1. General
1.1 The present General Purchasing Terms (“Terms”) integrate, merge, and supersede any prior offers, negotiations and agreements concerning the subject matter hereof and shall govern any order for products (“Products”) or services (“Services”) placed by DKSH USA, LLC, (“DKSH”) to the seller (the “Seller”) identified in the applicable order (“Order”) and, together with the terms of such Order, shall constitute the entire agreement between the parties relating to each such Order (“Agreement”).
1.2 DKSH may update and/or amend these Terms from time to time upon notice to the Seller.
1.3. Any of Seller’s acknowledgment, acceptance of payment, or commencement of performance shall constitute Seller’s unqualified acceptance of these Terms. Unless expressly accepted in writing by DKSH, additional or differing terms or conditions proposed by Seller or included in Seller’s confirmation or any other document are rejected by DKSH and shall have no force or effect. The acceptance of the delivery of Products or the provision of Services, without express rejection of any conflicting terms and conditions shall in no way constitute DKSH’s recognition of or consent to such conflicting conditions.
1.4 Products shall be sold in accordance with the Incoterms 2020 specified in the Order.
1.5 Unless otherwise agreed to in writing by DKSH, Seller shall deliver Products or render Services, or both, strictly in accordance with all specifications, designs, drawings, plans, sketches, calculations and performance criteria (“Documentation”), if any, furnished by DKSH, without variation.
2. Order and offer
2.1 Every Order issued by DKSH shall constitute an offer to conclude a contract and shall be accepted and confirmed by Seller in writing or via email within eight (8) days. Any Order that is not rejected within such time period shall be deemed accepted. Any confirmation received by DKSH at a later date shall be treated as a new offer requiring DKSH’s express acceptance.
2.2 The delivery of any Products or provision of Services ordered by DKSH or any other conduct of Seller which is reasonably deemed acceptance of a contract pertaining to the subject matter hereof shall, if made within the aforementioned period, constitute deemed acceptance by the Seller of DKSH’s Order and these Terms.
3. Prices
3.1 Prices shall be firm (indicated in US Dollars) and not subject to adjustment or variation unless expressly agreed to in writing by DKSH.
3.2 Seller warrants that it shall comply with all laws, rules and regulations applicable to its sale of Products and provision of Services, including those relating to pricing and price control.
3.3 Seller further warrants that the prices specified in each Order shall be as low as or lower than any net prices given by Seller to any other customer for Products or Services of like grade and quality in like quantities and Seller agrees that if at any time throughout the duration of the Agreement, lower net prices are quoted under similar conditions, said lower net prices shall be automatically substituted for the prices specified in the applicable Order and that DKSH shall be entitled to a refund of any amounts paid in excess of such prices under the applicable Order.
3.4 Except as otherwise agreed in writing by the parties, the prices specified in the Order shall include all costs and charges to be charged to DKSH, including, without limitation, installation and other service charges, all applicable taxes and duties, all wages and fees for Services, Products and materials, all charges for transportation, packing and packaging, and returnable containers, all costs of design, engineering and development and all costs for property that may be obtained or required by Seller for use in the manufacture, fabrication, or assembly of the Products or performance of the Services called for under such Order.
4. Packing and Packaging
4.1 Packing and packaging shall be in accordance with (i) applicable laws and regulations, and (ii) the specific instructions from DKSH set forth in the Agreement or in a separate notification. In the absence of specific instructions, all packing and packaging shall comply with applicable laws and regulations as well as with good commercial practice and shall consist of suitable containers for optimum protection of Products (regardless of the mode of transport) and for in-plant handling and storage. Should DKSH’s instructions not be in compliance with applicable laws and regulations, the latter shall prevail over such instructions and the Seller shall immediately notify DKSH about the non-compliance of instructions with applicable laws and regulations.
4.2 Hazardous Products must be packaged, labeled and declared in accordance with applicable laws on dangerous substances and the rules of the transport carrier used.
4.3 DKSH reserves the right to return the packing material or to dispose of it at Seller’s cost.
5. Shipping
5.1 Products shall be examined by Seller before shipment for qualitative and quantitative conformity with the applicable Order. Upon request of DKSH, the examination shall be confirmed by a product certificate.
5.2 In case of shipments to various delivery locations, DKSH may require separate shipping notices, shipping documents, delivery receipts, certificates of origin, product certificates and invoices.
