3. TERM
  17. TAXES


  1. DEFINITIONS. Unless otherwise noted, in this Agreement or in Buyer's PO, the words and phrases capitalized below shall have the following meanings:
  1. "Business Day" means a day falling between Monday thru Friday and during the hours of 8:00 am thru 5:00 pm Mountain Time.  If performance falls at a time outside of the ranges set forth in this definition, the performance shall be considered as having been completed on the following Business Day.
  2. "Buyer's Representative" means the person appointed by Buyer as being the authorized representative of Buyer.
  3. "Buyer's Background IP" means all IP conceived, developed, owned, or first reduced to practice by Buyer, a third-party on behalf of or in conjunction with Buyer, or by a party who transferred such IP to Buyer, prior to commencement of the Work set forth in Buyer's PO.
  4. "Buyer's PO" means a Purchase Order issued by Buyer from time to time to procure Goods and/or Services from Seller and accompany specifications and documentation provided by Buyer, if any.  Each Buyer's PO shall be numbered according to Buyer's numbering system, and such numbering system shall not affect the enforceability of Buyer's PO.
  5. "Change in Control" shall mean any of the following, whether in a single transaction or a series of related transactions and whether or not Seller is a party thereto:
    1. a sale, conveyance, transfer, distribution, lease, assignment, license or other disposition of all or substantially all of the assets of Seller;
    2. any consolidation or merger of Seller or its controlling affiliates, any dissolution of Seller or its controlling affiliates, or any reorganization of one or more of Seller or its controlling affiliates; or
    3. any sale, transfer, issuance, or disposition of any equity securities or securities or instruments convertible or exchangeable for equity securities (collectively, "securities") of Seller or its controlling affiliates in which the holders of all of the securities that may be entitled to vote for the election of any member of a board of directors or similar governing body of Seller or such controlling affiliate immediately prior to such transaction(s) hold less than fifty percent (50%) of the securities that may be entitled to vote for the election of any such member in such entity immediately following such transaction(s).
  6. "Confidential Information" means with respect to Buyer, any information, matter, or thing of a secret, confidential, or private nature, whether or not so labeled, obtained through disclosure or observation, which is connected to Buyer's business or methods of operation, or concerning any of Buyer's suppliers, licensors, licensees, customers, or others with whom Buyer has a business relationship, or which has current or potential value to Buyer or the unauthorized disclosure of which could be detrimental to Buyer, including but not limited to:
    1. Matters of a business nature, including but not limited to information relating to development plans, costs, finances, marketing plans, data, procedures, business opportunities, marketing methods, plans and strategies, the costs of construction, installation, materials or components, the prices Buyer obtains or has obtained from its clients or customers, or at which Buyer sells or has sold its Goods; and
    2. Matters of a technical nature, including but not limited to product information, trade secrets, know-how, formulae, innovations, inventions, devices, discoveries, techniques, formats, processes, methods, specifications, designs, patterns, schematics, data, access or security codes, compilations of information, test results and research and development projects.  For purposes of this Agreement, the term "trade secrets" shall have the meaning provided under Utah law.

    Notwithstanding the foregoing, Confidential Information will not include information that: (i) is generally available to the public or otherwise part of the public domain at the time of its disclosure, (ii) became generally available to the public or otherwise part of the public domain after its disclosure and other than through any act or omission of a party in breach of an obligation to maintain confidentiality, (iii) was lawfully disclosed to a Party from a source who rightfully received such information from another not under an obligation to maintain confidentiality, (iv) was required by a court of competent jurisdiction to be disclosed.

  1. "Counterfeit Goods" means Goods or separately-identifiable items or components of Goods that: (i) are an unauthorized copy or substitute of an Original Equipment Manufacturer or Original Component Manufacturer (collectively, "OEM") item; (ii) are not traceable to an OEM sufficient to ensure authenticity in OEM design and manufacture; (iii) do not contain proper external or internal materials or components required by the OEM or are not constructed in accordance with OEM design; (iv) have been re-worked, re-marked, relabeled, repaired, refurbished, or otherwise modified from OEM design but not disclosed as such or are represented as OEM authentic or new; or (v) have not passed successfully all OEM required testing, verification, screening, and quality control processes.
  2. "Foreground IP" means IP other than Buyer's Background IP or Seller's Background IP, which is conceived, developed, or first reduced to practice by a Party, either alone or with others, in connection with the performance of the Work.
  3. "Good" or "Goods" means any product to be provided by Seller to Buyer pursuant to Buyer's PO.
  4. "Intellectual Property" or "IP" means anything of a proprietary nature, including but not limited to inventions, discoveries, improvements, know-how, works of authorship, technical data, drawings, specifications, processes, process information, reports, documented information, computer software, and code. IP includes all worldwide common law and statutory rights to the foregoing, including but not limited to patents, industrial designs, trade secrets, trademarks, copyrights, mask work registrations, and the like.
  5. "Nonconforming Goods" or "Nonconforming Work" are interchangeable and mean any Goods or Services received by Buyer from Seller that do not fully conform to the Buyer's specifications for Work set forth in Buyer's PO, whether such non-conformance relates to Goods or Services as a whole, in function, or as to any component thereof, irrespective if such Goods or Services have been previously accepted by Buyer.
  6. "Party" means Buyer or Seller.
  7. "Parties" means the Buyer and Seller.
  8. "Obsolete Materials" means any materials or other inputs that are no longer produced by the OEM (defined below), falls outside the OEM's warranty coverage, or is determined by the OEM to be phased-out within the timeframe for performance of the Work.
  9. "Permanent Disruption" means a disruption in the production and delivery of Goods which Seller has reason to believe will continue for an indefinite period.
  10. "Purchase Order" means a document indicating types and quantity of Goods or Services to be procured.   A Purchase Order may include payment terms, shipment, or other associated terms and conditions, including flow-downs.
  11. "Service" or "Services" means any service or services Seller performs pursuant to Buyer's PO
  12. "Seller's Background IP" means all IP conceived, developed, owned, or first reduced to practice by Seller prior to receiving Buyer's Background IP.
  13. "Seller's Quote" means Seller's documentation setting forth Seller's price for the Work.
  14. "Temporary Disruption" means a disruption in the production and delivery of Goods not anticipated to be solved under paragraph 6(a) and which Seller has reason to believe will continue for a period greater than one hundred (100) days.
