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These standard terms and conditions of purchase (the “Standard Terms”) shall govern, and be deemed incorporated into, the agreement to which these Standard Terms are attached between the Company and the Supplier for the purchase by the Company of Goods (the “Agreement”) to the exclusion of any terms and conditions of the Supplier, all of which are expressly rejected. These Standard Terms and the Agreement shall together comprise the “Contract”. In the event of any inconsistency, ambiguity, or conflict between the Agreement and these Standard Terms, the former shall control. The Supplier’s written acceptance of an Order, or shipment of Goods under an Order, or commencement of performance under an Order, shall be deemed acceptance of these Standard Terms and the Supplier’s agreement to be bound thereby. Any forms used by the Supplier to acknowledge an Order shall be for administrative purposes only and shall have no force or effect. No addition to or modification of these Standard Terms shall be binding on the Company unless specifically agreed to in writing. These Standard Terms may not be supplemented or changed by any course of performance, course of dealing, or trade usage.
The Company reserves the right to modify these Standard Terms at any time and from time to time to reflect changes in relevant laws and regulatory requirements and any other circumstances which are reasonable in the Company’s opinion. If the Company modifies these Standard Terms, the Company will post the modification on its website and/or notify the Supplier of the modified Standard Terms. The Company will also update the “last updated” date in these Standard Terms. Every time the Company orders Goods from the Supplier, the then current version of the Standard Terms published on the Company’s website or previously notified by the Company to the Supplier will apply to the applicable Order.
1. DEFINITIONS AND INTERPRETATION
1.1 In these Standard Terms, unless the context otherwise requires, the following terms shall have the following meanings:
"Affected party" has the meaning ascribed to it in Section 15.1 below;
"Business Day" means a day other than a Saturday, Sunday or a bank holiday in the United States of America;
"Business Hours" means the period between 9:00 a.m. and 5:00 p.m. during any Business Day;
"Commencement Date" has the meaning ascribed to it in the Agreement;
"Company" means Duraco Specialty Tapes LLC;
"Confidential Information" has the meaning ascribed to it in Section 23 below;
"Contract Manager" means the individual appointed by each Party to act as its contract manager for the purposes of the Contract as set out in the Agreement (or as otherwise notified to the other Party from time to time);
“Data Protection Laws” means any privacy or data protection laws or regulations, including but not limited to the Federal Trade Commission Act and the California Consumer Privacy Act, and all other related laws, regulation and statutory orders and all legislation and regulation having equivalent or similar effect anywhere in the world;
"Delivery Address" means the address to which the Goods are to be delivered, as stated on the relevant Order or, if no such address is stated, such location within the United States as the Company may notify the Supplier;
"Delivery Date" means the date on and the time at which the delivery of the Goods shall be made as stated on the relevant Order or in any delivery instructions relating thereto;
"Dispute" means any dispute or claim arising out of, or in connection with, the Contract or in respect of the legal relationships established by the Contract;
"Export Controls" means all laws, regulations, codes and controls on the import and export of goods and services in and out of a country or relevant administrative area or applied by reason of the country of origin of the Goods or part of them, including the United States’ Export Administration Regulations, the International Traffic in Arms Regulations, the country sanctions and lists of sanctioned individuals and entities maintained by the Department of Treasury, and other similar lists and laws maintained in other countries where the Supplier and the Customer do business, each as amended, supplemented or substituted from time to time;
"Force Majeure Event" has the meaning ascribed to it in Section 15.1 below;
"Good Industry Practice" means the exercise of skill, diligence, prudence and foresight as would reasonably and ordinarily be expected from a person with appropriate skill and experience exercising all due care and attention in seeking to comply with its contractual obligations and in compliance with all applicable laws and engaged in the same type of undertaking and under the same or similar circumstances and conditions as those in which the relevant matter arises;
"Goods" means the goods (including any part or component thereof) agreed to be purchased by the Company from the Supplier and described in the relevant Order;
"Intellectual Property Rights" means inventions, trademarks, service marks, trade and business names, trade dress, domain names, design rights, copyrights, moral rights, database rights, patents, logos, trade secrets, rights in Confidential Information and other intellectual property rights, in each case whether registered or unregistered and including applications for the grant of any of the foregoing and all rights or forms of protection having equivalent or similar effect to any of the foregoing which may exist anywhere in the world;
"Loss" means any loss (including, without limitation, loss of revenues and loss of profit), liability, damages, costs, claims or expenses (including but not limited to reasonable attorney’s fees, expert’s fees and expenses of litigation), whether direct, indirect or consequential;
"Order" means any order placed by the Company for the supply of Goods by the Supplier;
"Personnel" means any members, directors, officers, employees, agents, contractors, sub-contractors, sub-licensees, delegates or professional advisers of a Party or of any other member of its Group;
"Price" has the meaning ascribed to it in Section 4.1 below;
"Relevant Policies" has the meaning ascribed to it in Section 19.1.3 below;
"Relevant Requirements" has the meaning ascribed to it in Section 19.1.1 below;
"Relevant Terms" has the meaning ascribed to it in Section 19.2 below;
"Restricted Party" means a person or entity that is listed on, owned or controlled by, or acting on behalf of, a person listed on a Sanctions List, or otherwise a subject of Sanctions;
"Sanctioned Country" means any country or other territory that is subject to any Sanctions;
"Sanctions" means any trade, economic or financial sanctions laws, regulations, embargoes or restrictive measures administered, enacted or enforced by a Sanctions Authority;
"Sanctions Authority" means the Department of State, the Department of Commerce, the Department of the Treasury and the Office of Foreign Assets Control of the United States of America and any other relevant governments, departments, authorities, institutions or agencies;
"Sanctions List" means the Specially Designated Nationals and Blocked Persons list maintained by the United States’ Department of the Treasury, Office of Foreign Assets Control, the Consolidated List of Financial Sanctions Targets maintained by the U.K. Treasury, or any similar list maintained by or public announcement of a Sanctions designation made by, a Sanctions Authority, each as amended, supplemented or substituted from time to time;
"Specification" means any plans, descriptions, drawings, data or other like material or information supplied by the Company, specifically devised or created by the Supplier in connection with an Order, or agreed in writing by the Company relating to the Company’s requirements for the Goods;
"Supplier" has the meaning ascribed to it in the Agreement;
"Term" has the meaning ascribed to it in the Agreement;
1.2 Unless the context otherwise requires, references in these Standard Terms to: (a) any of the masculine, feminine and neuter genders shall include other genders; (b) the singular shall include the plural and vice versa; (c) a “person” shall be construed as a reference to any individual, firm, company (including, without limitation, a limited liability company), corporation, government, state or agency of a state or any association or partnership (whether or not having separate legal personality) of two or more of the foregoing; (d) a “company” shall include a reference to any type of entity; (e) a “Group” shall, in relation to any company, be construed as a reference to that company and any direct or indirect parent of that company, all subsidiaries of that company, and any affiliated companies under common control with that company from time to time; (f) a “Party” shall mean a party to the Contract and “Parties” shall be construed accordingly; (g) any time or date shall be construed as a reference to the time or date prevailing at the applicable Customer location in the United States; and (h) any statute or statutory provision shall, unless the context otherwise requires, be construed as a reference to such statute or statutory provision (including all instruments, orders or regulations made thereunder or deriving validity therefrom) as in force at the date of the Agreement and as subsequently amended, consolidated, modified, extended, re-enacted or replaced.;
