Terms and Conditions
FOR NEOLUBE® PURCHASE ORDERS
Purchase order Terms and Conditions
Huron Industries, Inc. and all affiliated companies
ACCEPTANCE. This purchase order (this “Order”) is for the purchase of the goods or services (collectively the “Goods”) described on the face of this form and constitutes Buyer’s offer to Supplier. This Order shall be deemed accepted by Supplier either by written acknowledgement on the face hereof or, in the absence of such acknowledgement, by delivery of any Goods. Acceptance by Supplier shall create a firm contract solely on the terms and conditions of this Order, which may not be modified by any of Supplier’s order forms or other documents or in any other manner without Buyer’s express written consent to such modification. This Order, together with any documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to this Order, and supersedes all prior or contemporaneous understandings, agreements, negotiations, representations and warranties, and communications, both written and oral, with respect to the subject matter of this Order. This Order expressly limits Supplier’s acceptance to the terms of this Order. The terms and conditions herein prevail over any terms or conditions contained in any other documentation and expressly exclude any of Supplier’s general terms and conditions of sale or any other document issued by Supplier in connection with this Order. Supplier is hereby notified of Buyer’s objection to any terms inconsistent herewith and to any additional terms proposed by Supplier in accepting or acknowledging this Order, and such terms shall not become a part of this Order unless accepted in writing by Buyer. Neither Buyer’s subsequent lack of objection to any such terms, nor the acceptance of Goods ordered hereby, nor payment therefor, shall constitute or be deemed an agreement by Buyer to any such terms. Buyer may withdraw Buyer’s offer or revoke acceptance at any time prior to shipment of Goods. The terms and conditions herein apply to any repaired or replacement Goods provided by Supplier hereunder. Buyer is not obligated to any minimum purchase or future purchase obligations under this Order.
PACKING. The Goods shall be packed and shipped by Supplier in accordance with Buyer’s instructions and with good commercial practice to ensure that no damage results from transportation, weather or other foreseeable conditions. In the absence of a packing list, Buyer’s count as to the Goods shipped shall be final and conclusive.
SUB-SUPPLIER REQUIREMENTS. Supplier shall ensure that the applicable technical and quality requirements related to this purchase order have been imposed in all supplier orders to applicable subcontractors. Review the contents of this purchase order thoroughly. If you have exceptions or requested changes, please contact the buyer in writing prior to any shipment. Noncompliance with the requirements of this purchase order (e.g., incorrect part number, wrong size, missing, or incorrect documentation, ship to wrong address) will result in delayed payment of subsequent invoicing and/or return of material freight collect.
NEW/UNUSED. Unless otherwise specified herein, all items shall be new and unused. Refurbished, repaired, and/or surplus material is not acceptable to the buyer and shall not be provided. By supplying goods hereunder, the supplier warrants compliance with this condition.
EXCEPTIONS. If the item or part number to be furnished is different in any way (material, fit, form, function, or interchangeability) than the part number specified, a statement from the supplier will be required and the change approved in writing prior to shipment. This statement should explain the reason for the difference, tell whether the part number change affects the material, fit, form, function, or interchangeability of the item ordered, and include any manufacturer specification sheets, drawings, and/or catalog information as available. Material manufacturers, when indicated on the purchase order, shall not be substituted except that changes in part number or manufacturer must be approved in writing by the buyer prior to shipment.
IDENTIFICATION. Each item or container is to be tagged with the purchase order number, item number, and item description listed on this purchase order.
DELIVERY AND CHARGES. Unless otherwise stated on the face of this Order, all deliveries are F.O.B. Buyer’s facility listed on the face of this Order. The prices stated on the face of this Order include all insurance, packing, freight, taxes and other charges to the point of destination unless otherwise specifically noted. If Supplier delivers the Goods prior to the delivery date designated on the face of this Order, Buyer shall be entitled to refuse delivery and, at Supplier’s expense, provide for the delivery of the Goods to a warehouse, and for their storage and re-delivery to Buyer on the proper delivery date. By providing for such transportation and storage, Buyer shall not be deemed to have waived any rights to reject other than those based on the early delivery. Time is of the essence on this Order and if deliveries are not made at the time and in the quantity specified on the face hereof, Buyer may cancel this Order in whole or in part, without any liability, and Supplier shall indemnify Buyer against any losses, claims, damages, and reasonable costs and expenses directly attributable to Supplier’s failure to deliver the Goods on the delivery date designated on the face of this Order. Supplier shall give written notice of shipment to Buyer when the Goods are delivered to a carrier for transportation. Supplier shall provide Buyer all shipping documents, including the commercial invoice, packing list, air waybill, bill of lading and any other documents necessary to release the Goods to Buyer within a reasonable number of days after Supplier delivers the Goods to the transportation carrier. The Order number must appear on all shipping documents, shipping labels, bills of lading, air waybills, invoices, correspondence and any other documents pertaining to this Order.
