Purchasing Terms & Conditions - FORTNA

General Purchasing Terms and Conditions

1. Entire Agreement.

(A) These terms and conditions (“T&Cs”) apply to any purchase order (“Purchase Order”) submitted by the entity on the first page of the Purchase Order (“FORTNA”) to a supplier (“Seller”), for the purchase of goods, materials and/or services (“Work”) described in the Purchase Order. Seller shall be deemed to have accepted these T&Cs upon written or electronic acknowledgement of the Purchase Order.

Seller’s acceptance is expressly limited to the acceptance of these T&Cs and the Purchase Order, even if Seller purports to condition its acceptance of a Purchase Order on FORTNA’s agreement to additional or different terms.  No agreement or understanding, oral or written, in any way purporting to modify these T&Cs or  the Purchase Order, whether contained in Seller’s form or elsewhere, unless expressly agreed to in writing referencing these T&Cs and the Purchase Order and signed by both parties, shall be valid. Seller is hereby notified of FORTNA’s express objection to any terms included or referenced in Seller’s forms or elsewhere. Neither FORTNA’s subsequent lack of objection to such terms, nor Seller’s delivery of the Work, shall be deemed to constitute acceptance by FORTNA of such terms.

(B) These T&Cs consist of (i) these terms, and (ii) the following documents (collectively, the “Contract Documents”): (a) the Purchase Order, (b) the request for proposal, if any, (c) any signed written supplemental purchase orders or change orders to the Purchase Order; (d) mutually agreed signed written amendments to these T&Cs, and (e) any drawings or specifications electronically delivered or issued by a party to the other in connection with the Work.  The Contract Documents will be construed, wherever possible, as complementary in nature. In the event of a conflict between any of the Contract Documents, such conflict shall be resolved in the following order: (1) any executed amendment to these T&Cs; (2) these T&Cs; (3) any signed written supplemental purchase orders or change order to the Purchase Order, (4) the request for proposal, if any; and (5) drawings and specifications.

(C) The Contract Documents represent the entire and integrated agreement between the parties, and supersede prior negotiations, representations, or agreements, either written or oral. Notwithstanding anything herein to the contrary, if a master agreement for the purchase of goods, materials and/or services is in effect between the Parties, such master agreement shall supersede these T&Cs. If any of the provisions of these T&Cs are held by a court of competent jurisdiction to be unenforceable or invalid, then such provisions will be ineffective to the extent of the court’s ruling. All remaining portions of these T&Cs shall remain in full force and effect.

2. Background Check.

Seller, if and when required by FORTNA, shall conduct and complete, where permitted by applicable law and subject to consents from individuals, background criminal checks on all of its employees and personnel who are (i) directly engaged in the performance of Work under these T&Cs or (ii) physically present, for any length of time, at the Site (defined below). Upon FORTNA’s reasonable request, Seller shall provide evidence of completion of such background criminal checks. FORTNA may, at FORTNA’s election and convenience, remove any of Seller’s employees and personnel from the Site, and Seller shall immediately replace the removed employees and personnel with similarly skilled employees and personnel.

3. Purchase Price and Payment Terms.

The purchase price (“Purchase Price”) for the Work is detailed in the Purchase Order. Unless otherwise agreed to in writing, the Purchase Price includes packing/handling, shipping, freight, insurance, and customs duties and fees, and travel and expenses (if any), and all sales or excise taxes, value-added taxes, withholding taxes, customs, tariffs, duties, or any other similar governmental fees, however designated or whenever imposed or assessed. Unless otherwise specified in the Purchase Order, all amounts are in U.S. dollars.

4. Payment Terms.

(A) Unless otherwise specified in the Purchase Order, Seller shall issue accurate monthly invoices to FORTNA for goods and/or services provided under the Purchase Order. FORTNA shall have no obligation to pay an invoice issued more than 120 days after delivery of Goods or completion of Services.  Unless otherwise agreed to in writing, FORTNA shall pay accurate invoices within sixty (60) days of receipt of the invoice, except for any amounts disputed by FORTNA in good faith. If FORTNA disputes any amounts, FORTNA shall deliver a written statement to Seller listing all disputed items and providing a reasonably detailed description of each disputed item.  The Parties shall seek to resolve all disputes expeditiously and in good faith.  Seller shall continue performing its obligations despite any dispute.  No interest shall be due on late payments.

(B) FORTNA shall be entitled to set off any amount owing to FORTNA against any amount due or owing to Seller with respect to any invoice.

