Article 11. PRODUCTS RECALL
If TDK and its customer has recalled the whole or any part of Products, or any products incorporating Products, due to any Defect or Seller’s non-compliance with or breach of this Agreement, TDK may recover against Seller all expenses arising from such recall (including but not limited to the expense of collection, inspection, repair, replacement, adjustment, removal, disposal or other necessary measures).
Article 12. SET-OFF
TDK shall be entitled at all times to set off, against any amount payable at any time by TDK in connection with this Agreement, any amount owing at any time from Seller to TDK or any of the companies, which, directly or indirectly, are owned by TDK, own TDK or are under common control (hereinafter collectively called “Related Company”). For the purpose of this Agreement, “own” and “control” mean owning at least fifty percent (50%) of the outstanding shares.
Article 13. PROPRIETARY INFORMATION
TDK and Seller shall treat any information received from one another or granted in the course of performing this Agreement as proprietary information of the disclosing party and not disclose such information to third parties or use the information for its own benefit or the benefit of third parties without the prior written consent of the disclosing party, except that TDK shall be permitted to disclose such information to a Related Company on a strict need-to-know basis. This article shall not apply to information which:
(a) is now or subsequently becomes generally known or available through no wrongful act of the receiving party;
(b) is known to the receiving party at the time of receipt of the same from the disclosing party;
(c) is provided by the disclosing party to a third party without restrictions on disclosure;
(d) is subsequently rightfully provided to the receiving party by a third party without restriction or disclosure;
(e) is independently developed by the receiving party; or
(f) is disclosed pursuant to the requirement of a Government agency or disclosure is permitted
by operation of law.
Article 14. CHANGES TO PRODUCTS BY SELLER
Seller shall not make changes in any of the following, without the prior written consent of TDK:
(a) the drawings, designs or specifications;
(b) the material or the supplier of the material;
(c) the manufacturing process and equipment;
(d) the method of shipment or packing; or
(e) the original manufacturing location for the approved samples or prototype of the Products.
If Seller makes any changes without TDK’s prior written consent, TDK may recover damages arising out such changes. Furthermore, Seller acknowledges that any change without TDK’s prior written consent is a material breach of this Agreement.