Standard Terms & Conditions of Sale
(Revised January 2024)
ARTICLE 1 - AGREEMENT
These MTEA Standard Terms & Condition of Sale, shall apply to, and be incorporated by reference into, any Order (as defined below) issued to Mitsubishi Turbocharger and Engine America, Inc. (“MTEA”) by “Buyer” (as identified in the Order). Together with the Order, these MTEA Standard Terms & Conditions of Sale shall constitute the entire agreement between MTEA and Buyer (this “Agreement”). To the extent that these MTEA Standard Terms & Conditions conflict with, amend, or would have the effect of modifying any terms and conditions proposed by Buyer, MTEA’S ACCEPTANCE OF THE RELATED ORDER IS EXPRESSLY CONDITIONED UPON BUYER’S AGREEMENT TO THESE MTEA STANDARD TERMS & CONDITIONS OF SALE, TO THE EXCLUSION OF ANY CONTRADICTORY TERMS OR PROPOSALS.
ARTICLE 2 - DEFINITIONS
Contract Price: The total sale price of all Engine Products and Spare Parts set forth in an Order.
Confidential Information: All information, data, and materials of the disclosing Party concerning Engine Product(s) and/or Spare Parts or the business of the disclosing Party, designated as confidential and disclosed to the receiving Party orally or in writing. Confidential Information shall not include any information that the Parties, after consultation with each other and approved in writing, make public with respect to the transaction contemplated by this Agreement or which the receiving Party can establish: (a) is generally known or available to the public or which through no act or failure on the part of the receiving Party becomes generally known or available to the public; (b) is legally known to the receiving Party at the time of receiving such information; (c) is furnished to others by the disclosing Party without a restriction on disclosure; or (d) is hereafter furnished to the receiving Party in writing by a third party without restriction on disclosure, where such third party legally obtained such information and the right to disclose it to the receiving Party.
Deliver or Delivery: Tender of Engine Products either FOB (Incoterms 2020) Port of Yokohama, Japan, or Ex Works (Incoterms 2020) MTEA’s designated facility, as specified in an Order; or tender of Spare Parts Ex Works (Incoterms 2020) MTEA’s designated facility.
Engine Products: Engines manufactured and distributed under the Mitsubishi brand name, along with auxiliary equipment and applicable operation and maintenance manuals. The Parties acknowledge that MTEA is not a manufacturing company and that Engine Products and/or Spare Parts supplied to Buyer by MTEA hereunder will be manufactured by affiliates or other suppliers of MTEA.
Intellectual Property: Any proprietary information, trade secrets, know-how, trademark rights, service mark rights, patent rights, copyrights, or other technology or technology rights.
Order: Written order for Engine Products or Spare Parts submitted by Buyer to MTEA, expressly made subject to, and incorporating by reference, the terms and conditions of this Agreement, to the exclusion of any other terms and conditions. To be valid, each Order must be submitted by such means as MTEA may direct and must be approved by MTEA in its sole discretion. Each Order shall constitute a separate contract between Buyer and MTEA with respect to the subject matter thereof.
Party or Parties: MTEA and Buyer.
Spare Parts: Parts or components sold by MTEA for use in the repair and maintenance of Engine Products.
Specifications: Technical description, if any, of the Engine Products or Spare Parts specified in an Order.
Warranty or Warranties: The Engine Product Warranty and/or Spare Parts Warranty provided under Article 7 below.
ARTICLE 3 - PURCHASE AND SALE
3.1 During the Term, Buyer will place Orders for Engine Products and/or Spare Parts with MTEA and MTEA will sell the same to Buyer in accordance with, and upon the terms and subject to the conditions of this Agreement.
3.2 The provisions of this Agreement shall govern in all respects any purchase and sale transactions between the Parties with respect to the Engine Products and/or Spare Parts, including any and all warranty and similar provisions. Except with respect to adjustment to the terms of Delivery or payment as allowed by this Agreement, if there are any inconsistencies between the provisions of this Agreement and the terms of any Order, invoice, or other writing used by one Party in connection with any such transactions, the provisions of this Agreement will control. No additional or different terms or conditions proposed or contained in any writing will be binding on MTEA unless accepted in writing by MTEA.
