PURCHASE ORDER GENERAL CONDITIONS EFFECTIVE AS OF JANUARY 1, 2017
1. ACCEPTANCE; NO ADDITIONAL TERMS. For purposes of these PO General Conditions and all related activity, the term “Supplier” means the Company identified as the Seller, Vendor, Contractor, Service Provider, Supplier or similar on the applicable Purchase Order or supply agreement (regardless of how titled) entered into by Company and Supplier (“PO”), and the term “Company” means the company(ies) identified as the purchaser on the applicable PO. The PO will be deemed accepted by Supplier upon the first of the following to occur: (a) Supplier communicating to Company its acceptance; (b) any performance by Supplier under the PO; or (c) any other conduct that recognizes the existence of a contract with respect to the subject matter of the PO. Company reserves the right to revoke or withdraw the PO, in whole or in part, prior to Supplier’s acceptance. By accepting the PO, Supplier agrees to comply with these PO General Conditions contained herein and any other attachments noted in the PO and to sell the goods or products (“Goods”) and/or provide the services (”Services”) as described and for the prices indicated in the PO. Acceptance of the PO is expressly limited to these PO General Conditions contained herein (including attachments to the PO). No terms or conditions submitted by Supplier that are in addition to, different from or inconsistent with those contained herein or in the PO, including, without limitation, Supplier’s standard printed terms and conditions, and any terms and conditions contained in any Supplier quotation, invoice, order, acknowledgement, confirmation, acceptance, amendment, modification, bill of lading or other instrument, shall be binding upon Company unless specifically and expressly agreed to in a writing signed by duly authorized representatives of both parties. The PO, including these PO General Conditions and any attachments noted in the PO, constitutes the entire agreement relating to the subject matter hereof and supersedes all prior and contemporaneous understandings or statements unless expressly contained herein. If the parties have entered into a supply agreement, the purchase order, including these PO General Conditions, shall be subject to the terms of the supply agreement.
2. DELIVERY; RISK OF LOSS; FREIGHT; DUTIES; QUANTITY. Supplier, where applicable, will supply the Goods and/or Services to Company at the delivery point identified on the PO (“Delivery Point”) and by the date specified therein or, if no date is so specified, within a reasonable time after Supplier receives the PO. Time is of the essence of Supplier’s performance of the PO. Should Supplier fail to deliver the Goods and/or perform associated Services by the stipulated time or within reasonable time, as the case may be, Company (without prejudice to its other remedies) may: (a) cancel that part of the PO which is undelivered at such time and (b) require Supplier to indemnify it against any Liabilities in relation to such failure. Risk of loss of the Goods remains with Supplier, and title will not pass to Company, until the Goods are delivered to and accepted by Company at the Delivery Point. Unless specified otherwise on the PO or in any attachments thereto, the prices are inclusive of, and Supplier shall be solely responsible for and pay, all costs of delivering the Goods to the Delivery Point, including, without limitation, all shipping and freight costs and all duties, fees, tariffs or similar analogous taxes on imports or exports of the Goods. Quantities listed in each PO as estimated are Company’s reasonable estimate of the quantities of Goods it might purchase from Supplier for the contract term specified in the Order. Any estimates or forecasts of production volumes or program durations are subject to change from time to time, with or without notice to Supplier, and shall not be binding upon Company. Unless otherwise expressly stated in the PO, Company makes no representation, warranty, guaranty or commitment of any kind or nature, whether express or implied, to Supplier in respect of Company’s quantitative requirements for the Goods or the term of supply of the Goods.
