Conditions of Purchase
1. Definitions
1.1. "Contractor" refers to Kinetic Systems, Inc., Kinetics Equipment Solutions Group, Kinetics Process Systems Asia Pte. Ltd. (Singapore), Kinetic Systems Malaysia Sdn. Bhd. (Malaysia) and their subsidiaries (the applicable entity is referred to herein as “Kinetics”) specializing in construction Services and Equipment sales. The specific entity contracting with the Customer shall be delineated on the face of the specific Purchase Order. The contractual obligations and liabilities delineated herein pertain solely to the respective entities expressly stated on each Purchase Order. Any obligations incurred by the contracting Kinetics’ business stated on the Purchase Orders are exclusive to its operations and not shared jointly with the other Kinetics affiliates and subsidiaries.
1.2. "Customer" refers to the entity or individual engaging the Contractor for the purchase of Equipment and/or related construction Services.
1.3. "Equipment" encompasses to the extent applicable tangible goods, machinery, tools, materials, or products, slurry systems and associated components supplied by the Contractor to the Customer as expressly provided for in Contractor’s proposal and specifications attached hereto and incorporated herein.
1.4. "Services" include to the extent applicable design assist work, construction services, supervision, labor, Equipment installation, maintenance, repair, consulting, and facility management services as specified in Contractor’s proposal attached hereto and incorporated herein.
1.5. "Intellectual Property" refers to any patents, copyrights, trademarks, trade secrets, or other intellectual property rights associated with the Equipment and Services.
1.6 “Software” as set forth in Appendix 1 Software License Addendum as specified in Contractor’s proposal attached hereto and incorporated herein.
2. Agreement
2.1. These terms and conditions govern the supply of construction Equipment and Services. Together, these offerings, whether provided individually or as part of a bundled package, are collectively referred to as Contractor’s Equipment and/or Services. Through the integration of these terms and conditions, any mutually accepted addendum, the Contractor's proposal, and any exceptions to scope made by Contractor, purchase order, or acknowledgment provided by the Contractor (the “Agreement”), In the case of any uncertainty or conflict among these documents, precedence will be determined in the order specified in the preceding sentence. The Customer’s acceptance of this Agreement is a prerequisite for the approval of the Contractor's proposal, offer, or acknowledgment.
3. Equipment Sales
3.1. The Contractor agrees to sell, and the Customer agrees to purchase, the Equipment in accordance with the specifications as proposed in the Contractor’s Proposal.
3.2. Delivery, Title, and Risk of Loss of Equipment
(a) Equipment delivery will be made Ex Works Contractor’s plant for all Purchase Orders. Tittle, as well as the risk of loss or damage to the Equipment, shall pass to the Customer upon shipment via designated common carrier, Ex Works Contractor’s plant. The Customer assumes responsibility for all transportation, insurance, and related expenses, including taxes, duties, or documentation fees. Partial shipments may be made by the Contractor, and any shipping, delivery, and installation dates are considered estimated dates only. Contractor shall not be held liable for any loss or expense incurred by the Customer or the Customer’s end user if Contractor fails to meet its delivery schedule. 3.3 Transportation and Storage of Equipment
3.3 Transportation and Storage of Equipment
(a) Upon completion of the Equipment, Contractor shall promptly notify the Customer, and the Customer shall provide shipping instructions to Contractor in a timely manner. The method of transportation and shipment routing shall be determined by the Customer, and the Equipment shall be shipped with freight prepaid using standard transportation means. Should the Customer fail to furnish shipping instructions promptly, Contractor reserves the right to ship the Equipment via normal transportation to either the Customer's designated location or a storage facility chosen by Contractor. Any additional charges for special or expedited transportation shall be the responsibility of the Customer and shall be promptly paid or reimbursed by the Customer.
(b) If the Equipment is placed into storage, the delivery shall occur, and the risk of loss shall transfer to the Customer when the Equipment is placed on the carrier for shipment to the storage location. If the Equipment are intended to be stored at the facility where manufactured, the delivery shall occur, and the risk of loss shall transfer to the Customer when the Equipment are placed in the storage location.