(C) All invoices shall be accompanied with a conditional or final lien waiver, as applicable, executed by Seller and all second-tier sub-contractors.

(D) Seller shall allow FORTNA or its agents, at all reasonable times, access to all pertinent bookkeeping and accounting information, as reasonably requested by FORTNA, to audit all Seller’s payables as invoiced to FORTNA under the Purchase Order.  Seller shall allow FORTNA or its agents to make copies of those portions of its records that FORTNA deems reasonably necessary for its audits.  FORTNA reserves, upon reasonable notice to Seller, during normal business hours, and at FORTNA’s full cost, the right to audit and inspect Supplier’s manufacturing, fabrication, and component supply process related to the Contract Documents.

5. Changes in Work and Notices.

(A) FORTNA reserves the right to make changes at any time within the general scope of a Purchase Order, by issuance of either a supplemental purchase order or a written change order. Seller shall notify FORTNA of any increase or decrease in the cost or schedule, and the parties shall mutually agree to an equitable adjustment in the Purchase Price and/or schedule, provided that no changes can be made without written authorization from FORTNA. No change in the schedule or increase in the Purchase Price for any reason shall be effective unless authorized in a supplemental purchase order or written change order signed by the parties.

(B) All notices related to an issue about these T&Cs (e.g., breach, change, or demand) shall be sent to the principal offices of the respective party or to such other address as either party may designate in writing from time to time; and except as otherwise provided in these T&Cs, all such notices shall be in writing and shall be given by first class mail, postage prepaid, delivered by hand, or overnight delivery service. All notices and communication related to the Work (e.g., requests for information or approvals; status and progress reports; and confirmations) shall be exclusively exchanged between the respective representatives assigned by the parties; and shall be in writing given by first class mail or overnight delivery service, or by email with express receipt acknowledgment request to the recipient. Any Work notice not sent by and to the respective representatives will be deemed not sent or delivered as the case may be.

6. Breach and Force Majeure.

(A) Either party shall be in material breach of these T&Cs if it fails to perform any of its respective obligations, covenants or representations under these T&Cs or a Purchase Order and does not, promptly upon written notice from the other party initiate cure of and uninterruptedly continue to cure such failure.

(B) Neither FORTNA nor Seller shall be liable for delays or defaults in the performance of these T&Cs or a Purchase Order due to causes beyond their respective control, without such party’s fault or negligence, and which by their nature could not have been foreseen by the party or, if it could have been foreseen, was unavoidable, including, but not limited to: Acts of God (fire, flood, earthquake, hurricane, etc.); acts of civil or military authority (riots, wars, government interference, embargoes, strikes, etc.) (a “Force Majeure Event”). Seller shall promptly notify FORTNA in writing of a Force Majeure Event and recommend mitigating actions or work arounds. Seller’s economic hardship or changes in market conditions are not Force Majeure Events. If Seller is unable to cure a material breach, or in the case of in the case of a Force  Majeure Event Seller is unable to execute agreed upon mitigating actions or work arounds and/or declares repeated Force Majeure Events, FORTNA may cancel the Purchase Order and FORTNA may purchase goods or services or obtain performance elsewhere and at FORTNA’s option apply such purchase to reduce the amounts due under the Purchase Order.

7. Acceptance. 

(A) FORTNA has the right to inspect the Work before acceptance. To the extent that the Purchase Order contains acceptance criteria, FORTNA shall deliver to Seller a written report indicating which acceptance criteria items are still outstanding, which Seller shall promptly inspect and correct, repair, or replace. If the Purchase Order does not contain acceptance criteria or Seller fails to correct, repair, or replace the Work as set forth above, FORTNA may reject all or any portion of the goods or services that it determines are defective or otherwise nonconforming. Goods rejected or goods supplied in excess of quantities ordered may be returned to Seller at Seller’s sole expense.  Replacement or reperformance of defective or nonconforming goods or services shall be at Seller’s sole expense.

(B) If, upon rejection or breach of warranty remediable by replacement, reperformance or repair, Seller fails to timely deliver replacement goods, reperform services or repair goods, FORTNA may terminate these T&Cs or the Purchase Order, and at its option, remedy any defect in or nonconforming goods or services itself, or obtain from another supplier at Seller’s sole cost.  Seller shall be liable for any difference between the cost of the substituted goods or services and the Purchase Price, and Seller shall indemnify FORTNA against any losses, claims, damages, and reasonable costs and expenses directly attributable to Seller’s failure to correct, repair, or replace the goods or services.

(C) Payment of all or any portion of the Purchase Price does not constitute acceptance.