1.3 The headings in these Standard Terms are for convenience only and shall not affect their meaning.
1.4 References to a clause, Appendix or paragraph are (unless otherwise stated) to a clause of or Appendix to these Standard Terms or to a paragraph of the relevant Appendix. Any Appendices attached hereto or referenced herein form part of these Standard Terms and shall have the same force and effect as if expressly set out in the body of these Standard Terms.
2. TITLE TO GOODS
It is a condition of the Contract that the Supplier has, and will have on the Delivery Date, full and unencumbered title to all the Goods and will have on the Delivery Date the full and unrestricted right, power and authority to sell, transfer and deliver all the Goods to the Company, at which point the Company will acquire valid and unencumbered title to them.
3. DESCRIPTION OF GOODS
3.1 The quantity, quality and description of the Goods shall, subject to these Standard Terms, be as specified in the relevant Order and/or in any relevant Specification.
3.2 Upon request from the Company from time to time, the Supplier shall furnish to the Company a certificate, in form and substance reasonably acceptable to the Company, verifying that the Supplier’s representations and warranties regarding the Goods are true, correct, and complete.
3.3 The Supplier shall promptly furnish to the Company, in the form and with such detail as the Company may reasonably direct, (a) a list of all ingredients and materials contained in the Goods and the amount of such ingredients and materials, (b) information regarding any changes in or additions to such ingredients and materials, and (c) all instructions, warnings, and disclosures related to the Goods as required by applicable law. Prior to and with each shipment of Goods, the Supplier shall provide to the Company sufficient notice and warning in writing (including, but not limited to, appropriate labels on the goods, containers and packing) of any hazardous material that is an ingredient in the Goods or a part of the Goods, together with safety data sheets as required by applicable law or as requested and special handling instructions as may be necessary to advise carriers, the Company, and their respective employees of the proper handling, transportation, processing, use or disposal of the Goods, containers and packing delivered to the Company.
4. PRICE AND PAYMENT
4.1 The price of the Goods (the “Price”) shall be as stated in the Agreement or the relevant Order and, unless otherwise agreed, shall be inclusive of all duties, taxes and levies (excluding any applicable sales or value added or similar tax) and all charges for packaging, shipping, carriage, unloading, insurance and delivery of the Goods to the Delivery Address. Except as may be specifically stated otherwise in the Agreement, all Prices are for Goods delivered F.O.B. at the Delivery Address.
4.2 No variation in the Price may be made by the Supplier unless otherwise agreed in writing with the Company.
4.3 The Supplier shall be entitled to invoice the Company on or at any time after delivery of the Goods and each invoice shall quote the number of the Order to which such delivery relates. Subject to the Company’s acceptance of the Goods pursuant to Section 9.4 below, payment by the Company shall be within forty-five (45) days of the date of receipt of any proper invoice. If the Company is required to pay freight charges they must be shown as a separate item on the invoice and the paid freight bill or receipt must be attached to the invoice. If the Company disputes any portion of an invoice, the Company shall be entitled to pay the undisputed portion only without incurring liability to the Supplier for nonpayment.
4.4 Without prejudice to any other right or remedy, the Company shall be entitled to set off against the Price any sums owed to the Company or any member of its Group by the Supplier under the Contract (including any rebate, reimbursement or similar right to which the Company becomes entitled under the Contract) or under any other agreement or arrangement between the Company or a member of its Group and the Supplier.
4.5 In no circumstances shall the time for payment be of the essence of the Contract.
5. DELIVERY / PERFORMANCE
5.1 Delivery of the Goods shall be made to the Delivery Address (or such other place as is agreed by the Company in writing prior to delivery or performance) on the Delivery Date. If the Delivery Date is to be specified by the Supplier after the placing of the relevant Order, the Supplier must give the Company reasonable notice of the specified date.
5.2 The time of delivery of the Goods is of the essence of the Contract and, as such, if the Supplier fails to deliver the Goods on or immediately before the Delivery Date, the Company may release itself from any obligation to accept and pay for the Goods and/or may terminate the Contract, in either case without prejudice to any of the Company’s other rights and remedies.
5.3 Upon delivery at the Delivery Address, the Supplier shall off-load the Goods at its own risk as directed by the Company or its Personnel. The point of delivery shall be when the Goods are removed from the transporting vehicle at the Delivery Address. Unless otherwise provided in the Contract, delivery shall include the unloading and stacking of the Goods by the Supplier’s Personnel as directed by the Company and or its Personnel.
5.4 The delivery of the Goods shall be carried out in accordance with the relevant Order or any delivery instructions relating thereto. The Supplier shall promptly supply the Company in with any instructions, documentation (including proof of delivery documentation) and other information it may reasonably require to enable the Company to accept delivery of the Goods, or otherwise as the Company may specify from time to time to the Supplier.