  15. "Work" means the Goods and/or Services to be provided by Seller as set forth in Buyer's PO.


  1. BUYER'S PO. Buyer's PO and accompanying documentation from Buyer (if any) will define and describe the scope of the Work. Seller will furnish and complete the Work in a prompt and efficient manner and in complete compliance with Buyer's PO and this Agreement. Unless expressly agreed to in writing by Buyer, Buyer is not bound by any term or condition provided or submitted by Seller, even if such provision is provided in Seller's invoice for which Buyer remits payment or fails to expressly reject. If a conflict exists between Buyer's PO and this Agreement, Buyer's PO shall prevail to the extent that such term conflicts with this Agreement, and the remaining non-conflicting part(s) shall be unaffected.Seller's express acceptance of Buyer's PO or commencement of performance in any manner shall constitute Seller's acceptance of those terms and conditions set forth in Buyer's PO. For the avoidance of doubt, the fact that Buyer's PO does not contain all the terms and conditions set forth herein shall not be construed as being in conflict with this Agreement.
  1. TERM. This Agreement shall commence on the Effective Date and continue for a period of three (3) years ("Term"). Buyer may extend the Term for an additional two (2) year period upon no less than thirty (30) days' notice to Seller. Notwithstanding the expiration of this Agreement, these terms and conditions shall apply to all Buyer's POs with an order date prior to the expiration of this Agreement.
  1. FIRM PRICING. From time to time, Buyer may request Seller to extend firm pricing ("Firm Pricing") for a defined period of time ("Firm-Pricing Period") whereupon Seller agrees to maintain the Firm Pricing throughout the Firm-Pricing Period, except, Buyer shall be entitled to a price no less favorable than the prices extended to Seller's other customers during the Firm-Pricing Period. All Firm Pricing shall be acknowledged by the parties in a written statement (email is sufficient) setting forth the Firm Pricing and the Firm-Pricing Period. For the avoidance of doubt, no other terms or conditions set forth in the written acknowledgement required herein shall be binding upon Buyer or construed as an amendment to this Agreement, even if Buyer fails to expressly reject such other terms and conditions.
    1. Time is and shall remain of the essence in the performance of the Work, and Seller shall strictly adhere to the delivery schedule set forth in Buyer's PO. Failure to deliver in accordance with Buyer's PO shall constitute a material breach of this Agreement. Seller shall give written notice to Buyer within three (3) Business Days of the date Seller's becomes aware of any condition or event which could cause an anticipated or actual delay to Seller's ability to comply with the delivery schedule set forth in Buyer's PO. Seller's notice to Buyer shall include (1) a description of the cause for the delay; (2) the actions Seller has taken or is taking to overcome or minimize the delay; (c) a proposed recovery schedule; and (d) if requested by Buyer, details around shipping via expedited routing, at no additional cost to Buyer, to avoid or minimize delay
    2. Deliveries are to be made in the quantities and at the times specified in Buyer's PO, and if not so specified, then as set forth on delivery schedules furnished by Buyer.
    3. Buyer may, at no additional cost, retain Goods furnished in excess of the specified quantity in Buyer's PO and convert such Goods to Buyer's own use or benefit, or the use or benefit of Buyer's customers, unless Seller requests return of such excess Goods within ten (10) Business Days of delivery of such excess Goods to Buyer.  In the event of such request, Seller shall reimburse Buyer for reasonable costs associated with storage and return, including but not limited to the costs of shipping and Buyer's administrative costs of preparing the items for return.
  1. TEMPORARY AND PERMANENT DISRUPTIONS. Seller shall give Buyer prompt notice if, for any reason, Seller anticipates a Temporary Disruption or a Permanent Disruption in the supply of the Goods for Buyer's PO's. To ensure the uninterrupted supply of Goods to Buyer, Seller shall either:
    1. in the event of a Temporary Disruption, Seller will take the following actions and such other actions as may be reasonably required by Buyer:
      1. at Seller's cost, provide Replacement Goods from an alternative seller to comply with all delivery schedules of Buyer's PO and which conform in all respects to Buyer's specifications; or
      2. provide to Buyer all requested information and documentation regarding and access to Seller's manufacturing process, including, but not limited to, on-site inspections, bill-of-material data, tolling and process detail and simples of supplies and components, for Buyer to procure the Goods from an alternative seller until such time that Seller is able to fulfill the obligations of this Agreement.
      3. If Buyer, pursuant to paragraph 6(a)(ii), must procure the Goods from an alternative seller, Seller shall reimburse Buyer for any increased production costs associated with the necessity to resort to the alternative seller.
    2. in the event of a Permanent Disruption, Seller shall transfer ownership of all Intellectual Property and any other relevant information to enable Buyer to independently produce the Goods. Relevant information should include, but is not limited to, manufacturing process, including on-site inspections, bill-of-material data, tolling and process detail and simples of supplies and components. Upon such a Permanent Disruption, Buyer may either terminate any effected PO or terminate this Agreement in its entirety.
    1. Seller shall pack and mark all Goods in compliance with good commercial practice in a manner that will prevent damage to or deterioration of the Goods during transit. No separate or additional charge is payable by Buyer for containers, crating, boxing, bundling, dunnage, drayage, or storage unless specifically stated in Buyer's PO. Seller shall reimburse any expense incurred by Buyer as a result of improper packaging, packing, or marking. Copies of packing lists showing the Buyer's PO number shall be included with each shipment, and each container shall be marked to show the Buyer's PO number and any other information specified in Buyer's PO. All packaging shall contain the necessary marking of hazardous materials, if applicable, and must conform to all laws and regulations of any governmental agency having jurisdiction over such shipment.
    2. Unless otherwise set forth in Buyer's PO, all delivery shall be made Delivery Duty Paid Buyer's location. Seller shall make the transportation arrangements, pay the shipping costs, and remain responsible for the Goods until the Goods are delivered and Buyer takes possession at the destination.
    1. Buyer's Representative may, without notice, direct changes to Buyer's PO to change the: (i) technical requirements and descriptions, specifications, statement of work, drawings or designs; (ii) shipment or packing methods; (iii) place of delivery, inspection or acceptance; (iv) reasonable adjustments in quantities or delivery schedules or both; (v) amount of Buyer-furnished property; (vi) Terms or Conditions or Buyer's PO required to meet Buyer's obligations under its prime contracts or subcontracts; and, if Buyer's PO includes Services, Buyer's Representative may change the (vii) description of Services to be performed; (viii) time of performance (e.g., hours of the day, days of the week, etc.); and (ix) place of performance. Seller shall comply promptly with such changes. Unless otherwise requested by Buyer, Seller shall make no other modification of or amendment to this Agreement or Buyer's PO.
