TMEIC Terms and Conditions

TMEIC GENERAL TERMS OF SALE (IS-GI)

rev 9-Feb-2023

1. Contract. These General Terms of Sale (these “Terms”) are express conditions of sale and, together with (i) the purchase order or proposal into which these Terms are incorporated by reference or attached (the “PO”), (ii) the Specifications (defined below), and (iii) all other documents attached to the PO, collectively constitute the “Contract”, which (a) is the entire and exclusive agreement between TMEIC Corporation Americas or its affiliate named on the PO (as applicable, “TMEIC”) and the counterparty named on the PO (“Buyer”, and Buyer and TMEIC each a “Party”) regarding the subject matter hereof, including, without limitation, the purchase and sale of equipment and other goods (“Goods”) and services and other non-Goods items (“Services”, and together with Goods, collectively, “Deliverables”) identified in the Contract, and (b) expressly supersedes all prior or contemporaneous oral or written agreements, understandings or communications relating to the subject matter hereof. In the event of conflict, inconsistency or ambiguity in the Contract, the documents will control in the following order of priority: (1) these Terms, (2) the PO, (3) the Specifications, and (4) other documents attached to the PO. Nothing in any Buyer document referenced or hyperlinked in the PO or in any request for proposal, Buyer form, term sheet or other communication or document, whether delivered prior to, on or after the effective date of the PO (the “PO Date”), will be part of the Contract or of any force or effect. The Contract may be modified or supplemented only pursuant to a writing signed by both Parties (and any purported course of performance, course of dealing or usage of trade will be of no effect). No waiver will be effective unless signed by the waiving Party, regardless of any delay or failure to exercise any right or power or insist upon compliance with any obligations, and any waiver will apply only to the specific right, power or obligation and instance.

2. Contract Price. The total price for the Deliverables is as set forth on the PO (the “Contract Price”). Unless provided otherwise herein, the Contract Price includes TMEIC’s standard testing, marking, packing and shipping documentation, all taxes that are for TMEIC’s account under the Incoterm and TMEIC’s income and payroll taxes. The Contract Price excludes all sales, use, value-added, excise or other similar taxes related to the Contract or the price, sale, delivery, performance, use or ownership of the Deliverables (collectively, “Buyer’s Taxes”), and Buyer is responsible for and shall pay the same. If lawful, TMEIC may include any Buyer’s Taxes in any invoice and remit collected taxes to the appropriate authority. If, however, Buyer provides a valid tax exemption certificate before TMEIC generates the applicable invoice, then, if lawful, TMEIC will not include the applicable Buyer’s Taxes therein.

3. Payment. Buyer shall pay TMEIC the Contract Price in accordance with the Contract. Unless provided otherwise herein, payment terms are 30 days from the date on TMEIC’s invoice and the Contract Price will be invoiced as follows: (i) 30% of the Contract Price attributable to Goods, on or after the PO Date, (ii) 70% of the Contract Price attributable to Goods, on a pro-rata basis as shipments are made, and (iii) 100% of the Contract Price attributable to Services, on a pro-rata basis as Services are rendered. Costs incurred by TMEIC due to Buyer’s preferred payment management platform shall be reimbursed by Buyer upon demand. Buyer shall make all payments hereunder by wire transfer to an account designated by TMEIC in writing (or by another payment method approved by TMEIC in writing), without setoff, counterclaim or reduction. If Buyer fails to timely fulfill any of its payment obligations or fails to maintain any applicable parent guaranty or other financial security and does not correct such failure within 7 days after notice, then TMEIC may, at its option, without limiting its other rights and remedies and without liability: (a) terminate the Contract, (b) treat such failure as a repudiation of the Contract, or (c) pursue and be entitled to any remedies for such Buyer Act or Omission (defined below). In addition, Buyer shall pay TMEIC interest on all sums due from and after the due date, until paid in full, at the lesser of: (1) an annual rate of 18%, and (2) the maximum annual rate permitted by applicable law.