ARTICLE 4 - LEAD TIME
MTEA shall have a minimum of four (4) months, or such greater reasonable time as it deems necessary, to deliver Engine Products and/or Spare Parts not in MTEA’s stock at time of Order. If Engine Products and/or Spare Parts are ordered from MTEA’s existing stock, lead-time will be based upon MTEA’s ability to ship the same. Buyer shall not cancel any Orders unless agreed in writing by MTEA.
ARTICLE 5 - DELIVERY; TITLE; RISK OF LOSS; INSPECTION
- MTEA shall make all commercially reasonable efforts to Deliver Engine Products and Spare Parts on such date as may be specified in the applicable Order. Buyer shall pay any and all charges including but not limited to freight, export and import duties, brokerage, and insurance after Delivery has occurred. Risk of loss or damage shall pass to Buyer upon Delivery. Except as otherwise set forth in the Order: (a) where Engine Products or Spare Parts will remain within the United States, title shall pass to Buyer upon Delivery; and (b) where Engine Products or Spare Parts will be transported or utilized outside of the United States, title shall pass upon the later to occur of (i) Delivery, and (ii) payment in full of the Contract Price.
- MTEA shall provide documentation concerning shipments to Buyer based upon MTEA’s standard shipping documents.
- Buyer shall inspect each shipment of Engine Product(s) and/or Spare Parts received from MTEA promptly following receipt but in no event later than twenty (20) days from receipt. Buyer shall notify MTEA within such period of any irregularities, non-conformities, or discrepancies with respect to Engine Product(s) and/or Spare Parts ordered and delivered, and of any visible defects in the Engine Product(s) and/or Spare Parts delivered, using a form designed by MTEA for such purpose. Buyer waives any rights with respect to any irregularities, non-conformities, discrepancies, and visible defects about which Buyer fails to notify MTEA in writing within twenty (20) days after receipt of the Engine Product(s) and which is ascertainable by close inspection.
ARTICLE 6 - PRICES; TAXES; PAYMENT AND SECURITY
- MTEA’s prices for Engine Products shall be those prices as negotiated by MTEA and Buyer and set forth in applicable Order. MTEA’s prices for Spare Parts shall be those prices published by MTEA from time to time. Yearly price increase information will be provided 30 days before application; however prices are subject to change at any time based on supply conditions, provided that such revised prices shall apply only to future Orders and not to any Orders already accepted by MTEA.
- In addition to the Contract Price, Buyer shall be responsible for, and shall timely pay, or reimburse to MTEA immediately upon MTEA’s invoice or demand, any and all taxes, customs and duty fees, tariffs, levies and similar charges (including, without limitation, sales and use, value added, and goods and services taxes, but excluding any income or excess profit taxes) that any foreign or domestic taxing authority may impose arising from the services performed and the sale, import, delivery, use, repair, or maintenance of any goods sold or exchanged hereunder. Buyer shall be responsible for any and all interest and penalties relating to the non-payment or late payment of such taxes and charges in any jurisdiction. MTEA reserves to itself all rights to, and Buyer waives any interest in, drawback of any duty and/or refunds of any fees paid by MTEA, and Buyer will assist MTEA in obtaining same. If available, Buyer shall provide MTEA with a tax-exemption certificate acceptable to the relevant taxing authorities.
- Payment terms for Engine Products and Spare Parts purchased and sold hereunder shall be as mutually agreed in the corresponding Order. Unless otherwise specified in the Order, Buyer shall remit payment as invoiced, together with any shipping charges and taxes, within thirty (30) days of the bill of lading date indicated in the MTEA invoice. Payment obligations shall not be subject to dispute or offset. Any late payments shall accrue interest at the rate of one percent (1%) per month, or the maximum rate allowed by applicable law, whichever is less, until payment is made in full.
- Buyer hereby grants to MTEA a first priority, purchase money, security interest in any delivered Engine Products and Spare Parts and any proceeds thereof, pursuant to Section 9-103 of the Uniform Commercial Code, which security interest shall remain in effect until payment in full has been received by MTEA, and authorizes MTEA to file such financing statements or take such other actions as may be required, to perfect and preserve such security interest.