8. Warranties.

(A) If the Work is for final end use by FORTNA’s client (“Client”) at the Client’s location (“Site”), both of which may be specified in the Purchase Order, Seller warrants that the Work is suitable for the Site and use by the Client.

(B) Seller warrants and agrees that all goods, services and equipment furnished pursuant to the Purchase Order, are and shall be free and clear of infringement of any third-party rights including intellectual property rights and Seller will, at its own expense, defend or settle any and all claims, actions, or suits charging such infringement and will indemnify and hold FORTNA and Client harmless against all claims, actions, or suits, losses or costs thereof.

(C) To the extent that the Purchase Order is for the purchase of a system or automated equipment and related components (referred to collectively as a “Sub-System”) at the Site, Seller warrants that the services, materials, and equipment furnished hereunder shall give proper performance and continuous service under all operating conditions.

(D) Seller warrants that that all goods, equipment, and services covered by the Purchase Order shall: (i) conform to any specifications, drawings, samples, and descriptions furnished by and to FORTNA; (ii)  be free from defects in materials, workmanship, and design; (iii) be fit for the purposes intended; (iv) be merchantable;  (v) are made from new (not refurbished or reconditioned) materials; (vi) are free and clear of all liens, security interests, or other encumbrances, and (vii) conform with all applicable industry standards and laws. Seller further warrants that any services will be performed in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services.

(E) The warranties for any nonconforming or defective goods, services, materials, and equipment shall be for a period of twelve (12) months after the date of acceptance by FORTNA.

(F) The warranty period for repaired or replaced goods or services shall be the remainder of the original warranty period for the repaired or replaced item or ninety (90) days, whichever is greater.

(G) FORTNA is entitled to a full refund of the Purchase Price paid in case of material repetitive defect(s) of the repaired or replaced item during the warranty period.

(H) Seller’s warranties in these T&Cs run to FORTNA and may be extended or assigned to third parties, including FORTNA’s Client which is a third-party beneficiary.

9. Seller’s Responsibilities.

Seller agrees to be solely and independently responsible for the direction, supervision, and control of, and payment of compensation to, its employees, personnel, subcontractors, and suppliers, and for any other persons or companies Seller engages to assist in the performance of these T&Cs or Purchase Order.

10. Confidentiality. 

The parties hereby ratify and confirm that certain Non-Disclosure Agreement (“NDA”) entered into by them, if any.  If an NDA does not exist, has expired, or is otherwise no longer in full force and effect,  the parties (including their affiliates) agree to (i) hold each other’s and Client’s Confidential Information in strict confidence, using the same care applied to its own confidential information; (ii) to not disclose the Confidential Information to any third party without the prior written authorization of the other party; (iii) not to reverse engineer, modify, improve or make derivative works of the Confidential Information; and (iv) to use each the Confidential Information exclusively for the purpose of performing the Work pursuant to the Contract Documents. Confidential Information means all non-public, proprietary, or confidential information of a party, its affiliates and subsidiaries, of any kind or nature whatsoever, disclosed by either party, or by any of its affiliates, to the other, or any of its affiliates, in oral, visual, written, electronic, or other tangible or intangible form, whether or not marked or designated as “confidential”.  This Section does not apply to information that is: (i) in the public domain through no wrongful act of a receiving party; (b) known to a receiving party, as established by documentary evidence, prior to disclosure; (c) rightfully obtained by a receiving party on a non-confidential basis from a third party; or (d) was or is independently developed by a receiving party, as established by documentary evidence, without using any Confidential Information.  Upon a disclosing party’s request, the receiving party shall promptly return all documents and other materials received from disclosing party, provided that a receiving party may retain copies of such documents and other materials that are stored on the receiving party’s IT backup and disaster recovery systems until the ordinary course deletion of that information.  A disclosing party shall be entitled to injunctive relief for any violation of this Section.  This section shall survive termination of this Agreement until such information is no longer confidential. Seller shall not use FORTNA’s or FORTNA client’s name or trademarks in advertising, publicity or in any other form without FORTNA’s prior written consent.

11. Compliance with Laws.

Seller shall comply with all applicable laws in the performance of these T&Cs and the Purchase Order, including, but not limited to, all applicable employment, tax, safety, export and environmental laws. Seller represents that it is duly licensed, permitted, and authorized by the applicable authority(ies) with jurisdiction over Seller and the Site to perform its obligations under these T&Cs and the Purchase Order. Unless otherwise agreed to by the parties, Seller agrees to obtain and pay for all such permits and licenses required as pertaining to the Work. Seller agrees to provide all necessary notices for inspections, should they be required by applicable codes and ordinances. Seller shall provide all license and permit information to FORTNA upon request.