5.3 Within a reasonable time prior to delivery, the Seller shall provide DKSH by e-mail with (copies of) all applicable licenses, if any, documents, information, invoices, specifications and instructions necessary for safe and proper transport (including, without limitation, shipping notices, shipping documents, delivery receipts), use, treatment, process and storage of the Products and with all certificates of analysis/conformity as customarily supplied. In particular, Seller shall provide DKSH with documentation on the composition and stability of the Products, safety data sheets, processing instructions, work safety precautions etc., including any modifications or updates to any of the foregoing documents. In the event that the required documents are not available prior to shipment, the Products shall be stored by DKSH or its agent at Seller’s own risk and expense until said documents are received by DKSH.
5.4 The Seller must state the following data in the transport documents: delivery address, Order number and date, place of delivery and, if applicable, name of recipient, material designation and number communicated by DKSH. 5.5 All individual packages (weighing 1 t or more) shall bear a clearly visible, indelible statement of unit weight.
5.6. Quantities of delivered Products shall exactly correspond to the quantities stated in the Order. Should the delivered quantity of Products be below or above the quantity stated in the Order (the “Agreed Quantity”), DKSH shall be entitled to reject the corresponding delivery. Any such rejected Products shall be returned to Seller at Seller’s risk and expense. If DKSH does not reject the Products and instead accepts the delivery of Products at a quantity deviating from the Agreed Quantity, the price for the Products shall be adjusted on a pro-rata basis.
6. Delivery
6.1 The Seller shall deliver the Products to the address stated in the Order by exercising the highest standards of diligence and skill. Deliveries shall be made according to the Incoterms (and/or other delivery terms, if any) specified in the Order. Unless no Incoterm is specified in the Agreement, delivery shall be made by carrier and route specified by DKSH or, in the absence of DKSH’s instructions in this respect, by the way of transportation most favorable to DKSH in terms of cost, duration and efficiency.
6.2 Delivery times will be measured to the time that Products are actually received at the delivery location and/or Services are actually performed. Time, quantity and delivery to the delivery location are of the essence under this Agreement. If Seller does not comply with any of its delivery obligations under this Agreement and/or the Order, without limiting DKSH’s other rights under this Agreement or applicable law, DKSH may, in DKSH’s sole discretion and at Seller’s s sole cost and expense: (a) approve a revised delivery date; or (b) require expedited or premium shipment. Seller shall immediately notify DKSH in writing in case of any delay or anticipated delay in delivery of Products and/or Services. In the event of failure by the Seller to meet the delivery dates, Seller shall indemnify DKSH for all damages and losses incurred due to the delay in delivery. Acceptance by DKSH of a late delivery shall not be deemed a waiver of its right to claim damages for late delivery. DKSH shall also be entitled to terminate the applicable Order or this Agreement with immediate effect without prejudice to any other rights, including those contained in section 13 hereof.
6.3 Partial deliveries and deliveries in advance shall not be permitted without DKSH’s advance written consent.
6.4 Unless no Incoterms are specified in the Agreement, delivery shall not be deemed complete until the Products have actually been received and expressly accepted by DKSH or by the person to whom the Products were delivered as specified in the Order, and the risk of loss for the Products shall be borne by Seller until such delivery and acceptance.
7. Terms of Payment
7.1 Except as otherwise agreed in writing by the parties, payment shall be made in US Dollars within sixty (60) days of the date of the invoice, or when the Products/Services are delivered, performed and accepted by DKSH or by the person to whom the Products were delivered, whichever occurs later. All invoices shall state the Order number, the material identification number and specify sales or other statutory taxes separately.
7.2 DKSH requires separate invoices for Orders from different DKSH’s purchasing locations.
7.3 In the event of late shipment of any shipping notices, shipping documents, delivery receipts, certificates of origin, product certificates, or invoices pursuant to section 5.3, the agreed upon payment period pursuant to section 7.1 shall be extended by the same amount of time as the delay in shipment. 7.4. Settlement of an invoice by DKSH shall in no way imply a waiver of any warranty rights relating to the Products delivered or Services performed by the Seller.
8. Inspection and Acceptance
All Products and Services are subject to inspection and acceptance/rejection by DKSH, its representative or DKSH’s customer at any time after delivery within the warranty period and notwithstanding any prior payment.
