Repeat Precision Terms and Conditions of Purchase
These Terms and Conditions of Purchase shall govern the purchase, by the Company, of Goods and/or Services from Supplier in the absence of a fully executed master service or sales agreement.
ARTICLE 1 - DEFINITIONS AND INTERPRETATION
1.1 Definitions. Capitalized words used herein have the following meanings:
“Affiliate” or “Affiliates” means (in relation to either Party) any Person directly or indirectly controlled by, controlling, or under common control with that Party, including any Person which becomes an Affiliate after the Effective Date. For purposes of the foregoing, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management or policies of a Person, whether through the ability to exercise voting power, by contract or otherwise. “Controlling” and “controlled” have correlative meanings. For the purposes hereof, “Affiliate” with respect to Company, shall not include parties that are controlled by Advent International Corporation other than NCS Multistage Holdings, Inc. and its subsidiary companies.
“Agreement” means these Terms and Conditions, and including any purchase order or similar document to which these terms and conditions are attached.
“Background Rights” means all intellectual property rights, including, patents, trademarks, works of authorship, trade secrets and all industrial or other intellectual property rights, owned by or licensed to Company Group.
“Claim(s)” shall mean any direct or third-party claim of every kind and nature, demand, cause of action, proceedings, judgement, award, costs (including reasonable legal fees), liability, settlements, loss, expense, penalty, fine and damages and the costs of enforcing any right to indemnification under this Agreement and the cost of pursuing any insurance providers.
“Client” shall mean any customer to which the Company has undertaken to sell Goods or provide services and in conjunction with which the Goods and/or Services are being provided by Company.
“Client Group” shall mean and include the Client, its parent companies, affiliates, subsidiaries, successors, and permitted assigns, including shareholders, officers, directors, partners, employees, and agents of any of the foregoing.
“Company” The term “Company” as used in this Agreement shall mean Repeat Precision LLC, and for the purposes of any Purchase Order issued by an Affiliate of Company, mean only the Affiliate issuing the Purchase Order.
“Company Group” means the Company and its Affiliates and its and their contractors of any tier and their respective Affiliates, and its and their respective officers, directors, and employees (including agency personnel), but shall not include any member of Supplier Group.
“Custom Goods” means Goods which are manufactured or supplied by Supplier which are manufactured or customized to Company’s specifications. “Custom Goods” does not include “off the rack” or Supplier’s standard goods which are available to other customers. “Custom Goods” includes Goods which are designed by Company, and such designs may be considered proprietary and confidential to Company.
“Delivery” means delivery of the Goods or Repaired Goods per the Incoterms 2010, as specified in the Purchase Order.
“Deliver” and “Delivered” shall be construed accordingly.
“Delivery Date” shall be the date specified on the applicable Purchase Order.
“Foreground Rights” means any and all of the intellectual property rights, including, patents, trademarks, works of authorship, trade secrets and all industrial or other intellectual property rights, developed with respect to, or for incorporation into, the Goods, that are either developed by Company Group alone, by the Parties jointly or by any of Supplier Group alone as requested by Company in connection with this Agreement.
“Goods” means the various items of Goods offered for sale and which are the subject of this Agreement, including Goods that are not new but have been repaired or refurbished (“Repaired Goods”) by Supplier.
“Indemnify” means to fully release, defend, protect, indemnify and hold harmless REGARDLESS OF THE ACTIVE, PASSIVE, CONTRIBUTORY, SOLE, JOINT OR CONCURRENT, ORDINARY OR GROSS NEGLIGENCE OF ANY PERSON INDEMNIFIED AND REGARDLESS OF WHETHER LIABILITY OF ANY KIND, INCLUDING LIABILITY WITHOUT FAULT AND BREACH OF DUTY (STATUTORY OR OTHERWISE), IS IMPOSED OR SOUGHT TO BE IMPOSED ON ANY PERSON INDEMNIFIED.
“Indemnitees” means any member(s) of Company Group or Client Group.
“Parties” means the Company and the Supplier.
“Person” means any individual, partnership, corporation, trust, limited liability entity, unincorporated organization, association, governmental authority or any other entity.
“Purchase Order” means each individual order issued by Company for Goods to be provided, or Services performed, by Supplier pursuant to this Agreement.
“Services” means all operations to be performed by the Supplier, its personnel, Subsuppliers, or agents (including but not limited to the provision of goods and services in respect to the Goods or repaired Goods) pursuant to this Agreement.
“Subsupplier” means contractor, supplier, manufacturer or any other Person who is engaged by Supplier in connection with this Agreement.
“Supplier” collectively refers to Supplier designated in the Purchase Order.
