CLARIOS TERMS AND CONDITIONS OF PURCHASE
US, Canada, Global
These Terms apply when referenced by Buyer’s purchase order or other documentation. These Terms shall apply globally if no other regional Terms control.
1. Offer; Acceptance; Exclusive Terms; Identity of Buyer. Each purchase order or purchase order revision issued by Buyer (“Order”) is an offer to the seller identified on the Order (the “Seller”) for the purchase of goods and/or services (collectively, “Supplies”) and includes and is governed by these Terms and Conditions of Purchase (“Terms”). When accepted, the Order supersedes all prior agreements, purchase orders, quotations, proposals and other communications regarding the Supplies covered by the Order, except that a prior agreement signed by an authorized representative of Buyer (an “Agreement”, such as an award letter, Master Agreement, Statement of Work or Non-Disclosure Agreement (but not prior purchase orders for the same parts and vehicle program)) will continue to apply. Seller accepts the Order, including these Terms, and forms a contract by doing any of the following: (a) commencing any work under the Order; (b) accepting the Order in writing; or (c) any other conduct that recognizes the existence of a contract with respect to the subject matter of the Order. The Order is limited to and conditional upon Seller’s acceptance of these Terms exclusively. The Order does not constitute an acceptance of any offer or proposal made by Seller. Any reference in the Order to any offer or proposal made by Seller is solely to incorporate the description or specifications of Supplies in the prior proposal, but only to the extent that the description or specifications do not conflict with the description and specifications in the Order. Any additional or different terms proposed by Seller, whether in Seller’s quotation, acknowledgement, invoice or otherwise, are unacceptable to Buyer, are expressly rejected by Buyer, and will not become part of the Order, but shall not operate as a rejection of this Order if Seller accepts Buyer’s offer by commencement of work, shipment of the Supplies, or by other means acceptable to Buyer, in which case this Order shall be deemed accepted by Seller without any additional or different terms or variations whatsoever. Any modification of these Terms must be expressly stated in the Order. Each Order can be modified only under Section 34. “Buyer” is the subsidiary or affiliate of Clarios Global LP identified in the Order; if no such entity is identified, the Buyer is Clarios, LLC. The Terms are available at https://www.clarios.com/supplier-information. In the event of a conflict, the order of precedence shall be (i) a mutually-signed agreement shall take precedence over a Statement of Work, (ii) a Statement of Work will take precedence over the Order, and (iii) the Order shall take precedence over these Terms.
2. Time Period of Order. Subject to the parties’ termination rights set forth herein, the agreement formed by the Order is binding on the parties for the term set forth in the Order or, if an Agreement exists which supersedes the Order, the term set forth in the Agreement.
3. Quantity; Material Releases; Delivery. (a) Quantities listed in each Order as estimated are Buyer’s best estimate of the quantities of Supplies it might purchase from Seller for the contract term specified in the Order. Any estimates or forecasts of production volumes are subject to change from time to time, with or without notice to Seller, and shall not be binding upon Buyer. Unless otherwise expressly stated in the Order, Buyer makes no representation, warranty, guaranty or commitment of any kind or nature, whether express or implied, to Seller in respect of Buyer’s quantitative requirements for the Supplies or the term of supply of the Supplies. (b) Unless otherwise expressly stated in the Order or an Agreement, if no other quantity is stated on the face of the Order or if the quantity is blank or states the quantity as zero, “blanket,” “see release,” “as scheduled,” “as directed,” “subject to Buyer’s production releases” or similar terms, then Seller will supply Buyer’s requirements for Supplies in such quantities as identified by Buyer as firm orders in material authorization releases, manifests, broadcasts or similar releases (“Material Releases”) that are transmitted to Seller during the term of the Order, and Seller will supply all such Supplies on such dates and times, at the price and on the other terms specified in the Order. If the Order covers services, Buyer is required to purchase such services to the extent expressly stated in the Agreement, if any. Buyer may require Seller to participate in electronic data interchange or a similar inventory management program, at Seller’s expense, for notification of Material Releases, shipping confirmation and other information. Material Releases are part of the Order, are governed by these Terms and are not independent contracts. Seller accepts the risk associated with lead times of various raw materials and/or components if they are beyond those provided in Material Releases. (c) Time and quantities are of the essence under the Order. Seller agrees to 100% on-time delivery of the quantities and at the times specified by Buyer, as stated in the Order and related Material Releases. Buyer may change the rate of scheduled shipments or direct temporary suspension of scheduled shipments, neither of which entitles Seller to modify the price for Supplies. Buyer is not obligated to accept early deliveries, late deliveries, partial deliveries or excess deliveries. Unless otherwise agreed in writing by Buyer, the risk of loss passes from Seller to Buyer upon delivery to Buyer’s transportation carrier (or if shipment is by Seller or common carrier, then upon delivery to Buyer’s designated facility), but title passes to Buyer only upon acceptance by Buyer at Buyer’s facility where the Supplies are to be used. (d) To assure the timely delivery of Supplies, Seller will, upon written request from Buyer, manufacture Supplies in excess of Buyer’s current Orders to serve as a reserve for shipment, at such inventory reserve level as may be set by Buyer from time to time, to meet Buyer’s requirements and to meet any unforeseen delays due to any reason whatsoever. Until such reserve Supplies are purchased by Buyer from Seller, they shall remain the property of Seller, and shall be held by Seller at its sole risk and expense.
4. Invoicing and Pricing; Freight. (a) Except as expressly stated on the Order, the price of Supplies stated on the Order is complete and includes storage, handling, packaging and all other expenses and charges of Seller, and no surcharges, premiums or other additional charges of any type shall be added without Buyer’s express written consent. Incoterms 2010 will apply to all shipments except those entirely within the USA. Except as otherwise stated in the Order or an Agreement, Supplies will be shipped FCA at Seller’s final production location or other named place designated by Seller on Seller’s side, using Buyer’s transportation. Prices are not subject to increase, unless specifically stated in the Order or an Agreement, and Seller assumes the risk of any event or cause affecting prices, including without limitation, foreign exchange rates, increases in raw material costs, inflation, increases in labor and other production and supply costs, and any other event which impacts the price or availability of materials or supplies. (b) All invoices for the Supplies must reference the Order number, amendment or release number, Buyer’s part number, Seller’s part number where applicable, quantity of pieces in the shipment, number of cartons or containers in the shipment, bill of lading number, currency and other information required by Buyer. No invoice may reference any term separate from or different than these Terms or the terms that appear on the face of the Order. Buyer reserves the right to return all invoices or related documents submitted incorrectly. (c) Buyer will pay proper invoices complying with all of the terms of the Order, subject to adjustments, set-offs, discrepancies and other unresolved issues. (d) The total price includes all duties and taxes except for any governmentally imposed value added tax (VAT) imposed by a non-USA jurisdiction, which must be shown separately on Seller’s invoice for each shipment. Buyer is not responsible for any business activity taxes, payroll taxes or taxes on Seller’s income or assets. Seller will pay all premium freight costs over normal freight costs if Seller needs to use an expedited shipping method to meet agreed delivery dates due to its own acts or omissions. Seller will pay any costs incurred by Buyer as a result of Seller’s failure to comply with shipping or delivery requirements. (e) Seller represents and warrants that the prices are, and will remain, no less favorable to Buyer than any price which Seller presently, or in the future, offers to any other customer for the same or substantially similar goods and/or services for substantially similar quantities. If Seller offers a lower price for the same or substantially similar goods and/or services to any other customer during the term of the Order, then Seller will immediately offer Buyer the same price as offered to Seller’s other customer.