5.5 The Company may request that delivery be made in installments. In such circumstances, the Contract will be treated as a single contract and not severable and breach in relation to any installment, of whatsoever nature, shall entitle the Company, at its option and without prejudice to any other rights or remedies it may have, to terminate the Contract, and/or to claim damages.
5.6 The Supplier shall, at no additional cost to the Company, package all Goods in accordance with the requirements specified in the Agreement or, if no such requirements are specified, in accordance with standard commercial practices. Each shipment shall contain a packing list indicating purchase order number, item numbers, and other identifying information corresponding to that set forth in the relevant Order. The Company is not obliged to return to the Supplier any packaging or packing materials used in relation to the Goods.
5.7 Prior to shipment, each package containing Goods to be delivered shall be clearly marked with the Company’s purchase order number, shipping symbols, serial numbers, weights, measurements and other means of identification as the Company may direct or as may reasonably be necessary to facilitate proper delivery.
6. PASSING OF TITLE AND RISK
6.1 Without prejudice to the Company’s rights and remedies (including, without limitation, the Company’s right of rejection under Section 9 below), title to the Goods shall pass to the Company upon delivery (or payment of the Price, if earlier).
6.2 Without prejudice to the Company’s rights and remedies (including, without limitation, the Company’s right of rejection under Section 9 below), risk in the Goods shall remain with the Supplier until such time as the Goods are delivered to the Company and are found to be in accordance with the requirements of the relevant Order and any relevant Specification.
7. NON-DELIVERY / NON-PERFORMANCE
7.1 If the Supplier fails to deliver the Goods (or any part thereof) on or immediately before the Delivery Date or such other time as is specified in the Contract, the Company shall, without prejudice to any other rights or remedies it may have, be entitled to:
7.1.1 require the Supplier to deliver substitute goods free of any additional charge within the time period(s) specified by the Company (which substitute goods shall correspond to the Order and (if applicable) Specification with which the Supplier failed to comply); or
7.1.2 require the Supplier to refund the Price pro rata to the volume of the Goods which were not delivered; or
7.1.3 terminate the Contract, purchase other goods of the same or similar description, and recover from the Supplier the amount by which the cost of so purchasing exceeds the Price which would have been payable to the Supplier in respect of the Goods replaced by such purchase.
7.2 The Supplier recognizes that late or short delivery, or delivery of defective Goods, may cause the Company direct, indirect and/or consequential loss and/or loss of profits (including, by way of example, loss arising from the Company’s inability to meet other contractual commitments) for which the Supplier agrees to be liable under these Standard Terms.
8. CHANGE MANAGEMENT / CANCELLATION OF ORDERS
8.1 Any proposal by the Supplier to alter the quantity, quality and description of the Goods must be made to the Company in writing and approved by the Company in writing prior to the Goods being dispatched.
8.2 The Company may by reasonable notice in writing to the Supplier at any time before the Delivery Date postpone delivery of the Goods, change the Delivery Address, or alter the quantity or volume of Goods to be provided. In such circumstances, the Supplier shall use all reasonable efforts to accommodate such request and, if unable to do so, shall promptly notify the Company accordingly, whereupon the Company shall have the right to cancel in whole or in part the Order to which such requested amendment related.
8.3 The Company shall be entitled to cancel an Order in whole or in part by giving notice to the Supplier at any time prior to delivery, in which event the Company’s sole liability shall be to pay to the Supplier a reasonable price for any work already completed by the Supplier, but the Company shall otherwise be free from liability.
9. INSPECTION, TESTING, REJECTION AND DEFECTS
9.1 The Company and its Personnel shall have the right to inspect and test the Goods at any time prior to delivery.
9.2 The Company reserves the right to reject any Goods that are faulty or any Goods that do not conform to the quality, standard or description specified in the relevant Order or any relevant Specification. The Company shall be under no obligation to accept or pay for any Goods delivered in excess of the quantity specified in any Order. Any Goods which are rejected will be disposed of and will not be returned to the Supplier.
9.3 The Supplier shall be responsible for any defects and for any non-conformity of Goods with the relevant Order or any relevant Specification. The Supplier shall promptly inform the Company of any adverse safety or other quality defects affecting the Goods, whether discovered before or after delivery, and of any evidence of which it becomes aware indicating that a safety or quality defect may exist or arise.
9.4 Without limiting the Company’s rights under Section 12.5 below, the Company shall not be deemed to have accepted the Goods (even where physical delivery occurs) until such time as the Company has had a reasonable opportunity to examine the Goods following delivery, and all Goods supplied are, in any event, only accepted contingently upon their being in full conformity with the relevant Order and any relevant Specification. Acceptance shall not prejudice any of the Company’s other rights in respect of the Goods or any fault therein and, in particular, in respect of hidden defects: (i) which could be observed only after use or close inspection (which inspection may not take place until a time subsequent to actual receipt); or (ii) which may not be apparent or discovered by inspection at the time of delivery, but which may be discovered at a later date. Neither payment of the Price by the Company nor the issue by the Company of a receipt in respect of the Goods shall constitute any admission of due performance by the Supplier.
9.5 If the Supplier discovers any defect in any of the Goods, the Supplier must immediately notify the Company in writing and in reasonable detail about the defect. If it is determined that a recall is warranted, or if any governmental authority orders or requests a recall, the Supplier shall provide prompt written notice thereof to the Company and comply with all applicable laws affecting the Goods, and the Company shall have the rights set forth in Section 12.5 below with respect to non-compliant goods.
10. INTELLECTUAL PROPERTY
10.1 The Supplier shall not use any Intellectual Property Rights owned by the Company and/or licensed to the Company without the Company’s prior written consent.
10.2 Any Intellectual Property Rights in any Specification shall be the exclusive property of the Company and the Supplier agrees, at its own expense, to execute all such further documents and do all such further acts as the Company may reasonably request to ensure that all such rights are transferred to the Company. The Supplier acknowledges and agrees any such Specifications are prepared and created on a “work for hire” basis and shall become the property of the Company upon receipt of the Goods or upon earlier termination of the Agreement, and shall be delivered to the Company by Supplier in both printed and electronic forms to the Company’s reasonable satisfaction, including without limitation in .PDF and Auto-CAD formats.