9. Warranty
9.1 Seller warrants that it shall diligently perform Services with due skill, care and diligence and to the highest degree of workmanship and quality and that all Products and Services (i) meet the agreed specifications, (ii) are merchantable and suitable for DKSH’s particular purposes, if any, as have been known to the Seller; (iii) are free from defects in workmanship and material; and (iv) are in conformity with the Documentation, if any, for a warranty period corresponding to the shelf life as indicated on the respective Product or, if no shelf life is applicable, for a warranty period of 3 (three) years from delivery/provision of the Products/Services when used in accordance with Seller's instructions and for the purpose for which they are made (the “Warranty Period”).The Warranty Period shall be extended by any period(s) during which the Products could not be used by DKSH or its customer due to the Seller’s breach of any of the warranties set forth hereunder.
9.2 Seller warrants that the Products, their conditions of use, production and packaging thereof shall comply with all applicable laws, regulations, rules and orders in the countries specified in the applicable Order or in this Agreement. Seller further represents and warrants that the Products sold comply with all federal, state, and local laws, ordinances, rules, and regulations, and that none of the products, components, or materials being provided to DKSH hereunder contain any chemicals known to cause cancer, birthday defects, or other reproductive harm under the California Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65).
9.3 Without prejudice to any other rights it may have, DKSH may require Seller, during the Warranty Period, at Seller’s expense (i) to promptly repair or replace any or all rejected Products or to cure or re-perform any or all rejected Services or (ii) to refund all amounts paid in respect of any or all rejected Products or Services. All such rejected Products shall be held for Seller’s prompt instruction and at Seller’s expense and risk.
9.4 In the event Seller fails to timely remedy any failure to comply with the warranties set forth herein, DKSH shall be entitled, at the Seller’s expense, to either remedy the defect(s) itself or to have it/them remedied by a third party.
10. Intellectual Property Rights
10.1 “Intellectual Property Rights” or “IPR” shall mean all rights to patents, patent applications, certificates of invention or applications for certificates of invention and any supplemental protection certificates, together with any extensions, registrations, confirmations, reissues, substitutions, divisions, continuations or continuations-in-part, reexaminations or renewals thereof; inventions (whether patented or not), methods, processes, know-how, layouts, models, designs, sketches, drawings, blueprints, patterns, trade secrets, copyrights, mask works, trade names, trademarks, proprietary materials, confidential information or other intellectual property and all improvements or modifications relating to any of the foregoing, incorporated into or in any manner associated with or attached to the Products and/or Services and/or to the Documentation. All IPR comprised in the Documentation shall remain with DKSH. as the owner or third-party beneficiary. Seller shall use such Documentation exclusively for the purpose contemplated by the Agreement. Seller agrees that it shall not infringe the IPR or acquire or obtain any right, title or interest therein. Without DKSH.'s prior written consent, Seller shall not be entitled to manufacture products for third parties based on such Documentation.
10.2 DKSH shall be authorized to use trademarks/logos/marks and other data that are affixed to the Products or on their original packaging as well as in the advertising material provided by Seller.
10.3 Seller shall make available to DKSH at no charge, information, samples and advertising material regarding the Products requested.
10.4 The Seller warrants that neither the trademarks or any other IPR related to the Services and Products nor the Products/Services or their importation, storage, promotion, sale and distribution to DKSH, infringe any intellectual property rights (including but not limited to trademarks, patents, designs and copyrights) of any third parties.
11. Disclosure of Confidential Information
11.1 Seller will keep confidential all information received from DKSH (including, without limitation, the Documentation). This provision shall survive the termination or expiration of the Agreement and all Orders entered into hereunder. This confidentiality obligation does not apply to: (i) Information that is already publicly known at the time of its disclosure by Seller; (ii) Information that Seller can establish by written documentation was legitimately in its possession prior to receipt of such information from DKSH.; or (iii) Information that Seller later obtains independently and without being obligated to keep such information confidential. DKSH retains title and all rights to all documents or other media made available to Seller. Such documents or other media may only be reproduced, replicated or transferred to third parties with the express written consent of DKSH. Following the termination or fulfillment of any Order, upon DKSH.’s request, Seller will promptly deliver to DKSH any and all documents or other media that contain or relate to DKSH’s confidential information, including any copies thereof.