5. Packaging; Marking; Shipping; Disclosure; Special Warnings or Instructions. (a) Seller will: (i) properly pack, mark, and ship Supplies according to the requirements of Buyer, the involved carriers and the country of destination; (ii) route the shipments according to Buyer’s instructions; (iii) label or tag each package according to Buyer’s instructions; (iv) provide papers with each shipment showing the Order number, amendment or release number, Buyer’s part number, Seller’s part number (where applicable), number of pieces in the shipment, number of containers in the shipment, Seller’s name and number, the bill of lading number, any additional requirements reasonably requested by Buyer; and (v) promptly forward the original bill of lading or other shipment receipt for each shipment according to Buyer’s instructions and carrier requirements. (b) Seller will promptly provide Buyer with the following information in the form requested by Buyer: (i) a list of all ingredients and materials in Supplies; (ii) the amount of all ingredients, and (iii) information concerning any changes in or additions to the ingredients. Before and at the time Supplies are shipped, Seller will give Buyer sufficient warning in writing (including appropriate labels on all Supplies, containers, and packing, including without limitation disposal and recycling instructions, material safety data sheets and certificates of analysis) of any hazardous or restricted material that is an ingredient or part of the Supplies, together with any special handling instructions that are needed to advise carriers, Buyer, and their employees how to take appropriate measures while handling, transporting, processing, using or disposing of the Supplies, containers, and packing. Seller agrees to comply with all national, state, provincial, and local laws and regulations pertaining to product content and warning labels, including without limitation the U.S. Toxic Substances Control Act and European Union Directive 2000/53/EC. (c) Seller will reimburse Buyer for any liabilities, expenses and costs incurred as a result of improper packing, marking, routing, or shipping or any other noncompliance with the requirements of this Section. In no event will shipping documents attached to or contained in the shipment display pricing information or any of Buyer’s proprietary information.
5.1 Disclosure; Special Warnings or Instructions. Seller will provide Buyer with the following information, with respect to such Supplies, in a form that would satisfy the requirements of the Sustainability Directives, as defined below, or as otherwise requested by Buyer: (i) a list of all elements, minerals, compounds, and other ingredients that comprise the Supplies (“Required Minerals”) and are the subject of, or addressed by, the Sustainability Directives, defined below, or as otherwise requested by Buyer; (ii) the manufacturing location of Supplies; (iii) the amount and, as applicable, the percentage of each Required Mineral in Supplies, and (iv) in addition and pursuant to Section 9, information concerning any changes in or additions to Required Minerals in these Supplies. Seller will provide the aforementioned information to Buyer as expeditiously as possible prior to the shipment of these Supplies by Seller, but in any event, in sufficient time to afford Buyer reasonable time to a) determine Buyer’s disclosure requirements and b) reject any Supplies, cancel any Order, or pursue all other remedies, including, but not limited to, legal and equitable remedies, in the event Seller either fails to meet applicable Sustainability Directives or Buyer’s disclosure requirements as provided in Sections 5.1 and 5.2. Additionally, before and at the time Supplies are shipped, Seller will give Buyer sufficient warning in writing (including all required labels on all Supplies, containers, and packing, including without limitation disposal and recycling instructions, material safety data sheets and certificates of analysis) of any hazardous or restricted material that is an ingredient or part of the Supplies. Seller agrees to comply with 1) all of Buyer’s published policies on sustainability as they exist from time to time as well as 2) all current, and subsequently enacted, national, state, provincial, and local laws and regulations applicable to Buyer, Buyer’s customers, Seller, or any combination of (1) and (2), pertaining to content of Supplies and warning labels (“Sustainability Directives”), including without limitation the U.S. Toxic Substances Control Act and European Union Directive 2002/96/EC and 2002/95/EC regarding restrictions of certain hazardous substances, Dodd-Frank Act regarding conflict minerals and European Union Regulation 1907/2007/EC regarding Registration, Evaluation, Authorization and Restriction of Chemicals. Link to Registration, Evaluation, and Authorization of Chemicals (REACH) Regulation: http://ec.europa.eu/environment/chemicals/reach/reach_intro.htm. Link to RoHS Directive: http://ec.europa.eu/environment/waste/weee/index_en.htm. Seller will reimburse Buyer for any expenses incurred as a result of improper or incomplete disclosure, packing, marking, routing, or shipping of Supplies.
5.2 Sustainability. In addition to complying with all applicable Sustainability Directives, with respect to Supplies, Seller will i) completely, accurately, and timely respond to Buyer’s surveys and requests for information related to the Sustainability Directives and Required Minerals and ii) fully cooperate with Buyer in Buyer’s efforts to collect information throughout Seller’s supply chain on the origin (including determination of a recycled or scrapped source, location of the mine, smelter, and initial entry into the supply chain) and use of Required Minerals in the Supplies.
5.3 In the event Seller fails to fully and timely comply with Sections 5.1, 5.2, or both, in addition to all other remedies available to Buyer under these Terms, the UCC, or otherwise, Buyer may, in its sole and absolute discretion, with respect to any Supplies, revoke the acceptance, reject, abandon, return or hold such Supplies at Seller’s expense and risk (“Refused Product”) and Buyer may cancel in whole or in part, i) any Order, ii) award letter, iii) any other agreement, iv) any other obligation Buyer may have to purchase any or all Supplies from Seller, or v) any combination of (i), (ii), (iii), and (iv) (collectively “Canceled Products”). Additionally, Buyer has the right to source replacements for any Refused Products, Canceled Products, or any combination thereof and Seller will reimburse Buyer for any difference in cost of such replacements plus all associated expenses, including charges for expediting and quality validation, and losses arising out of or related to adverse effects on Buyer’s business as a result of the need to pursue such alternative sourcing.
6. Customs; Related Matters. Credits or benefits resulting from the Order, including trade credits, export credits or the refund of duties, taxes, or fees, belong to Buyer. Seller will provide all information and certificates (including Certificates of Origin) necessary to permit Buyer (or, if applicable, Buyer’s customers) to receive these benefits or credits. Seller agrees to fulfill any customs - or Free Trade Agreement - related obligations, country of origin marking or labeling requirements, and local content origin requirements. Export licenses or authorizations necessary for the export of Supplies are Seller’s responsibility unless otherwise stated in the Order or an Agreement, in which case Seller will provide the information necessary to enable Buyer to obtain the licenses or authorizations. Seller will promptly notify Buyer in writing of any material or components used by Seller in filling the Order that Seller purchases in a country other than the country in which the Supplies are delivered. Seller will furnish any documentation and information necessary to establish the country of origin or to comply with the applicable country’s rules of origin requirements. Seller will promptly advise Buyer of any material or components imported into the country of origin and any duty included in the Supplies’ purchase price. If Supplies are manufactured in a country other than the country in which Supplies are delivered, Seller shall mark Supplies “Made in [country of origin].” Seller will provide to Buyer and the appropriate governmental agency the documentation necessary to determine the admissibility and the effect of entry of Supplies into the country in which Supplies are delivered. Seller warrants that any information that is supplied to Buyer about the import or export of Supplies is true and that all sales covered by the Order will be made at not less than fair value under the anti-dumping laws of the countries to which the Supplies are exported. To the extent any Supplies covered by this Order are to be imported into the United States of America, Seller shall comply will all applicable recommendations or requirements of the Bureau of Customs and Border Protection’s Customs-Trade Partnership Against Terrorism (“C-TPAT”) initiative. Upon request, Seller shall certify in writing its compliance with the C-TPAT initiative or equivalent trusted trader program such as Authorized Economic Operator.
7. Inspection; Non-Conforming Goods/Services; Audit. Buyer may enter Seller’s facility to inspect the facility, Supplies, materials, and any of Buyer’s property related to the Order. Buyer’s inspection of Supplies, whether during manufacture, prior to delivery, or within a reasonable time after delivery, does not constitute acceptance of any work-in-process or finished goods. Buyer’s acceptance, inspection, or failure to inspect does not relieve Seller of any of its responsibilities or warranties. Nothing in the Order releases Seller from the obligation of testing, inspection and quality control. If defective Supplies are shipped to and rejected by Buyer, the quantities under the Order will be reduced unless Buyer otherwise notifies Seller. Seller will not replace reduced quantities without a new Material Release from Buyer. In addition to other remedies available to Buyer: (i) Seller agrees to accept return, at Seller’s risk and expense at full invoice price, plus transportation charges, and to replace defective Supplies as Buyer deems necessary; (ii) Buyer may have corrected at any time prior to shipment from Buyer’s plant Supplies that fail to meet the requirements of the Order; and/or (iii) Seller will reimburse Buyer for all reasonable expenses that result from any rejection or correction of defective Supplies. Seller will document corrective actions within a commercially reasonable period after receipt of a defective sample and will take whatever measures necessary to correct the defect. Payment for nonconforming Supplies is not an acceptance, does not limit or impair Buyer’s right to assert any legal or equitable remedy, and does not relieve Seller’s responsibility for latent defects. Upon reasonable notice to Seller, either Buyer or its direct or indirect customers may conduct audits at Seller’s production facility for the purpose of quality, cost or delivery verification. Seller will ensure that the terms of its contracts with its subcontractors provide Buyer and its customers with all of the rights specified in this Section.