10.3 To the extent required, the Supplier shall obtain for the Company a royalty-free, perpetual, worldwide license sufficient for the Company, its customers or any member of its Group to make use of the Goods in the manner intended, and to copy, display, and disseminate all or any part of any images, data, or other information about the Goods.
10.4 Where any Goods are to be supplied to the Company in packaging which incorporates the Company’s labels and/or marks and/or those of its customers, the Company shall ensure that the Supplier is granted a non-transferable, non-assignable, non-sub licensable, royalty-free, revocable license to use such labels or marks for the sole purpose of performing its obligations under the Contract; provided that, if such Goods are rejected by the Company or not delivered by the Supplier (for whatever reason), the Supplier agrees that, prior to resale elsewhere, the Supplier shall completely remove the relevant labels, marks and any packaging that would identify the Company or its customers.
11.1 The Supplier shall for the duration of the Term, at its own cost and for the benefit of itself and the Company, maintain in full force and effect suitable insurance policies with reputable insurance providers to cover any and all potential liabilities that may arise under or in connection with the Contract in the amounts and with the coverages specified in the Agreement (or such other amounts or coverages as may be agreed in writing between the Company and the Supplier). The Supplier shall at all times ensure that the Company’s interest is noted on each insurance policy or that a generic interest clause has been included.
11.2 The Supplier’s insurance policies shall contain a provision that they shall not be cancelled or materially changed without thirty (30) days’ prior written notice to the Company. The Supplier’s workers’ compensation and employers’ liability policy will contain a waiver of subrogation by the Supplier and its insurance company in favor of the Company (to the extent permitted by applicable state law). The insurance policies shall also indicate that the Company has been included as an additional insured under the policies (excluding workers’ compensation and employers’ liability), and that they are considered primary coverage with respect to any other insurance maintained by the Company, and such other insurance shall be considered non-contributing and excess coverage only. The Supplier shall promptly supply to the Company on demand such evidence as the Company may require to show that each insurance policy is in full force and effect and that all necessary premiums have been paid.
11.3 If the Supplier shall fail to take out insurance in accordance with Section 11.1 or to produce sufficient evidence (in the opinion of the Company) that each insurance policy is in full force and effect in accordance with Section 11.2, the Company shall be entitled, at the Supplier’s expense, to take out and maintain such insurance, and the Supplier shall reimburse the Company on demand for its expenses in doing so.
11.4 The Supplier shall, where applicable, hold all insurance proceeds payable pursuant to this Section 11 in trust for the Company.
12. REPRESENTATIONS, WARRANTIES AND LIABILITY
12.1 The Supplier acknowledges that the Company sells products throughout the United States and the world, that its customers include manufacturers, distributors, retailers, and end users, and that all or part of the Goods may be included or incorporated in the Company’s products. The Supplier represents and warrants to the Company that, as of the Delivery Date, the Goods (including the manufacture and sourcing thereof and of any components incorporated therein):
12.1.1 will be of satisfactory quality;
12.1.2 will be free from defects in design, substance and workmanship, be merchantable, be non-infringing on the Intellectual Property Rights of any third party, and be fit for the purposes held out by the Company or made known to the Supplier in writing prior to, or upon placement of, the Order;
12.1.3 will conform in all respects to the relevant Order and any relevant Specification or sample, and all weights, measurements, sizes, and descriptions attached to or otherwise indicated on or with respect to the Goods are accurate and complete;
12.1.4 are properly registered for sale and the Supplier is properly registered in every jurisdiction in which registration is required for the Goods to be lawfully sold;
12.1.5 contain no asbestos or other hazardous materials, unless disclosed to the Company in writing, along with relevant material safety data sheets;
12.1.6 to the extent produced in a country that is party to NAFTA or any successor agreement thereto, the tariff reductions and exemptions provided thereunder for goods of the type included in an applicable Order will apply to the Goods; and
12.1.7 will comply with all applicable laws, regulations and codes of practice relating to their production and their subsequent use or resale by the Company (including without limitation those expressly referenced in Section 12.2 below), including without limitation with respect to design, manufacture, marketing, labeling, sale, and shipment. The Supplier recognizes that the placing of any Order by the Company has been done in reliance upon the skill and expertise of the Supplier and any statements and representations made by it. The Supplier shall inform the Company in writing of any applicable laws that prohibit or restrict sales of the Goods in any jurisdiction or for any particular use.
12.2 The Supplier represents and warrants to the Company that, throughout the Term, the Supplier shall comply with all applicable legal and regulatory requirements and codes of practice relating to its activities under the Contract together with the requirements of any governmental or regulatory authority, as they may change from time to time, and that the Supplier will obtain and maintain all appropriate registrations, licenses and authorizations in respect of the exercise of its rights and the performance of its obligations under the Contract. The Supplier shall keep the Company informed of all such laws, regulations, codes of practice and requirements as they shall from time to time be amended. The Supplier represents and warrants to the Company that all Goods will comply with, and be manufactured, priced, sold and labeled in compliance with, all applicable U.S. and foreign federal, state and local laws, codes, rules, regulations, orders and ordinances relating to the manufacture, labeling, transportation, importation, exportation, licensing, approval or certification of the goods and services, including, without limitation, environmental protection, energy and labor laws and regulations and applicable industry codes and standards. Without limiting the generality of the above, this order may be subject to the equal employment opportunity and affirmative action provisions of Executive Order 11246; Section 503 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 793); and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974, as amended (38 U.S.C. 4212). To the extent required by law, this order incorporates by reference the provisions contained in the regulations of the Office of Federal Contract Compliance Programs in the “Equal Employment Opportunity” clause, 41 CFR 60-1.4(a)(1)-(7), the “Affirmative Action for Disabled Workers” clause, 41 CFR 60-741.5(a)-(f), and the “Affirmative Action for Disabled Veterans and Veterans of the Vietnam Era” clause, 41 CFR 60-300.5(a). These clauses, if applicable, are to be applied in conformity with Seller’s obligations under Title VII of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e et seq.). In addition, and without limiting the above requirements, all Goods shall conform to the requirements of the Occupational Safety and Health Act of 1970, the Construction Safety Act of 1969, all regulations under such acts, and all other applicable U.S. and foreign federal, state and local laws, regulations, and standards relating to safety and health..