ARTICLE 7 - WARRANTIES
- All new and unused Engine Products sold by (i) MTEA and/or its related companies to Buyer pursuant to this Agreement, and (ii) by or on behalf of Buyer to its customers and end-users, are sold subject to the standard warranty for the particular Engine Products, as may be in effect from time to time (the “Engine Product Warranty”). Spare Parts shall be subject to MTEA’s standard Spare Parts Limited warranty, as may be in effect from time to time (the “Spare Parts Warranty”). The foregoing Warranties (available here), as applicable, will be attached to each Order, will be made a part thereof, and shall control in all respects. In the event that a Warranty changes or is modified, MTEA will supply Buyer with any revised Warranty as soon as practicable.
- The Warranties shall not apply (a) to any Engine Products or Spare Parts which have been repaired or altered in any way so as to adversely affect operation or reliability in MTEA’s judgment; or (b) to the effects of ordinary corrosion, erosion, or wear and tear, or (c) to any failure occurring from operation or condition of service more severe than allowable under the applicable Specifications.
- Buyer shall use and maintain, or cause its customers and end-users to use and maintain the Engine Products or Spare Parts in accordance with: (a) the technical specifications, including but not limited to, the Specification Sheet and the Rating Definitions which may specify the load factor, yearly operating hours, and other operating conditions specific to the Engine Products or Spare Parts; and (b) the applicable maintenance conditions, in each case as specified in the in the applicable operation and maintenance manual provided by MTEA. Failure by Buyer to comply with the foregoing will void any Warranty provided under this Agreement.
- Other than the Engine Product Warranty and the Spare Parts Warranty, there are no other warranties, express or implied, and neither Buyer, nor its customers or end-users may assume or expect any other warranty or obligation, applicable or being provided by any party, including MTEA and/or its related companies, other than with the prior, express, written agreement and approval of MTEA. Buyer hereby agrees to provide or cause to be provided to its customers and end-users the applicable Engine Product Warranty and/or the Spare Parts Warranty. If Buyer fails to provide its customers or end-users with the applicable Warranty, or if it otherwise extends, modifies, acts or omits to act, in any way that indicates to any party that there are any warranties other than the Engine Product Warranty and the Spare Parts Warranty, it shall do so at its own sole and exclusive risk, and hereby assumes, and agrees to indemnify, defend and hold harmless MTEA and/or its related companies with respect to, any obligations, liabilities, damages, costs or expenses (including attorney’s fees) arising from any and all of such failures, extensions, modifications, acts or omissions.
- Exclusive Remedy and Conditions
TO the maximum EXTENT permitted under applicable law, THE WARRANTIES PROVIDED BY THIS AGREEMENT SHALL BE THE EXCLUSIVE warrantIES in lieu of all other WARRANTIES, express, implied or statutory, INCLUDING but not limited to any implied warranty of MERCHANTABILITY, non-infringement, or fitness for a particular purpose.
- The Warranties set forth the sole and exclusive remedies available to Buyer and its customers, end-users, buyers, and transferees with respect to the quality or performance of the Engine Products and Spare Parts, whether at law or in equity, and whether arising in tort (including negligence and strict liability), contract, statute, or otherwise.
- As conditions precedent to the effectiveness of the warranties provided hereunder (i) prior to the sale or transfer of any Engine Product(s) and/or Spare Parts, and as a part of any sales proposal or quotation by Buyer in connection with any such sale or transfer, Buyer shall provide to the customer, end-user, buyer or transferee, a written copy of the applicable Warranty, and (ii) Buyer must perform all of its obligations under this Agreement.
- Buyer shall indemnify and hold MTEA and its related companies harmless from and against all claims damages, losses, costs (including attorney’s fees) resulting from or related to Buyer’s, or its customers, end-users, assigns or agents, failure to comply with the provisions of, or Buyer’s or another’s modification of, the provisions of the Warranty or the Spare Parts Limited Warranty.