8. Payment. Unless different payment terms are stated in the Order, the applicable Country Supplement, or required by law, proper invoices will be processed and paid 90 days from the invoice receipt date by Buyer on the next scheduled payment run. Except as otherwise provided in these Terms, Buyer will pay proper invoices on the payment terms stated in the Order or an Agreement, if any. Such payment terms apply to the date Supplies are received at the facility designated by Buyer or, in the case of services, the date that Buyer receives Seller’s invoice following completion of the services. Invoices for tooling must be issued only as approved, as provided in the Order. Buyer may withhold payment pending receipt of evidence, in the form and detail requested by Buyer, of the absence of any liens, encumbrances, or claims on Supplies provided under the Order. Payment will be made in the currency expressly stated in the Order; if no such currency is noted, payment will be made in U.S. Dollars. Payment will be made by mailing on or before the due date unless otherwise expressly agreed by Buyer.
9. Changes. (a) Buyer reserves the right at any time, by written notice to Seller, to make changes, or to require Seller to make changes, to drawings, specifications, sub-suppliers, samples or descriptions of Supplies. Buyer also reserves the right to otherwise change the scope of the work covered by the Order, including work with respect to such matters as inspection, testing or quality control. Buyer may also direct the supply of raw materials from itself or from third parties. Seller will promptly make any such requested change. In order for Seller to request a reasonable difference in price or time for performance as a result of such a change, Seller must notify Buyer of its request in writing within ten days after receiving notice of the change. Buyer can request additional documentation from Seller relating to any change in specifications, price or time for performance. After receiving all requested documentation, Buyer may, in its sole discretion, equitably adjust the price or time for performance. If Seller does not provide timely notice to Buyer that a requested change may result in a difference in price or time for performance, Buyer’s requested change will not affect the price or time for performance. (b) Seller will not make any change relating to Supplies – including without limitation, in the Supplies’ contents, design, specifications, processing, packing, marking, shipping, price or date or place of delivery – except at Buyer’s written instruction or with Buyer’s written approval. Any changes by Seller to any Order or to the Supplies covered by the Order without the prior written approval of an authorized representative of Buyer shall constitute a breach of the Order.
10. Warranties. (a) Seller expressly warrants and guarantees to Buyer, to Buyer’s successors and assigns that all Supplies delivered or provided to Buyer will: (i) be world-class, competitive Supplies in terms of price, quality, delivery and technology, and conform to the specifications, standards, drawings, samples, descriptions and revisions as furnished to or by Buyer; (ii) conform to all applicable laws, orders, regulations and standards in countries where Supplies or vehicles or other products incorporating Supplies are to be sold; (iii) be merchantable and free of defects in design (to the extent designed by Seller or any of its subcontractors, agents or suppliers, even if the design has been approved by Buyer), materials and workmanship; (iv) be selected, designed (to the extent designed by Seller or any of its subcontractors, agents or suppliers, even if the design has been approved by Buyer), manufactured and assembled by Seller based upon Buyer’s stated use and be fit and sufficient for the purposes intended by Buyer, and (v) be free of all liens, claims and encumbrances whatsoever. Seller further expressly warrants that, unless otherwise expressly stated in the Order, the Supplies are manufactured entirely with new materials, none of the Supplies is, in whole or in part, governmental or commercial surplus or used, remanufactured, reconditioned or of such age or condition so as to impair its fitness, usefulness or safety, and the Supplies are free from latent defects or conditions that would give rise to a defect regardless of whether the defect or condition was known or discoverable during the warranty period. (b) For all services, Seller further warrants that its work will be performed in a professional and workmanlike manner, consistent with all standards and specifications agreed on with Buyer and otherwise consistent with industry standards. (c) Seller will immediately notify Buyer in writing when it becomes aware of any ingredient, component, design or defect in Supplies that is or may become harmful to persons or property. (d) Buyer’s approval of any design, drawing, material, process or specifications will not relieve Seller of these warranties.
11. Supplier Standards, Quality and Development. (a) Seller will conform to the quality control and other standards and inspection systems of Buyer, including without limitation quality control policies, ISO 9001:2000 or ISO/IATF 16949:2016 quality certification and ISO 14001 environmental certification including registration. Seller will also participate in supplier quality and development programs of Buyer. To the extent applicable, Seller agrees to meet the full requirements of industry Production Part Approval Processes (PPAP) as specified by Buyer and (as applicable) Buyer’s customers and agrees to present this information to Buyer upon request, at the level requested. As requested by Buyer at any time, Seller will participate in and comply with the following Buyer programs and standards: (i) Buyer’s Supplier Standards Manual (including all subsections and forms), accessible at: www.clarios.com/suppliers; (ii) Advanced Quality Planning (AQP) and Supplier Individual Development Plans (SIDP); (iii) supplier performance evaluations; and (iv) minority business expectations. These programs and standards may be found at: www.clarios.com/suppliers or by contacting Buyer’s assigned purchasing representative. In the event of any discrepancy between any part of the above programs or standards and an express provision of these Terms, these Terms will control. (b) Supplier is responsible for all lower-tier providers of goods or services. Seller must maintain adequate development, validation, launch and ongoing supervision to assure all Supplies provided to Buyer conform to all applicable warranties and other provisions of the Order.
12. Remedies. The rights and remedies reserved to Buyer in each Order will be cumulative with and in addition to all other or legal or equitable remedies. Seller will reimburse Buyer for any incidental, consequential or other damages caused or required by Seller’s breach or by nonconforming Supplies, including without limitation costs, expenses and losses incurred directly or indirectly by Buyer: (i) in inspecting, sorting, storing, reworking, repairing or replacing the nonconforming Supplies; (ii) resulting from production interruptions; (iii) conducting recall campaigns, customer field service actions or other corrective service actions; or (iv) resulting from personal injury (including death) or property damage caused by the nonconforming Supplies. Buyer’s damages include reasonable attorneys’ fees and other professional fees, settlements and judgments incurred by Buyer and other costs associated with Buyer’s administrative time, labor and materials. If requested by Buyer, Seller will enter into a separate agreement for the administration or processing of warranty charge-backs for nonconforming Supplies, and will participate in and comply with warranty reduction or related programs of Buyer that relate to the Supplies. In any action brought by Buyer to enforce Seller’s obligations in connection with the production or delivery of Supplies or transition support, or for possession of property, Seller acknowledges and agrees that monetary damages are not a sufficient remedy for any actual, anticipatory or threatened breach of the Order and that, in addition to all other rights and remedies that Buyer may have, Buyer shall be entitled to specific performance and injunctive equitable relief as a remedy for any such breach, plus Buyer’s reasonable attorneys’ fees.
13. Compliance with Laws; Ethics; Anti-corruption. (a) Seller, and any Supplies supplied by Seller, will comply with all applicable laws, including rules, regulations, orders, conventions, ordinances and standards, including without limitation (i) in relation to the manufacture, labeling, transport, import, export, licensing, approval or certification of the Supplies, and (ii) laws relating to environmental matters, hiring, wages, hours and conditions of employment, subcontractor selection, discrimination, occupational health or safety and motor vehicle safety. The Order incorporates by reference all clauses required by these laws. (b) All materials used by Seller in the Supplies or in their manufacture will satisfy current governmental and safety constraints on restricted, toxic and hazardous materials as well as environmental, electrical and electromagnetic considerations that apply to the country of manufacture, sale or destination. (c) Seller agrees to trace and certify the origin of minerals used in all materials used by Seller in the Supplies or in their manufacture and to provide Buyer with such documents and certifications reasonably requested by Buyer to satisfy Buyer’s Securities Exchange Commission reporting obligations under Section 1502 of the Dodd-Frank Act (Conflict Minerals) (d) Seller and its employees and contractors will abide by Buyer’s Ethics Policy (available at https://codeofethics.clarios.com/) or Seller’s own equivalent ethics policy. (d) Seller acknowledges Buyer’s obligation to comply with all anti-corruption laws, including the U.S. Foreign Corrupt Practices Act (“FCPA”). (e) Seller will not use any amount or any other consideration paid by Buyer for unlawful purposes, including those that would violate provisions of the FCPA or any anticorruption law, such as to make or cause to be made direct or indirect payments to any public official1, in order to provide assistance for Buyer, or for any person acting on their behalf, in obtaining or retaining business with, or directing business to, any person, or securing any improper advantage. (f) Seller shall not make, or cause another to make any direct or indirect offers to pay public officials, for the purpose of influencing or inducing any decision for the benefit of Buyer. (g) Seller shall not employ any subcontractor, consultant, agent or representative without a thorough documented examination of his person, reputation and integrity, and shall not employ any subcontractor, consultant, agent or representative who does not comply with applicable anti-corruption laws. (h) Seller shall immediately inform Buyer in the event Seller or its subcontractor, consultant, agent or representative has violated or is alleged to have violated the FCPA or any anti-corruption law. (i) Buyer reserves the right to immediately terminate the Order if Seller violates the FCPA, any anti-corruption law or these anti-corruption provisions.
