GENERAL TERMS AND CONDITIONS FOR THE PURCHASE OF GOODS AND SERVICES
1. Conflicting Terms and Conditions. These terms and conditions (“T&Cs”) shall apply to the goods, merchandise, and materials (collectively, “Goods”) and/or services (“Services”) described on the face of this purchase order (“Order Form”), and upon acceptance of the Order Form by the seller indicated on the face of the Order Form (“Seller”), the Order Form together with any exhibits or attachments thereto and these T&Cs (collectively, the “Purchase Order”) shall form the complete agreement between the buyer indicated on the face of the Order Form (“Buyer”) and Seller. To the extent of a conflict between the terms and conditions on the face of the Order Form and these T&Cs, the provisions on the face of the Order Form shall govern. In the event there is a separate written agreement between the parties covering the sale of the Goods and/or Services that conflicts with this Purchase Order, the terms of that written agreement shall govern to extent they are inconsistent with this Purchase Order. Shipment of any part of the Goods, provision of any part of the Services, or acceptance of any payment made pursuant to this Purchase Order, whichever occurs first, shall be deemed to constitute acceptance of the Purchase Order. ANY TERMS AND CONDITIONS OF SALE CONTAINED OR REFERENCED IN SELLER’S QUOTATION, ACKNOWLEDGMENT, INVOICE, OR OTHER WRITING PERTAINING TO THE TRANSACTION CONTEMPLATED BY THIS PURCHASE ORDER WHICH CONFLICT WITH, ARE INCONSISTENT WITH, OR ADD TO THE TERMS AND CONDITIONS SET FORTH IN THIS PURCHASE ORDER ARE HEREBY OBJECTED TO BY BUYER AND REJECTED IN THEIR ENTIRETY AND SHALL NOT MODIFY, ALTER, OR AFFECT THE INTERPRETATION OF THE PROVISIONS CONTAINED IN THIS PURCHASE ORDER IN ANY MANNER WHATSOEVER REGARDLESS OF WHEN PROVIDED OR SUBMITTED.
2. Delivery. Unless otherwise designated on the face of the Order Form, all deliveries shall be during normal business hours to the designated F.O.B. delivery point and risk of loss shall remain with Seller until receipt of the Goods by Buyer or Buyer’s agent at the delivery point. In addition, Buyer’s production schedules are based upon the agreement that Seller will deliver Goods and Services by the delivery date(s) specified in the Purchase Order. Seller acknowledges that time is of the essence with respect to the timely delivery of Goods and Services and Seller’s obligations hereunder. If delivery date(s) cannot be met, Seller shall immediately inform Buyer in writing of Seller’s best possible delivery date(s) which shall be subject to Buyer’s acceptance. If the best possible delivery date(s) is not acceptable to Buyer, Buyer may at its option (i) request that Seller ship the Goods by other than designated routing to expedite delivery (at Seller’s cost and expense); or (ii) cancel the Purchase Order, in whole or in part, purchase comparable Goods and Services elsewhere, and hold Seller accountable for any loss or additional cost resulting from, arising out of, or relating to the cancellation and substitution, including any expedited delivery costs. Buyer reserves the right to refuse delivery of any Goods made more than one week in advance of the delivery date specified herein and return such to Seller at Seller’s risk and expense. Seller will include a quality certificate, an itemized packing list, and a bill of lading with all shipments. Additionally, Seller must include the Purchase Order number on all documentation and product description, lot number, and Buyer item number on each container shipped.
3. Price and Payment. Seller expressly agrees that the prices stated in this Purchase Order are firm and shall remain firm until all deliveries of Goods and Services are complete, unless otherwise agreed in writing by both parties. Stated prices include all charges including taxes, duties, fees, insurance, and inspection, packaging, transport, shipping, and handling costs. Sales, use, excise, and other taxes not specifically set out on the face of the Order Form shall be deemed to be included in the stated price. Seller shall issue an invoice to Buyer on or any time after the completion of delivery of the Goods and Services. The payment date shall be scheduled from the date the invoice is received and confirmed by Buyer, unless otherwise agreed in writing by both parties. Invoices shall include all pertinent information, such as a description of Goods delivered and Services provided, quantity, payment instructions, and any other information required by Buyer. In no event shall the payment date be less than 60 days from confirmed receipt of a proper invoice, unless otherwise agreed in writing by both parties. Credits due for rejections, discrepancies, or paid invoices may, at Buyer’s option, be deducted from subsequent payments. Buyer may offset any other amounts owed to Buyer by Seller.