3. INSPECTION; ACCEPTANCE; NONCONFORMANCE. Without affecting its other legal rights and/or remedies, Company shall have the right to inspect Supplier’s production facilities. It may also inspect and test Goods at any time during manufacture and prior to shipment and for a final inspection within a reasonable time after Goods arrival at the ultimate destination. Goods shall not be deemed accepted and, thus title shall not pass to Company, until after such final inspection. Company may return any Goods that are defective, unsatisfactory, of inferior quality or workmanship, or fail to strictly conform to the Company’s specifications and quality control requirements. Such Goods to be returned shall remain the property of Supplier and may be returned at Supplier’s risk and expense. The making or failure to make any inspection of, testing of, payment for, or acceptance of the Goods, shall not relieve Supplier of its obligation to ensure that all Goods supplied under this PO strictly conform to the warranties set forth in Section 7, relieve Supplier of any liability in connection with defective Goods or in any way impair Company’s right to reject nonconforming Goods or to avail itself of any other remedies to which Company may be entitled, notwithstanding Company’s knowledge of the nonconformity, its substantiality or the ease of its discovery. Company shall, at its option, either give Supplier a reasonable time to correct the non-conformance or cancel the PO as to such materials and retain its rights with respect to cover as provided by law.
4. CERTIFICATES OF ANALYSIS. A validated test report must accompany all shipments made against each item of this PO that indicates the percentage of each element that makes up the raw chemical composition and physical properties of all raw materials. The test report must specifically identify the material by reference to the number of the lot, or other similar designation and must indicate the applicable specification, revision and PO designation. Each part, component, or material quantity furnished shall be identified by lot or batch, traceable to the actual manufacturing process. The lot or batch number may be by date or Supplier order code, but must provide the capability for a lot or batch purge in the event of determination of a condition of discrepancy.
5. PRICES; INVOICES; PAYMENT. Supplier shall supply the Goods and Services for the prices specified in the PO. Company will make payment of all undisputed amounts due to Supplier within terms agreed upon at time of account set up time period for payment of the invoice will not commence until after the Goods are actually delivered to the Delivery Point. Payment of an invoice is not evidence or an admission that the Goods or Services meet the requirements of the PO. Subject to Section 6 below, the prices listed in the PO are inclusive of all costs (including taxes) and expenses of Supplier in providing the Goods and/or Services to the Delivery Point.
6. TAXES. The prices specified in the PO are exclusive of any value added tax (“VAT”), goods and services tax (“GST”), sales, use or consumption tax or similar government tax payable on the supply of the Goods and/or Services (collectively, “Indirect Transaction Taxes”). If Supplier is required by applicable laws to collect and pay Indirect Transaction Taxes to relevant government agency, Company shall remit payment to Supplier of applicable Indirect Transaction Taxes at the percentage rate required by applicable laws in the jurisdiction where the supply takes place, provided Supplier has first provided to Company an invoice for Indirect Transaction Taxes that complies with applicable laws. Company reserves the right to withhold payment of Indirect Transaction Taxes if it has provided a valid tax exemption certificate to Supplier. If the PO requires Supplier to provide Services, and if Supplier is a foreign corporation or company (i.e. having its principal place of business outside of the country identified in Company’s address on the PO) or a non-resident alien individual, then, unless Supplier provides Company with valid documentation (received prior to payment for services) showing that an exemption applies where the Services are performed: (a) Company reserves the right to withhold payment of amounts required to satisfy tax withholding obligations under applicable laws on account of the Services; and (b) Company will use commercially reasonable efforts to furnish Supplier receipts, proof of payment or other relevant documentation for any withholding taxes so paid.
7. WARRANTIES. Supplier expressly represents, warrants, and guarantees to Company that: (a) it has good and marketable title to the Goods and the right to transfer title to the Goods free and clear of any lien, hypothec, claim or other encumbrance of any kind; (b) the Goods will (i) strictly conform to any specifications and/or standards provided by Company, or by Supplier in writing and approved by Company, (ii) be new, free from defects in design, materials and workmanship, (iii) be in every respect fit for any purpose for which Company has expressly or by implication made known that it requires the same and (iv) be in compliance with all applicable requirements of any statutes or regulations applicable to such Goods in the country to which the Goods are shipped at the date of delivery including, without limitation, all statutory and other rules and regulations relating to health, safety and security; (c) the Services (if any) will (i) confirm to any specifications and/or standards provided by Company, or by Supplier in writing and approved by Company, (ii) comply with all applicable law and requirements of any statutes or regulations applicable in the Country in which the Services are performed; (iii) be performed expeditiously, in a workman-like manner and consistent with any applicable standards of skill and care; and (d) the Goods and Services and their use, manufacture, sale, lease, distribution, or other commercialization do not and will not infringe, misappropriate or violate the trademarks, service marks, copyrights, patents, patient rights, trade secrets and other intellectual property rights of any third party. All warranties of Supplier shall survive the expiration, non-renewal or termination of this PO. The warranties set forth herein are in addition to and not in lieu of any warranty or service guarantee offered by Supplier or implied or provided by law.