4. Pre-Delivery Inspection. Buyer may inspect Goods prior to shipment at the manufacturing or storage location; provided, however, such right is conditioned upon (i) Buyer providing reasonable advance notice to enable coordination of the visit, (ii) the Goods being available at the relevant location and Buyer not interfering with any schedules, (iii) if applicable, the relevant third party agreeing to accommodate such visit, (iv) if requested, Buyer entering into a confidentiality agreement with such third party, and (v) Buyer agreeing to comply with all relevant rules, policies and procedures. Upon request, TMEIC shall provide Buyer the results of standard factory tests as may be available. The pre-shipment inspection of Goods will not affect TMEIC’s obligations hereunder.

5. Delivery. Any delivery dates specified in the PO are approximate and contingent upon prompt receipt of all necessary information from Buyer. The Incoterm and delivery point for the Goods are as stated in the PO; provided, however, if the PO fails to specify the Incoterm or delivery point, then the delivery terms will be EXW (TMEIC selected manufacturing or storage location) Incoterms 2020. Title and risk of loss of a Good will pass from TMEIC to Buyer upon delivery of such Good to the delivery point in accordance with the Incoterm. Upon delivery, Buyer shall immediately inspect the Goods for visible damage, and may reject damaged Goods by providing written notice to TMEIC within 3 days after delivery; provided, however, such notice must be accompanied by all documentation and evidence required for a successful claim with the carrier or insurer, otherwise TMEIC will have no liability for such damage. If a Good is properly rejected within such 3-day period, TMEIC shall promptly repair or replace such Good (or portion thereof) to bring it into conformity with the Specifications, which will be the sole and exclusive liability and remedy for rejection. If Buyer does not properly reject a Good within the 3-day period, such Good will be deemed irrevocably accepted, without prejudice to Buyer’s remedies under Section 8 (for issues other than shipment damage).

6. Services. Unless provided otherwise herein, (i) Services will be billed and paid on a time and materials basis (and no estimate of required Services will be deemed a fixed price), (ii) the price for Services excludes standby, wait time and other delay, which will be separately billed and paid at the applicable Services rates, (iii) the price for Services excludes airfare, hotel, car rentals and other travel and living expenses (including, without limitation, visa related expenses for work outside of the United States), which will be separately billed and paid at cost plus 20%, (iv) travel time will be billed and paid at the applicable Services rates, and (v) TMEIC’s then standard work week, work hours, Services rates, per diems and minimum billable increments will apply.

7. Excusable Cause. Notwithstanding anything to the contrary in the Contract, or otherwise, TMEIC will not be in breach or otherwise liable for any failures or delays in performance due to Force Majeure, Change in Law or Buyer Act or Omission (each as defined below, and collectively, “Excusable Cause”), and TMEIC will be entitled to a time extension equivalent to the duration of the associated delay. “Force Majeure” means any event, condition or circumstance (other than Change in Law or Buyer Act or Omission), regardless of whether foreseeable as of the PO Date, that is beyond the commercially reasonable control of TMEIC, including, without limitation, acts of god, war, unrest, terrorism, sabotage, acts of civil or military authority, transportation disturbances, disease outbreak, epidemic or pandemic, fire, explosion, accident, flood, earthquake, tornado, hurricane, other natural forces and strike or labor disturbance. Impacts from the coronavirus will constitute Force Majeure notwithstanding the present existence of the pandemic and the foreseeability of impacts therefrom. “Change in Law” means any enactment, adoption, promulgation, issuance, repeal, curtailment, extension or other modification or supplementation of any law, regulation, order, rule, standard, code or permit or any change in the interpretation thereof by any court or competent authority, regardless of whether foreseeable as of the PO Date, that adversely affects TMEIC’s cost of or schedule for performance, including, without limitation, new or changed tariffs. In the event of a Change in Law, TMEIC will be entitled to an increase in the Contract Price to the extent of all reasonably documented cost increases arising therefrom, in addition to the time extension above. “Buyer Act or Omission” means any act or omission of Buyer, its customer, site owner or end user, their respective affiliates, the respective lenders, investors, consultants, engineers, contractors or suppliers (of any tier) of the foregoing, their respective affiliates, or the respective shareholders, members, directors, officers, employees, agents or representatives of the foregoing (each, a “Buyer Person”). If TMEIC or its performance is or is likely to be impacted by any Buyer Act or Omission, then TMEIC may, at its option, without limiting its other rights and remedies and without liability: (i) suspend performance, (ii) place on standby, demobilize or reallocate resources, (iii) place Goods in storage, (iv) deem shipment to have occurred for purposes of calculating the Warranty Period (defined below), or (v) invoice Buyer based on the original payment milestones and schedules, notwithstanding that achievement thereof has been prevented or delayed. Further, in addition to the time extension above, Buyer shall, upon submission of TMEIC’s invoices therefor, pay or reimburse TMEIC for all reasonably documented costs arising from such Buyer Act or Omission, plus a 20% markup on all such costs. Additionally, if TMEIC’s performance is delayed or prevented for more than 60 consecutive days or 90 cumulative days due to a Buyer Act or Omission, TMEIC may, at its option, without limiting its other rights and remedies and without liability, terminate the Contract and such termination will be deemed a termination for convenience by Buyer.