11.2 Where, in accordance with DKSH’s written authorization, DKSH.’s confidential information is furnished by Seller to a third party supplier for purposes of procuring supplies for use in performance of an Order, Seller shall prior to such disclosure have such third party supplier agree in writing to be bound by a confidentiality agreement substantially in form and substance corresponding to this section 11.
11.3 The substance and existence of the Agreement and each Order are confidential and Seller shall not, without the prior written consent of DKSH, disclose any information relative or derived therefrom except solely as necessary to perform under the applicable Order. Unless otherwise authorized by DKSH., Seller shall not advertise or publish the fact that Seller has contracted to furnish DKSH the Products or Services ordered by DKSH pursuant to any Order.
11.4 The Seller agrees that any breach of the provisions of this section 11 hereof would cause substantial and irreparable harm to DKSH, for which monetary damages may be inadequate and that, in addition to any other remedy to which DKSH may be entitled at law or in equity, DKSH shall be entitled to temporary, preliminary and other injunctive relief in the event Seller violates or threatens to violate the provisions of this section 11, as well as damages and an equitable accounting of all earnings, profits and benefits arising from such violation, in each case without the need to post any security or bond. Nothing herein contained shall be construed as prohibiting DKSH from pursuing, in addition, any other remedies available to DKSH for any breach or threatened breach of this Agreement.
12. Termination
This Agreement or any Order may be terminated by DKSH upon written notice in the event Seller fails to comply with these Terms or any obligations set forth in an Order.
13. Liability
13.1 Seller shall, at its own cost and expense, defend, indemnify and hold harmless DKSH, its subsidiaries and affiliates and its and their respective officers, agents, employees and customers against all claims, expenses, (including, without limitation, legal fees and expenses), direct or indirect losses (such as but not limited to loss of profit, income, business, goodwill), costs, damages, liabilities, and suits arising from (A) any alleged defects in the Products or Services hereunder, (B) any injury to persons or property or death arising out of or relating to the provision of the Services or the use or application of the Products, whether defective or not (other than any such injury resulting solely from the negligence or willful misconduct of DKSH or its agents or representatives); (C) any breach or alleged breach of any of the warranties described in section 9 hereof or any other provision of the Agreement (such as but not limited to delays in delivery, insufficient shipping or transport measures, non-compliance by Seller with DKSH’s instructions regarding packing and packaging of the Products), (D) any alleged acts or omissions of Seller or its subsidiaries, officers, agents, employees or sub-contractors; or (E) any claims that the Intellectual Property Rights pertaining to all or part of the Products or Services or Seller’s documentation related to the Products or Services infringe on any Intellectual Property Rights or other rights of any third party. DKSH reserves the right at any time to take over control of its own defense.
13.2 Seller shall obtain and maintain in force commercial general liability insurance of no less than US $5,000,000 in aggregate and per occurrence for bodily injury, personal injury and property damage covering all activities related to its performance under any and all Orders. Each policy will be underwritten by an insurer rated A-VII or better by A.M. Best Co. and contain a waiver of subrogation in favor of DKSH. Each policy will name DKSH. as an additional insured, and shall be specifically endorsed to cover the hold harmless provision of section 13.1. Seller, upon request, shall furnish DKSH certificates of insurance evidencing such coverage.
14. Recall
Any Products withdrawn by the Seller from DKSH’s premises (e.g. product recall initiated by Seller or by government), as well as costs and expenses related to such withdrawal or recall shall be for Seller’s own account at cost plus fifteen percent (15%) handling fee plus applicable taxes, if any. DKSH is entitled to withdraw, subject to Seller’s prior written approval not to be unreasonably withheld, any of the Products from the market in the contractual territory, in case new evidence shows unforeseen effects of the Products which may lead to unacceptable risks for DKSH or third parties.
15. Compliance with Laws
15.1 The Seller shall comply with all applicable laws and statutory provisions. In particular, the Seller warrants that it will strictly comply with all applicable anti-corruption and anti-bribery laws and the Seller shall refrain from taking any action that would cause DKSH to be in violation of any applicable anti-corruption and anti-bribery laws.
15.2 The Seller also warrants that it will strictly comply with all applicable international and national export control laws and regulations. The Seller agrees to inform DKSH in writing whether or not the supplied Product(s) is (are) US controlled and/or controlled under the export control laws of its own country, and if so, the Seller will inform DKSH about the extent of the respective restrictions (including but not limited to export control legal jurisdiction, export control classification numbers and/or export control licenses, as applicable). The Seller shall obtain all international and national export licenses or similar permits required under all applicable export control laws and regulations and shall provide DKSH with all information required to enable DKSH to comply with such laws and regulations.