8. REMEDIES. In addition to remedies otherwise available to Company, if Supplier is in breach of the warranties set out in these PO General Conditions, Supplier will, at the election of Company, and at Supplier’s sole cost (including any relevant transportation and labor costs), either (a) replace or repair (including, if applicable, reinstall) the Goods or re-perform the Services to Company’s satisfaction, (b) reimburse Company in full for the cost of repair carried out by it or any third party at its direction, or (c) refund the full purchase price.
9. FORCE MAJEURE. If the performance by either party or any obligation under the PO is prevented, restricted or interfered with by any act of God, fire or other casualty, embargo, power or supplies, war or violence, acts of terrorism, or any law, order, proclamation, ordinance, demand or requirement of any governmental agency or similar event beyond such party’s reasonable control (each, an “Event of Force Majeure”), such party shall promptly give the other party written notice of the Event of Force Majeure. Delays caused by labor disputes, changes in cost or availability of raw materials or components based on market conditions, or scheduled downtime for maintenance shall not constitute an Event of Force Majeure. No later than 48 hours after the occurrence, Supplier will provide written notice describing such delay and assurance of when the delay will be cured. During the delay, Customer may at its option: (a) cancel any PO and purchase Goods or Services from third parties without liability; (b) to the extent available, require Supplier to deliver all finished goods, work in process tooling, and parts and materials produced or acquired for work under the PO; or (c) have Supplier provide Goods or Services from other sources and at the price set forth in the PO.
10. COMPLIANCE WITH LAWS, POLICIES, ETC. In supplying the Goods and Services Supplier will (and Supplier shall not take any action that would cause Company to be in violation of any such laws): (a) comply with and ensure that its employees, agents, contractors and subcontractors (“Personnel”) comply with all applicable laws, rules and regulations; (b) ensure that all Goods and Services supplied comply with all applicable laws and regulations; (c) comply with Company’s Code of Conduct, as it may be revised from time to time that can be found at __www.RPM.com__ and Company’s Supplier Expectations, as it may be revised from time to time, which can be found at __www.Stonhard.com__ the “Supplier Expectations” and (d) to the extent that Supplier’s Personnel are required to enter onto Company property, ensure that such Personnel (i) comply with Company’s written health, safety and environmental policies and standards provided to Supplier, and (ii) are aware that they enter onto Company’s site or property at their own risk. While supplying Goods or performing Services under this agreement Supplier will comply with the US Foreign Corrupt Practices Act, the UK Bribery Act, local anti-corruption laws and all other laws prohibiting any form of commercial or private bribery. Supplier represents and warrants that no Goods supplied under this PO will be manufactured by child or slave labor or by victims of human trafficking. Supplier shall fully cooperate with Company including by sharing information permitting Company representatives to visit and audit its sites and addressing any concerns raised by Company or any governmental entity or authority, to assure there is continuous and full compliance by Supplier with all applicable laws and the Supplier Expectations. Supplier will fully comply with all reasonable requests from Company for information, documentation and certifications relating to Supplier’s compliance with this Section 10 and in order to meet any obligations that Company or any parent company of Company may have under Conflict Minerals laws, including without limitation, under Dodd-Frank Section 1502.
11. ASSIGNMENT; SUBCONTRACTING. Supplier shall not assign, delegate, subcontract or otherwise dispose of the PO or any interest, rights or obligations hereunder, in whole or in part, including any performance or any amount that may be due hereunder, without Company’s prior written authorization.