    2. If such change decreases the cost or time of performance, Buyer's PO shall be adjusted to reflect the decrease in cost and time of performance, as applicable. If such change increases the cost or time of performance, Seller shall assert a claim for adjustment to Buyer's Representative in writing within ten (10) Business Days of Buyer's requested change along with a supportable basis of estimate outlining the effects of Buyer's requested change. Buyer and Seller will negotiate an equitable adjustment in the price or schedule, or both, as applicable. Buyer shall have the right to verify the amount of Seller's claim in accordance with Section 19 (Financial Records and Audit). Failure of the Parties to agree upon any adjustment shall not excuse Seller from performing in accordance with Buyer's direction. Furthermore, Seller's failure to make a claim as set forth herein shall result in Seller waiving such claim.
    3. If Seller considers Buyer's actions to constitute a change, Seller shall notify Buyer's Representative immediately in writing as to the nature of such belief, and Seller shall take no action to implement any such change unless Buyer's Representative confirms such change.
    1. Buyer's Representative may, by written order, suspend all or part of the Work to be performed for a period of time not to exceed one hundred (100) days. Within such period, Buyer shall either: (i) cancel the order suspending the Work; (ii) terminate the Buyer's PO in accordance with Section 10 (Termination for Convenience); (iii) cancel the Buyer's PO in accordance with Section 11 (Cancellation for Default) if grounds for default exist; or (iv) extend the stop Work period for a period of time to be mutually agreed to between the Parties.
    2. Whenever a suspension is canceled, Seller will promptly resume the Work. The time for delivery of the Work shall be tolled for the duration of the stop Work order, and all such times set forth in Buyer's PO shall be automatically extended by a period of time equal to the duration of the stop Work order period or as otherwise set forth in the stop Work order.
  1. TERMINATION FOR CONVENIENCE. Buyer may terminate all or part of Byer's PO for its sole convenience. In the event of such termination, Seller shall immediately stop all terminated Work and shall immediately cause any and all of its subcontractors to stop such terminated Work. Within ninety (90) calendar days after the effective date of termination, Seller may submit to Buyer a claim reflecting the percentage of the Work performed prior to the effective date of termination, plus reasonable charges that Seller can demonstrate to the satisfaction of Buyer using its standard record keeping system have resulted from the termination. Any tools, dies, jigs, fixtures, plans, drawings, information, or anything of a similar nature (collectively, the "Tools"), the cost of which was amortized into the materials procured by Seller for performance under this Agreement, or if any Tools are identified as a line-item in Buyer's PO, Buyer shall be considered the sole and exclusive owner of such Tools and no further cost for such Tools shall be assessed against Buyer. Seller shall not be paid for any Work performed or costs incurred which reasonably could have been avoided. Further, Seller shall not be paid, and in no event shall Buyer be obligated to pay, lost or anticipated profits or unabsorbed indirect costs or overhead. In no event shall Buyer be obligated to pay Seller any amount in excess of the amount set forth in the Buyer's PO. If Seller fails to submit such claim within the time frame set forth herein, Seller will have waived its right to submit such a claim, and Buyer shall be relieved of any cost or liability associated with its termination for convenience. The provisions of this Section shall not limit or affect Seller's obligation to continue the Work not subject to termination.
    1. Buyer may, by written notice to Seller, terminate all or part of this Agreement if:
      1. Seller fails to deliver the Work within the time specified in Buyer's PO or written extension mutually agreed to between the Parties;
      2. Seller breaches any provision of this Agreement, any provision of Buyer's PO, or fails to make progress so as to endanger the performance of the Work, and such breach remains uncured for a period of fifteen (15) calendar days (or such other time as the Parties mutually agree) after receipt of notice from Buyer setting forth in reasonable detail the nature of the breach; or
      3. In the event of Seller's inability to meet its obligations to creditors, the filing of a bankruptcy petition on behalf of Seller by one of its creditors, Seller's bankruptcy filing, suspension of business, insolvency, appointment of a receiver for Seller's property or business, or any assignment, reorganization, or arrangement by Seller for the benefit of its creditors.
    2. In the event Buyer terminates Buyer's PO in whole or in part as provided in this Section 11, Buyer shall have the option to either (i) take over such terminated Work and prosecute the same to completion by contract or otherwise, and Seller shall be liable to Buyer for any excess costs associated with the completion of such Work, or (ii) require Seller refund all amounts paid by Buyer to Seller for the terminated Work.
    3. Upon termination for default as set forth herein, Seller will transfer title and deliver to Buyer, as directed by Buyer, any:
      1. Completed Goods; and
      2. Any partially completed Goods and materials, parts, tools, dies, jigs, fixtures, plans, drawings, information and contract rights (collectively, "Manufacturing Materials") that Seller has specifically produced or acquired for the canceled portion of the Work. Seller shall also protect and preserve property in its possession in which Buyer or its customer has an interest and promptly return such property, at Seller's expense, to Buyer irrespective of Buyer's request for Seller to do so.
    4. Buyer shall pay the price set forth in the Buyer's PO for completed Goods that are accepted by Buyer.  As for payment related to Manufacturing Materials accepted by Buyer, Buyer will pay a price determined in accordance with Section 10 (Termination for Convenience), except that Seller shall not be entitled to profit for such Manufacturing Materials. Any tools, dies, jigs, fixtures, plans, drawings, information, or anything of a similar nature (collectively, the "Tools"), the cost of which was amortized into the materials procured by Seller for performance under this Agreement, or if any Tools are identified as a line-item in Buyer's PO, Buyer shall be considered the sole and exclusive owner of such Tools and no further cost for such Tools shall be assessed against Buyer.  Buyer may withhold from any amount due hereunder any sum Buyer determines to be necessary to protect Buyer or Buyer's customer against loss because of outstanding liens or claims of former lien holders or for property in Sellers possession belonging to Buyer or Buyer's customers.
    5. If after cancellation it is determined that Seller was not in default, the rights and remedies of the Parties shall be as if Buyer's PO had been terminated according to Section 10 (Termination for Convenience).
