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1. Complete Agreement; No Modification. Acceptance of this order is expressly limited to these terms and conditions. Any additional or different terms in Supplier's other documentation are hereby deemed to be material alterations and notice of objection to them and rejection of them is hereby given.
2.Acceptance. Supplier is expected to promptly accept this order in writing; however, if Supplier does not accept this order in writing, any conduct by Supplier which recognizes the existence of a contract pertaining to the subject matter of this order, including the provision of Products to Buyer as contemplated herein, shall constitute acceptance by Supplier of this order and all of its terms and conditions. Buyer expressly rejects any terms proposed by Supplier in accepting this offer, or otherwise, which are in addition to, or different from, those contained in this offer, including any terms of Supplier which are contained in any quotation, proposal or order confirmation furnished by Supplier, and no such additional or different terms shall apply unless explicitly agreed to in writing by an authorized representative of Buyer. If Supplier does not accept the order in writing or provide written notice that it has commenced performance within five days of Supplier's receipt of the order, the order will lapse. Buyer may withdraw the order at any time before it is accepted by Supplier.
3. Price and Price Adjustments. The prices shown in this order shall, except as explicitly adjusted pursuant to this Section, remain firm throughout the term of this order. The prices shown include all applicable charges to be invoiced to Buyer and, if Supplier determines that any agreed upon charge for dunnage, pallets, handling, or otherwise, has not been included in such prices, then Supplier must notify Buyer of any such additional charge prior to Supplier's acceptance of this order or Supplier's first provision of Products hereunder. Supplier shall only invoice taxes which it is required by law to collect from Buyer and shall not invoice any tax for which Buyer has furnished a valid tax exemption certificate. Any tax included on the invoice shall be shown on a separate line labelled "tax". Supplier represents that its prices charged for Products under this order are competitive prices charged by Supplier to buyers of the same kind as Buyer under conditions substantially similar to those specified in this order.
Unless Buyer explicitly agrees in writing to the contrary, Supplier shall not be entitled to any price increases hereunder other than those price increases that result from the application of the materials adjustment mechanism agreed to, in writing, by the parties hereto. Buyer shall have the right, in its sole discretion, to accept or reject, in whole or in part, any other request for a price increase made by Supplier and with respect to any such price increase request, Supplier agrees that:
a) Supplier shall not be entitled to pass through any price increase from a sub-supplier whom Supplier has been directed to use by Buyer unless and until such price increase has been reviewed and approved by Buyer.
b) Any such price increase request by Supplier must be supported by a submission, by Supplier, of such supporting information as may be reasonably required by Buyer and in the format required by Buyer. Supplier acknowledges that any price increase request that does not comply with Buyer's required format will require a minimum of ninety (90) days to resolve.
c) Prior to consideration of any such price increase, a lean assessment approved by Buyer in order to determine whether Supplier has margin enhancement opportunities that could be implemented in lieu of Supplier's proposed price increase request.
In the event that Buyer and Supplier are not able to agree upon a price increase acceptable to both parties, then Supplier agrees to continue to sell the Products to Buyer at the existing prices for such Products, without interruption, for a minimum period of twelve (12) months after Buyer’s final written rejection of Supplier’s price increase request and otherwise cooperate with Buyer to allow Buyer to resource the Products in question to an alternative supplier.
4. Ordering Process and Procedures
a) Blanket Order/Schedule Agreement. If this order is identified as a "blanket order" or as a “schedule agreement”, Buyer shall issue a "Delivery Schedule" to Supplier for specific part revisions, quantities, and delivery dates for Products. Buyer shall have the right to cancel, adjust, or reschedule the quantities of Products shown in such Delivery Schedule, except that it may not cancel, adjust, or reschedule the Products shown as "Firm Obligations" on such Delivery Schedule without Supplier's agreement. Supplier will retrieve the releases through electronic data interchange (EDI) or Buyer's web supplier portal.
b) Capacity. Seller shall notify buyer which items are potentially subject to capacity constraints. Seller shall provide updated status on capacity (installed, demonstrated and planned) at a minimum every 3months and upon discrete request from buyer.
c) Forecast and Lead Time. Buyer will provide to Supplier a monthly forecast, no less than once per week. Buyer and Supplier agree that the period up to and including the agreed upon firm reorder lead time shall constitute a firm order for such products which SAF shall be obligated to purchase, and Supplier shall be obligated to sell. The remaining forecast period against which Supplier should plan and procure material to support expected Buyer firm schedules shall be a non-binding estimate for planning purposes only. To the extent that Buyer’s orders and releases for the Products are within customary lead-times, Supplier agrees to maintain sufficient capacity to supply all ordered Products in accordance with Buyer’s releases, and to collaborate effectively, and with transparency, with Buyer’s supply chain teams on medium-long term capacity planning.