RISK OF LOSS. Supplier shall bear all risk of loss for the Goods until they are physically delivered to Buyer’s facility.
INSPECTION AND REJECTION. All Goods, raw materials, work in progress, and components to be incorporated into the Goods, as well as Supplier’s plant and premises, may be inspected and tested by Buyer at all reasonable times, including during the period of manufacture. Buyer’s authorized agent, representative, customers or regulatory authorities reserve the right to conduct quality checks and performance audits to ensure Buyer, customer and industry regulatory requirements are being complied with. Supplier or any subcontractor shall, at its own expense, provide safe and convenient means of inspection to Buyer’s inspectors. Buyer shall be entitled to charge Supplier for any additional inspection costs which result from such items not being ready or available for inspection or testing or if such inspection or testing is conducted after a prior rejection of any Goods. Supplier shall provide and maintain an inspection system acceptable to Buyer with respect to any Goods and shall keep complete records of the inspection work until three years after the conclusion of the warranty period specified herein. Notwithstanding any other inspection, the Goods are subject to final inspection and acceptance at Buyer’s facility, or at such other location as is specified in writing by Buyer, and no prior inspection or payment shall be deemed an acceptance or a waiver of any rights or shall in any way relieve Supplier from its obligations or liabilities hereunder. Without limiting any of Buyer’s other remedies, Buyer shall be entitled to reject any defective or nonconforming Goods, in whole or in part, and at its option, return them to Supplier for cash refund or credit. Any rejected Goods may also be held at Supplier’s risk if Supplier does not remove the Goods within ten days after notice of rejection and Buyer may sell or otherwise dispose of any rejected Goods for Supplier’s account. Buyer shall further be entitled to full reimbursement for any transportation charges, packing, or any other charges incurred in connection with the receipt, reshipment or disposition of nonconforming or defective Goods. Buyer, at its option, may accept late or nonconforming Goods, and Supplier will agree to an equitable adjustment in the Price (defined below) of those Goods.
PRICE. The price of the Goods is the price stated in the face of this Order (the “Price“). If no price is included, the Price shall be the price set out in Supplier’s published price list in force as of the date of this Order. Unless otherwise specified in this Order, the Price includes all packaging, transportation costs to the delivery location, insurance, customs duties and fees and applicable taxes, including, but not limited to, all sales, use or excise taxes. No increase in the Price is effective, whether due to increased material, labor or transportation costs or otherwise, without the prior written consent of Buyer.
PAYMENT TERMS. Supplier shall issue an invoice to Buyer on or any time after the completion of delivery and only in accordance with the terms and conditions hereof. Buyer shall pay all properly invoiced amounts due to Supplier according to agreed upon payment terms, except for any amounts disputed by Buyer in good faith. The parties shall seek to resolve all such disputes expeditiously and in good faith. Supplier shall continue performing its obligations under this Order notwithstanding any such dispute.
PRODUCT WARRANTIES. Supplier warrants to Buyer that all Goods will: (a) be free from any defects in workmanship, material and design; (b) conform to applicable specifications, drawings, designs, samples and other requirements specified by Buyer; (c) be fit for their intended purpose and operate as intended;
(d) be merchantable; (e) be free and clear of all liens, security interests or other encumbrances; and (f) not infringe or misappropriate any third party’s patent or other intellectual property rights. All implied warranties shall extend to Buyer, its affiliates, successors, assigns, and customers, and to all users of the Goods for a period of one year after delivery. All express warranties remain in effect to the maximum extent permitted by law. In addition to any other remedies available if any warranty is breached, Buyer or such other parties may at their option, either cancel the order or return any or all of the Goods for cash refund or credit, at their option.