8. Limited Warranty. Subject to Buyer’s compliance with the terms and conditions hereof, TMEIC warrants to Buyer, for the duration of the Warranty Period, that (i) Goods (excluding software) will be free from defects in material and workmanship and substantially conform to the applicable technical specifications attached to the PO or, if no technical specifications are attached to the PO, the applicable technical specifications in TMEIC’s proposal (“Specifications”), (ii) Services (excluding software) will be rendered in a good and workmanlike manner, and (iii) software will, at the time of shipment, substantially conform to the Specifications (collectively, the “Limited Warranty”). Notwithstanding the foregoing, any computer, ancillary computer hardware or non-TMEIC software will carry only the contractual express warranties provided by the original sub-vendor to the extent such warranties are transferable to Buyer. TMEIC shall use commercially reasonable efforts to transfer such warranties but will have no liability under or with respect to such warranties. In no event does the Limited Warranty or the associated remedies apply to: (a) any failure, defect or nonconformance of or caused by any item not supplied by TMEIC hereunder, the combination of any Deliverables with any non-TMEIC items or the design of the system or facility into which the Deliverables are installed, (b) cosmetic defects or normal wear and tear, (c) consumables or items with a normal operating life shorter than the Warranty Period, or (d) any Deliverable that has (1) been modified without TMEIC’s prior written authorization, (2) experienced abnormal environmental conditions or physical or electrical stress, misuse, abuse, neglect, negligence or accident, including, without limitation, failure to ensure proper grounding to avoid damage by electrical events, (3) not been properly or timely stored, installed, operated, used, serviced or maintained in conformance with all manuals, specifications, documentation and written recommendations of TMEIC and its suppliers of any tier, (4) been commissioned, serviced, maintained or repaired by anyone other than TMEIC or its authorized service providers, or (5) not been kept free from infestation. The “Warranty Period” means, as applicable, the period ending (A) for Goods (excluding software), the earlier of 12 months after installation and 18 months after shipment, (B) for Services (excluding software), 90 days after rendering, or (C) for software, 90 days after shipment. The Warranty Period will be extended to the extent of the extended warranty, if any, provided for a particular Deliverable in the PO, provided Buyer timely pays for such extended warranty. If Buyer promptly notifies TMEIC in writing of a valid Limited Warranty claim during the Warranty Period, then TMEIC shall, at its option: (y) repair or replace the applicable Good or part thereof, modify or update the applicable software (which obligation is limited to assembling the same into a package and making it available to Buyer) or reperform the applicable Service, in each case to bring the applicable Deliverable or part thereof into substantial conformance with the Limited Warranty, or (z) refund to Buyer the price paid to TMEIC for the applicable Deliverable or part thereof. Buyer shall bear the costs of access (including, without limitation, removal and replacement of systems, structures or other parts of the site or facility), deinstallation, decontamination, reinstallation and transport and movement of Goods, equipment and parts. All claims with respect to any failure, defect or nonconformity of any Deliverables must be communicated to TMEIC in writing before expiration of the Warranty Period, otherwise such claims will be deemed irrevocably waived. The limited remedies in this Section constitute the sole and exclusive liability and remedy with respect to any claims based on or related to any failure, defect or nonconformity of any Deliverables, whether under breach of warranty, breach of contract, tort, strict liability, indemnity or any other theories (now existing or hereafter recognized). EXCEPT FOR THE LIMITED WARRANTY, ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, AND WHETHER ARISING BY LAW, CUSTOM, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, ORAL OR WRITTEN STATEMENTS, OR OTHERWISE (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE), ARE HEREBY EXCLUDED, OVERRIDDEN AND DISCLAIMED. ALL WARRANTY DISCLAIMERS CONTAINED HEREIN ARE INTENDED TO COMPLY WITH APPLICABLE LAW AND SHALL BE ENFORCED TO THE FULLEST EXTENT POSSIBLE THEREUNDER.

