1. Sale and Purchase of Products.
1.1 Sale and Purchase. Subject to the terms and conditions of this Agreement, US Synthetic agrees to use commercially reasonable efforts to sell to Buyer, during the term of this Agreement, such quantities of the Products as Buyer may order in accordance herewith. All orders for the Products shall be initiated by written purchase orders sent to US Synthetic by electronic mail, facsimile, air mail, courier or other manner acceptable to the parties. No such purchase order shall be binding on US Synthetic until accepted in writing by US Synthetic, and US Synthetic shall have no liability to Buyer with respect to purchase orders that are not accepted. Shipment of an order shall be deemed to constitute US Synthetic’s acceptance thereof. Purchase orders delivered to US Synthetic may not be cancelled or modified by Buyer.
1.2 Delivery. Unless otherwise agreed in writing by US Synthetic, US Synthetic shall deliver the Products from US Synthetic’s plant or other location Carriage Paid To (Incoterms 2010) the destination in the United States agreed to by US Synthetic and Buyer in writing. Upon delivery of the Products to the first carrier, title thereto shall pass to Buyer and Buyer shall assume all risk of loss of or damage to such Products. Notwithstanding the foregoing, all insurance premiums relating to delivery of the Products shall be at Buyer’s expense. US Synthetic shall assist Buyer in arranging any desired insurance (in amounts that Buyer shall determine). US Synthetic shall also assist Buyer in arranging transportation to destinations outside of the United States, but Buyer (a) assumes all risk of loss of or damage to such Products upon delivery of the Products to the first carrier, (b) shall be solely responsible for clearing the Products for export and import, including, without limitation, obtaining any export or import licenses, obtaining any other official authorizations, and carrying out all customs formalities, and (c) shall pay any and all related costs and expenses, including, without limitation, duties, taxes, insurance premiums, freight, shipping charges and other expenses relating to transportation and delivery of the Products outside of the United States.
1.3 Rejection of Product in Case of Nonconformity.
(a) Buyer shall inspect any and all Products promptly upon receipt thereof by Buyer or its shipping agent. Where inspection is made by Buyer at US Synthetic’s place of business, Buyer’s inspector shall be deemed the agent of Buyer with authority to waive specified tests and details of test procedures and to accept the Products as conforming to this contract with respect to all characteristics of such Products for which such inspection is made.
(b) Buyer must provide US Synthetic with written notification of any (i) Product shortage within ten (10) days after US Synthetic tenders delivery to Buyer (all such shortages must be documented in writing by the carrier), and (ii) the Products not conforming to the Warranty (as defined in Section 5.1) within ten (10) days following discovery of the defect and in no event later than one hundred (100) days from the date of delivery. Buyer must give US Synthetic a reasonable opportunity to investigate and confirm any alleged nonconformance. If no notice of a shortage is received by US Synthetic within ten (10) days of delivery, US Synthetic shall not be liable for any such shortages and the Products shall be deemed to have been accepted by Buyer as conforming to this Agreement.
(c) Upon receipt of a notice of rejection, US Synthetic shall use commercially reasonable efforts to repair or to provide replacement Products for those Products rejected by Buyer. For properly rejected Products, US Synthetic shall pay the shipping charges for (i) return of the nonconforming Products to US Synthetic from Buyer’s location in the U.S. or, if shipping from outside the U.S., from the first port of entry in the U.S. to US Synthetic’s place of business and (ii) for shipment of repaired or replacement Products to Buyer’s location in the U.S. or, if shipping to Buyer outside the U.S., to the first port of entry in the U.S. Buyer shall be responsible for all shipping charges for any Products which have been improperly rejected. In no event shall US Synthetic be liable for repair, replacement, or shipment of any Products which have been damaged or abused by Buyer or any third party. Buyer acknowledges and agrees that the repair or replacement of any rejected Products pursuant to this Section 1.3 or a refund of the purchase price paid for the rejected Products, in either case in US Synthetic’s sole discretion, are its sole remedy with respect to the failure of any such Products to comply with the Warranty or for any other reason.