COUNTERFEIT, FRAUDULENT AND SUBSTANDARD ITEMS. The Supplier represents that the goods furnished to the buyer hereunder are not fraudulent and do not involve the sale of counterfeit goods. For purposes of this order, a counterfeit good is defined as a product produced, altered, or misleadingly labeled to resemble a product or to provide the impression that the product is of a different class or quality or from a different source without authority or right to do so and which misleads or defrauds by presenting the imitation product as original, authorized or genuine. Counterfeit goods include, but are not limited to, used or recycled components and refurbished parts, with or without false labeling, that are represented as new parts or any items that are provided by Supplier or its sub-supplier in violation of any license or non-competition agreements or other third-party proprietary rights. Supplier represents that it has policies and procedures in place to inspect the goods sold hereunder for detection and avoidance of the sale of counterfeit goods. If Supplier determines or suspects or deems that it has furnished counterfeit goods to buyer, Supplier shall immediately notify buyer. In the event that buyer determines or suspects that Supplier or its sub-supplier has furnished counterfeit goods to buyer, buyer shall immediately notify the Supplier. The Supplier shall be liable for all costs relating to removal and replacement of the goods at issue with non-counterfeit goods in full conformance with this purchase order. Buyer reserves the right to withhold payment for the suspected counterfeit goods pending a determination by the buyer as to confirmation of whether the goods at issue are or are not counterfeit goods. Supplier shall indemnify and save harmless the buyer, owners and any of their affiliated companies, directors, officers and employees from and against all claims, actions, loss, cost, expense or injury of any kind arising from or incidental to the furnishing of counterfeit goods by Supplier or its sub-suppliers here under.
FRAUD OR FALSIFICATION. This Order and the activities hereunder are within the jurisdiction of the Department of Energy or the Department of the Navy. Any knowing and willful act to falsify, conceal or alter a material fact, or any false, fraudulent or fictitious statement or representation in connection with the performance of work under this Order may be punishable in accordance with applicable Federal Statutes. Supplier agrees that all employees engaged in the performance of this purchase order will be, if they have not been previously, informed in writing prior to commencing performance of work under this purchase order that there is a risk of Federal criminal penalties associated with any falsification, concealment or misrepresentation in connection with work performed under this purchase order. Supplier agrees that a signed statement shall be, if it has not been previously, obtain from said employees prior their commencing performance of work under this purchase order that they have been so informed. Such statements shall be retained by the Supplier for at least three years after final payment on this purchase order. An acceptable form for such a statement is substantially as follows: “This company performs work under contracts which are within the jurisdiction of departments of the United States Government. Some of the work performed under these contracts affects the national security of the United States and the requirements of these contracts are designed to ensure that the essential attributes of the work are carefully checked or inspected and that records accurately reflect the results of all work. Any falsification, concealment or alteration of any material fact, or any false, fraudulent or fictitious statement or representation in connection with the work under any contract within the jurisdiction of the Government is not only prohibited by company policy, but may also be punishable under Federal Law. Please acknowledge by your signature that you have read and understand the above.” Supplier agrees to include the following pre-printed statement on manufacturing work instructions, manufacturing records, inspection, and/or test forms generated by Supplier to verify or report the performance of any work in conjunction with the subject order. “NOTE: The recording of false, fictitious or fraudulent statement or entries on this document may be punishable as a felony under Federal Statute.” Supplier agrees to include this article, including this paragraph D., in every subcontract or lower-tier purchase order for material, parts, or services under this Order. Any inability or unwillingness of a lower-tier supplier to comply with this provision shall promptly be documented in writing and provided to Buyer.
PRICE WARRANTY. Supplier warrants that the prices indicated on the face hereof are no higher than those being charged to any other buyer of comparable quantity and quality of Goods. In addition, any discount made available to any buyer before the last date of the month following the shipment of any or all of this order shall retroactively apply to this Order and Supplier shall promptly credit Buyer with the amount of such discount.