14. Indemnification. (a) To the fullest extent permitted by law, (i) Seller hereby assumes the entire, sole responsibility for any injury to person, including death, or damage to property of any kind or nature caused by, resulting from or in connection with the furnishing of Supplies by Seller, its subcontractors, officers, agents or employees; (ii) Buyer shall not be responsible for any injury to person (including death) or damage to property resulting from Seller’s possession, use, misuse or failure of any Buyer’s Property or other property furnished to Seller by Buyer, and the use of any such property by Seller shall constitute acceptance by Seller of all responsibility for any claims for such injury or damage, and (iii) Seller will defend, indemnify and hold harmless Buyer and Buyer’s employees, agents, customers, invitees, subsidiaries, affiliates, successors and assigns, against all damages, losses, claims, liabilities and expenses (including reasonable attorneys’ and other professional fees, settlements and judgments) arising out of or resulting from any defective Supplies, or from any negligent or wrongful act or omission of Seller or Seller’s agents, employees or subcontractors, or any breach or failure by Seller to comply with any of Seller’s representations or other terms and conditions of an Order (including any part of these Terms) – including without limitation the cost of recall campaigns, field service actions or other corrective service actions that, in Buyer's reasonable judgment, are required because of nonconformities in some or all of the Supplies provided by Seller hereunder. Seller's obligation to defend and indemnify under this Section will apply regardless of whether the claim arises in tort, negligence, contract, warranty, strict liability or otherwise except for claims that arise as a result of the sole negligence of Buyer. Buyer has the right to be represented by and actively participate through its own counsel in the defense and resolution of any indemnification matters, at Seller's expense. The indemnification obligations of Seller set forth in this Agreement, including this Section, are independent of and in addition to any insurance and warranty obligations of Seller. (b) If Seller performs any work on Buyer’s premises or utilizes the property of Buyer, whether on or off Buyer’s premises: (i) Seller will examine the premises to determine whether they are safe for the requested work and will advise Buyer promptly of any situation it deems to be unsafe; (ii) Seller’s employees, contractors, and agents will comply with all laws and regulations that apply to the premises and may be removed from Buyer’s premises at Buyer’s discretion; (iii) Seller’s employees, contractors, and agents will not possess, use, sell, transfer or be under the influence of alcohol or unauthorized, illegal, or controlled drugs or substances on the premises; and (iv) to the fullest extent permitted by law, Seller will indemnify and hold Buyer and Buyer’s agents, successors and assigns, harmless from and against any liability, claims, demands or expenses (including reasonable attorneys’ and other professional fees, settlements and judgments) for damages to the property of or personal injuries (including death) to Buyer, its employees or agents, or any other person or entity to the extent arising from or in connection with Seller’s work on the premises or Seller’s use of Buyer’s property, except for any liability, claim or demand arising out of the sole negligence of Buyer.
15. Insurance. Seller will obtain and maintain, with insurance companies rated at least A- VII by AM Best or equivalent and reasonably acceptable to Buyer, the insurance coverage listed below or in additional amounts and coverages as may be reasonably requested by Buyer, in each case
1The term “public official” shall include the following persons:
(a) officers, office holders or employees of (i) a government or any department, agency, or instrumentality thereof (legislative, administrative and judicial), (ii) a regional governmental body, or (iii) a public international organization;
(b) persons acting in an official capacity or exercising a public function for or on behalf of any such government or department, agency, or instrumentality thereof, regional governmental body or public international organization;
(c) officials of a political party (or the political party as a whole);
(d) candidates for public office;
(e) officials of international public organizations, such as the United Nations or the World Bank;
(f) individuals who have functional authority as an official, but are not actually in the employment of a public office;
(g) consultants and special advisors to public offices or public officials; and (h) officers and employees of state-owned enterprises and institutions, even those operating in a commercial capacity, including hospitals, health facilities and universities including Buyer, its directors, officers, agents, and affiliates as additional insured(s). Buyer will also be listed as a loss payee(s) as applicable. Such coverages shall include, without limitation, full fire and extended coverage insurance for the replacement value of (i) all Seller’s Property, and (ii) any bailed Buyer’s Property, both for their full replacement value. Seller will furnish to Buyer a certificate showing compliance with this requirement within 10 days of Buyer’s written request and annually thereafter. Seller must maintain such insurance on an occurrence basis through the term of the Order and for three years thereafter. The existence of insurance does not release Seller of its obligations or liabilities under the Order. Minimum coverage is as follows:
|COVERAGE||LIMITS OF LIABILITY|
|Employer's liability||US $1,000,000 each accident, each employee, each disease – or as required by local law|
|Comprehensive general liability insurance including premises, operations, independent contractors, products, completed operations, personal and advertising injury, and contractual liability||US $5,000,000 per occurrence and in the aggregate (limits may be met with a combination of general liability and umbrella/excess liability insurance)|
|Automobile liability insurance including coverages for owned, no-owned and hired autos||US $2,000,000 / each accident owned and hired autos|
|Property including business interruption insurance||As specified by Buyer|
16. Financial Review; Insolvency. (a) Buyer or a third party designated by Buyer may at any time review the financial condition of Seller and its affiliates, and Seller will fully cooperate in such review and will promptly provide copies of or access to requested documents, including without limitation financial records and statements, forecasts, business plans, banking contacts and loan documents, and will make its financial managers available for discussions during reasonable business hours. Buyer and any designated third party will keep confidential any nonpublic information about Seller obtained in a financial review and use such information only for purposes of the review, except as needed to enforce the Order. (b) The Order may be terminated immediately by Buyer without liability to Seller if any of the following or comparable events occur, and Seller will reimburse Buyer for all costs incurred by Buyer in connection with any of the following, including without limitation attorneys’ and other professional fees: (i) Seller becomes insolvent; (ii) Seller files a voluntary petition in bankruptcy; (iii) an involuntary petition in bankruptcy is filed against Seller; (iv) a receiver or trustee is appointed for Seller; (v) Seller needs accommodations from Buyer, financial or otherwise, in order to meet its obligations under the Order; (vi) Seller executes an assignment for the benefit of creditors; (vii) Seller fails to meet the credit underwriting standards of Buyer's credit insurance program, or (viii) Seller is unable promptly to provide Buyer with adequate reasonable assurance of Seller's financial capability to perform any of Seller's obligations under the Order on a timely basis. In the event that this Order is not terminated in accordance with the immediately preceding sentence, upon the occurrence of an event described in the immediately preceding sentence, Buyer may make equitable adjustments in the price, payment terms, and/or delivery requirements under this Order as Buyer deems appropriate to address the change in Seller's circumstances, including Seller's continuing ability to perform its obligations regarding warranty, nonconforming Supplies or other requirements under this Order. (c) Seller agrees that if Seller experiences any delivery or operational problems, Buyer may, but is not required to, designate one or more representatives to be present in Seller's applicable facility to observe Seller's operations. Seller agrees that if Buyer provides to Seller any accommodations (financial or other) that are necessary for Seller to fulfill its obligations under this Order, Seller will reimburse Buyer for all costs, including attorneys' and other professionals' fees, incurred by Buyer in connection with such accommodation and will grant access to Buyer to use Seller's premises and machinery, equipment, and other property necessary for the production of the Supplies covered by this Order.