15.3 Unless otherwise agreed, Seller shall be responsible for compliance with all applicable regulations relating to import, transport, storage and use of the Products.
15.4 The Seller agrees to indemnify and hold DKSH harmless from any claims, liabilities, penalties and associated costs and expenses (including attorney’s fees), which DKSH may incur due to Seller’s non-compliance with applicable laws, rules and regulations.
16. Responsible Business Conduct
16.1. DKSH applies responsible business practices as expressed in its Code of Conduct (available at https://www.dksh.com/global-en/home/about-us/sustainability#policies) and other relevant policies. Specifically, DKSH is committed to conducting its business responsibly – always acting lawfully and with high ethical standards, respecting human rights, offering decent and fair working conditions, and taking responsibility for our environmental impacts, in line with its DKSH Code of Conduct and its commitment to the Ten Principles of the United Nations Global Compact.
16.2. DKSH expects its business partners in its supply chain (such as suppliers, contractors, consultants, etc.), and, hence, also the Seller and its officers, directors, employees, and agents, to adhere to DKSH’s standards of doing business, as outlined in DKSH’s policy on Supplier Business Conduct (available at https://www.dksh.com/global-en/home/about-us/sustainability#policies), which is summarized hereunder in clause 16.3. Therefore, DKSH reserves its rights to turn down business opportunities, or to discontinue business relationships with business partners, including the Seller, who do not meet DKSH’s expected standards of doing business.
16.3 DKSH’s expected standards of doing business, as summarized from DKSH’s policy on Supplier Business Conduct, are as follows:
WHAT WE EXPECT FROM OUR SUPPLIERS
Lawful and ethical business conduct
• Suppliers shall always act in a lawful and ethically sound manner. Suppliers shall not engage in fraudulent or otherwise corrupt activities, including the provision of favors with the purpose of securing business with or for DKSH.
• Suppliers shall disclose any conflict-of-interest situation prior to entering a relationship with DKSH, or as soon as such a situation arises during an ongoing relationship. All business dealings between the Supplier and DKSH and its employees shall always be open, fair, and transparent.
Decent working conditions and respecting human rights
• Suppliers shall respect international proclaimed human rights and ensure that they do not engage in or are complicit in human rights abuses.
• Suppliers shall ensure that working conditions throughout their operations comply with the International Labor Organization’s Declaration of the Fundamental Rights at Work, advocating:
• freedom of association and the effective recognition of the right to collective bargaining,
• the elimination of forced or compulsory labor,
• the abolition of child labor and
• the elimination of discrimination in respect of employment and occupation
• Suppliers shall enable grievance procedures as well as the reporting of concerns or illegal activities in the workplace, without threat of reprisal, intimidation, or harassment.
Health and safety
• Suppliers shall offer safe workplaces and exercise care about workers’ health and well-being, protecting them against occupational hazards by having an appropriate management system in place to identify and mitigate workplace hazards, and to prevent injuries and illnesses; workers shall be equipped with adequate safety equipment.
Environmental stewardship
• Suppliers shall respect the environment and shall take adequate measures to protect the environment and to minimize adverse impacts through an appropriate management system to prevent spills and to handle waste in an environmentally responsible manner, to preserve water resources, to minimize emissions and to prevent or minimize other adverse impacts.
Minerals and metals from conflict areas (“Conflict Minerals”)
• Suppliers shall disclose to DKSH whether any of their products supplied to us contain any Conflict Minerals (ref. OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas).
16.4 By the acceptance of any Order placed by DKSH and/or by delivering/suppling goods to DKSH, Seller acknowledges to have taken note of DKSH’s Code of Conduct (https://www.dksh.com/global-en/home/about-us/sustainability#policies) and DKSH’s expectations under its Policy on Supplier Business Conduct (https://www.dksh.com/global-en/home/about-us/sustainability#policies) as summarized hereinabove in clause 16.3 and commits to fully comply with them whenever performing work or services / supplying goods to DKSH. DKSH’s Code of Conduct and Policy on Supplier Business Conduct are subject to updates and/or amendments from time to time and Seller hereby accepts such updates and/or amendments (as made available at https://www.dksh.com/global-en/home/about-us/sustainability#policies, and/or as otherwise notified by DKSH).