“Supplier Group” means the Supplier, and its Affiliates and its and their Subsuppliers and their respective Affiliates, and its and their respective officers, directors, invitees and employees (including agency personnel), but shall not include any member of the Company Group.
“Third Party” or “Third Parties” means any person or entity other than the Company Group or Supplier Group.
1.2 Sale or lease of any goods or services is expressly conditioned on Supplier’s acceptance of this Agreement. Any additional or different terms proposed by Supplier in any document, including but not limited to terms shown on Supplier’s quote, sales order or any other Supplier document, are objected to, null and void, and rejected and will not be binding upon Company unless agreed to in writing by an authorized representative of the Company. With the exception of any Non-Disclosure or Confidentiality Agreement between the Parties, which shall be in addition to any confidentiality obligations set forth herein, these Terms and Conditions supersede all prior terms and conditions and shall be the sole terms and conditions which apply to any sale, lease, or other furnishing of goods or services by Supplier to Company. Supplier’s performance of any work or provision of any goods shall constitute acceptance by Supplier of these Terms and Conditions. No modifications to this Agreement shall be effective unless such modification is made in writing and signed by an authorized representative of Company.
ARTICLE 2 - SUPPLY OF GOODS
2.1 Supplier shall furnish all skills, labor, supervision, equipment, materials, supplies and/or facilities required to supply the Goods, as well as, obtain and maintain all permits, licenses and/or regulatory requirements which may be required to authorize Supplier to Deliver the Goods or otherwise satisfy its obligations in this Agreement. A Purchase Order is accepted at the earlier of: (a) the time both Parties have executed the Purchase Order by signing and providing to the other Party written confirmation of the Purchase Order; or (b) when Supplier begins to perform under the Purchase Order. Any forecast provided by the Company is for informational purposes only and, except for quantities cited in a Purchase Order as firm, are preliminary and non-binding only.
2.2 Company may, at any time, in writing, make reasonable changes to a Purchase Order. If any changes cause an increase or decrease in costs or changes to the schedule for Delivery, the Supplier must notify the Company in writing of the cost increase or delivery delay before undertaking additional work. The Parties shall negotiate an equitable adjustment in the price for the Goods or the Delivery Date, or both, which will be reflected in a revised Purchase Order issued by Company. Any failure by Supplier to notify Company of a cost or delivery impact in advance of undertaking the work shall preclude the Supplier from obtaining any adjustment in price or Delivery Date.
ARTICLE 3 - INDEPENDENT CONTRACTOR
3.1 Supplier is an independent contractor and nothing in this Agreement creates any relationship with Company other than that of an independent contractor. Supplier’s employees are neither employees of Company nor eligible for participation in any Company employee benefit programs. Neither Supplier nor its agents, subsidiaries, affiliates or employees are in any way the legal representatives or agents of Company, and shall not have any right or authority to assume or create any obligation of any kind, express or implied, in the name of, or on behalf of, Company.
ARTICLE 4 - PRICING
4.1 The pricing for Goods shall be as set forth in the Purchase Order, and no extra charges of any kind shall be allowed unless specifically agreed to in writing by Company. Except as expressly provided for in the Purchase Order, the total price set forth in the Purchase Order for Goods purchased thereunder shall be deemed to include all compensation due to Supplier as a result of the sale including, without limitation, the cost of all taxes, duties, import fees, costs for shipping, expediting services, all labor with burdens, mark-ups, profit, travel and living costs.
ARTICLE 5 - PAYMENT AND AUDIT
5.1 Supplier will submit, or cause to be submitted, monthly invoices in arrears to the Company with full and proper supporting documentation, and, unless otherwise specifically stated on the first page of the applicable Purchase Order, the undisputed portions of such invoices will be paid within sixty (60) days of receipt. Final invoices must be submitted within ninety days of completion of shipment of the Goods or completion of the Services, or Supplier’s right to payment for such invoice shall be waived.
5.2 Company shall have the right to audit the books and records of Supplier or any Subsupplier of any tier thereof relating to the Goods or the performance of this Agreement for a period of five years after a final invoice is provided by Supplier. Supplier shall promptly refund to Company any overpayment disclosed by any audit conducted in accordance with this Agreement. Payment of any invoice shall be without prejudice to Company’s audit rights set forth herein this Agreement. Each party shall be responsible for its own expenses incurred in connection with such audit.
5.3 Company may withhold disputed amounts, without incurring interest or penalty. Company may offset amounts owed by Supplier to Company from any payment Company owes to Supplier, whether under this Agreement or otherwise. Supplier agrees to waive all rights of mechanic liens or other liens against the property of Company Group and further agrees to hold harmless Company group from any such liens arising from Supplier’s performance under this Agreement.
