1.1 Agreement. These Terms and Conditions (“Terms”) have been incorporated by reference into a sales quotation, sales confirmation, sales order, contract, agreement or other written instrument issued or signed by an authorized employee of Herbert Systems (each, a “Herbert Systems Sale Document”) regarding the sale of products (“Products”) and provision of related services (“Services”). These Terms and the Herbert Systems Sale Document issued by Herbert Systems to Buyer shall be collectively referred to herein as the “Agreement.”
1.2 Entire Agreement. The Agreement, including any attachments, exhibits or other written documents that are explicitly incorporated by reference by the text of the Agreement, constitutes the entire agreement between Herbert Systems and Buyer regarding the subject matter of the Agreement and may not be modified except in a writing signed by a duly authorized employee of Herbert Systems and Buyer.
1.3 Buyer Documents. Herbert Systems shall not be bound by the terms and conditions of any purchase order, order confirmation, acceptance or other instrument issued by Buyer (collectively, “Buyer Document”), unless such Buyer Document is counter-signed by an authorized employee of Herbert Systems. Herbert Systems’ performance under the Agreement shall not, under any circumstances, be deemed Herbert Systems’ acceptance of any of the terms and conditions contained in a Buyer Document. If Buyer issues a Buyer Document to procure the Products and Services described in a Herbert Systems Sale Document, then such issuance shall be deemed to constitute Buyer’s acceptance of the terms and conditions of this Agreement, but all other terms and conditions contained in the Buyer Document shall be of no force or effect and shall not be deemed to supersede, replace, modify, augment, enhance, delete, remove, amend or otherwise alter any of the terms and conditions of this Agreement. Acceptance of or payment for any of the Products or Services shall also be deemed to constitute Buyer’s acceptance of all of the terms and conditions of this Agreement.
1.4 Precedence. In the event of any conflict between the terms of a Herbert Systems Sale Document and these Terms, these Terms shall take precedence.
2. Products and Services. Buyer agrees to purchase from Herbert Systems and Herbert Systems agrees to sell the Products to Buyer and to perform the Services for Buyer, in accordance with the terms and conditions of this Agreement.
3. Purchase Price.
3.1 Prices for Products and Services. The prices for Products and Services covered by these Terms are those prices set forth in the Herbert Systems Sale Document or, if there are no prices contained therein, then the prices shall be as set forth on Herbert Systems’ then-current applicable standard price list applicable to Buyer under Herbert Systems’ sales policies.
3.2 Prices for Additional Services. If Herbert Systems n agrees to perform any services not covered by the Services (“Additional Services”), such Additional Services shall be billable at Herbert Systems’ then-current time and materials rates in effect for the region in which the Services are performed. Additional Services include, but are not limited to, performance of Services outside of Herbert Systems’ regularly-scheduled business hours and performance of any services excluded under Section 10.2.
4. Terms of Payment.
4.1 Payments. Unless otherwise agreed in the Herbert Systems Sale Document, all payments are due and payable in full by Buyer immediately upon Buyer’s receipt of the invoice, but no later than 30 days from the date of Herbert Systems’ invoice. Buyer shall deliver payments to the address or bank account specified in Herbert Systems’ invoice.
4.2 Currency. Buyer shall pay all amounts due in such currency as provided in the applicable Herbert Systems Sale Document.
4.3 Taxes. Buyer shall promptly pay the amount of any sales, use, VAT, duties, excise or other similar tax (and all interest and penalties) applicable to the sale, installation, importation, transportation or use of the Products and performance of the Services hereunder (other than amounts due on Herbert Systems’ net income from such sale or service).
4.4 Late Payment. All amounts past due shall incur a late payment charge that shall accrue at a rate of 3.0% per annum over the Bank of England base rate or the highest rate permitted by applicable law, whichever is less, calculated from the date due until such amount is paid.
4.5 Buyer’s Credit. Herbert Systems’ performance under this Agreement shall at all times be subject to Herbert Systems’ approval of Buyer's credit. Herbert Systems shall be permitted to terminate this Agreement, in whole or in part, or to suspend deliveries (required by the terms of the Agreement or under any other agreement between Herbert Systems and Buyer) and to suspend the performance of services (including the Services, warranty services or otherwise, and whether required by the terms of this Agreement or under any other agreement between Herbert Systems and Buyer) and shall be permitted to impose such other terms and conditions or security arrangements as Herbert Systems, in its sole discretion, deems appropriate to ensure full payment by Buyer for the Products and Services.