9. Indemnification. TMEIC shall indemnify, defend and hold harmless Buyer, its affiliates and their respective directors, officers and employees (each, an “Indemnified Party”) from and against all claims, suits and proceedings (“Claims”), and the losses, damages, costs and expenses (including reasonable attorneys’ fees) asserted or awarded against the Indemnified Party pursuant to such Claims (“Losses”), by any unrelated third party (which excludes all Indemnified Parties and Buyer Persons) for damage to tangible property, bodily injury or death, but in each case only to the extent caused by TMEIC’s negligence in the performance of the Contract, taking into account any joint or concurrent negligence. TMEIC shall also indemnify, defend and hold harmless each Indemnified Party from and against all Claims, and the Losses asserted or awarded against the Indemnified Party pursuant to such Claims, by any unrelated third party for infringement by Deliverables of any patent in effect in the United States, the European Union or Japan or any copyright or trademark registered in the United States, the European Union or Japan; provided, however, TMEIC will have no liability regarding any such claim that is based upon, in whole or in part, (i) any Deliverable that has been modified without TMEIC’s prior written authorization, (ii) the combination of any Deliverables with any non-TMEIC items, (iii) the design of the system or facility into which the Deliverables are installed, (iv) failure to implement any update provided at TMEIC’s cost that would have prevented the claim, (v) unauthorized use of the Deliverables, or (vi) Deliverables made, configured, engineered or performed to the specifications or other requirements any Buyer Person. Should any Deliverable or portion thereof become the subject of an indemnifiable infringement claim, TMEIC shall, at its option, (a) procure for Buyer the right to continue using the Deliverable, (b) modify or replace the Deliverable, in whole or in part, to make it non-infringing, or (c) refund to Buyer the price paid to TMEIC for the infringing Deliverable or part thereof. This Section states the sole and exclusive liabilities and remedies for intellectual property infringement. TMEIC’s obligations and liabilities under this Section are conditioned upon the Indemnified Party (1) promptly notifying TMEIC in writing of the claim, (2) making no admission of liability and not otherwise prejudicing the defense or settlement of the claim, (3) giving TMEIC sole authority to control defense and settlement of the claim, and (4) providing TMEIC with full disclosure and reasonable assistance as required to defend and settle the claim.

10. Termination. In addition to other termination rights in these Terms, the Contract will terminate upon the occurrence of one or more of the following: (i) automatically, if either Party files, or has filed against it, a petition in bankruptcy, insolvency or reorganization, or becomes subject to a composition for creditors, or otherwise avails itself under any laws relating to creditors’ rights, whether by law or agreement, or goes into receivership or otherwise becomes insolvent, or (ii) subject to applicable provisions of these Terms, immediately upon written notice of termination by the non-breaching Party to the breaching Party following (a) failure by a Party to perform any of its material obligations hereunder (other than Buyer’s payment obligations, which are addressed under Section 3), and (b) continuation of such breach for a period of 30 days after written notice thereof from the non-breaching Party, unless, by its nature, such breach is not reasonably susceptible of cure within such period and the breaching Party diligently pursues all commercially reasonable corrective measures, in which case the cure period will automatically be deemed extended during the pendency of such corrective measures. Separately, Buyer may terminate the Contract for convenience upon prior written notice to TMEIC. Upon delivering such notice, Buyer shall immediately pay to TMEIC, without demand, the unpaid balance of the Contract Price.