GENERAL INDEMNIFICATION. Supplier shall defend, indemnify and hold harmless Buyer and its subsidiaries, affiliates, successors or assigns and their respective directors, officers, shareholders and employees and Buyer’s customers (collectively, “Indemnitees“) against any and all loss, injury, death, damage, liability, claim, deficiency, action, judgment, interest, award, penalty, fine, cost or expense, including reasonable attorney and professional fees and costs, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (collectively, “Losses“) arising out of or occurring in connection with the purchase, sale, or use of the Goods or Supplier’s negligence, willful misconduct or breach of the terms and conditions of this Order. Supplier shall not enter into any settlement without Buyer’s or Indemnitee’s prior written consent. Supplier shall maintain insurance against such risks and, upon Buyer’s request, shall deliver certificates of such insurance to Supplier. Such insurance shall be in amounts satisfactory to Buyer, and shall name Buyer as an additional named insured. If any party purchasing Goods from the Buyer threatens to bring any action or claim, or brings any such action or claim against Buyer asserting that such Goods are not fit or safe for consumer use or are not merchantable or fit for the particular purpose intended, then, in addition to any other remedies which it may have at law or in equity, Buyer shall be entitled to tender to Supplier, at its plant, any remaining Goods of the nature complained about for cash refund or full credit, at Buyer’s option, and shall be entitled to recover all expenses incurred in connection with such action or threatened action.
INTELLECTUAL PROPERTY INDEMNIFICATION. Supplier shall, at its expense, defend, indemnify and hold harmless Buyer and any Indemnitee against any and all Losses arising out of or in connection with any claim that Buyer’s or Indemnitee’s use or possession of the Goods infringes or misappropriates the patent, copyright, trade secret or other intellectual property right of any third party. In no event shall Supplier enter into any settlement without Buyer’s or Indemnitee’s prior written consent.
TRADEMARKS. Buyer warrants it has the right to have Supplier affix requested trademarks to the Goods. Supplier shall not acquire or claim any right, title or interest in any such trademarks or utilize any such trademarks on any other goods it produces.
BUYER-FURNISHED PROPERTY. Supplier shall not use, reproduce or appropriate for use, or disclose to anyone other than Buyer any material, tooling, dies, drawings, designs or any other property or data furnished by Buyer. All such property or data and all molds, tooling or other property or data manufactured by Supplier at Buyer’s expense, shall remain Buyer’s, shall be kept separate from other materials, shall be clearly identified as Buyer’s property and shall be used solely in connection with the performance of this Order. With the exception of normal wear and tear and damage resulting solely from Buyer’s negligence, Supplier shall bear the risk of loss or damage to any such property or data which shall be returned to Buyer upon 10 days written notice from Buyer. Supplier shall indemnify, defend, and hold harmless Buyer and any Indemnitee against any and all Losses arising in connection with any delays in returning such property or data.
TERMINATION / CANCELLATION. Buyer may terminate this Order, in whole or in part, at any time with or without cause for undelivered Goods on prior written notice to Supplier. In addition to any remedies that may be provided under the terms and conditions herein, Buyer may terminate this Order with immediate effect upon written notice to Supplier, either before or after the acceptance of the Goods, if Supplier has not performed or complied with any of these terms and conditions, in whole or in part. If Supplier becomes insolvent, files a petition for bankruptcy or commences or has commenced against its proceedings relating to bankruptcy, receivership, reorganization or assignment for the benefit of creditors, then Buyer may terminate this Order upon written notice to Supplier. If Buyer terminates this Order for any reason, Supplier’s sole and exclusive remedy is payment for the Goods received and accepted by Buyer prior to the termination. If Buyer cancels or suspends this Order, Supplier shall, to the extent specified in Buyer’s notice, promptly suspend work, terminate any work being performed by others under any outstanding subcontracts with respect to the Goods, take all other reasonable steps to minimize its expenses with respect to the Goods, and take all necessary action to protect all property in Supplier’s possession in which Buyer has or may acquire an interest. Any cancellation or suspension by Buyer shall be without prejudice to any of Buyer’s claims for damages or its other rights against Supplier. If Buyer elects to cancel this Order, Buyer shall have the option to take any Goods, work or other items included in this Order, whether finished, unfinished, or in process, upon such terms as Buyer and Supplier may negotiate.