4.6 Security Interest. Buyer hereby grants to Herbert Systems a security interest in all Products, and in any proceeds thereof, including insurance proceeds, to secure payment of all amounts due under this Agreement until such amounts are paid in full. Buyer shall not, without Herbert Systems’ prior written consent, relocate, sell, lease, or create additional liens other than the security interest described herein over the Products until Buyer has paid for all such Products in full. If Buyer defaults under any obligation arising under or in connection with this Agreement, Herbert Systems may pursue all remedies of a secured creditor provided under applicable law. Buyer agrees that Herbert Systems is entitled to file such financing statements and amendments thereto as Herbert Systems deems necessary to protect its interest in the Products and to effectuate the purposes of this Section 4. If Buyer defaults on any obligation arising under or related to this Agreement, Buyer shall make all Products available so that Herbert Systems may repossess them promptly. Upon Herbert Systems’ request, Buyer covenants that it shall execute any and all documents requested by Herbert Systems to perfect Herbert Systems’ security interest in any or all of the Products.
4.7 Notice of Payment Dispute. If Buyer intends to dispute any amount due under or related to this Agreement, Buyer must notify Herbert Systems in writing within 30 days of the date such payment is originally due. Buyer waives its right to dispute such amounts or to bring or participate in any legal action involving a dispute of such amounts if not reported within such period.
5. Delivery and Acceptance.
5.1 Delivery and Risk of Loss; Title. Unless otherwise provided in the applicable Herbert Systems Sale Document, all Products shall be delivered Free Carrier (FCA) at Herbert Systems’ manufacturing location (Incoterms 2010). Title and risk of loss or damage to Products pass to Buyer at such location.
5.2 Dates. Herbert Systems’ delivery and performance dates are estimates only. Herbert Systems will use commercially reasonable efforts to deliver in accordance with the delivery or performance dates specified in the Herbert Systems Sale Document, but may change those dates as it deems necessary. Herbert Systems shall not be liable for failure to deliver or perform by such dates.
5.3 No Cancellations. Buyer may not cancel, delay, reschedule or otherwise vary any delivery of Products or performance of Services without Herbert Systems’ written consent. Such consent may be granted or withheld in Herbert Systems’ sole discretion. Such consent may be conditioned by Herbert Systems on, among other things, prompt payment by Buyer to Herbert Systems for direct or indirect amounts arising under or related to the cancellation, delay, rescheduling or other variation.
5.4 Acceptance. Buyer shall upon receipt of the Products, without delay and using due diligence, examine the Products as to their quality and quantity. The Products shall be deemed to have been received in agreed quantity and without apparent damage unless Buyer notifies Herbert Systems in writing to the contrary within a period of five (5) working days from the receipt of the Products. Services shall be deemed accepted by Buyer upon performance.
6. Testing and Installation. If testing (e.g., factory acceptance testing, site acceptance testing) is included in a Herbert Systems Sale Document, Herbert Systems shall perform such testing and installation in accordance with Herbert Systems’ standard testing and installation procedures for the Products in effect on the date of testing/installation.
7. Excusable Delay. Herbert Systems shall not be responsible for any delay or non-performance of its obligations hereunder to the extent and for such periods of time as such delay or non-performance, defective performance or late performance is due to causes beyond its control. Excusable delays include, but are not limited to, acts of God, war, acts of any government in either its sovereign or contractual capacity, fire, explosions, sabotage, the elements, epidemics, quarantine restrictions, strikes, lockout, embargoes, severe weather, delays in transportation, airline schedule, fuel shortages, or delays of suppliers or subcontractors.
8. Software License. Herbert Systems grants to Buyer a license to use the software that has been installed by Herbert Systems on the Products (“Software”), together with new versions or updates to such Software made available by Herbert Systems to Buyer, in object code form only and subject to the terms of Herbert Systems’ standard Software License Agreement (as amended from time to time), which is incorporated herein by reference.
9.1 Confidential Information. By virtue of this Agreement, the parties may have access to information that is confidential to the other (“Confidential Information”). Confidential Information will be limited to the terms and pricing under this Agreement (unless disclosed in accordance with Section 14.4) and all information clearly identified at the time of its original disclosure in writing as confidential. A party’s Confidential Information shall not be deemed to include information that: (i) is or becomes generally known to the public through no act or omission of the other party; (ii) was in the other party’s lawful possession prior to the disclosure and had not been obtained by the other party either directly or indirectly from the disclosing party; (iii) is lawfully disclosed to the other party by a third party without restriction on disclosure or (iv) is independently developed by the other party without use of or reference to the disclosing party’s Confidential Information.