4. Taxes. Seller will bear and pay all applicable taxes of the United States or any state or any foreign government including political subdivisions of any of them, which are based on or measured by net income, gross income or gross receipts including any withholding taxes levied against Seller for the privilege of doing business in a jurisdiction. If Seller is required by law to collect sales and use tax (including any gross receipts tax imposed similar to a sales and use tax) from Buyer on behalf of any taxing jurisdiction, Seller will provide to Buyer invoices which separately state and clearly indicate the amount of tax and Buyer will remit any such tax to Seller. Seller will have the responsibility of complying with all applicable foreign, national, state or local laws regarding value added tax and sales and use tax or substitutes therefore including registration, collection of taxes and the filing of returns where applicable. Notwithstanding whether Seller must collect sales and use tax from Buyer, Seller will state on every invoice the taxing jurisdiction (e.g. country, state and local jurisdiction) in which Products were provided. If applicable, in lieu of payment for any sales and use tax, Seller will accept a properly executed exemption or direct pay certificate from Buyer. The determination of whether an exemption or direct pay certificate will be submitted to Seller in lieu of payment for any sales and use tax will be made by Buyer on a location by location basis. With the exception of sales and use tax as described above, all other taxes, however denominated or measured, imposed upon the Buyer, or the price or compensation under this Purchase Order, or upon the Goods or Services provided hereunder, shall be the responsibility and liability of Seller.
5. Modifications. Any modification of this Purchase Order, to be valid, must be in writing and signed by Buyer’s authorized representative. ANY SELLER’S QUOTATION, ACKNOWLEDGMENT, INVOICE,OR OTHER WRITING PERTAINING TO THE TRANSACTION CONTEMPLATED BY THIS PURCHASE ORDER CONTAINING TERMS AND CONDITIONS OF SALE IS HEREBY OBJECTED TO BY BUYER AND REJECTED IN ITS ENTIRETY AND SHALL NOT MODIFY, ALTER, OR AFFECT THE INTERPRETATION OF THE PROVISIONS CONTAINED IN THIS PURCHASE ORDER IN ANY MANNER WHATSOEVER. Buyer will consider a request from Seller for changes only if such request is in writing and directed to a specific provision of this Purchase Order.
6. Carrier. Seller grants Buyer the right to specify at any time the carrier and the method of transportation to be employed in conveying any part or all of the Goods.
7. Warranty. Seller warrants that it has good, absolute, and unencumbered title to all Goods covered by this Purchase Order, and that all Goods and Services shall conform to the specifications, drawings, descriptions, samples furnished or specified, and all statements made by Seller or its agents or contained in Seller’s advertising or promotional materials. Seller also warrants that all Goods and Services and its fulfilling of this Purchase Order, including all phases of the design and manufacturing process, the transport process, and the use and handling of goods, merchandise, materials, and services including the Goods and Services, shall comply with all industry standards and not violate any applicable Laws (as hereinafter defined). Seller further warrants that all Goods shall be merchantable, of good quality, free from defects (whether patent or latent) in design, workmanship, material, and manufacture, and fit and sufficient for the purposes intended, and that all Services shall be of a quality in compliance with customary standards in the industry for such services. Seller specifically agrees to indemnify, defend, and hold harmless Buyer, its affiliates, and its and their respective directors, officers, shareholders, employees, and customers (collectively, “Indemnitees”) from and against any and all claims, losses, damages, injuries, liabilities, actions, and settlement expenses, including attorneys’ fees, resulting from, arising out of, or relating to any breach of Seller’s warranties at any time or Seller’s negligence, willful misconduct, or breach of any other terms of the Purchase Order. The warranties and indemnities in this Purchase Agreement shall survive any delivery, inspection, acceptance, payment of or for the Goods or Services. Any applicable statute of limitations shall run from the date of Buyer’s discovery of the defect or noncompliance of the Goods or Services.
8. Inspection and Rejections. Buyer shall have the right to inspect and examine all or a sample of the Goods and Services to the extent practicable at any time and place, including any time and place during Seller’s period of manufacture. Final inspection shall be on Buyer’s premises within a reasonable time after final delivery, unless otherwise agreed by Buyer in writing. In the event Buyer determines that any Goods or Services are defective in quality or material or otherwise not in conformity with the requirements of this Purchase Order, Buyer shall have the right, at its option and notwithstanding any payment, prior inspection or examination, either to reject the same, in whole or in part, or to require its correction. Goods and Services rejected as defective or as not conforming to this Purchase Order shall, at the Buyer’s option, be returned to Seller for credit, rebate of paid purchase price, or replacement, at Seller’s risk, cost and expense, including all transport, shipping, and handling costs. Seller agrees that, upon request and at no additional charge, it will promptly furnish applicable certificates of conformance and/or compliance acceptable to Buyer, at the time of, or promptly after, delivery.