    1. Seller shall establish and maintain a quality control and inspection system acceptable to Buyer and will allow Buyer to review procedures, practices, processes and related documents that Buyer determines, in its own discretion, are required to determine such acceptability and compliance with this Section. Unless otherwise approved in writing by Buyer, Seller's quality control system shall conform to Buyer's document "EPSQ-100 Seller Quality Systems Requirements", which terms are incorporated herein by reference.
    2. Seller shall notify Buyer in writing when it discovers, or should have discovered, discrepancies in Seller's process, including any violation of or deviation from Seller's approved quality control system. For the avoidance of doubt, Seller shall not wait for the actual discovery of a deviation but should proactively monitor its processes to discover discrepancies and notify Buyer, in writing, when it suspects a discrepancy.
    3. Buyer shall have the right, at no additional cost, to visit Seller's and Seller's subcontractors' facilities during operating hours to inspect, review, and assess Seller's progress and performance, including but not limited to Seller's production schedule and quality of Work ("Inspection"). If Buyer performs such an Inspection, Sellers shall furnish, and require its subcontractors to furnish, without additional charge, reasonable facilities and assistance for the safe and convenient performance of the Inspection. Buyer or its appointed representative shall be allowed access to all areas used for the performance of the Work. Buyer's right to perform Inspections shall extend to Buyer's customers.
    1. Buyer will inspect or provide notice of rejection within a reasonable period of time following delivery of the Goods at Buyer's facility. Notwithstanding any payment, prior test, inspection, passage of title, or failure to discover any defect or other nonconformance, Seller shall not be relieved of any obligation to provide confirming Goods and none of the foregoing shall impair any rights or remedies of Buyer, including revocation of acceptance.
    2. If Seller delivers defective or Nonconforming Goods, Buyer may, at its option and at Seller's expense, (i) require Seller to promptly correct or replace the Goods; (ii) return the Goods for credit or refund; (iii) correct the Goods; or (iv) obtain replacement Goods from another source. The return of defective or Nonconforming Goods to Seller and the redelivery of confirming or non-defective Goods to Buyer shall be at Seller's expense.
    3. Seller shall not deliver Goods which have been reconditioned or refurbished without disclosing the former rejection or refurbishment to Buyer.
    1. Seller warrants that the Work furnished to Buyer shall (i) conform, in all respects, to Buyer's (or Seller's, as the case may be) specifications; (ii) be merchantable and free from any and all defects, latent or otherwise, in materials and workmanship; (iii) perform in accordance with the documentation and other written materials related thereto; (iv) be fit and sufficient for the particular purpose intended by Buyer; and (vi) comply with all applicable laws. If the Work is performed or manufactured pursuant to the design or specification furnished by Seller, Seller warrants that the Work shall be free from design defects, shall not infringe any patent, copyright, trademark, or other proprietary right of any third-party or misappropriate any trade secret of any third-party, and shall be fit for the intended use. The Work shall not contain any viruses, malicious code, trojan horse, worm, time bomb, self-help code, back door, or other software code or routine designed to: (i) damage, destroy or alter any software or hardware; (ii) reveal, damage, destroy, or alter any data; (iii) disable any computer program automatically; or (iv) permit unauthorized access to any software or hardware. The Work shall not contain any third-party software (including software that may be considered free software or open source software) that: (i) may require any software to be published, accessed or otherwise made available without the consent of Buyer; (ii) may require distribution, copying or modification of any software free of charge; (iii) may require disclosure, license or redistribution of source code; (iv) may require the grant of rights in excess of those granted by Buyer in its standard end user license agreements; (v) may require that others have the right to modify the code; or, (vi) may impose additional requirements on redistribution such as inclusion of additional license agreements for specific code modules. The provisions of the warranty set forth in this Section 14(a) shall collectively be referred to as the "Warranty."
    2. The duration of the Warranty shall be set forth in Buyer's PO; provided, however, that Buyer's failure to identify the Warranty duration in Buyer's PO shall not cause the Warranty to fail or relieve Seller of the obligations of the Warranty, and in such case, the Warranty period shall be for a period of one (1) year following Buyer's final acceptance of the Work. The Warranty shall run to Buyer and its successors, assigns and customers. In the event of any defect or Nonconformance in the Work, Buyer may, at its option and at Seller's expense: (i) require prompt correction or replacement of the Work, or (ii) return the Work for credit or refund. The return of defective or nonconforming Work to Seller and the redelivery of confirming or non-defective Work to Buyer shall be at Seller's expense. Work required to be corrected or replaced shall be subject to the requirements of this Warranty in the same manner and to the same extent as Work originally performed. Buyer's claim under this Warranty shall not preclude Buyer from any other remedy available to Buyer at law or in equity.
    1. Seller shall not furnish Counterfeit Goods to Buyer. Notwithstanding the foregoing, Goods or items that contain modifications, repairs, rework, or re-marking as a result of Seller's or its subcontractor's design authority, material review procedures, quality control processes or parts management plans, and that have not been misrepresented or mismarked, shall not be deemed Counterfeit Goods. Counterfeit Goods shall be deemed Nonconforming Goods.
    2. Seller shall implement a process to ensure that Goods furnished to Buyer are not, and do not contain, Counterfeit Goods, including but not limited to processes for the direct procurement of items from OEMs or authorized Sellers and conducting approved testing or inspection processes to ensure the authenticity of items.
    3. If Seller becomes aware of or suspects that it has furnished Counterfeit Goods to Buyer, Seller shall promptly, but in no case later than ten (10) Business Days from discovery, notify Buyer and replace, at Seller's expense, such Counterfeit Goods with OEM or Buyer-approved Goods that conform to Buyer's PO. Seller shall be liable for all costs related to the replacement of Counterfeit Goods and any testing or validation necessitated by the installation of authentic Goods after Counterfeit Goods have been replaced.
    4. Seller shall ensure that its subcontractors comply with the requirements of this Section and shall be responsible for its subcontractors' failure to comply.
  1. OBSOLETE MATERIALS AND CHANGE NOTIFICATIONS. Seller shall provide Buyer with no less than twelve (12) months' written notice of proposed changes to materials or component parts comprising the Goods or Services, manufacturing processes, specifications, or if such materials or component parts are or will become Obsolete Materials (collectively, the "Changes"). Seller shall allow Buyer, acting reasonably, to purchase such amounts of the Goods or Services, before Seller implements such Changes, that Buyer determinates, in Buyer's reasonable discretion, are necessary for Buyer's interests and those of Buyer's customers, and Seller shall fulfill Buyer's last-time order. If the Parties agree that Seller shall maintain Buyer's inventory, Seller shall implement and maintain an inventory management process satisfactory to Buyer to identify and protect Buyer's acquired inventory. Notwithstanding anything to the contrary, Seller shall not make any Changes to Goods, including materials and component parts thereof, specifically designed or manufactured for Buyer without Buyer's express written consent. Seller shall require its subcontractors and distributors to comply with this Section.
    1. Unless otherwise authorized by Buyer's Representative, Seller shall issue a separate original invoice for each type of Work that shall include Buyer's PO number and line item number. For the avoidance of doubt, only one (1) PO number is to be included on a single invoice.
    2. Seller shall submit all invoices electronically to Buyer at the following email address:
    3. All payment due dates, including discount periods, shall be computed from the later of (i) the actual delivery and acceptance of the Work or (ii) the date of receipt of a valid invoice. Payment shall be processed on the next payment system run following the computed payment due date. Payment shall be deemed made on the date Buyer's check is mailed or payment is otherwise tendered. Seller shall promptly repay Buyer any amounts paid in excess of amounts due to Seller. For purposes of this Agreement, "valid invoice" shall mean an invoice conforming to the requirements of this Agreement and issued after the delivery and acceptance of the Work.
    4. Unless freight or other charges are itemized, Buyer may take any offered discount on the full amount of the invoice.
    5. Payment terms are Net30.
    6. Except for amounts invoiced under Section 8 or Section 9, Seller shall be deemed to have waived all charges and fees that are not invoiced within ninety (90) calendar days following the end of the calendar year in which the charges were incurred.
  1. TAXES. Unless specified otherwise, all prices include tax, and Seller is liable for and shall pay, all taxes, impositions, charges and exactions imposed on the Work, except for applicable sales and use taxes that are separately stated on Seller's invoice. Prices shall not include any taxes, impositions, charges or exactions for which Buyer has furnished a valid exemption certificate or other evidence of exemption.
  1. FINANCIAL RECORDS AND AUDIT. Seller shall retain all financial records and documents pertaining to the Work ("Documents") for a period of no less than three (3) years following final payment. Such Documents shall include, without limitation, catalogs, price lists, invoices, underlying data and basis for cost estimates, and inventory records. Buyer shall have the right to examine, reproduce, and audit all Seller records related to pricing, incurred costs and proposed costs associated with the Work, including but not limited to those records Seller relies upon as a basis of termination costs under Section 10 and Section 11.
    1. Seller shall keep and protect Confidential Information disclosed by Buyer from unauthorized use and disclosure and shall use Confidential Information only in the performance of and for the purpose of the Work. Buyer shall not engage in any conduct with the intent to circumvent the protections of this Section. Prior to disclosing any Confidential Information in response to a subpoena, court order, or other similar document, Seller shall use reasonable efforts to give Buyer advance written notice of any such disclosure requirement in order to enable Buyer (i) to seek an appropriate protective order or other remedy; (ii) to consult with Seller with respect to Buyer taking steps to resist or narrow the scope of such request; or (iii) to modify or waive compliance, in whole or in part, with the terms of this Section. In the event that such protective order or other remedy is not obtained in a timely manner, or Buyer modifies or waives compliance, Seller shall use commercially reasonable efforts to disclose only that portion of the Confidential Information which is legally required to be disclosed and to require that all Confidential Information that is so disclosed will be accorded confidential treatment.
    2. Upon Buyer's request at any time, and in any event upon the completion, termination or cancellation of Buyer's PO, Seller shall return to Buyer all Confidential Information and all materials derived therefrom, unless specifically directed otherwise in writing by Buyer.  Seller shall not at any time (i) dispose of (as scrap or otherwise) any Work, parts or other materials containing, conveying, embodying or made in accordance with or by reference to any Confidential Information without the prior written authorization of Buyer or (ii) make, use, or sell any Work, parts or other materials containing, conveying, embodying or made in accordance with or by reference to any Confidential Information, except to the extent required to perform the Work without Buyer's written approval.
    3. Seller may disclose Buyer's Confidential Information to its subcontractors as required for the performance of the Work, provided that each such subcontractor first agrees in writing to obligations no less restrictive than those imposed upon Seller under this Section, and the disclosure is limited to the minimum extent necessary for the subcontractor to complete its work. Seller shall be liable to Buyer for any breach of such obligation by such subcontractor.
    4. The provisions of this Section are effective notwithstanding the absence of any restrictive legends or notices designating the information as "confidential" and shall survive the performance, completion, termination or cancellation of Buyer's PO.
    1. Indemnification. Seller shall indemnify and defend Buyer, its affiliates, subsidiaries, shareholders, directors, officers, managers, employees, representatives, successors, subcontractors, and agents (each an "Indemnitee" and, collectively, the "Indemnitees"), against, and to protect, save, and keep harmless the Indemnitees from, and to pay on behalf of or reimburse the Indemnitees as and when incurred for, any and all liabilities, obligations, losses, damages, penalties, demands, claims, actions, suits, judgments, settlements, costs, expenses, and disbursements (including reasonable attorneys', accountants' and expert witnesses' fees) of whatever kind and nature, which may be imposed on or incurred by any Indemnitee arising out of or in any way related to Seller's, its affiliates, subsidiaries, shareholders, directors, officers, managers, employees, representatives, successors, subcontractors, and agents, (a) breach of any provision of this Agreement; (b) acts or omissions which results in death or bodily injury to any person (or any damage to any real or tangible personal property (including the personal property of third-parties); or (c) actual or alleged infringement of any United States or foreign intellectual property right (including, but not limited to awards based on intentional infringement of patents known at the time of such infringement, or any right in a patent, copyright, industrial design or semiconductor mask work, or based on misappropriation or wrongful use of information or documents). Buyer and/or its customer will duly notify Seller of any such claim, suit, or action. Seller will, at its own expense, fully defend such claim, suit, or action on behalf of the Indemnitees, except that Seller shall not have the right to enter into any settlement agreement that materially affects Buyer's material rights or material interests without such Buyer's prior written consent. In no event shall Seller's obligations hereunder be limited to the extent of any insurance available to or provided by Seller or any subcontractor thereof. Seller expressly waives any immunity under industrial insurance, whether arising out of statute or other source, to the extent of the indemnity set forth in this paragraph.
