or if it cannot be made valid and enforceable, the parties intend that the court will sever and delete the provision or part from this Agreement. Any change to or deletion of a provision or part of this Agreement under this Section will not affect the validity or enforceability of the remainder of this Agreement, which will continue in full force and effect.
12.11 WAIVER. The failure of Buyer to insist on the performance of any term of this Agreement or it exercise of any right under this Agreement shall not be construed as waiving such term or right, and the same shall continue in full force and effect. Any waiver of any right under this Agreement must be given in an express writing signed by an officer of Buyer and shall not be deemed a continuing waiver or a waiver of any other right under this Agreement.
12.12 SURVIVAL. All defined terms and the terms and conditions of Section 5 (Warranty), Section 6.1 (Compliance with Laws), Section 6.2 (Rules and Policies) Section 6.3 (Code of Conduct), Section 6.4 (Export Compliance), Section 8 (Confidential Information), Section 9 (Indemnification), Section 10 (Limitation of Liability), Section 11 (Termination), and Section 12 (Miscellaneous) shall survive termination of this Agreement for any reason.
