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Conflict Minerals Policy
In recent years there has been increased concern that the exploitation and trade of certain minerals originating in the Democratic Republic of the Congo ("DRC") and in the adjoining countries ("DRC Region") are helping to finance armed conflict characterized by extreme levels of violence. The term "conflict mineral" is defined as (1) columbite-tantalite, also known as coltan (the metal ore from which tantalum is extracted); cassiterite (the metal ore from which tin is extracted); gold; wolframite (the metal ore from which tungsten is extracted); or their derivatives; or (2) any other mineral or its derivatives determined by the U.S. Secretary of State to be financing conflict in the DRC Region. These minerals are referred to as conflict minerals regardless of their country of origin. As required by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the U.S. Securities & Exchange Commission ("SEC") has adopted a rule to bring greater supply chain transparency to the use of conflict minerals originating from the DRC Region (the "Conflict Minerals Rule"). The Conflict Minerals Rule requires SEC registrants who manufacture or contract to manufacture products containing conflict minerals that are necessary to such products' functionality or production to disclose the origin and status of the conflict minerals.
Kondex, together with its subsidiaries, is committed to corporate responsibility and to respecting human rights in its own operations and in its global supply chain. Kondex is committed to complying with the Organization for Economic Co-operation and Development Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High Risk-Areas, as well as, in connection with its supply of products and components to public companies that are subject to the Conflict Minerals Rule. As part of that commitment, Kondex will seek to identify, reduce and ultimately eliminate the use in its products of conflict minerals that directly or indirectly finance or benefit armed groups in the DRC Region. Kondex is committed to ethical practices and compliance with applicable laws and regulations wherever it does business.
Kondex does not directly source conflict minerals from mines or smelters but uses refined metals in the manufacture of some of its products. Therefore, it relies on the information provided by its suppliers regarding their sourcing of metals. Kondex expects its suppliers to source materials from socially responsible suppliers and that all of its suppliers will comply with the Conflict Minerals Rule and provide all necessary declarations and supporting information. Suppliers must pass these requirements through to their supply chain if they do not source directly from mines or smelters and determine the source of the conflict minerals used in the product Kondex purchases.
To aid in our compliance, Kondex has adopted Supplier Guidelines that require applicable suppliers to Kondex of products containing conflict minerals to take commercially reasonable efforts to assist and cooperate with Kondex in connection with its efforts to comply with the Conflict Minerals Rule with respect to any products containing conflict minerals that are necessary to such products' functionality or production. These efforts will include providing assistance and cooperation with a country-of-origin inquiry for any conflict minerals necessary to the functionality or production of such products and providing Kondex with information and documentation reasonably requested by Kondex or any of its agents to assist it with compliance with the Conflict Minerals Rule with respect to such products.
Terms & Conditions of Purchase
1. Governing Provisions
These terms and conditions of purchase, including Buyer's Purchase Order or other document provided by Buyer into which these terms and conditions are incorporated, shall govern the parties' duties, obligations and relationship with respect to the sale by the vendor described herein (the "Seller") and the purchase, acceptance and use by Kondex Corporation (the "Buyer") of the goods and/or services described herein (the "Products"). Buyer's agreement to purchase the Products is limited to these terms. NO UNDERSTANDINGS OR AGREEMENTS THAT ARE INCONSISTENT WITH, DIFFER FROM, MODIFY OR ADD TO THESE TERMS, EXCEPT ADDITIONAL WARRANTIES FROM SELLER, SHALL BIND BUYER, REGARDLESS OF WHETHER SUCH UNDERSTANDINGS OR AGREEMENTS WOULD MATERIALLY ALTER THESE TERMS. SUBJECT TO THE FOREGOING, ANY ADDITIONAL OR DIFFERENT TERMS CONTAINED IN ANY COMMUNICATION RECEIVED BY BUYER AT ANY TIME SHALL BE DEEMED MATERIAL AND OBJECTED TO AND REJECTED WITHOUT ANY NEED FOR FURTHER ACTION BY BUYER, AND SHALL BE OF NO FORCE OR EFFECT. THESE TERMS AND CONDITIONS CONSTITUTE THE FINAL CONTRACT BETWEEN BUYER AND SELLER REGARDING THE PRODUCTS AND ARE THE COMPLETE AND EXCLUSIVE STATEMENT OF THOSE TERMS. Buyer's purchasing representatives are without authority to change these terms and conditions. If this document is deemed an acceptance of a prior offer by Seller, such acceptance is limited to the express terms and conditions contained herein. Seller shall be deemed to have made unqualified acceptance of these terms and conditions on the earliest of the following to occur: (a) Buyer's receipt of a copy of these terms and conditions, or any document incorporating these terms and conditions, signed by Seller; (b) Seller's acknowledgment of any purchase order submitted by Buyer from time to time ("Purchase Order") or these terms and conditions; (c) Seller's acceptance of any payment from Buyer; (d) Seller's commencement of manufacture or delivery of the Products; (e) failure by Seller to notify Buyer to the contrary within ten days of receipt of these terms and conditions; or (f) any other event constituting acceptance under applicable law.
2. Packaging and Shipping
Seller shall prepare and package the Products for shipment so as to prevent damage or deterioration. Seller shall clearly mark all packages with Buyer's Purchase Order number, an appropriate description of the Products and the part number and the quantity of items contained in each package. Buyer shall not be obligated to Seller for additional charges of any kind for boxing, packaging, cartage or other extras, unless (1) formally specified by Buyer in its Request for Quote, (2) formally quoted by Seller, and/or (3) clearly defined on Buyer's Purchase Order to Seller. Without limiting Buyer's right to source elsewhere, Seller agrees to supply Buyer's requirements for Products. Delivery in whole or in part may not be made prior to the established delivery date. Buyer may from time to time change delivery schedules. Seller shall deliver Products to Buyer F.O.B. at Buyer's facility as listed on the Purchase Order. For purchases from Sellers outside the United States, if Buyer has designated a delivery term in its Purchase Order, such term shall be defined in accordance with INCOTERMS 2020 of the International Chamber of Commerce, as amended or updated from time to time. Buyer shall have the right to specify the carrier and/or method of shipment, upon adjustment to cover agreed transportation costs. Buyer may return at Seller's expense all Products shipped contrary to instructions or otherwise not in accordance with these terms and conditions, or hold such Products subject to Seller's instructions at Seller's risk and expense. Packing slips satisfactory in form and substance to Buyer shall accompany each shipment. Buyer's count shall be accepted as final on all shipments not accompanied by proper packing lists. Buyer's Purchase Order number and material number must appear on all packing slips and invoices if listed on Buyer's Purchase Order. Any forecasts offered by Buyer are nonbinding and Buyer shall not be required to purchase any minimum amount of Products. Where deliveries are to be made in accordance with Buyer's written releases, notwithstanding any quantity specified herein, Seller shall not procure or manufacture Products covered by the order, or procure materials required therefor, except to the extent authorized by such written releases. Buyer may procure Products from alternate sources. To enable compliance with U.S. Customs and Border Protection Importer Security Filing requirements, Seller shall (or shall cause its shipper to) provide all required or requested U.S. Customs-related documentation to Buyer's designated Customs broker, freight forwarder or other agent ("Agent") at least 72 hours prior to the documentation cut-off date used by such Agent. Such documentation shall be complete and accurate. If Seller does not provide (or cause its shipper to provide) such documentation within such timeframe, Seller shall pay Buyer on demand, as liquidated damages and not as a penalty, an amount identified by Seller of up to $10,000 per affected shipment. Such remedy represents a good faith estimate of the damages Buyer would incur as a result of Seller's failure to provide (or cause its shipper to provide) the documentation within such timeframe.