11. Limitation of Liability; Exclusion of Certain Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE CONTRACT, OR OTHERWISE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL TMEIC BE LIABLE HEREUNDER OR IN CONNECTION WITH THE DELIVERABLES, THE CONTRACT, PERFORMANCE OR NON-PERFORMANCE HEREUNDER OR ACTS OR OMISSIONS RELATING HERETO, WHETHER TO BUYER (OR ANY THIRD PARTY CLAIMING BY, THROUGH OR UNDER BUYER), ANY OF ITS SUCCESSORS, ASSIGNS OR INSURERS OR ANY INDEMNIFIED PARTIES, WHETHER UNDER BREACH OF WARRANTY, BREACH OF CONTRACT, TORT, STRICT LIABILITY, INDEMNITY OR ANY OTHER THEORIES (NOW EXISTING OR HEREAFTER RECOGNIZED), FOR (I) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, TREBLE, PUNITIVE, EXEMPLARY OR OTHER SIMILAR DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST REVENUES OR PROFITS, DOWNTIME, LOSS OF USE, RESULTANT PROPERTY DAMAGE, LIQUIDATED DAMAGES IMPOSED UPON BUYER, COSTS INCURRED BY BUYER OR OTHERS IN CONNECTION WITH DELAY, WARRANTY CLAIMS OR REMEDIAL EFFORTS, LOSS OR CORRUPTION OF DATA AND COST OF CAPITAL, REGARDLESS OF WHETHER TMEIC HAS BEEN ADVISED THAT SUCH DAMAGES MAY BE INCURRED OR WHETHER SUCH DAMAGES ARE OTHERWISE FORESEEABLE, AND BUYER SPECIFICALLY AND IRREVOCABLY WAIVES ALL OF THE FOREGOING DAMAGES, CLAIMS AND CAUSES OF ACTION, OR (II) ANY AMOUNT(S) INDIVIDUALLY OR CUMULATIVELY IN EXCESS OF AN AGGREGATE AMOUNT EQUAL TO THE CONTRACT PRICE OF THE APPLICABLE CONTRACT; PROVIDED, HOWEVER, THE FOREGOING SUBCLAUSE (I) SHALL NOT BE CONSTRUED TO EXCLUDE TMEIC’S INDEMNIFICATION OBLIGATIONS UNDER SECTION 9.

12. Confidential Information. “CI” means information disclosed by or on behalf of one Party or its affiliates to the other Party, regardless of form or medium, that relates to the Contract or the business of disclosing Party or its affiliates and is designated as confidential in writing at the time of disclosure or by written notice within 10 days thereafter; provided, however, “CI” does not include information (i) receiving Party can demonstrate was in its possession prior to the PO Date, (ii) publicly available prior to disclosure hereunder, or thereafter publicly available through sources other than receiving Party, its affiliates or their respective shareholders, members, directors, officers, employees, agents, professional advisors, consultants or contractors or suppliers of any tier (“Representatives”), (iii) lawfully obtained by receiving Party from a third party not known by receiving Party to be subject to any relevant confidentiality obligation, or (iv) developed independently by receiving Party without use of CI received hereunder. Receiving Party shall (a) protect the confidentiality of CI received hereunder, (b) not use (or permit use of) such information for any purpose other than performance hereunder or the authorized use and enjoyment of Deliverables, (c) not disclose such information to any person or entity except its Representatives that need to know such information in furtherance of the permitted purposes above and are informed of the confidential nature of such information, and (d) be responsible for any breach of this Section caused by any of its current or former Representatives that received such information. The foregoing obligations of confidentiality will not apply to CI that receiving Party is compelled to disclose pursuant to a court order, subpoena, request for information or other legal process (“Legal Process”); provided, however, after receipt of any such Legal Process, receiving Party shall, if lawful: (1) promptly notify disclosing Party, (2) reasonably cooperate with disclosing Party’s taking of legally available steps in its own name to resist or narrow such Legal Process, and (3) furnish only that portion of CI as is legally required in the opinion of receiving Party’s counsel. Except for the Limited License (defined below), each Party agrees and stipulates that no license or any other right or interest is granted in, to or under any intellectual property or CI by the Contract or disclosure hereunder. Receiving Party agrees and stipulates that disclosing Party would be irreparably injured by a breach of this Section and that, in such event, disclosing Party will be entitled, in addition to all other available remedies, to bring proceedings in a court of competent jurisdiction to seek a restraining order or injunction. Receiving Party shall not dispute the appropriateness of such remedy and shall waive any associated bond requirement.