(c) All storage expenses, including but not limited to costs for preparation, placement into storage, handling, freight, storage, inspection, preservation, maintenance, taxes, and insurance, shall be borne by the Customer and shall be promptly paid to Contractor upon receipt of invoices. Once conditions permit and all amounts due are paid to Contractor, the Customer must, at its expense, make arrangements for the removal of the Equipment from storage. While in storage, the Customer assumes the risk of loss, damage, or destruction to the Equipment.
4. Services
4.1. The Contractor undertakes to provide the Services as specified in the Contractor’s proposal.
(a) The risk of loss of or damage to the Customer’s property, including Customer equipment, materials, components, and items for which Contractor is to provide Services under the Agreement, shall at all times remain with the Customer during the performance of the Services. It is the Customer’s responsibility to maintain appropriate property damage insurance applicable to occurrences at the Customer’s site. The Customer shall obtain a waiver from their insurers of all subrogation rights against Contractor.
4.2 Any performance or completion dates mentioned herein are provided as estimated dates only. Contractor shall not be liable for any loss or expense incurred by the Customer in the event Contractor fails to meet the proposed performance date.
5. Payment and Pricing
5.1. Payment: All payments for Contractor's Equipment and Services shall be made within thirty (30) days from the date of the invoice and must be in United States Dollars, unless otherwise specified in the Contractor's proposal.
5.2 Credit Approval: All orders are subject to credit approval by the Contractor. In case of uncertainty regarding the Customer’s financial standing, the Contractor may take actions such as withholding production and/or shipment of Equipment, demanding cash or advance payments, or requesting other acceptable financial security before proceeding with the provision of Equipment and Services.
5.3 Taxes: The Contractor's rates do not encompass charges for taxes, import tariffs on goods imported into the United States, excises, fees, duties, or other government assessments related to the Contractor's work.
5.4 Late Payments: In the event of delayed payments, interest will accrue at an annual percentage rate of twelve percent (12%), or the maximum rate permitted by law, whichever is lower.
5.5 Disputed Invoice If the Customer disputes any portion of an invoice, they must provide written notice to the Contractor of the disputed amount and the basis for the dispute within twenty (20) days of receiving the invoice. Failure to timely notify Contractor of any dispute constitutes a waiver of the Customer’s claim. If the Customer disputes only a portion of the invoice, they must pay the undisputed portion pursuant to this article.
5.6 Escalation: In the event of an unforeseen and significant increase in the cost of raw materials required for the provision of Equipment and Services, the Contractor reserves the right to adjust the purchase price accordingly, subject to the impacted transaction.
6. Warranty
6.1 Warranty for Equipment
(a) Limited Warranty for Equipment. The Contractor warrants that at the time of shipment the Equipment provided as part of this Agreement shall be free from defects in materials and workmanship for a period of one (1) year from the date of delivery.
(b) Spare Parts / Repairs. Ninety (90) days from delivery unless superseded as mutually agreed on a per project basis.
(c) Consumable Products. Consumables products are not covered under any warranty provided by Contractor. SEMI defines a "consumable part" as any equipment part worn out during process operation within a twelve-month period requiring replacement after system acceptance. Examples include filters, diaphragm or bellow pumps, sensors that touch chemical or slurry, including pH probes, conductivity probes, and pressure transducers.
(d) Damage to, or from, the Equipment resulting from the use of non-Contractor parts may be remedied at Customer’s expense.
(e) The Customer shall involve Contractor’s personnel to ensure use of proper parts on all Contractor equipment under warranty.
(f) No part(s) can be returned unless Contractor provides, at its sole discretion, written Return Material Authorization (RMA). Customer must complete the RMA & Decontamination form in its entirety and submit it to Contractor, at which time an RMA number will be issued. In all cases, warranty claims must be submitted within the warranty period, and parts must be shipped to Contractor within thirty (30) days.
(g) The Contractor reserves the right to use, as replacement parts, fully certified parts that have been re-manufactured, and placed under full product warranty.
(h) Warranty for Software to the extent applicable to Contractor’s scope of work shall be addressed in Appendix 1 Software License Addendum.
6.2. Warranty for Services
(a) Limited Warranty for Services. Contractor warrants that all Services provided under this Agreement shall be performed in a professional and workmanlike manner, consistent with applicable industry standards.
(b) Contractor’s Warranty for Services shall in no event exceed ninety (90) days from the date of its original performance.