1.4 Intellectual Property Rights. The design of the Products, all information related thereto, including, without limitation, methods and equipment for manufacturing the Products, and all information provided by US Synthetic to Buyer in connection with or otherwise under this Agreement, regardless of the medium, and all rights to patents, copyrights, trademarks, trade secrets, know-how, designs, formulae, trade names, labels, trade dress, literature or other documents, materials or information relating to the Products or the business operations of US Synthetic or that are otherwise owned by US Synthetic (collectively, the “US Synthetic Intellectual Property”), shall remain the property of US Synthetic and/or its affiliates or suppliers. Buyer shall not, by virtue of this Agreement or by any other action, acquire any interest, claim, lien or other right of any nature whatsoever in or upon any of the US Synthetic Intellectual Property.
2. Price and Payments.
2.1 Price. The purchase price for the Products shall be the prices set forth in US Synthetic’s Product price list in effect at the time of US Synthetic’s receipt of Buyer’s purchase order for the Products. US Synthetic shall have the right at any time to revise the Products’ prices with or without written notice to Buyer. All prices are in U.S. dollars and are exclusive of all shipping costs, insurance premiums and all sales, use, excise or other taxes, duties, levies or fees imposed by any governmental body unless US Synthetic expressly agrees otherwise in writing.
2.2 Method of Payment. All payments due hereunder to US Synthetic shall be paid to US Synthetic in U.S. dollars not later than thirty (30) days following the date of the applicable invoice. Buyer agrees to pay the full amount of each invoice when due and such amounts will not, under any circumstance, be subject to abatement, reduction, offset, credit or deferment, except for any prompt payment discount, if any, as specifically set forth on the face of US Synthetic’s invoice. In the event any amount due US Synthetic is not paid in full on the terms and conditions set forth herein, Buyer shall pay interest on the unpaid balance at the rate of one and a half percent (1.5%) per month or at the maximum legally permissible rate, whichever is lower.
2.3 Taxes. Prices are exclusive of all sales, use, excise or other taxes imposed by any governmental body. All present and future taxes imposed by any federal, state, foreign or local authority which US Synthetic may be required to pay or collect, upon or with reference to the sale, purchase, transportation, delivery, storage, use or consumption of the Products, including taxes upon or measured by the receipts therefrom (except net income and equity franchise taxes), shall be the responsibility of Buyer. In the event that US Synthetic is required to pay any such taxes, duties, levies or fees, Buyer shall promptly reimburse US Synthetic.
3. Use of the Products. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE IN THIS AGREEMENT, BUYER SHALL BE SOLELY RESPONSIBLE FOR THE PROPER AND SAFE TRANSPORTATION, DELIVERY, INSTALLATION, PREPARATION FOR OPERATION, OPERATION, USE AND STORAGE OF THE PRODUCTS, AND SHALL BEAR ALL COSTS ASSOCIATED THEREWITH. BUYER SHALL ALSO BE SOLELY RESPONSIBLE FOR INSTRUCTING USERS OF THE PRODUCTS ON THEIR PROPER USE AND SHALL REQUIRE SUCH USERS TO UTILIZE PROPER SAFETY EQUIPMENT IN ACCORDANCE WITH STANDARD INDUSTRIAL SAFETY PRACTICES. WITHOUT LIMITING THE FOREGOING, BUYER SHALL BE SOLELY AND FULLY LIABLE FOR ANY CLAIMS, DAMAGES, LIABILITIES OR THE LIKE ARISING FROM OR OTHERWISE RELATING TO MODIFICATION (INCLUDING, WITHOUT LIMITATION, LEACHING OR MACHINING OF PRODUCT), ABUSE OR MISUSE OF THE PRODUCTS OR BUYER’S NEGLIGENCE OR MISCONDUCT IN CONNECTION WITH ITS TRANSPORTATION, DELIVERY, INSTALLATION, BRAZING, PREPARATION FOR OPERATION, OPERATION, USE AND STORAGE OF THE PRODUCTS. BUYER SHALL ALSO BE LIABLE FOR THE ACTIVITIES OF ANY PERSON OR THIRD PARTY TO WHOM BUYER PERMITS ACCESS TO THE PRODUCTS AND FOR PERSONS WORKING FOR BUYER, REGARDLESS OF THE LEGAL RELATIONSHIP BETWEEN THEM, INCLUDING, WITHOUT LIMITATION, BUYER’S EMPLOYEES AND SUBCONTRACTORS. WITHOUT LIMITING THE FOREGOING, BUYER SHALL INDEMNIFY, DEFEND AND HOLD US SYNTHETIC HARMLESS FROM ANY AND ALL CLAIMS, DAMAGES, LIABILITY AND THE LIKE ARISING FROM OR OTHERWISE RELATING TO BUYER’S OBLIGATIONS OR LIABILITIES UNDER THIS SECTION 3.