ARTICLE 8 - LIMITATION OF LIABILITY
IN NO EVENT SHALL MTEA, ITS PARENT, AFFILIATES, REPRESENTATIVES, OR AGENTS BE LIABLE TO BUYER, ITS DEALERS, CUSTOMERS, END-USERS, ASSIGNS, AGENTS OR OTHER SIMILAR PARTIES, WHETHER IN CONTRACT, WARRANTY, STRICT LIABILITY, TORT, IN EQUITY, AT LAW OR OTHERWISE, FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION, ANY LOST PROFITS, LOST REVENUE, EQUIPMENT DOWNTIME, DOWNSTREAM OR COLLATERAL DAMAGE, REPLACEMENT EQUIPMENT, OR OTHER ECONOMIC LOSS (INCLUDING CONTRACTUAL DAMAGES CLAIMED BY ANY THIRD PARTIES), NOR SHALL MTEA, ITS PARENT, AFFILIATES, REPRESENTATIVES, OR AGENTS BE LIABLE TO BUYER, ITS CUSTOMERS, DEALERS, CUSTOMERS, END-USERS, ASSIGNS AND AGENTS, FOR ANY DAMAGES, COSTS OR EXPENSES RELATING TO DEFECTS OR DEFICIENCIES IN BUYER’S, ITS CUSTOMERS’, DEALERS’ CUSTOMERS’, END-USERS’, ASSIGNS’ OR AGENTS’, MATERIALS OR WORKMANSHIP, ARISING DIRECTLY OR INDIRECTLY FROM THE USES OF THE ENGINE PRODUCT(S) AND/OR SPARE PARTS. MTEA and Buyer have negotiated, have deemed adequate and hereby agree that the total liability of MTEA and its related companies shall, with respect to any particular claim arising from or related to any Order, whether founded in statute, contract, warranty, or tort (including negligence and strict liability), be limited to the amount of the Contract Price allocable to the Engine Product or Spare Part giving rise to the claim.
ARTICLE 9 - RELATIONSHIP OF PARTIES
The relationship between MTEA and Buyer is expressly limited to that of seller and buyer. Buyer shall in no way be a representative or agent of MTEA its parent or its related companies, and shall have no authority to incur or create any liability or obligation in the name of or on behalf of MTEA, and Buyer agrees not to attempt, directly or indirectly to incur or create any such liability or obligation in the name of or on behalf of MTEA its parent or its related companies, and Buyer agrees not to attempt, directly or indirectly to incur any such liability or obligation nor to hold itself out as having any such right or authority.
ARTICLE 10 - INTELLECTUAL PROPERTY
Any Intellectual Property related to the Engine Products and/or Spare Parts shall at all times be owned by MTEA and its affiliates and suppliers (“Seller IP”). Buyer shall be entitled to use only such Seller IP as is required for Buyer to sell or operate, or enable Buyer’s customers to sell or operate, the Engine Products and/or Spare Parts. Buyer shall not, and shall not allow its customers to, modify any of the Seller IP, nor reverse engineer, reverse assemble, or reverse compile. Buyer shall protect the Seller IP as it protects its own IP, and shall not, without prior written consent of MTEA, publish or disclose or otherwise make available the Seller IP, in whole or in part, in any form, to any third parties, and shall limit availability of Seller IP only to those of its employees, consultants and subcontractors who need to have access to them and who have been required by Buyer to keep the Seller IP confidential and to not further use or disclose.
ARTICLE 11 - CONFIDENTIAL INFORMATION
11.1 Neither Party shall disclose the other Party’s Confidential Information to any third parties, and shall cause their employees, agents, representatives, and professional advisors, to not directly or indirectly disclose such Confidential Information to third parties, except as may be specifically required by law. Each Party shall take security precautions, at least as great as the precautions such Party takes to protect its own highly Confidential Information (but in any event no less than reasonable care), to keep the other Party’s Confidential Information confidential. Neither Party shall use the other Party’s Confidential Information for any purpose other than for the performance of this Agreement. Each Party may disclose the other Party’s Confidential Information only to its employees, agents, representatives, and professional advisors as may be necessary for the fulfillment of this Agreement and who are bound to use such Confidential Information only for such purpose and to not further disclose it.
11.2 In implementation of this Article 11, upon the expiration or earlier termination of the Agreement, upon request, each Party shall promptly return to the other Party, at no charge, all Confidential Information previously delivered to the receiving Party in written, quantitative or schematic expression or other tangible form and all copies of the foregoing.