13. Intellectual Property; Software. “IP” means all intellectual property rights consisting of, arising from, derived from or relating to any of the following: (i) patents, (ii) trademarks, (iii) works of authorship, expressions, designs, design registrations, software, firmware, application programming interfaces, architecture, files, records, schematics, data, data files, databases and other specifications and documentation, whether or not copyrighted or copyrightable, (iv) trade secrets and know-how, (v) industrial and other intellectual property rights, and (vi) all rights, interests and protections that are associated with, equivalent or similar to or required for the exercise of any of the foregoing; in each case, however arising, and whether registered or unregistered, and including, without limitation, all registrations and applications for, and renewals or extensions of, such rights or forms of protection pursuant to the laws of any jurisdiction in any part of the world. Buyer irrevocably agrees and stipulates that, as between the Parties, TMEIC will exclusively own all IP of TMEIC or its affiliates or licensors created prior to the PO Date, all IP developed hereunder or in connection herewith, and all derivative works of the foregoing regardless of the source of development. TMEIC hereby grants to Buyer only a limited, non-exclusive, non-sublicensable, non-transferable (except to a permitted assignee as part of a permitted assignment), royalty-free license to use any software provided hereunder or any TMEIC IP incorporated or embodied in the Goods solely for the use and enjoyment of the software or Goods in the manner contemplated hereby at the site or facility where initially installed (the “Limited License”). No source code is included as part of any Deliverable unless expressly provided otherwise in the relevant TMEIC specification. Except as provided otherwise herein, TMEIC will not be obligated to provide any software updates, maintenance or support, or responsible for any adaptation, evaluation or testing required by reason of any software updates. If TMEIC elects to provide any software updates, the same will be subject to the terms and conditions hereof, unless such updates are provided pursuant to a separate subsequent contract. In addition to and notwithstanding Section 12, Buyer agrees and stipulates that software and related information constitutes valuable trade secret information, and Buyer shall protect the confidentiality thereof and shall restrict use of the software to only its employees. Buyer shall not copy, duplicate, disseminate, distribute, reproduce, reverse engineer, disassemble or decompile, in whole or in part, any Deliverable or TMEIC IP, or otherwise attempt to reconstruct or discover any source code, or remove or modify any copyright, proprietary, trade secret or other similar notices appearing on or in any Deliverable or TMEIC IP. Buyer agrees and stipulates that TMEIC would be irreparably injured by a breach of this Section and that, in such event, TMEIC will be entitled, in addition to all other available remedies, to bring proceedings in a court of competent jurisdiction to seek a restraining order or injunction. Buyer shall not dispute the appropriateness of such remedy and shall waive any associated bond requirement.

14. Nuclear, Military and Government Use. In no case may any Deliverables be sold, transferred or used in connection with any nuclear, military or governmental end-user, facility or activity, including, without limitation, in any manner that would make TMEIC a government subcontractor of any tier, without the prior written consent of TMEIC (which may be withheld in its sole discretion). If Buyer makes, undertakes or permits a sale, transfer or use in contravention of the foregoing, then Buyer shall, to the maximum extent permitted by law, indemnify, defend and hold harmless TMEIC, its affiliates and their respective shareholders, members, directors, officers, employees, agents and representatives from and against all losses, damages, liabilities, penalties, fines, costs and expenses of any kind (including, without limitation, reasonable attorneys’ fees) arising from or relating to any claim asserted in connection with the Contract or any Deliverables.