6.3. Sole and Exclusive Remedies.
(a) Upon prompt written notice by the Customer, the Contractor shall remedy any non-conformity found during the original warranty periods by repairing or replacing the Equipment or reperforming the Services at the Contractor's sole discretion. The warranty for repaired, replaced or reperformed Equipment and Services shall in no event exceed twelve (12) months from the expiration of the original delivery and or service date.
6.4 Third Party Warranty Work
(a) Work performed by Customer or a third party to Contractor’s Equipment and Services shall void Contractor’s Warranty obligations for the portion of Equipment and/or Services repaired or reperformed by an outside third party or by Customer without Contractor’s prior written consent.
6.5. Exclusions
Contractor does not warrant Equipment and Services from the following:
(a) normal wear and tear
(b) vandalism
(c) cyber threats, hacking, or similar malicious activity. If the Equipment are networked, connected to the internet, or otherwise linked to computers or other devices, the Customer and/or end user must implement appropriate security measures to prevent unauthorized access.
(d) Consumables
(e) use and supply of non-Contractor parts, or parts in non-recommended configurations
(f) expenses incurred due to problems caused by improper loop design or installation
(g) improper use, alterations and the operating of Equipment not in compliance with Contractor’s service personnel’s recommendations,
(h) operating Equipment not in accordance with Contractor’s Operation and Maintenance Manuals
6.6 Disclaimer of Implied Warranties and Conditions
EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN THIS ARTICLE, CONTRACTOR DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, WHETHER IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT.
7. Limitation of Liability
7.1. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, CONTRACTOR SHALL NOT BE LIABLE, WHETHER BASED IN CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR: LOSS OF USE, REVENUE, SAVINGS, PROFIT, LOSS OF PRODUCTION, COSTS OF CAPITAL, COSTS OF REPLACEMENT OR SUBSTITUTE USE OR PERFORMANCE, LOSS OF INFORMATION AND DATA, LOSS OF POWER, OR FOR ANY TYPE OF INDIRECT, SPECIAL, LIQUIDATED, PUNITIVE, EXEMPLARY, COLLATERAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY OTHER LOSS OR COST OF A SIMILAR TYPE.
7.2 THE CONTRACTOR’S MAXIMUM LIABILITY UNDER THIS AGREEMENT UNDER ANY THEORY OF RECOVERY SHALL NOT EXCEED THE ACTUAL PURCHASE PRICE RECEIVED BY THE CONTRACTOR FOR THE EQUIPMENT AND/OR SERVICES GIVING RISE TO CLAIM.
7.3 THE PARTIES AGREE THESE LIMITATIONS ARE EFFECTIVE AND SHALL PREVAIL OVER ANY CONFLICT OF PROVISION FOUND WITHIN THIS AGREEMENT.
8. Contractor's Remedies
8.1. In the event of non-payment or any material breach of this Agreement by the Customer, the Contractor shall have the following remedies:
(a) Suspend Services: The Contractor may suspend the provision of Services until the Customer remedies the breach, and any additional costs incurred due to the suspension shall be borne by the Customer.
(b) Retaining of Ownership: If the Customer fails to make full payment for Equipment, the Contractor reserves the right to retain ownership of the Equipment (including but not limited to taking possession of the Equipment and associated materials delivered or incorporated on the associated project site) until all outstanding payments are received.
(c) Legal Action: The Contractor may pursue legal action to recover outstanding payments, damages, or losses resulting from the breach.
(d) Termination: Contractor may terminate for breach pursuant to Article 11.
9. Hazardous Materials and Asbestos
9.1. The Customer acknowledges that the presence of hazardous materials, including asbestos, may be encountered during construction, installation, or maintenance activities. The Customer agrees to:
(a) Promptly notify the Contractor of any known or suspected hazardous materials or asbestos on the project site.
(b) Assume full responsibility for complying with all applicable laws, regulations, and safety protocols related to the identification, handling, removal, and disposal of hazardous materials and asbestos. Confidential and Proprietary Page | 4 Modified February 8, 2024
(c) Indemnify and hold the Contractor harmless from any claims, liabilities, losses, damages, costs, and expenses, including reasonable attorney's fees, arising from or related to the presence of hazardous materials or asbestos, except to the extent such claims result from the Contractor's negligence or willful misconduct.