9. Epidemic Failure. If any Goods become subject to an epidemic or broad series of failures, as evidenced by a failure rate(s) in excess of fifteen (15) percent (an “Epidemic”), Seller shall at its own cost and expense, including all transport, shipping, and handling costs, provide Buyer and, at Buyer’s discretion, Buyer’s customers with new, unused, and compliant Goods for each and every one of the Goods (for avoidance of doubt, this includes all Goods, not just the portion of the Goods subject to the Epidemic) manufactured during any period of time relevant to, affected by, or relating to the Epidemic or its cause. Seller shall indemnify, defend, and hold harmless Buyer and Buyer’s customers from any and all costs and expenses, including claims, suits, or other manner of governmental or private actions resulting from, relating to, or arising out of any Epidemic, including the costs of performing a recall and penalties assessed by Buyer’s customers. If the Goods or any particular model line of the Goods become subject to an Epidemic, Supplier shall at its own cost and expense, including necessary shipping charges, provide Buyer, Buyer’s customers or consumers with a new and unused and properly functioning unit for each and every unit comprising the Goods (all units, not simply defective units) manufactured during the period of time which is relevant to the defect. Supplier shall indemnify, defend and hold Buyer and its customers harmless from any and all costs and expenses, including claims, suits or other manner of governmental or private actions relating to or arising from an epidemic. For the purpose of this paragraph, the terms “fail” or “failure” refer to any Goods which are not of good and merchantable quality, free from any defects (whether patent or latent) in design, workmanship, material, and manufacture, and fit and sufficient for the purposes intended and the term “failure rate” refers to the ratio of the number of Goods in any delivery which failed compared to the total number of Goods delivered in such delivery pursuant to the Purchase Order. An Epidemic shall also be deemed to exist if more than a de minimus number of Goods (i) contain one or more defects (whether patent or latent) which create a substantial product hazard within the meaning of any applicable Laws; or (ii) fail to comply with the requirements of the Purchase Order.
10. Damages. Seller agrees that it will accept returns of nonconforming or defective Goods, immediately replace all such Goods, and pay all costs resulting from, arising out of, or relating to the replacement of such Goods, including incidental and consequential costs. Seller agrees that Buyer, in addition to other remedies it may have against Seller at law or in equity or under the terms of this Purchase Order, upon notifying Seller of its intention to do so, may deduct all or any part of the damages set forth in this clause from any amount owed under the terms of this or any other Purchase Order with Seller for any goods, merchandise, materials, or services, including the Goods and Services.
11. Obligations Regarding Services. Seller shall obtain before beginning to deliver any Services, and maintain until Services are complete, all necessary licenses and consents and comply with all applicable Laws and rules, regulations, policies, and procedures of Buyer. Seller and Seller’s employees shall be properly licensed, certified, or accredited as required by applicable Laws and suitably skilled, experienced, and qualified to perform the Services and personally complete all of the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. Seller shall ensure that all of equipment used in connection with the provision of the Services is in good working order, suitable for the purposes for which it is used, and conforms to all relevant standards, legal or otherwise. Seller shall maintain complete and accurate records relating to the Services, including records of the time spent and materials used by Seller in providing the Services in such form as Buyer shall approve. Beginning on the date the Purchase Order is issued and continuing for the two (2) year following completion of the Services, upon Buyer’s written request, Seller shall allow Buyer to inspect and make copies of such records and interview Seller personnel in connection with the provision of the Services.
12. Cancellation of Purchase Order. Buyer may cancel this Purchase Order in whole or in part at any time by written notice or electronic communication in the event that Seller (i) fails to comply with any term or condition of this Purchase Order, including delivery terms; (ii) appoints a receiver or trustee in bankruptcy or other similar official over any or all of its property or assets, files a voluntary petition in bankruptcy, or has had filed against it an involuntary petition in bankruptcy which remains in effect for thirty (30) days; (iii) ceases operations, or merges with or into or is acquired by a third party; (iv) has not provided Buyer with satisfactory assurance of Seller’s performance within five (5) days after Buyer, having reasonable grounds for insecurity with respect to the due performance of Seller, has provided Seller with written notice requesting the same; or (v) assigns any of its rights or obligations under this Purchase Order to a third party without Buyer’s prior written consent. Upon the occurrence of any one of the aforesaid events, and in addition to any remedies which Buyer may have at law or in equity or under the terms of this Purchase Order, Buyer may cancel this Purchase Order by written notice or electronic communication of such cancellation and Seller shall thereupon transfer title and deliver to Buyer such work in process or completed Goods and Services as may be requested by Buyer. Buyer shall have no liability to Seller beyond payment of any balance owing for Goods or Services purchased hereunder and delivered to and accepted by Buyer prior to Seller’s receipt of the cancellation, and for work in process or completed Goods and Services as may be requested for delivery to Buyer.
In addition,Buyer may cancel this Purchase Order, in whole or in part, at any time for Buyer’s convenience at any time by giving written notice to Seller. Upon receipt of such notice or electronic communication Seller shall immediately stop work and not incur any new obligations for raw materials or other items or services used in the manufacture of Goods or the provision of Services. Within twenty (20) days of receipt of Buyer’s notice or electronic communication canceling for convenience, Seller shall provide to Buyer a proposal of any costs Seller has incurred or expects to incur as a result of Buyer’s cancellation for its convenience. For the avoidance of doubt, Buyer shall purchase and pay for any Goods supplied and Services provided by Seller prior to the cancellation for convenience that are compliant with the applicable terms and conditions of the Purchase Order.