4. Term and Termination.
4.1 Term. Unless earlier terminated pursuant to the terms of this Section 4, the term of this Agreement shall commence on the Effective Date and shall continue for a period of (2) years. This Agreement shall automatically renew for additional periods of one (1) year unless either party provides the other party with written notice of its intention not to renew this Agreement no less than sixty (60) days prior to the end of the then-current term.
4.2 Termination for Default. If either party materially defaults in the performance of any obligation under this Agreement and such default is not remedied within thirty (30) days (or ten (10) days in the case of non-payment) after receipt by the defaulting party of a notice thereof from the other party, the party not in default may immediately terminate this Agreement.
4.3 Effect of Termination. Any rights of US Synthetic to payments accrued through termination as well as obligations of the parties under accepted orders for purchase and delivery of Product at the time of such termination shall remain in effect, except that in the case of termination under Section 4.2, the terminating party may elect whether obligations under purchase orders will remain in effect.
4.4 Survival. The provisions of Sections 2.2 (last sentence only), 2.3, 3, 4.3, 4.4, 5.2, 6, 8 and 9 shall survive any termination or expiration of this Agreement.
5. Limited Warranty.
5.1 Limited Warranty. Upon payment in full by Buyer for the Products, US Synthetic hereby warrants to Buyer that the Products will be substantially free from liens and encumbrances, and, subject to Section 8, that the Products will be free from any material defects in material and workmanship for a period of three (3) months after being placed into service by Buyer or any third party, or six (6) months from the date that US Synthetic tenders delivery of the Products to Buyer, whichever period expires earlier (the “Warranty”). This Warranty and US Synthetic’s liability hereunder are expressly conditioned on Buyer’s proper use, care and storage of the Products and any modifications or alterations to the Products without US Synthetic’s prior written consent shall automatically void the Warranty for the Products. This Warranty is voided and US Synthetic shall have no liability for any claims that are due to normal wear, Product misuse, Product abuse, Product overheating, Product modification or improper Product selection. In the event of a breach of this Warranty, Buyer’s sole and exclusive remedy, and US Synthetic’s sole obligation, shall be the repair or replacement of the defective or non-conforming Products or, at US Synthetic’s option, the refund of the purchase price for such Products.
5.2 Disclaimer. EXCEPT AS EXPRESSLY SET FORTH ABOVE IN THIS SECTION 5, THE PRODUCTS ARE PROVIDED TO BUYER ON AN “AS IS” BASIS AND WITHOUT WARRANTY OF ANY KIND. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, US SYNTHETIC HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
6. Confidentiality.
6.1 Definition of Confidential Information. “Confidential Information” shall mean any and all proprietary information furnished or made available to one party (the “Receiving Party”) by the other party (the “Disclosing Party”), whether on, before or after the Effective Date, relating to the Disclosing Party’s current or future business, or any other proprietary information of the Disclosing Party whether in written, oral, electronic or other form. For purposes of clarity, the US Synthetic Intellectual Property, the design of the Products, the specifications for the Products, the methods of manufacturing the Products, the equipment for manufacturing the Products, data relating to testing of the Products, other technical information relating to the Products, the prices for the Products and the terms and conditions of this Agreement are hereby deemed to be US Synthetic’s Confidential Information.
6.2 Obligations of Nonuse and Nondisclosure. The Receiving Party (a) shall hold the Disclosing Party’s Confidential Information in strict confidence, (b) shall not disclose such Confidential Information to any third party and shall employ reasonable practices and procedures necessary to prevent such disclosure, which steps shall include at least those taken by the Receiving Party to protect its own confidential information of like kind, and (c) shall use such Confidential Information only in connection with its performance under this Agreement unless the Disclosing Party has agreed otherwise in writing.