(d) Contractor assumes no liability for subsurface conditions, the discovery of artifact or preexisting hazardous conditions found on site.
10. Intellectual Property License and Infringement Obligations
10.1. Contractor’s Intellectual Property and unique works made on behalf of Contractor shall remain exclusively the property of the Contractor. To the extent paid in full, the Contractor grants the Customer a non-exclusive, non-transferable limited license to use the Intellectual Property associated with the Equipment and Services solely for the purpose of utilizing the Equipment and Services as provided under this Agreement. The Customer shall not reproduce, distribute, modify, or create derivative works based on the Contractor's Intellectual Property without the Contractor's prior written consent.
10.2 License rights to Contractor’s Software to the extent applicable shall be addressed in Appendix 1 Software License Addendum.
10.3. The Contractor agrees to indemnify and defend, Customer against any third-party claims of any actual or alleged infringement arising from the Equipment and/or Services provided under this Agreement. .Contractor shall , at its discretion the option to defend or settle any lawsuit or proceeding initiated against the Customer alleging that any processes performed by Contractor in connection with the Contractor's Equipment and Services infringe upon any third party patents filed under the Patent Cooperation Treaty The Customer shall promptly notify Contractor in writing of any such lawsuit or proceeding and shall provide Contractor with the necessary authority, information, and assistance to defend the claims.
10.4 Contractor shall have exclusive authority to defend and settle such claims and shall bear the damages and costs awarded against Contractor in any defended lawsuit or proceeding. The Customer shall not make any admissions prejudicial to Contractor and shall not enter into any settlement without Contractor's consent.
10.5 If any process performed by Contractor is held to constitute infringement or its use is enjoined due to such infringement, Contractor shall, at its option and expense, either: (i) secure the right for the Customer to continue using said process; (ii) replace it with a substantially equivalent non-infringing process; or (iii) modify the process to ensure its non-infringement.
10.6 Contractor shall not be obligated to fulfill the obligations outlined in this Article if the alleged infringement arises from (i) The negligent or willful misconduct of the Customer or its agents (ii) Any design, specifications, or instructions provided by the Customer or any third party not under the control or supervision of Contractor.; (iii) modifications made after delivery Equipment and/ or performance of Services by the Customer or its agents; or (iv) The combination or integration of Contractor's work, materials, or equipment with other products or systems not provided or approved by Contractor.
10.7 THE PROVISIONS IN THIS ARTICLE REPRESENT THE EXCLUSIVE STATEMENT OF T CONTRACTOR’S DUTIES AND THE CUSTOMER'S REMEDIES WITH RESPECT TO PATENTS, TRADE SECRETS, AND COPYRIGHTS AND ANY DIRECT OR CONTRIBUTORY INFRINGEMENT THEREOF.
11. Termination Rights
11.1. Termination for Default Either party may terminate this Agreement under the following circumstances:
(a) Breach: Should the other party materially violate any material provision of this Agreement and neglect to commence cure of said breach within thirty (30) days after being duly notified in writing of the breach, the non-breaching party shall be entitled toto terminate this Agreement. Customer shall be liable for any work performed prior to receipt of written notice.
(b) Insolvency: If either party becomes insolvent, files for bankruptcy, or undergoes liquidation or receivership, the other party may terminate this Agreement immediately.
11.2 Termination for Convenience Confidential and Proprietary Page | 5 Modified February 8, 2024 Either party shall have the right to cancel this Agreement at any time by providing written notice of thirty (30) days. In the event of termination or cancellation, unless a defined termination or cancellation schedule is specified Contractor’s proposal or purchase order issued under this Agreement, the Customer shall be liable for cancellation charges, which may include, but are not limited to: completed work, partially completed work, subcontractor termination fees, demobilization costs, non-refundable payments and loss of profit.
11.3 All orders for custom products are non-cancelable once design submittals have been approved by the Customer. Any costs incurred prior to design submittal approval shall be assessed one hundred (100%) cost incurred, due upon cancellation. Customer acknowledges and agrees that these charges are necessary and appropriate to compensate Contractor for its expenses incurred prior to Customer’s cancellation of an order, in whole or in part. Customer agrees to pay all invoices for cancellation charges applied pursuant to Article 11.2 herein within thirty (30) days.