MODIFICATION. Buyer may, from time to time, by written instructions, or drawings issued to Supplier, make changes to any aspect of this Order, and the provisions of this Order shall apply to all such changes, additions, and modifications. No work, addition or alteration will be paid for unless performed pursuant to and in accordance with the written order of Buyer. If any work or change in work affects the Price or the time required for performance, Supplier shall notify Buyer thereof within 15 days of change order and no adjustment in Price or schedule shall be binding upon Buyer unless Buyer has agreed in writing to the same. However, nothing herein shall excuse Supplier from immediately proceeding with the change.
COMPLIANCE WITH LAWS. Supplier shall comply with all federal, state and local laws, and executive regulations and orders, including, without limitation, the applicable requirements of sections 6, 7, and 12 of the Fair Labor Standards Act, as amended, and of regulations and orders of the U.S. Department of Labor issued under applicable requirements of Executive Order 1141 and 11246, as well as the Rehabilitation Act of 1973, as amended, Occupational Health and Safety Act (OSHA), Hazardous Materials Transportation Act and Toxic Substances Control Act (TSCA) and regulations issued thereunder. Further, Supplier warrants that all chemical substances furnished which are required or permitted to be reported to the U.S. Environmental Protection Agency (the “EPA”) are listed as chemical substances in the EPA’s current inventory listing. Supplier agrees to indemnify, defend, and hold Buyer and the Indemnities harmless from any Losses resulting from the failure of Supplier to comply. Supplier hereby guarantees that any food, drug or cosmetic that may be covered hereby, or comprising or being a part of any shipment or other delivery hereunder, will not at the time of such shipment or delivery be adulterated or misbranded within the meaning of the Federal Food, Drug and Cosmetic Act, as amended, or within the meaning of any State Food and Drug Law, the adulteration or misbranding provisions of which are identical with, or substantially the same as, those of the Federal Food, Drug and Cosmetic Act, or be an article which may not under the provisions of said act or law be introduced into interstate or intrastate commerce. Material ordered hereby is warranted to conform to applicable FDA Regulations pertaining to such material and its intended use. Supplier has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Order. Supplier shall comply with all export and import laws of all countries involved in the sale of Goods under this Order. Supplier assumes all responsibility for shipments of Goods requiring any government import clearance. Buyer may terminate this Order if any government authority imposes antidumping duties, countervailing duties or any retaliatory duties on the Goods.
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.
ASSIGNMENT. Supplier shall not assign, transfer, delegate or subcontract any of its rights or obligations under this 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. Buyer may at any time assign, transfer or subcontract any or all of its rights or obligations under this Order without Supplier’s prior written consent.
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 this Order is confidential, solely for the use of performing this 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 the Supplier at the time of disclosure; or (c) rightfully obtained by the Supplier on a non-confidential basis from a third party.
GOVERNING LAW. Any disputes arising under this Order shall be adjudicated only by a state or federal court located within the state of Buyer’s principal location, and each party to this Order hereby expressly submits itself to the personal jurisdiction of those courts for this purpose. All disputes arising under this Order shall be governed by, and resolved according to, the laws of such state.
NOTICE OF LABOR DISPUTES. Supplier shall promptly give notice to Buyer of any actual or potential labor disputes which may delay or threaten to delay the performance of this Order. Supplier shall similarly require notice from any of its subcontractors of any actual or potential labor dispute and shall promptly provide Buyer with all relevant information regarding any such actual or potential dispute.
COSTS AND ATTORNEYS’ FEES. If any judicial action is brought to enforce this Order, the prevailing party shall be entitled to such costs, including, without limitation, such reasonable attorneys’ fees and court costs, as the court may award.
ENTIRE AGREEMENT. The terms and conditions set forth on both sides of this purchase order form constitute the entire understanding between the parties except for any other oral or written representations or warranties made by Supplier with respect to the Goods.
WAIVER. No waiver by any party of any of the provisions of this Order shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Order, no failure to exercise, or delay in exercising, any rights, remedy, power or privilege arising from this 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.