3. Prices and Payment
Buyer shall pay Seller for Products as set forth on Buyer's Purchase Order. Seller shall provide Buyer will all documentation reasonably requested by Buyer before Buyer shall be required to pay for Products. Buyer reserves the right to set off, against any amounts due or to become due to Seller, any amounts due or to become due from Seller to Buyer. If a price is not stated in Buyer's Purchase Order or agreed by Buyer in writing, the Products shall be billed at the lower of the last price quoted or the prevailing market price. Prices shall be fixed and are not subject to increase without Buyer's prior written approval. Seller represents that it has not offered to Buyer, and shall not offer to Buyer, a price which violates applicable law. Subject to applicable law, Seller warrants that the prices for Products hereunder, and any discounts and rebates, are not less favorable than those Seller currently extends to any other customer for the same or similar goods or services in similar quantities. If during the term of a Purchase Order, Seller sells such goods or services in such similar quantities to any other customer at a price that is lower than the price then in effect hereunder, such lower price shall apply to all goods and services thereafter delivered pursuant to such Purchase Order during the time that the lower price to the other customer remains in effect. Prices are stated and payable in U.S. dollars.
Buyer may terminate its Purchase Order, at any time, for its convenience and in whole or in part, by any reasonable manner, including written correspondence, facsimile or electronic mail. If Buyer terminates its Purchase Order for its convenience, Seller's sole claim shall be for the costs it reasonably incurred in the performance of the Purchase Order prior to such termination, with due allowance for the salvage value of Products and parts. If termination is due to Seller's breach of these terms, Buyer may complete performance of the contract by means it selects and Seller shall be responsible for additional costs incurred by Buyer in so doing.
Time is of the essence with respect to delivery of the Products. Buyer reserves the right to cancel its Purchase Order, without incurring liability to Seller, if Seller does not deliver the Products by the established delivery dates. Whenever Seller has knowledge that any actual or potential delay may occur, Seller shall give Buyer immediate notice thereof.
6. Inspection and Acceptance by Buyer
Buyer may inspect and test all or any sample of the Products at Seller's plant and/or the point of destination. At Buyer's option, Buyer may inspect Seller's quality and reliability procedures as well as the data supporting same. Buyer's acceptance of or payment for the Products shall neither (a) relieve Seller from any of its obligations and warranties hereunder nor (b) constitute a waiver of Buyer's rights and claims hereunder. Buyer may reject all or any portion of the Products if it determines the Products are nonconforming or defective. If Buyer rejects any portion of the Products, Buyer has the right, effective upon written notice to Seller, to: (a) rescind the Purchase Order in its entirety; (b) accept the Products at a reasonably reduced price; or (c) reject the Products and require replacement of the rejected Products. If Buyer requires replacement of the Products, Seller shall, at its expense, within 20 business days replace the nonconforming Products and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective Products and the delivery of replacement Products. If Seller fails to timely deliver replacement Products, Buyer may replace them with goods from a third party and charge Seller the cost thereof and terminate the Purchase Order for cause pursuant to these terms and conditions. Any inspection or other action by Buyer shall not reduce or otherwise affect Seller’s obligations under the Purchase Order, and Buyer shall have the right to conduct further inspections after Seller has carried out its remedial actions.
Seller expressly warrants to Buyer, Buyer's customers and the ultimate user and the successors and assigns of all of them that the Products and all articles, material and work covered by any Purchase Order, including any special tools, dies, jigs, patterns, machinery and equipment obtained at Buyer's expense by Seller for the performance of the order (all of which are Buyer's property), will (a) conform to the specifications, representations, standards, drawings, samples or other description furnished by Buyer, or adopted or approved in writing by Buyer; (b) be of good material and workmanship; (c) be new and free from defects; (d) be merchantable, fit and sufficient for the purposes intended; (e) be conveyed to Buyer with good title, free and clear of liens and encumbrances of any nature; (f) comply with all applicable laws including, without limitation, all laws described in section 10 of these terms and conditions; and (g) not infringe on any patent, trademark, copyright or other right of a third party. Buyer's approval of specifications, designs, drawings, samples or descriptions shall not relieve Seller of its warranty obligations. Seller acknowledges that it has knowledge of Buyer's intended use and warrants that all Products that have been selected, designed, manufactured or assembled by Seller based on Buyer's use and will be fit and sufficient for the particular purposes intended by Buyer. The warranties provided in this section shall survive the termination of any Purchase Order and are cumulative and in addition to any other warranty provided by law or in equity.
8. Breach of Warranty
If Seller breaches any of its warranties, including its express warranties and its implied warranties of merchantability and fitness for Buyer's specific purpose, Seller shall be liable for all damages incurred by Buyer, including, without limitation, the purchase price of the Products, delivery costs, repair, replacement and cover costs, lost profits, consequential and incidental damages and lost time expended on behalf of Buyer in attempting to make the Products perform as warranted. Seller acknowledges that, if the Products cause Buyer to deliver services or products to its customers either late or below Buyer's standards, Buyer will incur lost profits and other damages for which Seller is liable. Without limiting Buyer's other rights and remedies, Seller shall, at Buyer's option, promptly and at no cost repair or replace any Products failing to conform with the warranties set forth above or refund to Buyer the purchase price. Buyer retains the right to correct defective Products at Seller's expense. Products or services provided by Seller or its subcontractors or agents pursuant to repair or replacement shall be subject to the same warranty as provided above. If any Products are made according to Buyer's manufacturing information (e.g., designs, specifications, drawings), such information shall be used only to manufacture Buyer's Products.
9. Release and Indemnification
Seller hereby releases and agrees to promptly defend, indemnify and hold Buyer and its affiliates, shareholders, directors, officers, employees, agents, customers, successors and assigns (in this section 9, collectively "Buyer") harmless from and against all damages, suits, liabilities, losses, claims, demands, proceedings, court costs, actual attorneys' fees, expert witness fees and other expenses arising from any loss, damage, harm or injury (including death) to any person or property relating to the Products or (a) any alleged defects in the Products, (b) any inadequate notices, warnings, disclosures or instructions, (c) the alleged violation of any statute, ordinance, code, standard, law, rule or regulation, (d) any alleged patent, trade secret, trademark or copyright infringement arising from intellectual property owned by Seller or a third-party or modification of specifications, materials or designs not provided or approved by Buyer, (e) any alleged unfair competition resulting from similarity of design, trademark, use or appearance of the Products that are not provided by Buyer, (f) any breach of these terms and conditions, (g) any use or consumption of the Products by Buyer, except damages resulting solely and directly from Buyer's negligence; (h) any negligence or wrongful act of Seller, its agents, representatives or subcontractors; (i) any injury, death or occupational disease of any employee or agent of Seller or its subcontractor; and (j) any recalls or corrective actions. Buyer shall have the right (but not the obligation) to control any recall process and Seller shall cooperate with Buyer. Seller agrees upon receiving notification from Buyer to promptly assume full responsibility for defense of any suit or proceeding which may be brought against Buyer and covered by this provision. Buyer may be represented by and actively participate through its own counsel in any such proceedings if it so desires and the cost of representation, including attorneys' fees, shall be paid by Seller. Seller shall, at its own expense, either procure for Buyer the right to continue using Products subject to intellectual property rights claims or, if the performance thereof will not be adversely affected, replace the same with a noninfringing substitute, or modify the Product so it becomes noninfringing, or remove it at Seller's expense and refund to Buyer the purchase price. Seller shall, at its own expense, maintain in effect insurance with respect to its performance hereunder and the Products with such coverages and in such amounts as Buyer may require in writing from time to time and, at a minimum, as may be commercially reasonable. All insurance policies shall be issued by insurance companies reasonably acceptable to Buyer. At Buyer's request, Seller shall cause the issuer of each insurance policy to issue a certificate of insurance naming Buyer as an additional insured and containing an agreement that the policy shall not be terminated or modified without at least 30 days' prior written notice to Buyer, and Seller shall, at Buyer's request, deliver each such certificate to Buyer. Compliance by Seller with the insurance requirements set forth herein shall not relieve Seller from liability under the indemnification provisions of these terms and conditions .