17. Termination for Breach or Nonperformance. (a) Buyer may terminate all or any part of the Order, without liability to Seller, if Seller: (i) repudiates, breaches or threatens to breach any of the terms of the Order (including without limitation Seller’s warranties and world-class supplier provisions); (ii) fails or threatens not to deliver Supplies or perform services in connection with the Order; (iii) fails to make progress or to meet reasonable quality requirements so as to endanger timely and proper completion or delivery of Supplies and does not correct the failure or breach within 10 days (or such shorter period of time if commercially reasonable under the circumstances) after receipt of written notice from Buyer specifying the failure or breach or Buyer terminates for breach any other Order issued by Buyer to Seller in accordance with the terms of such other Order (whether or not such other Order is related to the Order); (iv) enters or offers to enter into a transaction that includes a sale of a substantial portion of its assets used for the production of Supplies for Buyer or a merger, sale or exchange of stock or other equity interests that would result in a change in control of Seller, (v) fails to remain competitive with respect to quality, technology, delivery, service or pricing of the Supplies, or (vi) violates the Compliance with Law; Ethics or Anti-corruption provisions of these Terms. Seller will notify Buyer within 10 days after entering into any negotiations that could lead to the situation specified in subsection (iv) above, provided that upon Seller’s request, Buyer will enter into an appropriate nondisclosure agreement related to information disclosed to Buyer in relation to such transaction. (b) Seller may terminate the Order only for non-payment of the purchase price for Supplies which are sixty (60) or more days past due and material in amount, and then only if: (i) Seller first provides Buyer written notice specifying the amounts past due (including the relevant Order and invoices numbers and dates) and Seller’s intent to terminate the Order if the past due amount is not paid; and (ii) Buyer, within sixty (60) days of such notice, does not either: (A) pay the past due amounts, or (B) notify Seller that the amounts claimed to be unpaid are disputed by Buyer. Seller shall terminate under this Section by delivering a written termination notice to Buyer. Seller may not terminate or cancel the Order for any reason except as permitted under this Section. Seller may not suspend performance of the Order for any reason.
18. Termination. In addition to any other rights of Buyer to cancel or terminate the Order, Buyer may, at its option and in its sole discretion, terminate all or any part of the Order (other than the minimum quantities specified in Section 3) at any time and for any reason, and notwithstanding the existence of any event of force majeure under Section 20, by giving at least 14 days written notice to Seller. Upon receipt of notice of termination, and unless otherwise directed by Buyer, Seller will: (a) promptly terminate all work under the Order on the effective date of termination; (b) transfer title and deliver to Buyer the finished Supplies, the work in process, and the parts and materials that Seller reasonably produced or acquired according to quantities ordered by Buyer and that Seller cannot use in producing goods for itself or for others; (c) verify and settle any claims by subcontractors for actual costs incurred directly as a result of the termination and ensure the recovery of materials in subcontractors’ possession; (d) take actions reasonably necessary to protect property in Seller’s possession in which Buyer has an interest until disposal instruction from Buyer has been received; and (e) upon Buyer’s request, cooperate with Buyer in transferring the production of Supplies to a different supplier, including as described in Section 19. Upon termination by Buyer under this Section, Buyer will be obligated to pay only the following: (i) the Order price for all finished Supplies in the quantities ordered by Buyer that conform to the Order for which Seller has not been paid; (ii) Seller’s reasonable actual cost of merchantable and useable work-in-process and the parts and materials transferred to Buyer under part (b) above; (iii) Seller’s reasonable actual costs of settling claims regarding its obligations to its subcontractors required under the Order, to the extent directly caused by the termination, but limited to the amount of the firm quantities of Supplies and raw materials/components specified in Material Releases issued by Buyer and then currently outstanding; (iv) Seller’s reasonable actual cost of carrying out its obligation under subsection (d), and (v) if applicable, amounts due in connection with Transition Support under Section 19(b). Notwithstanding any other provision, Buyer will have no obligation for and will not be required to pay Seller, directly or on account of claims by Seller’s subcontractors, for loss of anticipated profit, unabsorbed overhead, interest on claims, product development and engineering costs, tooling, facilities and equipment rearrangement costs or rental, unamortized capital or depreciation costs, finished goods, work-inprocess or raw materials that Seller fabricates or procures in amounts exceeding those authorized in the Material Releases, or general administrative burden charges from termination of the Order, except as otherwise expressly agreed in a separate Order issued by Buyer. Buyer’s obligation upon termination under this Section will not exceed the obligation Buyer would have had to Seller in the absence of termination. Seller will furnish to Buyer, within one month after the date of termination, its termination claim, which will consist exclusively of the items of Buyer’s obligation to Seller that are expressly permitted by this Section. Buyer may audit Seller’s records before or after payment to verify amounts requested in Seller’s termination claim. Buyer will have no obligation for payment to Seller under this Section if Buyer terminates the Order or portion thereof because of a default or breach by Seller, and any termination shall be without prejudice to any claims which Buyer may have against Seller.
19. Transition of Supply. (a) In connection with the expiration or termination of the Order by either party, in whole or in part, or Buyer’s other decision to change to an alternate source of Supplies (including but not limited to a Buyer owned or operated facility) (“alternative supplier”), Seller will cooperate in the transition of supply, including the following: (i) Seller will continue production and delivery of all Supplies as ordered by Buyer, at the prices and other terms stated in the Order, without premium or other condition, during the entire period reasonably needed by Buyer to complete the transition to the alternate supplier(s) including, at Buyer’s request, providing a sufficient bank of Supplies covered by the Order, such that Seller’s action or inaction causes no interruption in Buyer’s ability to obtain Supplies as needed; (ii) at no cost to Buyer, Seller (A) will promptly provide all requested information and documentation regarding and access to Seller’s manufacturing process, including on-site inspections, bill-of-material data, tooling and process detail and samples of Supplies and components, (B) will provide all notices necessary or desirable for Buyer to resource the Order to an alternative supplier, (C) when requested by Buyer, will return to Buyer all Buyer’s Property in as good condition as when received by Seller (reasonable wear and tear excepted); and (D) will comply with Seller’s obligations relating to Seller’s Property in Section23, and in relation to subcontracts; and (iii) subject to Seller’s reasonable capacity constraints, Seller will provide special overtime production, storage and/or management of extra inventory of Supplies, extraordinary packaging and transportation and other special services (collectively, “Transition Support”) as expressly requested by Buyer in writing. (b) If the transition occurs for reasons other than Seller’s termination or breach, Buyer will, at the end of the transition period, pay the reasonable, actual cost of Transition Support as requested and incurred, provided that Seller has advised Buyer prior to incurring such amounts of its estimate of such costs. If the parties disagree on the cost of Transition Support, Buyer will pay the agreed portion to Seller and pay the disputed portion into third-party escrow for disbursement by arbitration.
20. Force Majeure. Any delay or failure of either party to perform its obligations will be excused if and to the extent that the party is unable to perform specifically due to an event or occurrence beyond its reasonable control and without its fault or negligence, such as: acts of God; restrictions, prohibitions, priorities or allocations imposed or actions taken by a governmental authority (whether valid or invalid); embargoes; floods, earthquakes, explosions; natural disasters; riots; wars; sabotage; inability to obtain power; or court injunction or order. Seller’s inability to perform as a result, or delays caused by, Seller’s insolvency or lack of financial resources is deemed to be within Seller’s control. The change in cost or availability of materials or components based on market conditions, supplier actions, or contract disputes or any labor strike or other labor disruption applicable to Seller or any of its subcontractors or suppliers, will not excuse Seller’s performance (under theories of force majeure, commercial impracticability or otherwise), and Seller assumes these risks. As soon as possible (but no more than one full business day) after the occurrence, Seller will provide written notice describing such delay and assuring Buyer of the anticipated duration of the delay and the time that the delay will be cured. During the delay or failure to perform by Seller, Buyer may at its option: (a) purchase Supplies from other sources and reduce its schedules to Seller by such quantities, without liability to Seller; (b) require Seller to deliver to Buyer at Buyer’s expense all finished goods, work in process and parts and materials produced or acquired for work under the Order; or (c) have Seller provide Supplies from other sources in quantities and at a time requested by Buyer and at the price set forth in the Order. In addition, Seller at its expense will take all necessary actions to ensure the supply of Supplies to Buyer for a period of at least 30 days during any anticipated labor disruption or resulting from the expiration of Seller’s labor contracts. If upon request of Buyer, Seller fails to provide within 10 days (or such shorter period as Buyer requires) adequate assurance that any delay will not exceed 30 days, or if any delay lasts longer than 30 days, Buyer may terminate the Order without liability and Seller shall reimburse Buyer for costs associated with the termination.