12.3 The Supplier represents and warrants to the Company that, throughout the Term, the Supplier shall comply with all policies and procedures of the Company that are notified by the Company to the Supplier from time to time.
12.4 The Supplier represents and warrants to the Company that the Supplier shall perform its obligations under the Contract in accordance with Good Industry Practice and in compliance with all applicable laws. Without limiting the generality of the foregoing, the Supplier shall consistently apply at all times the experience, resources and competence to execute its obligations under and in accordance with the Contract as would be expected of a prudent and experienced supplier of similar goods or provider of similar services.
12.5 Without prejudice to any other remedy the Company may have, if any Goods supplied are not in compliance with the warranties given in Sections 12.1, 12.2, 12.3, or 12.4, or shall prove not to be in compliance with such warranties within twelve months following the Delivery Date, the Company shall be entitled in its sole and absolute discretion to:
12.5.1 require the Supplier to deliver substitute goods free of any additional charge within the time period(s) specified by the Company (which substitute goods shall correspond to the Order and (if applicable) Specification with which the Supplier failed to comply);
12.5.2 require the Supplier to refund the Price pro rata to the volume of the Goods which were not in compliance; or
12.5.3 terminate the Contract, purchase other goods of the same or similar description, and recover from the Supplier the amount by which the cost of so purchasing exceeds the Price which would have been payable to the Supplier in respect of the Goods replaced by such purchase.
12.6 Nothing in these Standard Terms or otherwise shall operate to exclude any warranty (express or implied), guarantee, or condition on the part of the Supplier as to quality, non- infringement, merchantability, fitness for a particular purpose or any other matter implied by common law statute, custom of the trade, or otherwise, all of which warranties, guarantees and conditions shall accordingly apply.
12.7 Goods replaced in accordance with Sections 7.1.1 or 12.5.1 shall be subject to the provisions of the Contract in the same manner as those originally delivered under the Contract.
12.8 If the Supplier refuses or fails to repair or replace the Goods when requested under Sections 7.1.1 or 12.5.1, the Company may purchase other goods of the same or similar description and recover from the Supplier the amount by which the cost of so purchasing exceeds the Price which would have been payable to the Supplier in respect of the Goods replaced by such purchase.
12.9 To the fullest extent permitted by law, the Supplier shall indemnify, defend, and hold the Company and its Personnel harmless from and against any and all actual or threatened Loss suffered or incurred by the Company and/or its Personnel arising out of or in connection with the following:
12.9.1 any breach of representation or warranty given by the Supplier in the Contract or any failure by the Supplier or its Personnel to comply with their obligations under the Contract;
12.9.2 any claim or potential claim that the Goods infringe, or their importation, use or resale infringes, the Intellectual Property Rights or the rights in Confidential Information of any other person or any other third party rights;
12.9.3 any death or personal injury, or damage to property, caused by the Supplier, its Personnel or by the Goods, except to the extent caused solely by the Company’s gross negligence or intentional wrongful acts; or
12.9.4 any breach of this Agreement by Supplier.
13.1 Without limiting its other rights and remedies, the Company shall be entitled to terminate the Contract with immediate effect by giving notice to the Supplier if any of the following occurs:
13.1.1 the Supplier commits a material breach of the Contract and, where such breach is remediable, fails to remedy such breach within fourteen (14) days after receipt of a notice from the Company specifying the breach and requiring it to be remedied;
13.1.2 the Supplier commits a material breach of the Contract that is incapable of remedy;
13.1.3 the Supplier ceases or threatens to cease to carry on its business or disposes or threatens to dispose of the whole or a substantial part of its business, property or assets or stops or threatens to stop payment of its debts in the reasonable opinion of the Company;
13.1.4 the Supplier becomes insolvent, makes an assignment for the benefit of creditors, or files, becomes the subject of, or acquiesces in a petition filed in any court in the nature of a bankruptcy, reorganization, composition, extension, arrangement or insolvency proceeding (unless, in the case of a petition filed against the Supplier, the same is dismissed within sixty (60) days);
13.1.5 any steps are taken or any action or proceedings are instituted by the Supplier or by any other party including, without limitation, any court or governmental body of competent jurisdiction, for the dissolution, winding up or liquidation of the Supplier or the assets thereof;
13.1.6 a receiver, manager, custodian or any other party having similar powers is appointed on behalf of the Supplier or any of its assets, or notice to appoint a receiver or similar party is given by the Supplier;
13.1.7 any event in a jurisdiction outside the United States similar or analogous to any of the events referred to in Sections 13.1.3, 13.1.4, 13.1.5 or 13.1.6 occurs in relation to the Supplier;
13.1.8 the Supplier is affected by a Force Majeure Event that continues for a period of not less than 30 days, which prevents the Supplier from performing all, or a material part of, its obligations under the Contract; or
13.1.9 there is a change in the control of the Supplier which the Company, in its absolute discretion, considers unsuitable.
13.2 Without prejudice to any unfulfilled Orders already placed by the Company, the Company may terminate the Contract at any time by giving not less than thirty (30) days’ notice to the Supplier, in which event the Company’s sole liability shall be to pay to the Supplier a reasonable price for any work already completed by the Supplier in relation to any unfulfilled Orders, but the Company shall otherwise be free from liability. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL THE COMPANY BE LIABLE TO THE SUPPLIER FOR ANY CONSEQUENTIAL, INCIDENTAL, TREBLE, INDIRECT, SPECIAL OR PUNITIVE DAMAGES, WHETHER BASED ON STATUTORY OR COMMON LAW, INCLUDING, BUT NOT LIMITED TO, LOSS OF PROFITS, AND SUPPLIER HEREBY DISCLAIMS AND WAIVES ANY CLAIMS TO SUCH DAMAGES.