10. Applicable Laws
Seller, in the performance of Buyer's Purchase Order, shall comply with all applicable laws, regulations, rules and ordinances, and Buyer's Supplier Code of Conduct and Quality Manual (as in effect from time to time). Seller shall cause its suppliers, vendors and subcontractors to comply with all such laws, regulations, rules and ordinances and Buyer's Supplier Code of Conduct and Quality Manual (as in effect from time to time). Seller agrees, upon request, to furnish Buyer a certificate confirming such compliance by itself and its suppliers, vendors and subcontractors, such certificate to be in form and substance acceptable to Buyer. Without limiting the foregoing, such laws, regulations, rules and ordinances include those applicable in relation to the manufacture, sale, labeling, transportation, importation, exportation, licensing, approval or certification, delivery and use of the Products, and the following:
Human Rights. Seller shall comply with Buyer's Supplier Code of Conduct and Quality Manual (as in effect from time to time), regarding basic human rights, labor, forced/compulsory labor, child labor, discrimination and harassment, freedom of association, health, safety, compensation and working hours. Seller represents that neither it nor any of its subcontractors, suppliers or vendors will utilize child, slave, prisoner or any other form of forced or involuntary labor in the supply of Products. Seller agrees to comply with all applicable Fair Labor Standards Act requirements and all regulations and orders thereunder. Seller agrees to provide such certifications of such compliance as Buyer may request. Seller shall notify Buyer of all locations from which Seller provides Products to Buyer. Upon request, Seller shall provide Buyer with information and data evidencing Seller's responsible working conditions practices.
Environment. Seller represents and warrants that it maintains, and shall maintain, responsible environmental practices in its operations and supply of Products. Upon request by Buyer, Seller shall provide information and data evidencing such responsible practices. Without limiting the foregoing, Seller shall comply with Buyer's environmental policy as in effect from time to time, and Seller shall provide its employees with training in responsible environmental practices. Seller shall, to the extent possible, use recycled and/or sustainable materials in its supply of Products to Buyer. If the Products are known to Seller to be restricted, toxic or hazardous substances, or if otherwise required by law, Seller shall provide complete and accurate SDS sheets, hazard communication labeling and all other required documents and documents requested by Buyer. Without limiting the foregoing, Seller shall notify Buyer, before manufacture and delivery of Products, of the presence of hazardous substances as defined by any applicable European Union Directives (or directives or laws of other applicable jurisdictions), in Products or processes used to manufacture Products. If the presence of hazardous substances exceeds those allowable under these directives or laws, then, without limiting Buyer's other rights and remedies, Buyer has the right to require Seller to substitute materials in such a way as to comply with the directives or laws. The directives include, without limitation, those of the European Union relating to the restriction of the use of certain hazardous substances in electrical and electronic equipment ("RoHS"), and the Registration, Evaluation, Authorisation and Restriction of Chemicals ("REACH"). Seller represents, warrants and covenants that the Products comply with, and Seller and the Products shall comply with, all directives relating to RoHS, REACH, and waste electrical and electronic equipment ("WEEE"), and legislation relating to the "CE" marking in Europe. At Buyer's request, Seller will certify its compliance with any directive or specific law, rule or regulation related to RoHS, REACH, WEEE or other environmental requirements applicable to Seller or the Products including, without limitation, compliance with document retention, Product marking, and traceability.
Further, to the extent the Products or any of the substances contained in the Products fall within the scope of REACH, Seller confirms that such Products and substances comply with the obligations of REACH. Upon request, in form and substance satisfactory to enable Buyer to meet its compliance obligations with regard to REACH, Seller shall provide Buyer with all necessary information regarding the chemical composition of any Products supplied, including all safety information required under REACH and information regarding the registration or pre-registration status of Products pursuant to REACH. Seller agrees that it shall include any Buyer's "Identified Use", as communicated by Buyer in writing, in its REACH registrations or applications for authorization pursuant to REACH, unless Seller notifies Buyer in writing that it rejects such "Identified Use" in order to protect human health or the environment and specifies the reason for such rejection. In such case, Buyer shall have the right to terminate its Purchase Order without incurring any costs or damages. Seller shall inform Buyer without delay of any substances of very high concern under REACH, which the Products may contain. If the Products contain substances which require authorization pursuant to REACH, without limiting Buyer's other rights or remedies, Buyer may terminate its Purchase Order without incurring any costs or damages. Seller shall assemble and keep available all information Seller requires to carry out its duties under REACH, for at least ten years after Seller last manufactured, imported or supplied the Products. Unless agreed by Buyer in writing, Buyer shall have none of Seller's responsibilities under REACH and Buyer shall be neither Seller's importer nor Seller's only representative under REACH. If Buyer sells or transfers all or part of its business that relates to the Products, Buyer shall be entitled to transmit to the acquirer of such business, all information that Buyer will have received.
Compliance and Ethics. Seller represents and warrants that it is and shall remain in compliance with all applicable business ethics laws and regulations. Without limiting the foregoing, Seller represents and warrants that it is and shall remain in compliance with all applicable laws prohibiting corruption and bribery. Buyer encourages its suppliers to offer their employees corporate compliance and ethics training. Upon request, Seller shall provide Buyer with information necessary for Buyer to measure and verify responsible ethical business practices in accordance with Buyer's Supplier Code of Conduct, as in effect from time to time.
Diversity. Buyer is committed to diversity in the workplace and in its supply chain. Buyer expects its suppliers to demonstrate a commitment to sustain improvement in the diversity of those employed in the supply chain and encourages Seller to provide diversity training to its employees and share its diversity initiatives with Buyer. Seller agrees to comply with Buyer's supplier diversity policy, as in effect from time to time. Such policy may require Seller to have specific short–term and long–term goals and associated action plans to achieve and measure progress in diversity. Upon request, Seller shall provide Buyer with diversity–related information and data relevant to Seller's operation. To the extent applicable, Seller shall comply with all Executive Orders, rules and regulations relating to discrimination against veterans and individuals with disabilities. Seller shall not discriminate against any applicant for employment or employee because of age, race, color, sex, sexual orientation, gender identification, religion or national origin or on any other prohibited basis.
California Proposition 65. Seller acknowledges that all products manufactured by Seller for Buyer, or otherwise supplied by Seller to Buyer, for sale in or delivery to California must comply with California Health and Safety Code Section 25249.5 et seq., commonly referred to as Proposition 65, and implementing regulations ("Prop 65"). Seller shall: (i) notify Buyer of any and all products manufactured by Seller for Buyer, or otherwise supplied by Seller to Buyer, for sale in or delivery to California that contain substances listed in Prop 65 that require a Prop 65 warning; or (ii) if no products fall within the scope of clause (i), certify to Buyer, upon request, that all products manufactured by Seller for Buyer, or otherwise supplied by Seller to Buyer, for sale in or delivery to California do not contain substances listed in Prop 65 and thus do not require a Prop 65 warning. Seller shall defend, indemnify and hold Buyer harmless from and against any and all losses, damages (including, without limitation, special, incidental and consequential damages), civil penalties, liabilities, fees, costs and/or expenses whatsoever including reasonable legal fees and expenses, arising out of or resulting from any Prop 65 violation(s) (including without limitation any alleged Prop 65 violations) relating in any way to any product provided by Seller to Buyer.
Health and Safety. Seller represents and warrants to Buyer that Seller has and follows an appropriate process to verify health and safety practices in its operations, including, without limitation, regulatory compliance, chemical evaluation prior to use, conduct of safety audits with corrective action plans, employee training, and procedures to verify health and safety practices within Seller's supply chain. Without limiting the foregoing, to the extent that any of the Products are to be used by Buyer in connection with its manufacturing or assembly operations, including any activities incidental thereto, Seller certifies, represents and warrants that the Products comply with all applicable rules and regulations issued under the Occupational Safety and Health Act of 1970 (Public Law 91-596), as amended, as well as any and all applicable federal, state and local, safety, health, and environmental laws, rules, regulations and ordinances in connection with the manufacture, sale, delivery and use of Products.
Export Regulations. Seller shall maintain all required licenses, permits and registrations of all applicable governmental authorities and agencies in connection with Seller's Products. Seller shall not export or re–export Products or any technical data relating to Products to any country in violation of applicable export control law. If the agreed delivery term calls for Seller to obtain any required export license, Seller shall apply for and obtain all licenses necessary for the export of Products being sold to Buyer. Seller shall assist when and where necessary during the export license application process with technical support and/or information. Seller shall provide Buyer with certificates of origin required by applicable laws and Seller shall comply with Buyer's other requirements related to origin information, including requirements of Buyer's customers.