13. Remedies. Because of the uniqueness of the Goods and/or Services to be supplied to Buyer under this Purchase Order, Buyer shall have the right to specifically enforce the terms of this Purchase Order. If Seller fails to make delivery at the time agreed upon or repudiates or if Buyer justifiably rejects the Goods or Services or revokes acceptance thereof, then, as to Goods not yet received and accepted and Services not yet provided and accepted, Buyer shall have the right, at Buyer’s option, to either cancel the Purchase Order by written notice or electronic communication to Seller, effective when received, or to purchase the Goods and Services elsewhere and hold Seller accountable. The rights and remedies herein reserved to Buyer shall be cumulative and additional to any other or further rights and remedies available at law or in equity or under the terms of the Purchase Order. No waiver of a breach of any provision of this Purchase Order shall constitute a waiver of any other breach or waiver of such provision.
14. Patents and Other Intellectual Property Claims. If notified in writing of any action brought against Buyer or its Indemnitees based on a claim that the Goods or Services, or any of their parts, infringes or misappropriates any patent, copyright, trademark, trade secret, or any other proprietary right of any third party, Seller will defend such action at its expense and will pay all costs and damages, including attorneys’ fees, awarded in any such action. In the event that a final injunction is obtained against Buyer’s use of the Goods or Services or any of their parts, or in Buyer’s reasonable opinion the Goods or Services or any of their parts is likely to become the subject of a claim or infringement action, Seller will at its expense and as required by Buyer at Buyer’s option, either procure for Buyer the right to continue using the Goods and Services or replace or modify the same to be non-infringing but functionally equivalent. In no event shall Seller enter into any settlement without Buyer’s or its Indemnitee’s prior written consent.
15. Work Product. To the extent that Seller conceives, makes, authors or reduces to practice any services or work (“Work Product”) for Buyer, such Work Product shall be Buyer’s sole and exclusive property. Furthermore, Seller agrees that Buyer will be free to use and disclose the Work Product without any continuing obligation to Seller, and at no time are there to be any contingent or continuing fees (such as royalties, commissions or profit participation) payable by Buyer in connection with such Work Product. Seller will perform, at Buyer’s request and expense, any act which Seller can reasonably perform to assign or otherwise vest title to such Work Product in Buyer, and will execute any and all patent and copyright applications and other documents required by Buyer to obtain legal protection for such Work Product. Seller expressly waives any rights of attribution or integrity that Seller may have in the Work Product and such waiver shall apply to any and all uses or changes made of the Work Product. All such obligations of Seller to indemnify, hold harmless, protect and defend Buyer are in addition to Seller’s warranty obligations and all other rights or remedies of Buyer and will survive acceptance and use of, and payment for, the Products, and completion, termination, or cancellation of this Purchase Order.
16. Confidential Information. Without prior written consent of Buyer, Seller shall neither disclose to any person other than its employees, officers, or directors who have a legitimate need to know the information and have confidentiality obligations to Seller which are at least as stringent as the obligations set forth herein, nor use for any purpose other than performance of this Purchase Order, any information received from Buyer pursuant to this Purchase Order, including drawings, blueprints, manuals, descriptions, specifications, and documents, which are deemed to be a part of this Purchase Order. Upon termination of this Purchase Order, or as otherwise requested by Buyer, Seller shall promptly return to Buyer all written material (including all copies and summaries) delivered to Seller or generated by Seller in connection with the performance of this Purchase Order. Seller shall not disclose to Buyer any information that Seller deems to be confidential and it is understood that any information received by Buyer, including all drawings, blueprints, manuals, descriptions, specifications, and documents, will not be of a confidential nature or restrict the use of such information by Buyer. Seller shall at all times have title to all drawings, blueprints, manuals, descriptions, specifications, and documents furnished by Seller to Buyer.
All materials and tools furnished or paid for by Buyer shall be the property of Buyer, shall be subject to removal at any time upon demand by Buyer without additional cost, shall be used only in filling orders from Buyer, shall be kept separate from other materials or tools of Seller, and shall be clearly and conspicuously identified as the property of Buyer. Seller agrees to cooperate with Buyer in recording its ownership interest in such items, including executing any UCC-1 Financing Statements or similar documents. Seller assumes all liability for loss or damage, with the exception of normal wear or tear, and agrees to promptly supply a detailed statement of inventory upon request.
17. Limitation of Liability. IN NO EVENT SHALL BUYER BE LIABLE TO SELLER FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL (INCLUDING LOSS OF PROFITS), OR PUNITIVE DAMAGES OF ANY KIND, WHETHER BASED IN CONTRACT, TORT, STATUTE, OR OTHERWISE (INCLUDING NEGLIGENCE), RESULTING FROM BREACH OF THE PURCHASE ORDER OR ANY MATTER RESULTING FROM, ARISING OUT OF, OR RELATING TO THE PURCHASE ORDER.