21. Technology. (a) All Supplies, tooling (including fixtures, gauges, jigs, patterns, castings, cavity dies and molds, with all related appurtenances, accessions, and accessories), and all other deliverables, data, inventions (whether or not patentable), industrial designs, technical information, know-how, processes of manufacture and other intellectual property and information created, developed, conceived or first reduced to practice by or on behalf of Seller (including without limitation by any person or entity employed by or working under the direction of Seller) or acquired by Seller under this Order, and for which Buyer has agreed to reimburse Seller, along with all intellectual property rights relating thereto, are the sole and exclusive property of Buyer. Seller will promptly disclose in an acceptable form and assign to Buyer all such deliverables, data, inventions (whether or not patentable), industrial designs, technical information, know-how, processes of manufacture and other intellectual property and information. Seller will cause its employees to sign any papers necessary to enable Buyer to file applications for patents throughout the world and to record rights in and to such intellectual property. To the extent that such intellectual property includes any works of authorship (including, without limitation, software) created by or on behalf of Seller, such works shall be considered "works made for hire", and to the extent that such works do not qualify as "works made for hire," Seller hereby assigns to Buyer all right, title, and interest in all copyrights and moral rights therein.
(b) Seller acknowledges and agrees that Buyer has the worldwide, irrevocable right to repair, reconstruct or rebuild, and to have repaired, reconstructed or rebuilt, Supplies delivered under this Order without payment of any royalty or other compensation to Seller.
(c) Seller hereby grants to Buyer, its subsidiaries and affiliates, and their respective successors and assigns, and Buyer hereby accepts, a non-exclusive, irrevocable, worldwide, license, including the right to sublicense others in connection with providing the Supplies to Buyer, under: (i) patents, industrial designs, technical information, know-how, processes of manufacture and other intellectual property, owned or controlled by Seller or its affiliates, and relating to the Supplies, to make, have made, repair, reconstruct, rebuild, relocate, use, sell, offer to sell and import the Supplies, and (ii) any works of authorship fixed in any tangible medium of expression (including without limitation drawings, prints, manuals and specifications) furnished by Seller in the course of Seller’s activity under an Order, to reproduce, distribute, and display such works, and to prepare derivative works based thereon, subject to the other provisions of this Order (all items in clauses (c)(i) and (ii) above, collectively, “Seller’s Intellectual Property”, and such license in respect thereof, the “License”). Seller acknowledges and understands that this License shall be effective from the first date of delivery of the Supplies under this Order (or such earlier date as specified below) and extend for so long as Buyer, or Buyer's subsidiaries and affiliates, have contractual obligations to customers relating to Supplies. Except as provided for below, Buyer agrees to pay to Seller a reasonable royalty for the License, and Seller acknowledges that: (A) for a period of two years from the first delivery of Supplies under an Order, such reasonable royalty shall be deemed to be included in the prices paid by Buyer for such Supplies, and thereafter the License shall be deemed to be royalty free and fully paidup; and (B) in the event that prior to the completion of the applicable time period set forth in subsection (c) (A) above (that is, two calendar years from the first delivery of Supplies under an Order by Seller, as applicable), Buyer wishes to source the Supplies from someone other than Seller, Buyer shall pay an additional amount for such reasonable royalty during the period remaining under subsection (c)(A) above, -- and thereafter, Buyer's license shall be fully paid up and royalty-free. Buyer and Seller shall negotiate in good faith the amount of such additional amount for the reasonable royalty. Buyer and Seller acknowledge and agree that the License granted and accepted under this subsection 21(c) shall take immediate effect (if not already in effect) and be royalty-free and fully paid-up to Buyer in the event that: (A) an Order for Supplies is terminated by Buyer under Sections 17 or 18, and/or (B) in the event that Seller for any reason is unable to satisfy the quality, quantity, delivery or related requirements of Buyer for Supplies under an Order and/or additional orders.
(d) Rights under this Section 21 are intended to be subject to 11 USC Section 365(n), as an executory agreement – including the License under which Buyer has license rights to Seller’s Intellectual Property, -- and are supplementary to any other rights of Buyer under existing Orders and any other agreements with Seller.
(e) All Supplies or other deliverables provided under this Order (including, for example, computer programs, technical specifications, documentation and manuals), shall be original to Seller and shall not incorporate, or infringe upon, any intellectual property rights (including, without limitation, copyright, patent, trade secret, mask work or trademark rights) of any third party, unless otherwise expressly agreed to in writing on behalf of Buyer by an authorized representative of Buyer.
(f) Seller agrees: (i) to defend, hold harmless and indemnify Buyer and its successors against any suit, claim or action for actual or alleged direct or contributory infringement of or inducement to infringe any proprietary right (including any patent, trademark, copyright, moral, industrial design right or other proprietary right or misuse or misappropriation of trade secret) and against any resulting damages or expenses (including attorney’s and other professional fees, settlements and judgments) arising in any way in relation to Supplies covered by this Order (including without limitation their manufacture, purchase, use and/or sale), including such claims where Seller has provided only part of Supplies, and Seller expressly waives any claim against Buyer that such infringement arose out of compliance with Buyer’s specifications, (ii) to waive any claim against Buyer, including any holdharmless or similar claim, in any way related to a third-party claim asserted against Buyer for infringement of any proprietary right (including any patent, trademark, copyright, moral, industrial design right or other proprietary right or misuse or misappropriation of trade secret), including claims arising out of specifications furnished by Buyer, and (iii) that if the sale or use of the Supplies is enjoined or, in Buyer’s sole judgment, is likely to be enjoined, Seller will, at Buyer’s election and Seller’s sole expense, procure for Buyer to right to continue using the Supplies, replace the same with equivalent non-infringing goods or modify such Supplies so they become non-infringing.