d) Discrete Purchase Order. If this order is identified as a discrete purchase order or spot buy purchase order, the order is not binding on Buyer until Supplier accepts the order in writing or starts to perform in accordance with the order. If Seller does not accept the order in writing or provide written notice that it has commenced performance within five days of Supplier's receipt of the order, the order will lapse. Buyer may withdraw the order at any time before it is accepted by Supplier.
e) Delivery Schedule. Each delivery schedule received by Supplier is not binding on Buyer until Supplier accepts in writing each updated delivery schedule provided. If Supplier does not reject the delivery schedule within two working days of receipt, the delivery schedule becomes a contractually binding obligation for Supplier to supply stated quantities at stated delivery times. Buyer may withdraw the delivery schedule at any time before it is accepted in writing by Supplier, or prior to the two working days, if Supplier has not accepted.
f) EDI – Electronic Data Interchange. Buyer may require Supplier to participate in Electronic Data Interchange or a similar inventory management program, at Supplier’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.
5. Delivery Date. Supplier shall deliver the Products in the quantities and on the date(s) specified in the order or as otherwise agreed in writing by the parties (the "Delivery Date"). Timely delivery of the Products is of the essence - expedited freight to ensure timely delivery when dispatch from Supplier is late, will be an obligation on Supplier to ensure supply continuity at the buyer site. If Supplier fails to deliver the Products in full on the Delivery Date or up to three days before the Delivery Date (the "Delivery Window"), the Products shall be considered "late" for Supplier On-Time Delivery performance evaluation purposes, and Buyer may terminate the order immediately by providing written notice to Supplier and Supplier shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Supplier's failure to deliver the Products during the Delivery Window. Buyer has the right to return any Products delivered outside the Delivery Window at Supplier's expense and Supplier shall redeliver Products received during the Delivery Window. Repeated instances of late deliveries or disruption of shipment will result in Supplier being removed from approved vendor status.
6. Proprietary Rights/Tooling. Unless Buyer otherwise agrees in writing, all drawings, designs, prototypes, specifications, tools, equipment, or materials of every description furnished to Supplier or paid for by Buyer and all tooling, patterns, and molds manufactured from Buyer's specifications and/or paid for by Buyer shall be and remain Buyer's property, which shall be held at Supplier's risk and insured at Supplier's expense in an amount equal to its replacement cost with loss payable to Buyer, and safely stored, maintained, and wherever possible clearly marked "Property of SAF-HOLLAND Inc". Buyer may enter Supplier's premises to inspect the property and Supplier's related records. Upon Buyer’s request, Supplier shall (a) prepare the property for shipment and redeliver it to Buyer in the same condition in which it was received, reasonable wear and tear excepted, (b) assemble the property for pickup, or (c) destroy the property and certify its destruction.
The right to use any of Buyer's drawings, designs, specifications, prototypes, trademarks, patents, tools, molds, or equipment is limited to producing Products exclusively for Buyer and its divisions, subsidiaries, and affiliates, and not for any other purpose. Buyer's transfer of information or property shall not be construed as granting Supplier a license or any right of ownership. All designs, plans, specifications, improvements, and inventions developed by Supplier in the course of performance under this order and all rights appertaining thereto shall be promptly disclosed to Buyer and shall become Buyer's sole and exclusive property.
Supplier shall use the Buyer trademarks only on Products and components or sub-assemblies of the Products and shall not use Buyer trademarks on any other products without the written consent of Buyer. Supplier shall obtain the prior written approval of Buyer for use of the Buyer trademarks in Supplier’s marketing materials and on such material being distributed to Buyer authorized dealers shall obtain editorial format and layout approval. Any use by Supplier of Buyer’s trademarks shall inure exclusively to the benefit of Buyer.
Buyer will issue a separate order (and, if necessary, a release thereunder) for its requirement for tooling. All such orders shall be made pursuant to, and shall be governed by, the terms and conditions of that Buyer Tooling Purchase Order as supplemented by this Section. All such tooling shall be the sole property of Buyer. Supplier shall have the responsibility for performing repair and maintenance for all Buyer owned tooling. Preventative maintenance costs shall be the responsibility of Supplier unless otherwise agreed in writing by Buyer. Costs to repair broken tooling shall be submitted to the appropriate Buyer division for approval prior to the repair. Repairs made to tools without the prior consent of Buyer are not subject to reimbursement by Buyer. Buyer owned tooling shall not be used to manufacture Products for customer other than Buyer without the express written consent of Buyer.