9.2 Restrictions on Disclosure and Use. Each party agrees to hold the other party’s Confidential Information in strict confidence. Each party agrees, unless required by law, not to make the other party’s Confidential Information available in any form to any third party for any purpose except to the extent necessary to exercise its rights under this Agreement, and to treat Confidential Information of the other party with the same degree of care with which it would treat its own confidential information of a like nature, and in no case with less than a reasonable degree of care. Each party agrees not to use the other party’s Confidential Information for any purpose other than the performance of this Agreement. Each party agrees to limit the disclosure of Confidential Information to those of its officers, directors, employees, consultants, attorneys and other professional advisors who (i) have a need to know and (ii) are subject to an ongoing legal obligation to maintain all Confidential Information on terms at least as restrictive as those contained in this Agreement. Each party agrees to ensure full compliance with the terms of this Agreement by all such parties to whom it provides Confidential Information. It will not be a breach of this Section if Confidential Information is disclosed pursuant to a subpoena or other compulsory judicial or administrative process, provided the party served with such process promptly notifies the other party and provides reasonable assistance so that the other party may seek a protective order against public disclosure.
9.3 Other Confidentiality Agreements. If Herbert Systems and Buyer have entered into a separate agreement designed to protect the confidential information of either party transmitted in connection with the transactions described in a Herbert Systems Sale Document, then the terms of this Section 9 shall not be deemed to supersede, replace, modify, augment, enhance, delete, remove, amend or otherwise alter any of the terms and conditions of such separate agreement, which agreement shall remain in full force and effect.
10.1 Warranty Terms. Herbert Systems warrants to Buyer (and to no other party) that that the Products shall conform substantially to Herbert Systems’ then-current applicable specifications for the Products. Unless otherwise agreed in the Herbert Systems Sale Document, the warranty period expires on the one-year anniversary of delivery of the Product. Supplies, accessories and service parts, including used Products, shall be free from defects in material and workmanship for a period of 90 days from delivery. Defects in a repaired or replaced Product or part shall be covered to the extent of the unexpired term of the applicable warranty period.
10.2 Limitations. The warranty set forth above shall not apply if (i) Herbert Systems is unable to reproduce the defect or error reported by Buyer; (ii) Buyer has failed to use and maintain the Product in accordance with Herbert Systems’ manuals, instructions and/or other procedures or instructions, whether oral or written, that Herbert Systems has made available to Buyer or that it makes available to purchasers of the Product generally; (iii) Buyer has failed to timely report a defect or error in accordance with the procedures established by Herbert Systems to identify and report such problems to Herbert Systems’ Customer Service Department; (iv) a Product has been moved, without Herbert Systems’ written consent, from its original installation location; (v) the area in which the Product is located is not, in Herbert Systems’ opinion, a safe and clean operating environment; (vi) Herbert Systems is not granted prompt access to the Product upon arrival of Herbert Systems’’ service engineer; (vii) the Product has been installed, repaired or modified without Herbert Systems’ prior written consent (e.g., by a technician that is not, at the time of such modification, certified by Herbert Systems’ Customer Service Department to perform such work); (viii) the Product has been damaged by neglect, misuse, mishandling, failure of electrical power, user error, liquids, or as a result of any other cause external to Product, including attaching third parties’ pieces and/or products to the Product, without having consulted with Herbert Systems prior to attaching such pieces to the Product; (ix) Buyer has failed to timely pay, in whole or in part, any invoice issued by Herbert Systems; or (x) Buyer is in breach of the Agreement or any other agreement between Buyer and Herbert Systems (this statement shall not be construed to limit any other rights or remedies available to Herbert Systems for any such breach).
The Buyer shall indemnify Herbert Systems against all liabilities, costs, expenses, damages and losses (including but not limited to any loss of profit, loss of reputation and all interest, penalties and legal and other professional costs and expenses) suffered or incurred by Herbert Systems arising out of or in connection with any investigation carried out by Herbert Systems into a defect in the Product, where the outcome of the investigation suggests that a third party is responsible for the Product not functioning in accordance with the specification.
