Terms

Any rebate under the Agreement is predicated on and subject to the following terms and conditions:

  • 1. Compliance with Laws. Participant will comply with all applicable laws and regulations in connection with its business. Without limiting the foregoing, Participant (including its shareholders, partners, legal or beneficial owners, directors, officers, managers, employees, agents, and any other third party acting on its behalf) will:

    • a) not authorize, make, direct, or approve any direct or indirect offer, payment, or promise of anything of value (including material allowances and gifts) to a third party, including customers, customer representatives, and government officials (including public official or servant, no matter their rank or function), to obtain or retain business or to otherwise secure an undue advantage, and will not accept nor agree to accept any payments or allowances as may constitute an illegal or corrupt practice under the applicable laws, including the U.S. Foreign Corrupt Practices Act, the U.K. Bribery Act of 2011, equivalent laws of the European Union and Japan, and any other jurisdiction in which any aspect of this Agreement will take place ("Anti-Corruption Obligation");

    • b) comply with all trade compliance laws and regulations (e.g. embargos, sanctions, trade restrictions) under all applicable laws, including those of the European Union, United Kingdom, United States of America, Japan and any other jurisdictions which may apply to the business relationship of the Parties ("Trade Compliance Obligation");

    • c) comply with all applicable competition and antitrust laws and regulations ("Antitrust Obligation"); and

    • d) at all times maintain strict compliance with the Anti-Corruption, Trade Compliance and Antitrust Obligations, monitor its employees and agents to ensure their compliance with these obligations, and, in all its dealings, make clear that it is acting in accordance with the Anti-Corruption, Trade Compliance, and Antitrust Obligations.

    • e) comply with all applicable laws and regulations regarding environmental health, safety or welfare including without limitation the standards required by the Occupational Safety and Health Act of 1970 and the Safe Drinking Water and Toxic Enforcement Act of 1986, otherwise known as Proposition 65.

      • i. Acknowledgement. Participant acknowledges that it is neither acting nor will act directly or indirectly on behalf of AS America other than as specified herein.

      • ii. Duty to notify. Participant agrees to notify AS America immediately (i) if Participant discovers that it, or any of its shareholders, partners, legal or beneficial owners, directors, officers, managers, employees or agents, have violated its obligations under this Compliance Clause, and/or (ii) upon becoming aware that it, whether directly or through intermediaries, is the subject of any request for information, investigation, litigation, penalty, or claim from any government enforcement entity, or any third party, for violation of any Anti-Corruption Obligation and any other applicable laws or regulations.

      • iii. Audit and Inspection. Participant will provide all information which AS America may reasonably request in order to evaluate whether a breach of its obligations under this Compliance Clause has occurred and the implications for its business, and the Participant will fully cooperate with audits or inspections by AS America personnel and/or its designated third party.

    2. Labor Responsibility. Participant and AS America are independent contractors; therefore there shall not be any employer-employee, principal-agent relationship between Participant and AS America. Participant's employees will not be eligible to participate in any of AS America’s employee benefit plans. Participant will be expressly responsible for the labor obligations of its own employees and/or its third parties subcontracted for the execution of this Agreement.

    3. Governmental Charges. Any tax or other governmental charges that apply to this Agreement or the rebate payable to Participant hereunder are conclusively presumed to be included in such rebate and, accordingly, any such tax or governmental charge shall not be added to any invoice submitted by Participant. AS America is not responsible for payment of any employment, self-employment, or withholding taxes imposed as a result of the performance of services under this Agreement, whether by Participant, its employees or agents, as these taxes are not directly reimbursable, but are included in the fee.

    4. Force Majeure. A Party shall be excused from performing its contractual obligations if it is prevented or delayed in such performance by conditions beyond the reasonable control and without the fault or negligence of such Party (“Force Majeure”), such as acts of God, acts of terrorism, acts of the public enemy, authority of law, fire or explosion, war or warlike act, insurrection, or a Party’s reasonable response (by way of example and not limitation, such as taking evasive action or canceling meetings or events) to a governmental warning affecting local or national security, provided such Party is otherwise in compliance with its obligations under this Agreement. A Party wishing to take advantage of the relief provided in this Section must, as soon as practicable, advise the other Party in writing of the existence of the Force Majeure condition and the estimated time of its duration, and shall further use its best efforts to remedy the non-performance. If a Force Majeure condition continues for more than fifteen (15) days, the unaffected Party shall have the right to terminate this Agreement immediately upon oral or written notice.

    5. Waiver. The terms of this Agreement cannot be waived except in writing, signed by an authorized representative of the Party to be charged therewith. Waiver by a Party of a breach of any term or condition of this Agreement shall not be construed as a waiver of any other term or condition or a future waiver of the waived term or condition. The acceptance of any certificate or certification purporting to evidence compliance with requirements of this Agreement does not constitute a waiver, release or modification of any of such requirements.

    6. Severability. Any provision of this Agreement which is determined to be invalid or unenforceable will be ineffective to the extent of such determination without invalidating the remaining provisions of this Agreement.

    7. Assignment; Successors and Assigns. Neither Party may assign this Agreement or its obligations hereunder, by operation of law or otherwise, without the prior written consent of the other Party, which consent may not be unreasonably withheld; provided that AS America may assign its rights under this Agreement to any Affiliate without the consent of Participant. Any assignment in violation of this Agreement shall be void; provided however that this Agreement shall be binding upon and inure to the benefit of AS America, Participant and their respective permitted successors and assigns.

    8. Amendments. This Agreement cannot be amended or modified except in writing, signed by or on behalf of the Parties to this Agreement.

    9. Counterparts. This Agreement may be executed in separate counterparts, including, without limitation, by electronic means, each of which when so executed and delivered shall be an original for all purposes, but all such counterparts together shall constitute one instrument. Electronic signatures shall be construed as originals.