12. General Indemnification.

Seller shall defend, indemnify and hold harmless FORTNA and FORTNA’s parent company, its subsidiaries, affiliates, successors, or assigns and their respective directors, officers, shareholders and employees against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification under these T&Cs and the Purchase Order, and the cost of pursuing any insurance providers  arising out of or occurring in connection with the goods, materials and/or services purchased from Seller or Seller’s negligence, willful misconduct, or breach of these T&Cs and the Purchase Order.  Seller shall not enter into any settlement without FORTNA’s prior written consent.

13. Insurance.

Seller shall, at its own expense, maintain and carry adequate health; auto; workers’ compensation; unemployment compensation; disability; liability; and other insurance as is required by law or as is the common practice in Seller’s industry, whichever affords greater coverage. Notwithstanding the foregoing, if the Work requires or is for services to be performed at a Site, Seller shall, at its own expense, maintain and carry insurance in full force and effect with financially sound and reputable insurers  (a) workers’ compensation and employer’s liability insurance complying with applicable statutory limits; (b) automobile liability insurance with a combined single limit of USD$2,000,000; (c) commercial general liability insurance with a combined single limit of USD$5,000,000. Seller shall be responsible for full payment of any deductibles under said insurance coverage. Upon request, Seller shall provide FORTNA with certificates of insurance or evidence of coverage. The certificate of insurance shall name FORTNA as an additional insured or loss payee, as applicable.  Seller shall provide FORTNA with 30 days’ advance written notice in the event of a cancellation or material change in any such insurance policy.  Except where prohibited by law, Seller shall require its insurer to waive all rights of subrogation against FORTNA and FORTNA’s insurers.  Seller must ensure that any subcontractors carry insurance as required by FORTNA.

14. Delivery Terms.

(A) Time is of the essence. Shipments must be of buildable mix and made to meet the date(s) specified in the Purchase Order. The goods and/or services shall be delivered no earlier and no later than the date(s) set forth in the Purchase Order. Seller shall promptly notify FORTNA in writing of any circumstance that may cause a delay, but such notice shall not excuse delay.   FORTNA may reject early shipments and/or performance without prejudice to its right to require timely shipment and/or performance.

(B) FORTNA may terminate these T&Cs or a Purchase Order and acquire substitute or replacement goods or services from an alternate source  if Seller fails to perform or delivery is not made by the time(s) specified in the Purchase Order.

(C) FORTNA may cancel the Purchase Order at any time for convenience, in which case it shall be responsible to Seller only for Seller’s goods delivered, services performed, and pre-approved expenses incurred up to the cancellation date.

(D) Seller shall pack all goods for shipment according to FORTNA’s instructions or, if there are no instructions, in a manner sufficient to ensure that the goods are delivered in undamaged condition.  Seller assumes all risk of loss or damage to all goods ordered until the goods are accepted by FORTNA. All risks of fire, theft or damage of any kind to property belonging to FORTNA delivered to Seller for any reason hereunder shall be assumed by Seller, and for as long as it is in Seller’s possession, Seller shall keep such property fully insured against all such risks, at Seller’s expenses, for the benefit of FORTNA.

(E) FORTNA shall have the right to delay payment to Seller, without loss of discount, if any, and without breach of any other payment term herein, for the same number of days as delivery by Seller fails to conform to the terms of the Purchase Order. This clause shall not constitute any waiver of FORTNA’s rights or remedies against the Seller for late delivery.

15. Safety.

(A) To the extent that any services are performed on a Site, Seller shall cooperate with the Client, FORTNA and all others whose work may interface with the performance of the services.

(B) Seller assumes full responsibility for performing the services in a safe and proper manner.  Seller shall implement appropriate safety measures in connection with its services, including establishing safety rules, posting appropriate warnings and notices, erecting safety barriers, and establishing proper notice procedures to protect persons and property at the Site from injury, loss, or damage.

(C) Seller acknowledges receipt of the Field Safety Manual (“FSM”) and agrees to comply with the FSM.  Seller shall maintain all health and safety documentation (original or duplicates) at the Site verifying compliance with all provisions of the FSM. All such documentation shall be made available upon request by the FORTNA representative.