18. Responsibility for Packing, Marking, and Delivery. Unless otherwise expressly provided in this Purchase Order, Seller shall for the price stated in this Purchase Order (i) pack and mark the Goods to be shipped so as to secure the lowest transportation rates, meet all carrier requirements, be prepared for shipping, handling, and transport in accordance with good commercial practice and all applicable Laws (including Interstate Commerce Commission (“ICC”) regulations and United States Department of Agriculture (“USDA”) regulations, including the regulations adopting the international standard for wood packaging material approved by the International Plant Protection Convention (collectively, “Transport Regulations”)), and assure safe arrival at the final delivery point free of damage and deterioration; and (ii) be responsible for the Goods and all containers, packing material, crating, and other material used in connection with the transport of the Goods, including pallets (collectively, the “Materials”) until delivered at the designated (F.O.B.) delivery point, regardless of point of inspection. Unless otherwise provided in this Purchase Order (i) the price as stated in this Purchase Order shall include all charges and expenses with respect to Materials, packing, shipping, handling, and transportation to the designated (F.O.B.) delivery point; and (ii) all Materials shall become property of Buyer upon delivery. Seller shall ensure that each package, crate, or container is marked with Buyer’s order number, contains a detailed packing slip or invoice, and is properly packed for shipment and inspection. Seller represents and warrants that all Materials and markings on Goods and Materials, including the origin of such Goods and Materials, shall be accurate and compliant with all applicable Laws. Seller shall defend, indemnify, and hold harmless Buyer and Buyer’s Indemnitees for any violation of the requirements set forth in this Section, including any inaccurate or noncompliant Materials or markings.
19. Changes. Buyer may at any time, by written notice or electronic communication, make changes to this Purchase Order with respect to any one or more of the following (i) drawings, designs, specifications, and descriptions pertaining to Goods or Services; (ii) method of shipment and packing; (iii) place and time of delivery of Goods and Services; and (iv) quantity of Goods and Services. If any such change causes an increase or decrease in the cost of the Goods or Services covered by this Purchase Order or the time required for Seller’s performance, the parties may negotiate an equitable adjustment in the order price, or the delivery schedule, or both. Any claim by Seller for such an adjustment must be asserted within ninety (90) days from the date of receipt by Seller of the notification or communication of change and must be approved in writing by Buyer before Seller proceeds with the change. For the avoidance of doubt, Buyer may upon receipt of a claim choose not to implement all or any part of such change. Buyer will have the right to check all claims by Seller hereunder at any reasonable time or times by inspecting and auditing the records, facilities, work, and materials of Seller relating to this Purchase Order. Nothing in this clause shall excuse Seller from proceeding with the Purchase Order as changed.
20. Electronic Commerce: Upon Buyer’s request, Buyer and Seller will facilitate business transactions by electronically transmitting data. Any data electronically transmitted pursuant to this section will be as legally sufficient, binding and enforceable upon the parties as a written, signed, paper document exchanged between the parties, notwithstanding any legal requirement that the data be in writing or signed. To the extent required by Buyer, each authorized representative of a party will adopt a unique, verifiable digital identification consisting of symbols or codes to be transmitted with each electronic transmission, and use of such digital identification will be deemed for all purposes to constitute a “signature” and will have the same effect as a signature on a written document.
21. Assignment. This Purchase Order may not be assigned by either party without the written consent of the other, except that Buyer may, without Sellers’ consent, assign this Purchase Order and its right to receive the Goods and Services to an affiliate or subsidiary or to any purchaser or successor to all or substantially all of the assets of the business to which this Purchase Order relates.
22. Compliance with Laws; Applicable Law; Jurisdiction. Seller shall comply with all applicable foreign, federal, state, and local laws, orders, ordinances, rules, and regulations (collectively, “Laws”). This Purchase Order and all claims, causes of action, suits, or other legal or administrative proceedings (whether in contract, tort, or statute) that may be based upon, arise out of, or relate to this Purchase Order or the negotiation, execution, or performance of this Purchase Order (each, a “Claim”) shall be (i) governed by, and enforced in accordance with, the internal laws of the State of South Carolina, including its statutes of limitations, without regard to conflicts of laws provisions of such State; and (ii) subject to the sole jurisdiction of, and brought exclusively in, the United States District Court of South Carolina located in Greeneville, South Carolina, if in federal court, or the South Carolina Circuit Court (Court of Common Pleas) in the Thirteenth Circuit located in Greeneville, South Carolina, if in state court. The Parties hereby irrevocably waive any objections to personal jurisdiction and venue in such courts for the purpose of any Claim. In the event that any Claim is instituted or commenced by either party hereto against the other, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
23. Environment, Health, Safety and Security: If Seller, either as principal or by agent or employee, enters upon the property of Buyer, Seller agrees to comply with Buyer’s rules and regulations, including its environmental, health, safety and security rules and regulations.