10.3 Exclusive Remedies. Buyer must report to Herbert Systems in writing any breach of the warranties contained in this Section 10 during the relevant warranty period. With respect to Products installed in the United Kingdom, Buyer’s sole and exclusive remedies, and Herbert Systems’ entire liability, shall be to correct the error or defect that caused the breach of warranty or, if Herbert Systems is unable to make the Product operate as warranted, the replacement of the defective Product or return of the purchase price (at Herbert Systems’ election). Buyer must obtain a return of goods authorization including packaging and shipping instructions from Herbert Systems before Products can be returned for warranty service. With respect to Products installed outside of the United Kingdom, Buyer’s sole and exclusive remedies, and Herbert Systems’ entire liability, shall be to provide Buyer with replacement parts to the extent such replacement parts are required by a Herbert Systems-certified service technician to correct the error or defect or, if Herbert Systems is unable to provide such replacement parts, the replacement of the defective Product or return of the purchase price (at Herbert Systems’ election). Therefore, with respect to Products installed outside of the United Kingdom, Buyer shall be responsible for obtaining the services of a Herbert Systems-certified technician to remove defective parts, install replacement parts, and perform all other related warranty service work. If any service is performed or attempted by an individual that is not, at the time that service is performed, certified by Herbert Systems’ Customer Service Department to perform such work, then Herbert Systems shall no longer have any further warranty obligations with respect to such Product (see Section 10.2(vii)). Buyer acknowledges and agrees that Herbert Systems-certified service technicians that are not, at the time of the performance of service, the employees of Herbert Systems, are not the agents or partners of Herbert Systems. Such service technicians (including their employers) have no right or authority, express or implied, to assume or create any obligation of any kind on behalf of Herbert Systems, to make any representation or warranty on behalf of Herbert Systems or to bind Herbert Systems in any respect whatsoever. If any dispute of any kind (whether based in contract, tort or otherwise) arises between Buyer and such service technician (or between Buyer and the employer of such service technician), Buyer acknowledges and agrees that it shall look exclusively to such service technician (and the employer of such service technician, if appropriate) for all remedies to such dispute and shall have no right to pursue Herbert Systems in connection with such dispute.
10.4 Disclaimer. EXCEPT AS SET FORTH IN THIS SECTION 10, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, HERBERT SYSTEMS DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT, AND WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING OR PERFORMANCE OR USAGE OF TRADE OR SAMPLES SUPPLIED. HERBERT SYSTEMS DOES NOT ASSUME OR AUTHORIZE ANY OTHER TO ASSUME FOR IT, ANY OTHER LIABILITY IN CONNECTION WITH THE PRODUCTS OR SERVICES, INCLUDING LIABILITY ARISING OUT OF PRODUCT TESTING, DELIVERY, INSTALLATION, SERVICE OR USE. HERBERT SYSTEMS DOES NOT EXTEND THE WARRANTY CONTAINED IN THIS SECTION 10, AND BUYER MAY NOT TRANSFER IT TO, ANY PARTY OTHER THAN BUYER.
11.1 Limitation of Liability. Herbert Systems’ total liability arising out of or in connection with this Agreement shall be limited to the total price actually paid by Buyer for the Products covered by the Agreement. The parties acknowledge that the limitations of liability in this Section 11 and in the other provisions of the Agreement and the allocation of risk herein are an essential element of the bargain between the parties, without which Herbert Systems would not have entered into the Agreement. Herbert Systems’ pricing reflects this allocation of risk and the limitation of liability specified herein. Notwithstanding the foregoing, nothing in this Agreement shall exclude or restrict Herbert Systems’ liability for (i) death or personal injury resulting from the negligence of Herbert Systems or of its employees while acting in the course of their employment; (ii) a breach of any obligations implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982 or (iii) fraud or fraudulent misrepresentation.
11.2 Herbert Systems shall not be liable for defects in the Product which arise from the Buyer’s failure to use and maintain the Product in accordance with Herbert Systems’ manuals, instructions and/or other procedures or instructions, whether oral or written, that Herbert Systems has made available to Buyer or that it makes available to purchasers of the Product generally.
12. No Indirect or Consequential Damages. IN NO EVENT SHALL HERBERT SYSTEMS BE LIABLE FOR ANY DAMAGES CAUSED BY BUYER'S FAILURE TO PERFORM ITS OBLIGATIONS, LOSS OF DATA, LOSS OF REVENUE, LOSS OF ANTICIPATED SAVINGS AND LOST PROFITS, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER EVEN IF HERBERT SYSTEMS HAS BEEN ADVISED, KNEW, OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES.