11.3 The Parties agree that a Party would be irreparably damaged and may have no adequate remedy at law for the other Party’s breach of this Article 11. Accordingly, each Party hereby: (i) consents to the entry of an immediate ex-parte injunction, temporary restraining order, and/or permanent injunction to enforce the provisions of this Article 11, in addition to any other remedies available at law or in equity; and (ii) waives in any legal proceeding the defense of an adequate remedy at law and any requirement that a bond or any other security be posted in connection with the entry of any restraining order or injunction.
ARTICLE 12 - COMPLIANCE; ANTI-BRIBERY
12.1 Buyer and MTEA shall be responsible for the compliance with all national, state, local, and international laws and regulations relating to the transactions contemplated by this Agreement, including without limitation, any laws or regulations related to export control, trade restrictions, or prevention of corruption or bribery.
12.2 Without limiting the foregoing, Buyer shall not, directly or indirectly, export or re-export any goods, services, or technical information received from MTEA to any destination if such export or re-export would violate applicable law. Buyer shall be responsible for applying for, obtaining and maintaining all required export licenses and approvals and complying with all applicable export restrictions and all license and reporting requirements. Buyer specifically agrees, represents, and warrants that it will not sell or otherwise transfer any goods, services or technical information to any country (including without limitation, any person or entity operating therein), with respect to which the United States Government maintains an embargo or sanction or to any person or entity appearing on the United States Government's list of restricted or denied parties.
12.3 Without limiting the foregoing, Buyer shall not, and shall cause that its directors, officers, employees, agents, and representatives shall not, directly or indirectly, either in private business dealings or in dealings with the public sector, offer, give or agree to offer or give (either itself or in agreement with others) any payment, gift or other advantage with respect to any matters which are the subject of this Agreement which (i) would violate any applicable anti-corruption laws or regulations (including, without limitation, the US Foreign Corruption Practice Act, and English anti-corruption laws and regulations including the Bribery Act 2010), (ii) is intended to, or does, influence any person to act or reward any person for acting in breach of an expectation of good faith, impartiality or trust, or which it would otherwise be improper for the recipient to accept, (iii) is made to or for a public official with the intention of influencing them and obtaining or retaining an advantage in the conduct of business, or (iv) which a reasonable person would otherwise consider to be unethical, illegal or improper.
ARTICLE 13 - TERMINATION/SUSPENSION, AND SURVIVAL
13.2 In the event that Buyer fails to make payment when due, MTEA shall have the option, upon providing written notice to Buyer, to suspend and otherwise delay performance of its obligations under the applicable Order without repercussion on a day-for-day basis until such failure by Buyer is corrected.
13.3 Notwithstanding the foregoing, any Order may be terminated as follows:
- MTEA may terminate if Buyer commits a breach of this Agreement and Buyer fails to cure such breach to the satisfaction of MTEA within thirty (30) days of receiving notice of the same.
- Upon any of the following events, either Party may give notice of termination, effective immediately: (i) the other Party becomes insolvent or admits its inability to pay its debts generally as they come due; (ii) any sheriff, marshal, custodian, trustee, official or receiver is appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of the other Party’s property; (iii) a case is filed by the other Party under the U.S. Bankruptcy Code or any other insolvency law of any other country or jurisdiction; (iv) a case is filed against the other Party without such Party’s application or consent under the U.S. Bankruptcy Code or any other insolvency law of any jurisdiction, and such case continues undismissed for ninety (90) days; (v) the other Party makes a general assignment for the benefit of creditors; (vi) the other Party is dissolved or liquidated; or (vii) the other Party takes any corporate or other action to take any of the foregoing actions.
13.4 Upon termination of an Order for any cause other than MTEA’s breach, Buyer shall purchase from MTEA all Engine Product(s) and/or Spare Part(s) that are already on order or have already be Delivered.
- Upon termination of an Order by MTEA in accordance with the provisions hereof, all amounts payable by Buyer hereunder will be accelerated and will become due and payable immediately.
- The foregoing to the contrary notwithstanding, termination of an Order for any reason shall not operate to release either Party from any liability, whenever arising, attributable to an act or omission occurring prior to termination.
- Notwithstanding a termination of any Order, the provisions and obligations set forth in Section 7.5 and Articles 8 through 14 shall survive and remain effective and binding on the Parties.