    2. Insurance.
      1. Commercial General Liability. Seller shall carry and maintain, and ensure that all its subcontractors performing Work for Seller carry and maintain, throughout the period when Work is performed and until final acceptance by Buyer, Commercial General Liability insurance with coverage of not less than $2,000,000 combined single limit. Coverage shall be on a "per occurrence" basis. Such insurance shall contain coverage for all premises and operations, property damage, contractual liability, and products and completed-operations insurance with limits of not less than $1,000,000 per occurrence for a minimum of twenty-four (24) months after final acceptance of the Work by Buyer.
      2. Automobile Liability. If licensed vehicles will be used in connection with the performance of the Work, Seller shall carry and maintain, and ensure that any subcontractor thereof who uses a vehicle in connection with the performance of the Work carries and maintains, throughout the period when Work is performed and until final acceptance by Buyer, Business Automobile Liability insurance covering all vehicles, whether owned, hired, rented, borrowed or otherwise, with available limits of not less than $1,000,000 combined single per occurrence for bodily injury and property damage.
      3. Workers' Compensation and Employers' Liability. Throughout the period when Work is performed and until final acceptance by Buyer, Seller shall cover or maintain insurance in accordance with applicable laws relating to Workers' Compensation (including Employers' Liability with limits not less than $1,000,000 per incident) with respect to employees performing the Work, whether at Seller's or Buyer's facility. Seller shall ensure its subcontractors maintain insurance coverage consistent with this Section. If Buyer is required by any applicable law to pay any Workers' Compensation premiums with respect to an employee of Seller or any subcontractor, Seller shall reimburse Buyer for such payment.
      4. Certificates of Insurance. Upon Buyer's request, Seller shall provide Buyer with certificates of insurance reflecting full compliance with the requirements of this Section. Such certificates shall be kept current and in compliance throughout the period when work is being performed and until final acceptance by Buyer and shall provide for thirty (30) days advance written notice to Buyer in the event of cancellation. Failure of Seller or any subcontractor thereof to furnish certificates of insurance, or to procure and maintain the insurance required herein, or failure of Buyer to request such certificates, endorsements, or other proof of coverage shall not constitute a waiver of Seller's or its subcontractors' obligations hereunder.
    3. Self-Assumption. Any self-insured retention, deductibles, and exclusions in coverage in the policies required under this Section shall be assumed by, for the account of, and at the sole risk of Seller or the subcontractor which provides the insurance, and, to the extent applicable, shall be paid by such Seller or subcontractor. In no event shall the liability of Seller or any subcontractor thereof be limited to the extent of any of the minimum limits of insurance required herein.
    4. Protection of Property. Seller assumes and shall ensure that all subcontractors thereof and their respective employees assume, the risk of loss or destruction of or damage to any property, whether owned, hired, rented, borrowed, or otherwise, brought to a facility owned or controlled by Buyer or Buyer's customer. Seller waives and shall ensure that any subcontractor thereof and their respective employees waive, all rights of recovery against Buyer or Buyer's customer, including their respective subsidiaries and their respective directors, officers, employees, and agents, for any such loss, destruction or damage. At all times, Seller shall, and ensure that any subcontractor thereof shall, use suitable precautions to prevent damage to Buyer's property. If any such property is damaged by the fault or negligence of Seller or any subcontractor thereof, Seller shall, at Buyer's direction and at no cost to Buyer, promptly and equitably reimburse Buyer for such damage or repair or otherwise make good such property to Buyer's satisfaction. If Seller fails to do so, Buyer may do so and recover from Seller the cost thereof.
  1. LIABILITY LIMITATION. Notwithstanding anything contrary, Buyer shall not be liable to Seller for any special, incidental, indirect, consequential, exemplary or punitive damages, including damages resulting from lost profits, however caused and on any theory of liability arising out of or relating this Agreement and any associated Work. In no event shall Buyer's total liability under or in connection with this Agreement and associated Work exceed the price set forth in the Buyer's PO.
    1. Buyer Background IP. Buyer shall retain ownership of all Buyer Background IP. Buyer grants to Seller a non-exclusive, royalty free right during the performance of the Work to use Buyer Background IP as necessary for the sole purpose of allowing Seller to perform the Work. Seller shall not, without Buyer's prior written consent, use Buyer Background IP or any derivative works in any manner not authorized by Buyer, including but not limited to developing, manufacturing, obtaining a certification to manufacture, offering for sale or selling any product, equipment, or service which utilizes or is enabled by Buyer Background IP.
    2. Seller Background IP. Seller shall retain ownership of all Seller Background IP. With regard to Seller's Background IP incorporated into the Work, Seller hereby grants to Buyer an irrevocable, non-exclusive, worldwide, unlimited, unrestricted, unencumbered, perpetual, fully paid-up, transferable, royalty-free, worldwide license, with the right to grant sublicenses, to produce, use, sell and to obtain, from alternate sources, products and services similar to the Work (including related and/or underlying software, systems and/or components).
    3. Agreements. Seller shall obtain agreements with its employees and independent contractors to enable the grant of rights to which Buyer is entitled under this Section.
    4. Third-Party IP. To the extent Seller incorporates third-party IP into any Work, Seller shall obtain for Buyer, at no additional cost to Buyer, a license to make, have made, use, sell, offer to sell, import, reproduce, modify, distribute, display, perform, translate, or otherwise commercialize in any way, including an authorization to allow others to do all the foregoing, such third-party IP.
    5. Foreground IP. All Foreground IP shall be the exclusive property of Buyer, and Seller hereby irrevocably transfers, conveys, and assigns to Buyer all rights, title and interests in such Foreground IP for no additional charge. Seller shall treat Foreground IP as Confidential Information and shall not disclose such Foreground IP without Buyer's written consent. Seller will, within two (2) months after conception, disclose in writing to Buyer all Foreground IP, whether or not patentable, in sufficient technical detail to clearly convey the invention to one skilled in the art to which the Foreground IP pertains. Seller shall work with Buyer to promptly execute all written instruments and assist, as Buyer reasonably directs, in order to file, acquire, prosecute, maintain, enforce and assign Foreground IP rights to Buyer. Seller hereby irrevocably appoints Buyer and any of Buyer's officers and agents as Seller's attorney in fact to act on Seller's behalf and instead of Seller, with the same legal force and effect as if executed by Seller, with respect to executing any such written instruments. Jointly developed Foreground IP shall be the exclusive property of Buyer, and Seller hereby irrevocably transfers, conveys, and assigns to Buyer all right, title and interest in such jointly developed Foreground IP for no additional charge and will otherwise comply with the terms of this Section as it pertains to jointly owned Foreground IP.