7. Service and Replacement Parts. If requested by Buyer, Supplier will produce and sell to Buyer pursuant to the provisions of this order Products necessary for Buyer to fulfil its current model service and replacement parts requirements at the prices set forth in this order. During the fifteen (15) year period after Buyer completes current model purchases, Supplier will produce and sell to Buyer, pursuant to the provisions of this order, all Products necessary for Buyer to fulfil its past model service and replacement parts requirements. Unless otherwise agreed to by Buyer, the price(s) for such Products during the first five (5) years after Buyer completes current model purchases will be those in effect at the conclusion of current model purchases. For the remainder of the fifteen-year period, the prices for such Products will be as agreed to by the parties based upon good faith negotiations. If Buyer or any of its related companies has a legal obligation to make the service and replacement parts available for a longer period, then Buyer will so advise Supplier and Supplier will supply the service and replacement parts for this longer time period.
8. Surplus and Obsolete Material. Supplier shall be responsible for addressing the reduction or elimination of surplus and obsolete inventories of the Products on a quarterly basis with the appropriate SAF-Holland Division Material Director. Any surplus and obsolete material not addressed within one hundred twenty (120) days will automatically be Supplier’s responsibility.
9. Recall Campaigns. Supplier shall indemnify and hold Buyer harmless against all losses, liabilities, damages, costs and expenses incurred by Buyer or its customers if Buyer recalls from Buyer's customers or others any Products furnished hereunder or an end product employing any such Products as a part or component thereof or repairs, replaces or refunds the purchase price of such Products or end product. This indemnity shall apply only if the recall, repair, replacement or refund (a) is required pursuant to applicable statutes, laws or regulations; (b) is required pursuant to Buyer's contractual obligations to its customers, end users or end customers; or (c) in Buyer's reasonable commercial judgment, is necessary to preserve Buyer's commercial reputation as a supplier of reliable, high-quality products. If Supplier's Products are not the sole cause of such action by Buyer, then Buyer shall apportion its costs, damages and expenses as it shall determine is reasonable and equitable. Buyer shall use reasonable efforts to inform Supplier promptly after Buyer learns of facts which may require a recall, or repair, replacement or refund pursuant to this Section. Buyer shall have the right, without the consent of Supplier, to report to any administrative or regulatory body any information which Buyer obtains indicating that the Products furnished by Supplier either fail to conform to any standard required by law, or constitute or create of themselves, or within the end product of which they are a part or component, a situation requiring recall or notice as defined by the applicable law. Supplier shall prepare, maintain, and file with the appropriate agency those records and reports relating to the manufacture, sale, use and characteristics of the Products furnished to Buyer under this order which may be required by any federal, state or local law or regulation concerning the manufacture, sale or use of the Products or the end products of which the Products may be a part or component. Supplier shall provide Buyer with copies of such records at Buyer's request and shall give Buyer access to Supplier's records that allow Buyer to confirm Supplier's compliance with the terms of this Section. Supplier shall comply with all Product Safety and Compliance Requirements contained in the HSQR manual, and on Supplier accessible website established by Buyer for Supplier related requirements and related matters.
10. Approved Supplier. Buyer requires suppliers to be certified to ISO 9001 or ISO/TS/IATF 16949 quality standards. Supplier agrees to be audited by Buyer representative(s) and at the reasonable discretion of Buyer’s Strategic Sourcing/Supply chain personnel, SAF-Holland Engineering, and SAF-Holland Quality Department to determine if an on-site audit is required. Future on-site audits may be waived after the initial audit if the delivery and quality of the Products manufactured at the Supplier are of a high level of acceptance. The level of acceptance will be determined by the plant and Buyer’s Corporate Quality Departments.
In addition, if Supplier has an in-house laboratory and wishes to submit their own material certifications for Products instead of the original material certification as provided by the producer, the laboratory must be audited and approved by Buyer unless certified to A2LA or ISO 17025.
11. Quantity. Except as otherwise agreed in writing by Buyer, Supplier must deliver the quantity of Products ordered. Shipments should be on-time and of complete quantity. Buyer may debit Supplier for administrative and excess freight expenses incurred resulting from partial shipments. Buyer may reject all or any excess Products, with any such rejected Products returned to Supplier at Supplier's risk and expense.