Conflict Minerals Law Compliance. Seller represents and warrants that none of the materials it supplies or will supply to Buyer or Buyer's affiliates hereunder or pursuant to a purchase order issued by Buyer or its affiliate will contain any Conflict Minerals (as defined below) and that no Conflict Minerals will be used or purchased for use by Seller in a product manufactured or contracted to be manufactured by Seller hereunder or pursuant to a purchase order issued by Buyer or its affiliate where such Conflict Minerals are necessary to the functionality or production of the product manufactured or contracted to be manufactured by Seller hereunder or pursuant to a purchase order issued by Buyer or its affiliate. Seller shall ensure that each of its suppliers of materials necessary to the functionality or production of the product manufactured or contracted to be manufactured by Seller hereunder or pursuant to a purchase order issued by Buyer or its affiliate complies with the obligations contained in this paragraph. In addition, Seller agrees to provide Buyer and its affiliates with such assistance and cooperation, as is reasonably necessary, in order for Buyer and its affiliates to fully comply with the Conflict Minerals Law (as defined below). Without limiting the foregoing, the assistance and cooperation to be provided by Seller to Buyer and its affiliates pursuant to this paragraph shall include assistance and cooperation with a country-of-origin inquiry for any minerals used or purchased for use by Seller in a product manufactured or contracted to be manufactured by Seller hereunder or pursuant to a purchase order issued by Buyer or its affiliate, and producing information and documentation requested by Buyer and/or its affiliates or any third party hired by Buyer and/or its affiliates to assist with compliance with the Conflict Minerals Law. For purposes of this paragraph the following terms have the following meanings:
"Conflict Minerals" means (a) columbite-tantalite (coltan), cassiterite, gold, wolframite, or their derivatives, which include tantalum, tin and tungsten, unless the Secretary of State of the USA determines that additional derivatives are financing conflict in the Democratic Republic of the Congo or a country that shares an internationally recognized border with the Democratic Republic of the Congo (i.e. Angola, Burundi, Central African Republic, The Republic of the Congo, Rwanda, South Sudan, Tanzania, Uganda and Zambia); or (b) any other mineral or its derivatives determined by the Secretary of State of the USA to be financing conflict in the Democratic Republic of the Congo or a country that shares an internationally recognized border with the Democratic Republic of the Congo.
"Conflict Minerals Law" means Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, as it may be amended from time to time, and any regulations, rules, decisions or orders relating thereto adopted by the Securities and Exchange Commission or successor governmental agency responsible for adopting regulations relating thereto.
Additional Matters. Seller shall review and comply with Buyer's sustainable purchasing guidelines, addressing issues such as environmental compliance, business ethics, diversity, employment practices and product and ingredient safety, as such guidelines are in effect from time to time. Upon Buyer's request, Seller shall take the Supply Chain Corporate Responsibility training developed with AIAG and/or such other training Buyer may request from time to time.
To the extent any applicable laws, regulations, rules, ordinances, codes or statutes are amended, supplemented or replaced, or additional statutory or regulatory provisions are enacted, Seller's obligations hereunder shall be automatically amended to take the same into account.
Seller shall maintain appropriate records regarding Product origin, testing, evaluation and environmental compliance for so long as required by applicable law (or, if longer, for so long as Buyer requests) and shall, upon Buyer's request, provide such records to Buyer for review. Seller shall permit Buyer and/or its agents to conduct periodic audits of Seller's and/or its suppliers', vendors' or subcontractors' premises to confirm Seller's compliance with the requirements of this section 10. Such audits will be conducted with reasonable notice, at reasonable times, and subject to Seller's reasonable confidentiality obligations.
Seller shall comply with all applicable laws, statutes, codes, regulations and rules relating to privacy and personal data, keep such information and data confidential and limit internal access to a "need to know" basis. Seller shall maintain appropriate technical, organizational and administrative measures to secure and protect such information and shall promptly notify Buyer of any loss, breach, theft, or unauthorized access of any information or data provided by Buyer or its customers. Seller shall comply with any privacy and data protection requirements in Buyer's Supplier Code of Conduct and other supplier policies as in effect from time to time.
Buyer shall have the right, at any time, to make changes in drawings, designs, specifications, and materials, packaging, time and place of delivery and method of transportation. If any such changes cause an increase or decrease in the cost, or the time required for the performance of the Purchase Order, an equitable adjustment shall be made. Seller agrees to accept any such changes subject to this section. No other change to the Purchase Order shall be binding unless agreed to in writing by Buyer.
12. Manufacturing Changes
Seller shall give Buyer advance notice in writing of all proposed specification, design, part number and other identification changes, as well as material changes in process procedures made by Seller applying to the Products. All changes require Buyer's prior written approval.
Seller shall hold and maintain in good working order, all machinery, equipment, tools, jigs, dies, patterns, drawings, specifications and samples furnished to Seller by Buyer or paid for by Buyer. Upon the completion of the Purchase Order, Seller shall return such materials to Buyer in good working order, reasonable wear and tear excepted. Unless otherwise agreed by Buyer in writing, Seller shall, at its expense, insure all such items for the reasonable value thereof against loss or damage of any kind. Seller shall keep such materials free of all liens and encumbrances.
14. Confidential Information
All non-public, confidential or proprietary information of Buyer or supplied by Buyer or its customer, or paid for by Buyer, and any proprietary information submitted by Buyer to Seller or its representatives, including but not limited to, specifications, Product technology and know-how, tools, dies, jigs, fixtures, molds, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates (collectively, "Confidential Information"), disclosed by Buyer to Seller, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with these terms and conditions is the property of Buyer and confidential, solely for the purpose of performing under the Purchase Order and these terms and conditions and may not be disclosed or copied unless authorized in advance by Buyer in writing. Buyer shall have the right to remove any Confidential Information at any time upon termination or cancellation, with or without cause, of any Purchase Order, free of any claims by Seller for lien or otherwise against the same. Upon Buyer 's request, Seller shall promptly return all documents and other materials received from Buyer. Buyer shall be entitled to injunctive relief for any violation of this section. This section does not apply to Confidential Information that is: (a) in the public domain; (b) known to Seller at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. Nothing herein shall limit or negate the common or statutory law of torts or trade secrets where it provides Buyer with broader protection than that provided herein.
15. Intellectual Property
Whenever requested by Buyer to do so, Seller will place on the Products, in the manner specified by Buyer, such trademarks or other identifying marks as Buyer may specify. Seller warrants and agrees that Buyer's identifying marks shall be used only on products supplied to Buyer and in the manner and subject to the restrictions imposed by Buyer. All of Buyer's Intellectual Property Rights are and shall remain Buyer's sole property and Seller agrees not to take or permit any action contradicting Buyer's rights thereto. Seller shall not use or permit use of Buyer's Intellectual Property Rights without Buyer's express written consent. Seller shall not retain copies of any designs, drawings, or other materials provided by Buyer except as expressly approved by Buyer. Seller shall not modify, alter, or create any derivative based on any designs, drawings, or other materials, including any intellectual property embodied or disclosed therein, without Buyer’s express written approval. Seller hereby assigns to Buyer any and all rights, title, and interest in and to Intellectual Property Rights that may arise from Seller supplying the Products to Buyer or services provided in connection therewith, including but not limited to all designs, drawings, materials, specifications, inventions, discoveries and know-how, including any and all modifications, alterations, or derivatives, that Seller may develop, conceive, create or accrue in connection with supplying the Products to Buyer pursuant hereto or services provided in connection therewith. Except as expressly instructed by Buyer in writing, no Product designs, drawings or other materials furnished by Buyer, or paid for by Buyer, or Buyer’s Intellectual Property Rights, shall be incorporated in or used in connection with goods furnished to others. Seller shall not copy, reproduce, distribute, publish or communicate Buyer’s Intellectual Property Rights to any third party without the written permission of a properly authorized representative of Buyer. "Intellectual Property Rights" include, without limitation, any patent, trade secret, unregistered or registered copyright, or registered or unregistered trademark, and any similar rights or applications for rights in any of the foregoing in any part of the world owned or used by Buyer or any of its affiliates, and any goodwill relating thereto.