(D) Seller shall not use FORTNA’s or Client’s equipment without FORTNA’s prior written approval.  If Seller uses any equipment owned, leased, or under the control of FORTNA, Seller accepts such equipment as furnished and shall indemnify and be liable to FORTNA for all injury, loss, or damage which may arise from its use.

(E) Seller shall, at its own cost and expense, keep its area of the Site safe, clean, and free from debris resulting from its services.  Prior to discontinuing services in any area, Seller shall (i) clean the area and (ii) remove from and legally dispose of all its temporary structures, debris, tools, machinery, waste, and surplus materials.  Seller shall follow all of FORTNA’s directions regarding clean-up.  If Seller fails to perform its obligations under this subsection within 2 business days of FORTNA’s request and to FORTNA’s satisfaction, FORTNA shall have the right to complete the clean-up and removal and charge such costs to Seller.

(F) Seller shall implement immediate corrective action to eliminate unsafe practices and conditions as they are observed or reported. In cases where immediate or “On the Spot” actions are not taken, FORTNA reserves the option to abate the condition at the expense of the Seller.

(G) Seller shall notify FORTNA within two (2) hours of any incident involving injury (or near miss of injury/damage) to any person or property involving Seller personnel. In addition, Seller shall investigate and document all such incidents. Findings shall be documented in an incident report and submitted to FORTNA within 24 hours of the incident. All such incident reports will contain, but not be limited to: (i) date of event, (ii)  chain of events leading to incident, (iii) impacted or injured parties (i.e., name, craft, position), (iv) Impacted property and estimated damage costs, (v) primary and contributing causes of incident, (vi) immediate corrective measures taken, (vii)  lessons learned for wider application by Seller or FORTNA, (viii) other items as requested by the FORTNA, (ix) witness statement.

(H) FORTNA reserves the right to take appropriate actions to remedy any Seller non-compliance at the Seller’s expense, up to and including placing an FORTNA site safety representative onsite.

16. Intellectual Property.

FORTNA or Client, as applicable, owns all right, title and interest to any and all deliverables, ideas, inventions, works of authorship, know-how or any other intellectual property created by or on behalf of Seller as a result of its performance under the Purchase Order or derived from or based on the use of information supplied by FORTNA or Client (collectively “Work Product”).  All Work Product protectable by copyright will be considered work(s) made for hire as the phrase “work(s) made for hire” is defined in the U.S. Copyright Act (17 U.S.C. § 101)) or Seller will give FORTNA or Client “first owner” status related to the work(s) under local copyright law where the work(s) was created.

To the extent any Work Product is not considered work made for hire, Seller hereby irrevocably assigns to FORTNA or Client all right, title, and interest to and in such Work Product and Seller shall enter into and execute any documents that may be required to transfer or assign ownership in and to any such Work Product to FORTNA or Client.

17. Limitation on Liability.

To the extent allowed by applicable law, FORTNA shall in no event be liable to Seller or any third party for any incidental, indirect, special or consequential damages arising out of, or in connection with these terms whether or not FORTNA was advised of the possibility of such damages in advance.

18. Relationship of the Parties.

(A) The relationship between the parties is that of independent contractors. Nothing in these T&Cs creates any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party has authority to contract for or bind the other party in any manner.

(B) Seller shall comply with all applicable federal, state and local laws, regulations, codes, rules and ordinances with respect to the hiring, employment, compensation (including payment of wages, benefits and all taxes with respect thereto), health and safety of employees.

(C) Seller agrees to be solely and independently responsible for the direction, supervision, and control of its employees, subcontractors, and suppliers, and for any other persons or companies Seller engages to assist in the performance of these T&Cs or Purchase Order.

19. Governing Law; Venue; Dispute Resolution.

(A) These T&Cs and all matters arising out of and in connection with these T&Cs and the Purchase Order shall be governed by and construed in accordance with the laws of (i) the state of Georgia if the goods and/or  services are to be supplied in the United States or Latin America, (ii) of Ontario, Canada if the goods and/or services are to be supplied in Canada; (iii) the Netherlands if the goods and/or  services are to be supplied elsewhere, in each case without giving effect to its conflict of law principles.  The United Nations Convention on Contracts for the International Sale of Goods does not apply to the Agreement.