22. Buyer’s Property; Confidentiality. (a) All information and materials, including for example, tooling (such as fixtures, gauges, jigs, patterns, castings, cavity dies, molds, with all related appurtenances, accessions, and accessories), packaging, documents, standards, specifications, samples, trade secrets, proprietary information and other materials and items (including whether or not such materials are in any way modified, altered or processed) furnished by Buyer either directly or indirectly to Seller to perform the Order, along with any and all Supplies, tooling, deliverables, data, and intellectual property rights under Section 21(a), for which Buyer has agreed to reimburse Seller , shall be (or, as applicable, will become as fabricated or conceived or reduced to practice or acquired, regardless of payment) and remain the sole and exclusive property of Buyer (collectively, “Buyer’s Property”). Any and all goods manufactured by Seller with the use of Buyer’s Property may not be used for Seller’s own use or manufactured or provided (or offered to be manufactured or provided) to third parties without Buyer’s express written authorization. (b) Buyer does not guarantee the accuracy of, or the availability or suitability of, Buyer’ Property supplied by Buyer. Seller agrees carefully to check and approve, for example, all tooling, dies or materials supplied by Buyer prior to using it. Seller shall assume all risk of death or injury to person or damage to property arising from the use of Buyer’s Property. TO THE EXTENT PERMITTED BY LAW, BUYER SHALL HAVE NO LIABILITY TO SELLER OR ANYONE CLAIMING BY OR THROUGH SELLER FOR ANY INCIDENTAL OR CONSEQUENTIAL OR OTHER DAMAGES OF ANY KIND WHATSOEVER RELATING TO BUYER’S PROPERTY SUPPLIED BY BUYER. BUYER DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO SUCH BUYER’S PROPERTY, INCLUDING WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND SELLER WAIVES, FOR ITSELF AND ITS SUCCESSORS AND ASSIGNS, ALL CLAIMS OF NEGLIGENCE AND STRICT LIABILITY. (c) Buyer’s Property will be held by Seller or by a third party, to the extent that Seller has transferred possession of Buyer’s Property to a third party, on a bailment basis as a bailee-at-will. Seller bears the risk of loss of and damage to Buyer’s Property while under Seller’s care, custody or control. Seller is solely responsible for inspecting, testing and approving all Buyer’s Property prior to any use, and Seller assumes all risk of injury to persons or property arising from Buyer’s Property. Buyer’s Property will be housed, maintained, repaired and replaced by Seller at Seller’s expense in good working condition capable of producing Supplies meeting all applicable specifications, will not be used by Seller for any purpose other than the performance of the Order, will be deemed to be personalty, will be conspicuously marked by Seller as the property of Buyer, will not be commingled with the property of Seller or with that of a third person, and will not be moved from Seller’s premises without Buyer’s approval. Seller will insure Buyer’s Property with full fire and extended coverage insurance for its replacement value. Any replacement of Buyer’s Property will become Buyer’s property. Seller may not release or dispose Buyer’s Property to any third party without the express written permission of Buyer. Buyer will have the right to enter Seller’s premises to inspect Buyer’s Property and Seller’s records regarding Buyer’s Property. Only Buyer (or Buyer’s affiliates) has any right, title or interest in Buyer’s Property, except for Seller’s limited right, subject to Buyer’s sole discretion, to use Buyer’s Property in the manufacture of Supplies. Buyer and its affiliates have the right to take immediate possession of Buyer’s Property at any time without payment of any kind. Seller agrees to cooperate with Buyer if Buyer elects to take possession of Buyer’s Property. Effective immediately upon written notice to Seller, without further notice or legal action, Buyer has the right to enter the premises of Seller and take possession of all of Buyer’s Property. Seller expressly waives any right to additional notice or process and agrees to provide Buyer or its nominee(s) with immediate access to Buyer’s Property. Seller grants to Buyer a limited and irrevocable power of attorney, coupled with an interest, to execute and record on Seller’s behalf any notice financing statements with respect to Buyer’s Property that Buyer determines are reasonably necessary to reflect Buyer’s interest in Buyer’s Property. At Buyer’s request, Buyer’s Property will be immediately released to Buyer or delivered by Seller to Buyer either (i) FCA transport equipment at Seller’s plant, properly packed and marked in accordance with the requirements of Buyer’s selected carrier, or (ii) to any location designated by Buyer, in which case Buyer will pay Seller the reasonable costs of delivery. Seller waives, to the extent permitted by law, any lien or other rights that Seller might otherwise have on any of Buyer’s Property, including but not limited to molder’s and builder’s liens, or any liens or other rights that Seller might otherwise have on Buyer's Property for work performed on such property, for the purchase price of Supplies, or otherwise. (d) Seller acknowledges that Buyer's Property includes proprietary and confidential information, regardless of whether such information is marked or identified as confidential, and is delivered to Seller on a confidential and nonpublic basis for the purpose of performing the Order only. All terms of the Order are deemed proprietary and confidential information of Buyer. Seller agrees to keep all proprietary or confidential Buyer's Property in strictest confidence, and further agrees not to disclose or permit disclosure to others, or use for other than the purpose of the Order, any such proprietary and confidential information. Seller shall (i) disclose Buyer’s Property within Seller's organization only to those employees who have a need to know in order to fulfill Seller's obligations hereunder and who have agreed to keep the Buyer’s Property confidential, and (ii) prevent any such Buyer’s Property from being divulged to third persons not employed by Seller without the prior written consent of Buyer, including having recipients acknowledge the confidential status of such Buyer’s Property and agree to similar restrictions. This obligation of confidence shall survive termination of this Agreement and will continue for the longer of (i) a period of five years from the date of disclosure of information covered by this Section, or (ii) a period ending three years after termination or expiration of any related Order, or (iii) as long as Buyer's Property remains a trade secret, whichever is longer, and unless a longer period is specified in writing by Buyer. The restrictions and obligations of this Section will not apply to information that: (a) is already publicly known at the time of its disclosure by Buyer; (b) after disclosure by Buyer becomes publicly known through no fault of Seller; (c) Seller can establish by written documentation was properly in its possession prior to disclosure by Buyer or was independently developed by Seller without use of or reference to Buyer’s information, or (d) is disclosed pursuant to law, regulation or lawful order or process. In such event, Seller shall promptly notify Buyer of the disclosure requirement to permit Buyer to oppose or limit such disclosure. Notwithstanding anything to the contrary in this Order, any confidentiality or non-disclosure agreement between the parties that predates this Order will remain in effect except as expressly modified by this Order, and to the extent of a conflict between the express terms of such an agreement relating to Buyer's confidential information and this Section 22, the terms of that agreement will control with respect to Buyer's confidential information.
23. Seller’s Property Seller, at its expense, will furnish, keep in good working condition capable of producing Supplies meeting all applicable specifications, and replace when necessary, all materials, machinery, equipment, tools, jigs, dies, gauges, fixtures, molds, patterns, blueprints, designs, specifications, drawings, photographic negatives and positives, art work copy layout and other items that are not Buyer’s Property and that are necessary for the production of Supplies under any Order (“Seller’s Property”). Seller will insure Seller’s Property with full fire and extended coverage insurance for its replacement value. If Seller uses Seller’s Property to produce goods or services similar to Supplies for other customers, including aftermarket customers, such goods or services will not incorporate any of Buyer’s Property, logos, trademarks, tradenames or part numbers. Seller will not disclose or imply in its marketing efforts that such goods or services are equivalent to those purchased by, or configured for, Buyer. Seller grants to Buyer an irrevocable option to take possession of and title to Seller’s Property that is special for production of Supplies under an Order (including, by way of example, and without limitation, Seller’s Property specially designed or configured for the manufacture or assembly or other processing of Supplies), upon payment to Seller of its net book value less any amounts that Buyer has previously paid to Seller for the cost of such items, or (if applicable) any such other amount as may be required by applicable law. This option does not apply if Seller’s Property is used to produce goods that are the standard stock of Seller or if a substantial quantity of like goods are being sold by Seller to others. Buyer’s option rights under this Section with respect to Seller’s Property are intended to be subject to Buyer’s rights and elections under 11 USC Section 365(n), as and to the extent that such Seller’s Property represents embodiments of intellectual property, including intellectual property licensed by Seller to Buyer under Section 21(c) above.
24. Set-Off; Recoupment. In addition to any right of setoff or recoupment provided by law, all amounts due to Seller will be considered net of indebtedness of Seller and its affiliates or subsidiaries to Buyer and its affiliates or subsidiaries. Buyer will have the right to set off against or to recoup from any payment or other obligation owed to Seller, in whole or in part, any amounts due to Buyer or its affiliates or subsidiaries from Seller or its affiliates or subsidiaries. Buyer will provide Seller with a statement describing any offset or recoupment taken by Buyer.
25. Information Disclosed to Buyer. Seller agrees not to assert any claim against Buyer or its suppliers, with respect to any technical information that Seller has disclosed or may disclose to Buyer in connection with the Supplies covered by the Order, except to the extent expressly covered by a separate written confidentiality and/or license agreement signed by Buyer or by a valid patent expressly disclosed to Buyer prior to or at the time of the Order.
26. No Publicity. Seller will not advertise, publish or disclose to any third party (other than to Seller’s professional advisors on a confidential and need-to-know basis) in any manner the fact that Seller has contracted to furnish Buyer the Supplies covered by the Order or any terms of the Order (including prices), or use any trademarks or trade names of Buyer in any press release, advertising or promotional materials, without first obtaining Buyer’s written consent.
27. Relationship of Parties. Seller and Buyer are independent contracting parties and nothing in the Order will make either party the employee, agent or legal representative of the other for any purpose. The Order does not grant either party any authority to assume or to create any obligation on behalf of or in the name of the other. Seller will be solely responsible for all employment and income taxes, insurance premiums, charges and other expenses it incurs in connection with its performance of the Order, except as expressly provided in a written agreement signed by Buyer. All employees and agents of Seller or its respective contractors are employees or agents solely of Seller or such contractors, and not of Buyer, and are not entitled to employee benefits or other rights accorded to Buyer’s employees. Buyer is not responsible for any obligation with respect to employees or agents of Seller or its contractors.