5.4 Customer shall be responsible for ensuring its IT systems are secure and that proper and accurate payment information is transmitted to Company. Company shall not be responsible for payments misdirected due to incorrect banking information which is provided to Company, whether as a result of fraud or otherwise.
ARTICLE 6 - DELIVERY DATE AND PACKAGING
6.1 Supplier shall package, mark, inspect and Deliver all Goods in a manner which is safe, efficient, diligent and careful and in a good and workmanlike manner exercising the level of skill, care and diligence of a reputable and experienced professional specializing in the supply of goods similar to the Goods.
6.2 Supplier hereby acknowledges that compliance with the time schedule, quantity and Delivery location is an essential condition of this Agreement and is of the essence. Supplier shall immediately notify the Company if Supplier believes that it will be unable to deliver the Goods to the Delivery location on the required Delivery Date or perform any Services on the date or dates scheduled for such Services. For any delivery made after the Delivery Date without the written authorization by Company, Supplier shall be liable for payment of the liquidated damages below for delay. Payments of such liquidated damages shall be without prejudice to the rights and remedies of Company under this Agreement. Such liquidated damages payments shall not be construed as a penalty, and it is agreed that they constitute a fair and genuine pre-estimate of Company’s losses to the date of applying such damages. Payment of these liquidated damages shall not relieve Supplier from duly performing his obligations under this Agreement. Liquidated damages shall be applicable if the Delivery Date is not complied with, at the rate of one percent per day elapsed from such date(s) with a maximum limit of thirty percent assessed on the value of the delayed Goods. In addition to Company’s right to claim liquidated damages, if Goods are delayed and Supplier fails to provide Company with reasonable assurance, to be determined solely in Company’s discretion, that delivery will be made within thirty days of the Delivery Date, Company reserves the right to immediately terminate the Purchase Order for Supplier’s default per Article 13 below.
ARTICLE 7 - TITLE AND RISK OF LOSS
7.1 All Goods are sold to Company per the Incoterms set forth in the Purchase Order. Notwithstanding any agreement to pay freight, transportation charges, or to make payment or advances on account, risk of loss shall pass to Company when the Goods are delivered and accepted by Company. The transfer to Company of ownership in the Goods shall take place at the time of delivery to Company in accordance with the applicable Purchase Order. However, Company may accept or refuse any Goods not conforming to the Specifications at its sole option. Supplier hereby warrants that, at the time title passes hereunder, Supplier shall deliver title to the Goods to Company free and clear of any defects in title, or any lien or encumbrance thereon. Supplier, at its sole cost and expense, shall defend, indemnify, save and hold Company harmless, and defend title against the claims and demands of all Persons arising out of, or in connection with, the Delivery of Goods, including taking all such actions as may be required to discharge any lien or encumbrance thereon.
ARTICLE 8 - QUALITY CONTROL AND SAFETY
8.1 All Goods shall be tested and certified in accordance with the procedures outlined in the Purchase Order. Supplier shall meet or exceed Company’s quality standards for the Goods as adopted by Company from time to time. Acceptance or rejection of the Goods shall be made as promptly as practical after Delivery, but failure to inspect and accept or reject the Goods or failure to detect defects by inspection, shall not: (i) relieve Supplier of its responsibility for all requirements relating to such Goods; (ii) impose liabilities on Company for its failure to identify such defects; or (iii) limit Company’s ability to rely on any remedies provided for in this Agreement, at law or in equity.
8.2 Supplier agrees to observe all safety rules and practices required by Company while working on the premises of any member of Company Group.
ARTICLE 9 - COMPLIANCE WITH LAWS
9.1 Supplier shall at all times comply with all laws applicable to this Agreement, Supplier’s operation of its business and the exercise of its rights and performance of its obligations hereunder. Without limitation of the foregoing, Supplier shall ensure the Goods and any related packaging, conform fully to any applicable law. Supplier shall obtain and maintain all permits necessary for the exercise of its rights and performance of Supplier’s obligations under this Agreement, including any permits required for the import of Goods or any raw materials and other manufacturing parts used in the production and manufacture of the Goods, and the shipment of hazardous materials, as applicable.
9.2 Supplier agrees to comply with the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), the Canada Corruption of Foreign Public Officials Act (“CFPOA”), the U.K. Bribery Act 2010 (“UKBA”), and all other anticorruption and/or anti-bribery laws applicable in the jurisdiction in which Supplier is selling the Goods. Supplier hereby declares that it has read and understood the provisions of the FCPA and, on that basis, it further represents and covenants that neither it nor any of its employees or agents have taken or will take any action to cause Supplier to be in violation of the FCPA. Specifically, Supplier hereby certifies that it has not paid, nor offered or agreed to pay, nor has it caused to be paid, or offered or agreed to be paid, directly or indirectly, any contributions, fees or commissions to any public or governmental employee or official anywhere for the purpose of influencing such official’s act or decision to provide business to Supplier or Company.