(B) The parties agree to submit any dispute arising under or relating to this Agreement which cannot be resolved amicably to binding arbitration as follows: (i) If the goods and/or  services are to be supplied in the United States or Latin America, arbitration shall be conducted in Atlanta, Georgia, under the then-applicable Commercial Rules of the American Arbitration Association. (ii)  If the goods and/or  services are to be supplied in Canada, arbitration shall be conducted in the Province of Ontario, by a person agreed upon by the parties to the dispute, or failing agreement, by a person nominated by any judge of the Superior Court of Ontario at Toronto in accordance with and subject to the provisions of the Arbitration Act, 1991 (Ontario) as amended from time to time.  Except as otherwise determined by an arbitrator, each party to such arbitration shall pay an equal portion of all costs incurred in connection with such arbitration. Arbitration shall be conducted in English only.  (iii)  If the goods and/or services are to be supplied anywhere else, arbitration shall be conducted in Amsterdam, the Netherlands in accordance with the rules of conciliation of the Netherlands, and arbitration of the International Chamber of Commerce by a sole arbitrator appointed in accordance with said rules. The merits of the dispute shall be decided in accordance with the rules of governing law of The Netherlands (decisions ex aequo et bono are excluded).  Arbitration shall be conducted in English only.

(C) The parties expressly consent to arbitration.  The award rendered by the arbitrator(s) shall be final, non-reviewable, non-appealable, and binding on the parties and may be entered and enforced in any court having jurisdiction. Each party to such arbitration is responsible for its own attorneys fees, and shall pay an equal portion of the costs of the arbitration.

(D) Nothing in this Section shall prevent either party from seeking temporary injunctive or other equitable relief from a court of competent jurisdiction for any breach of Section 10, provided however, that monetary damages may be awarded only in accordance with this Section.

20. Non-Solicitation.

(A) Each Party agrees that for a period of 1 year after the completion of the Work, without the other Party’s prior written consent, it shall not hire or solicit to hire, for itself or any third party, employees of the other Party or its affiliates that have been directly involved in the delivery of the Work or otherwise have access to a Party’s competitively sensitive Confidential Information regarding the Work (e.g. pricing, customer contacts, designs) with whom the soliciting Party has had more than incidental contact in connection with the Work contemplated under these T&Cs, unless pursuant to a general solicitation through media or search firm that, in either case, is not specifically directed to either Party’s employees.  In the event of a breach of its obligations hereunder, a breaching Party agrees to pay the non-breaching Party an amount equal to 100% of such employee’s gross annual compensation (including bonus) immediately prior to being hired by the breaching Party.  Each Party acknowledges and agrees that this amount constitutes fair and reasonable liquidated damages resulting from the breach of its obligations and is not a penalty.

(B) Seller further agrees that during term of these T&Cs and for 1 year thereafter, unless otherwise provided for in the Purchase Order or with FORTNA’s prior written consent, Seller shall not solicit, knowingly encourage or induce, or attempt to solicit, knowingly encourage or induce, any Client to enter into an agreement directly with the Seller respecting maintenance and/or support of the Work or the sale, or supply of goods or services which are incidental, related and/or supplementary to the Work.

21. Assignment.

No right, obligation or interest in these T&Cs or a Purchase Order shall be assigned by Seller, whether by action of law or otherwise, without FORTNA’s prior written consent, which shall not be unreasonably withheld. FORTNA may assign these T&Cs and its rights hereunder to Client without Seller’s consent.

22. No Waiver.

No waiver by FORTNA of any of the provisions of these T&Cs or a Purchase Order is effective unless explicitly stated in writing and signed by FORTNA.  No failure to exercise, or delay in exercising, any right, remedy, power, or privilege arising from the these T&Cs or a Purchase Order operates, or may be construed, as a waiver.  No single or partial exercise of any right, remedy, power, or privilege under these T&Cs or a Purchase Order precludes any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.

23. Survival.

Any provision of these T&Cs which by their nature extend beyond the expiration, termination, or cancellation of these T&Cs or a Purchase Order shall remain in full force and effect until fulfilled and/or performed.

24. Business Ethics.

FORTNA is committed to the highest standards of business ethics.  Each party warrants that it has neither accepted nor provided gifts or gratuities of any kind from or to any employee, representative, or agent of the other in connection with these T&Cs or a Purchase Order; and further warrants that it shall uphold the highest standards of business ethics and ensure compliance with all applicable laws, including without limitation, the United States Foreign Corrupt Practices Act and the UK Bribery Act of 2010.  Seller agrees to certify at least annually it is in compliance with FORTNA Supplier’s Code of Conduct (https://www.fortna.com/supplier-code-of-conduct/) and applicable anti-corruption laws and regulations by executing a form supplied by FORTNA for this purpose. Violation of this Section by Seller shall be a material breach and FORTNA shall be entitled to terminate these T&Cs and the Purchase Order immediately.