24. Independent Contractor/Safety: Seller is and will remain an independent contractor of the Buyer. No employee, agent, or representative of Seller or its subcontractors will be deemed to be an employee of Buyer. Seller will provide all safeguards, and take all precautions, necessary in connection with the production and delivery of the Products sold hereunder to prevent the occurrence of any accident, injury, death, loss, or damage to any person or property, and will be solely responsible therefor. Seller warrants that all Products delivered hereunder will be produced and delivered in a safe, proper, and workmanlike manner and in compliance with all applicable codes, regulations, laws, standards, specifications and Buyer requirements concerning safety, performance and otherwise, including, without limitation, any work or services related thereto performed on premises controlled by Buyer. Seller will indemnify, protect, defend and hold harmless Buyer, its successors and assigns from and against all claims, demands, judgments, settlements, costs, losses, damages and attorney fees arising from injury to or by Seller’s employees, agents, or representatives or those of its subcontractors in performing any such work or services.
25. Entire Agreement. This Purchase Order constitutes the entire understanding of the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous written or oral agreements, conditions, understandings, or representations. If any provision (or part of a provision) of this Purchase Order is deemed invalid, illegal, or unenforceable by a court of competent jurisdiction, it will not affect or limit the validity or enforceability of any other provisions of the Purchase Order which shall continue in full force and effect.
26. Definitions. When used in this Purchase Order, (i) the words “include” and “including” and any variations thereof shall not be deemed to be terms of limitation, but rather shall be deemed in each case to be followed by the words “but not limited to”; (ii) the word “or” shall be deemed to be used in the inclusive sense of “and/or”; (iii) the word “any” shall be deemed to be used in the sense of “any and all”; (iv) the words “to the extent” shall mean the degree to which a subject or other item extends and shall not simply mean “if”; and (v) the words “hereof”, “herein”, “hereby”, “hereto”, “hereunder”, and words of similar import shall refer to this Purchase Order as a whole and not to any particular provision of this Purchase Order.
27. Equal Employment Opportunity. The provisions of Executive Order 11246 (as the same has been or may later be amended) of the President of the United States on Equal Employment Opportunity and the Rules and Regulations issued pursuant thereto are incorporated into this Purchase Order and shall apply as if expressly set forth herein.
28. Federal Acquisition Regulation Clauses. This Agreement pertains to a subcontract the sale of “commercial items” as that term is defined under Federal Acquisition Regulation (“FAR”) 2.101 and FAR Part 12. Notwithstanding any other clause in the prime contract, only those clauses identified in 52.244-6 are required to be in subcontract agreements for commercial items or commercial components. For this reason, any other prime contract FAR flow down clauses are inapplicable to this transaction. The following FAR clauses identified in FAR 52.244-6 are hereby incorporated by reference to the extent they are otherwise applicable to this particular transaction: 52.203-15, Whistleblower Protections Under the American Recovery and Reinvestment Act of 2009 (Jun 2010) (Section 1553 of Pub. L. 111-5) (note, only applies if the subcontract is funded under the Recovery Act); 52.203-19, Prohibition on Requiring Certain Internal Confidentiality Agreements or Statements (Jan 2017); 52.204-21, Basic Safeguarding of Covered Contractor Information Systems (JUN 2016) (note, does not apply to subcontracts for commercially available off-the-shelf items and only applies if flow down is required in accordance with paragraph (c ) of FAR clause 52.204-21); 52.204-23, Prohibition on Contracting for Hardware, Software, and Services Developed or Provided by Kaspersky Lab and Other Covered Entities (JUL 2018) (Section 1634 of Pub. L. 115-91); 52.204-25, Prohibition on Contracting for Certain Telecommunications and Video Surveillance Services or Equipment. (AUG 2019) (Section 889(a)(1)(A) of Pub. L. 115-232); 52.219-8, Utilization of Small Business Concerns (Oct 2018) (15 U.S.C. 637(d)(2) and (3)) (note only applies if the subcontract offers further subcontracting opportunities. If the subcontract (except subcontracts to small business concerns) exceeds $700,000 ($1.5 million for construction of any public facility), the subcontractor must include 52.219-8 in lower tier subcontracts that offer subcontracting opportunities); 52.222-21, Prohibition of Segregated Facilities (Apr 2015); 52.222-26, Equal Opportunity (Sep 2016) (E.O. 11246); 52.222-35, Equal Opportunity for Veterans (Oct 2015) (38 U.S.C. 4212(a); 52.222-36, Equal Opportunity for Workers with Disabilities (Jul 2014) (29 U.S.C. 793); 52.222-37, Employments Reports on Veterans (Feb 2016) (38 U.S.C. 4212); 52.222-40, Notification of Employee Rights Under the National Labor