    6. Reverse Engineering Prohibition. Seller is expressly prohibited from disassembling, decompiling, reverse engineering, modifying, or otherwise altering Buyer's Background IP or any part thereof.
    1. Compliance with Laws. Seller shall comply with all applicable statutes and government rules, regulations and orders including without limitation, (i) all applicable country laws relating to anti-corruption or antibribery, including, but not limited to, legislation implementing the Organization for Economic Co-operation and Development "Convention on Combating Bribery of Foreign Public Officials in International Business Transactions" or other anti-corruption/anti-bribery convention; and (ii) the requirements of the Foreign Corrupt Practices Act, as amended, ("FCPA") (15 U.S.C. §§78dd-1, et. seq.), regardless of whether Seller is within the jurisdiction of the United States, and Seller shall, neither directly nor indirectly, pay, offer, give, or promise to pay or give, any portion of monies or anything of value received from Buyer to a non-U.S. public official or any person in violation of the FCPA and/or in violation of any applicable country laws relating to anti-corruption or anti-bribery.
    2. Gratuities. Seller warrants that neither it nor any of its employees, agents, or representatives have offered or given, or will offer or give, any gratuities to Buyer's employees, agents or representatives for the purpose of inducing Buyer to issue a Buyer's PO or securing favorable treatment under a Buyer's PO.
    3. Seller Facility. Seller shall provide Buyer written notice of any proposed plans for moving Seller's manufacturing location for the Work or moving tooling or other equipment utilized in the manufacture of the Work to another facility. In no event shall Seller proceed with implementing such plans prior to obtaining Buyer's prior written approval.
    1. Seller shall comply with all export and import laws, regulations, decrees, orders, and policies of the United States Government and the Government of any country in which the Seller conducts business pursuant to this Contract, including but not limited to the Export Administration Regulations ("EAR") of the U.S. Department of Commerce, the International Traffic in Arms Regulations ("ITAR") of the U.S. Department of State, the U.S. Customs & Border Protection Regulations, the Harmonized Tariff Schedule, and the antiboycott and embargo regulations and guidelines as set forth in the EAR and in the U.S. Department of the Treasury, Office of Foreign Assets Control (collectively, "Trade Control Laws").
    2. Seller shall control the disclosure of, and access to, controlled items or technical data provided by Buyer related to performance of the Work in compliance with all applicable Trade Control Laws. Seller shall not transfer (to include transfer to foreign persons employed by or associated with, or under contract to Seller, or Seller's sub-tier Sellers or Seller's non-U.S. subsidiaries) any export controlled item, data or services, without providing advance notice to Buyer and obtaining the requisite export and/or import authority.
    3. Seller represents that it maintains an effective export/import control compliance program in accordance with all applicable Trade Control Laws. A copy of process control documents and other documents reasonably requested by Buyer related to Seller's compliance with applicable Trade Control Laws shall be made available to Buyer upon request.
    4. Seller shall promptly notify Buyer if Seller is, or becomes, listed in any Denied Parties List or if Seller's export privileges are otherwise denied, suspended or revoked in whole or in part by any Governmental entity.
    5. Seller shall timely inform Buyer of any actual or alleged violations of any applicable Trade Control Laws, including any suits, actions, proceedings, notices, citations, inquiries, or other communications from any government agency concerning any actual or alleged violations, in Seller's performance under this Contract and shall comply with all reasonable requests from Buyer for information regarding any such violations.
    6. Seller shall incorporate into any contracts with its sub-tier Seller's obligations no less restrictive than those set forth in this Section requiring compliance with all applicable Trade Control Laws.
  1. NOTICES. Unless otherwise approved by Buyer, any notices to Buyer required to be in writing shall be deemed to have been given (a) upon delivery, if delivered by hand, (b) three (3) days after being mailed either first class, certified mail, return receipt requested, postage and registry fees prepaid, or (c) one (1) Business Day after being delivered to a reputable overnight courier service, excluding the U.S. Postal Service, prepaid, marked for next day delivery, in each case addressed or sent to the address first listed above.
    1. Assignment and Change in Control. Seller shall not, directly, indirectly, voluntarily or involuntarily, in each case, whether by transfer, operation of law, Change of Control or otherwise, assign the Work, delegate any of its obligations under the Buyer's PO, or subcontract for all or substantially all of its performance of the Work (each, an "Assignment") without Buyer's prior written consent after advance written notice by Seller. No purported Assignment, with or without Buyer's consent, shall relieve Seller of any of its obligations or prejudice any rights or claims that Buyer may have against Seller, whether such obligations, rights or claims, as the case may be, arise before or after the date of any purported Assignment.
    2. Publicity. Without Buyer's prior written approval, Seller shall not, and shall require that its subcontractors at any tier shall not, release any publicity, advertisement, news release or denial or confirmation of same regarding this Agreement or the Work to which it pertains. Seller shall be responsible to Buyer for any breach of such obligation by any subcontractor.
    3. Buyer's Property. Seller shall clearly mark, maintain an inventory of, and keep segregated or identifiable all of Buyer's property and all property to which Buyer acquires an interest by virtue of the Work. Seller assumes all risk of loss, destruction or damage of such property while in Seller's possession, custody or control, including any transfer to Seller's subcontractors. Upon request, Seller shall provide Buyer with adequate proof of insurance against such risk of loss. Seller shall not use such property other than in performance of the Work without Buyer's prior written consent. Seller shall notify Buyer's Representative if Buyer's property is lost, damaged or destroyed. As directed by Buyer, upon completion, termination or cancellation of Buyer's PO, Seller shall deliver such property, to the extent not incorporated in delivered Goods, to Buyer in good condition subject to ordinary wear and tear and normal manufacturing losses. Unless otherwise agreed to in writing by Buyer, any order containing itemized tooling, equipment, or other non-recurring expenses, should be considered buyer's property, regardless if such is delivered to Buyer or not.
    4. Access to Buyer's Facility. If Seller performs any of the Work at a premises owned or controlled by Buyer or Buyer's customer or obtains access electronically to Buyer's systems or information, Seller shall comply with: (i) all the rules and regulations established by Buyer or Buyer's customer for access to and activities in and around premises controlled by Buyer or Buyer's customer; and (ii) Buyer's request for information and documentation to validate citizenship or immigration status of Seller's personnel or subcontractor personnel.