15. No-Hire. During the period commencing on the PO Date and ending 12 months after TMEIC completes the delivery and rendering of the Deliverables, Buyer shall not, on behalf of itself or any other person or entity, solicit, recruit, entice or persuade any employees or contractors of TMEIC that had contact with Buyer in connection with the Contract to become employees or contractors of Buyer; provided, however, the foregoing will not prohibit Buyer from evaluating, interviewing or hiring any employee or contractor of TMEIC that unilaterally, without any encouragement or contact from Buyer or its representatives or agents, applies for a publicly posted job opening of Buyer. Buyer hereby irrevocably agrees and stipulates that (i) the foregoing restrictions are designed to protect TMEIC’s legitimate business interests, including, without limitation, retaining and protecting its investment in its people and not becoming an involuntary and unpaid employment agency for Buyer, and (ii) the scope of the above restrictions is reasonable in all respects. Further, Buyer hereby irrevocably agrees and stipulates that since damages resulting from a breach of this Section would be difficult to prove or ascertain, in the event of each such breach Buyer will be liable to TMEIC for liquidated damages in the amount of 100% of the TMEIC annualized compensation for each such individual, which constitutes a reasonable estimate of the damages that would likely be suffered by TMEIC as a result of each such breach.

16. Compliance. In connection with its performance hereunder, each Party shall comply with all applicable laws and regulations, including, without limitation, applicable export control, antibribery, antitrust or competition laws and regulations. Without limiting the generality of the foregoing, neither Party may export (or re-export), directly or indirectly, any product, software, technical data or other materials acquired from the other Party to any country for which the United States government or any agency thereof requires, at the time of such export, an export license or other governmental approval, without first obtaining such license or approval. TMEIC is responsible for lawfully delivering the Goods to the delivery point. Compliance of the Goods with laws, regulations, orders, rules, standards, codes and permits after delivery is the responsibility of Buyer. In addition, Buyer is responsible for obtaining and maintaining all licenses, permits and authorizations that relate to the site or facility or are necessary to permit the performance of on-site Services or the receipt of delivery of Goods. Buyer acknowledges and agrees that the work schedule of TMEIC personnel is subject to any applicable state and federal laws and regulations of the United States, as well as those of any other applicable jurisdiction. If TMEIC or its designee must perform onsite work at a location outside of the United States, then Buyer shall fully cooperate in obtaining visas and other authorizations and perform its associated obligations under applicable laws and regulations at its cost.

17. Governing Law; Arbitration. The Contract will be governed by and construed in accordance with the laws of the State of Delaware, United States of America, without giving effect to any choice or conflict of law provision or rule that would cause the application of the laws of another jurisdiction. The Parties hereby exclude application of the United Nations Convention on Contracts for the International Sales of Goods. Each Party hereby irrevocably consents and agrees that any disputes arising out of or related to the Contract, including, without limitation, any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the Rules of Arbitration of the International Chamber of Commerce, except where such rules conflict with this Section, in which case this Section controls. The arbitration will be conducted in Roanoke, Virginia in the English language by one or more arbitrators appointed in accordance with such rules. The award and any order of the arbitrators will be in writing, in the English language, and will be final and binding on the Parties, and judgment thereon may be entered in any court having jurisdiction thereof. Notwithstanding the foregoing, either Party may seek a restraining order, preliminary injunction or other injunctive relief if, in its judgment, such action is necessary to avoid irreparable harm. The cost of all arbitration proceedings (other than each Party’s own attorneys’ fees and expert witness fees) shall be shared equally by the Parties; provided, however, if a Party fails or refuses to submit to arbitration following a proper demand by the other Party, such first Party shall bear all costs and expenses incurred by such other Party (including, without limitation, reasonable attorneys’ fees) in compelling arbitration.