16. After–Sales Service
Seller shall provide, at its own cost and risk, efficient, professional, and diligent after-sales service regarding the Products as may be required by Buyer from time to time. Without limiting the foregoing, Seller shall supply Buyer with its requirements for spare parts and technical services relating to Products. The prices for such spare parts and services shall be no higher than the prices and service fees Seller charges any other customer, and shall be provided on terms and conditions no less favorable to Buyer than those described herein (including without limitation all warranties).
Seller shall not assign, transfer or subcontract Buyer's Purchase Order or any obligation or interest therein without the prior written consent of Buyer. Any purported assignment or delegation in violation of this section shall be null and void. No assignment or delegation shall relieve the Seller of any of its obligations hereunder. Buyer may at any time assign, transfer or subcontract any or all of its rights or obligations under the Purchase Order without Seller’s prior written consent. Subject to the foregoing, these terms and conditions shall inure to the benefit of and bind the parties' successors and assigns.
Prices set forth on the Purchase Order shall separately state all sales, use, excise and similar taxes and all other fees or charges applicable to the Products furnished hereunder or the materials used in the manufacture thereof.
19. Governing Law
The internal laws of the State of Wisconsin shall govern the rights and liabilities of Buyer and Seller hereunder and the interpretation and enforcement of these terms and conditions. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these terms and conditions or any purchases or sales hereunder. Any cause of action, claim, suit or demand by Seller allegedly arising from or related to these terms and conditions or the relationship of the parties shall be exclusively brought in a court situated in the Eastern District of Wisconsin. Both parties irrevocably admit themselves to and consent to the jurisdiction of said court and waive any argument of forum non conveniens or objection to venue.
Buyer reserves the right to correct clerical or similar errors relating to any terms and conditions of Buyer's Purchase Order. Invalidity or unenforceability of any term or condition of Buyer's Purchase Order shall not affect the validity or enforceability of the remainder of the Purchase Order. The failure of Buyer to insist, in any or more instances, upon performance of any of the terms, covenants and conditions of Buyer's Purchase Order shall not be construed as a waiver or relinquishment of any rights granted hereunder or the future performance of any such term, covenant or condition. IN NO EVENT SHALL BUYER BE LIABLE FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, INDIRECT OR PUNITIVE DAMAGES ARISING IN RELATION TO THESE TERMS AND CONDITIONS OR THE PARTIES' RELATIONSHIP. No remedy herein provided to Buyer shall be deemed exclusive of any other remedy available to Buyer. Any provision herein, the performance or effectiveness of which naturally survives (including, without limitation, Seller's warranty and indemnification obligations), shall survive expiration or termination of the parties' agreement for any reason.
PRF-022 Ver. 4
Terms of Sale & Service
1. Controlling Provisions
This document, which includes the quotation, acknowledgement, invoice and/or other Seller document incorporating these terms and conditions, constitutes an offer by Kondex Corporation ("Seller") to the addressee of this offer ("Buyer") to sell the products or parts described herein (the "Products") and/or the services described herein (the "Services") on the following terms and conditions. Buyer's acceptance of this offer is limited to the following terms and conditions. Buyer may not modify, renounce or waive any of these terms or conditions or any of Seller's rights or remedies unless an authorized representative of Seller consents in writing. ANY ADDITIONAL OR DIFFERENT TERMS CONTAINED IN ANY PURCHASE ORDER OR OTHER COMMUNICATION RECEIVED BY SELLER AT ANY TIME HEREBY ARE OBJECTED TO AND REJECTED WITHOUT NEED FOR FURTHER ACTION BY SELLER AND SHALL BE OF NO FORCE OR EFFECT. Buyer's proposal of additional or different terms shall not operate as a rejection of Seller's offer and Seller's offer shall be deemed accepted without said additional or different terms. THESE TERMS AND CONDITIONS CONSTITUTE THE FINAL WRITTEN EXPRESSION OF THE AGREEMENT BETWEEN SELLER AND BUYER REGARDING THE PRODUCTS AND SERVICES AND ARE A COMPLETE AND EXCLUSIVE STATEMENT OF THOSE TERMS. Any terms, conditions, negotiations or understandings between the parties which are not contained herein shall have no force or effect unless in writing and signed by an authorized representative of Seller and expressly stating Seller's intent to modify these terms and conditions. Seller's sales representatives are without authority to change, modify or alter these terms and conditions. If this document is deemed an acceptance of a prior offer by Buyer, such acceptance is limited to the express terms and conditions contained herein. Seller's acceptance of Buyer's prior offer is expressly conditioned on Buyer's assent to all of the terms and conditions set forth herein. Buyer shall be deemed to have made an unqualified acceptance of these terms and conditions on the earliest to occur of the following: (a) Seller's receipt of a copy of these terms and conditions or a document incorporating them, signed by Buyer; (b) Buyer's acknowledgment of, or submission of a purchase order in response to, Seller's quotation, acknowledgment, invoice, or terms and conditions; (c) Buyer's payment of any amounts due hereunder (including any purchase order); (d) Buyer's delivery to Seller of any material to be furnished by Buyer; (e) Seller's delivery of the Products, or of Buyer's products or parts on which Services were performed; (f) failure by Buyer to notify Seller to the contrary within ten days of receipt of these terms and conditions or a document incorporating them; or (g) any other event constituting acceptance under applicable law.
Unless otherwise agreed in writing by Seller, prices are Ex-Works as defined by INCOTERMS 2020, as amended or updated from time to time ("EXW") Seller's plant located at 1500 Technology Drive, Lomira, Wisconsin, USA. Quoted prices for the Products or Services as specified by Seller and for the delivery date quoted by Seller shall remain firm for 30 days from the date of the quote, after which pricing may be adjusted to reflect current market conditions. Notwithstanding the foregoing, Seller reserves the right to adjust prices or quoted prices at any time upon notice to Buyer if Seller incurs increased materials costs, outside purchases costs and/or production costs. Prices are quoted in and must be paid in U.S. currency. Prices do not include, and Buyer agrees to pay or promptly reimburse Seller for, all taxes, transportation costs, duties, penalties, and any other charges and fees which arise from or in connection with, or are measured by, the sale or delivery of the Products, Services or Buyer's products or parts on which Services were performed.
Buyer's order of any Products or Services from Seller shall be subject to the provisions of these terms and conditions. Buyer's order must be made in a form acceptable to Seller and Seller reserves the right to reject any orders for any reason in its sole discretion. Seller's quotation may include minimum order quantities and/or lead times. Buyer agrees to accept over-run or under-run on each individual item not exceeding 10% of quantities ordered. Where closer control of quantity is required, special arrangements must be made with Seller. Seller reserves the right to require Buyer to provide forecasts of purchases based on individual requirements. Change orders agreed to by Buyer and Seller are subject to these terms and conditions.
4. Terms of Payment
Terms of payment are subject to the approval of Seller's credit department. Unless otherwise agreed in writing by an authorized representative of Seller, Buyer shall pay in accordance with Seller's standard payment terms as stated in Seller’s quotation, and, if not stated in the quotation, as in effect from time to time. Buyer agrees to pay, at Seller's discretion, a late payment charge of up to 1.5% per month or the maximum amount allowable by law on all amounts not paid in full when due. If Seller has not been paid in full when due, or if Buyer defaults in performance hereunder, or if Seller, in its judgment, at any time deems that, by reason of the financial or other condition of Buyer or otherwise, its continuance of production or shipment on the terms specified herein is not justified, Seller may, without incurring liability to Buyer and without prejudice to Seller's other lawful remedies (a) terminate Seller's obligations hereunder; (b) declare immediately due and payable all of Buyer's obligations to Seller; (c) change credit terms with respect to any further work; (d) suspend or discontinue any further work; and/or (e) repossess the Products or Buyer's products or parts on which Services were performed. Buyer agrees to pay Seller's costs of collection (including, without limitation, attorneys' fees) on demand by Seller. In partial consideration for Seller's sale of Products or Services to Buyer, Buyer grants to Seller and Seller retains a security interest in (a) all Products sold to Buyer, (b) Buyer's products or parts on which Services were performed, (c) all tooling used by Seller to manufacture the Products, (d) all documents relating to the same now or hereafter in the possession or control of Buyer, title to which might at any time be determined to have passed to Buyer including, without limitation, all inventories of the Products or any other product bearing any trademark or trade name of Seller, and (e) all returns or repossessions of any of the foregoing and the proceeds, including insurance proceeds and proceeds of the foregoing, including, without limitation, proceeds from products in which the Products or Buyer's products or parts on which Services were performed were an input, of all of the foregoing, together with the additions and accessions thereof, to secure all of Buyer's obligations to Seller, whether now existing or hereafter made, incurred or created. Buyer agrees to execute such documents and take such actions as may be required by Seller to evidence or perfect the security interest granted herein and Seller's interest. Seller is authorized in Buyer's name or otherwise to take actions hereunder including, without limitation, signing Buyer's name, and Buyer hereby appoints Seller as its attorney-in-fact for such purpose.