12. APPLICABILITY TO COMPANY AFFILIATES. Affiliates of Company, are intended third-party beneficiaries of the PO and these PO General Conditions to the extent provided in the PO pursuant to which the PO is issued. In any event, any affiliate of Company that is not identified as purchaser on the applicable PO has no obligations, liabilities or responsibilities under such PO. Any default under such PO or otherwise under these PO General Conditions by Company will not constitute an event of default by any affiliate of Company under any other PO or these PO General Conditions.
13. INDEMNIFICATION. Supplier agrees to indemnify, defend and hold harmless Company and its affiliates, and their officers, directors, employees and agents, from and against any claims, losses, damages or injuries of any kind or character (including, without limitation, reasonable attorneys’ fees, consequential, special and punitive damages) (“Liabilities”) which arise out of or in connection with, directly or indirectly: (a) the performance of the PO by Supplier, including, without limitation, any Liabilities arising out of any misrepresentation, negligence, fraud, willful misconduct, breach of statutory duty or breach of the PO by the Supplier; (b) caused by or in any way arising from any failure of the Goods or Services to comply with the specifications, warranties and certifications described or referenced in the PO or these PO General Conditions; (c) for damage to property or for injury to or death of any person caused by, or in any way arising out of Supplier’s furnishing of any Goods or Services; and (d) arising out of any act or omission by Supplier in violation or contravention of any law or the Supplier Expectations. The indemnification obligations of this Section 13 shall survive the expiration, non-renewal or termination of the PO.
14. INSURANCE. Without limiting Supplier’s obligations or liabilities hereunder, Supplier shall, at its sole expense and for the duration of the PO and all applicable warranty periods, purchase and maintain the following insurance: (a) commercial general liability insurance covering all liabilities for personal injury and property damage arising from the Services/Goods, with limits of liability of $1,000,000 for each occurrence and in the aggregate; (b) workers’ compensation insurance in compliance with the applicable laws of each jurisdiction affected by the Goods/Services; (c) if Supplier will use or provide for use motor vehicles in providing the Goods and/or performing the Services, automobile (motor vehicle) insurance covering all liabilities for personal injury and property damage arising from the use of such vehicles, with limits of liability of $1,000,000 for each occurrence and in the aggregate; and (d) if Supplier will provide professional advice or services, professional liability insurance, with limits of liability acceptable to company. Supplier shall provide coverage endorsements for each category of required insurance, including, except in the case of workers’ compensation insurance and professional liability insurance: (i) an endorsement including Company and its directors, officers, employees, agents and representatives as additional insureds; (ii) an endorsement including a cross liability clause, noting that each of the parties comprising the insured shall be considered as a separate entity, the insurance applies as if a separate policy has been issued to each party, and no “insured-versus-insured” exclusion exists in the policy; and (iii) an endorsement waiving all express or implied rights of subrogation against Company. Supplier shall on request provide to Company or its designee certificates of insurance and endorsements as evidence of the insurance required hereunder.
15. CONFIDENTIAL INFORMATION. In the course of performing the PO, Supplier may obtain certain information, oral or written (in whatever form), of a confidential nature (or which reasonably ought to be known as confidential) of Company and/or its affiliates (“Confidential Information”). Supplier agrees, unless required by a lawful court order, subpoena, or similar legal request, not to make Confidential Information available in any form to any third party (excluding Company’s personnel and affiliates) or to use Confidential Information for any purpose other than the implementation of the PO. Supplier agrees to take all reasonable steps to ensure that Confidential Information is not disclosed or distributed by its personnel in violation hereof. If Supplier is required to disclose Confidential Information by a lawful court order, subpoena, or similar legal request, Supplier shall promptly notify Company in writing of such requirement so that Company may seek an appropriate protective order. Supplier acknowledges that failure to comply with this clause shall irreparably harm the business of Company, and that a breach of its obligations under this clause shall entitle Company to seek immediate injunctive relief, in addition to any other remedies that Company may have.