18. Notices. Any notice, request, demand or formal communication hereunder must be in writing and sent to Buyer’s address set forth in the PO or TMEIC’s address below (or such other address designated by a Party from time to time in accordance with this Section), and will be deemed delivered (i) upon personal delivery, (ii) the second business day after sending via registered or certified mail, return receipt requested, or (iii) on the next business day after sending via a reputable overnight delivery service, including UPS, DHL and Federal Express, shipping and handling prepaid. TMEIC’s initial address for notices is: 2060 Cook Dr., Salem, VA 24153, Attn: General Counsel.

19. Assignment. Except as provided in this Section, neither Party may assign, delegate or transfer, in whole or in part, the Contract or any of its rights, interests, duties or obligations hereunder without the prior written consent of the other Party, which consent shall not be unreasonably withheld. Notwithstanding the foregoing, without consent, (i) TMEIC may subcontract any of its work hereunder, (ii) TMEIC may make any such assignment, delegation or transfer to any of its affiliates in existence as of the PO Date or any successor in interest by merger, operation of law, purchase or otherwise, and (iii) Buyer may, upon prior written notice to TMEIC, assign the Contract in whole to the owner of the site or facility at which the Deliverables are initially installed, or may collaterally assign the Contract to any person or entity providing debt or equity financing to Buyer or its affiliates in connection with the Deliverables or such site or facility; provided, however, no such assignment will relieve Buyer of its obligations hereunder unless TMEIC specifically consents to such a release in a signed writing. Any purported assignment, delegation or transfer in contravention of this Section will be void ab initio.

20. Miscellaneous. The Parties will not be deemed to be in a partnership, joint venture, employer-employee or joint employment relationship by virtue hereof, nor will either Party be an agent, representative, trustee or fiduciary of the other Party. The Contract will inure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns. Nothing herein will confer any right, benefit or remedy upon any person or entity other than (i) the Parties and their respective successors and permitted assigns, and (ii) the Indemnified Parties to the extent expressly provided herein. The expiration or termination of the Contract will be without prejudice to the obligations that one Party owed to the other Party as of the time of such expiration or termination. The provisions hereof that by their terms or nature are intended to survive the expiration or termination of the Contract will so survive. Each provision hereof shall be interpreted in such a manner as to be effective and valid under applicable law. If any provision hereof is held invalid, illegal or unenforceable by a competent authority, then there shall be deemed substituted for the provision at issue a valid, legal and enforceable provision as similar as possible to the provision at issue, and the validity, legality and enforceability of the remaining provisions hereof will be unaffected and will remain in full force and effect. The Contract may be executed in any number of counterparts, each of which will be deemed an original and all of which together will constitute one and the same agreement. The Contract may be executed by manual, facsimile or electronic signatures and may be delivered via hard copy, PDF or other electronic means, and the foregoing methods will be deemed as effective as the execution and delivery of original documents. Pronouns and variations thereof will be deemed to refer to the masculine, feminine, neuter, singular or plural, as the identity of the person(s) or entity(ies) may require. The words “herein”, “hereby”, “hereunder”, “hereof” and “hereto” are references to the Contract as a whole. Section and subsection headings are for convenience of reference only and will not affect the construction of, or be taken into consideration in interpreting, the Contract. The Parties agree that the terms and conditions hereof are the result of negotiations between the Parties and that the Contract shall not be construed in favor of or against any Party by reason of the extent to which any Party or its professional advisors participated in the preparation hereof. EACH PROVISION HEREOF THAT PROVIDES FOR A LIMITATION OF LIABILITY, EXCLUSION OF DAMAGES, DISCLAIMER OF WARRANTIES OR EXCLUSIVE REMEDY REPRESENTS AN AGREED ALLOCATION OF RISKS BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE CONTRACT PRICE AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS HEREOF, AND EACH OF THESE PROVISIONS WILL APPLY EVEN IF ANY WARRANTIES OR REMEDIES HEREIN HAVE FAILED OF THEIR ESSENTIAL PURPOSE.