6.3 Exclusions from Confidential Information. The obligations of nondisclosure and nonuse in Section 6.2 shall not apply to any part of the Confidential Information which the Receiving Party can show by clear and convincing evidence using written documents (a) was already known to the Receiving Party before receiving such information from the Disclosing Party, (b) is or becomes known to the public or generally available to the public through no fault of the Receiving Party, (c) is rightfully furnished to the Receiving Party by a third party who has not received such Confidential Information, directly or indirectly, from the Disclosing Party or any other party under an obligation of nondisclosure or nonuse, or (d) is independently developed by or for the Receiving Party without use of Confidential Information received from the Disclosing Party.
6.4 Judicial Order. The obligation of nondisclosure in this Agreement shall not be breached by disclosure required in a judicial proceeding or governmental investigation, provided the Receiving Party gives the Disclosing Party prior written notice of such requirement and affords the Disclosing Party an opportunity to oppose such disclosure or seek a protective order.
6.5 Remedies. Buyer acknowledges the proprietary and confidential nature of the US Synthetic Intellectual Property and US Synthetic’s other Confidential Information, agrees that damages are an inadequate remedy in the event of a breach or intended or threatened breach of this Section 6, and further agrees that any such breach shall cause US Synthetic irreparable injury and damage. Accordingly, Buyer agrees that US Synthetic shall be entitled (without waiving any additional rights or remedies, including monetary damages, otherwise available at law, or in equity, or by statute) to preliminary and permanent injunctive relief in the event of a breach or intended or threatened breach of the foregoing sections by Buyer without the necessity of posting a bond or proving actual damages.
7. Indemnification.
7.1 By US Synthetic.
(a) Subject to Section 8, US Synthetic shall indemnify Buyer against any claim, demand, suit or proceeding made or brought against Buyer by a third party resulting from (i) any injury or death to a person, or damage to property, caused by any material defects in the Products sold by US Synthetic hereunder, or (ii) the actual infringement by the Products of any third party’s U.S. patents issued prior to the Effective Date (a “Claim”). If any Claim is made or commenced against Buyer, which Buyer believes is subject to indemnification under this Section 7.1(a), written notice thereof will be given to US Synthetic within five (5) days of Buyer’s receipt of notice of the Claim. US Synthetic shall be relieved of its indemnification obligations to the extent that US Synthetic is actually prejudiced by Buyer’s failure to provide US Synthetic with notice during such five (5) day period and US Synthetic will not be liable for any expenses incurred during the period in which Buyer failed to give notice.
(b) In no event will US Synthetic have any obligation or any liability for any Claim or action under any legal theory if the Claim or action is caused by, or results from: (i) Buyer’s combination, operation or use of the Products with other equipment, devices, goods (e.g., the use of US Synthetic’s polycrystalline diamond cutters or inserts in combination with Buyer’s drill bit) or materials not supplied, approved or specified by US Synthetic, if such Claim or action would have been avoided by the non-combined or exclusive use of the Products, (ii) any alteration or modification of the Products by anyone other than US Synthetic, (iii) Buyer’s continued allegedly infringing activity after being notified thereof or after being provided modifications that would have avoided the alleged infringement, (iv) Buyer’s use of the Products in a manner not strictly in accordance with this Agreement or US Synthetic’s specifications or instructions for use of the Products, or (v) US Synthetic’s alteration or modification of the Products in compliance with Buyer’s specifications or to include any technology, features, designs or materials specified by Buyer.
(c) Notwithstanding anything in this Agreement to the contrary, US Synthetic’s liability and indemnity obligation to Buyer in connection with, arising out of or relating to a Claim under Section 7.1(a)(ii) shall amount and shall be limited solely to the following: (i) fifteen percent (15%) of the reasonable expenses and costs incurred by Buyer arising out of the defense of Buyer or, if represented by common counsel, of Buyer and US Synthetic jointly, as against the Claim (including attorney’s fees and other costs of defense); and (ii) fifteen percent (15%) of any actual judgment or award as may be entered by a court against Buyer on the Claim.