12. Change
12.1 No changes will be made to the scope of work provided by Contractor without Contractor’s written agreement. If any changes to laws or regulations affect the Contractor’s obligations or performance, to the extent impacted, the Contractor shall be entitled to a change order for an equitable adjustment in price and time of performance.
13. Customer Obligations
13.1 The Customer shall cooperate fully with the Contractor to facilitate the provision of Services and Equipment, including but not limited to granting free and clear access to necessary facilities, Equipment and work area, timely response to document approvals, including but not limited to timesheet submittals and specification revisions as well as provision of essential information in order for Contractor to reasonably perform its duty under this Agreement. Contractor’s performance under this Agreement is contingent upon Customer’s timely response. Customer’s failure to provide the foregoing shall entitle Contractor to a change order for an equitable adjustment in price and time of performance.
14. Indemnification
14.1 Obligation to Indemnify and Defend
(a) Indemnitors' Commitment: Both the Contractor and the Customer, collectively referred to as the "Indemnitors," agree to indemnify, hold harmless, and defend each other, referred to herein as the "Indemnitees," from any and all third-party claims alleging bodily injury, death, or damage to tangible property. This obligation shall apply solely to the extent that such claims result from the negligent acts or omissions of the Indemnitor. In cases where injury or damage arises from the joint or contributory negligence of both parties, any loss and associated expenses shall be apportioned between them in proportion to their respective degrees of negligence. It is expressly acknowledged that the Customer’s property or the end-user’s site where Customer’s Equipment is installed and/or Services are performed shall not be considered third-party property for the purposes of this indemnity provision.
(b) Notice Requirement: The Indemnitee must promptly provide written notice to the Indemnitor of any third-party claims covered by this Article. Such notice shall include all relevant details concerning the claim, and it shall be given as soon as reasonably practicable after the Indemnitee becomes aware of the claim.
(c) Indemnitor's Right to Defense: The Indemnitor shall have the exclusive right to select and retain legal counsel, and to assume the responsibility for conducting the legal defense and/or settlement negotiations on behalf of the Indemnitee. The Indemnitee shall cooperate fully with the Indemnitor's chosen legal counsel and provide all necessary information and assistance as may be reasonably required for the defense of the claim.
(d) No Unauthorized Settlement: The Indemnitee shall not make any admissions or take any actions that may be prejudicial to the interests of the Indemnitor in connection with the defense of the claim. Furthermore, the Indemnitee shall not enter into any settlement related to the claim without obtaining the express prior written permission of the Indemnitor, which shall not be unreasonably withheld or delayed.
15. Confidentiality
15.1 Following the term of this Agreement, both parties shall treat all information received as confidential and proprietary. This includes but is not limited to each party’s intellectual property, business information, quotations, processes, know-how, technical data, software code, plans, and projections.
15.2 Exceptions to Confidentiality: The parties are not required to treat as confidential information that (i) becomes public knowledge without the receiving party's fault, (ii) is disclosed without an obligation of confidentiality by a third party with the right to do so, (iii) was known to the receiving party before this Agreement, (iv) was independently developed by the receiving party without using the discloser's confidential information, or (v) is required to be disclosed by law (with written notice to the originating party).
16. Compliance of Laws
16.1 International and Domestic Compliance
(a) Both parties agree to comply with all applicable international, federal, state, and local laws, regulations, and ordinances that pertain to the performance of the construction Services and the provision and use of Equipment and materials under this Agreement
(b) For transactions using Federal funding, on Federal property or military installations, the Customer shall provide Contractor with a copy of all relevant federal requirements, guidelines, regulations, and compliance obligations prior to issuing a purchase order under this Agreement.
(c) In the event that any part of this Agreement involves international transactions or the performance of Services in a foreign jurisdiction, the parties shall adhere to all relevant international laws, treaties, and conventions. Additionally, parties shall take all necessary steps to ensure compliance with export control laws and regulations applicable to the materials and technology involved in the construction project.
16.2. Should either party become aware of any changes in applicable laws or regulations that may impact the performance of this Agreement or the parties' obligations hereunder, they shall promptly notify the other party in writing of such changes.
16.3 Both parties shall comply with all applicable export control laws and regulations, including, but not limited to, those of the United States, the European Union, and any other relevant jurisdictions, in connection with the performance of this Agreement.