28. Assignment. (a) Seller may not, without Buyer’s prior written consent (on the face of an Order or in a signed writing by an authorized representative of Buyer), (i) assign or delegate (including without limitation by subcontract) its obligations under the Order, or (ii) enter or offer to enter into a transaction that includes a sale of a substantial portion of its assets used for the production of the Supplies for Buyer or a merger, sale or exchange of stock or other equity interests that would result in a change of control of Seller. In the event of any approved assignment (including without limitation subcontract), sale or delegation authorized by Buyer, Seller retains all responsibility for Supplies, including all related warranties and claims, unless otherwise expressly agreed in writing by Buyer. (b) With Buyer’s prior written consent, Seller may make an assignment of receivables due or to become due to a single financial institution; provided, however, that any such assignment shall be subject to set-off (see Section 24 above) or other proper method of enforcing any claims that Buyer may have under the Order. (c) Buyer may, without the consent of Seller, assign this Order in whole or in part (i) to an Affiliate, a parent organization, a subsidiary organization, a subsidiary of its parent, or any corporation or entity in which Buyer or any of its Affiliates has an ownership interest; or (ii) to Buyer’s or its Affiliate’s successor-in-interest in the event of an affiliation, merger, acquisition, sale or disposition of a portion of its assets, consolidation, restructuring, break up, or other arrangement between Buyer or any of its Affiliate and any third party.
29. Sales Tax Exemption. The Supplies purchased under the Order are identified as industrial processing and may be exempt from sales taxes. In such case, the tax identification number and/or other exemption information are stated in the Order or as otherwise provided by Buyer.
30. Governing Law; Arbitration; Jurisdiction. The Order is to be construed according to and will be governed by the laws of the State of Wisconsin and the United States of America. The provisions of the United Nations Convention on Contracts for the International Sale of Goods, and any conflict-of-laws provisions that would require application of another choice of law, are excluded. The arbitration provisions of this Section will be governed by the United States Federal Arbitration Act. At Buyer’s option, exercised by written notice any time before or within 30 days following the service of process in a legal action, any dispute regarding the Supplies, the Order, the validity of the Order or any of these Terms, or any other matter between the parties (other than requests for equitable or injunctive relief or specific performance) will be resolved by binding arbitration, conducted in the English language using a single arbitrator as follows: (a) the arbitration will be conducted under the commercial arbitration rules of the American Arbitration Association (AAA) and under Rules 26 through 37 of the U.S. Federal Rules of Civil Procedure, in a location agreed by the parties; (b) if the parties cannot agree on a location within 30 days of either party’s written request for arbitration, the arbitration will be conducted in metropolitan Milwaukee, Wisconsin, USA; and (c) the arbitrator will be selected from an AAA list using the AAA-recommended selection method. The arbitrator will issue written findings of fact and conclusions of law. Each party will bear equally the costs and expenses of AAA and of the arbitrator, and each party will bear its own costs and expenses – provided, however, (1) that the failure by one party to pay its share of arbitration fees constitutes a waiver of such party’s claim or defense in the arbitration, and (2) that the arbitrator may award attorneys’ fees and costs to the substantially prevailing party. In no event will any party be awarded punitive or exemplary damages or any other damages not measured by the prevailing party’s actual damages. All arbitration proceedings shall be confidential, except to the extent that disclosure is necessary to enforce an arbitration award in a court of competent jurisdiction. The award of the arbitrator will be enforceable in any court of competent jurisdiction, provided that either party may appeal to the U.S. District Court for the Eastern District of Wisconsin, for correction of any clear error of fact or law by the arbitrator (provided that the appealing party must first post an appropriate bond and that the prevailing party in any such action will be entitled to its attorneys’ fees and costs). In all other cases, including any request for equitable or injunctive relief, the parties agree and consent to the exclusive jurisdiction of the Circuit Court for Milwaukee County, Wisconsin or the U.S. District Court for the Eastern District of Wisconsin, as applicable, provided that Buyer may elect to bring an action against Seller in any court having jurisdiction over Seller.
31. Language; Severability; No Implied Waiver. The parties acknowledge that it is their wish that these terms and all documents relating thereto be in the English language only. If any term of the Order is invalid or unenforceable under any statute, regulation, ordinance, executive order or other rule of law, the term will be deemed reformed or deleted, as the case may be, but only to the extent necessary to comply with applicable law. The remaining provisions of the Order will remain in full force and effect. The failure of either party at any time to require performance by the other party of any provision of the Order will not affect the right to require performance at any later time, nor will the waiver of either party of a breach of any provision of the Order constitute a waiver of any later breach of the same or other provision of the Order.
32. Survival. The obligations of Seller to Buyer survive termination of the Order, except as otherwise provided in the Order.
33. Waiver of Jury Trial. BUYER AND SELLER ACKNOWLEDGE THAT THE RIGHT TO TRIAL BY JURY IS A CONSTITUTIONAL ONE, BUT THAT IT MAY BE WAIVED. EACH OF BUYER AND SELLER, AFTER CONSULTING (OR HAVING THE OPPORTUNITY TO CONSULT) WITH COUNSEL OF ITS CHOICE, KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT TO TRIAL BY JURY IN ANY ACTION OR OTHER LEGAL PROCEEDING ARISING OUT OF OR RELATING TO ANY ORDER OR OTHER DOCUMENT PERTAINING TO ANY ORDER.
34. Entire Agreement; Modifications; Buyer’s Website. (a) Except as described in Section 1, the Order, together with the attachments, exhibits, supplements or other terms of Buyer specifically referenced therein, constitutes the entire agreement between Seller and Buyer with respect to the matters contained in the Order. The Order may only be modified (1) by a written amendment executed by authorized representatives of each party or, (2) for changes within the scope of Section 9, by a purchase order amendment issued by Buyer. (b) Buyer may modify purchase order terms and conditions from time to time by posting revised purchase order terms and conditions to Buyer’s internet website (or such other website as may be directed through links available on such website) as specified on the face of this Order (“Buyer’s Website”) at www.clarios.com/suppliers, prior to the date when any modified terms and conditions become effective. Such revised purchase order terms and conditions shall apply to all purchase order revisions/amendments and new Orders issued on or after the effective date thereof. Seller shall be responsible to review Buyer’s Website periodically. (c) Buyer’s Website may also contain specific additional requirements for certain items covered by this Order, including labeling, packaging, shipping, delivery and quality specifications, procedures, directions and/or instructions. Any such requirements shall be deemed to form part of the Terms and the Order. Buyer may periodically update such requirements by posting revisions thereto on Buyer’s Website. In the event of any inconsistency between the Order and Buyer’s Website, the terms of the Order shall prevail, unless the requirements specified on Buyer’s Website expressly provide otherwise.
35. Claims by Seller. Any legal action or arbitration proceeding by Seller under any Order must be commenced no later than one (1) year after the breach or other event giving rise to Seller’s claim occurs, or Seller becomes aware of the existence (or facts and circumstances giving rise to the existence) of such claim, whichever occurs first.
36. Battle of the Forms Not Applicable. The parties have agreed and it is their intent that the battle of the forms Section 2-207 of the Uniform Commercial Code shall not apply to these Terms or to any invoice or acceptance form of Seller relating to these Terms. It is the parties’ intent that these Terms shall exclusively control the relationship of the parties, and in the event of any inconsistency between any invoice or acceptance form sent by Seller to Buyer and these Terms, these Terms shall control.
37. Diversity Development Program. Seller agrees to actively support Clarios’ Diversity Business Development Initiative with Minority/Women-Owned Business Enterprises and provide Minority/Women-Owned Business Enterprises (“M/WBEs”) with the maximum practicable opportunity to participate in subcontracts, with a suggested goal of 15% utilization of M/WBEs. Seller will require a Minority/Women-Owned certification by one of the affiliated local Councils of the National Minority Supplier Development Council (“NMSDC”) or Women’s Business Enterprise National Council (“WBENC”) from any firm claiming to be an M/WBE. Seller shall report all M/WBE spending data to Clarios’ diversity business development representative on a quarterly basis, including without limitation, an identification of each M/WBE utilized, the goods and/or services procured from each M/WBE and the total amount paid to each M/WBE in connection therewith. Clarios’ Diversity Business Development department may request other various information to ensure that reported spend conforms to NMSDC and WBENC guidelines.