9.3 The Supplier represents that it is knowledgeable and has expertise regarding all export control laws, regulations, procedures, international sanctions, embargoes and restrictions, prohibited party lists and international shipping practices applicable to the Supplier, including but not limited to the laws of Canada, the United Kingdom and the laws of the United States of America (“Export Controls”), and confirms its obligations to the Company to monitor and screen all customers, suppliers, subcontractors and other parties and entities, including banks and vessels, which the Supplier interfaces with, selects, or uses in connection with the Contract for compliance with the requirements of all Export Controls. The Supplier shall promptly alert the Company to any violations or suspected violations of Export Controls and shall obtain all necessary licenses, permits, forms and applications required pursuant to Export Controls. The Supplier further represents that it is not currently aware of and shall continually monitor any transactions it or its customers, suppliers or subcontractors are involved in for possible violations of Export Controls and shall report any questionable transactions or suspicious circumstances immediately to the Company insofar as they relate to this Agreement. The Supplier agrees to keep records of its export control related activities for a period of five years and records pertaining to export licenses, re-export licenses, and project licenses for a period of five years from the expiration date of such license. The Supplier shall make such records available to the Company upon request for inspection and copying.
9.4 The Supplier shall be responsible for and shall save, indemnify, defend and hold harmless the Company from and against all Claims in connection with any breach or failure by the Supplier to comply with any obligation set forth in this Article 10, including failure to comply with applicable laws, FCPA or other anti-bribery regulations applicable in the jurisdiction in which Supplier is selling the Goods or export control regulations or the Supplier’s export license arising from, relating to or in connection with this Agreement.
ARTICLE 10 - WARRANTIES
10.1 Supplier gives the following warranties regarding all Goods and Services provided to Company under this Agreement: (i) conform, in all respects, to the specifications, standards, drawings, samples, descriptions, quality requirements, performance requirements, statements of work, and fit, form and function requirements furnished, specified or approved by Company for the Goods (“Specifications”); (ii) conform with any Company’s quality standards; (iii) be merchantable (as such term is defined in the UCC) and free from defects, latent or otherwise, in design, materials, and workmanship; (iv) not infringe upon, violate or misappropriate the intellectual property rights of any Third Party; (v) be fit and sufficient for the particular purpose intended by Company and its customers, of which the Supplier is aware (and Supplier acknowledges that it knows of Company’s intended use of the Goods and that such Goods have been selected, designed, manufactured or assembled by Supplier based upon Company’s stated use and will be fit and sufficient for the particular purposes intended by Company); and (vi) comply with all applicable laws.
10.2 If Supplier is not the manufacturer of the Goods, Supplier assigns to Company all warranties given by manufacturers and vendors of the Goods (or their components) in relation to the Goods.
10.3 If any Goods do not satisfy any warranty given in this Article 10 for a period of twenty-four (24) months from delivery and acceptance of the Goods, then at Company’s sole option, at Company’s discretion, Supplier shall replace or repair the non-conforming Goods to Company’s satisfaction, refund the full price of the non-conforming Goods, or reimburse Company for the full cost of Company’s repair or replacement of the Goods. Supplier shall pay all reasonable costs incurred in repairing, replacing, retrieving, removing and reinstalling the non-conforming Goods, including shipping and import duties without limitation.
10.4 With regard to Services, Supplier shall remedy the failure by, in the Company’s sole discretion, (i) re-performing the nonconforming Service at Supplier’s sole expense to the satisfaction of Company or (ii) refunding or crediting Company the full price of the non-conforming Service, or any substitute Services contracted for by Company with another provider. The warranties given in this Article 10 are applicable to all repaired Goods or replaced Goods for a period of twenty four months from completion of the repair or replacement and to all re-performance with regard to Services.
10.5 Where Company notifies Supplier of the failure of the Goods to conform with the warranty provided in this Article 10, Supplier shall commence corrective action as soon as reasonably possible after receipt of such notice from Company. At any time, Company has the right to remedy the nonconforming Goods itself or to engage another supplier to correct such failure. In either case, Supplier is responsible for all costs incurred by Company and Company has the right to offset against any amounts due to Supplier.
10.6 The warranties set out in this Article 10 are in addition to any and all other warranties, whether express, implied or statutory, that may otherwise be applicable, including any implied warranties of merchantability, fitness for purpose.