Seller shall deliver Products, or Buyer's products or parts on which Services were performed, EXW Seller's facility (unless otherwise agreed in writing by Seller), and all risk of loss or damage in transit shall pass to Buyer upon such delivery. Shipping dates given by Seller are assumed by Seller to be accurate and are quoted in good faith. Seller will use reasonable efforts to meet the scheduled dates, but does not guarantee to do so. Time for delivery shall not be of the essence. FAILURE BY SELLER TO MAKE ANY SHIPMENT AS SCHEDULED DOES NOT CONSTITUTE A CAUSE FOR CANCELLATION AND/OR DAMAGES. If Buyer claims Products delivered, or Buyer's products or parts on which Services have been performed, are short in weight or count, Buyer must notify Seller in writing within 30 days of Seller's delivery, and the weight found in each shipment, including tare, must be given and Seller advised of the method used in arriving at a count. If such claim is sustained to the satisfaction of both parties, Seller shall, at Seller's option, repair, replace, credit or complete the order. Under no circumstances will Seller be liable for damages or any claims for expense involved in the use or storage of the Product or Buyer's products or parts. Seller will not allow claims on those Products or Buyer's products or parts further processed by Buyer that result in changes that would make reworking impractical. Freight and credit for returns will not be allowed by Seller without previous written authorization. No claims will be allowed for shrinkage, expansion, deformity or rupture of material in treating or straightening, except by prior written agreement, nor in any case for shrinkage, expansion, deformity or rupture caused by or occurring during subsequent processing or use.
In the event of a delay in delivery requested by Buyer or caused by (a) Buyer's failure to supply adequate shipping instruction; (b) Buyer's failure to supply or approve necessary data, drawings, materials, parts or components in a timely manner, or (c) any changes requested by Buyer, Seller will store all Products, or Buyer's parts, at Buyer's risk and expense, and the term of delivery hereunder shall be extended by a period equal to the length of such delay. Also, if actual delivery is delayed beyond the quoted delivery date for any such reason, Seller reserves the right to increase the price of the Products or Services and change the payment terms for them. All storage costs and expenses are due from Buyer as and when payment for the Products or Services becomes due. Buyer's receipt of any Products or products or parts on which Services have been performed shall be an unqualified acceptance of, and waiver by Buyer of any and all claims with respect to, such Products and Services, on the earliest to occur of (a) payment for the Products or Services, or (b) failure of Seller to receive notice in writing of shortages or errors within 30 days of their delivery to the EXW point (or other delivery point agreed in writing by Seller). In the absence of shipping instructions, Seller will use its own discretion in choice of carrier but delivery is EXW (or other delivery point agreed in writing by an authorized representative of Seller) and any arrangement for carrier is a courtesy to Buyer. Partial shipments are permitted. Seller shall package Products, and Buyer's products and parts on which Services are performed, on the terms described in its quotation or as separately agreed in writing by Buyer and Seller. Alternate packing must be acceptable to Seller and is subject to additional charges. Any documentation requested in addition to a bill of lading and packing slip may be subject to additional charges.
6. Cancellation, Changes and Returns
All undelivered Products or Services may be cancelled by Buyer only with the written approval of an authorized representative of Seller. Seller reserves the right to cancel any order or part thereof at any time prior to delivery, for any reason, without incurring liability to Buyer. In the event of cancellation of this order by either party, Buyer shall pay to Seller its reasonable costs and expenses (including engineering and tooling expenses and all commitments to Seller's suppliers and subcontractors incurred by it prior to its receipt of notice of cancellation) plus Seller's usual rate of profit for similar work. Buyer may not modify its order without written consent of an authorized representative of Seller. Seller may, from time to time, change the Services without the consent of Buyer, provided that such changes do not materially affect the nature or scope of the Services, or the fees or any performance dates set forth in Seller's order confirmation. Seller may charge for the time it spends assessing and documenting a change request from Buyer on a time and materials basis in accordance with the quotation. Seller reserves the right to change the price, terms of payment and delivery dates for any Products or Services affected by any modifications to which it consents. Products, or Buyer's products or parts on which Services have been performed, may be returned only on the terms and conditions specified in Seller's written authorization.
7. LIMITED WARRANTIES; EXCLUSIONS AND DISCLAIMERS; BUYER'S AGREEMENT TO INDEMNIFY
(a) Limited Warranty for Products. Seller warrants to the original purchaser from Seller that the Products manufactured by Seller shall be materially free from defects in workmanship under normal use and service for 60 days from the date of Seller's delivery. As Seller's sole and exclusive obligation and liability under this warranty and Buyer's sole and exclusive remedy, upon prompt written notice by Buyer (in any event not later than 90 days after Seller's delivery of the Products) of any claimed defect, Seller may require inspection of the Products and shall repair or replace (at Seller's option), without charge, EXW Seller's facility located at 1500 Technology Drive, Lomira, Wisconsin, USA, any defective Product expressly warranted herein and found by Seller in its reasonable discretion to be defective. This warranty is subject to all limitations in this section 7 and covers only replacement or repair of defective Products at Seller's main office and does not include field service. On equipment or materials furnished by Seller, but manufactured by others, Seller makes NO WARRANTY, but the written warranty of the manufacturer, if any, will be assigned to Buyer if reasonably practicable. However, Seller does not adopt or guarantee or represent that manufacturer will comply with any of the terms of such warranty.
(b) Limited Warranty for Services. Seller represents to the original purchaser from Seller that it shall perform the Services in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services. Seller shall not be liable for breach of the warranty set forth in this section unless Buyer gives written notice to Seller of the Services not in accordance with this warranty, with Buyer's claim reasonably described, within 30 days of the date on which products or parts are delivered to Buyer after performance of Services. Subject to the limitations of this section 7, Seller shall, in its sole discretion, either repair or reperform such Services on any product or part it finds in its reasonable discretion to be not in accordance with this warranty, or if reasonably deemed necessary by Seller, on a new product or part supplied by Buyer at Buyer's cost, or credit or refund the price of such Services for the affected part(s). Such remedies are Buyer's sole and exclusive remedies and Seller's entire obligation and liability for any breach of the limited warranty set forth in this section 7(b).
(c) Limitations on Product and Service Warranties. The limited warranties in section 7(a) and (b) are void in cases of damage in transit, negligence, abuse, abnormal usage, misuse, normal wear and tear, damage due to environmental or natural elements, failure to follow Seller's instructions, accidents or improper repair, storage or maintenance. These warranties do not cover economic loss, such as lost profits or other expenses, or normal maintenance. SELLER MAKES NO REPRESENTATION OR WARRANTY REGARDING PRODUCTS, PARTS OR SERVICES DESIGNED, PROVIDED OR MANUFACTURED BY BUYER OR FOR WHICH BUYER HAS PROVIDED THE SPECIFICATIONS. Seller shall not be liable to Buyer or to anyone claiming under Buyer for any other obligations or liabilities including, without limitation, those arising out of breach of contract or warranty, negligence or other tort or theory of strict liability, with respect to the Products, Services, Buyer's products or parts, or Seller's acts or omissions or otherwise. Expenses incurred by Buyer in repairing or replacing any defective Products will not be allowed except by written permission of Seller. Seller, in its manufacture and sale of Products or provision of Services, does not assume liability as to possible infringements of patents by virtue of the use of Products or Buyer's products or parts in combination with other elements or structures. Seller manufactures to specifications furnished by Buyer or commercial standards of the industry. Any assistance Seller provides to or procures for Buyer outside the terms of these limited Warranties in this section 7 will not constitute a waiver of the limitations herein, nor will such assistance extend or revive any warranty.