16. INTELLECTUAL PROPERTY. To the fullest extent permitted by applicable law, if, in performing the PO, Supplier provides to Company any intellectual property, trade secrets, work product, work of authorship, technical materials, drawings, specifications, documentation, reports, recommendations or other writings, information or material embodied in a tangible medium and created or developed for purposes of providing the Goods and Services under the PO (“Deliverables”), such Deliverables shall be deemed to be owned by Company, unless Company expressly agrees in writing otherwise. Company shall be deemed the “inventor,” “author,” and “owner” of all Deliverables under applicable law, and Supplier agrees to assign, and hereby assigns, to Company any and all intellectual property rights in and to such Deliverables.
17. TERMINATION. Without prejudice to any rights or remedies which Company may have, Company may terminate the PO or any part thereof as to all or any portion of the Goods not delivered or Services not performed.
18. GOVERNING LAW AND FORUM. The PO is governed by the laws of the country, state, province or territory identified in the address for Company on the PO, excluding its choice or conflict of law rules, Company and Supplier expressly disclaim, and exclude, application to the PO of (a) the United Nations Convention on Contracts for International Sale of Goods, (b) the International Sale of Goods Act, and (c) the International Sale of Goods Contracts Convention Act. Each party irrevocably and unconditionally submits to the exclusive jurisdiction of the country, provincial or territorial courts in the country, province or territory identified in the address for Company on the PO and the courts of appeal from them and determining any dispute concerning the PO and waives to the fullest extent possible any defense of any inconvenient forum to the maintenance of such action or proceeding. The Supplier agrees that a final judgment in any action or proceeding in the courts referred to above shall be conclusive and may be enforced in any other jurisdiction or country by suit on such judgment or in any other manner provided by applicable law.
19. PRIVACY AND PERSONAL DATA. Supplier agrees to comply with all applicable laws relating to privacy and protection of personal data in respect of personal data obtained by or disclosed to it, pursuant to the PO. Supplier agrees to (i) only process personal data for the purposes of the PO and as directed by Company, (ii) timely report to Company any complaints or notices it has received regarding the misuse or disclosure of personal data, (iii) maintain appropriate measures to protect against unauthorized processing, access or disclosure of personal data and notify Company of any such unauthorized use, access, or disclosure, and (iv), if required by Company, execute applicable European Union model contracts and/or a data privacy and security addendum to the PO.
20. PRODUCT RECALL. Supplier shall reimburse Company for any costs or losses Company incurs as a consequence of any recall taken with regard to any Goods (a “Product Recall”), regardless of whether such recall is initiated by Supplier, or Company, and regardless of whether such actions are taken voluntarily or are required by any governmental entity. If any Product Recall occurs, Company may terminate the PO immediately without penalty upon written notice to Supplier. Any termination by Company pursuant to this Section will be without prejudice to any other rights and/or remedies that Company may have under law, at equity or pursuant to these PO General Conditions.
21. MISCELLANEOUS. Either party’s waiver of any breach, or failure to enforce any of the PO General Conditions, at any time shall not in any way affect, limit or waive such party’s right thereafter to enforce and compel strict compliance with every term and condition hereof. Supplier and Company have agreed that these PO General Conditions be drafted in English. Any provision herein which is invalid or unenforceable shall in no way affect the validity or enforceability of the remaining provisions of these PO General Conditions. Any such invalid or unenforceable provision shall be deemed to be severed to the extent necessary for that purpose subject to such consequential modification as may be necessary. The headings used herein are for convenience only and shall not affect construction. The exclusive remedies of Supplier under the PO are to have the Products not paid for returned and to receive payment of the purchase price for any Products not paid for and not returned. All representations, warranties, indemnities and other obligations set forth herein that explicitly survive, or by their nature or context are intended to survive, termination, expiration, or cancellation of this PO shall survive.
22. NOTICES. Any notice to be given under or pursuant to the PO shall be in writing and may be sent by hand or by post or by registered post or by overnight delivery service or transmitted by facsimile and such notice shall be addressed to the other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice. Notices shall be deemed effectively given on the day when in the ordinary course of the means of transmission it would first be received by the addressee in normal business hours.