ARTICLE 11 - INDEMNITY
11.1 The Parties agree to allocate between them responsibility for all Claims arising out of this Agreement as set out below. BOTH PARTIES AGREE THAT THIS STATEMENT COMPLIES WITH THE REQUIREMENT, KNOWN AS THE EXPRESS NEGLIGENCE RULE, TO EXPRESSLY STATE IN A CONSPICUOUS MANNER THAT AFFORDS FAIR AND ADEQUATE NOTICE THAT THIS AGREEMENT HAS PROVISIONS REQUIRING ONE PARTY (THE INDEMNITOR) TO BE RESPONSIBLE FOR THE SOLE OR CONTRIBUTORY NEGLIGENCE, STRICT LIABILITY, OR OTHER FAULT OF ANOTHER PARTY (THE INDEMNITEE).
11.2 Property. If damage is suffered or loss is incurred in relation to property of any Person (including Indemnitees, Supplier Group and Third Parties) where that damage or loss arises from any Goods or Services subject to this Agreement, Supplier agrees to Indemnify Indemnitees from and against all Claims for such damage or loss. At Company’s option, Supplier shall, where possible, repair or replace the damaged or lost property.
11.3 Injury or Death. Supplier agrees to Indemnify Indemnitees from and against all Claims for injury to or death of any Person (including Supplier Group’s employees, Indemnitees’ employees and Third Parties) where that injury or death arises from any Goods or Services provided by Supplier.
11.4 Pollution Damage. Supplier agrees to Indemnify Indemnitees from and against all Claims in relation to pollution, seepage or contamination, including clean-up costs, where those Claims arise from any Goods or Services provided by Supplier.
11.5 Agreement. Supplier agrees to Indemnify Indemnitees from and against all Claims in relation to any breach or non-fulfillment of any of Supplier Group’s representations, warranties, or covenants set forth in this Agreement or any failure by Supplier Group to comply with any applicable laws.
11.6 Intellectual Property. Except to the extent the Goods or Custom Goods are designed by Company, Supplier agrees to Indemnify Indemnitees against claimed or actual infringement or contributory infringement of any patent, or infringement of any copyright or trademark, or misappropriation of any trade secret or confidential information arising out of or in connection with the Goods supplied by Supplier Group under this Agreement or the use by Indemnitees of the Goods. In the event of any such Claim, and without limiting or waiving Supplier’s indemnity obligations and the Company’s other rights under this Agreement, Supplier shall perform one of the following actions at its own expense to avoid future infringement:
- (i) modify or replace any Goods that Company or a Client has purchased or any process that Company or a Client is using which utilizes such Goods in order to avoid the patent infringement or trade secret violation. Such modification or replacement must be accomplished in a manner that is acceptable to Company or a Client and that does not detrimentally impact the performance of the affected Goods or the process which uses such Goods or
- (ii) secure for the benefit of Company or a Client irrevocable and fully paid licenses for the Goods and their use or operation in the process in order to avoid any future potential infringement without the need to modify or replace the Goods or the processes which use such Goods, at no cost to Company or a Client and on terms acceptable to Company.
11.7 Company shall notify Supplier if Company or a Client is threatened with any Claim or becomes aware of any actual Third Party Claim against it or any Indemnitees concerning the matters addressed in this section based in whole or in part on the Goods or their use by Indemnitees. Company or its Affiliate shall control the defense, investigation and potential settlement of any Claim pursuant to this Article 11 and shall employ counsel of its choice to handle and defend the same at Indemnifying Party’s sole cost and expense.
11.8 This Article 11 shall survive the termination of this Agreement or Purchase Order for any reason.
ARTICLE 12 - INSURANCE
12.1 At all times during this Agreement, Supplier shall obtain and maintain in full force and effect and at its sole cost and expense, including applicable deductibles or self-insured retentions, with an insurance company or companies authorized to do business in the jurisdiction where the Services are to be performed or the Goods are to be manufactured, transported or sold to Company or Client or through a self-insurance program approved by Company in writing in advance, the insurances (or their equivalent acceptable to Company) of the kind and in the amounts (which shall be minimum limits) only listed below. Supplier will furnish to Company annually a certificate or certificates evidencing the insurance coverages (or their equivalent acceptable to Company) listed below. Supplier agrees that for the term of this Agreement, Supplier shall not and shall not permit any such insurance to be cancelled, altered or amended without thirty (30) days’ prior written notice to Company in writing. If any such change is not acceptable to Company in its sole discretion, it may terminate this Agreement and / or any then pending purchase orders, without additional compensation or obligation to Supplier.