13.3 Upon the expiration or termination of the Contract, the Contract shall cease and be void, except that the provisions of Sections 1, 11.4, 12, 13.2, 13.3 and Sections 14 to 34 (inclusive) shall survive termination.
14. CONSEQUENCES OF TERMINATION
14.1 Upon the expiration or termination of the Contract (regardless of the time at which or the manner in which it ends), the Supplier shall:
14.1.1 at its own expense return to the Company (or, at the Company’s request, destroy) all Confidential Information; and
14.1.2 so far as reasonably practicable and at Supplier’s own expense, undertake such tasks and provide such assistance and information as the Company may reasonably request to ensure an orderly transition to a replacement supplier of goods (if appropriate).
14.2 The expiration or termination of the Contract (regardless of the time at which or the manner in which it ends) shall be without prejudice to:
14.2.1 any other rights which either Party may have under the Contract;
14.2.2 any rights and liabilities accrued prior to the date on which the expiration or termination takes effect; and
14.2.3 any rights or obligations of either Party that are expressly stated to survive, or by their nature survive, expiration or termination of the Contract, provided that the Company shall have no liability whatsoever to the Supplier for any Loss resulting from, or in connection with, the termination of the Contract under Sections 5.5, 7.1, 13.1, 19, or 22.6.
15. FORCE MAJEURE
15.1 In this Section 15, “affected party” shall mean the Party seeking to invoke Section 15.2, and a “Force Majeure Event” shall mean any event or circumstance that is beyond the reasonable control of the affected party, including, but not limited to, flood, lightning, subsidence, terrorist act, fire, war, failure or shortage of power supplies, acts of government and industrial action of any kind (not involving the Personnel of the affected party).
15.2 The affected party shall not be under any liability to the other Party for any failure or delay in performing the Contract or any part of it to the extent that such failure or delay is caused by a Force Majeure Event, and the affected party shall be entitled to a reasonable extension of time for performing its relevant obligations.
15.3 The affected party shall:
15.3.1 within two Business Days of a Force Majeure Event occurring, provide the other Party with full written details of the nature and extent of the Force Majeure Event in question, including the affected party’s best estimate of the likely extent and duration of its inability to perform its obligations under the Contract as a result of such Force Majeure Event, and, thereafter, promptly provide any further information which the other Party reasonably requires;
15.3.2 use all reasonable efforts to avoid or minimize the consequences of the Force Majeure Event in question and carry out its obligations and duties in such other ways as may be reasonably practicable; and
15.3.3 use all reasonable efforts to bring the Force Majeure Event in question to a close as soon as reasonably practicable.
16. INDEPENDENT CONTRACTOR
The Parties acknowledge that in performing their obligations hereunder, each Party is acting as an independent contractor. Nothing in this Contract shall be construed to create a relationship of partnership, joint venture, agency, employment, franchise or other similar arrangement between the parties. Neither Party has the authority to enter into any agreement, or make any warranty or representation on behalf of the other Party, except where and to the extent specifically authorized to do so in writing. To the extent that either Party utilizes its employees for the performance of its duties pursuant to this Contract, that Party shall be solely responsible for the payment of salaries and wages to such employees and matters relating thereto (including the withholding and payment of all federal, state and local income and other payroll taxes), workers compensation, disability benefits, and all such other legal requirements of like nature applicable to such employees.
17. ACCESS TO INFORMATION
The Supplier will permit the Company, its authorized representatives and/or its authorized agents in reasonable numbers to enter the premises of, and to have access to, all documents and information kept by the Supplier, whether electronically (and in such case in machine-readable form and format) or otherwise, relating to the supply of the Goods, during Business Hours on no less than forty-eight (48) hours’ notice, for the purposes of ascertaining whether the Supplier is complying with its obligations under the Contract.
The Supplier shall require its Personnel to undertake all training as reasonably requested by the Company from time to time in connection with the supply of Goods.
19. ANTI-CORRUPTION COMPLIANCE
19.1 Notwithstanding the Supplier’s general compliance obligations under Sections 12.2 and 12.3, the Supplier shall:
19.1.1 comply with all applicable laws, statutes, regulations and codes relating to anti-bribery and anti-corruption, including but not limited to the United States Foreign Corrupt Practices Act (the “Bribery Act”) or any equivalent legislation in any other jurisdiction to which the Supplier is subject (the “Relevant Requirements”);
19.1.2 not engage in any activity, practice or conduct which would constitute an offense under the Bribery Act;
19.1.3 comply with any Anti-Corruption Policy adopted by the Company from time to time and provided to the Supplier (the “Relevant Policies”);
19.1.4 have and maintain in place throughout the Term its own policies and procedures, including adequate procedures under the Bribery Act or any equivalent legislation in any other jurisdiction to which the Supplier is subject, to ensure compliance with the Relevant Requirements, the Relevant Policies and this Section 19.1 and enforce them where appropriate;
19.1.5 promptly report to the Company any request or demand for any undue financial or other advantage of any kind received by the Supplier in connection with the performance of the Contract; and
19.1.6 provide such supporting evidence of compliance as the Company may reasonably request, including, before the end of the Term, certifying to the Company in writing (signed by a duly authorized officer of the Supplier) the Supplier’s compliance with this Section 19.
19.2 The Supplier shall ensure that any person associated with the Supplier who is providing goods or performing services in connection with the Contract does so only on the basis of a written contract that imposes on and secures from such person terms equivalent to those imposed on the Supplier in this Section 19.1 (the “Relevant Terms”). The Supplier shall be responsible for the observance and performance by such persons of the Relevant Terms and shall be directly liable to the Company for any breach by such persons of any of the Relevant Terms. For the purposes of this Section 19, a person associated with the Supplier includes any of its Personnel.
19.3 The Supplier’s breach of this Section 19 shall be deemed a material breach of the Contract incapable of remedy which shall entitle the Company to terminate the Contract with immediate effect in accordance with Section 13.1.2 above; provided that such termination shall not prejudice or affect any right of action or remedy which shall have accrued or shall accrue thereafter to the Company; and provided further that the Company may recover from the Supplier the amount or value of any gift, consideration or commission deemed to be the cause of, or contributory to, the breach.