12. Shipping and Delivery. Supplier will comply with Buyer's "ship to" and "bill to" instructions as shown in this order or in the applicable Delivery Schedule. Supplier will follow packaging specifications as prescribed by Buyer, including the use of bar-coding at item and package levels, or any other Buyer-defined identification method. All new packaging must be pre-approved by Buyer. Supplier will send an Advance Shipment Notification (ASN) to Buyer via electronic data interchange (EDI) or Buyer's web portal for all shipments. The ASN must include all applicable charges that will be invoiced to Buyer. Failure to provide an accurate and complete ASN prior to receipt of Products by Supplier may result in administrative charges. In the event of any discrepancy between Supplier's invoices and Buyer's receiving records, Supplier shall fully cooperate with Buyer to resolve all such issues within sixty (60) days after the identification of such discrepancy, including Supplier's reconciling its packing slip number to its invoice number.
Supplier will route its shipments in accordance with instructions of Buyer or its shipping agent. Supplier understands that Buyer establishes its manufacturing schedules in reliance on Supplier’s timely performance of this order and that time is of the essence in Supplier’s performance. In the event of delays in timely performance attributable to Supplier or its agents, Supplier shall be responsible for all costs and expenses resulting from such delays, including all costs and expenses imposed on Buyer by its customers, end users and end customers. Additionally, Supplier shall also bear the costs and expenses of expedited freight, which may be required to mitigate such Supplier delays. Supplier agrees to show the engineering revision level of the Products shipped on all shipping documents.
13. Title and Risk of Loss. Title to and risk of loss of the Products shall pass to Buyer upon delivery of the Products in accordance with the shipping terms specified by Buyer.
14. Product Packaging. In order to ensure that the Products are transported in a manner that prevents damage, deterioration, etc., suppliers are responsible for maintaining written instructions, detailing proper packaging, storage, and shipping of its products that conform to the SAF-Holland user plant’s requirements. All production and shipping personnel at the Supplier site should be effectively trained to ensure 100% adherence to the packaging specification. The Supplier shall be responsible for establishing a system to ensure that goods and/or services are transported in a manner that prevents damage, deterioration, etc. and must comply with all of Buyer specifications. Each container, rack, box or pallet of material shipped to any Buyer plant shall be packaged and identified as defined in Appendix F, in HSQR-01 Supplier Quality Requirements. Material that does not meet these requirements will be classified as defective product.
15. Amendment and Modification. No change to the order is binding upon Buyer unless it is in writing, specifically states that it amends the order and is signed by an authorized representative of Buyer.
16. Inspection and Rejection of Nonconforming Products. Buyer and/or Buyer's customer shall have the right to review any designs, drawings or specifications prepared by Supplier under this order and to inspect and test Products at Supplier's premises prior to delivery to Buyer. Buyer shall also have the right to inspect Products at Buyer's plant within a reasonable time after delivery. Any review, inspection, or test by Buyer under this Section shall not relieve or excuse Supplier from its obligations under this order.
Supplier shall comply with Buyer's Supplier Quality Requirements HSQR-01 Supplier Quality Requirement which is available on Buyer's supplier portal. If Buyer rejects any portion of the Products, Buyer has the right, effective upon written notice to Supplier, to: (a) rescind the 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, Supplier shall, at its expense, promptly replace the nonconforming Products and pay for all related expenses, including, but not limited to, transportation charges for the return of the defective goods and the delivery of replacement Products. If Supplier fails to deliver replacement Products in a timely manner, Buyer may replace them with goods from a third party and charge Supplier the cost thereof and terminate the order for cause pursuant to Section 26. Any inspection or other action by Buyer under this Section shall not reduce or otherwise affect Supplier's obligations under the order, and Buyer shall have the right to conduct further inspections after Supplier has carried out its remedial actions.
17. Payment Terms. Unless otherwise agreed, payment for delivered Products is due ninety (90) days after the end of the month in which delivery took place. Payment shall not be construed as acknowledgement or agreement that the Products are as agreed between the Parties. Buyer reserves the right to audit or test any Products and/or audit any invoice prior to payment thereof. In the event of a payment dispute, the parties shall seek to resolve all such disputes expeditiously and in good faith. Supplier shall continue performing its obligations under the order notwithstanding any such dispute.
18. Set-off. Without prejudice to any other right or remedy it may have, Buyer reserves the right to set off at any time any amount owing to it by Supplier against any amount payable by Buyer to Supplier.
19. Warranty. SUPPLIER WARRANTS THAT IT HAS GOOD TITLE TO THE PRODUCTS, FREE AND CLEAR OF ALL LIENS AND SECURITY INTERESTS. SUPPLIER WARRANTS THAT THE PRODUCTS WILL CONFORM TO ANY DRAWINGS, SPECIFICATIONS, STATEMENTS OF WORK, SAMPLES, AND/ OR OTHER DESCRIPTIONS AND REQUIREMENTS RELATING TO THE PRODUCTS FURNISHED BY BUYER AS PART OF THIS ORDER. SUPPLIER WARRANTS THAT PRODUCTS WILL BE MERCHANTABLE, FIT AND SUFFICIENT FOR THE PURPOSE INTENDED, FREE FROM DEFECTS INCLUDING, BUT NOT LIMITED TO, DEFECTS IN DESIGN, MATERIALS AND WORKMANSHIP, AND IN COMPLIANCE WITH ALL APPLICABLE STATUTES, REGULATIONS AND INDUSTRY STANDARDS; PROVIDED, HOWEVER, THAT SUPPLIER SHALL NOT BE RESPONSIBLE FOR ANY SUCH DEFECT OR NON-CONFORMITY IN THE PRODUCTS TO THE EXTENT DUE TO SUPPLIER'S CONFORMANCE TO ANY DRAWINGS, SPECIFICATIONS, STATEMENTS OF WORK, SAMPLES, AND/OR OTHER DESCRIPTIONS OR REQUIREMENTS OF BUYER.
These warranties shall survive inspection, test, acceptance of, and payment for, the Products and shall run to Buyer and its customers, end users and end customers. Buyer shall have all legally available remedies for breach of warranty. These remedies shall be in addition to any other remedies that may be available to Buyer by statute, contract, these terms, or otherwise, for breach of warranty. In addition to such other remedies, which shall include the right to require Supplier to reimburse Buyer for any payments it may be required to make to its customers, end users and end customers attributable to Supplier's breach of warranty, Buyer may either elect to receive a credit or refund from Supplier with respect to the defective or nonconforming Products or part thereof or to require prompt correction or replacement of the defective or nonconforming Product or part thereof by Supplier or at Supplier's sole cost and expense. In the event that Buyer incurs costs and charges associated with containment activities resulting from, or attributable to, a breach of the foregoing warranties of Supplier, then Supplier shall reimburse Buyer for all such costs and charges including, but not limited to, those relating to shipping, handling, processing, reworking, inspecting and replacing defective material, including the costs of value-added operations performed prior to the discovery of the non-conformance, as well as any third party inspection costs.
Supplier's warranty hereunder will be coterminous with the warranty terms as to time and/or mileage extended by Buyer to its customers, end users or end customers for the Products or end products employing any such Products as a part or component thereof. If additional warranty periods as to time and/or mileage are imposed by agreement or otherwise on Buyer by its customers, end users, end customers or governmental action, Supplier's warranty terms as to time and/or mileage will extend and be coterminous with such additional warranty periods. For the avoidance of doubt, Supplier understands that the Products or end products employing any such Products as a part or component thereof may be subject to different warranty periods as may be provided by Buyer, Buyer's customers, end users or end customers. Consequently, Supplier agrees that its warranty obligations under this Section, will correspond to such different warranty periods.
20. Indemnification. Supplier shall defend, indemnify and hold Buyer, its successors and assigns, their principals, affiliates and subsidiaries, including their respective directors, officers, employees, agents and representatives, harmless from and against any and all liabilities, damages, losses, claims, demands, actions, costs and expenses (including actual fees for attorneys, experts and consultants, settlement costs and judgments), occasioned by, resulting from, or arising out of any claim, by whomever asserted and regardless of nature or kind, including without limitation, for personal injuries (including death) and damage to property, whether in tort or under contract, directly or indirectly, in whole or in part occasioned by, resulting from, or arising out of (a) any defect or alleged defect in the Products supplied by Supplier; (b) any noncompliance or alleged noncompliance by Supplier with any of its representations, warranties or obligations under this order or any release; or (c) any negligence or fault, or alleged negligence or fault of Supplier in connection with the design, production, or manufacture of the Products.
Supplier represents that all Products supplied under this order shall be original to Supplier and shall not incorporate or infringe upon any intellectual property rights of any third party. Supplier shall defend, indemnify and hold Buyer, its successors and assigns, their principals, affiliates and subsidiaries, including their respective directors, officers, employees, agents and representatives, customers and users of the Products harmless from and against any and all losses, damages or liabilities, including costs and expenses (including actual fees for attorneys, experts and consultants, settlement costs and judgments) which may be incurred on account of any suit, claim, judgment or demand involving infringement or alleged infringement of any patent, copyright, trademark, industrial design right or any other intellectual property rights in the manufacture, use, import, sale or other disposition of the Products supplied under this order. Further, should Buyer's manufacture, use, import, sale or other disposition of the Products supplied under this order be enjoined due to actual or alleged infringement of any such patent, copyright, trademark, industrial design right, or any other intellectual property right of any third party, Supplier shall, at its own expense, promptly (i) procure for Buyer the right to continue using the Products; (ii) replace such Products with a product of equal or greater functionality to Buyer; or (iii) modify such Product so it becomes non-infringing. Buyer shall provide timely notice to Supplier of any suit, claim, judgment, or demand against it and shall permit Supplier to defend or settle such suit, claim, judgment or demand provided that such defence or settlement does not prejudice the rights of or create obligations upon Buyer. Supplier shall promptly notify Buyer of any suspected claims of which it becomes aware. Supplier shall have no liability under this subsection to the extent that any suit, claim, judgment, or demand involves infringement or alleged infringement arising solely from a design specifically provided by Buyer and incorporated into the Products supplied under this order.
21. Insurance. Supplier shall obtain and maintain at its expense during the term of the order and for a period of at least ten years after the expiration or termination of the order, all insurance coverage required by law as well as appropriate insurance coverage to protect against any and all claims or liabilities that may arise directly or indirectly as a result of its performance under the order. Coverage shall not contain any exclusions material to the Products. The coverage shall apply on a worldwide basis with no limitation of where a claim is brought or occurs. Insurance shall be placed with a carrier with an A.M. Best rating of at least A- for financial strength and a size rating of at least VIII. Coverage shall be occurrence based... If Supplier uses a subcontractor to perform work under the order, then Supplier is responsible to assure that the subcontractor meets the same insurance requirements as stated for Supplier. This insurance shall include the following coverage written for not less than the following limits or as required by law, whichever is greater:
Commercial General Liability Insurance (if excluding Products):
• $5,000,000 U.S. Dollars per occurrence for bodily injury (including death); and • $5,000,000 U.S. Dollars per occurrence for property damage
Products/Completed Operations Liability - $10,000,000 U.S. Dollars per occurrence.
NOTE: Both General and Products Liability can be a combination of primary and excess to equal at least $10,000,000 U.S. Dollars. Products/Completed Operations may be included within the Commercial General Liability Policy.
Supplier shall name Buyer as an additional insured-vendor with regards to the product liability insurance.
Insurance specified herein shall be the minimum requirements. Supplier is responsible for providing any additional insurance deemed necessary to protect against claims in excess of the minimum coverage. None of the requirements contained herein, as to coverage types or limits of insurance to be maintained by Supplier, are intended to, and shall not in any manner, limit the liability of Supplier to Buyer hereunder.
Supplier shall deliver to Buyer, upon execution of this Agreement coverage copy of the policy, as issued, in English. Said policy shall provide that no less than 30 days’ advance written notice be given to Buyer prior to cancellation, termination or material change of the policies. Supplier is responsible for assuring that Buyer has current copies of insurance policies throughout the term of the order and for the 10-year period thereafter.
22. Compliance with Law. Supplier is in compliance with and shall comply with all applicable laws, regulations and ordinances. Supplier has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under the order.
a) Fair Labor. Supplier agrees, in connection with the production of the Products, to comply with all applicable requirements of Sections 6 (minimum wage), 7 (maximum hours), and 12 (child labour provisions), of the Fair Labor Standards Act, as amended and of regulations and orders of the United States Department of Labor issued under Section 14 thereof.
b) Human Trafficking. Supplier agrees to follow (i) the United Nations Protocol to Prevent, Suppress and Punish Trafficking in Persons, especially Women and Children, (ii) Federal Acquisition Regulation 52.222-50, and (iii) Executive Order 13627 dated September 25, 2012 together with the proposed and final Federal Acquisition Regulations relating thereto.
c) Import/Export. Supplier shall comply with all export and import laws of all countries involved in the sale of Products under the order. Supplier assumes all responsibility for shipments of Products requiring any government import clearance. Buyer may terminate the order if any government authority imposes antidumping duties, countervailing duties or any retaliatory duties on the Products.
d) Use of Products. Supplier acknowledges that the Products ordered hereunder are for consumption or use in industrial processing or agricultural producing.
