systems, processes and internal controls; and
27.2.3
Distributor's inventory tracking and management systems.
27.3
Claims resulting from an audit, in favor of either party, shall be
limited to transactions occurring in the three (3) years immediately preceding
the audit.
If this Agreement is terminated for cause based on Distributor's
default, Distributor shall pay for the reasonable costs of such audit.
Xilinx's
right to audit shall survive the termination of this Agreement.
28.
GENERAL
28.1
INDEPENDENT CONTRACTORS.
IT IS UNDERSTOOD AND AGREED THAT XILINX
AND DISTRIBUTOR ARE INDEPENDENT CONTRACTORS AND EACH IS ENGAGED IN THE OPERATION
OF ITS OWN BUSINESS AND NEITHER WILL BE CONSIDERED THE AGENT OF THE OTHER FOR
ANY PURPOSE WHATSOEVER.
NOTHING CONTAINED IN THIS AGREEMENT WILL BE CONSTRUED
TO ESTABLISH A RELATIONSHIP THAT WOULD ALLOW EITHER PARTY TO MAKE
REPRESENTATIONS OR WARRANTIES ON BEHALF OF THE OTHER OR TO BIND THE OTHER EXCEPT
AS EXPRESSLY SET FORTH HEREIN.
28.2
NO ASSIGNMENT.
THIS AGREEMENT MAY NOT BE ASSIGNED IN WHOLE OR IN
PART BY EITHER PARTY WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER WHICH SHALL
NOT BE UNREASONABLY WITHHELD.
THIS AGREEMENT SHALL BE BINDING UPON AND INURE TO
THE BENEFIT OF THE PARTIES HERETO AND THEIR SUCCESSORS AND PERMITTED ASSIGNS.
28.3
Compliance with Local Law. Distributor, in all of its activities,
shall obey national and regional statutory requirements in the countries in
which it operates.
Should any of the requirements stated in this Agreement or
the Guidelines be in violation of the law in any country or territory, the local
law should always take precedence.
In such case, however, Distributor shall
notify Xilinx of the inability to comply.
28.4
ENTIRE AGREEMENT.
THIS AGREEMENT, THE EXHIBITS (INCLUDING THE NDA)
ATTACHED HERETO, AND ANY ADDENDUM AND PARTICIPATION AGREEMENTS CONSTITUTE THE
ENTIRE UNDERSTANDING OF THE PARTIES WITH RESPECT TO THE SUBJECT MATTER HEREOF
AND SUPERSEDE ALL PRIOR AGREEMENTS RELATING THERETO, WRITTEN OR ORAL, BETWEEN
THE PARTIES.
AMENDMENTS TO THIS AGREEMENT MUST BE IN WRITING, SIGNED BY THE
DULY AUTHORIZED OFFICERS OF THE PARTIES, SPECIFICALLY STATING THAT SUCH
AMENDMENTS ARE MADE PURSUANT TO THIS SECTION 28.4.
28.5
NO IMPLIED WAIVERS.
THE FAILURE OF EITHER PARTY AT ANY TIME TO
REQUIRE PERFORMANCE BY THE OTHER OF ANY PROVISION HEREOF SHALL NOT AFFECT THE
RIGHT OF SUCH PARTY TO REQUIRE PERFORMANCE AT ANY TIME THEREAFTER, NOR SHALL THE
WAIVER OF EITHER PARTY OF A BREACH OF ANY PROVISION HEREOF BE TAKEN OR HELD TO
BE A WAIVER OF A PROVISION ITSELF.
28.6
SEVERABILITY.
ANY PROVISION OF THIS AGREEMENT WHICH IS PROHIBITED
OR UNENFORCEABLE IN ANY JURISDICTION SHALL, AS TO SUCH JURISDICTION, BE
INEFFECTIVE TO THE EXTENT OF SUCH PROHIBITION OR UNENFORCEABILITY WITHOUT
INVALIDATING THE REMAINING PROVISIONS HEREOF IN THAT JURISDICTION OR AFFECTING
THE VALIDITY OR UNENFORCEABILITY OF SUCH PROVISION IN ANY OTHER JURISDICTION.
28.7
SURVIVORSHIP.
ALL OBLIGATIONS AND DUTIES HEREUNDER WHICH SHALL BY
THEIR NATURE EXTEND BEYOND THE EXPIRATION OR TERMINATION OF THIS AGREEMENT,
SHALL SURVIVE AND REMAIN IN EFFECT BEYOND ANY EXPIRATION OR TERMINATION HEREOF.
XILINX CONFIDENTIAL
Note: Confidential treatment has been