19.4 For the purposes of this Section 19, whether a person is associated with another person shall be as reasonably determined by the Company.
20. DATA PROTECTION
20.1 The Parties each represent and warrant to the other that they have and will continue to maintain all such registrations which are necessary pursuant to the provisions of all applicable Data Protection Laws in order to enable each Party to meet its obligations under this Contract, and each Party covenants and agrees that any data will be corrected, maintained, processed and/or provided in compliance with all such applicable Data Protection Laws and any regulations made thereunder.
20.2 Nothing in this Contract shall be construed as requiring either party to act in breach of its obligations under any applicable Data Protection Laws.
21. MODERN SLAVERY
Notwithstanding the Supplier’s general compliance obligations under Sections 12.2 and 12.3, the Supplier shall comply with all applicable laws, regulations and codes of practice with regard to human rights, labor laws and worker’s rights, and, in particular, the Supplier shall not engage either directly or indirectly in any form of slavery, servitude, forced labor or human trafficking.
22. EXPORT CONTROLS AND SANCTIONS
22.1 Supplier warrants and represents that neither it, nor any of its Group, nor any Personnel of any of its Group:
22.1.1 is a Restricted Party or is engaging in or has engaged in any transaction or conduct that could result in it becoming a Restricted Party;
22.1.2 is or ever has been subject to any claim, proceeding, formal notice or investigation with respect to Export Controls or Sanctions;
22.1.3 is engaging or has engaged in any transaction that evades or avoids, or has the purpose of evading or avoiding, or breaches or attempts to breach, directly or indirectly, any Export Controls or Sanctions applicable to it;
22.1.4 has engaged or is engaging, directly or indirectly, in any trade, business or other activities with, for the benefit of, or on behalf of, any Restricted Party;
22.1.5 has violated or is violating applicable laws, statutes, regulations and codes relating to Export Controls or Sanctions.
22.2 The Supplier and every member of its Group shall:
22.2.1 comply with all Export Controls and Sanctions applicable to the Supplier or the Company;
22.2.2 have and maintain in place throughout the Term its own policies and procedures to ensure compliance with Export Controls and Sanctions, and will enforce them where appropriate; and
22.2.3 before the expiration of the Term, and annually thereafter, certify to the Company in writing (signed by a duly authorized officer of the Supplier) the Supplier’s compliance with this Section 22. The Supplier shall provide such supporting evidence of compliance as the Company may reasonably request.
22.3 The Supplier and every member of its Group shall not:
22.3.1 directly or indirectly, market, offer for sale or sell Goods with, nor shall the Supplier nor any member of its Group, directly or indirectly, send or receive funds to, from or via any Restricted Party;
22.3.2 engage in any transaction that evades or avoids, or has the purpose of evading or avoiding, or breaches or attempts to breach, directly or indirectly, any Sanctions applicable to it; or
22.3.3 trade directly or indirectly with any person or entity incorporated or located in, or where there are grounds to believe that the Goods may be re-exported to, Cuba, Iran, Syria or Sudan or any other country as may be specified by the Company from time to time.
22.4 The Supplier’s breach of this Section 22 shall be deemed a material breach of the Contract incapable of remedy which shall entitle the Company to terminate the Contract with immediate effect in accordance with Section 13.1.2 above; provided that such termination shall not prejudice or affect any right of action or remedy which shall have accrued or shall accrue thereafter to the Company.
22.5 In the event that Sanctions or Export Controls are imposed that would, in the reasonable opinion of the Company, make it unlawful for the Supplier to perform its obligations under this Contract, the Company may withhold, suspend, withdraw or cancel Orders and deliveries placed by the Company with the Supplier.
22.6 Without limiting its other rights and remedies, the Company may terminate this Contract with immediate effect by giving notice to the Supplier if the Company is affected by any event of the type described in Section 22.5 that continues for a period of not less than thirty (30) days and prevents the Company from performing all, or a material part of, its obligations under this Contract.
23.1 The Supplier shall treat in confidence each Order, any Specification, and all other information and materials obtained from the Company under or in connection with the Contract that are marked confidential or that are by their nature confidential (the “Confidential Information”). The Supplier shall not disclose Confidential Information to any other person without the Company’s prior written consent, except that the Supplier may disclose such Confidential Information to its own Personnel under conditions of confidentiality and then only to the extent necessary for the proper performance of the Contract or to the extent required by law, any regulatory requirement or regulatory authority.
23.2 Section 23.1 shall not apply to any information: (i) which is already in the public domain otherwise than as a result of a breach of the Contract; (ii) which was rightfully in the possession of a Party prior to the disclosure by the other Party and acquired from sources other than such other Party; or (iii) obtained from a third party who is free to divulge such information.
23.3 The Supplier shall not use the Company’s name, trademarks, trade dress, logos, or other intellectual property in any advertising, marketing or other public statement without the Company’s written consent.
23.4 No announcement, press release, circular, marketing or other promotion in connection with the Contract or the subject matter thereof shall be made by or on behalf of the Supplier without the Company’s written consent.
24.1 The Company may perform any of its obligations or exercise any of its rights hereunder by itself or through any member of its Group, provided that any act or omission of any member of its Group shall be deemed to be the act or omission of the Company.
24.2 Each Order is personal to the Supplier and the Supplier shall not, without the prior written consent of the Company, assign, transfer, charge, or deal in any other manner with the Contract or any of its rights under it, or purport to do any of the same, nor sub-contract or otherwise delegate any of its obligations under the Contract.
25. VARIATIONS AND WAIVER
25.1 Without limiting Section 8 above, no variation or addition to, or amendment of, any Order, any Specification, the Agreement or these Standard Terms shall be effective unless expressly agreed between the Parties in writing, signed by an authorized representative of each Party, and expressed to be such a variation.
25.2 Neither the approval by the Company of any Specification provided by the Supplier, nor the failure or delay by the Company in exercising any remedy, right, power or privilege under or in relation to the Contract, shall operate as a waiver of the same nor shall any single or partial exercise of any such remedy, right, power or privilege preclude any further exercise of the same or the exercise of any other remedy, right, power or privilege.