ARTICLE 14 - MISCELLANEOUS
14.1 Force Majeure. Except for payment obligations, neither Party shall be liable to the other in any way for failure or delay in carrying out the terms of this Agreement resulting from any cause or circumstances beyond its reasonable control, including, for purposes of illustration, but not limited to, any act of God, fire, flood, earthquake, epidemics, war, terrorism, explosion, strike, labor difficulties, inability to obtain necessary labor, materials or utilities, interruptions of transportation and communication, accident, civil commotion and acts of any governmental authority; provided, however, that the Party so affected shall have given prompt written notice to the other Party hereto of any such event which has or which may have the effect of preventing or delaying its performance under this Agreement. No such failure or delay shall terminate this Agreement and each Party shall complete its obligations hereunder as promptly as reasonably practicable following the cessation of the cause or circumstances of such failure or delay; provided however, that in no event shall MTEA be responsible for expedited shipping as a result of force majeure or any delay caused by the Buyer.
14.2 Entire Agreement; Severability. This Agreement constitutes the entire understanding of the Parties with respect to the subject matter hereof and supersedes any prior agreements or understandings. This Agreement may be amended by the Parties only by an instrument in writing signed by an authorized officer on behalf of each of the Parties. If any term of this Agreement shall be held to be illegal, invalid or unenforceable by a court of competent jurisdiction, it is the intention of the Parties that the remaining terms and conditions of this Agreement shall constitute their agreement with respect to the subject matter hereof and all such remaining terms and condition shall remain in full force and effect.
14.3 Non-Waiver. Any failure by a Party to enforce at any time any term or condition of this Agreement shall not be considered a waiver of that Party’s right thereafter to fully enforce each and every term of this Agreement.
15.4 No Third Party Beneficiaries. No provision of this Agreement is intended nor shall be interpreted to provide or create any other third party beneficiary rights or any other rights of any kind in any present, prospective or former third party, and all provisions hereof shall be personal to the Parties hereto. Any third party beneficiary rights implied by law are hereby specifically excluded from this Agreement to the extent such rights may be excluded.
14.5 Notices. Any notice pursuant to the terms and conditions of this Agreement shall be in writing and either: (a) delivered personally; (b) sent by certified mail, return receipt requested; (c) sent by a recognized overnight mail or courier service with delivery receipt requested; (d) sent by e-mail with acknowledgement of receipt by recipient (provided that an out-of-office notice shall not constitute such acknowledgment); or (e) sent by facsimile transfer, to the contact information set forth in the Order.
14.6 Non-Assignability. Neither this Agreement nor any of the rights, interests, or obligations hereunder may be assigned by a Party without the prior written consent of the other Party, and any attempted assignment in contravention of this restriction shall be void; provided, however, that MTEA may assign its rights and delegate its duties to its parent or affiliates without the consent of Buyer.
14.7 Governing Law. This Agreement shall be governed by and construed in accordance with the law of the State of Illinois, United States, without giving effect to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply.
14.8 Dispute Resolution. Any dispute that cannot be amicably resolved by the Parties after reasonable good faith efforts shall be submitted binding arbitration before the American Arbitration Association in Chicago, Illinois. The number of arbitrators shall be three (3). The arbitrators shall have no authority to change the terms of this Agreement or to award punitive damages. Judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction; provided that the Parties hereby acknowledge, agree, request, and instruct any court, in any jurisdiction to which the judgment is entered, to honor the same in all respects. Any dispute or claim shall be deemed waived by Buyer unless the arbitration or other action is brought no later than one (1) year after the accrual of the cause of action. This period is established and is agreed to as being reasonable by the mutual agreement of the Parties. In the event Buyer institutes any proceedings other than as provided herein, Buyer shall assume all of MTEA’s costs in connection therewith, including but not limited to reasonable attorney’s fees. For the purposes hereof, Buyer submits to the jurisdiction of the federal and state courts located in Cook County or DuPage County, Illinois, and notice of process in connection with arbitral or judicial proceedings may be served upon Buyer by registered, certified or certified personal delivery mail with the same effect as if personally served. Notwithstanding the foregoing, with respect any breach of confidentiality under Article 11 above, the aggrieved Party may seek injunctive relief from any court of competent jurisdiction. EACH PARTY HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT.