Flexcon Supplier Code of Conduct
We are committed to maintaining the highest standards of ethical business practices and sustainability throughout our supply chain. To ensure alignment with our values, we have established a Supplier Code of Conduct that outlines our expectations for all suppliers doing business with our company.
1. Agreement/Acceptance
1.1 As used in these Terms and Conditions of Purchase, (a) “Agreement” means the collective terms and conditions described in Section 1.2, (b) “Buyer” means the legal entity making the purchase as identified on a purchase order or separate written agreement, (c) “Seller” means the seller of the Products or Services, (d) “Products” means the products that are the subject of the purchase by Buyer, and (e) “Services” means the services that are the subject of the purchase by Buyer.
1.2 The terms and conditions that apply to and govern the purchase of Products and Services by Buyer from Seller are exclusively limited to (a) the terms and conditions contained in Buyer’s purchase order (the “Purchase Order”) and any subsequent releases and/or a separate written agreement signed by an authorized representative of Buyer, together with any documents incorporated in any of the foregoing, such as a statement of work, and (b) these Terms and Conditions of Purchase, whether or not they are specifically referenced in or incorporated by the forms exchanged by Buyer and Seller or in the separate written agreement entered into between Buyer and Seller. Any conflict between these Terms and Conditions of Purchase and the documents specified in (a) will be resolved in favor of the documents specified in (a).
1.3 Buyer objects to terms and conditions that are additional to or different from those contained in the Agreement, and no additional or different term will be part of the Agreement unless expressly made so in a writing signed by an authorized representative of Buyer above the Director level. The preceding sentence excludes from the Agreement, among other things, any additional or different terms and conditions of Seller appearing on or referenced in Seller’s quotation, acknowledgement, invoice or other similar document, Seller’s terms and conditions of sale and Seller’s web site or customer e-commerce site. These Standard Terms and Conditions of Purchase, together with information contained on the face hereof (and any shall constitute the entire agreement and understanding of Seller and Buyer with respect to the purchase of Seller’s Products, superseding all prior oral or written understandings relating thereto. If Seller’s order acknowledgement, invoice or other documentation contains provisions inconsistent with the provisions hereof, these terms and conditions shall prevail. Seller’s start of performance under this Purchase Order shall constitute Seller’s acceptance of all terms and conditions herein.
1.4 Seller will be deemed to have accepted the Agreement if Seller (a) acknowledges the Purchase Order, assents to the Agreement in writing or clicks an “accept” or similar button on an electronic site, (b) commences work on, delivers or performs any of the Products or Services, (c) accepts any portion of the payment for the Products or Services, or (d) takes any other action evidencing in Buyer’s opinion Seller’s acceptance of the benefits of any part of the Agreement.
1.5 No modification of the Agreement or waiver of any of its terms will be binding on Buyer unless clearly expressed in a writing that both (a) states that it is a modification or waiver of the Agreement with a specific citation to the section number being modified, and (b) is signed by an authorized representative of Buyer above the Director level. Any purported modification or waiver by oral agreement, course of performance or usage of trade is invalid and ineffective.
2. Delivery
2.1 Delivery terms are as stated in the Agreement, or, if none are so stated, Delivered Duty Paid (DDP) the designated Buyer facility. Delivery terms are governed by Incoterms 2010.
2.2 Seller shall deliver all Products and Services on the dates specified by Buyer and meet all of Buyer’s required service levels. Time is of the essence for purposes of Seller’s delivery of Products and Services to Buyer. Buyer may reject any Products or Services not delivered on time (whether early or late) and return such Products and Services at Seller’s risk and expense. Seller may not withhold delivery for any reason without the prior written consent of Buyer.
2.3 Seller shall deliver all Products and Services in the quantities specified by Buyer in the Purchase Order. Forecast quantities are estimates for reference only and do not constitute binding commitments by Buyer to purchase. Quantities delivered in excess of ordered quantities may be returned at Seller’s risk and expense. Deliveries of less than the ordered quantities may be rejected by Buyer at Seller’s expense and risk of loss.
2.4 Risk of loss and damage to the Products remains with Seller until the Products have been delivered to Buyer in accordance with the delivery terms. Notwithstanding the preceding sentence, if the Products are received by Buyer on consignment, (a) risk of loss and damage to the Products, and responsibility for insuring the Products against loss and damage, remains with Seller until the time at which Buyer either resells the Products or uses the Products in production (referred to as the “end of the consignment period”), (b) title to the Products remains with Seller, and Buyer has an absolute right to return the Products, up to and at the end of the consignment period, and (c) title to the Products passes to Buyer at the end of the consignment period.
2.5 If Seller has reason to believe that a delivery of Products or the performance of Services may not be made within the time required by the Agreement, or if an actual delay has occurred, Seller shall promptly send written notice to Buyer, stating the cause and expected duration of the delay. During the period of any delay, Seller shall at its sole cost and expense take all steps as are necessary or desirable to mitigate the effects of the delay on Buyer and minimize disruption of supply to Buyer If Seller is required to allocate goods or resources among its customers during a delay, priority shall be given to first filling any outstandnig Buyer orders.. If there is an anticipated or actual delay, or a threat by Seller to suspend delivery for any reason, Buyer may, in addition to all other remedies available to it, take one or a combination of the following actions: (a) direct Seller to ship, at Seller’s sole cost and expense, Products using an expedited method of transportation such as express air freight, (b) acquire substitute Products or Services from other sources, in which case Seller shall reimburse Buyer for any additional costs and expenses, including incidental costs of cover, and (c) cancel or reduce the quantities under the Agreement. Buyer will have no liability to Seller with respect to the cancelled or reduced quantities.
3. Packaging and Shipping
3.1 Seller shall properly pack, mark, ship and route the Products in accordance with the requirements of Buyer and the carriers and in accordance with all applicable laws and regulations, or if there are no stated requirements, in accordance with best commercial practices designed to prevent loss or damage due to weather, transportation and other causes.
3.2 With each shipment, Seller shall include packing slips identifying the complete Purchase Order number, shipment date, an itemized list of contents using the classification identification of the Products required by Buyer or the carrier, and such other items as Buyer may require. The markings on each package and shipping document must be such that Buyer can easily identify the Products. Buyer’s count or weight will be final and conclusive for any shipment. Seller is responsible for all demurrage charges and other expenses incurred as a result of Seller’s failure to promptly send Buyer the notice of shipment on the shipping date.
4. Prices and Payment
4.1 Seller shall provide the Product at prices no higher than as specified on the face of the Purchase Order, which prices Seller warrants to be no greater than Seller's price to similar Buyers for the same or similar quantities of the Product. In the event that no price is so specified, the price for the Product shall be the lower of (a) Seller's then quoted price for similar quantities of the Product to purchasers similar to Buyer; or (b) the then prevailing market price for the Product at the date for delivery by Seller; or (c) Seller's last quoted price to Buyer for the Product. Buyer shall not pay any charges whatsoever except as specifically set forth on the Purchase Order, whether for packing, loading, packaging or any other service or material. The price as so determined is the sole amount payable by Buyer to Seller or any third party for the purchase of the Products or Services, and Seller shall be solely responsible for, among other things, (a) costs of raw materials, supplies or manufacture, (b) duties or similar charges, (c) insurance premiums, (d) salaries or benefits of employees, or (e) handling, packaging, shipping or storage costs. No increases or surcharges to pricing will be effective without Buyer’s prior written consent. On an ongoing basis, Seller agrees to work jointly with Buyer to continually improve upon quality, cost, and service pertaining to the Products and Services. Seller will use reasonable commercial efforts to reduce the cost of Products and Services and will in good faith negotiate price reductions to equitably share the resulting cost savings with Buyer. Prices are FOB Buyer’s facility unless otherwise designated in the Purchase Order. No additional charges of any type shall be added without Buyer's express written consent.
4.2 The price includes all applicable federal, state, provincial and local taxes other than sales or value added taxes. Seller shall issue invoices for any sales or value added taxes that Seller is required by law to collect from Buyer, in a form sufficient to permit Buyer to make appropriate deductions for income tax purposes. Seller shall provide Buyer with all information and documentation required under local law to enable Buyer to recover any sales, value added or similar turnover taxes.
4.3 Seller may not send invoices earlier than the date of receipt at Buyer’s facility of Products or completion of Services or, in the case of consignment, the end of the consignment period as defined in Section 2.4. All invoices must include the complete Purchase Order number and have all necessary or required bills of lading and other shipping receipts and documents attached.
4.4 Payment terms in respect of undisputed invoices are as stated in the Agreement, or, if none are so stated, net 90 days. Any payment or discount period will be calculated from the date of receipt by Buyer of an accurate and properly prepared invoice (including all required supporting documents). Buyer shall be entitled to a discount of two percent (2%) on the gross invoice price if payment is remitted within (10) days after receipt of invoice. No interest charges or other penalties for late payment may be assessed by Seller without the prior written consent of Buyer.
4.5 In addition to any right of setoff or recoupment provided by law or equity, all amounts due to Seller shall be considered net of indebtedness of Seller and its affiliates to Buyer and its affiliates, and Buyer shall have the right to set off against or to recoup from any amounts due to Seller and its affiliates from Buyer and its affiliates.
5. Changes/Cancellations
5.1 Buyer may require Seller to implement changes to the specifications, design, quantities and delivery schedules of the Products, the description, specifications, amount and scheduling of the Services, and other requirements under the Agreement. Seller shall promptly implement such changes. Seller shall make its claim, if any, for equitable adjustment of the price or delivery schedules resulting from such changes in writing to Buyer within 5 business days after receiving Buyer’s instructions to implement the changes, failing which Seller will be deemed to have waived, and Buyer will have no liability for, any such claims. Buyer will equitably determine any adjustment in price or delivery schedules resulting from such changes. To assist in Buyer’s determination of any equitable adjustment in price or delivery schedules, Seller shall, upon Buyer’s request, promptly provide additional information to Buyer, including documentation of changes in Seller’s cost of production and the time to implement such changes. Buyer and Seller will work to resolve any disagreement over the adjustment, but throughout the resolution process and thereafter, Seller shall continue performing under the Agreement, including the manufacture and delivery of Products, the performance of Services and the prompt implementation of the required changes.
Buyer shall be entitled to cancel the Agreement upon written notice to Seller any time prior to the scheduled delivery date (the “Delivery Date”). Except where Buyer has cancelled the Agreement due to (i) product being unacceptable or (ii) product failing to arrive by the scheduled delivery date, Buyer may reschedule delivery at any time prior to the scheduled delivery date upon written notice to Seller.
6. Property of Buyer
6.1 “Buyer Property” includes any tooling, gauging, equipment, patterns, Buyer Material or other property that Buyer directly or indirectly furnishes to or purchases from Seller, or for which Buyer directly or indirectly gives reimbursement to Seller. “Buyer Material” means any raw materials, components, supplies or other materials provided by Buyer to be used by Seller in manufacturing the Products or performing the Services, but excludes material which is the subject of an actual invoiced sale from Buyer to Seller and for which Seller has actually paid.
6.2 Buyer Property is and will remain the property of Buyer and will be held by Seller on a bailment basis. Seller waives any lien or other rights that Seller might otherwise have with respect to any item of Buyer Property, for work performed on or utilizing such property or otherwise.
6.3 While Buyer Property is in Seller’s possession or control (including while in the possession of Seller’s agents and subcontractors), Seller bears the risk of loss, theft, damage and destruction to Buyer Property and will be responsible for the cost of repairing or replacing any Buyer Property that is lost, stolen, damaged or destroyed. Seller shall maintain insurance sufficient to cover such risks. Without limiting the generality of the foregoing, Seller shall replace, by purchasing from Buyer at Buyer’s then current prices, any Buyer Material lost or damaged through spoilage, breakage, defective workmanship of Seller, or any other reason.
6.4 Seller shall use the Buyer Property only for the purpose of fulfilling its obligations under the Agreement, and in compliance with Buyer’s and the manufacturer’s instructions. Seller shall not sell or offer to sell to any third party any products made with Buyer Property, except with Buyer’s prior written consent.
6.5 Seller shall regularly inspect the Buyer Property and maintain it in good condition, working order and repair, at no additional cost to Buyer, and conspicuously mark the Buyer Property as being the property of Buyer. Seller shall not (a) commingle the Buyer Property with the property of Seller or of any third person, (b) move the Buyer Property from Seller’s facility to which the property was originally delivered, or provide or furnish the Buyer Property to any third party, (c) sell, lend, rent, encumber, pledge, lease, transfer or otherwise dispose of the Buyer Property, (d) assert or allow any person claiming an interest through Seller to assert any lien (including a mechanics’ or Sellers’ lien) or claim of ownership in the Buyer Property, or (e) regard the Buyer Property or allow the Buyer Property to be regarded as real property or fixtures.
6.6 Buyer may make public filings (including UCC-1 filings) to provide notice of Buyer’s ownership of the Buyer Property, and Seller shall cooperate with Buyer in connection with such filings.
6.7 Buyer makes no express or implied warranty or representation as to the fitness (generally or for any particular purpose), condition, merchantability, design or operation of any item of Buyer Property. Buyer will not be liable to Seller for any loss, damage, injury or expense of any kind or nature caused directly or indirectly by the Buyer Property or use of the Buyer Property.
6.8 Upon Buyer’s request, Seller shall promptly release or deliver the Buyer Property to Buyer at no charge to Buyer, failing which Buyer may enter Seller’s premises upon reasonable notice and take possession of the Buyer Property.
7. Quality
7.1 Seller shall promote continuous quality improvement and shall comply with Buyer’s required quality control standards for the manufacturing, packaging and shipping processes for the Products and the provision of the Services.
7.2 In performing its obligations hereunder, Seller may not, without Buyer’s written consent, (a) change the method or place of manufacture of any Products or the provision of any Services, (b) substitute material from any other source for Buyer Material or alter the physical or chemical properties of Buyer Material, except in accordance with applicable Buyer specifications, or (c) otherwise change the materials, processes or sub-Sellers used in the manufacture of any Products or the provision of any Services. Any requested change must be agreed upon by Buyer and follow a process to determine acceptability.
7.3 Seller shall not subcontract its obligations under the Agreement. Any attempted subcontract will be void, unless Buyer has given its prior written consent to such subcontract. In any event, Seller shall remain liable in respect of all subcontracted obligations.
7.4 While performing any Services at Buyer’s facilities, Seller shall comply with Buyer’s rules and policies, including any environmental, health, security and safety rules and policies.
8. Right to Inspect and Audit
8.1 Seller will permit Buyer and its representatives, consultants and customers to enter Seller’s facilities at reasonable times to inspect the facilities, the Buyer Property and Seller’s records with respect thereto, and to inspect and test any goods, inventories, work-in-process, materials, machinery, equipment, tooling, fixtures, gauges and other items and processes related to Seller’s performance of the Agreement. Seller shall cooperate in any such inspection. No such inspection will constitute acceptance by Buyer of any work-in-process or finished goods.
8.2 Seller will permit Buyer and its representatives and consultants to enter Seller’s facilities at reasonable times to audit and review all relevant books, records, financial statements, relevant time and material data, receipts and other related data, policies and procedures, in order to (a) assess Seller’s ongoing ability to perform its obligations under the Agreement, and (b) substantiate any charges and other matters under the Agreement. Seller shall maintain and preserve all such documents for a period of 3 years following final payment under the Agreement and shall cooperate in any such audit or review.
8.3 Such inspections, audits and reviews will be conducted at Buyer’s expense, unless Buyer discovers material non-compliance by Seller, in which case Seller shall, in addition to fully correcting the non-compliance, reimburse Buyer for the costs and expenses incurred in connection with that review and the next.
8.4 INSPECTION. Products are subject to Buyer's inspection, testing and acceptance at destination and, optionally prior to receipt at Seller’s premises. Payment therefore by Buyer shall not constitute acceptance. Unless otherwise stated herein, title to the Products shall remain with Seller until acceptance by Buyer hereunder. Buyer shall have a commercially reasonable time after delivery of the Products to inspect and conduct commercially reasonable acceptance tests with respect to the Products. Acceptance of any installment shall not be deemed acceptance of Buyer's entire order or of any subsequent installment.
9. Non-conforming Products and Services
9.1 Buyer may, but is not required to, inspect the Products upon arrival, and the Services upon completion.
9.2 If Buyer reasonably suspects non-conformance from its inspection of Products prior to acceptance, and if the Products are needed by Buyer for urgent production, Seller shall promptly dispatch a rapid inspection team to the location where the Products are stored to inspect the Products to verify the non-conformance, or procure the services of a third party inspection service to perform such inspection to verify the non-conformance, with the cost of such service to be borne by Seller.
9.3 If Buyer rejects, on any reasonable basis, any Products or Services as non-conforming, Buyer may take one or a combination of the following actions: (a) reduce the quantity of Product and Services ordered under the Agreement by the quantity of non-conforming Products and Services, and have Seller promptly issue a refund or credit to Buyer for the purchase price associated with the reduced quantity (or, if Seller does not do so, to debit Seller for the same amount), (b) require Seller to repair, replace or re-perform the non-conforming Products and Services, and (c) accept the non-conforming Products or Services and have Seller promptly reduce the purchase price by or issue a credit or refund in an amount Buyer reasonably determines to be the amount by which the value of the non-conforming Products or Services has been diminished (or, if Seller does not do so, to debit Seller for the same amount). Seller shall promptly pay or reimburse Buyer for all costs incurred to inspect, sort, test, rework, replace, return, store or dispose of non-conforming Products, or otherwise associated with the discovery of non-conformance (whether initiated by Buyer via issuance of an 8D DMR in Buyer’s Global Quality Tracking System (GQTS) or otherwise).
9.4 Buyer will hold non-conforming Products for 48 hours (or a shorter period if reasonable under the circumstances) from Buyer’s notice of rejection. If Seller does not inform Buyer in writing of the manner in which Seller desires that Buyer dispose of the non-conforming Products within that time, Buyer may dispose of the non-conforming Products in any manner it sees fit without liability to Seller, including arranging for shipment of the non-conforming Products back to Seller at Seller’s expense. Seller shall bear all risk of loss and damage to non-conforming Products.
9.5 None of the following will constitute acceptance by Buyer of non-conforming Products or Services, limit or impair Buyer’s right to exercise any of its rights and remedies under the Agreement or applicable law, or relieve Seller of its obligations (including warranty obligations) under the Agreement: (a) Buyer’s inspection of or failure to inspect the Products or Services, (b) Buyer’s failure to reject non-conforming Products or Services following receipt, and (c) Buyer’s payment for or use of the Products or Services.
10. Warranties
10.1 Seller represents and warrants that the Products and their components will (a) conform to the most updated version of drawings provided by or approved by Buyer, (b) meet and perform in accordance with Buyer specifications and requirements or, if none is provided by Buyer, Seller’s specifications and requirements, (c) be of new manufacture and of the highest quality, (d) be free from defects in design, workmanship and material, (e) be of merchantable quality and fit for their intended purposes, (f) comply with all applicable laws, regulations and standards, and (g) be free of any lien or defect in Seller’s title.
10.2 In respect of Services, Seller represents and warrants that: (a) Seller and any of its subcontractors involved in providing any part of the Services have the know-how, competence and expertise to comply with the obligations under this Agreement and perform the Services in accordance therewith, including without limitation in terms of safety and security; (b) Seller shall exercise the standard of care and diligence and show the level of skill, knowledge and judgment expected of properly qualified and competent contractors experienced in performing services similar to the Services; (c) the Services and any deliverables will perform and conform to their respective specifications and in accordance with the requirements set forth in this Agreement; (d) the Services, including any deliverables provided in connection therewith, do not contain any malicious code (e.g., viruses, malware, worms, trojan horse routines, disabling or deactivating code); (e) the Services shall be provided in a timely and workmanlike manner and not involve any unreasonable risk of injury or property damage; (f) the Services and deliverables do not infringe, violate, or misappropriate the rights of any third party; (g) Seller shall secure and maintain all licenses, certifications, registrations and authorisations which may be required under applicable law in order to perform the Services; Seller shall, upon Buyer’s request, provide Buyer with copies of all such licences, certifications, registrations and authorisations; (h) Seller shall be responsible for filing any reports with any governmental authorities as required by applicable law in connection with Seller’s activities relating to this Agreement and shall file such reports in an accurate and timely manner at its expense; and (i) Seller represents and warrants that (i) neither the Seller, nor any of the Seller’s direct or indirect owners, including beneficial owners, or directors, officers, employees, or agents or any person acting on any of their behalf is a Restricted Person; (ii) the Seller will not engage in any dealings with a Restricted Person relating to the Agreement and no Restricted Person will derive any benefit, directly or indirectly, from this Agreement; and (iii) no goods, services, or funds provided, or received, in connection with this Agreement, in whole or in part, will be provided to, or sourced from, any Restricted Person, directly or indirectly. “Restricted Person” means any party that is: (i) identified on, or required to be treated as if identified on, a list, or is included as part of a category, of parties subject to sanctions or restrictive measures under any international trade sanctions, including, without limitation, the trade sanctions of the United Nations, the United States, the EU and United Kingdom, such as the Specially Designated Nationals and Blocked Persons List, the Foreign Sanctions Evaders List, or the Sectoral Sanctions Identifications List administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”), the Entity List administered by the U.S. Department of Commerce’s Bureau of Industry and Security (BIS), and the restricted party lists administered by the United Kingdom, European Union (such as the European Union Consolidated Financial Sanctions List), and United Nations; or (ii) organized, incorporated, established, located, or resident, or a citizen, national, or the government, including any political subdivision, agency, or instrumentality thereof, of Cuba, Iran, North Korea, Syria, the Crimea region of Ukraine (including Sevastopol), the Donetsk People’s Republic of Ukraine, or the Luhansk People’s Republic of Ukraine, or is owned or controlled by such a party.
10.3 In respect of software that is incorporated in or forms a part of the Products or Services, Seller warrants that software deployed and furnished to Buyer under this Agreement will conform in all material respects with its documentation and the specifications contained in or developed in accordance with the Agreement, and will be: (1) deployed and conveyed to Buyer with good and merchantable title, free and clear of all security interests, liens, encumbrances or claims of Seller, its affiliates and third party Sellers (2) free of any claim of infringement, misappropriation, unfair competition, or violation of any third party Intellectual Property right, (3) created and delivered in accordance with the then-prevailing applicable laws, and industry standards and practices, (4) free from any computer "virus" or other malicious program code (including, without limitation, all CD’s, tapes, PC hard drives and any other form of program and file delivery whether tangible or intangible including any software delivered electronically via a telecommunications network); (5) free of any functionality designed into or otherwise included in any software to be supplied which could be harmful to or shall prevent the operation in whole or in part of the software or any computer system on which the Software is intended to run; and (6) fully tested in accordance with the best industry standards. Seller agrees that these warranties shall apply for the longer of the duration of the term specified in the Agreement or one (1) year. Seller will provide Buyer free of any charge with corrective maintenance, releases, and first-line and second-line support. The warranties contained herein do not diminish any greater standard set forth in the Agreement or a Services Level Agreement. Seller shall advise Buyer of any functionality in any program forming part of or allowing automated administration or record-keeping of the software. This applies in particular to any functionality that provides access to functions and resources (whether part of the software or not) that Buyer may reasonably be expected to wish to use or control. This shall include, without limitation, any functionality that potentially or actually undermines or circumvents any security provisions of the software or any third party software. Unless a longer warranty period is offered by the Seller or the parties agree in righting, the length of all warranties offered in this Section 10 shall be twenty-four (24) months from the delivery of Products or software to Buyer or Seller’s completion of Services.
10.4 Upon a breach of any warranty in the Agreement, Seller shall promptly, at its sole cost and expense, (a) repair or remedy the defect or other failure, replace the affected Products, re-perform the affected Services or, at Buyer’s option, provide a refund to Buyer for any affected Products and Services, and (b) reimburse and otherwise compensate Buyer for all of its direct, indirect, special, incidental, punitive and consequential damages, including recall costs, line shut-down costs and lost or anticipated profits and revenues.
10.5 Seller’s representations and warranties and all associated remedies will benefit and be enforceable by Buyer’s successors, assigns and customers and by the users of the Products or Services.
11. Intellectual Property
11.1 Seller represents and warrants that the Products and Services, and the manufacture, sale, use and provision of the Products and Services do not and will not infringe any trade secrets, patents, trademarks, copyright, design, other intellectual property right or any other right of any third party. Seller further represents and warrants that it has not received any notice from a third party that any of the Products or Services or their manufacture, sale, use or provision anywhere in the world violates or infringes or would violate or infringe the trade secrets or intellectual property or other rights of another. Seller is responsible for the payment of any fees, royalties and other charges necessary to maintain the rights required to fulfill these warranties.
11.2 If a third party enjoins or interferes with Buyer’s use of any Products or Services, then in addition to Seller’s other obligations, Seller shall (a) obtain any licenses necessary to permit Buyer to continue to use or receive the Products or Services, or (b) replace or modify the Products or Services as necessary to permit Buyer to continue to use or receive the Products or Services.
11.3 Nothing in the Agreement is intended or may be construed as a grant or assignment of any license or other right to Seller of any of Buyer’s (or any of its affiliates’) trade secrets or intellectual property or other rights.
11.4 All deliverables and works of authorship created in the course of performing the Agreement constitute works made for hire and will be the sole and exclusive property of Buyer. To the extent that such works do not qualify under applicable law as works made for hire, Seller hereby assigns and agrees to assign to Buyer all of its worldwide right and title to, and interest in, any such deliverables and intellectual property rights in such works of authorship. If such assignment is not possible under any applicable law, Seller hereby grants Buyer a worldwide, irrevocable, perpetual, royalty-free, transferable, sub-licensable license with respect to such deliverables or works of authorship. Seller further grants Buyer a worldwide, irrevocable, perpetual, royalty-free, transferable, sub-licensable license with respect to any intellectual property rights in the deliverables which arose outside the scope of the Agreement but are necessary for Buyer to exercise its rights in the deliverables as reasonably contemplated by the Agreement.
11.5 All improvements and developments related to the Products or Services arising out of the efforts of Buyer or both Buyer and Seller under or in connection with the performance of the Agreement will be owned exclusively by Buyer, and Seller shall reasonably cooperate with Buyer in confirming that result.
12. Indemnification
12.1 Seller shall indemnify, defend and hold harmless Buyer and its affiliates and their respective directors, officers, employees, agents, representatives and customers against all claims, judgments, decrees, liability, damages, losses, costs and expenses (including actual attorneys’ and consultants’ fees) that arise out of or relate to (a) any act or omission of Seller or its employees, subcontractors, agents or representatives, (b) the performance of any service or work by Seller or its employees, subcontractors, agents or representatives, or through their presence on Buyer’s or Buyer’s customers’ premises, (c) the use of the property of Buyer or Buyer’s customer, (d) any breach by Seller of its representations, warranties or obligations under this Agreement, (e) any alleged or actual infringement of the trade secrets or intellectual property or other rights of third parties, (f) Seller-furnished equipment, materials, Products or Services, (g) any product information, operating instructions, safety information or other information or materials relating to the Products which were created by Seller or provided by Seller to Buyer or to purchasers or users of the Products, (h) compromise of Seller’s computer systems or loss, theft or breach of personal identifiable information of Buyer or its customers, or (i) violations of any federal, provincial, state or local law, statute, regulation, rule, ordinance, order or government directive by the Seller or any person engaged by the Seller to perform services. This Section applies to, among other things, claims for injury to or death of persons (including employees of Seller, Buyer or third parties) or damage to any property (including property of Seller, Buyer or third parties), and regardless of whether claims arise under tort, negligence, contract, warranty, strict liability or any other legal theory.
13. Insurance
13.1 Seller shall carry the following insurance at its own cost, with no less than the limits indicated (unless otherwise specified by Buyer in writing), to cover all of Seller operations: (a) workers compensation insurance for all its employees and sub-contracted employees to the full extent required by law; (b) primary comprehensive general liability insurance including products and completed operations coverage to a combined single limit of US$1,000,000.00 for bodily injury and property damage claims arising out of any one occurrence; (c) primary commercial automobile liability insurance to a combined single limit of US$1,000,000.00 for bodily injury and property damage claims arising out of any one accident; (d) umbrella or excess liability insurance to a combined single limit of at least US$2,000,000.00 in the aggregate in excess of the primary comprehensive general liability and primary commercial automobile liability insurance coverage indicated above; (e) for providers of consulting and engineering services - errors and omissions insurance to a combined single limit of US$1,000,000.00; and (f) any other insurance required by law, reasonably requested by Buyer or customary for a Seller in Seller’s position. The insurance coverage required by this Section must be with insurance carriers with an A.M. Best rating of A or better. The policies must name Buyer as an additional named insured on a primary and non-contributory basis and provide a waiver of subrogation in favor of Buyer.. Upon Buyer’s request, Seller shall furnish certificates of insurance issued by Seller’s insurance carriers evidencing compliance with these requirements, specifying the types of coverage, the policy numbers and the expiration dates, and including a statement that the policies will not be cancelled or altered without Buyer receiving at least 30 days’ prior notice In addition, Seller shall exhibit to Buyer satisfactory proof of full compliance by Seller with all the terms of the applicable workers' compensation law, including payment of all premiums, as it affects Seller’s employees, prior to commencing any work hereunder. If Seller does not maintain the required insurance, Buyer may, at its option, procure the insurance for Seller and charge Seller for the costs. Seller shall also ensure that any permitted assignee or subcontractor maintains insurance in the same manner as required for Seller. The furnishing of certificates of insurance and purchase of insurance do not limit or release Seller from Seller’s obligations and liabilities under the Agreement.
13.2 All insurance required above will be written with insurers rated A or better by the latest A.M. Best Guide. Where allowable under law, a waiver of subrogation from Seller and its insurers will be provided in favor of Buyer. Seller’s insurance will be primary and noncontributory to that maintained by Buyer. Seller’s insurance coverage will not be Buyer’s exclusive remedy; instead Buyer will be entitled to all remedies available to it under equity or the law. No insurance will be deemed to be in effect until satisfactory certificates thereof are delivered to Buyer, containing provisions requiring the insurance carrier to notify Buyer at least thirty (30) days prior to any expiration or termination of, or material change to, the policy. Seller will also require insurance from all of its subcontractors with the same coverages and limits.
14. Confidentiality
14.1 “Confidential Information” means the confidential information of Buyer and its affiliates concerning the Agreement, the Products, the Services or the business of Buyer and its affiliates, that Seller comes to know through disclosure by Buyer or otherwise. Confidential information includes data, designs, drawings, specifications, know-how, trade secrets, the terms and existence of the Purchase Order and other confidential technical or business information.
14.2 Seller (a) shall not disclose Confidential Information to any third party, except to those of its employees who have a need to know in order for Seller to fulfill its obligations under the Agreement and who have undertaken obligations of confidentiality and non-use no less protective than those binding on Seller under the Agreement, (b) shall protect the Confidential Information by using the same degree of care that it uses to protect its own confidential information of a similar nature (but not less than reasonable care), (c) shall not use the Confidential Information for any purpose other than to fulfill its obligations under this Agreement, and (d) shall return or destroy and certify destruction of all Confidential Information at Buyer’s request.
14.3 If any work is subcontracted in accordance with the Agreement, Seller shall require a similar confidentiality agreement from such subcontractors but shall remain responsible for any breach by such subcontractors.
15. Termination for Cause by Buyer
15.1 Buyer may terminate, in whole or in part, the Agreement or the Purchase Order issued under the Agreement, without liability to Seller, by notifying Seller in writing upon any of the following events: (a) Seller repudiates, breaches or threatens to breach any of the terms of the Agreement, (b) Seller sells or offers to sell a material portion of its assets, (c) there is a change in the control of Seller, (d) Seller becomes the subject of statutory or court-supervised proceedings in bankruptcy, receivership, liquidation, dissolution, reorganization or other similar proceedings, or (e) Seller has all or a substantial portion of its assets made subject to attachment by creditors or confiscation by government authorities. Seller shall reimburse Buyer for all costs and damages incurred by Buyer in connection with any of the foregoing whether or not the Agreement is terminated, as well as in connection with any termination, including all attorneys fees.
15.2 In the event of a termination pursuant to Section 15.1, Seller shall permit Buyer, at Buyer’s option, to take possession of and title to all or part of Seller’s tooling, jigs, dies, gauges, molds, patterns and other equipment that are specially designed or outfitted for the supply of the Products or Services. If Buyer exercises such option, Buyer shall, within 45 days following delivery of such equipment to Buyer, pay to Seller the lower of (i) the net book value (i.e. actual cost less amortization) or (ii) the then current fair market value of such equipment.
16. Termination for Cause by Seller
16.1 Seller shall not terminate the Agreement unless Buyer is in material breach of the Agreement, Seller has notified Buyer in writing of such breach and Buyer has not cured such breach within a reasonable time (but in any event not less than 60 days) after receiving such written notification.
17. Other Termination
17.1 Buyer may terminate, in whole or in part, the Agreement or the Purchase Order issued under the Agreement, at any time for its convenience, by notifying Seller in writing. If Buyer terminates pursuant to this Section, Buyer’s sole obligation will be to reimburse Seller for (a) those Products or Services actually shipped or performed and accepted by Buyer up to the date of termination, and (b) actual costs incurred by Seller up to the date of termination for unfinished goods which are useable, in merchantable condition and specifically manufactured for Buyer and not standard products of Seller. Buyer will reimburse the costs in (b) only to the extent such costs are reasonable and properly allocable to the terminated portion of the Agreement, and after first subtracting the reasonable value or cost (whichever is higher) of any goods or materials used or sold by Seller with Buyer’s written consent. Buyer’s obligation to reimburse Seller under this Section will not exceed the purchase price in respect of the order (or portion thereof) terminated. All claims by Seller for reimbursement under this Section must be submitted in writing to Buyer within 30 days following the order termination date, with sufficient supporting data to permit an audit by Buyer. Failure to file a claim within such 30-day period will constitute a waiver by Seller of all claims. Seller shall thereafter promptly furnish any supplemental and supporting information Buyer requests.
17.2 Buyer will not be liable for, and Seller agrees not to assert that Buyer is liable for, any of the following: (a) consequential, incidental, indirect, special and punitive damages; (b) recall costs, line shut-down costs, lost or anticipated profits or revenue or cost of capital; (c) finished Products, work-in-process or materials which Seller fabricates or procures in amounts that exceed those authorized by Buyer in the Purchase Order or releases (but excluding forecast quantities); (d) goods or materials that are in Seller’s standard stock or that are readily marketable; (e) claims of Seller’s Sellers or other third parties for damages or penalties, and (f) all other losses, damages, liabilities, costs and expenses not expressly set forth in Section 17.1.
17.3 Buyer may terminate, in whole or in part, the Agreement or the Purchase Order, by notifying Seller in writing, if it is affected by customer delays, cancellations or other events beyond its reasonable control. Such termination will be without liability or obligation to Buyer, including any obligation to reimburse Seller for any materials or work-in-process.
18. Compliance with Laws
18.1 In the performance of its obligations hereunder, Seller shall comply with all applicable laws, statutes, regulations and ordinances, including the Foreign Corrupt Practices Act and the Fair Labor Standards Act. All applicable contract clauses required by any applicable law, statute, regulation or ordinance (including those set forth in 41 C.F.R. Parts 60-1.4(a) (women and minorities), 60-250.5(a) (covered veterans) and 60-741.5(a) (individuals with disabilities)) are incorporated herein by reference and made a part hereof.
18.2 At Buyer’s request, Seller shall promptly furnish information relating to the hazardous, toxic or other content or nature of the Products or Services. Prior to, and together with, the shipment of Products, Seller shall furnish to Buyer and all carriers sufficient written warning and notice (including appropriate labels on the Products and packaging) of any hazardous material that is an ingredient or a part of any of the Products, together with all special handling instructions, safety measures and precautions necessary to comply with the law or to prevent bodily injury or property damage.
18.3 Where required by Buyer or by applicable laws or regulations, Seller shall furnish Material Safety Data Sheets (MSDS) on the materials used in manufacturing the Products or the provision of the Services. MSDS are to be sent to the plant environmental/safety coordinator at the Buyer facility to which the Products or Services are delivered.
19. International Trade and Customs
19.1 Seller shall comply with all applicable export control laws and regulations, including the Export Administration Regulations. Seller shall not export or re-export any items or technical data furnished by Buyer, except with Buyer’s prior written consent.
19.2 Buyer owns all transferable credits or benefits associated with or arising from the Products, including trade credits, export credits and rights to the refund of duties, taxes and fees.
19.3 Except with prior written permission from Buyer’s Global Trade Department (“GTD”), Seller shall not (a) file, or cause or permit any third party to file, for duty drawback with customs authorities in respect of the Products or any component thereof, or (b) show, or cause or permit any third party to show, Buyer’s name as “importer of record” on any customs declaration.
19.4 Seller shall provide Buyer, in a timely manner, with accurate information, records and documentation relating to the Products, which Buyer believes is necessary or desirable to fulfill customs and trade related obligations. This includes import compliance, export compliance, trade preference programs and similar obligations.
19.5 To the extent the Products are to be imported into the U.S, Seller shall comply with all applicable recommendations or requirements of the U.S. Bureau of Customs and Border Protection’s Customs-Trade Partnership Against Terrorism (“C-TPAT”) initiative. Where Seller does not exercise control of the manufacturing or transportation of the Products destined for delivery to Buyer or its customers in the U.S, Seller shall make C-TPAT security recommendations to its Sellers and transportation providers and condition its relationship with those entities on their implementation of such recommendations.
19.6 No later than the time of delivery, Seller shall provide Buyer with the applicable Export Control Classification Numbers (“ECCNs”) of the Products and their components and the Services.
20. Seller Code of Conduct
20.1 Seller shall have in place a code of ethical business conduct suitable to its business, and conform to such code. The code must provide that Seller shall comply with all pertinent laws and regulations and must address Seller’s policies regarding workplace health and safety, labor standards, protection of the environment and resources, product safety and quality, and anti-corruption.
21. Other Rights and Remedies
21.1 Seller acknowledges that breach by Seller of the Agreement could cause irreparable harm to Buyer for which monetary damages may be difficult to ascertain or may constitute any inadequate remedy. Seller, therefore, agrees that Buyer shall be entitled to sue for specific performance or seek injunctive relief for any violation or threatened violation of the Agreement by Seller without the filing or posting of any bond or surety. Buyer may seek a temporary and/or permanent injunction (or other similar relief in accordance with applicable law) from any court or other authority having competent jurisdiction, and such courts may apply local laws in determining whether to grant the injunction.
21.2 Buyer’s rights and remedies set forth in the Agreement are in addition to any other legal or equitable right or remedy available to Buyer.
22. Miscellaneous
22.1 The words “such as”, “include” and “including” are to be construed as if they were followed by “without limitation”, unless the accompanying text or the context clearly requires otherwise.
22.2 Seller may not assign its rights or obligations under the Agreement. Any attempted assignment will be void, unless Buyer has given its prior written consent to such assignment, in which case Seller shall remain primarily responsible and liable for its assignee’s performance of this Agreement. Buyer may assign its rights under the Agreement to its affiliates and may assign its rights and delegate its obligations under the Agreement to a third party in connection with the sale of all or part its business.
22.3 If any term of the Agreement is declared unenforceable, the remaining terms will remain in effect, and the unenforceable term will be replaced by a term that is valid and enforceable and that comes closest to expressing the intention of the unenforceable term.
22.4 Any terms which, by their nature, extend beyond the expiration or termination of the Agreement will survive the expiration or termination of the Agreement, including Sections 6, 10, 11, 12, 13, 14 and 19.
22.5 These Terms and the transactions contemplated hereby shall be governed by, and construed and enforced in accordance with, the laws of the state in which the Buyer is incorporated or formed (the “State of Incorporation”) without regard to its conflicts of law rules that might direct the application of the laws of any other jurisdiction. Any and all disputes arising under or in connection with purchase and sale of the Products, including, without limitation, the Purchase Order or an invoice shall be resolved exclusively in the state or federal courts of the State of Incorporation and Seller expressly agrees not to challenge the jurisdiction or venue of such courts on any grounds and agrees to accept service of process by mail at the address indicated for Seller in the Purchase Order. Buyer and Seller agree that The United Nations Convention on Contracts for the International Sale of Goods (1980) is expressly and entirely excluded from the choice of applicable law and will not apply to the purchase and sale of the Products, including, without limitation, Buyer’s purchase or an invoice.
22.6 In the event that any party institutes any legal suit, action or proceeding against the other party in connection with purchase and sale of the Products, including, without limitation, the Purchase Order or an invoice, the substantially prevailing party in the suit, action or proceeding shall be entitled to receive in addition to all other damages to which it may be entitled, the costs incurred by such party in conducting the suit, action or proceeding, including reasonable attorneys' fees and expenses and court costs. For purposes of this Agreement, “substantially prevailing party” means the party that prevails (whether affirmatively or by means of a successful defense) with respect to claims having the greatest value or importance as reasonably determined by the court. Each party hereby waives to the fullest extent permitted by applicable law any right it may have to a trial by jury in respect of any litigation arising in connection with the Agreement.
22.7 The Agreement does not create an agency, partnership or other relationship other than that of independent contracting parties. Seller has no authority to bind or commit Buyer.
22.8 A reference in this Agreement to the consent or approval of Buyer is a reference to the consent or approval of a representative of Buyer duly authorized by Buyer to give such consent or approval.
22.9 Buyer may provide translated versions of the terms and conditions for informational purposes only. The original English language version will apply in the event of any disagreement over the meaning or construction of any provisions.
22.10 Seller shall not in any manner advertise or publish that Seller has contracted to furnish Buyer the Products or Services or use any trademarks or trade names of Buyer in Seller’s goods, advertising or promotional materials except with Buyer’s prior written consent.
22.11 In no event shall Buyer have any liability to Seller for any delayed performance or nonperformance by Buyer which results, in whole or in part, directly or indirectly, from any cause beyond the reasonable control of Buyer. Such causes shall include (but shall not be limited to) acts of God, wars, riots, civil disturbances, pandemics, disease, strikes, labor disputes, fires, storms, floods, earthquakes, natural disasters, inability to obtain or use raw or component material or parts, labor, equipment, facilities, or transportation, inability for technical reasons to produce any Products or perform any Services (or to produce any Products or perform any Services with any consistency) and acts of any government or agency thereof. Buyer’s order will be deemed suspended for so long as any such cause prevents or delays Buyer's performance. In the event of any such suspension, Buyer shall have the right, at its option, upon notice to Seller, (a) to terminate its obligation to purchase any or all of the Products or Services ordered by Buyer or (b) to resume performance as soon as practicable after the suspension, and reschedule delivery of the Products or Services ordered to one or more deferred dates to be mutually agreed upon by Seller and Buyer.
23. Recall
In the event of any recall or retrieval of any of the Products due to a non-conformity of such Product that arises during the Term or within a period of one (1) year after the expiry or termination of this Agreement, (“Recall Campaign”), regardless of who has caused or initiated such Recall Campaign, Seller shall provide replacement Products free of charge to Buyer and shall reimburse Buyer for any and all damages, costs and/or expenses incurred by Buyer, its licensors, distributors, agents, vendors, retailers and customers, for recalling the defective Products, including, without limitation, (a) fees and disbursements of recall consultants, accountants and attorneys, (b) cost of informing the public of the recall, (c) related transportation, storage and insurance costs, (d) destruction costs, (e) storage costs, and (f) laboratory fees and expenses. Each party shall, upon becoming aware of any Recall Campaign that potentially could involve the other party, inform and involve the other party in the recall process.
24. Limited License
24.1 Buyer grants to Seller a limited, revocable, nonexclusive license to use its trademark, logo, and such other intellectual property (“Buyer’s Intellectual Property”) as is necessary for performance of the tasks and delivery of the Product contemplated herein. Said license is limited to only the minimum extent necessary for performance of the tasks and delivery of the Product contemplated herein. No further license is granted absent an express writing which refers to these General Terms and Conditions and this provision, and Seller is not licensed to use Buyer’s Intellectual Property or name in any other way, including but not limited to, and by way of example rather than limitation, on websites or in promotional material. Seller grants to Buyer a limited, revocable, nonexclusive license to use its trademark, logo, and such other intellectual property (“Seller’s Intellectual Property”) as is necessary for performance of the tasks and delivery of the Product contemplated herein. Said license is limited to only the minimum extent necessary for performance of the tasks and delivery of the Product contemplated herein. No further license is granted absent an express writing which refers to these General Terms and Conditions and this provision, and Buyer is not licensed to use Seller’s Intellectual Property or name in any other way, including but not limited to, and by way of example rather than limitation, on websites or in promotional material.