Workers Compensation/Employers Liability
1. Minimum policy limit of US $1,000,000 per occurrence.
2. Include U.S. L. & H. coverage where applicable.
Comprehensive General Liability
1. Minimum policy limit of US $1,000,000 per occurrence.
2. Deletion of all watercraft exclusions.
3. Blanket contractual liability coverage for all indemnity obligations assumed under this Agreement.
Minimum policy limit of US $10,000,000 per occurrence or such other amount as shall be specified in the applicable purchase order.
1. Minimum policy limit of US $1,000,000 per occurrence.
2. Covering all owned, non-owned, hired and/or rented automotive equipment for bodily injury and/or property damage.
12.2 Prior to Supplier providing Services or selling Goods, Supplier shall obtain from each of its insurers a certificate which shall include a waiver of subrogation in favor of each the Indemnitees and, with the exception of Workers’ Compensation/Employers Coverage, the naming of the Indemnitees as additional insureds in all their capacities in each insurance policy as set forth above. The obligations of Supplier to name the Indemnitees as additional insureds shall be in addition to and apply regardless of the enforceability of the indemnity obligations of Supplier in this Agreement. The limits specified above shall be minimum limits only, and the Indemnitees as additional insureds shall be entitled to the full limits of all policies actually obtained. No “other insurance” provision shall be applicable to the Indemnitees by virtue of having been named an additional insured or loss payee under any policy of insurance and Supplier’s insurance shall be primary with respect to the Indemnitees. Supplier shall ensure that any endorsement naming the Indemnitees as additional insureds shall not exclude from coverage the sole negligence of the additional insureds or negligence of the additional assureds without negligence of a named assured. Supplier does hereby protect and indemnify and hold harmless, the Company from any loss Company may suffer due to Supplier’s failure to comply with all of the above insurance requirements, including obtaining waivers of subrogation, or due to any insurance coverage being invalidated due to Supplier’s failure to comply with the terms, conditions, and warranties of the insurance.
ARTICLE 13 - TERMINATION
13.1 Company shall have the right to terminate this Agreement with immediate effect and without indemnity or liability of any nature to Supplier in the following cases: (i) Supplier’s breach of any provision of this Agreement; (ii) Supplier’s failure to comply with the terms of the Purchase Order; (iii) Supplier or Supplier’s parent company becomes bankrupt, insolvent or goes into liquidation, whether voluntarily or compulsorily; or ceases, or demonstrates an intention to cease, carrying on their business; (iv) Supplier assigns, delegates or transfers this Agreement or any portion of the Purchase Order, in whole or in part, except as expressly permitted under this Agreement; (v) Supplier or Supplier’s parent company undergoes or is likely to undergo a material change, which, in Company’s sole determination, has or could have an adverse effect on Supplier’s or Supplier’s parent company’s credit, quality, skill, or ability; (vi) if any representation, warranty or covenant made by the Supplier in this Agreement was false or misleading when made or at any time becomes false or misleading; (vii) in case of non-compliance with the provisions of any applicable laws. In the event of termination as provided for in the above paragraph, Company may avail itself of any and all rights as allowed at law. Company shall not be liable for the purchase price, any costs of Supplier or any other amounts as a result of termination on the basis of Supplier’s default.
13.2 Company may terminate any Purchase Order at any time by giving notice to Supplier, with the termination effective on the date specified in the notice (or if no date is specified, termination is effective when notice is received). Upon Supplier’s receipt of notice to terminate any Purchase Order, Supplier is obligated to take all commercially reasonable measures to mitigate the effects of termination, including promptly making every reasonable effort to either obtain termination of all outstanding contracts relating to the Goods on terms satisfactory to Company or assign those orders to Company. Company shall pay Supplier reasonable costs, as solely determined by Company, up to the date of termination.
ARTICLE 14 - RETURNS AND CANCELLATIONS
14.1 Company may, at its sole discretion, reject and return to Supplier, at Supplier’s sole cost and risk of loss during transit, any Goods that Company determines are not acceptable and have been Delivered due to: (i) failure to meet the technical specifications in the Purchase Order or the Warranty set forth in Article 10; (ii) damage or destruction during transportation; (iii) improper packaging; or (iv) over shipments or other errors in shipping whereby the Goods do not comply with the applicable Purchase Order. Supplier shall commence its replacement of any nonconforming Goods and returns immediately upon receipt of any such written request and shall Deliver such replacement Supplier Goods to the location directed by Company, all at Supplier’s sole cost and expense. Company may return conforming Goods to Supplier, so long as the Goods are in good, re-saleable condition, in original and unmarked packaging.