(a) Export Violations. In the event of any suspected or actual violation of export control laws or regulations related to this Agreement, the parties shall immediately notify each other in writing and cooperate fully to address and rectify such violations.
(b) In the event that either party determines, in its sole discretion, that the other party is unable or unwilling to comply with applicable export control laws and regulations in a manner that allows the Agreement to proceed lawfully, such party may terminate this Agreement upon written notice to the non-compliant party.
(c) Both parties shall cooperate in good faith to assess the impact of any regulatory changes and to make any necessary adjustments to this Agreement in a mutually acceptable manner to ensure continued compliance with the law.
17. Dispute Resolution
17.1. Any dispute, controversy, or claim arising out of or relating to this Agreement, including its formation, interpretation, performance, breach, or termination, shall be resolved through the following dispute resolution process:
(a) Negotiation: The parties shall attempt in good faith to resolve the dispute through negotiations between their respective representatives.
(b) Mediation: If negotiations do not lead to a resolution within thirty (30) days, the parties agree to engage in mediation with a mutually agreed-upon mediator.
(c) Arbitration: If mediation does not result in a resolution within thirty (30) days, any unresolved disputes shall be submitted to binding arbitration in accordance with the rules and procedures of American Arbitration Association under its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction.
(d) International Transactions: For disputes arising under this Agreement from purchase orders outside of the United States, the parties will first attempt to resolve the dispute through mediation using the Rules of International Chamber of Commerce (“ICC”). If mediation doesn't resolve the dispute, the matter will be settled through arbitration under the ICC. The arbitrator's decision shall be final and binding upon the parties.
(e) Prevailing Party: In the event of any dispute or legal action arising under this Agreement, the prevailing party, defined as the party that successfully enforces the terms of this Agreement or against whom claims in violation of this Agreement are not upheld, shall be entitled to recover from the non-prevailing party reasonable attorney fees, and related expenses incurred in connection with the resolution of the dispute.
18. Governing Law
18.1. This Agreement is governed by the laws of the State of California, excluding the United Nations Convention on Contracts for the International Sale of Goods. Both parties waive their right to a jury trial in any action related to this Agreement and agree to litigate any claims or disputes in a federal or state court where either party maintains its principal place of business.
18.2 For transactions outside the United States for the provision of Contractor’s Equipment and/or Services, the laws of the country where the managing Contractor’s business is located shall govern.
19. Assignment
19.1 Neither party may assign all or part of this Agreement without the other party's written consent, except for parent companies, wholly owned subsidiaries, or affiliates. The Contractor may grant a security interest in this Agreement without Customer’s consent.
20. Force Majeure
20.1 In the event of any unforeseeable circumstance or event beyond the reasonable control of either party, including but not limited to acts of God, war, global supply shortages, terrorism, fire, flood, earthquake, governmental actions, labor disputes, strikes, epidemics, or pandemics, that prevents or significantly hinders the performance under this Agreement (“Force Majeure Event”), the affected party shall not be deemed in breach of this Agreement. The party affected by a Force Majeure Event shall promptly notify the other party in writing, providing detailed information about the Force Majeure Event, its expected duration, and its impact on their ability to fulfill this Agreement. The contractor shall be entitled to an adjustment in the schedule equivalent to the Force Majeure Event and its consequences. If a Force Majeure Event continues for a period exceeding ninety (90) consecutive days, either party shall have the right to terminate this purchase order by providing written notice to the other party, without incurring any liability for such termination. If the Force Majeure Event results in additional costs for the fulfillment of this Agreement, any additional costs shall be allocated as agreed upon by the parties. All other terms and conditions of this Agreement shall remain in effect and be binding upon the parties, except to the extent modified by this Article.
21. Survival
21.1 Certain provisions, including those relating to intellectual property, limitation of liability, indemnity, confidentiality, export/import compliance, survive the termination, expiration, or cancellation of this Agreement.
22. Severability
22.1 In the event that any provision within this Agreement, or its application is determined to be invalid, such invalidity shall not have an impact on any other provision or application of this Agreement that can continue to be enforced without the invalid provision or application. In this regard, the provisions of this Agreement are considered separately enforceable.
23. Entire Agreement
23.1. These terms and conditions constitute the entire agreement between the parties, superseding all prior agreements, whether oral or written.