(d) BUYER ACKNOWLEDGES AND AGREES THAT, UNDER NO CIRCUMSTANCES, SHALL US SYNTHETIC BE LIABLE TO BUYER FOR ANY ROYALTY, FEE, OR OTHER PAYMENT ARISING OUT OF BUYER’S SETTLEMENT OF A CLAIM (INCLUDING BUT NOT LIMITED TO ANY ROYALTY, FEE, OR OTHER PAYMENT THAT IS CONTINGENT UPON AND TIED TO BUYER’S FUTURE SALES OF PRODUCTS OR SERVICES).
7.2 By Buyer. Subject to Section 8, Buyer shall indemnify, defend and hold US Synthetic harmless from and against any Claim made or brought against US Synthetic by a third party (i) resulting from any injury or death to a person, or damage to property, caused by the negligence or willful misconduct of Buyer or (ii) any Claim to the extent the Claim is caused by, or results from: (1) Buyer’s combination, operation or use of the Products with other equipment, devices, goods or materials not supplied, approved or specified by US Synthetic, if such Claim or action would have been avoided by the non-combined or exclusive use of the Products, (2) any alteration or modification of the Products by anyone other than US Synthetic, (3) Buyer’s use of the Products in a manner not strictly in accordance with this Agreement or US Synthetic’s specifications or instructions for use of the Products, or (4) US Synthetic’s alteration or modification of the Products in compliance with Buyer’s specifications or to include any technology, features, designs or materials specified by Buyer. If any Claim is made or commenced against US Synthetic, which US Synthetic believes is subject to indemnification under this Section 7.2, written notice thereof will be given to Buyer within five (5) days of US Synthetic’s receipt of notice of the Claim. Buyer shall be relieved of its indemnification obligations to the extent that Buyer is actually prejudiced by US Synthetic’s failure to provide Buyer with notice during such five (5) day period and Buyer will not be liable for any expenses incurred during the period in which US Synthetic failed to give notice.
8. Limitation of Liability.
8.1 BUYER’S SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THE WARRANTY SHALL BE THE REPAIR OR REPLACEMENT OF THE DEFECTIVE OR NON-CONFORMING PRODUCTS OR, AT US SYNTHETIC’S OPTION, THE REFUND OF THE PURCHASE PRICE FOR SUCH PRODUCTS FOR WHICH NOTICE, FULL DOCUMENTATION AND PROOF OF NONCONFORMITY IS PROVIDED TO US SYNTHETIC AS SET FORTH IN SECTION 1.3.
8.2 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL US SYNTHETIC BE LIABLE TO BUYER OR ANY OTHER PERSON OR ENTITY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY TYPE OR NATURE, OR FOR ANY LOST PROFITS OR REVENUE, ARISING FROM ANY CAUSE WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY BREACH OF THE WARRANTY HEREUNDER OR FROM THE NEGLIGENCE OR ACTS OF US SYNTHETIC OR THE EMPLOYEES, OFFICERS, DIRECTORS AND CONSULTANTS OF US SYNTHETIC, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, AND WHETHER OR NOT EITHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ADDITION, UNDER NO CIRCUMSTANCES, INCLUDING ANY FAILURE OF AN EXCLUSIVE REMEDY OF ITS ESSENTIAL PURPOSE, SHALL US SYNTHETIC’S TOTAL LIABILITY UNDER THIS AGREEMENT EXCEED THE PURCHASE PRICE PAID BY BUYER FOR THE PRODUCTS PURCHASED HEREUNDER.
9. Miscellaneous.
9.1 Entire Agreement. This Agreement contains the entire agreement of the parties regarding the subject matter hereof and supersedes all prior agreements, understandings and negotiations regarding the same. This Agreement may not be modified or supplemented except by a written instrument signed by both parties. Furthermore, it is the intention of the parties that this Agreement be controlling over additional or different terms of any order, confirmation, invoice or similar document, even if accepted in writing by both parties, and that waivers and amendments shall be effective only if made by non-preprinted, negotiated waiver agreements clearly understood by both parties to be an amendment or waiver.
9.2 Assignability. This Agreement may not be assigned by either party without the prior consent of the other party (and any attempt to do so will be void); however, that either party may assign this Agreement to any entity that acquires substantially all of its stock, assets or business.
9.3 Severability. If any provision of this Agreement shall be held illegal or unenforceable, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable.