e) Equal Employment Opportunity and Non-Discrimination. Supplier shall abide by the requirements of 41 CFR 60-741.5(a). This regulation prohibits discrimination against qualified individuals on the basis of disability, and requires affirmative action by covered prime contractors and subcontractors to employ and advance in employment qualified individuals with disabilities. Supplier agrees to maintain non-segregated facilities and policy of employment which does not discriminate against any employee or applicant for employment because of race, creed, color, national origin, sex or handicap, Veteran of Vietnam Era, or disabled Veterans, and to further comply with all provisions of Executive Order 11246 of September 24, 1965, Section 503 of the Rehabilitation Act of 1973, Section 402 of the Vietnam Era Veterans Readjustment Assistance Act of 1974 (41 Code of Federal Regulations, Chapter 60), and all of which are herein incorporated by reference.
f) Conflict Minerals. Without limitation of the foregoing, on Buyer's request, Supplier shall provide to Buyer all information (in sufficient detail), with written certifications thereof, to enable Buyer to timely comply with all of Buyer's and Buyer's customers' due diligence, disclosure and audit requirements under Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protection Act (the "Dodd-Frank Act") and Rule 13p-1 and Form SD under the Securities Exchange Act of 1934, and all similar, applicable statutes and regulations, including due inquiry of Supplier's supply chain (and certifications by such suppliers) identifying conflict minerals (as defined in Section 1502(e)(4) of the Dodd-Frank Act) contained in each Product and the country of origin of such conflict minerals (or, following due inquiry, why such country of origin cannot be determined).
23. NAFTA; Country of Origin; Compliance. Supplier agrees to fulfil any customs- or NAFTA-related obligations, origin marking or labelling requirements, and local content origin requirements. Export licenses or authorizations necessary for the export of Products are Supplier's responsibility unless otherwise stated in the order, in which case Supplier will provide the information necessary to enable Buyer to obtain the licenses or authorizations. Supplier will promptly notify Buyer in writing of any material or components used by Supplier in fulfilling its obligations under the order that Supplier purchases in a country other than the country in which the Products are delivered. Supplier 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. Supplier will promptly advise Buyer of any material or components imported into the country of origin and any duty included in the purchase price. If Products are manufactured in a country other than the country in which Products are delivered, Supplier will mark Products "Made in [country of origin]." Supplier will provide to Buyer and all appropriate governmental agencies, the documentation necessary to determine the admissibility and the effect of entry of Products into the country in which Products are delivered. Supplier warrants that any information that is supplied to Buyer about the import or export of Products is true. Supplier has not and will not accept or give any illegal or unlawful gratuities or otherwise violate the United States Foreign Corrupt Practices Act in connection with the order or the transactions or relationships contemplated by the order. To the extent any Products covered by the order are to be imported into the United States of America, Supplier 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, Supplier shall certify in writing its compliance with the C-TPAT initiative.
24. Supplier Code of Conduct. Supplier shall comply with the terms of Buyer's Supplier Code of Conduct Policy which is available on Buyer's supplier portal.
25. Hazardous Materials. All materials used in part manufacture shall satisfy current governmental and safety constraints on restricted, toxic, and hazardous materials; as well as environmental, electrical, and electromagnetic considerations applicable to the country of manufacture and sale.
26. Termination. Buyer may terminate the order, in whole or in part, at any time with or without cause for undelivered Products with 90 days’ prior written notice to Supplier. In addition to any remedies that may be provided under these Terms, Buyer may terminate the order with immediate effect upon written notice to Supplier, either before or after the acceptance of the Products, if Supplier has not performed or complied with any of these Terms, in whole or in part. If Supplier becomes insolvent, files a petition for bankruptcy, commences or has commenced against it proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then Buyer may terminate the order upon written notice to Supplier. If Buyer terminates the order for any reason, Supplier's sole and exclusive remedy is payment for the Products received and accepted by Buyer prior to the termination.
27. Limitation of Liability. Nothing in the order shall exclude or limit (a) Supplier's liability under Sections 19, 20, 21, 29, and 30 hereof, or (b) Supplier's liability for fraud, personal injury or death caused by its negligence or wilful misconduct.
28. Waiver. No waiver by any party of any of the provisions of the order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in the order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from the order shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege.