Relations Act (Dec 2010) (E.O. 13496). Note only applies if flow down is required in accordance with paragraph (f) of FAR clause 52.222-40; 52.222-50, Combating Trafficking in Persons (Jan 2019) (22 U.S.C. chapter 78 and E.O. 13627); 52.222-55, Minimum Wages under Executive Order 13658 (Dec 2015) (note only applies if flow down is required in accordance with paragraph (k) of FAR clause 52.222-55); 52.222-62, Paid Sick Leave Under Executive Order 13706 (JAN 2017) (E.O. 13706). Note only applies if flow down is required in accordance with paragraph (m) of FAR clause 52.222-62; 52.224-3, Privacy Training (JAN 2017) (5 U.S.C. 552a). Note only applies if flow down is required in accordance with 52.224-3(f); 52.225-26, Contractors Performing Private Security Functions Outside the United States (Oct 2016) (Section 862, as amended, of the National Defense Authorization Act for Fiscal Year 2008; 10 U.S.C. 2302 Note); 52.232-40, Providing Accelerated Payments to Small Business Subcontractors (Dec 2013) (note only applies if flow down is required in accordance with paragraph (c) of FAR clause 52.232-40); and 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels (Feb 2006) (46 U.S.C. App. 1241 and 10 U.S.C. 2631) (note only applies if flow down is required in accordance with paragraph (d) of FAR clause 52.247-64). For the avoidance of doubt, if a transaction is for COTS products, is bought under Simplified Acquisition procedures or if the contract work is performed outside of the United States of America, only those FAR clauses applicable by their terms to such a transaction shall be applicable to this transaction. For purposes of this Agreement, when appropriate in adopting the terminology of all the following FAR clauses, the term “contract’ shall mean this Agreement; the term “Contractor” shall mean the Element Solutions, Inc; the term “Government: and “Contracting Officer” shall mean the Prime Contractor. 52.203-13, Contractor Code of Business Ethics and Conduct (Oct 2015) (41 U.S.C. 3509). Note only applies if the subcontract exceeds $5.5 million and has a performance period of more than 120 days.
29. Waiver. A waiver by either party of any breach of these terms and conditions by the other party in a particular instance shall not operate as a waiver of subsequent breaches of the same or different kind. The failure of either party to exercise any rights under these terms and conditions in a particular instance shall not operate as a waiver of the party’s right to exercise the same or different rights in subsequent instances.
30. Succession; Survival. These terms and conditions shall be binding upon and shall inure to the benefit of Seller and Buyer and their respective heirs, successors, and permitted assigns. All of Seller’s representations, warranties, and other undertakings, and Buyer’s rights and remedies hereunder, will survive the execution, delivery, performance, and cancellation or expiration of this Purchase Order, and any inspection, testing, acceptance, payment, or use of any Goods and Services provided hereunder. Such representations, warranties, undertakings, rights, and remedies will inure to the benefit of Buyer, its affiliates, successors, permitted assigns, and customers.
31. Notices. Except as otherwise provided herein, all written notices shall be given either by actual delivery or by registered or certified mail, return receipt requested, and shall be deemed to be received on the date personally delivered or three (3) days after deposited in the mail postage prepaid with confirmation of delivery. Notice to Buyer shall be addressed to the attention of Buyer’s (or Buyer’s parent company’s) Legal Department at Jadex Inc., 1303 S. Batesville Rd., Greer, SC 29650 USA and notice to Seller shall be addressed to the mailing address set forth on Seller’s invoice.
32. Seller Insurance. Seller will maintain, at its own cost and expense, policies of insurance of the types and in the amounts reasonably required for its business. Upon Buyer’s request, Seller will provide Buyer with certificates of insurance for such coverages, and, upon Buyer’s further request, Seller will have Buyer named on all such policies as an additional insured who will receive at least thirty (30) days prior written notice of any termination or change in coverage under each such policy.
33. Force Majeure. Buyer will be not liable for failure to perform under the Purchase Order to the extent such failure is caused by fire, strike, act of God, act(s) of terrorism, war, authorization of law, pandemic, embargo, accident, or any other cause beyond its reasonable control (“Force Majeure Event”). Buyer reserves the right to cancel this Purchase Order, in whole or in part, or to delay payment for, or acceptance of, Goods due to any Force Majeure Event.
34. Process Change Notification. In the event that Seller must make a process change that may affect the finished Goods or Services, Seller must provide Buyer with written notice and obtain written approval from Buyer at least six (6) months prior to such change. Process changes may include any change in specifications, sampling plans, testing methodology, manufacturing site, process equipment, raw material constituents and sources, formulations, organizational ownership, and Materials.