9.4 Further Assurances. Each party hereto agrees to execute, acknowledge and deliver such further instruments, and to do all such other acts as may be necessary or appropriate in order to carry out the purposes and intent of this Agreement.
9.5 Notice and Reports. All notices, consents, or approvals required by this Agreement shall be in writing sent by certified or registered air mail, postage prepaid, or by confirmed facsimile (confirmed by such certified or registered mail) to the parties at the addresses set forth in the introduction above or such other addresses as may be designated in writing by the respective parties. Notices shall be deemed effective on the third day after the date of mailing.
9.6 Relationships of the Parties. Both parties are independent contractors under this Agreement. Nothing contained in this Agreement is intended nor is to be construed so as to constitute US Synthetic and Buyer as partners, agents or joint venturers with respect to this Agreement. Neither party hereto shall have any express or implied right or authority to assume or create any obligations on behalf of or in the name of the other party or to bind the other party to any contract, agreement or undertaking with any third party.
9.7 Waiver. The waiver by either party of a breach of any provisions contained herein shall be in writing and shall in no way be construed as a waiver of any subsequent breach of such provision or the waiver of the provision itself.
9.8 Governing Law. The parties agree that this Agreement, and any disputes arising hereunder, shall be governed by and construed in accordance with the laws of the State of Utah, without regard to choice of law rules. Any disputes hereunder shall be within the exclusive jurisdiction of the state and/or federal courts located within Utah County, Utah (or, if none, Salt Lake County, Utah), and the parties hereby consent to such exclusive jurisdiction and waive objections to venue therein and jurisdiction thereof.
9.9 Notice. Buyer acknowledges that US Synthetic is not a licensee under ReedHycalog’s leaching technologies. US Synthetic will not sell partially leached diamond cutters (as defined by the settlement agreement between US Synthetic and ReedHycalog/NOV (the “Settlement Agreement”)) to any entity that is not licensed by ReedHycalog/NOV. However, US Synthetic can sell its partially leached cutters (as defined by the Settlement Agreement) to licensed drill bit manufacturers in accordance with the scope of their license.
9.10 Captions. Section captions are for convenience only and in no way are to be construed to define, limit or affect the construction or interpretation hereof.
9.11 Force Majeure. A party shall not be liable for nonperformance or delay in performance (other than of obligations regarding payment of money or confidentiality) caused by any event reasonably beyond the control of such party including, but not limited to wars, hostilities, revolutions, riots, civil commotion, national emergency, strikes, lockouts, unavailability of supplies, epidemics, fire, flood, earthquake, force of nature, explosion, embargo, or any other Act of God, or any law, proclamation, regulation, ordinance, or other act or order of any court, government or governmental agency. In addition, if, due to force majeure or any other cause, US Synthetic is unable to produce sufficient Product to meet all demands from customers and internal uses, US Synthetic shall have the right, in its sole discretion, to allocate production among its customers and plants in any manner that US Synthetic deems appropriate without liability to Buyer or any other third party.
9.12 Export Control; Corruption. Buyer shall comply with, and shall, at US Synthetic’s request, demonstrate such compliance with, the U.S. Foreign Corrupt Practices Act and all applicable export laws, restrictions, and regulations of the U.S. Department of Commerce, the U.S. Department of Treasury and any other U.S. or foreign agency or authority. Buyer will not export or re-export, or allow the export or re-export of any product, technology or information it obtains or learns pursuant to this Agreement (or any direct product thereof) in violation of any such law, restriction or regulation. Buyer shall obtain and bear all expenses relating to any necessary licenses and/or exemptions with respect to the export from the U.S. of any Product to any location in compliance with all applicable laws and regulations prior to delivery thereof by US Synthetic. If Buyer is involved in a transaction that gives Buyer reason to suspect that any product, technology or information it obtains or learns pursuant to this Agreement will be exported, re-exported, or diverted in violation of any such laws, restrictions or regulations (including, without limitation, knowledge of suspect end users, abnormal transaction circumstances, or other Bureau of Export Administration “red flag” indicators), then Buyer will take appropriate steps to terminate such transaction, notify the correct U.S. agency, and give notice to US Synthetic.
9.13 NEGOTIATED BASIS OF BARGAIN. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY, THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS AGREEMENT.
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