(d) No Other Warranties. THERE IS NO OTHER EXPRESS OR IMPLIED WARRANTY. SELLER HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NONINFRINGEMENT AND FITNESS FOR ANY PARTICULAR PURPOSE. FURTHER, SELLER MAKES NO WARRANTY WHATSOEVER WITH RESPECT TO PERFORMANCE OR CAPABILITIES OF MATERIAL AS HEAT TREATED OR AS LASER CLAD (OR THE HEAT TREATMENT OR LASER CLADDING), WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. SELLER'S LIABILITY TO BUYER SHALL CEASE ONCE ANY FURTHER PROCESSING, ASSEMBLING OR ANY OTHER WORK HAS BEEN UNDERTAKEN BY BUYER OR ANY THIRD PARTY.
(e) Disclaimer of Damages and Buyer's Agreement to Indemnify. IN NO EVENT SHALL SELLER BE LIABLE TO BUYER OR TO ANY THIRD PARTY FOR CONSEQUENTIAL, INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES INCLUDING, WITHOUT LIMITATION, LOSS OF USE, REVENUE OR PROFIT OR LOSS OF DATA OR DIMINUTION IN VALUE, WHETHER ARISING OUT OF BREACH OF CONTRACT, TORT, (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGE WAS FORESEEABLE AND WHETHER OR NOT SELLER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE, AND BUYER AGREES TO INDEMNIFY AND HOLD HARMLESS SELLER AND ITS SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, AFFILIATES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, "AFFILIATES") FROM AND AGAINST ANY SUCH DAMAGES. BUYER AGREES TO INDEMNIFY AND HOLD HARMLESS SELLER AND ITS AFFILIATES FROM AND AGAINST ANY LOSS, COST, DAMAGE, SUIT, LIABILITY, DEMAND, PROCEEDING, CLAIM OR EXPENSE INCLUDING, WITHOUT LIMITATION, ATTORNEYS' FEES, EXPERT WITNESS FEES AND COURT COSTS (COLLECTIVELY, "DAMAGES") ARISING OUT OF OR RELATING TO (i) PRODUCTS, PARTS OR SERVICES DESIGNED, PROVIDED OR MANUFACTURED BY BUYER OR FOR WHICH BUYER HAS PROVIDED THE MATERIALS OR SPECIFICATIONS, OR RELATING TO ANY PERSONAL INJURY, LOSS, HARM, DEATH OR PROPERTY DAMAGE CLAIM IN CONNECTION WITH ANY SUCH PRODUCTS, PARTS OR SERVICES; (ii) THE BREACH OF THESE TERMS AND CONDITIONS BY BUYER; (iii) INJURY, HARM, LOSS, DAMAGE TO OR DESTRUCTION OF PROPERTY, OR INJURY TO OR DEATH OF PERSONS CAUSED OR ALLEGED TO HAVE CAUSED, IN WHOLE OR IN PART, BY ANY INTENTIONAL, RECKLESS, NEGLIGENT OR OTHER ACT (OR FAILURE TO ACT) OF BUYER OR ANY PARTY UNDER ITS CONTROL; (iv) ANY PRODUCT RECALL (EXCEPT TO THE EXTENT SOLELY AND DIRECTLY CAUSED BY SELLER'S BREACH OF THESE TERMS AND CONDITIONS); AND (v) THIRD-PARTY CLAIMS, SUITS OR OTHER DAMAGES INCURRED BY SELLER AND RELATING TO OR ARISING OUT OF THESE TERMS AND THE PARTIES' AGREEMENT ALLEGING INFRINGEMENT OF PATENT OR PROPRIETARY RIGHTS OR CLAIMS RELATING TO BUYER'S SALE OR ANY PARTY'S USE OF BUYER'S PRODUCTS (EXCEPT TO THE EXTENT DIRECTLY ARISING DUE TO SELLER'S BREACH OF THESE TERMS AND THE PARTIES' AGREEMENT). Seller may at its option be represented by and actively participate through its own counsel in any suit or proceeding at Buyer's cost.
(f) Limitation of Liability for Products. SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND THE PARTIES' AGREEMENT AND ANY DEFECTIVE PRODUCTS MANUFACTURED OR SOLD TO BUYER BY SELLER, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE LIMITED TO THE MONIES PAID BY BUYER TO SELLER FOR THE DEFECTIVE PRODUCTS MANUFACTURED BY SELLER. The limitation of liability set forth in this section shall not apply to liability, Damage, death or bodily injury to the extent resulting from Seller's gross negligence or willful misconduct.
(g) Limitation of Liability for Services. BUYER UNDERSTANDS THAT EVEN AFTER EMPLOYING THE PROCESSES AND METHODS USED BY SELLER, HAZARDS STILL REMAIN IN METAL TREATING AND LASER CLADDING. IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS AND THE PARTIES' AGREEMENT FOR SERVICES, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED TWO TIMES THE AGGREGATE AMOUNTS PAID TO SELLER FOR SERVICES PERFORMED ON THE RELEVANT PRODUCTS OR PARTS PURSUANT TO THE APPLICABLE QUOTATION. Failure by Buyer to accurately indicate the kind of material (i.e., proper alloy designation) to be treated may result in an extra charge, but shall not change the limitation of liability stated above. The limitation of liability set forth in this section shall not apply to liability, Damage, death or bodily injury to the extent resulting from Seller's gross negligence or willful misconduct. Buyer, by contracting for metal treatment, laser cladding or other Services, agrees to accept the limits of liability as expressed in these terms to the exclusion of any and all other provisions as to liability that may be set forth in Buyer's own invoices, purchase orders or other documents. If Buyer proposes a different or additional liability provision, the same must be agreed to in writing and signed by an officer of Seller before work is started or Services are provided. In such event, a different charge for Services must be agreed, reflecting the higher risk to Seller, and no work will be started until both Seller and Buyer have signed an agreement setting forth the new charges and terms of liability. The inability to discover a defect within a reasonable period of time after the receipt of a shipment of heat treated or laser clad treated material will not void the limitation of liability contained in these terms and the parties' agreement.
8. Confidential Information
All non-public, confidential or proprietary information of Seller or supplied by Seller or its customer, or paid for by Seller, and any proprietary information submitted by Seller to Buyer or its representatives, including but not limited to, specifications, Product technology and know-how, tools, dies, jigs, fixtures, molds, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates (collectively, "Confidential Information"), disclosed by Seller to Buyer, whether disclosed orally or disclosed or accessed in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as "confidential" in connection with these terms and conditions is the property of Seller and confidential, solely for the purpose of performing under the Purchase Order and these terms and conditions and may not be disclosed or copied unless authorized in advance by Seller in writing. Seller shall have the right to remove any Confidential Information at any time upon termination or cancellation, with or without cause, of any Purchase Order, free of any claims by Buyer for lien or otherwise against the same. Upon Seller 's request, Buyer shall promptly return all documents and other materials received from Seller. Seller shall be entitled to injunctive relief for any violation of this section. This section does not apply to Confidential Information that is: (a) in the public domain; (b) known to Buyer at the time of disclosure; or (c) rightfully obtained by Buyer on a non-confidential basis from a third party. Nothing herein shall limit or negate the common or statutory law of torts or trade secrets where it provides Seller with broader protection than that provided herein.