13. Reciprocal Waiver of Claims. As the Products and Services may be deployed in defense against or to assist in the detection of an Act of Terrorism (as such term is defined under the Support Anti-terrorism by Fostering Effective Technologies Act of 2002) before it occurs, Herbert Systems and Buyer each agree to waive all claims against the other (including those of or against their officers, directors, employees, subsidiaries, affiliates, agents, subcontractors or other representatives) for losses, including business operation losses, resulting from or related to such Act of Terrorism.
14. Miscellaneous Provisions.
14.1 Remedies. The remedies described in various sections of the Agreement shall not be deemed the exclusive remedies available to Herbert Systems and Herbert Systems shall, in addition to all such remedies, also be entitled to all other remedies available to it under law, in equity and as specified elsewhere in the Agreement.
14.2 Proprietary Rights. Herbert Systems retains all rights, title and interest in and to the Intellectual Property Rights in the Products and any derivative works thereof. Buyer does not acquire any other rights, express or implied, in the Products. “Intellectual Property Rights” means patent, copyright, trademark, trade secret and any other intellectual property rights. Buyer will acquire no rights in Herbert Systems Confidential Information (as defined in Section 9.1) which may be included in any derivative work unless expressly agreed otherwise.
14.3 Relationship Between the Parties. Each of Herbert Systems and Buyer is an independent contractor and neither party’s personnel are employees or agents of the other party. The Agreement shall not be construed as creating an agency, partnership, joint venture or any other form of association, for tax purposes or otherwise, between the parties; the parties shall at all times be and remain independent contractors. Except as expressly agreed by the parties in writing, neither party shall have any right or authority, express or implied, to assume or create any obligation of any kind, or to make any representation or warranty, on behalf of the other party or to bind the other party in any respect whatsoever.
14.4 Marketing Rights. Herbert Systems shall have an unfettered right to issue a press release regarding the sale of Products and provision of Services covered by this Agreement, including disclosing the purchase price, the Products and Services covered, Buyer’s name and location, and any other information deemed appropriate in Herbert Systems’ discretion. Such disclosure, if made by Herbert Systems, shall not be deemed a breach of Section 9. Buyer also consents to the use of its name, the location of the Products, the dates on which Products were installed, images of the Products at such location(s) and any other information that Herbert Systems deems desirable for the purposes of marketing the Products to other customers and potential customers (collectively, “Information”). Buyer’s acknowledges and agrees that Herbert Systems’ use of the Information is unrestricted and therefore may be published for any purpose whatsoever and in any media and in manner throughout the world, including, without limitation, reproduction, distribution, modification and public performance and display of any works that incorporate the Information, including on Internet websites, on television, on radio, in data sheets, pamphlets, and brochures.
14.5 No Buyer Press Release. Buyer shall issue no press release or other public statement of any kind regarding the Products, Services or terms of this Agreement without Herbert Systems’ express written consent.
14.6 Construction, Waiver. If for any reason a court or arbiter of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision shall be enforced to the maximum extent permissible so as to effectuate the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. Failure by either party to enforce any provision of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision.
14.7 Notice. Any notice, request, demand or other communication required or permitted hereunder will be in writing and will be deemed to be properly given upon the earlier of (i) actual receipt by the addressee, (ii) five business days after deposit in the mail, postage prepaid, when mailed by registered or certified airmail, return receipt requested or (iii) two business days after being sent via internationally-recognized private industry courier (e.g., FedEX, UPS) to the respective parties at the addresses indicated in the Herbert Systems Sale Document, (ATTN: President) or to such other person or address as the parties may from time to time designate in a writing delivered pursuant to this Section.
14.8 No Assignment. Buyer may not assign, sell, transfer, delegate or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under the Agreement without the prior written consent of Herbert Systems. Any purported assignment, transfer, delegation or other disposition by Buyer will be null and void. Subject to the foregoing, the Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.
14.9 No Third Party Beneficiaries. It is not the intention of the parties to confer a third party beneficiary right of action upon any third party or entity whatsoever, and nothing in this Agreement will be construed to confer upon any third party other than the parties hereto a right of action under this Agreement or in any manner whatsoever.
14.10 Permits and Licenses. Buyer shall be required to obtain and maintain all registrations, licenses, permits and/or approvals from relevant authorities, as may be necessary to store and operate the Products purchased by Buyer.
14.11 Governing Law. This Agreement shall be governed by and construed and interpreted in accord with the laws of England and Wales. The Agreement shall not be governed by the U.N. Convention on Contracts for the International Sale of Goods, the application of which is expressly excluded.