    5. Customer Flow-Down Provisions. Buyer's customers require Buyer to flow-down certain provisions to Buyer's suppliers and subcontractors, and Seller agrees to be bound by such flow-down provisions. Such flow-down provisions shall be set forth in Buyer's PO and shall be incorporated herein by reference.
    6. Force Majeure. Seller shall not be liable for any failure to perform under this Agreement if the failure arises from causes beyond Seller's control and without the fault or negligence of Seller. Examples of these causes are: (a) acts of God or of the public enemy; (b) acts of the Government in either its sovereign or contractual capacity; (c) fires; (d) floods; (e) epidemics; (f) quarantine restrictions; (g) strikes; (h) freight embargoes; and (i) unusually severe weather. Seller shall notify Buyer in writing within ten (10) days of the beginning of any such cause(s). The failure to provide such notice shall waive the protections of this Section. In all cases, Seller shall use reasonable efforts to avoid or minimize all such failures, including exercising work-around plans or obtaining the Goods from other sources.
    7. Disputes and Governing Law. Any dispute arising between Buyer and Seller that cannot be settled by mutual agreement of the parties shall be decided by binding arbitration in the state of Utah or another location mutually agreeable to the Parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys' fees. Any such arbitration shall be conducted by an arbitrator experienced in Industrial and Aerospace Equipment and shall include a written record of the arbitration hearing. The Parties reserve the right to object to any individual who is employed by or affiliated with a competing organization or entity to serve as an arbitrator. An award of arbitration may be confirmed in a court of competent jurisdiction. Pending final resolution of any dispute, Seller shall proceed with performance of Work according to Buyer's instructions so long as Buyer continues to pay amounts not in dispute. All disputes shall be governed by the laws of the State of Utah without regard to the conflict of law rules thereof. The prevailing Party is entitled to reasonable attorney's fees, costs, and expenses incurred.
    8. Waiver. Any failure or delay of either Party in insisting upon or enforcing any provisions of this Agreement, or in exercising any rights or remedies created herein, shall not be construed as a waiver or relinquishment of any such provisions, rights or remedies.
    9. Rights, and Remedies. Notwithstanding anything to the contrary, each and all of the several rights and remedies provided for in this Agreement shall be construed as being cumulative and no one of them shall be deemed to be exclusive of the others or of any right or remedy allowed by law or equity, and the pursuit of any one remedy shall not be deemed to be an election of such remedy as a cap or a waiver of any other remedy. Buyer acknowledges and agrees that an actual, threatened, or anticipated breach of Section 20 (Confidential Information) or Section 23 (Intellectual Property) of this Agreement would result in severe and irreparable injury to Seller, which injury could not be adequately compensated by an award of money damages, and Buyer agrees that Seller shall be entitled to injunctive relief in the event of any breach of these Sections, or to enjoin or prevent such a breach. To the extent that Seller uses any of Buyer's Confidential Information in violation of this Agreement and creates, develops or derives any intellectual property therefrom, Seller hereby assigns such intellectual property to Buyer and the Parties agree that a court of competent jurisdiction is authorized to grant specific performance of this provision to effect ownership of title to such intellectual property.
    10. Set-Off. Buyer may at any time deduct or set-off Seller's claims for money due or to become due from Buyer against any claims that Buyer has against seller.
    11. Severability. If any provision of this Agreement is held by any court or other competent authority to be void or unenforceable in whole or part, this Agreement shall continue to be valid as to the unaffected provisions and the remainder of the affected provision, and the affected provision shall be modified no more than necessary to bring into compliance the affected provision while adhering, to the extent possible, the intent of the original provision.
    12. Entire Agreement. This Agreement, together with all Buyer's POs, change orders, attachments, exhibits, supplements, specifications, schedules and other terms referenced in or attached to this Agreement, contains the entire agreement of the Parties and supersedes any and all prior agreements, understandings and communications between Buyer and Seller related to the subject matter thereof.
    13. Construction. This Agreement shall be construed as having been fully and completely negotiated by both Parties and neither this Agreement nor any of its provision shall be construed more strictly against either Party.
    14. Headings. The headings of the sections contained in this Agreement are included for reference purposes only, solely for the convenience of the Parties, and shall not in any way be deemed to affect the meaning, interpretation or applicability of this Agreement nor any of its terms, conditions or provisions.
    15. Relationship Between Buyer and Seller. Nothing in this Agreement or Buyer's PO shall create, or be deemed to create, a partnership, joint venture or the relationship of principal and agent or employer and employee between the Parties. The relationship between the Parties shall be that of independent contractors, and nothing contained herein or in Buyer's PO shall create the relationship of principal and agent or otherwise permit either Party to incur any debts or liabilities or obligations on behalf of the other Party.
    16. Order of Precedence. All documents and provisions provided by Buyer to Seller shall be read so as to be consistent to the fullest extent possible. In the event of a conflict or inconsistency between the documents or provisions, the documents or provisions shall prevail in the order listed below, with the first document or provision listed having the highest precedence:
      • Buyer's PO and Flow-Downs
      • This Agreement
      • All other attachments, exhibits, appendices, documents or terms incorporated by reference in or attached hereto

      For the avoidance of doubt, failure to include a provision within one of the documents referenced in this Section shall not be considered an "inconsistency" for purposes of this Section.

    17. Survival. Notwithstanding the foregoing, the definitions provided for in Section 1 and each of the following Sections shall survive the termination of the Work: (i) Sections 14 (Warranty), 15 (Counterfeit Goods), 16 (Obsolete Materials and Change Notifications), 19 (Financial Records and Audit), 20 (Confidential Information), 21 (Indemnification, Insurance, and Protection of Property), 22 (Liability Limitation), 23 (Intellectual Property), 26 (Notices), 27(b) (Publicity), 27(e) (Customer Flow-Down Provisions), and 27(g) (Disputes and Governing Law), 27(i) (Rights and Remedies), and (ii) any Section in this Agreement which states, or evidences the intent of the parties, that the Section survives the expiration or termination of this Agreement or the Work, or must survive to give effect to the Section.
    18. Third-Party Beneficiaries. Except as noted herein, nothing contained in this Agreement shall be deemed to confer any right or benefit on any Person who is not a party to this Agreement.