ARTICLE 15 - LIMITATION ON DAMAGES
15.1 NOTWITHSTANDING ANY OTHER PROVISION HEREIN THESE TERMS AND CONDITIONS, IN NO EVENT SHALL COMPANY GROUP BE LIABLE TO SUPPLIER GROUP OR ANY THIRD PARTY FOR LOST PROFITS (DIRECT OR INDIRECT), DAMAGE TO WELL OR LOSS OF RESERVES, INDIRECT, INCIDENTAL, CONSEQUENTIAL (DIRECT OR INDIRECT), PUNITIVE OR SPECIAL DAMAGES (INCLUDING WITHOUT LIMITATION ECONOMIC LOSS, PHYSICAL HARM, LOSS OF PROFITS OR LOSS OF BUSINESS OPPORTUNITIES), ARISING OUT OF, RESULTING FROM, OR IN ANY WAY RELATED TO THE PERFORMANCE UNDER THESE TERMS AND CONDITIONS, WHETHER OR NOT SUCH LOSSES ARE THE RESULT IN WHOLE OR IN PART FROM THE SOLE, CONCURRENT, OR COMPARATIVE NEGLIGENCE OF ANY PERSON OR PARTY, OR ANY DEFECT IN THE PREMISES, PREEXISTING CONDITIONS, PATENT OR LATENT, BREACH OF STATUTORY DUTY, STRICT LIABILITY OR ANY OTHER THEORY OF LEGAL LIABILITY.
15.2 The total aggregate liability of Company with respect to any Claims arising under this Agreement, whether based upon contract, indemnity, tort (including negligence and strict liability), statute or any other basis, shall not exceed the aggregate amount of the Purchase Order to which any such Claims are associated, less any amounts already paid pursuant to such Purchase Order, and Supplier releases Company from all other Claims.
ARTICLE 16 - FORCE MAJEURE
16.1 Neither Party shall be liable for any delay or failure to perform its obligations, except for the obligation to make payment of monies when due, under this Agreement if such failure or delay is due to Force Majeure. If either Party is delayed or fails to perform its obligations under this Agreement due to Force Majeure or the results thereof, such Party shall give seven days written notice and details of the Force Majeure in writing to the other Party. Following notification of a Force Majeure occurrence, Company and Supplier shall meet without delay with a view to agreeing to a mutually acceptable course of action to minimize any effects of such occurrence. “Force Majeure” shall mean any act, omission, cause or circumstance beyond the control of the Parties and shall include but not be limited to strikes, lock-outs or other industrial disputes (whether involving its own workforce or a Third Party’s), failure of energy sources or transport network, acts of God, war, terrorism, riot, civil commotion, interference by civil or military authorities, national or international calamity, armed conflict, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosions, collapse of building structures, fires, floods, storms, earthquakes, loss at sea, epidemics or similar events, natural disasters or extreme adverse weather conditions.
ARTICLE 17 - CONFIDENTIAL INFORMATION
17.1 Supplier Group shall treat Company Group confidential information, including any information, whether disclosed orally or in writing, about its business affairs, goods (including Custom Goods) and services, information and materials comprising or relating to intellectual property rights, trade secrets, third-party confidential information, and other sensitive or proprietary information as valuable, proprietary and confidential and shall not disclose, and shall ensure that all members of Supplier Group do not disclose, any Company confidential information to any other Person without the prior written consent of Company. Supplier shall be responsible for any breach by Supplier Group or its Subsuppliers.
17.2 Notwithstanding anything to contrary herein this Agreement, it is expressly understood that Company owns all tooling, and designs of tooling specifically used in the manufacture of Custom Goods, and upon request by Company or termination of this Agreement pursuant to Article 13, Supplier Group shall return all new tooling designs used to manufacture Custom Goods to Company. Company and its Affiliates shall have an irrevocable, royalty-free, perpetual, worldwide right and license, with the right to sublicense, to use any Supplier information.
17.3 Supplier acknowledges and agrees that due to the unique nature of the Company confidential information, there may be no adequate remedy under applicable laws for any breach of the obligations set out in this Article 17, and that any breach of these obligations may allow Supplier or another Person to compete unfairly with Company resulting in irreparable harm to Company. Accordingly, Supplier agrees that upon any breach (or threat of a breach), Company is entitled to immediate equitable relief, including a restraining order and preliminary injunction, without any requirement to post a bond or other security, and without any requirement to prove actual damages or that monetary damages will not afford an adequate remedy, and Company may seek indemnification from Supplier for any loss or harm in connection with any breach or enforcement of Supplier’s obligations provided in Article 17, or for the unauthorized use or release of Company information. Supplier shall notify Company immediately upon the occurrence of any unauthorized release of Company information or other breach of this Article 17.