FUTURE ORDERS. Supplier is aware that Buyer’s purchase orders are customarily prepared after orders for goods or services have been placed orally by Buyer and that in certain cases in the future, Supplier may actually deliver goods or services prior to receipt of Buyer’s purchase orders. Supplier expressly agrees that until such time as Supplier is otherwise notified or until such time as Buyer and Supplier otherwise agree in writing, the terms and conditions set forth on this side of this Order shall apply to all future orders, even if purchase orders are not delivered for such orders or if they are delivered to Supplier after shipment of the goods or services.
FORCE MAJEURE. Neither party shall be liable to the other for any delay or failure in performing its obligations under this 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 this Order. If a Force Majeure Event prevents Supplier from carrying out its obligations under this Order for a continuous period of more than sixty (60) days, Buyer may terminate this Order immediately by giving written notice to Supplier.
MISCELLANEOUS. If any provision of this Order or portion hereof, is held to be unenforceable or invalid, all other remaining provisions or portions hereof shall remain valid and enforceable. All paragraph headings are used for convenience only and shall not control the interpretation of any of the terms and conditions herein.
FEDERAL GOVERNMENT CONTRACTS. If the Goods covered by this Order are to be used by Buyer in whole or in part for the performance of a federal government contract, all applicable provisions of such contract and of the Federal Acquisition Regulations, 48 C.F.R. Chapter 1 (Parts 1-99) or if such federal government contract relates to the Department of Defense, of the Defense Federal Regulations, 48 C.F.R. Chapter 1 (Parts 201-299), are incorporated herein by reference. Supplier shall execute certificates of compliance as requested by Buyer. To the extent applicable, The Equal Opportunity and Affirmative Action clause at 41CFR60-1.4, 41CFR60-250.4 and 41CFR60-741 (5A) are hereby incorporated by reference in this purchase.
PERMITS AND LICENSES. Supplier shall obtain, at its expense, and possess at all times during performance hereunder, all necessary releases, permits, licenses or other authorizations required to fulfill Supplier’s obligations hereunder. Supplier shall give all necessary notices and pay all fees required by law.
SUBCONTRACTS. If this order involves the use of subcontractors, the names and references of all proposed subcontractors shall be submitted in writing by Supplier to Buyer, and Buyer shall have the right to reject such subcontractors which it deems unsatisfactory. Supplier shall not sublet any portion of the work without written permission of Buyer. Such permission shall not, however, relieve Supplier from responsibility for the conduct and work of all subcontractors. Supplier, in subletting any part of the work, shall bind each subcontractor by a contract incorporating all the terms, obligations and conditions provided for by this Order, in so far as the same may be applicable to the work of the subcontractor, without in any way creating any contractual relations between such subcontractor and Buyer. Supplier shall properly direct and control the subcontractors, being responsible for the correlation of the work of Supplier and that of the subcontractors.
INDEPENDENT CONTRACTOR. The relationship between the parties is that of independent contractors. Nothing contained in this 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 this Order. Without limiting the generality of the foregoing, Supplier has no authority to hire any persons on Buyer’s behalf and each person employed or used by Supplier shall be Supplier’s and not Buyer’s employee, servant or agent, and further, that Supplier is performing all of said work as an independent contractor.
SECURITY INTEREST. Buyer hereby reserves, and Supplier hereby grants to Buyer, a security interest in the items covered by this Order to the extent, and in the amount, of the payment to be made by Buyer to Supplier under this Order in advance of delivery of such Goods to Buyer, and Supplier hereby authorizes Buyer to file, and will assist Buyer in filing, a financing statement or any other document necessary to enable Buyer to perfect and continue such security interest in the items.
WORK ON BUYER’S PREMISES; CLEANUP; SAFETY. In the event this Order involves work to be done on Buyer’s premises and Buyer has delivered a separate agreement covering such work, such agreement shall have priority over this Order in the event of a conflict in terms, and this Order will incorporate such agreement’s terms. In addition, after the completion of the work, Supplier shall leave the work area clean and ready for use, and shall remove all tools, scaffolding, and surplus materials. In the performance of the work, Supplier will comply with all safety regulations issued by Buyer and all Buyer’s company policies supplied to Supplier and will require like compliance by all subcontractors.