26. NO PARTNERSHIP OR AGENCY
Without limiting, and in furtherance of, Section 16 above, nothing in the Contract shall create, or be deemed to create, any partnership, joint venture, agency, or relationship of employer and employee between the Parties.
27. ENTIRE AGREEMENT
The Contract (together with any documents referred to therein or required to be entered into pursuant to the Contract) contains the entire agreement and understanding of the Parties and supersedes all prior agreements, understandings or arrangements (both oral and written) relating to the subject matter of the Contract and any such document. Each Party acknowledges that it is entering into the Contract without reliance on any undertaking, warranty or representation given by or on behalf of the other Party other than as expressly contained in the Contract, provided that nothing in this clause shall limit or exclude liability for fraud or fraudulent misrepresentation.
28.1 Any day-to-day communication between the Parties can be made by telephone or email.
28.2 Any communication or notice relating to the contents of the Contract or the substance of an Order must be given in writing (in English), marked for the attention of the relevant Contract Manager, and service must be effected by one of the following methods:
28.2.1 by hand to the relevant address and shall be deemed served upon delivery if delivered during Business Hours, or at the start of the next Business Day if delivered at any other time;
28.2.2 by prepaid first-class mail or recorded delivery to the relevant address and shall be deemed served at the start of the third Business Day following the day on which it was mailed; or
28.2.3 by prepaid overnight courier service (with proof of delivery) and shall be deemed served at the start of second Business Day following the day on which it was posted.
28.3 The respective addresses for service of notice under this Contract shall be the addresses set out in the Agreement.
28.4 A Party may change its address for service provided that the new address is within the same country and that it gives the other Party not less than twenty-eight (28) days’ prior notice in accordance with this Section 28. Until the end of such notice period, service on either address shall be effective.
Subject to Section 24 above, this Contract shall inure to the benefit of, and shall be binding upon, the respective legal representatives, successors, and assigns of each of the parties. This Contract represents a compromise between the parties and is a product of arms-length negotiations. The Parties have read the Contract completely and have had the opportunity to seek the advice and assistance of competent legal counsel. In the event that ambiguity exists or is deemed to exist in any provision of the Contract, the ambiguity shall not be resolved by reference to any doctrine calling for such ambiguity to be construed against the drafter of the Contract. The terms of the Contract may be rescinded or varied at any time by agreement of both the Company and the Supplier in accordance with Section 25.1 above. The rights and remedies arising under, or in connection with, the Contract are cumulative and, except where otherwise expressly provided in the Contract do not exclude rights and remedies provided by law or otherwise.
If any provision of the Contract is found by any court or administrative body of competent jurisdiction to be illegal, invalid or unenforceable for any reason, such illegality, invalidity or unenforceability shall not affect the other provisions of the Contract, which shall remain in full force and effect.
31. FURTHER ASSURANCE
Each Party shall do and execute all such further acts and things as are reasonably required to give full effect to the rights given and the transactions contemplated by the Contract.
The Contract may be executed in any number of counterparts, each of which, when executed and delivered, shall be an original, and all the counterparts together shall constitute one and the same instrument.
33. CONTRACT MANAGEMENT / DISPUTE RESOLUTION
33.1 The Parties shall each at all times during the Term appoint a Contract Manager for the purposes of the Contract.
33.2 The Parties shall in good faith use all reasonable endeavors to resolve any Dispute in accordance with this Section 33.
33.3 Either Party may, on serving written notice to the other Party, require a meeting of the Parties’ Contract Managers to attempt to resolve any Dispute. The Parties’ Contract Managers shall meet within ten (10) Business Days after service of the notice to the other Party calling the meeting. The notice shall set out details of the Dispute, together with the place, time and date on which the meeting is to take place. The Contract Managers shall attempt in good faith and use all reasonable endeavors to resolve the Dispute.
33.4 If the Dispute is not resolved by the Parties’ Contract Managers within ten (10) Business Days of their meeting (or such other period of time as the Parties may agree), then the Dispute shall be referred to a senior manager or director of each Party, who shall seek to resolve the Dispute in good faith as expeditiously as possible and, in any event, within ten (10) Business Days of the Dispute being so referred (or such other period of time as the Parties may agree).
33.5 If the Dispute is not resolved by the Parties’ senior managers/directors within ten (10) Business Days of the Dispute being referred to them (or such other period of time as the Parties may agree pursuant to Section 33.4), then the Dispute shall be settled exclusively by final and binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). The arbitral tribunal will consist of a single arbitrator who has substantial experience in commercial law issues, jointly appointed by the Parties, or in the absence of agreement between the Parties, appointed by the AAA court within thirty (30) days of such failure to agree. The location of the arbitration shall be Chicago, Illinois and the language of the arbitration shall be in the English language. By execution of the Contract, the Parties consent to the jurisdiction of the AAA and waive any objection they may have to any proceeding so commenced in Chicago, Illinois based upon improper venue or forum non coveniens.
33.6 Any decision and award of the arbitrator shall be final, binding and conclusive upon all of the parties hereto and said decision and award may be entered as a final judgment in any court of competent jurisdiction. The award shall include interest from the date of any such breach or other violation of this Contract. The arbitrator shall fix an appropriate rate of interest from the date of the breach or other violation to the date when the award is paid in full.
33.7 The Parties agree that the award of the arbitration tribunal will be the sole and exclusive remedy between them regarding any and all claims and counterclaims presented to the tribunal.
33.8 Notwithstanding the above, either party may seek preliminary injunctive relief from any federal court located in Chicago, Illinois pending receipt of the award of the arbitrators, and may seek preliminary attachment of assets in order to secure the payment of any arbitration award.
34. GOVERNING LAW AND JURISDICTION
This Contract shall be construed and enforced in accordance with, and the rights of the parties shall be governed by, the laws of the State of Illinois, U.S.A. (without giving effect to the choice of law rules thereof), notwithstanding that one or more Parties may now or hereafter become domiciled in another state or country. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Contract.