17.4 Supplier acknowledges and agrees that all Background Rights in Custom Goods are owned by Company and all Foreground Rights in Custom Goods will be owned by Company, and Supplier agrees to and does hereby assign, and will procure the grant and assignment by any Affiliate or Subsupplier, to Company all of Supplier’s right, title and interest in and to all Foreground Rights, and, to the extent that any Foreground Rights are copyrightable works or works of authorship (including computer programs, technical specifications, documentation, and manuals), the Parties agree that such works are “works made for hire” for Company under the US Copyright Act. Supplier agrees to sign all lawful documents and to make all rightful oaths and declarations as may be reasonably necessary to support and evidence the ownership interests set herein. Supplier shall only use the Foreground Rights to produce and supply Goods to Company and Company information may only be used for the purpose of carrying out this Agreement and for no other reason and shall not use Foreground or Background Rights to manufacture or sell Goods or other goods or products that are similar to or competitive with the Goods to any other Person. Other than what is expressly granted in this Agreement, Supplier Group shall have no rights or license, by implication or in any other way, to any intellectual property now or subsequently owned by Company Group. The Supplier shall not have any right of use, other than for the purposes of this Agreement, whether directly or indirectly, of any patent, copyright, proprietary right or confidential know how, trademark or process provided by the Company Group (whether or not owned by the Company Group or a Third Party) in relation to this Agreement and the intellectual property rights in such shall remain with the Party being the owner of such patent, copyright, proprietary right or confidential know how, trademark or process.
ARTICLE 18 - LAW
18.1 The validity, construction, interpretation, and effect of the contract shall be governed by the laws of the state of Texas, USA and shall be performable in Harris County Texas. EACH PARTY HERETO SUBMITS TO THE JURISDICTION OF THE COURTS OF THE STATE OF TEXAS IN HARRIS COUNTY, TEXAS AND THE FEDERAL COURTS IN AND FOR THE SOUTHERN DISTRICT OF TEXAS SITTING IN HOUSTON, TEXAS IN CONNECTION WITH ANY DISPUTE ARISING UNDER THESE TERMS AND CONDITIONS OR ANY DOCUMENT OR ANY INSTRUMENT ENTERED INTO IN CONNECTION HEREWITH. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
ARTICLE 19 - MISCELLANEOUS
19.1 Assignment. Company may, without the prior consent of Supplier, assign all or any of its rights or delegate all or any of its obligationsin this Agreement. The Supplier shall not be entitled to assign its rights or delegate any of its obligations under this Agreement (or sub-contract its performance of this Agreement) without the prior written consent of the Company. Any purported assignment or delegation in violation of this Section is null and void. The Company may assign its rights and obligations under this Agreement or sub-contract the performance of its obligations under this Agreement.
19.2 Subcontracts. Supplier shall not subcontract or otherwise delegate any performance of any benefit or obligation arising under this Agreement without Company’s prior written consent. Even when consent is granted, Supplier shall be responsible for all acts or omissions of its employees, agents, and Subsuppliers in relation to the performance of this Agreement and any such acts or omissions shall be deemed those of Supplier. Supplier will ensure its Subsuppliers comply with the applicable provisions of this Agreement.
19.3 Cumulative Rights and Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties or otherwise. A Party’s right to require strict performance in accordance with this Agreement shall not be affected by any previous waiver or course of dealing.
19.4 Savings provision. The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement. If any part of this Agreement cannot be legally enforced, the Parties agree that the provision will be deemed modified as necessary to make it enforceable while remaining as consistent as possible with the intent as expressed in this Agreement.
19.5 No third-party beneficiaries. There are no third-party beneficiaries to this Agreement, other than the Company Group which are expressly designated as third party beneficiaries with regards to Article 11 and to the extent so stated in the Agreement.
19.6 Entire agreement. This Agreement (including all schedules, exhibits, attachments, and Purchase Orders) is the entire agreement with respect to the Goods and except for any Non-Disclosure or Confidentiality Agreement which may exist between the Parties, any prior agreements, oral or written, are no longer effective.
19.7 Survival. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties and indemnities of Supplier contained herein will survive the expiration or earlier termination of this Agreement; and (b) Articles 3, 4, 5, 9-19 of this Agreement should survive such expiration or termination of this Agreement.
19.8 Conflicts. This Agreement overrides the general terms and conditions on either Party’s standard forms or invoices. In the event of any conflict or inconsistency among or between any of the documents comprising this Agreement, these terms and conditions shall prevail unless otherwise agreed to in writing signed by both Parties. Any errors, inconsistencies, omissions or discrepancies in the documents comprising this Agreement shall not relieve Supplier of its responsibilities to Deliver the Goods specified in a Purchase Order. Each Party hereby acknowledges that it has not entered into any Purchase Order in reliance upon any representation made by the other Party not embodied here in this Agreement or applicable Purchase Order.