In the event that Seller must discontinue or terminate the manufacture of any Goods or Services, Seller must provide Buyer with at least twelve (12) months’ prior written notice. Seller shall support Buyer in securing sufficient stock at no additional cost during Buyer’s qualification of an alternative source. In the event Buyer is unable to procure the Goods or Services from another source or use alternative goods, merchandise, materials, or services available from Seller, Seller shall grant Buyer a nonexclusive license to Seller’s formulas, bill of materials, specifications, designs, and other data and information so as to permit Buyer to produce, or have produced, the discontinued or terminated Goods or Services.
35. Code of Conduct. Seller acknowledges it shall comply with Buyer’s Vendor Code of Conduct (the “Code”) made available to Seller, if any, and may be updated from time to time. Seller agrees that it shall immediately advise Buyer in writing if Seller learns of, has reason to know of, or suspects any violation of the Code involving Buyer, any of Buyer’s affiliated companies, or the actions of Seller or its representatives in connection with this Purchase Order.
36. Anti-Corruption Compliance. Seller certifies that it (i) has been and will continue to be in full compliance with all applicable anti-corruption laws, including the U.S. Foreign Corrupt Practices Act (collectively, “Anti-Corruption Laws”); and (ii) has not and will not pay, offer, or promise to pay, or authorize the payment of, directly or indirectly, any monies or anything of value to (a) any governmental official, government employee, political party, or candidate for political office for the purpose of influencing any act or decision to obtain or retain business or otherwise gain an improper advantage, or (b) any private individual that could reasonably be expected to cause the recipient to violate his or her duty of loyalty or trust. Buyer may audit Seller’s books and records and conduct other internal review to verify compliance with the Policy and Anti-Corruption Laws. Seller agrees that it shall immediately advise Buyer in writing if Seller learns of, has reason to know of, or suspects any violation of any Anti-Corruption Laws involving Buyer, any of Buyer’s affiliated companies, or the actions of Seller or its representatives in connection with this Purchase Order.
37. Regulatory Compliance. Seller certifies that all raw materials Seller sells to Buyer pursuant to this Purchase Order are and will at all times during the term of this Purchase Order be listed as active in the updated Toxic Substances Control Act (TSCA) Inventory, when published by the Environmental Protection Agency (EPA) as mandated under the Frank R. Lautenberg Chemical Safety for the 21st Century Act. Seller further represents that the delivery of any Goods pursuant to this Purchase Order shall be in strict compliance with all transportation laws and regulations issued or governed by the Department of Transportation (DOT), the Federal Aviation Administration (FAA), Federal Motor Carrier Safety Administration (FMCSA), Federal Railway Administration (FRA), Pipeline and Hazardous Materials Safety Administration (PHMSA), and the United States Coast Guard (USCG), including without limitation, the Hazardous Materials Transportation Act (HMTA), the Federal Hazardous Materials Regulations and the Motor Carrier Safety Regulations.
38. OFAC Sanctions Compliance. Seller (together with its partners, members, beneficial owners, and affiliates) (i) has not been designated as a “specifically designated national and blocked person” on the most current list published by the Office of Foreign Asset Control of the U.S. Department of the Treasury (“OFAC”) at its official website (http://www.treas.gov/resource-center/sanctions/pages/default.aspx) or at any replacement website or other replacement official publication of such list (collectively, the “List”); (ii) is currently in compliance with and will at all times during the term of this Purchase Order (including any extension thereof) remain in compliance with the regulations of OFAC and any statute, executive order (including the September 24, 2001 Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action relating thereto; and (iii) will not transfer or permit the transfer of any controlling interest in Seller to any person or entity who is, or any of whose beneficial owners are, listed on the List. Seller has not engaged in any conduct prohibited by any legal requirement of any program administered by OFAC, including any program the regulations of which are codified in Chapter 5 of Subtitle B of Title 31, Code of Federal Regulations (the “OFAC Regulations”); and Seller has not engaged in any conduct that would cause adverse consequences to Buyer or its affiliates under any program administered by OFAC, including the OFAC Regulations, by virtue of their involvement in the transactions contemplated by this Purchase Order.
39. Conflict Minerals Compliance. The Dodd-Frank Wall Street Reform and Consumer Protection Act – Section 1502 imposes Securities and Exchange Commission (“SEC”) reporting requirements upon publicly-traded companies whose products contain metals derived from minerals defined as “Conflict Minerals” originating in the Democratic Republic of the Congo (“DRC”) and surrounding countries. These Conflict Minerals include tantalum, tin, tungsten, and gold (“3TGs”). The legislation requires publicly traded companies to report annually to the SEC on whether they use 3TGs that originated from the DRC or adjoining countries, and what actions they are taking to identify and eliminate the use of Conflict Minerals in their supply chains. Non-SEC registered companies who supply directly or indirectly to SEC registered companies will also be asked to comply with the regulations. Seller agrees to cooperate with Buyer to obtain information from its supply chain to determine whether products supplied to Buyer contain Conflict Minerals and the country of origin of those minerals.
Updated: March 2, 2023