QUALITY REQUIREMENTS. Suppliers of direct materials are required to be certified to ISO 9001:2008 or equivalent unless exempted by Buyer. Any non-certified suppliers are subject to an on-site quality audit by Buyer. Suppliers of direct materials should provide one (1) year advanced written notification of any changes to the manufacturing process, quantities, or a discontinuation in manufacture of the material. A manufacturing process change is defined as any change in raw materials, formulas, suppliers of raw materials, manufacturing location or any change in the process that might affect the identification or performance of a product. In the event that a discontinuation becomes inevitable and unavoidable, in addition to providing the above notice period, Supplier shall allow Buyer the opportunity to make a last time purchase of at least one year’s supply of the material prior to the actual date of discontinuation. Suppliers of test and/or calibration services shall be accredited to ISO/IEC 17025 “General requirements for the competence of testing and calibration laboratories” or national equivalent. Buyer must approve non-accredited suppliers of these services.
CONFLICT MINERALS PROHIBITION AND CERTIFICATION. Definitions: “Adjoining Countries” means a country that shares an internationally recognized border with the DRC (i.e., Angola, Zambia, Tanzania, Burundi, Rwanda, Uganda, Sudan, Central African Republic, and Congo). “Conflict Minerals” means (i) Columbite-tantalite (coltan), cassiterite, gold, wolframite, or their derivatives, which are limited to tantalum, tin, and tungsten, unless the Secretary of State determines that additional derivatives are financing conflict in any of the Covered Countries; or (ii) any other mineral or its derivatives determined by the Secretary of State to be financing conflict in any of the Covered Countries. “Covered Countries” means the DRC and the Adjoining Countries. “DRC” means the Democratic Republic of the Congo. “DRC Conflict Free” – means that a product does not contain conflict minerals necessary to the functionality or production of that product that directly or indirectly finance or benefit armed groups, as defined in paragraph (d)(2) of Securities and Exchange Commission’s final rule on Conflict Minerals, 17 CFR Parts 240 and 249(b), promulgated pursuant to Section 1502 of the Dodd-Frank Wall Street Reform and Consumer Protections Act. (the “Rule”), in the Covered Countries. Conflict minerals that a registrant obtains from recycled or scrap sources, as defined in paragraph (d)(6) of the “Rule”, are considered DRC conflict free. “Nationally or internationally recognized due diligence framework” means a nationally or internationally recognized due diligence framework established following due-process procedures, including the broad distribution of the framework for public comment, and is consistent with the criteria standards in the Government Auditing Standards established by the Comptroller General of the United States.
SUPPLIER CERTIFICATIONS. The supplier certifies and warrants that: 1. Regardless of whether Supplier is publicly traded or not, Supplier does not procure Conflict Minerals from Covered Countries, as those terms are defined by and consistent with the “Rule.” 2. All products that will be delivered to Buyer by Supplier under this Order are DRC Conflict Free, as defined by and consistent with the Rule.
SUPPLIER AGREEMENTS. Supplier agrees that: 1. If required by the Rule, it has: (i) made, and will continue to make, good faith inquiries reasonably designed to determine whether any Conflict Mineral that is included in any product delivered to Buyer pursuant to this Order originated in any of the Covered Countries, or is from Recycled or Scrap Sources, as defined in the Rule; and (ii) performed, and will continue to perform, due diligence on the source and chain of custody of any Conflict Mineral that is included in any product delivered to Buyer pursuant to this Order, and that such due diligence conforms to a nationally or internationally recognized due diligence framework, if such framework is available for the Conflict Mineral; and that all inquiries and diligence performed shall be consistent with the requirements of the Rule. 2. It shall require its own subcontractors and suppliers (at any tier in the supply chain for a product delivered to Buyer under this Order) to furnish information to Supplier necessary to support Supplier’s obligations under this clause. 3. It will maintain records reviewable by Buyer to support its certifications above. 4. It acknowledges that Buyer may utilize and disclose Conflict Minerals information provided by Supplier in order to satisfy its disclosure obligations under the Rule. Buyer Rights. If Buyer determines that any certification made by Supplier under this clause is inaccurate or incomplete in any respect, then Buyer may terminate this Order pursuant to the provision of this Order titled “Default (Fixed-Price Supply and Service)”
CUMULATIVE REMEDIES. The rights and remedies under this 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.
NOTICES. All notices, request, 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 this 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 this 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.
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