29. Use of Buyer's Intellectual Property. If Products are to be marked with the name and/or trademark of Buyer, Supplier's use of the name and/or trademark of Buyer shall be limited exclusively to the manufacture of Products intended for Buyer and their delivery to Buyer or to third parties specified by Buyer. The name and/or trademark of Buyer shall not be used by Supplier for any other purpose, in particular not to mark products for sale by Supplier to third parties not specified by Buyer. To the extent that Supplier is permitted the use of other intellectual property rights of Buyer for the manufacture of the Products, in particular the use of patents, Supplier shall be granted the simple, revocable, non-sublicensable and non-transferable right to exercise these rights exclusively for the purpose of fulfilling the Products with Buyer. Any further exercise of such rights, in particular for the manufacture of products for sale by Supplier to third parties not specified by Buyer, shall not be permitted.
30. Confidential Information. All non-public, confidential or proprietary information of Buyer, including, but not limited to, specifications, samples, patterns, designs, plans, drawings, documents, data, business operations, customer lists, pricing, discounts or rebates, disclosed by Buyer to Supplier, 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 the order is confidential, solely for the use of performing the order and may not be disclosed or copied unless authorized by Buyer in writing. Upon Buyer's request, Supplier 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 shall not apply to information that is: (a) in the public domain; (b) known to Supplier at the time of disclosure; or (c) rightfully obtained by Supplier on a non-confidential basis from a third party. If Supplier is obliged to disclose information supplied by Buyer by law, as a result of the enforceable ruling of a court or as a result of an administrative action by a governmental body, this shall not constitute an infringement of Supplier's confidentiality obligation. In such cases, however, Buyer shall be informed in writing prior to such disclosure. All information supplied by Buyer to Supplier in conjunction with the order and all processes or practical applications based on such information is and shall remain the intellectual property of Buyer. No provision of the order may be interpreted in such a way that Supplier gains the rights of use to the intellectual property of Buyer. Except with the prior written consent of Buyer, Supplier shall not be permitted to disclose the existence of the order or the business relationship between Buyer and Supplier to any third party other than Supplier's advisors, accountants, attorneys, and Supplier's suppliers related to the Products.
31. Force Majeure. Neither party shall be liable to the other for any delay or failure in performing its obligations under the order to the extent that such delay or failure is caused by an event or circumstance that is beyond the reasonable control of that party, without such party's fault or negligence, and which by its nature could not have been foreseen by such party or, if it could have been foreseen, was unavoidable ("Force Majeure Event"). Force Majeure Events include, but are not limited to, acts of God or the public enemy, government restrictions, floods, fire, earthquakes, explosion, epidemic, war, invasion, hostilities, terrorist acts, riots, strike, embargoes or industrial disturbances. Supplier's economic hardship or changes in market conditions are not considered Force Majeure Events. Supplier shall use all diligent efforts to end the failure or delay of its performance, ensure that the effects of any Force Majeure Event are minimized and resume performance under the order. If a Force Majeure Event prevents Supplier from carrying out its obligations under the order for a continuous period of more than 30 business days, Buyer may terminate the order immediately by giving written notice to Supplier.
32. Assignment. Supplier shall not assign, transfer, delegate or subcontract any of its rights or obligations under the order 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 Supplier of any of its obligations hereunder.
33. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in the order shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever. No relationship of exclusivity shall be construed from the order.
34. No Third-Party Beneficiaries. The order is 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.
35. Governing Law. All matters arising out of or relating to the order shall be governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Michigan. The United Nations Convention on Contracts for the International Sale of Products shall not apply to the order.
36. Submission to Jurisdiction. Any legal suit, action or proceeding arising out of, or relating to, the order shall be instituted in the federal courts of the United States of America located in the Western District of Michigan, or the courts of the State of Michigan and County of Ottawa, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding.
37. Cumulative Remedies. The rights and remedies under the order are cumulative and are in addition to and not in substitution for any other rights and remedies available at law or in equity or otherwise.
38. Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder (each, a "Notice") shall be in writing and addressed to the parties at the addresses set forth on the face of the order or to such other address that may be designated by the receiving party in writing. All Notices shall be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), facsimile (with confirmation of transmission) or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in the order, a Notice is effective only (a) upon receipt of the receiving party, and (b) if the party giving the Notice has complied with the requirements of this Section.
39. Severability. If any term or provision of the order is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
40. Survival. Provisions of the order, which by their nature should apply beyond their terms, will remain in force after any termination or expiration of the order including, but not limited to, the following provisions: Proprietary Rights/Tooling, Service and Replacement Parts, Recall Campaigns, Set-off, Warranty, Indemnification, Insurance, Compliance with Law, Limitation of Liability, Use of Buyer’s Intellectual Property, Confidential Information, Governing Law, and Submission to Jurisdiction.