16.5 Seller understands and agrees that DKSH may collect information on the Seller (via due diligence, pre-agreed audits or otherwise) to verify the Seller’s business conduct against DKSH’s expectations, and Seller agrees to furnish DKSH with information as reasonably requested by DKSH from time to time to conduct such verification. Where DKSH has reason to believe that the Seller falls short of expectations, Seller acknowledges DKSH’s right to turn down business opportunities or to seek discontinuation of the relationship, unless DKSH and Seller agree on collaborating towards establishing adequate improvement plans and actions to address DKSH’s findings resulting from due diligence, pre-agreed audits or otherwise.
16.6 Seller agrees to immediately inform DKSH of the occurrence of any incident or other matters which could adversely affect DKSH’s business – either by directly notifying the Seller’s business contact at DKSH or reporting via DKSH’s Integrity Line (https://dksh.integrityline.org). DKSH furthermore expects Seller to report via Integrity Line any Seller’s concerns over improper conduct by DKSH personnel or other suppliers acting for and on behalf of DKSH.
16.7 Seller furthermore agrees to take necessary measures to select and work with suppliers and sub-contractors who conduct their business responsibly, in a manner as outlined herein above.
17. Miscellaneous
17.1 If any provision or part of a provision of these Terms, the Order or the Agreement shall be found by any court of competent jurisdiction to be invalid or unenforceable, such invalidity or unenforceability shall not affect the other provisions or parts of such provisions of these Terms, the Order or the Agreement, as applicable, all of which shall remain in full force and effect. Any invalid provision shall be replaced by a provision whose economic purpose comes as close as possible to that of the invalid provision.
17.2 Seller may not assign, novate, transfer or sub-contract all or any of its rights or obligations under this Agreement or any Order without the prior written consent of DKSH.
17.3. No amendments or additions to these Terms, including this Section 17.3, or any Order shall be valid unless made in writing. Any notices given pursuant to this Agreement or any Order must be made in writing.
17.4. Non-performance of either party shall be excused to the extent that performance is rendered impossible or prevented or hindered or is delayed by an extraordinary and severe event of force majeure or change of circumstance beyond the control and not caused by the non-performing party (including but not limited to natural disasters, war, strike, traffic or business interruptions, orders, laws or regulations of any governmental body, fire or explosion, pandemics or endemics) provided, however, that the non-performing party (i) immediately notifies the other party of the occurrence of such an event and (ii) resumes performance of its obligations hereunder without delay when such causes have been removed. For the avoidance of doubt, the Seller’s economic hardship, changes in market conditions and mechanical failure of the Seller’s facility are not considered events of force majeure.
17.5 This Agreement and these Terms will be governed by and construed in accordance with the law of the State of Maryland, to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.
17.6. The place of performance for all obligations shall be DKSH 's principal place of business in 600 Fairmount Avenue, Ste 307, Towson, MD 21286, USA, provided that nothing to the contrary has been agreed upon expressly in writing.
17.7 Seller irrevocably submits to the exclusive (except to the limited extent provided below) jurisdiction of the United States District Court for the District of Maryland (the “DMD”)] for the purposes of any suit, action or other proceeding arising out of this Agreement or any transaction contemplated thereby. Seller agrees to commence any such action, suit or proceeding, including unresolved disputes with regard to indemnity claims, in the DMD]. Seller irrevocably and unconditionally waives any objection to the laying of venue of any action, suit or proceeding arising out of this Agreement or any Orders entered into hereunder in the DMD, and hereby further irrevocably and unconditionally waives and agrees not to plead or claim in such court that any such action, suit or proceeding brought in any such court has been brought in an inconvenient forum. If, and only if, the DMD declines jurisdiction over an action, suit or proceeding arising out of this Agreement or any Orders entered into hereunder, such action, suit or proceeding may be, in the alternative, commenced in the courts of the State of Maryland, Baltimore County (the “MDS Court”)] and Seller irrevocably submits to the jurisdiction of the MDS Court solely for the limited, alternative purpose set forth herein. SELLER HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT SELLER MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY ORDER ENTERED INTO HEREUNDER. The foregoing shall be without prejudice to DKSH.’s rights to bring suit in any court having jurisdiction.