14.12 Venue. Except for matters of injunctive relief, for which either party may initiate proceedings in any court of competent jurisdiction, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be finally and exclusively determined by binding arbitration. The number of arbitrators shall be one. The place of the arbitration shall be London, England. If Buyer is headquartered in the United Kingdom, the arbitration shall be administered by the International Chamber of Commerce in accordance with its Rules of Arbitration. The Emergency Arbitrator Provisions shall not apply. If Buyer is headquartered outside of the United Kingdom, the arbitration shall be administered by the International Centre for Dispute Resolution in accordance with its International Rules. Judgment on the award rendered by the arbitration proceeding may be entered in any court of competent jurisdiction.
14.13 Costs of Collection and Other Legal Fees. If Herbert Systems uses a collection agency to collect money owed by Buyer, Buyer agrees to pay the costs of collection incurred by Herbert Systems. These costs include, but are not limited to, collection agency's fees, attorneys' fees, and arbitration or court costs. If any other legal, including, without limitation, an action for arbitration or injunctive relief, is brought relating to the Agreement or the breach hereof, the prevailing party in any final judgment or arbitration award, or the non-dismissing party in the event of a voluntary dismissal by the party instituting the action, shall be entitled to the full amount of all reasonable expenses, including all court costs, arbitration fees and attorneys’ fees paid or incurred.
14.14 Export Administration. Buyer acknowledges that export and re-export of the Products is subject to compliance with export control laws, including, but not limited to, the Export Administration Act, the Arms Export Control Act, the International Traffic in Arms Regulations (ITAR) and other export controls of the United States of America as amended from time to time, the Export Control Act 2002, the Export Control Order 2008, EU Regulation 428/2009 and the Customs and Excise Management Act 1979 and other export controls of the United Kingdom as amended from time to time, and the Strategic Trade Act 2010 and other export controls of Malaysia as amended from time to time (collectively, the “Export Laws”). Buyer covenants that it shall complete, sign and deliver all documents necessary to facilitate the issuance of any export licenses required for any delivery, export and re-export of the Products and related technical data and documentation. In addition, Buyer covenants that it shall comply with all export-related instructions provided to it by Herbert Systems regarding the receipt, handling, use and storage of Products. Buyer shall not export or re-export any products, software, technical data, or documentation associated with the Products (including, but not limited to, processes, services, data, and reports derived from the use of the Products) to any country or person to which export or re-export of such items is prohibited by any of the Export Laws without first obtaining the written permission of Herbert Systems and from the U.S., U.K., and/or Malaysian government (as applicable). Herbert Systems shall have the right to delay shipments or terminate the Agreement, in whole or in part, and without liability, should Herbert Systems not obtain in a timely way all required export licenses and approvals necessary to export the Products. Shipment and delivery timing is also conditioned upon Buyer obtaining, and providing requested evidence to Herbert Systems of, all licenses, permits and other governmental authorizations required to receive, handle, use and store the Products (including all radiation producing parts, components or sources) that are required by the countries or local territories through which the Products (including all radiation producing parts, components or sources) may transit, be stored, operated or otherwise used. Buyer represents and warrants that its export privileges are not, and have not within the last five years been, denied, suspended, or revoked in whole or in part by any government, including any agency or department of the U.S., U.K., or Malaysian government. Buyer further represents and warrants that its name (including any former name) and the name of any current or former director, officer or employee of Buyer, do not appear, and have not within the last five years appeared, on any lists maintained by the U.S., U.K., or Malaysian government identifying parties who are subject to export denial orders or who are otherwise restricted or prohibited by such governments from engaging in export transactions.
14.15 Suspended or Debarred Parties. Buyer represents, warrants and covenants that it, including its consultants and agents and its and their officers, directors and employees, are not presently, and have not within the past five years, been debarred, suspended or proposed for debarment by any agency or department of the United States Government or otherwise declared ineligible by any agency or department of the United States Government for award of contracts or subcontracts. Buyer covenants that it shall provide Herbert Systems immediate written notice if Buyer, including any of its consultants or agents or any of its or their officers, directors or employees hereafter become debarred, suspended or proposed for debarment by any agency or department of the United States Government or otherwise declared ineligible for award of contracts or subcontracts by any agency or department of the United States Government.
14.16 Construction. The Agreement shall be interpreted fairly in accordance with its terms and without any construction in favor of or against either party.
14.17 Counterparts. The Agreement may be executed in counterparts, including by way of facsimile or other electronic signature.