9. Intellectual Property.
Buyer shall not remove, alter, modify or cover up any intellectual property notices (including copyright, trademark or patent notices), trademarks, logos or similar identifying marks, appearing on Products or Product packaging or containers (collectively, “Seller Notices”). Additionally, if requested by Seller to do so, Buyer will place on the Products, in the manner specified by Seller, such Seller Notices as Seller may specify. Buyer warrants and agrees that Seller Notices shall be used only on products supplied by Seller and in the manner and subject to the restrictions imposed by Seller. Unless expressly stated in a separate license agreement, nothing contained in these terms and conditions shall constitute a license to any of Seller's Intellectual Property Rights (as defined below). All of Seller's Intellectual Property Rights are and shall remain Seller's sole property and Buyer agrees not to take or permit any action contradicting Seller's rights thereto. Buyer shall not use or permit use of Seller's Intellectual Property Rights without Seller's express written consent. Buyer shall not retain copies of any designs, drawings, or other materials provided by Seller except as expressly approved by Seller. Buyer shall not modify, alter, or create any derivative based on any designs, drawings, or other materials, including any intellectual property embodied or disclosed therein, without Seller’s express written approval. Buyer hereby assigns to Seller any and all rights, title, and interest in and to Intellectual Property Rights that may arise from Seller supplying the Products to Buyer or services provided in connection therewith, including but not limited to all designs, drawings, materials, specifications, inventions, discoveries and know-how, including any and all modifications, alterations, or derivatives, that Seller may develop, conceive, create or accrue in connection with supplying the Products to Buyer pursuant hereto or services provided in connection therewith. Except as expressly instructed by Seller in writing, no Product designs, drawings or other materials furnished by Seller, or paid for by Seller or Seller’s Intellectual Property Rights, shall be incorporated in or used in connection with goods furnished to others. Buyer shall not copy, reproduce, distribute, publish or communicate Seller’s Intellectual Property Rights to any third party without the written permission of a properly authorized representative of Seller. "Intellectual Property Rights" include, without limitation, any patent, trade secret, unregistered or registered copyright, or registered or unregistered trademark, and any similar rights or applications for rights in any of the foregoing in any part of the world owned or used by Seller or any of its affiliates, and any goodwill relating thereto.
10. Tooling and Equipment
This industry considers tooling and equipment and their engineering and design to be an integral part of the manufacturing processes. Therefore, payment of charges for dies, tools, jigs, fixtures, patterns and gauges (collectively, "Tooling") supplied by Seller conveys neither ownership nor the right of removal from Seller's plant. Buyer shall not have the right to remove Tooling or obtain title thereto without Seller's written agreement and fair reimbursement for the cost of the Tooling, development, experimental work, maintenance and storage. Seller makes NO WARRANTY regarding any Tooling provided to Buyer. Seller agrees to keep any Tooling provided by Buyer in a normal and reasonable state of good preservation as long as it remains in Seller's control. Seller accepts no responsibility for the operation of Tooling when used in any plant other than Seller's plant. Seller is not required to maintain insurance for any of Buyer’s Tooling and shall have no responsibility for loss, destruction, or malfunction of or damages to Buyer’s Tooling. Seller shall charge Buyer for costs of adaptation, modification or excessive maintenance of Buyer's Tooling. Tooling inactive for a period of one year may, at Seller's option, be scrapped. Any resulting scrap value shall belong to Seller as payment for storage and maintenance costs. Seller reserves the right to amortize Tooling in Product/Service unit prices, including a 5% minimum carrying charge over and above the full cost of the Tooling. Any tooling engineered, manufactured or paid for by Seller will remain Seller's property.
In the absence of specific requirements specified by Buyer on blueprint or in writing, commercial tolerances and custom and usage and manufacturing practices in Seller's industry shall apply. Commercial manufacturing practices and tolerances are those resulting from standard manufacturing procedures without extra operations or tooling. Deburring is a costly operation, and burrs will be kept to a minimum consistent with efficient operation. No extra operations are included for their removal unless specified by Seller in writing.
12. Buyer’s Material
Orders requiring use of Buyer's material are accepted subject to delivery of the amount of material and in dimensions as specified by Seller, delivered to Seller's plant. Scrap resulting from stamping operations shall be Seller's property unless otherwise agreed in advance in writing.
13. Buyer's Obligations
(a) cooperate with Seller in all matters relating to the Services;
(b) respond promptly to any Seller request to provide direction, information, approvals, authorizations or decisions that are reasonably necessary for Seller to perform Services in accordance with the requirements of these terms;
(c) provide such Buyer materials or information as Seller may reasonably request (and that Buyer considers reasonably necessary) to carry out the Services in a timely manner, and ensure that such Buyer materials or information are complete and accurate in all material respects; and
(d) obtain and maintain all necessary licenses and consents and comply with all applicable laws in relation to the Services before the date on which the Services are to start, and comply with all applicable laws relating to the use, sale, storage and disposal of products with respect to which Seller has provided Services.
If Seller's performance of its obligations under these terms is prevented or delayed by any act or omission of Buyer or its agents, subcontractors, consultants or employees, Seller shall not be deemed in breach of its obligations under these terms or otherwise liable for any costs, charges or losses sustained or incurred by Buyer, in each case, to the extent arising directly or indirectly from such prevention or delay.
In addition to any remedies that may be provided under these terms, Seller may terminate the parties' agreement with immediate effect upon written notice to Buyer, if Buyer:
(a) fails to pay any amount when due under these terms and such failure continues for 10 days after Buyer's receipt of written notice of nonpayment;
(b) has not otherwise performed or complied with any of the terms of these terms, in whole or in part; or
(c) becomes insolvent, files a petition for bankruptcy or commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors.
15. Force Majeure
In the event of a pandemic, material/supply shortage, operation of statute, law, rule or ruling of any court or government, war, insurrection, act of terrorism, riot, fire, flood, earthquake, acts of God, strike, lockout, labor trouble, breakage of equipment, delay by carriers, inability to obtain raw material (including energy source), accident, operation of laws, demand for goods or services exceeding Seller's available supply or any other cause beyond Seller's reasonable control, interfering with, delaying or preventing the production, servicing, supply, transportation or consumption practice of Seller, quantities so affected shall be eliminated from Seller's obligations without liability, and delivery delays shall be excused, but the parties' contract shall otherwise remain unaffected. Seller may, during any period of shortage due to any of said causes, allocate its supply of such raw materials among its various uses (e.g., manufacturing and sales) in such manner as Seller deems practicable and allocate its supply of goods or services among various users in any manner which Seller deems fair and reasonable.
16. Independent Contractor
Buyer is and shall remain an independent contractor and neither Buyer nor any of its employees or agents shall be or be considered an employee of Seller. Neither Buyer nor any of its employees or agents are authorized to incur any obligations or make any promises or representations on Seller's behalf.
The failure of either party to insist, in any one or more instances, upon the performance of any term or condition, shall not be construed as a waiver or relinquishment of any right granted hereunder or the future performance of such term or condition.
18. Compliance With Laws
Buyer shall comply with all applicable laws and regulations including, without limitation, any environmental laws, export laws and import laws, with respect to these terms and conditions and the use, storage and/or disposal of Products, and of products and parts on which Services were performed.
Neither party may assign these terms and conditions or any purchase orders without the prior written consent of the other party; provided, however, that Seller may assign these terms and conditions and any purchase order in whole or in part to any of its affiliates or purchasers of its business and/or perform its obligations through subcontractors. Subject to the foregoing, these terms and conditions shall inure to the benefit of, and be binding upon, the parties' successors and assigns.
The provisions found in sections 1, 4, 8, 9 and 20 and the limitations on warranty and damages and the indemnification obligation in section 7, and any other provision, the performance or effectiveness of which naturally survives, shall survive expiration or termination of the parties' agreement.
21. No Third-Party Beneficiaries
These terms and the parties' agreement are for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person or entity any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of these terms.
22. Governing Law
The internal laws of the State of Wisconsin shall govern the rights and liabilities of Buyer and Seller hereunder and the interpretation and enforcement of these terms and conditions, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to these terms and conditions or any purchases or sales hereunder. Any cause of action, claim, suit or demand by Buyer allegedly arising from or related to these terms and conditions or the relationship of the parties shall be exclusively brought in a court situated in the Eastern District of Wisconsin. Both parties irrevocably admit themselves to and consent to the jurisdiction of said court and waive any argument of forum non conveniens or objection to venue. The invalidity of any provision or clause herein shall not affect the validity of any other provision or clause. Clerical errors are subject to correction by Seller.
SMF 011 Ver. 8